Flowers v. United Ins. Co. of America, B14-90-00551-CV

• Decision Date: 14 February 1991
• Docket Number: No. B14-90-00551-CV,B14-90-00551-CV
• Citation: 807 S.W.2d 783
• Parties: Betty FLOWERS, Appellant, v. UNITED INSURANCE COMPANY OF AMERICA, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 783

807 S.W.2d 783

Betty FLOWERS, Appellant, v. UNITED INSURANCE COMPANY OF AMERICA, Appellee.

No. B14-90-00551-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Feb. 14, 1991.

Robert Oberholtzer and Hector F. Ruiz, Houston, for appellant.

James H. Miller and Bennett S. Bartlett, Houston, for appellee.

Before PAUL PRESSLER, JUNELL and ELLIS, JJ.

OPINION

JUNELL, Justice.

This is an appeal from a summary judgment granted in favor of appellee United Insurance Company of America (United). Appellant brings two points of error alleging the trial court erred in granting appellee's motion for summary judgment because appellee failed to establish: (1) each element of its misrepresentation defense as a matter of law; and (2) as a matter of law that appellant's husband misrepresented the state of his health willfully and with the intent to deceive. Although appellant has styled her appeal as two points of error, her complaint is that appellee failed to establish its defense of misrepresentation in that it failed to prove as a matter of law intent to deceive on the part of appellant's husband. We will review appellant's contentions as one point of error. We reverse and remand.

The basic facts of the case are not in dispute. In November 1987, appellant and her husband, Edward Flowers, applied for and were issued a joint life insurance policy with United. In the application for the policy Mr. Flowers was asked a series of questions regarding his health history. In pertinent part, the question asked:

10. Has any Proposed Insured or Payor to be covered ever had:

a. High blood pressure?

b. Disease or disorder of heart or circulatory system?

* * * * * *

11. Answer for any Proposed Insured(s) or Payor

a. Have you ever had a physical examination, consulted a physician, or been in a clinic, hospital or institution for surgery, diagnosis or treatment within the past 5 years?

Mr. Flowers answered "no" to each health question. He did not give any explanations of health problems in the space provided. Mr. Flowers executed the application stating "I certify that I have read (or have had read to me) all the questions and answers on this application." As it turns out, three years before applying for the life insurance, Mr. Flowers was incarcerated in the Texas Department of Correction (TDC). On the TDC medical intake form Mr. Flowers stated that he had high blood pressure. While in prison Mr. Flowers took medication for the condition for approximately two years. Further, while he was in prison, he was admitted to the hospital for an injured wrist; and during his hospitalization he was diagnosed with borderline cardiomegaly, enlargement of the heart.

In 1988, approximately a year after the life insurance policy was taken out, Mr. Flowers was killed in a motor vehicle accident. Appellant, as Mr. Flowers' beneficiary, brought suit to collect the proceeds under the policy. United moved for summary judgment on the ground that Mr. Flowers had made misrepresentations concerning the state of his health in the application for insurance. The trial court granted appellee's motion and appellant brings this appeal.

In her point of error appellant alleges that the appellee failed to prove as a matter of law its defense of misrepresentation. Specifically, she claims that United failed to prove as a matter of law that Mr. Flowers made a false representation with the intent to deceive.

A summary judgment is not entitled to the same deference given to a judgment following a trial on the merits. When reviewing the granting of a summary judgment, the appellate court does not view the evidence in the light most favorable to the judgment of the trial court. At either the trial or appellate level, the question is not simply whether the non-movant raised a material fact issue to defeat the motion, rather the movant must prove beyond question it was entitled to judgment as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828-829 (Tex.1970); TEX.R.CIV.P. 166a(c). If the movant fails to prove entitlement to judgment as a matter of law, this court must remand the case for a trial on the merits. Id. The standards for reviewing a summary judgment have been clearly mandated by the Texas Supreme Court:

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 doubt resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-311 (Tex.1984). Since United asserted the defense of misrepresentation in its motion for summary judgment, it was necessary for United to prove the each element of the defense as a matter of law. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979).

Under Texas law, there are five elements an insurance carrier must plead and prove in order to establish a misrepresentation defense:

(1) the making of a misrepresentation;

(2) the falsity of the misrepresentation;

(3) reliance on the misrepresentation by the insurer;

(4) the intent to deceive on the part of the insured in making the misrepresentation; and

(5) the materiality of the...