Continental Cas. Co. v. Boerger

Citation389 S.W.2d 566
Decision Date01 April 1965
Docket NumberNo. 4325,4325
PartiesCONTINENTAL CASUALTY COMPANY, Appellant, v. Richard H. BOERGER, Appellee.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

The Kempers, John D. Richardson, Houston, for appellant.

Miller & Gann, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellee.

WILSON, Justice.

The question in this suit by insured against the health and accident insurer is stated by the insurer to be whether insured 'actually made out a case of 'repudiation'.'

Judgment was rendered for insured for the commuted value of 'unaccrued disability benefits' on jury findings to the effect that insured will be totally disabled for 537 weeks, and that insurer's agent told insured the company 'had paid him all the money it owed under the terms of the policy in question and did not intend to make any more payments under such policy in the future.'

Appellant says there is no support in the record for a finding of anticipatory breach or repudiation, and, alternatively, insured failed to establish that insured accepted the repudiation and acted thereon. No complaint is presented concerning the disability findings. The charge is not attacked.

Insured alleged insurer paid disability benefits under its policy for 52 weeks, and then 'completely repudiated its said policy without just cause, and ceased making such payments, even though your plaintiff remains wholly and continuously disabled.' He prayed for weekly indemnities computed on the basis of his remaining life expectancy, with statutory penalty. (There is no complaint as to recovery of the penalty.) Insurer specially pleaded three policy provisions for insurance benefits, and alleged, 'Plaintiff has already been paid benefits under each and all of these three provisions, and has been paid all of the benefits to which he has become, or can ever be, entitled under the contract with respect to the injury he received.' It also alleged payments it had made by mistake exceeded its liability because insured had changed to a more hazardous occupation, and he had been notified his occupation had been reclassified, and his premiums entitled him only to reduced benefits. Appellant alleged it had refused further payment because it had just cause to refuse under the contract.

In Texas, where 'a party * * * obligated by contract to make monthly payments of money to another absolutely repudiates the obligation without just excuse, the obligee is 'entitled to maintain his action in damages at once for the entire breach, and is entitled in one suit to receive in damages the present value of all that he would have received if the contract had been performed." Universal Life & Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405, 406; Pollack v. Pollack, Tex.Com.App., 39 S.W.2d 853, 855, id., 46 S.W.2d 292, 295.

Repudiation consists in 'such words or actions by a contracting party as indicate that he is not going to perform his contract in the future.' Samuel Williston 'Repudiation of Contracts,' Select Readings, Assoc. of American Law Schools 1080; 14 Harv.L.Rev. 317. See Moore v. Jenkins, 109 Tex. 461, 211 S.W. 975, 976. It is conduct which shows a fixed intention to abandon, renounce, and refuse to perform the contract. Kilgore v. Northwest Texas Baptist Educational Soc., 90 Tex. 139, 37 S.W. 598, 600; Burks v. Neutzler, Tex.Com.App., 2 S.W.2d 416, 418; Moore v. Middleton, Tex.Com.App., 12 S.W.2d 995, 997; Lumbermen's Mutual Casualty Co. v. Klotz, 5 Cir., 251 F.2d 499. It is helpful also to remember what repudiation is not. A denial that the facts entitle insured to recovery under the policy is not a repudiation. Sanders v. Aetna Life Ins. Co., 146 Tex. 169, 205 S.W.2d 43, 45, 173 A.L.R. 968; Needham v. American Nat. Ins. Co., Tex.Civ.App., 78 S.W.2d 1059, 1060, writ dism.; Needham v. American Nat. Ins. Co., Tex.Civ.App., 97 S.W.2d 1016, 1021; Williams v. Mutual Benefit Health & Accident Ass'n, 5 Cir., 100 F.2d 264. The doctrine of anticipatory breach is not applicable where insurer 'merely denies liability or claims defenses under the terms of the policy.' Universal Life & Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405, 407. Mere refusal, 'upon mistake or misunderstanding as to matters of fact or upon an erroneous construction of the disability clause, to pay a monthly benefit when due' is not a repudiation of the policy. Universal Life & Acc. Ins. Co. v. Sanders, above.

There are the facts pointed to by appellee as manifesting a renunciation or repudiation: Insured testified the manager of insurer's claim department, after two or three months of disability payments, told insured: 'Too bad you don't get any better. I had better send you to a good doctor,' and sent insured to the physician who continued to treat him; that nearly a year after the claimed injury, disability payments were suspened, being thereafter resumed at a reduced weekly rate; that the agent told him the company had overpaid him and asked him to surrender his policy, and 'told me they would like to get me off their books and to turn in my policy'; that 'he wanted the policy cancelled,' but also offered insured $400 'to try to get me off their books'; that insured insisted on timely payment of indemnity. 'I even asked him would I still be insured and he said 'absolutely not'. All he was interested in was getting my policy,' but the agent 'never made the unconditional request for the policy without offering money.' There was equivocal testimony the agent told insured the policy was invalid. It was stipulated that when the agent 'wanted to get the policy back, that was when Mr. Boerger' and the agent 'disagreed what Mr. Boerger was entitled to under the policy sued upon.' Plaintiff testified further, however, that about six months later he decided he was not going to send further medical reports to the agent because the agent said, 'You are cancelled out, we are not going to pay you any more'.

The evidence relied on by insurer here, to be sure, would have supported a negative answer to the issue concerning what the agent told insured, as it contends, and was sufficient to support the conclusion there was no repudiation. The question presented is a close one. In our opinion, however, the evidence summarized must be held legally sufficient to sustain the finding concerning repudiation as a basis for judgment. See Universal Life & Accident Ins. Co. v. Shaw, 139 Tex. 434, 163 S.W.2d 376, 379; Needham v. American Nat. Ins. Co., Tex.Civ.App., 78 S.W.2d 1059, 1061, writ dism.; Needham v. American Nat. Ins. Co., Tex.Civ.App., 97 S.W.2d 1016, 1018, writ dism.; American Casualty & Life Co. v. McCuistion, Tex.Civ.App., 202 S.W.2d 474, 478, writ ref. n. r. e.; Williams v. Mutual Benefit Health & Accident Ass'n, 5 Cir., 100 F.2d 246; see Commercial Travelers Casualty Co. v. Dymke, Tex.Civ.App., 279 S.W.2d 405, 408. It is unnecessary, under this holding,...

To continue reading

Request your trial
36 cases
  • Lorang v. Fortis Ins. Co.
    • United States
    • Montana Supreme Court
    • 17 Julio 2008
    ...is not. A denial that the facts entitle insured to recovery under the policy is not a repudiation." Continental Casualty Co. v. Boerger, 389 S.W.2d 566, 568 (Tex.Civ. App.1965) (citation 15. Repudiation may also be accomplished by a party's voluntary act that makes it impossible for him or ......
  • Farmers and Bankers Life Ins. Co. v. St. Regis Paper Co.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 1 Febrero 1972
    ...Electric Credit Corporation, 429 S.W.2d 925 (Tex.Civ.App.—Austin 1968, writ ref'd n.r.e.); Continental Casualty Company v. Boerger, 389 S.W.2d 566 (Tex.Civ. App.—Waco 1965, writ dism'd). Until acceptance by the lessor, the lease is in effect for all purposes, and intervening events may reli......
  • Crouch v. Crouch
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 17 Enero 1978
    ...31 (Tex.1976); Pollack v. Pollack, 39 S.W.2d 853, 855 (Tex.Comm'n App.1931, holding approved); Continental Casualty Co. v. Boerger, 389 S.W.2d 566, 568 (Tex.Civ.App. Waco 1965, writ dism'd); Patterson v. Magill, 259 S.W.2d 954, 956 (Tex.Civ.App. Austin 1953, no writ). To take an analogous c......
  • Fowler v. Resolution Trust Corp.
    • United States
    • Texas Court of Appeals
    • 7 Abril 1993
    ...Leasing Company, 551 S.W.2d 771 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref'd); Continental Casualty Company v. Boerger, 389 S.W.2d 566, 568 (Tex.Civ.App.--Waco 1965, writ dism'd). It is conduct which shows a fixed intention to abandon, renounce and refuse to perform the contract. Id......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT