Y Ngoc Mai and Huong Mai-Nguyen v. Farmers Texas County Mutual Insurance Company

Affirmed and Memorandum Opinion filed May 7, 2009

Affirmed and Memorandum Opinion filed May 7, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-00958-CV

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Y NGOC MAI AND HUONG MAI-NGUYEN, Appellants

V.

FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, Appellee

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2005-74300

M E M O R A N D U M   O P I N I O N

Appellants, Y Ngoc Mai and Huong Mai-Nguyen, appeal from a take-nothing judgment in their lawsuit against appellee, Farmers Texas County Mutual Insurance Company.  Appellants sued Farmers for coverage of damages stemming from an automobile accident.  Appellants specifically sought coverage under the uninsured motorist provision of the policy, which requires that there have been contact between the insured=s vehicle and the uninsured motorist=s vehicle.  Appellants additionally alleged that Farmers acted in bad faith in investigating  and refusing to promptly pay the claims.  After trial before a jury, the court below granted a directed verdict against appellants= bad faith claim, and the jury found that there was no contact between the vehicle containing appellants and the alleged uninsured motorist=s vehicle.  In three issues, appellants contend that: (1) the trial court erred in refusing proposed jury questions regarding the bad faith investigation claim; (2) the trial court erred in granting a directed verdict against the bad faith investigation claim; and (3) the jury verdict on contact was against the great weight and preponderance of the evidence.  We affirm.

I.  Background

It is undisputed that at the time of the accident made the basis of this lawsuit, Y Ngoc Mai and Huong Mai-Nguyen, husband and wife, were insured by Farmers.  As stated above, appellants sued Farmers for coverage under the uninsured motorist provision of the insurance policy.  This provision covers damages caused by, among other things, a hit-and-run driver whose identity cannot be identified, so long as the Auninsured vehicle@ made Aactual physical contact@ with the vehicle driven by the insured.  Farmers purported to decline coverage based on an alleged lack of contact between the vehicles.  According to the police report filed regarding the accident in question, the accident occurred on Interstate 95 in Sussex County, Virginia.  Mai was driving another person=s Ford Expedition at the time of the accident.

Only three witnesses testified at trial:  Huong Mai-Nguyen and Y Ngoc Mai testified on their own behalf, and Linda Ennis testified for Farmers.  Mai-Nguyen testified that on September 6, 2004, while traveling through Virginia, her husband, Mai, was driving while she was sitting in the back seat.  Mai-Nguyen Awas closing her eyes but . . . wasn=t asleep deeply,@ when she heard something hit the vehicle in which she was riding.  She opened her eyes as the vehicle spun and ran into trees on the side of the road.  The other vehicle did not stop.  Mai was rendered unconscious in the accident and had to be Acut . . . out of the car.@  He was then flown by helicopter to a hospital.  Mai-Nguyen suffered more minor injuries as a result of the accident, and she testified regarding the treatment for those injuries and associated pain and suffering.  She further testified regarding her husband=s condition and about having to take care of him without help from anyone else.

On cross-examination, asked whether she was sleeping or Ajust dozing off,@ at the time of the accident, Mai-Nguyen responded that she Awas dozing off.@  She admitted that she never saw the other vehicle involved in the accident and did not see any impact between the two vehicles.  She again testified that she heard the impact.  She said that she never had any direct contact with Farmers regarding the claim but relied on her attorney to communicate with Farmers.

Mai testified that he remembers that a vehicle in the lane to the right swerved into his lane while passing and hit the right front portion of his vehicle.  He remembers hearing the impact of the collision but does not recall how hard the impact was.  The vehicle Mai was driving then went to the left and struck an object.  He said that he does not remember any more about the accident.  He said that he never spoke regarding the accident to the police, Farmers, or State Farm (the insurer of the vehicle that appellants were in at the time of the accident).  In fact, no one took a statement from him regarding the accident until his deposition.  Mai further testified about the physical injuries and limitations and the pain and suffering he has endured as a result of the accident.  Mai suggested that the police report, discussed in detail below, might be incorrect because the other vehicle Ahit on the right-hand side [of] the front end of [Mai=s] vehicle.@

Linda Ennis testified that she is the Farmers claims representative who handled appellants= claims.  She recounted gathering information from the law firm representing appellants (appellants having obtained legal representation before filing a claim), as well as from State Farm.  She further explained what she personally did to investigate the claim.  When she requested an opportunity to interview Mai, someone named Alice at the law firm representing appellants told Ennis that Mai Adidn=t remember the accident at all.@  Ennis relied on this representation in concluding that there would be no point in taking Mai=s statement. Ennis did take a statement from Mai-Nguyen.  According to Ennis, Mai-Nguyen explained that she was sitting in the vehicle=s middle row, Ajust . . . closing her eyes to sleep,@ when she heard a Abang,@ and the vehicle started Alosing control.@  Also according to Ennis, Mai-Nguyen was not able to say definitely whether another vehicle had been involved in the accident.

Ennis also testified regarding the police report which was admitted as an exhibit at trial.  According to Ennis, the report showed that there was no contact between the vehicle appellants were in and the vehicle that allegedly forced them off the road.  This testimony appears to be a reasonable conclusion from the report itself.  First, the report=s diagram of the damage to appellants= vehicle shows no damage to the passenger side as a result of the accident.  The instructions on the report direct the officer to Acircle initial impact@; the circled areas in the diagram are all on the left side and roof, not the passenger=s side.  Second, the description of the accident in the report mentions contact with trees after the vehicle left the roadway but does not indicate that any contact occurred with another vehicle.  The report specifically says that the other vehicle Acut-off@ appellants= vehicle, not that it Ahit,@ Acontacted,@ or Aforced@ appellants= vehicle from the road.  Third, the diagram of the accident clearly shows contact with first a stand of small trees and then a stand of large trees just off the roadway, but it does not show any contact with another vehicle.^[1]

Ennis further testified that she requested information from appellants= attorney=s office for the purpose of locating other passengers in the vehicle at the time of the accident.  She was told that they would Afollow up and call back.@  She eventually managed to speak with one of the front seat passengers, Truong Phouc, and after she did so, Farmers determined to deny appellants= claims under the uninsured motorist provision because of a lack of contact between the vehicle appellants were in and any other vehicle.^[2] The decision was based on everything Ennis had learned during her investigation, including information in the police report, Mai=s purported inability to recall the accident, Mai-Nguyen=s admission that her eyes were closed at the time of the accident, the statements made by Truong, and the results of the prior investigation performed by State Farm.

On cross-examination, Ennis acknowledged that her notes from the conversation she had with someone at appellants= attorney=s office actually state that A[Alice] is not certain if he [Mai] remembers facts . . . .@  On re-direct, Ennis reiterated that it was her understanding from the conversation with Alice that Mai Ahad no information to provide . . . because of his memory loss.@  Ennis further stated that no one ever called her back to say that Mai was ready to give a statement.  Ennis lastly commented that it was difficult to locate eyewitnesses associated with this claims file, despite her diligent efforts to do so.  The record also contains a printout from a Farmers claims database, in which notes were entered detailing Ennis=s investigation of appellants= claims.

Post-accident photographs taken of the vehicle in which appellants rode are of little value.  Most of the photographs are of the driver=s side, which sustained considerable damage from the impact with the trees.  In the only photograph showing the passenger=s side (the side that was allegedly contacted by the other vehicle) a blue tarp obscures most of the vehicle.  The photograph does show a dent located on the passenger side of the front bumper, but there is no way to tell whether the dent was caused by contact with another vehicle.  Mai acknowledged in his testimony that photographs taken at the impound lot, such as this one, appear to show damage to the vehicle that does not appear in photographs taken at the scene of the accident.  Specifically, the driver=s side of the front bumper has considerable damage at the impound lot and appears pristine at the scene of the accident.  This discrepancy in the photographs suggests that the front bumper was damaged in transport from the scene.

In their brief, appellants also reference a Amark@ on the right front of the vehicle; however, appellants are not specific as to where this supposed mark is to be found.  The photograph of the passenger=s side does show some white patches on the ledge below the headlight and on the flat piece in front of the headlight.  These patches appear more likely to be reflections of sun or clouds than markings from another vehicle.  Possible scuff marks also appear at the bottom of the bumper.  It is impossible to tell the cause; they may have occurred during transit.

After both sides rested, the trial court granted a directed verdict against appellants= bad faith investigation claims.  The court also rejected proposed jury questions on these claims.

In the charge, Jury Question No. 1 was submitted as follows:

On September 6, 2004, was the occurrence in question caused by an uninsured motor vehicle?

An uninsured motor vehicle is a hit and run vehicle whose operator or owner cannot be identified and which makes [sic] actual physical contact with the vehicle being driven by Y NGOC MAI.

The jury answered Ano.@  Because of this negative response, the jury did not answer any other questions in the charge, including an inquiry as to whether the unidentified driver proximately caused the accident, and what sum of money would compensate appellants for their injuries.  The trial court entered a take-nothing final judgment consistent with its directed verdict and the jury=s answer to Question No.1.

II.  Evidence of Contact

We begin with appellants= third issue, in which they contend that the jury=s finding of no contact between the vehicle driven by Mai and another vehicle was against the great weight and preponderance of the evidence.  We utilize the normal standards of review in considering this challenge to the factual sufficiency of the evidence.  See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998).

Appellants emphasize their own testimony in asserting that there was contact between the vehicle that they were in and another vehicle. Mai-Nguyen testified to hearing something hit the vehicle as she was falling asleep.  Mai also testified about hearing an impact when the other vehicle swerved towards the one he was driving.  As sole judge of the credibility of the witnesses and the weight to be assigned their testimony, the jury was free to disregard appellants= self-serving testimony.  See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); Rosenblatt v. Freedom Life Ins. Co. of Am., 240 S.W.3d 315, 319 (Tex. App.CHouston [1st Dist.] 2007, no pet.).  The jury could have reasonably discounted Mai=s testimony because he acknowledged he had very limited memory of the accident, and there was evidence suggesting that he previously did not remember anything about the accident.  Similarly, the jury could have discounted Mai-Nguyen=s testimony because she was falling asleep at the time of the accident and did not actually see another vehicle, much less see one strike the vehicle in which she was riding.  Farmers= counsel even suggested during closing argument that Mai-Nguyen may have felt the vehicle she was in strike the small trees noted in the police report and may have mistaken that impact for impact with another vehicle.

Appellants further emphasize that the police report of the accident does not expressly state that there was no impact between vehicles. On the other hand, the detailed police report also does not contain any indication that there was contact.  The damage diagram in the report shows no damage to the passenger=s side.  In his report, the investigating officer  noted contact with small and large trees after the vehicle left the roadway but did not suggest that any contact occurred with another vehicle.  Further, he stated that the other vehicle Acut-off@ appellants= vehicle, not that it Ahit,@ Acontacted,@ or Aforced@ the vehicle from the road.  Lastly, the officer=s diagram of the accident again clearly shows contact with the two stands of trees but does not show any contact with another vehicle.  Contrary to appellants= argument, the jury could have determined that the absence of any indication of contact in the fairly detailed police report supported the conclusion that there was no contact.

In his  report, the officer also lists, in addition to appellants, four other occupants of the vehicle driven by Mai.  The jury could reasonably have found it significant that none of these apparent acquaintances testified at trial in support of appellants= version of events.  Furthermore, in her testimony, Linda Ennis, Farmers= claims representative, testified that shortly after she interviewed one of the other passengers, Farmers denied appellants= claim due to a lack of contact with another vehicle.

Lastly, appellants point to the one admitted photograph of the passenger=s side of the vehicle.  Although this photograph is evidence that the vehicle was damaged on the passenger=s side at some point, it is not particularly suggestive of contact with another vehicle.  For one thing, the police report does not indicate any damage in that location immediately after the accident.  Furthermore, as discussed above, the admitted series of photographs appears to demonstrate that the vehicle=s front bumper sustained damage either while being transported to the impound lot or at the impound lot itself.  Based on these two facts, the jury could well have concluded that the bumper damage was not caused by impact with another vehicle at the time of the accident.  Although appellants reference a Amark@ on the right front of the vehicle, they do not specifically identify its location.  The small white patches on the vehicle appear more likely to be reflections of sun or clouds than impact markings, and it is impossible to tell what may have made scuff marks on the bottom of the bumper near the aforementioned dent.  In short, the photographs do not necessarily demonstrate that the vehicle Mai was driving was struck by another vehicle.

Based on the foregoing analysis, we cannot say that the jury=s verdict was against the great weight and preponderance of the evidence.  Accordingly, we find that the evidence was factually sufficient to support the verdict and overrule appellants= third issue.

III.  Directed Verdict

We now turn to appellants= second issue in which they contend that the trial court erred in granting a directed verdict against their bad faith investigation claims.  Section 541.060 of the Texas Insurance Code provides as follows:

' 541.060.  Unfair Settlement Practices

(a) It is . . . an unfair or deceptive act or practice in the business of insurance to engage in the following unfair settlement practices with respect to a claim by an insured or beneficiary:

. . . .

(7) refusing to pay a claim without conducting a reasonable investigation with respect to the claim . . . .

Tex. Ins. Code ' 541.060.  Section 541.151 of the Insurance Code authorizes A[a] person who sustains actual damages@ to bring a private action Afor those damages@ caused by unfair or deceptive acts or practices in the business of insurance.  Id. ' 541.151.  Thus, clearly, in order to have a viable cause of action for unfair or deceptive acts or practices under the Code, a plaintiff must present evidence of damages.  See id.; Provident Am. Ins. Co. v. Castaneda, 988 S.W.2d 189, 198 (Tex. 1998) (explaining that a bad faith investigation claim requires proof of damages resulting from the failure to properly investigate).

In moving for a directed verdict on the bad faith investigation claims, Farmers listed three grounds, including that appellants offered no evidence of damages stemming from the alleged bad faith investigation.  In their brief, appellants point to evidence that they contend establishes that Farmers failed to properly investigate their claims, but they point to no evidence of any damages resulting from such investigative failure. They simply do not address the element of damages.  During oral argument, when asked whether there was any evidence adduced regarding bad faith investigation damages, appellants= counsel suggested that all of the damages evidence at trial was relevant to the bad faith claims because appellants= claims had been denied.  This position, that expected policy benefits can equate to bad faith damages, has been firmly rejected by the Texas Supreme Court.  See Castaneda, 988 S.W.2d at 198; Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex. 1995).

Because appellants fail to cite any evidence in the record supporting the required damages element for their bad faith investigation claims, we cannot hold that the trial court erred in granting a directed verdict against those claims.  Accordingly, we overrule appellants= second issue.

IV.  Jury Charge Questions

In their first issue, appellants contend that the trial court erred in refusing to submit their proposed jury questions on their bad faith investigation claims.  Under this issue, appellants make practically the same arguments that they made under their second issue, i.e., that there was plenty of evidence that Farmers failed to properly investigate their claims.  Again, appellants have failed to address the question of whether any damages flowed from the failure to properly investigate.  To be entitled to submission of a cause of action to the jury, a plaintiff must present evidence supporting each of the elements of that cause of action.  See C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 792 (Tex. App.CHouston [1st Dist.] 2004, no pet.); Rente Co. v. Truckers Exp., Inc., 116 S.W.3d 326, 332-34 (Tex. App.CHouston [14th Dist.] 2003, no pet.); Nelson v. Clements, 831 S.W.2d 587, 590 (Tex. App.CAustin 1992, writ denied).  Without evidence of damages resulting specifically from the alleged failure to properly investigate, appellants were not entitled to have the bad faith investigation claims submitted to the jury.

Appellants, however, additionally contend that the trial court=s refusal to submit bad faith related jury questions, in effect, forced the jury to take Farmers= due diligence as a given.  Moreover, according to appellants, taking Farmers= due diligence as a given unduly influenced the jury to conclude that there was no contact between the two vehicles and thus no coverage.  In support of this contention, appellants cite Rivera v. Herndon Marine Products, Inc., 895 S.W.2d 430 (Tex. App.CCorpus Christi 1995, writ denied).  In Rivera, the captain of a shrimp boat brought an action for injuries sustained on the vessel; among other things, he claimed that the unseaworthiness of the vessel proximately caused his injuries.  895 S.W.2d at 432.  Finding that there was evidence to support this claim, the court of appeals held that the trial court erred in not submitting the seaworthiness issue to the jury.  Id. at 433-35.  In Rivera, the seaworthiness issue was directly related to the captain=s damages claims; in other words, he claimed that the unseaworthiness caused his damages.  Here, any finding of failure to properly investigate would not by itself mean that the claims were covered under the insurance policy; in other words, the alleged failure to properly investigate did not result in the claimed damages.  See Castaneda, 988 S.W.2d at 198; Stoker, 903 S.W.2d at 341.  Thus, Rivera does not support appellants= contention that the trial court erred in refusing jury questions on bad faith.

Furthermore, the record does not support appellants= fear that the jury interpreted the lack of a submission on bad faith investigation as suggesting that Farmers performed a diligent and complete investigation.  The record instead reveals that the jury was told nothing about the bad faith claims after the directed verdict was granted outside their presence.  The jury charge does not reference them, the judge did not mention them before the jury retired for deliberations, and neither counsel mentioned them in closing argument.  Moreover, the judge instructed the jury in the charge to base its answers solely on the evidence presented.  In the absence of any evidence to the contrary, we assume the jury followed that instruction.  See Phillips v. Phillips, 820 S.W.2d 785, 787 n.2 (Tex. 1991); In re K.C., 219 S.W.3d 924, 932 (Tex. App.CDallas 2007, no pet.).  Accordingly, we overrule appellants= first issue.

We affirm the trial court=s judgment.

/s/      Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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^[1]  The report also shows that there were six occupants in the wrecked vehicle, including appellants and four others.  The report does not specify how the information recounted therein was obtained.

^[2]  Ennis was not permitted to testify regarding what Truong told her because of the evidentiary rules barring hearsay testimony.