Blizzard v. Nationwide Mut. Fire Ins. Co.

• Decision Date: 03 August 1988
• Docket Number: No. 05-87-00297-CV,05-87-00297-CV
• Citation: 756 S.W.2d 801
• Parties: Linda K. BLIZZARD, Appellant, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 801

756 S.W.2d 801

Linda K. BLIZZARD, Appellant, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee.

No. 05-87-00297-CV.

Court of Appeals of Texas Dallas.

Aug. 3, 1988.

Terri J. Meador, Dallas, for appellant.

D. Bradley Dickinson, James A. Clutts, Jr., Bruce W. Bowman, Jr., Dallas, for appellee.

Before DEVANY, STEWART and HECHT, JJ.

HECHT, Justice.

Appellant Linda K. Blizzard sued her insurer, appellee Nationwide Mutual Fire Insurance Company, to recover on the uninsured motorist and personal injury protection provisions of her automobile policy, and for violations of the Texas Insurance Code and Texas Deceptive Trade Practices-Consumer Protection Act. ¹ Nationwide counterclaimed, asserting that Blizzard's DTPA claims were groundless and brought in bad faith or for purposes of harassment. After trial to a jury, the trial court rendered judgment denying all relief sought by both parties.

Blizzard and Nationwide both appeal. Blizzard complains that the jury's failure to find more damages than they did is contrary to overwhelming evidence, and that the trial court erred in refusing to award her what damages and attorney fees the jury did find. Blizzard also complains that the issues of whether she brought her DTPA claims in bad faith and for purposes of harassment were improperly submitted to the jury, and that the evidence is factually insufficient to support the jury's findings on those issues and on the amount of Nationwide's attorney fees on appeal. Nationwide complains that the trial court erred in refusing to award it the attorney fees found by the jury. We affirm the judgment of the trial court.

I

Blizzard, a 40-year-old unmarried software engineer, claims to have been injured when the car she was driving was struck from behind by a car driven by an uninsured motorist. Nationwide has conceded that Blizzard was not at fault in the accident, that the motorist who was at fault was uninsured, and that Blizzard is covered by the uninsured motorist and personal injury protection provisions of her policy. For over a year following the accident Nationwide paid all Blizzard's medical expenses, rental car expenses, and property damage. Nationwide then offered to pay Blizzard an additional $5,000 in full settlement of her claim, but Blizzard refused the offer and filed this action.

Blizzard sued Nationwide for damages under the uninsured motorist and personal injury protection provisions of her policy. Blizzard also alleged that Nationwide had violated the DTPA and section 16(a), article 21.21, of the Texas Insurance Code by misrepresenting the terms of the policy, acting unconscionably in handling her claim, and not attempting to settle in good faith. ² Nationwide countered by alleging that Blizzard's DTPA claims were groundless and brought in bad faith or for purposes of harassment.

The jury found that:

--$1,479 for past medical expenses would fairly and reasonably compensate Blizzard for her injuries resulting from the accident;

--Reasonable fees for legal services rendered by Blizzard's attorney would be $14,116 in the trial court;

--Blizzard's DTPA claims were brought in bad faith and for purposes of harassment; and

--Reasonable fees for legal services rendered by Nationwide's attorney would be $13,970 in the trial court, $4,000 in the court of appeals, $2,400 for application for writ of error, and $1,600 if writ of error were granted.

The jury failed to find that:

--Blizzard should be compensated for past or future physical pain and mental anguish, past loss of earnings or future loss of earning capacity, past or future physical impairment, and future medical expenses;

--Nationwide did not attempt in good faith to effectuate a prompt, fair and equitable settlement of Blizzard's claim when liability had become reasonably clear;

--Nationwide's conduct in handling Blizzard's claim was unconscionable within the meaning of the DTPA;

--Nationwide misrepresented to Blizzard the terms of its policy;

--Nationwide failed to pay Blizzard personal injury benefits to which she was entitled; and

--Any fee would be reasonable for legal services rendered by Blizzard's attorney on appeal.

Blizzard moved the trial court to disregard the jury's findings that her DTPA claims had been brought in bad faith and for purposes of harassment, and to conclude as a matter of law that those claims were not groundless. Blizzard also moved for a new trial on the grounds that the jury's failure to find additional damages was contrary to overwhelming evidence. The trial court rendered judgment denying Blizzard and Nationwide any relief. By motion for new trial and motion to modify judgment Nationwide urged the trial court to award it the attorney fees found by the jury. The trial court denied Nationwide's motions.

II

A

In point of error two, Blizzard complains that the jury's finding of only $1,479 damages for past medical expenses, and their failure to find additional damages, are so against the great weight and preponderance of the evidence as to be manifestly unjust. ³ To assess this complaint, we summarize the evidence pertaining to the nature and extent of injury Blizzard sustained in the accident. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

Blizzard's car was struck from behind with such force that her seat broke, and she fell into the back seat. Nevertheless, she got out of the car, exchanged information with the other driver, and then went home. Blizzard testified that she did not seek medical attention until the next day, when she called a clinic to complain of soreness and discomfort in her neck. Blizzard testified that the clinic prescribed muscle relaxers and pain killers for her and recommended that she get more rest. No one from the clinic testified at trial.

Blizzard next sought medical care ten weeks later when, at the recommendation of her attorney, she went to Dr. Jewel Daughety. Dr. Daughety diagnosed Blizzard as suffering from a lumbar disc disorder, cervical sprain, and compression of the neurovascular bundle in her left arm, all resulting from the accident. Dr. Daughety felt it likely that Blizzard would continue to experience some discomfort and recommended that she take time off from work and undergo physical therapy and X-rays. Blizzard testified that she tried to follow Dr. Daughety's advice, returning to him from time to time over the next three years. However, Blizzard testified that since the accident she has not had a single day free of pain, restricting although not prohibiting her physical activities, and causing her occasionally to miss work. Dr. Daughety testified that Blizzard's reports of pain were consistent with his tests on her, and that she would continue to suffer in the future, probably requiring additional medical treatment and possibly surgery for her injuries, costing thousands of dollars.

Nationwide referred Blizzard to Dr. Robert E. Callewart. Dr. Callewart testified that he would have treated Blizzard with anti-inflammatory drugs, muscle relaxers and physical therapy for a short time after the accident, for a total medical expense of $500-600. Dr. Callewart testified that Blizzard fully recovered from the accident within a few weeks and would probably never require hospitalization or surgery or miss work. Dr. Callewart believed Blizzard's lingering complaints to be the result of a degenerative or congenital condition in her back.

Numerous cases have concluded that once the fact of injury is either established by the evidence or acknowledged by the jury by a finding of some resulting damages, the jury's failure to award damages for pain and suffering will be regarded as against the great weight and preponderance of the evidence. Illustrative, but certainly not exhaustive, of such cases are the following, and the cases they in turn cite: Alarcon v. Circe, 704 S.W.2d 520, 521 (Tex.App.--Corpus Christi 1986, no writ) (inconsistent for jury to find damages for past medical care and lost wages and not for pain and suffering); Martin v. Warren & Miller Co., 639 S.W.2d 706 (Tex.App.--Tyler 1982, no writ) (once injury shown and liability fixed, jury's failure to find damages for pain and suffering must be reversed); Sansom v. Pizza Hut of East Texas, Inc., 617 S.W.2d 288, 292-93 (Tex.Civ.App.--Tyler 1981, no writ) (jury could not find reasonable expenses resulting from injury and fail to find damages for pain and suffering).

Contrasted with such cases are a good many others which uphold jury findings of no damages for pain and suffering despite other findings and evidence of injury and some resulting damages. Again, solely by way of illustration, we refer to the following cases and others cited by them: McGuffin v. Terrell, 732 S.W.2d 425, 427-28 (Tex.App.--Fort Worth 1987, no writ) (jury may find no damages for pain and suffering despite finding other damages resulting from injury if the damages found are minimal and the complaint of injury is subjective); Craig v. Allen, 556 S.W.2d 644, 647 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.) (failure to find damages for pain and suffering was not against the great weight and preponderance of the evidence); Hulsey v. Drake, 457 S.W.2d 453, 460 (Tex.Civ.App.--Austin 1970, writ ref'd n.r.e.) (finding of no damages for pain and suffering was not against great weight and preponderance of the evidence despite expert testimony of pain and suffering).

If there is some principle by which these cases can be fairly distinguished and reconciled, it is difficult to articulate. The cases perhaps indicate that appellate courts are more reluctant to hold jury findings of no damages for pain and suffering contrary to the great weight and preponderance of the evidence when the indicia of injury and damages are more subjective than objective. The more evidence of outward signs of pain, the less findings of damages depend upon the claimant's own feelings and complaints, the more likely appellate courts are to overturn jury...