Hopkins v. Highlands Ins. Co.

• Decision Date: 02 September 1992
• Docket Number: No. 08-91-00303-CV,08-91-00303-CV
• Citation: 838 S.W.2d 819
• Parties: Charles Milton HOPKINS, Appellant, v. HIGHLANDS INSURANCE COMPANY and Goodman-Watson Insurance Agency, Inc., Appellees.
• Court: Texas Court of Appeals

Page 819

838 S.W.2d 819

Charles Milton HOPKINS, Appellant, v. HIGHLANDS INSURANCE COMPANY and Goodman-Watson Insurance Agency, Inc., Appellees.

No. 08-91-00303-CV.

Court of Appeals of Texas El Paso.

Sept. 2, 1992.

Rehearing Overruled Nov. 4, 1992.

Malcolm McGregor, Valli Acosta, El Paso, for appellant.

John A. Grambling, Grambling/Darnell, L.L.P, Steven L. Hughes, Mounce & Galatzan, El Paso, for appellees.

Before OSBORN, C.J., BARAJAS, J., and PRESSLAR, C.J. (Retired), Sitting by Assignment.

OPINION

BARAJAS, Justice.

This is an appeal from a summary judgment granted in favor of Appellees Highlands Insurance Co., and Goodman-Watson Insurance Agency, Inc. on an action alleging violations of the Deceptive Trade Practices Act, tortious interference with a contractual relationship and breach of the duty of good faith and fair dealing. We reverse in part and affirm in part.

I. SUMMARY OF THE EVIDENCE

Appellant, Charles Milton Hopkins, was employed as a truck driver for the Magnolia Coca-Cola Bottling Company (Magnolia). Magnolia previously secured liability insurance from Highlands Insurance Co., (Highlands) through the Goodman-Watson Insurance Agency, Inc. (Watson Agency) to cover losses resulting from accidents involving trucks owned and operated by Magnolia. The insurance policy became effective on February 1, 1988, and was for a term of one year. Shortly thereafter, Highlands elected to exclude Hopkins from policy coverage effective March 10, 1988. As a result of his exclusion from coverage, Magnolia fired Hopkins on March 25, 1988.

On appeal, Highlands asserts the decision to exclude Hopkins was based on his driving record, as reflected on reports received from the Texas Department of Motor Vehicle Records (MVR). Further, Highlands contends the decision to exclude Hopkins was made in an effort to protect its legal and financial interests. Highlands additionally cites United States Department of Transportation (DOT) regulations to support its decision to exclude Hopkins from coverage. Hopkins asserts both Highlands and Watson Agency applied a different, and more stringent, standard to him in determining to exclude him from coverage under the policy. Further, Hopkins alleges that Highlands and Watson Agency failed to terminate other drivers who possessed driving records that were just as bad or worse than his own.

II. STANDARD OF REVIEW

In reviewing the entry of a summary judgment, this Court must determine whether the successful movant in the trial court carried its burden of showing that there was no genuine issue of material fact and that it was entitled to summary judgment as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex.1985). A summary judgment that disposes of the entire case is proper only if, as a matter of law, the non-movant could not succeed upon any of the theories pleaded. Houston Building Service, Inc. v. American General Fire & Cas. Co., 799 S.W.2d 308, 309 (Tex.App.--Houston [1st Dist.] 1990, writ denied).

In deciding whether or not there is a disputed fact issue that would preclude the entry of a summary judgment, evidence favorable to the non-movant is to be taken as true and, in that connection, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Nixon, 690 S.W.2d at 548-49; see also City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677 (Tex.1979).

III. MOTION FOR SUMMARY JUDGMENT

In Point of Error No. One, Appellant asserts the affidavit of Diana Gillespie is not proper summary judgment evidence because it is not based on personal knowledge. The affidavit recites that it is based on personal knowledge; although, at an earlier deposition, the affiant stated she lacked memory of many of the same facts to which she later swore to in the affidavit. The affiant readily admitted her lack of memory and confusion, but cited a thyroid problem as contributing to such lack of memory and confusion. The record reflects that Hopkins objected to Gillespie's affidavit on two grounds. The first was on the basis of lack of personal knowledge of the affiant. The second was that the affidavit contained legal conclusions.

In a summary judgment context, the Texas Supreme Court has clearly stated that objections to a motion for summary judgment must be in writing and before the trial court in order to permit the appellate court to decide whether "the issue was actually presented to and considered by the trial judge." City of Houston v. Clear Creek Basin Authority, 589 S.W.2d at 671, 677. Additionally, a ruling by the trial court must be obtained by the objecting party to preserve any error for appellate review. Tex.R.App.P. 52. See Sem v. State, 821 S.W.2d 411, 414 (Tex.App.--Fort Worth 1991, n.w.h.); Utilities Pipeline v. American Petrofina, 760 S.W.2d 719, 723 (Tex.App.--Dallas 1988, no writ); See also Manoogian v. Lake Forest Corporation, 652 S.W.2d 816, 819 (Tex.App.--Austin 1983, writ ref'd n.r.e.).

We have reviewed the record and find it silent as to whether Hopkins obtained a ruling on either of his objections to the summary judgment evidence. Thus, although Hopkins properly objected to alleged defects in Appellees' summary judgment evidence, his failure to secure a ruling on those objections effectively waives his complaints on appeal. Accordingly, Point of Error No. One is overruled.

In Point of Error No. Two, Hopkins asserts the trial court erred in granting summary judgment based on Appellees' unplead affirmative defense of legal justification. Appellees point to the fact that the affirmative defense of legal justification was raised in their First Amended Original Answer, filed three days after Hopkins' response to their motion for summary judgment. Appellees further assert the pleading is adequate to raise the affirmative defense.

The Texas Supreme Court has recently held that an unpleaded affirmative defense may serve as the basis for a summary judgment when it is raised in the motion for summary judgment for the first time, and the opposing party does not object to the lack of a Rule 94 pleading in either its written response or before the rendition of judgment. Roark v. Stallworth Oil and Gas, Inc., 813 S.W.2d 492, 494 (Tex.1991). Appellant's failure to direct the trial court's attention to the absence of the pleading of the affirmative defense of legal justification bars raising any such complaint for the first time on appeal. Roark, 813 S.W.2d at 495. Thus, Appellant's Point of Error No. Two is overruled. In light of this disposition of Point of Error No. Two, we need not address the issue of whether the Appellees' First Amended Original Answer timely or adequately raised the affirmative defense of legal justification.

IV. THEORIES OF RECOVERY

In his third point of error, Hopkins asserts the trial court erred in granting summary judgment in Highlands' and Watson Agency's favor insofar as issues of material fact existed as to each of his theories of recovery. As noted, Hopkins filed suit against Highlands Insurance Company and Goodman-Watson Insurance Agency, Inc. alleging violations of the Deceptive Trade Practices Act, tortious interference with a contractual relationship and breach of the duty of good faith and fair dealing.

A. Deceptive Trade Practices Act

As previously mentioned, Hopkins asserted a violation of the Deceptive Trade Practices Act. Specifically, Hopkins contended Appellees violated Section 21.21(4)(1) of the Texas Insurance Code and that such violation serves as the basis of the Deceptive Trade Practices Act claim as per Tex.Bus. & Com.Code Ann. § 17.50(a)(4) (Vernon 1987). Appellees sought and obtained summary judgment on the alleged violations of the Deceptive Trade Practices Act which were asserted by Hopkins. In particular, Appellees contended that Hopkins admitted that no representations were made to him by Appellees, and further, that Hopkins was not a "consumer" as a matter of law, as defined in Section 17.45 of the Deceptive Trade Practices Act. In accepting Appellees' contention, we find that Appellees have successfully disproved at least one element of Hopkins' cause of action and, thus, summary judgment was proper. Bradley v. Quality Service Tank Lines, 659 S.W.2d 33, 34 (Tex.1983); Rayos v. Chrysler Credit Corp., 683 S.W.2d 546, 547 (Tex.App.--El Paso 1985, no writ).

In an action brought pursuant to Texas Insurance Code art. 21.21(4)(1), the plaintiff must show that the insurer made false or misleading representations of the policy contract. Consequently, the making of a representation is an essential element of a violation of Article 21.21(4)(1).

In the instant case, the trial court found that no oral representations were made to Hopkins, nor did Hopkins ever discuss the insurance policy with employees of either Highlands or Watson Agency. The trial court's findings are amply supported by Hopkins' deposition where he readily admitted neither Highlands nor Watson Agency ever made any representations to him. Further, the court found that Hopkins was not aware of any representation made by either Highlands or Watson Agency.

Hopkins' testimony admitting no representations were made to him conclusively established the negation of an essential element of his cause of action for violation of the Deceptive Trade Practices Act by Highlands and Watson Agency. See Bradley, 659 S.W.2d at 34. Accordingly, the summary judgment as to the alleged Deceptive Trade Practices Act violation is affirmed. In light of the above discussion, this Court does not need address the issue of whether Hopkins is a consumer under the Deceptive Trade Practices Act.

B. Tortious Interference with a Contractual Relationship

Hopkins bases his claim of tortious interference with his contractual relationship with Magnolia on his exclusion from the insurance policy. It was that exclusion of coverage that...