Harris v. Varo, Inc.
Decision Date | 05 August 1991 |
Docket Number | No. 05-90-00634-CV,05-90-00634-CV |
Citation | 814 S.W.2d 520 |
Parties | Della W. HARRIS, Appellant, v. VARO, INC., Appellee. |
Court | Texas Court of Appeals |
C. Hamilton Huckleberry, Alvin R. Granoff, Dallas, for appellant.
Keith Glover, George R. Carton, Jr., Dallas, for appellee.
Before STEWART, WHITTINGTON and MALONEY, JJ.
Della W. Harris appeals a summary judgment rendered for Varo, Inc. In four points of error, Harris contends the trial court erred in: (1) finding that Varo conclusively established each element of its affirmative defense; (2) considering Varo's affidavit proof and deposition testimony; (3) disregarding her equitable estoppel defense; and (4) granting summary judgment on all of her causes of action. We affirm in part, and reverse and remand in part.
Harris was employed by Varo. In December 1981, she was injured returning to work from her lunch break. She stepped in a pothole in Varo's parking lot. She stumbled and fell down a flight of stairs. Harris initially filed a workers' compensation claim against Northern Assurance Company of America. The Industrial Accident Board (IAB) denied her claim on April 18, 1983. The IAB found "that the evidence submitted fail[ed] to establish that the claimant sustained a compensable injury in the course of employment herein as alleged." Harris appealed the IAB's ruling to the district court on May 19, 1983. On May 7, 1986, Harris non-suited that action with prejudice. The trial court subsequently denied her motion to reinstate the cause of action.
On December 15, 1983, Harris filed this premises liability suit against Varo. This suit relies on the same injury that was the basis of her workers' compensation claim. Varo answered and filed a motion for summary judgment. The motion alleged that the exclusivity provision of the Workers' Compensation Act (Act) was a bar to Harris's cause of action.
Harris then amended her pleadings to include a cause of action for fraud. She also filed a "Motion for Summary Judgment and Response to Defendant's Motion for Summary Judgment." This motion attacks Varo's summary judgment proof. The trial court entered summary judgment for Varo. It is from this judgment that Harris appeals.
a. Summary Judgment
Summary judgment is proper only if 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). The standard for reviewing a motion for summary judgment is as follows:
1. The movant for summary judgment has the burden of showing there is no genuine issue of material fact and 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 nonmovant will be taken as true.
3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor.
Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).
A defendant must disprove one element of the plaintiff's cause of action to prevail on summary judgment. Traylor v. Unitedbank Orange, 675 S.W.2d 802, 804 ( ). The summary judgment proof must establish as a matter of law that there is no genuine issue of material fact on one or more of the essential elements of the cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).
When a movant relies on an affirmative defense, it must expressly plead and prove all essential elements of that defense as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). A matter is conclusively established only if ordinary minds cannot differ about the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982).
This controversy arises over the identity of Varo's insurance carrier at the time of Harris's accident. Varo first named Commercial Union Assurance Company as its workers' compensation carrier. Next, Varo identified Northern Assurance Company of America as its carrier before the IAB. Later, Varo designated Employers' Fire Insurance Company as its carrier.
Varo apparently changed its workers' compensation insurance from Northern Assurance to Employers' Fire before Harris's accident. No one notified the IAB of the change in carriers. Varo contends any confusion was inadvertent and occurred because Northern Assurance and Employers' Fire are both subsidiaries of Commercial Union. Moreover, Varo urges that Harris suffered no harm from this confusion.
Harris contends that Varo's actions were deceptive. She alleges this "deception" was intentional and has either already caused or may cause a future denial of recovery for her injuries. She urges that Varo "not be allowed to profit by its deception." She also argues that it would be "a miscarriage of justice" to allow the Act's exclusivity provision to defeat her cause of action.
In her second point of error, Harris argues that the trial court erred in considering Varo's affidavit proof and deposition testimony. She asserts that the best evidence rule excludes the affidavits of Howard Lydick, corporate representative of Varo, and Dick Massey, senior claim supervisor at Northern Assurance. She also contends the best evidence rule excludes the affidavit of Judge Marshall, the trial judge in Harris's suit against Northern Assurance. Additionally, she maintains that Judge Marshall's affidavit is "secondary evidence." Finally, she asserts that her deposition is not proper summary judgment proof because it was neither filed with the court, supported by affidavit, nor properly authenticated.
The best evidence rule requires the original writing only when the evidence is to prove the contents of the original writing. Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705, 711 (Tex.Civ.App.--Dallas 1963, writ ref'd n.r.e.). An employer may prove the existence of a certain type of insurance policy by affidavit. Id.
Lydick and Massey submitted affidavits asserting that Northern Assurance was Varo's workers' compensation carrier at the time in question. The best evidence rule does not prevent consideration of the Lydick and Massey affidavits.
The affidavit of Judge Marshall asserts his explanation of Harris's dismissal of her suit against Northern Assurance. The best evidence rule does not require the exclusion of Judge Marshall's affidavit. Id. However, we do agree that Judge Marshall's opinion regarding the reason Harris dismissed her suit against Northern Assurance is a legal conclusion. Legal conclusions are not proper summary judgment proof. Simpson v. MBank Dallas, N.A., 724 S.W.2d 102, 108 (Tex.App.--Dallas 1987, writ ref'd n.r.e.). Moreover, his opinion has no bearing on the issues at hand. Therefore, we will not consider it.
Varo submitted a copy of a portion of Harris's deposition as summary judgment proof. Copies or excerpts of depositions are admissible only if they are certified by the court reporter and verified by the attorney. See Deerfield Land Joint Venture v. Southern Union Realty Co., 758 S.W.2d 608, 610 (Tex.App.--Dallas 1988, writ denied). Varo did not attach an attorney's affidavit certifying the truthfulness and correctness of the copied materials. We sustain Harris's complaints regarding the admissibility of her deposition.
We have determined that Judge Marshall's affidavit and the copy of Harris's deposition are not proper summary judgment evidence. However, the remaining evidence submitted by Varo is sufficient to establish the existence of its workers' compensation insurance policy.
In her first point of error, Harris attacks Varo's status under the Act. She contends that Varo's failure to notify the IAB of its change of carriers caused Varo to lose its status as a "subscriber." Therefore, she argues that Varo lost its right to assert the defenses provided by the Act.
Only a subscriber can assert that workers' compensation provides the employee's exclusive remedy. Brown Services, Inc. v. Fairbrother, 776 S.W.2d 772, 775 (Tex.App.--Corpus Christi 1989, writ denied). An employer becomes a subscriber by filing IAB Form 20, which identifies its workers' compensation insurance carrier, with the IAB. Ferguson v. Hospital Corp. Int'l, Ltd., 769 F.2d 268, 273 (5th Cir.1985).
The provisions of the Act at the time of the accident determine the rights and duties of the parties. See Consolidated Casualty Ins. Co. v. Smith, 309 S.W.2d 80, 84 (Tex.Civ.App.--Houston 1958, writ ref'd n.r.e.); see also Simpson v. Texas Employers Ins. Ass'n, 519 S.W.2d 209, 213 (Tex.Civ.App.--Fort Worth 1975, writ ref'd n.r.e.). Harris's accident occurred in December 1981. At that time article 8308, sections 18a and 20a provided:
Sec. 18a. Whenever any employer of labor in this State becomes a subscriber to this law, he or the insurance company shall immediately notify the Board of such fact, stating in such notice his name, place of business, and the name of the insurance company carrying his insurance, and the effective date of the policy. No further notice shall be required except as provided in Section 20a hereof. Such subscriber's notice shall be acknowledged by the insurance company. Any employer or association willfully failing or refusing to make any such report shall be liable for and shall pay to the State of Texas a penalty of not more than one thousand dollars for each offense. The Executive Director of the Board shall notify the Board of any willful failure or refusal to comply with this Section and after notice and hearing, the Board shall make a finding and if said finding is against the employer or association assess a penalty not to exceed one thousand dollars. The employer or association may appeal the Board's ruling...
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