Bocanegra v. Aetna Life Ins. Co.

• Decision Date: 16 July 1980
• Docket Number: No. B-8077,B-8077
• Citation: 605 S.W.2d 848
• Parties: Janie P. BOCANEGRA, Petitioner, v. AETNA LIFE INSURANCE COMPANY, Respondent.
• Court: Texas Supreme Court

Page 848

605 S.W.2d 848

Janie P. BOCANEGRA, Petitioner, v. AETNA LIFE INSURANCE COMPANY, Respondent.

No. B-8077.

Supreme Court of Texas.

July 16, 1980.

Rehearing Denied Sept. 16, 1980.

Branton & Mendelsohn, Les Mendelsohn, Chrys A. Lambros and L. Wayne Scott, San Antonio, for petitioner.

Joe Meador, San Antonio, for respondent.

POPE, Justice.

Plaintiff, Janie Bocanegra, sued Aetna Life Insurance Company on a group medical and hospital policy and recovered judgment upon a jury finding that certain medical and hospital services she needed resulted from a non-occupational disease. ¹ Previously Mrs. Bocanegra had filed with the Industrial Accident Board a claim, which she settled, for an occupational injury. The court of civil appeals held the settlement was an election which barred her later suit. That court reversed the judgment of the trial court and rendered judgment for Aetna. 572 S.W.2d 355. We hold that Mrs. Bocanegra did not make an informed election that barred her in this action. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Mrs. Bocanegra began working for Clegg Company in 1965 as a book binder. Her work required her to lift and handle books. As she got out of bed one morning in April of 1975, she experienced a sharp pain in her lower back. She reported for work but did not tell her employer about her pain. On June 3, 1975, again on arising from bed, she had another severe pain, but still did not report any job-related injury. On June 29 the pain became so severe that she went to the emergency room of the Baptist Hospital. Her physician, Dr. Larry Miller, prescribed conservative treatment including two weeks in traction. He told Mrs. Bocanegra that she might have hurt her back at work. Failing to get any relief and after extensive tests, on August 11, she underwent surgery for a slipped disc. Dr. William Dossman performed the surgery. Mrs. Bocanegra never gave notice to her employer that she had sustained an occupational injury, but on August 18, after her operation, she filed with the Texas Industrial Accident Board her Notice of Injury or Occupational Disease and Claim for Compensation. In that notice she wrote, "I was lifting telephone books in the course and scope of my employment and injured my back and body generally." In her accompanying hardship affidavit, she swore, "I was hurt on the job on the above date while working for the above employer." On July 21, she filed a claim under the Aetna group policy on which she checked the box which asked if the claim was based on an accident. She also wrote on that claim form that the accident occurred "At work by lifting and bending." On July 29, she filed a second claim with Aetna on which she checked "No" to the question whether her claim was based on an accident. She also filed a claim with American Security Life Insurance Company on September 13 in which she stated that the accident occurred at work while lifting and bending. On September 17, she filed a similar claim with Presidential Life Insurance Company which gave the same information.

On October 27, Mrs. Bocanegra settled her worker's compensation claim for a general injury for $12,000 which the compensation carrier paid. The settlement agreement was "solely for lost wages and future impaired earning capacity," and it expressly excluded any payment for past or future medical or hospital expenses, the items that are here in question.

Mrs. Bocanegra, after her surgery and the settlement of her claim for an occupational injury, commenced these proceedings against Aetna to recover the amount of her medical and hospital bills. She asserted, and the jury found, that the medical and hospital services resulted from a non-occupational injury. She supported this claim by her own testimony that she was not injured on the job but that she did not know that fact until after her operation. At that time Dr. Dossman, her surgeon, told her that her back problem was the result of a degenerative disc disease that pre-dated but lingered after the onset of the initial back pain. She denied that she at any time ever told her doctors that she had sustained an injury on the job. Dr. Dossman confirmed Mrs. Bocanegra's testimony and testified that, in his opinion, her disc trouble was not related to her occupation. He testified: "About half of the time in this problem there is no known injury or cause of the problem, it just happens. About half of the time there is a history of some specific injury producing the problem." The court of civil appeals concluded that Mrs. Bocanegra's claim for an occupational injury was, as a matter of law, inconsistent with the state of facts upon which she later relied to obtain a judgment in her suit on the health policy that she had a non-occupational injury. The court rendered judgment that she take nothing.

The doctrine of election, although widely criticized, ² survives in wide-ranging branches of the law that stretch from the widow's election in probate law to the choice in contract law between a suit for damages and one for rescission. See 5 Williston on Contracts §§ 683-688 (3d ed. Jaeger 1961). Election, an affirmative defense, has been held to bar remedies, rights, and inconsistent positions arising out of the same state of facts. 25 Am.Jur.2d Election of Remedies § 7 (1966); Annot., 116 A.L.R. 601, 602 (1938). The situations in which an election might arise are so variable that an all-inclusive definition has been elusive, and discussions of the doctrine often borrow terms that may also appropriately relate to other affirmative defenses. For that reason, election is often confused with or likened to judicial estoppel, equitable estoppel, ratification, waiver or satisfaction. Those doctrines sometimes do not reach a situation that equity and good conscience need to reach through the doctrine of election.

A judicial estoppel may arise when a question necessary for the determination of a prior adjudication is decided. It constitutes a bar to a redetermination of that issue in a different cause. Benson v Wanda Petroleum Co., 468 S.W.2d 361 (Tex.1971); Long v. Knox, 155 Tex. 581, 291 S.W.2d 292 (1956); Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.2d 526 (1930). Equitable estoppel differs from each of the above defenses, because it requires some deception that is practiced upon a party who relies upon it to his prejudice. Barfield v. Howard M. Smith Co. of Amarillo, 426 S.W.2d 834 (Tex.1968); Concord Oil Co. v. Alco Oil and Gas Corp., 387 S.W.2d 635 (Tex.1965); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). A ratification rests upon a manifestation of assent to confirm one's prior act or that of another. It may occur without any prior litigation and in the absence of any change of position by or prejudice to the other party. Texas & Pac. Coal & Oil Co. v. Kirtley, 288 S.W. 619 (Tex.Civ.App. Eastland 1926, writ ref'd). Waiver, the voluntary relinquishment of a known right, is sometimes spoken of as intentional conduct inconsistent with the assertion of a known right. Ford v. State Farm Mut. Auto. Ins. Co., 550 S.W.2d 663, 667 (Tex.1977). Full satisfaction will bar a claim because the law will not permit double redress. James and Company, Inc. v. Statham, 558 S.W.2d 865 (Tex.1977); McMillen v. Klingensmith, 467 S.W.2d 193 (Tex.1971); Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703 (1935).

The single underlying principle of the election doctrine has not been found. Estoppel in some form, ratification and unjust enrichment have been suggested as the basic reasons for an election, and in many instances they suffice. Schenck v. State Line Telephone Co., 238 N.Y. 308, 144 N.E. 592 (1924); Metroflight, Inc. v. Shaffer, 581 S.W.2d 704 (Tex.Civ.App. Dallas 1979, writ ref'd n. r. e.). The court of civil appeals in this case has, perhaps more soundly, held that inconsistency will bar an action in instances of manifest injustice. Even though the inconsistent position may not fit the mold of a better defined principle, an election will bar recovery when the inconsistency in the assertion of a remedy, right, or state of facts is so unconscionable, dishonest, contrary to fair dealing, or so stultifies the legal process or trifles with justice or the courts as to be manifestly unjust.

A similar loosely defined but useful equitable doctrine is the constructive trust. It is unlike other trusts, but equity raised it up in the name of good conscience, fair dealing, honesty, and good morals. Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401, 405 (1960). "A constructive trust is the formula through which the conscience of equity finds expression." Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378, 380 (1919). Equity provides the idea of constructive trusts as a tool to "frustrate skullduggery," 4 R. Powell, Real Property § 593 (1949), even though that kind of a trust is also grounded upon elusive principles. ³ Such a trust is purely a creature of equity. Its form is practically without limit, and its existence depends upon the circumstances. Simmons v. Wilson, 216 S.W.2d 847, 849 (Tex.Civ.App. Waco 1949, no writ).

The election doctrine, therefore, may constitute a bar to relief when (1) one successfully exercises an informed choice (2) between two or more remedies, rights, or states of facts (3) which are so inconsistent as to (4) constitute manifest injustice. See Custom Leasing, Inc. v. Texas Bank & Trust Co. of Dallas, 491 S.W.2d 869 (Tex.1973).

A number of seemingly inconsistent positions do not rise to the level of an election which will bar recovery. One may, for example, plead alternative and inconsistent facts without being barred. Rules 48 and 51, Texas Rules of Civil Procedure, authorize such procedures. One who pleads alternative or inconsistent facts or remedies against two or more parties may settle with one of them on the basis of one remedy or state of facts...