Miller v. Windsor Ins. Co.

• Decision Date: 25 April 1996
• Docket Number: No. 2-95-036-CV,2-95-036-CV
• Citation: 923 S.W.2d 91
• Parties: Walter MILLER, Mary Miller, Dario Miller, and Lyrica Miller v. WINDSOR INSURANCE COMPANY.
• Court: Texas Court of Appeals

Page 91

923 S.W.2d 91

Walter MILLER, Mary Miller, Dario Miller, and Lyrica Miller v. WINDSOR INSURANCE COMPANY.

No. 2-95-036-CV.

Court of Appeals of Texas,

Fort Worth.

April 25, 1996.

Rehearing Overruled May 30, 1996.

Publication Ordered May 30, 1996.

Gary Norton, Corpus Christi, for appellants.

Glen J. Fahl, Houston, for appellee.

Before DAY, RICHARDS and BRIGHAM, JJ.

OPINION

BRIGHAM, Justice.

This appeal follows a judgment entered in an interpleader action filed by Windsor Insurance Company to determine the amount of money owed under a Texas Personal Auto Policy issued by State and County Mutual Fire Insurance Company. Walter Miller, the named insured, was injured in a collision while alone in his car. He and his family filed an uninsured/underinsured motorist claim on his State and County policy. Summary judgment was granted for Windsor. Appellants bring forty-one points of error, complaining about the trial court's: (1) denial of Walter's motion to transfer venue; (2) summary judgment for Windsor; (3) entry of a nunc pro tunc order; (4) granting of Windsor's motion for disbursement of funds from registry; and (5) failure to file written findings of fact and conclusions of law after granting Windsor's motion for disbursement of funds from registry. We affirm the judgment of the trial court.

BACKGROUND

Walter purchased an insurance policy from State and County. The policy provided $100,000 per person injured in a collision and a maximum of $300,000 per occurrence. On June 1, 1992, Walter was in an accident with Robert Falgout in the 4000 block of South Staples in Corpus Christi, Texas. Falgout's insurance company tendered his policy limit of $20,000, which Walter maintained was insufficient to compensate him for his medical expenses.

On March 16, 1993, Walter wrote a demand letter to Windsor requesting the $100,000 per person policy limit under his insurance policy. Windsor, State and County's reinsurer, advanced $10,000 to Walter for payment of medical expenses. On July 2, 1993, Walter's attorney demanded from Windsor Group the $300,000 per occurrence policy limit. Windsor repeatedly attempted to send the remaining $90,000 to Walter, but the offer was always refused. Walter contended that the full $300,000 per occurrence limit was owed despite the fact that Walter was alone in the car and that none of the other members of his family were in the car or at the scene at the time of the accident.

The last time Windsor tendered the $90,000 to Walter, it included a release that it would not be construed as settling any alleged bad faith claim Walter felt existed and would not include other family members. After this last tender was refused, the money was interpleaded into the registry of the trial court.

Windsor filed the interpleader suit in Tarrant County, claiming that State and County's principal place of business is Arlington, Texas. Walter filed a motion to transfer venue to Nueces County, where appellants reside. The trial court denied the motion to transfer venue and granted Windsor's motion for summary judgment and motion for disbursement of funds.

POINTS OF ERROR ONE THROUGH SEVENTEEN

In their lengthy ¹ amended brief, appellants bring seventeen points of error complaining about the trial court's refusal to transfer venue. Appellants claim to argue all seventeen points together, but in the argument portion of the brief, appellants highlight only six distinct complaints. Accordingly, we will address only the complaints argued. The complaints are that: Windsor failed to prove proper venue by properly pleading and making prima facie proof by affidavit fully and specifically setting forth facts necessary to establish venue in Tarrant County; Windsor, as a nonparty to the auto policy, filed the declaratory judgment action in violation of the clear law protecting insureds' fundamental rights to be the real plaintiffs and to choose proper venue for filing suit; Windsor has failed to allege and prove any right and authority to act in any capacity for State and County or anyone else; when no claim has been made against Windsor, no basis in fact and in law exists for filing plaintiff's interpleader and petition for declaratory judgment; when Windsor has not pled any claim in controversy between Windsor and State and County, State and County should be disregarded as an alleged putative defendant and realigned as a plaintiff against its insureds; and Windsor failed to prove that the home office and principal place of business of State and County is located in Arlington, Tarrant County, Texas.

Appellants claim Windsor failed to prove proper venue. They assert that Windsor has not fully and properly pled all essential elements of its causes of action. Other than a general reference to Rule 87 of the Texas Rules of Civil Procedure, ² appellants cite no authority for their contention that Windsor failed to plead and prove eight specific elements.

Tarrant County is a county of proper venue. ³ State and County is an interested party that must be joined as a defendant under the Declaratory Judgments Act. An insurance carrier may be sued in the county where its home office is located. If State and County's home office and principal place of business are in Arlington, Texas, venue is proper in Tarrant County. Accordingly, this contention is overruled.

Appellants next assert that Windsor, as a nonparty to the auto policy, filed the declaratory judgment action in violation of the clear law protecting the insureds' fundamental rights to be the real plaintiffs and to choose proper venue for filing suit. Appellants aver that Windsor's filing the declaratory judgment action as if it were a party who had a right under the auto policy is "a contrived attempt to change the terms and conditions of the Auto Policy and the Texas venue law." They maintain that an attempted agreement to require venue in the county where an insurance company has its home office is an invalid agreement in violation of public policy.

The Declaratory Judgments Act requires that "all persons who have or claim any interest that would be affected by the declaration must be made parties." TEX.CIV.PRAC. & REM.CODE ANN. § 37.006 (Vernon 1986). The Texas Supreme Court has specifically allowed a reinsurer such as Windsor standing to file a declaratory judgment action. Republic Ins. Co. v. Davis, 856 S.W.2d 158 (Tex.1993). We conclude that as the reinsurer of State and County on the policy in question, Windsor must be made a party under section 37.006. Consequently, appellants' assertion on this issue is overruled.

Appellants next argue that Windsor has failed to allege and prove any right and authority to act in any capacity for State and County or for anyone else. Appellants assert that when an insurance company attempts to confuse the rights of insureds by injecting in a pleading the name of a different insurance company, the different companies must identify the parties and their rights or obligations correctly. See Beacon Nat'l Ins. Co. v. Reynolds, 799 S.W.2d 390, 395-96 (Tex.App.--Fort Worth 1990, writ denied).

Both the original petition and supplemental petition assert that Windsor provided reinsurance through the State and County policy insuring the appellants. Additionally, the policy and reinsuring agreement were produced and proved up. We find this situation completely different from Beacon. There the insurance company raised for the first time after trial the argument that it was not the proper company. Id. at 395. Thus, this contention, too, is overruled.

Appellants next argue that when no claim has been made against Windsor, no basis in fact and in law exists for Windsor filing plaintiff's interpleader and petition for declaratory judgment. Appellants maintain that a claim against Windsor is a prerequisite for Windsor filing a valid interpleader and declaratory judgment action. They argue that because State and County has not made any claim against Windsor, Windsor has therefore failed to satisfy the prerequisite for filing the interpleader and declaratory judgment action. See Davis v. East Texas Sav. & Loan Ass'n., 163 Tex. 361, 354 S.W.2d 926 (1962); Bank One, Texas, N.A. v. Taylor, 970 F.2d 16 (5th Cir.1992), cert. denied, 508 U.S. 906, 113 S.Ct. 2331, 124 L.Ed.2d 243 (1993).

This argument fails for two reasons. First, a representative of State and County testified that it expected Windsor to honor its contractual obligations under the reinsurance contract and the auto policy, thus making Davis and Bank One inapplicable. Second, Walter in fact made a claim against Windsor for the $100,000 policy limit.

Appellants next assert that when Windsor has not pled any claim in controversy between it and State and County, State and County should be disregarded as an alleged putative defendant and realigned as a plaintiff against its insureds. Appellants contend that the interests of Windsor and State and County are the same in relation to their purpose and that, as a result, State and County should be disregarded as a putative defendant.

We disagree with the argument that the interests of Windsor and State and County are the same. For example, State and County could make a claim against Windsor for contribution or indemnity under the reinsuring agreement. Although appellants view both Windsor and State and County as being their opponents, we view the interests of the two companies as distinct enough so that realignment is inapplicable.

Next, in a multifarious argument, appellants claim that Windsor failed to prove that the home office and principal place of business of State and County is located in Arlington, Tarrant County, Texas for venue purposes. In making this assertion, appellants raise objections to the affidavits of David Piper supporting Windsor's venue allegation. They claim the auto policy states the home office of State and County is located at 100 N. 6th Street, Suite 300, Waco, Texas, and that the verified Annual...