Finger v. Southern Refrigeration Services, Inc.
| Decision Date | 28 July 1994 |
| Docket Number | No. 01-92-01084-CV,01-92-01084-CV |
| Citation | 881 S.W.2d 890 |
| Parties | Ronald J. FINGER, Appellant, v. SOUTHERN REFRIGERATION SERVICES, INC., Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Robert C. Tarics, Michael Branisa, Houston, for appellant.
Barry G. Flynn, Jeffrey B. Frey, Houston, for appellee.
Before OLIVER-PARROTT, C.J., and WILSON and O'CONNOR, JJ.
This case involves a suit to recover damages for a subrogation interest. The trial court directed a verdict against one of the plaintiffs, and submitted the rest of the case to the jury. After the jury found the defendant was not negligent, the trial court rendered a take-nothing judgment for the plaintiffs. We reverse and remand for a new trial.
Ronald J. Finger, one of the plaintiffs, appeals from the directed verdict granted against him. 1 The suit was brought in the name of the owner of the property, Ronald J. Finger, and the leaseholder, Monterey House, against the defendant, Southern Refrigeration Services, Inc. The plaintiffs' petition alleged Southern caused a fire that damaged their building and its contents. The insurer of the building, Travelers Company, which paid more than $186,000 to repair the structure, brought the suit in the name of Finger and Monterey House to recover its subrogation interest, but was not named in the petition.
In 1978, Finger, as landlord, and Monterey House, as tenant, entered into a 20-year agreement for the structure. By the terms of the lease, Monterey House was required to insure the building for fire damage and name Finger as "the insured" under the policy. Monterey House secured an insurance policy from Travelers.
In 1989, the manager of the Monterey House restaurant called Southern to report problems with its heating system. Southern's repairman inspected the heater, removed a part, and told the restaurant manager not to turn on the heat while he went to get a replacement. Because it was cold and the customers complained, the manager turned the heat on and a few minutes later the building was consumed by a fire.
Travelers paid for the rebuilding of the structure and for the contents. Travelers then brought this suit in the names of the landlord and the tenant to recover its subrogation interest from Southern. At the trial, Finger testified he was the owner of the property. It is undisputed that the building, owned by Finger, was damaged by the fire. On cross-examination, Finger testified:
Q. So Ronald Finger, trustee, as owner of that building, is not damaged. You have got a building back; is that right?
A. That's correct.
On redirect, Finger testified:
Q. So if the structure and the improvements were damaged, that's your loss, isn't it?
A. Yes. It would have been my loss had they not repaired it and had there not been insurance.
The issue of insurance coverage was introduced in front of the jury by both parties, first by the plaintiffs in response to the question above. When the plaintiffs' counsel asked Jan Wilhelm, an officer in the parent corporation of Monterey House, how the costs of the damage to the building and the replacement of the contents had been paid, he answered, "Insurance." Wilhelm testified he had a contractual obligation to assist in the recovery of the money paid on behalf of Finger and Monterey House. On cross-examination of Wilhelm, defense counsel established the plaintiffs' lawsuit was brought by Travelers against Southern to recover the money paid for the fire damage to the building and the contents.
After the plaintiffs rested, Southern made a motion for directed verdict against Finger on the ground that he did not incur damages because the building was repaired by insurance proceeds. The attorney for the plaintiffs argued that Travelers had the right to pursue recovery under Finger's name, because it was Finger's structure that was destroyed. The court disagreed, and directed a verdict against Finger. The case continued with Monterey House as the only plaintiff.
Motion for directed verdict
In point of error one, Finger contends the trial court erred in granting a directed verdict against him because he raised a fact issue about his damages. As subparts to point of error one, Finger argues there is probative evidence of his damages, and the collateral source rule deems insurance payments irrelevant as an offset or payment. In point of error two, Finger contends the trial court erred in denying his motion for new trial on the issue of the directed verdict. As subparts to point of error two, Finger argues there is probative evidence of his damages, and the collateral source rule deems insurance payments irrelevant as an offset or payment.
A party is entitled to a directed verdict when: (1) the other party's pleadings are incapable of supporting a judgment; (2) the other party's evidence does not raise a fact issue; or (3) the evidence conclusively proves a fact that establishes the party's right to judgment as a matter of law. McCarley v. Hopkins, 687 S.W.2d 510, 512 (Tex.App.--Houston [1st Dist.] 1985, no writ). In considering a motion for directed verdict by a defendant, the trial court must view the evidence in the light most favorable to the plaintiff, and disregard all contrary evidence and inferences. Vance v. My Apt. Steak House, Inc., 677 S.W.2d 480, 483 (Tex.1984). If the plaintiff offers any evidence of probative value on damages, a directed verdict is improper and the issue must be presented to a jury. White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1983); see Vance, 677 S.W.2d at 484 ().
In arguing against the motion for directed verdict, counsel for the plaintiffs pointed out that the structure was damaged and therefore there was evidence that Finger suffered damage. The trial court did not deny the building was damaged; he said he was going to grant a directed verdict because Finger did not spend any of his own money to repair the structure and did not pay the insurance premiums.
The trial court erred in holding Finger did not suffer damages. Finger was the owner of the property and he was a named insured under the insurance policy. It does not matter that Finger did not spend his own money to repair the building, that insurance proceeds paid for the repair of the building, or that he did not pay for the premiums. Southern is not a third-party beneficiary of the insurance policy and cannot claim the benefit of a collateral source of payment. The theory behind the collateral source rule is that a wrongdoer should not have the benefit of insurance independently procured by the injured party, and to which the wrongdoer was not privy. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 934 (Tex.1980); Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 581 (Tex.App.--Houston [1st Dist.] 1992, no writ).
The plaintiff also argued to the trial court that he had the right to sue on behalf of Travelers, the insurer that paid the loss; that Travelers was subrogated to the rights of Finger, who was an insured who had a cause of action against Southern. To that argument, the trial judge stated, inexplicably, that the insurance company had the right to sue in subrogation, but because Finger had no damages, there was no action for Travelers to sue on.
A person who pays under a contract for a loss or injury resulting from the wrong of another is subrogated to the rights of the creditor or injured person against the wrongdoer. See Cockrell v. Republic Mortg. Ins. Co., 817 S.W.2d 106, 113 (Tex.App.--Dallas 1991, no writ) (subrogation is the substitution of one person in the place of another with reference to a lawful claim or right). An insurer's right to subrogation derives from the rights of the insured and is limited to those rights. Interstate Fire Ins. v. First Tape, Inc., 817 S.W.2d 142, 145 (Tex.App.--Houston [1st Dist.] 1991, writ denied). A subrogee has the same rights as its subrogor. Id.; Cockrell, 817 S.W.2d at 113. Because Finger had the right to sue for damages to his property, Travelers, as the insurance company that paid for the repairs, had the right to sue in his name for its subrogation interest. See Ortiz v. Great Southern Fire & Cas. Ins. Co., 597 S.W.2d 342, 343 (Tex.1980) ().
The evidence established that Finger, a named insured in the policy, suffered damages to his building because of the fire. Both Finger and Monterey House had insurable interests in the building. If Monterey House--the entity responsible for paying the insurance premiums and for repairing the building--had defaulted, the loss would have been suffered by Finger. As the owner of the property, Finger had a right to be a party to the suit for damages to his building.
We hold the court erred in granting a motion for directed verdict against Finger.
Harmless error
The defendant argues that if it was error for the trial court to direct a verdict against Finger, the error is harmless. The defendant points out that Finger does not challenge the finding that Southern was not negligent (question one) or the finding that Southern performed the services in a good and workmanlike manner (question four). The defendant contends that, because these findings are not challenged on appeal, they are final on the issue of Southern's liability.
The only party who appealed the trial court's judgment was Finger. Finger had no obligation to challenge the jury's findings on liability because he was no longer a party to the suit when the charge was submitted. The only issue Finger was required to challenge was the trial court's directed verdict.
We hold the error was harmful. We reverse and remand for trial.
On rehearing, we supplement our original opinion....
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