Miller v. State and County Mut. Fire Ins. Co.
| Decision Date | 18 February 1999 |
| Docket Number | No. 13-97-705-CV,13-97-705-CV |
| Citation | 988 S.W.2d 326 |
| Parties | Walter A. MILLER, Appellant, v. STATE AND COUNTY MUTUAL FIRE INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Gary Norton, Wood, Boykin & Wolter, Corpus Christi, for appellant.
Rick Fancher, Vaughan Waters, Thornton, Summers, Biechlin, Dunham & Brown, Corpus Christi, for appellee.
Before Justices DORSEY, CHAVEZ, and RODRIGUEZ.
In this appeal from the granting of a summary judgment in favor of appellee, State and County Mutual Fire Insurance Company ("State and County Mutual"), appellant Walter A. Miller raises fourteen issues relating to the sufficiency of State and County Mutual's summary judgment evidence establishing its defenses of res judicata and collateral estoppel, four issues relating to rulings of the trial court prior to the summary judgment, and two issues which question the propriety of another court's judgment. We reverse and remand.
Miller was insured by State and County Mutual pursuant to a standard Texas personal automobile policy ("the Policy"). Pursuant to a "100% Quota Share Reinsurance Agreement," ("the Reinsurance Agreement"), Windsor Insurance Company 1 ("Windsor") was the reinsurer for State and County Mutual as to the Policy, and Windsor had assumed the obligations of adjusting and settling any claim arising under the Policy.
The events leading up to the present appeal are best delineated by use of a timeline:
2. In the Tarrant County Suit, Windsor sought a declaration that the $90,000 represented its total obligation to Miller and that by tendering this amount, it would be released from all potential liability on account of, or in any way arising out of the policy limits under the Policy.
3. In the Nueces County Suit, Miller alleged that State and County Mutual had failed and refused, and continues to fail and refuse to pay the underinsured motorists benefits due under the Policy. Miller also asserted extra-contractual claims under the DTPA and insurance code, including statutory claims ancillary to State and County Mutual's alleged failure to pay benefits.
4. See Miller v. Windsor Ins. Co., 923 S.W.2d 91 (Tex.App.--Fort Worth 1996, writ denied) ().
June 1, 1992 Miller's car is rear-ended by an underinsured motorist.
March 16, 1993 Miller, pro se, notifies State and County Mutual of his
potential entitlement to the $100,000 underinsured
motorist benefits under the Policy and requests
permission from State and County Mutual to settle with
the underinsured's carrier, State Farm.
March 23, 1993 Miller is granted permission to settle with State Farm. The
permission was extended in the name of "State and County
Mutual Fire Insurance Company (Windsor Group)".
nor his children, were occupants of the car when the
injury occurred.
July 8, 1993 Having previously advanced Miller the sum of $10,000,
Windsor tenders the remaining $90,000 per person limit of
the Policy. Miller rejects the tender.
Oct. 15, 1993 Miller files suit against State and County Mutual in the
214th Judicial District Court of Nueces County, Texas
(the "Nueces County Suit"). 3
Jan. 14, 1994 State and County Mutual files a plea in abatement in the
Nueces County Suit, asserting the existence of the
Tarrant County Suit.
Aug. 12, 1994 The trial court abates the Nueces County Suit pending the
outcome of the Tarrant County Suit.
Oct. 26, 1994 The trial court in the Tarrant County Suit enters judgment
that (1) Windsor is fully liable for Miller's
underinsured claim, (2) the applicable policy limits are
$100,000, not $300,000, (3) Windsor has paid and
deposited such amount into the court's registry, and (4)
upon such payment by Windsor, "any and all liability of
an insurer" under the Policy has been satisfied.
March 27, 1997 State and County Mutual files a motion for summary judgment
in the Nueces County Suit based on its affirmative
defenses of res judicata, collateral estoppel, compulsory
counterclaim, and payment.
April 10, 1997 Miller files his response asserting that, other than the
defense of compulsory counterclaim, none of State and
County Mutual's affirmative defenses have been pled.
April 11, 1997 State and County Mutual files its second amended original
answer pleading the defenses of res judicata, collateral
estoppel, compulsory counterclaim, and payment.
April 17, 1997 Miller files a motion to strike the second amended original
answer as untimely filed. Trial court hears argument on
State and County Mutual's motion for summary judgment and
overrules Miller's motion to strike.
May 30, 1997 Trial court grants State and County Mutual's motion on the
basis of res judicata and collateral estoppel.
In issues four and eleven, Miller claims the evidence is insufficient to establish the affirmative defense of payment. As the trial court did not grant summary judgment on this basis, these issues are moot and we decline to address them. TEX.R.APP. P. 47.1.
In issues twelve, thirteen, and fourteen, Miller complains the summary judgment evidence was insufficient to establish that Windsor had the right and authority to conduct business or act on behalf of State and County Mutual. In issue number three, he asserts the summary judgment evidence was insufficient to establish he and his family had the right to assert a cause of action against Windsor. Claiming he did not have the right to assert any causes of action against Windsor, in issue number nineteen, Miller questions whether the Tarrant County District Court had the authority and jurisdiction to decide claims that were not pleaded, and to grant relief not requested by Windsor.
The crux of Miller's argument under these issues appears to be that because the Reinsurance Agreement was executed by and between Southeastern Fidelity Insurance Company as reinsurer, State and County Mutual, and Texas Moore Group, Inc., and provided that "nothing contained herein shall in any manner create any obligation or establish any right against the reinsurer in favor of any persons not parties to this agreement," Windsor failed to prove it was State and County Mutual's reinsurer. Miller also argues that because he was not a party named in the Reinsurance Agreement, he was not permitted to file a counterclaim against Windsor.
Concerning Miller's argument that State and County Mutual failed to prove Windsor was its reinsurer, we are compelled to apply the law of the case doctrine and overrule this contention. "The law of the case" doctrine mandates that the ruling of an appellate court on a question of law raised on appeal will be regarded as the law of the case in all subsequent proceedings of the same case. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.1986); National Union Fire Ins. Co. of Pittsburgh, Pa. v. John Zink Co., 972 S.W.2d 839, 845 (Tex.App.--Corpus Christi 1998, writ denied). Matters of law that were disposed of in a former appeal will not again be decided by the court. Aycock v. State, 863 S.W.2d 183, 187 (Tex.App.--Houston [14th Dist.] 1993, writ ref'd).
In Miller I, Miller asserted that Windsor's summary judgment proof was insufficient to establish the reinsurance relationship between Windsor and State and County Mutual. The court of appeals disagreed, stating:
The summary judgment proof undermines this argument. Affidavits establish Windsor's reinsurance relationship with [State and County Mutual], copies of checks from Windsor and payable to [Miller] reference the claim number and local insurance agent, and a letter from [Miller] shows that he made demand for the "policy limit" of "$100,000" from Hank Hobbs, a claims examiner for Windsor. [Miller's] argument that Windsor lacked standing ... rings hollow.
Miller I, 923 S.W.2d at 96. Windsor's status as State and County Mutual's reinsurer has been established as a matter of law by the Fort Worth Court of Appeals, and thus, State and County Mutual was not required to re-establish this relationship in the Nueces County Suit. 5
Miller's argument that he could not file a counterclaim against Windsor due to the restrictive language contained in the Reinsurance Agreement is misplaced. State and County Mutual's compulsory counterclaim argument is not that Miller failed to assert a counterclaim against Windsor, but that he failed to assert a cross-action against State and County Mutual. For this reason, we decline to address Miller's first issue in which he claims the judgment in the present case required him to assert his extra-contractual claims against Windsor in the Tarrant County Suit.
Issues three, twelve, thirteen, fourteen, and nineteen are overruled.
We turn now to Miller's primary complaint, asserted in his second, fifth, and seventh issues, that the summary judgment evidence was insufficient to establish State and County Mutual's affirmative defense of compulsory counterclaim, particularly in light of State and County Mutual's lack of any request for affirmative relief against Miller in the Tarrant County Suit. We review summary judgment procedures according to the following standards: (1) the movant for summary judgment has the burden of showing there is no genuine issue of material fact and the movant is entitled to...
To continue reading
Request your trial
-
Miller v. State
...I was not barred by res judicata or collateral estoppel because of the Windsor suit. Miller v. State & County Mut. Fire Ins. Co., 988 S.W.2d 326, 331 (Tex. App.-Corpus Christi 1999, pet. filed). Presenting 28 issues, Miller appeals the venue transfer, the summary judgment, the stay of disco......
-
State & County Mutual v. Miller
...of appeals reversed and held that neither res judicata nor collateral estoppel barred Miller's claims against State and County Mutual. 988 S.W.2d 326. most of Miller's claims against State and County Mutual involve issues that have already been resolved in a prior suit and are thus barred b......