Cluett v. Medical Protective Co., No. 05-91-00016-CV

CourtCourt of Appeals of Texas
Writing for the CourtLAGARDE
Citation829 S.W.2d 822
PartiesWalter CLUETT and Antonia G. Capino, M.D., Appellants, v. The MEDICAL PROTECTIVE COMPANY, Appellee.
Decision Date03 March 1992
Docket NumberNo. 05-91-00016-CV

Page 822

829 S.W.2d 822
Walter CLUETT and Antonia G. Capino, M.D., Appellants,
v.
The MEDICAL PROTECTIVE COMPANY, Appellee.
No. 05-91-00016-CV.
Court of Appeals of Texas,
Dallas.
March 3, 1992.
Rehearing Denied April 1, 1992.

Page 824

Jose N. Boudreaux, Vic Terry, Warren Hays, David Terry, Dallas, for appellants.

David R. Noteware, Malia A. Litman, Dallas, Laurie Kratky Dore, Austin, for appellee.

Before BAKER, LAGARDE and BURNETT, JJ.

OPINION

LAGARDE, Justice.

Walter Cluett (Cluett) and Dr. Antonia Capino appeal the summary judgment granted in favor of Medical Protective Company (Medical Protective). They each bring two points of error generally contending that the trial court erred in granting Medical Protective's motion for summary judgment and in denying their motions for summary judgment. We overrule all the points and affirm the trial court's judgment.

FACTUAL BACKGROUND

Dr. Antonia Capino was the pediatrician for Rose and Walter Cluett's children. Capino and Rose Cluett became sexually involved, and Cluett sued Capino for alienation of affection. 1 Capino demanded that Medical Protective, her malpractice insurer, defend her and pay any damages assessed against her up to the policy limits. Medical Protective tendered a qualified defense; that is, it agreed to defend her but refused to pay damages because it believed that the claim fell either outside the coverage of the policy or within certain exclusions. Capino refused the qualified defense and obtained her own legal counsel. Medical Protective then brought this declaratory judgment action to determine its legal obligations to defend and to indemnify. While the declaratory judgment action was pending, Cluett and Capino entered into an agreed judgment rendering Capino liable to Cluett for $875,000. Capino then assigned her policy rights to Cluett, and Cluett intervened in the declaratory judgment action. All parties filed motions for summary judgment, and the trial court granted Medical Protective's motion.

In this appeal, we must determine the propriety of the trial court's findings that, as a matter of law: (1) Cluett's suit against Capino for alienation of affection did not fall within the coverage of the policy; (2) Medical Protective had no duty to defend Capino; and (3) Medical Protective did not act in bad faith.

STANDARD OF REVIEW

In the first point, 2 appellants contend that the trial court erred in granting Medical Protective's motion for summary judgment. The function of a summary judgment is not to deprive a litigant of its right to a full hearing on the merits of any real issue of fact but is to eliminate patently unmeritorious claims and untenable defenses. Gulbenkian v. Penn, 151 Tex.

Page 825

412, 416, 252 S.W.2d 929, 931 (1952). The standards for reviewing a motion for summary judgment are:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984); Wilcox v. St. Mary's Univ., 531 S.W.2d 589, 592-93 (Tex.1975). The purpose of the summary judgment rule is not to provide either a trial by deposition or a trial by affidavit but to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that no genuine issue of material fact remains. Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962).

Under rule 166a of the Texas Rules of Civil Procedure, the plaintiff and the defendant may move simultaneously for summary judgment. When both parties move for summary judgment, each party must carry its own burden, and neither can prevail because of the failure of the other to discharge its burden. Cove Invs., Inc. v. Manges, 602 S.W.2d 512, 514 (Tex.1980). To prevail as movant on summary judgment, a plaintiff must conclusively prove all of the elements of the cause of action as a matter of law. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); TEX.R.CIV.P. 166a. In contrast, a defendant must either (1) disprove at least one element of each of the plaintiff's theories of recovery or (2) plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979). Because both parties moved for summary judgment, this Court considers all evidence accompanying both motions in determining whether the trial court properly granted either party's motion. Edinburg Consol. I.S.D. v. St. Paul Ins. Co., 783 S.W.2d 610, 612 (Tex.App.--Corpus Christi 1989, no writ).

IMPROPER SUMMARY JUDGMENT EVIDENCE

Appellants first contend that the trial court should not have considered Medical Protective's exhibits and depositions filed in support of its motion for summary judgment. Medical Protective states in paragraph I of its motion, "This Motion for Summary Judgment is based upon the pleadings on file, the exhibits and deposition testimony attached hereto and the record in the case of Cluett v. Capino." (Emphasis added.) The depositions and exhibits, however, were not attached to the motion but were attached to the brief in support of the motion, which was filed the same day as the motion for summary judgment. Appellants did not assert this procedural defect before the trial court.

Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend. TEX.R.CIV.P. 166a(f). An opponent's failure to object to formal defects in a movant's papers constitutes waiver of those defects. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 233-34 (Tex.1962). The public policy underlying this rule requires that procedural errors be raised at the trial court level so that the errors can be corrected without substantial interference with the judicial process. Jones v. McSpedden, 560 S.W.2d 177, 180 (Tex.Civ.App.--Dallas 1977, no writ). Because appellants did not object at trial to the placement of the attachments, they waived this complaint.

Appellants next contend that Medical Protective's "live" pleading is insufficient to support its motion for summary judgment. Medical Protective filed its motion for summary judgment on June 1, 1990, and filed its First Amended Original

Page 826

Petition for Declaratory Judgment on June 29, 1990. The hearing on the motion for summary judgment was held on October 12, 1990, and the trial court issued its order on November 12, 1990. Appellants argue that the trial court should not have considered Medical Protective's first amended petition because it was filed after the motion for summary judgment. Rule 166a(c) provides:

The judgment sought shall be rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that ... there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law....

TEX.R.CIV.P. 166a(c) (emphasis added). Because Medical Protective filed its first amended petition before the hearing, the first amended petition was the live pleading. See Goswami v. Metropolitan Sav. & Loan Ass'n, 751 S.W.2d 487, 490-91 (Tex.1988). Accordingly, the trial court did not err in considering it.

COLLATERAL ESTOPPEL

Appellants contend that Medical Protective is collaterally estopped from challenging the findings of the trial court in Cluett's suit against Capino. The judgment in that case recites the following "conclusion[s] of fact and law":

1. That the Plaintiff, Walter Cluett, his wife and two daughters had a Doctor/Patient relationship with the Defendant, Antonia G. Capino, M.D.

2. That the Doctor/Patient relationship was breached and damages were suffered to the family relationship of the Cluetts.

3. As a proximate result of the Defendant's, Antonia G. Capino, M.D., breach of the duties owed to the Plaintiff, Walter Cluett, he has been damaged in the amount of $875,000.00.

Appellants maintain that Medical Protective is collaterally estopped from challenging these findings.

For collateral estoppel to apply, (1) the challenged finding must be essential to the judgment in the prior suit, and (2) the parties must be in privity. Employers Casualty Co. v. Block, 744 S.W.2d 940, 943 (Tex.1988); Edinburg Consol. I.S.D. v. INA, 806 S.W.2d 910, 913-14 (Tex.App.--Corpus Christi 1991, no writ). When an insurer and its insured take conflicting positions on the issue of coverage, they are not in privity. Collateral estoppel does not bar the insurer from challenging the findings of fact and conclusions of law entered in an agreed judgment between the insured and the party injured by the insured. Employers Casualty Co., 744 S.W.2d at 943; Edinburg Consol., 806 S.W.2d at 914; see RESTATEMENT (SECOND) OF JUDGMENTS § 58 (1982). Because the respective positions of Medical Protective and Capino regarding coverage were in conflict, no privity existed between them on this issue. Employers Casualty Co., 744 S.W.2d at 943; Edinburg Consol., 806 S.W.2d at 914. Therefore, Medical Protective is not collaterally estopped from challenging the findings that a doctor-patient...

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42 practice notes
  • RW v. Schrein, No. S-00-808 to S-00-812.
    • United States
    • Supreme Court of Nebraska
    • November 1, 2002
    ...a claim for damages based on "professional services" within the meaning of the insurance policy. See, Cluett v. Medical Protective Co., 829 S.W.2d 822 (Tex.App.1992); Hirst v. St. Paul Fire & Marine Ins. Co., 106 Idaho 792, 683 P.2d 440 (Idaho A medical professional such as Schriner can opi......
  • St. Paul Fire & Marine Ins. v. Engelmann, No. 21357.
    • United States
    • South Dakota Supreme Court
    • January 16, 2002
    ...pretense of medical care not professional services in the context of malpractice insurance coverage); Cluett v. Med. Protective Co., 829 S.W.2d 822, 829 (Tex. App.-Dallas 1992), (writ denied) (a pediatrician's sexual relationship with a patient was not a professional service); Smith v. St. ......
  • State Farm Lloyds Ins. Co. v. Maldonado, No. 04-93-00046-CV
    • United States
    • Court of Appeals of Texas
    • September 18, 1996
    ...it is not bound by the underlying judgment are distinguishable from the present case. For example, in Cluett v. Medical Protective Co., 829 S.W.2d 822 (Tex.App.--Dallas 1992, writ denied), the insured refused the qualified defense offered by the insurer and entered an agreed judgment in fav......
  • American Guarantee v. Shel-Ray Underwriters, Civ. A. No. H-91-2618.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 5, 1993
    ...asserted, and on the policy terms. In Texas this is commonly referred to as the "eight corners rule." Cluett v. Medical Protective Co., 829 S.W.2d 822, 827 (Tex.App. — Dallas 1992, writ denied); Feed Store, Inc. v. Reliance Ins. Co., 774 S.W.2d 73, 75 (Tex.App. — Houston 14th Dist. 1989, wr......
  • Request a trial to view additional results
42 cases
  • RW v. Schrein, No. S-00-808 to S-00-812.
    • United States
    • Supreme Court of Nebraska
    • November 1, 2002
    ...a claim for damages based on "professional services" within the meaning of the insurance policy. See, Cluett v. Medical Protective Co., 829 S.W.2d 822 (Tex.App.1992); Hirst v. St. Paul Fire & Marine Ins. Co., 106 Idaho 792, 683 P.2d 440 (Idaho A medical professional such as Schriner can opi......
  • St. Paul Fire & Marine Ins. v. Engelmann, No. 21357.
    • United States
    • South Dakota Supreme Court
    • January 16, 2002
    ...pretense of medical care not professional services in the context of malpractice insurance coverage); Cluett v. Med. Protective Co., 829 S.W.2d 822, 829 (Tex. App.-Dallas 1992), (writ denied) (a pediatrician's sexual relationship with a patient was not a professional service); Smith v. St. ......
  • State Farm Lloyds Ins. Co. v. Maldonado, No. 04-93-00046-CV
    • United States
    • Court of Appeals of Texas
    • September 18, 1996
    ...it is not bound by the underlying judgment are distinguishable from the present case. For example, in Cluett v. Medical Protective Co., 829 S.W.2d 822 (Tex.App.--Dallas 1992, writ denied), the insured refused the qualified defense offered by the insurer and entered an agreed judgment in fav......
  • American Guarantee v. Shel-Ray Underwriters, Civ. A. No. H-91-2618.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 5, 1993
    ...asserted, and on the policy terms. In Texas this is commonly referred to as the "eight corners rule." Cluett v. Medical Protective Co., 829 S.W.2d 822, 827 (Tex.App. — Dallas 1992, writ denied); Feed Store, Inc. v. Reliance Ins. Co., 774 S.W.2d 73, 75 (Tex.App. — Houston 14th Dist. 1989, wr......
  • Request a trial to view additional results

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