Ramirez v. GEICO

• Decision Date: 16 April 2018
• Docket Number: No. 08-15-00326-CV,08-15-00326-CV
• Citation: 548 S.W.3d 761
• Parties: Daniel A. RAMIREZ, Appellant, v. GEICO a/k/a Government Employees Insurance Company, Appellee.
• Court: Texas Court of Appeals

548 S.W.3d 761

Daniel A. RAMIREZ, Appellant,

v.GEICO a/k/a Government Employees Insurance Company, Appellee.

No. 08-15-00326-CV

Court of Appeals of Texas, El Paso.

April 16, 2018

Daniel A. Ramirez, 8840 Dulce Circle, El Paso, TX 79907, for Appellant.

Hon. Joseph L. Hood Jr., Windle, Hood, Norton, Brittain & Jay, LLP, 201 East Main Drive, Suite 1350, El Paso, TX 79901, for Appellee.

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

YVONNE T. RODRIGUEZ, JusticeThis is an appeal from an order granting summary judgment in favor of Government Employees Insurance Company (Geico), dismissing two claims that Daniel Ramirez brought against Geico under the Deceptive Trade Practices Act (DTPA) and the Texas Insurance Code, for alleged delays that occurred in paying his claims. Ramirez alleges that the trial court abused its discretion by granting Geico’s motion for summary judgment. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL SUMMARY

The undisputed facts reveal that Ramirez had an automobile liability insurance policy with Geico, providing him with coverage for personal injury protection, collision, uninsured motorist bodily injury and property damage. On or about October 3, 2012, Ramirez was struck from behind by another vehicle, causing damage to his vehicle and personal injuries which he claims necessitated medical treatment. Ramirez immediately notified Geico of the accident by phone. By letter dated October 5, 2012, Geico advised that it had received notice of the accident. The letter instructed Ramirez to complete an "application for benefits" form, which was needed to process the claim, and to have his doctor fill out an attending physician’s report and return it to Geico promptly. By a separate letter dated October 4, 2012, Geico notified Ramirez that he had the right under Texas law to choose where to have his vehicle repaired.

Ramirez began medical treatment with a chiropractor in October 2012, and according to his pleadings, he visited his chiropractor several times in October, November, and December, with his last visit occurring on December 21, 2012. In his pleadings, Ramirez claimed that as of the end of November 2012, he had accumulated $3,868 in unpaid chiropractic bills. According to him, Geico issued two checks to his chiropractor on December 4, 2012, in the amounts of $335 and $1,288. He claims, however, that Geico "inexplicably" delayed paying the remainder of his medical bills, and did not make any additional payments to his chiropractor until August 26, 2013, after which Geico issued a series of checks to his chiropractor through September 3, 2013 in the following amounts: $100.59, $917.09, $913.56, $672.75, and $720.99.

On September 3, 2014, Ramirez filed a pro se lawsuit against Geico, alleging that Geico’s delay in paying the remainder of his bills caused him to prematurely stop treatment with his chiropractor due to his fear that Geico did not intend to pay his outstanding bills, and that he might be held personally liable for the remaining bills. In his petition, Ramirez claimed that Geico’s actions in delaying payment violated the Texas Deceptive Trade Practices Act (DTPA), and certain provisions of the Texas Insurance Code and the Texas Administrative Code. He listed seventeen violations alleging that Geico had generally engaged in "false, misleading, or deceptive acts or practices," had made various misrepresentations to him with regard to his insurance policy and his coverage, had failed to timely affirm or deny coverage for his claim, had refused to pay his claim without a reasonable investigation, had failed to promptly provide an explanation for denying his claim, and had failed to effectuate a prompt, fair and equitable settlement of his claim. Ramirez sought damages in the form of civil penalties under the DTPA and the Insurance Code, as well as damages to cover the medical treatment he claimed he still needed.

Geico’s Motion for Summary Judgment

On February 2, 2015, Geico filed a no-evidence motion for summary judgment, asserting that it had paid all of Ramirez’s claims and that his lawsuit appeared to be based solely on his extracontractual causes of action, i.e., violations of the DTPA and the Insurance Code for Geico’s alleged delay in making those payments. Geico listed all 17 allegations of Code violations and expressly argued that Ramirez had no evidence to support any of them.

On March 30, 2015, Ramirez filed a written response, listing again the Code provisions he believed Geico had violated, and claimed that there was a "close nexus" between the alleged Code violations and the harm that he allegedly suffered due to Geico’s delay in timely paying his medical bills. He attached his insurance policy; the two letters Geico had sent him on October 4 and 5, 2012, accepting coverage for his accident; and his affidavit. The affidavit alleged that Geico told him that his claim had been "accepted," but it thereafter delayed paying his medical bills, causing him to stop his medical treatment, without proper notice that they were disputing his medical bills. Ramirez further claimed that this left him in a "mental state of fear that [he might] get stuck with medical bills," thereby causing him to "abruptly cease[ ] the on-going chiropractic care." And because his chiropractic care was not completed, he still experienced back pain. For the first time, Ramirez also alleged that he was entitled to damages for mental anguish for Geico’s purported "delay payment scheme." When he discovered Geico’s "scheme," it caused him to feel like a "victim," caused him to feel "fear and panic upon hearing or seeing the word GEICO," and caused him to awake at night in "constant worry as to why GEICO used a delay payment scheme" to force him to stop his medical treatment.

The Hearings on Motion for Summary Judgment

At a hearing held April 6, 2015, the trial court indicated that it was having difficulty understanding the nature of Ramirez’s lawsuit, and that it believed further discovery was needed to help flush out the facts of his case. The trial court then determined that Ramirez had not yet responded to Geico’s deposition notice. The parties agreed on the record that Ramirez would make himself available on May 6, 2015. After warning Ramirez about the dangers of self-representation, the trial court reset the hearing to allow time for his deposition, and any other needed discovery.

The hearing resumed on September 24, 2015. Geico’s attorney represented that he had taken the plaintiff’s deposition. Counsel then informed the court that Ramirez’s claim for damages to the car had been paid, that his medical bills had also been paid under the personal injury protection (PIP) benefits portion of his policy, and that the lawsuit was not based on a breach of the insurance policy. Instead, counsel expressed his opinion that the lawsuit was based solely on extracontractual claims and then argued that there was no evidence to support either of those causes of action. In response, Ramirez acknowledged that his lawsuit was based on the delays in paying the claims. He did not come forward with any additional evidence. The trial court granted summary judgment, dismissing his petition in its entirety.

The Contest to Indigence Affidavit

At the start of the trial court proceedings in September 2014, Ramirez filed an affidavit of inability to pay or give security for costs. Geico did not contest the affidavit. On October 20, 2015, the same day that that he filed his notice of appeal, Ramirez filed a motion of inability to pay or give security for costs, together with an affidavit providing information on his monthly income and expenses. On October 26, 2015, Geico filed a contest, alleging that the affidavit was "defective," as it did not meet the requirements of Rule 20.1 of the Texas Rules of Appellate Procedure, as that Rule existed at the time. Ramirez responded that Geico’s contest was not timely filed, but did not seek leave to amend his affidavit to meet the requirements of the Rule.

On November 2, 2015, the trial court sustained Geico’s contest, finding that the affidavit was defective, and that Ramirez had not proven the allegations contained therein. Again Ramirez failed to request the opportunity to amend his affidavit, nor did he seek our review of the court’s ruling. Ramirez paid the fees owed, and the appeal proceeded.

In his first two issues for review, Ramirez complains that the trial court improperly granted summary judgment relief, and that the court should not have dismissed his extracontractual causes of action. In his third issue, he claims that the trial court improperly granted Geico’s contest to his affidavit of inability to pay costs on appeal.

SUMMARY JUDGMENT

Applicable Law and Standard of Review

Rule 166a(i), which governs no-evidence motions for summary judgment, provides as follows:

After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

TEX.R.CIV.P. 166a(i). In a no-evidence motion for summary judgment, the defendant alleges that adequate time for discovery has passed and that the plaintiff still has no evidence to support one or more essential elements of a claim for which the plaintiff would bear the burden of proof at trial.¹ See Stierwalt v. FFE Transp. Services, Inc., 499 S.W.3d 181, 194 (Tex. App.—El Paso 2016, no pet.) (citing KCM Fin. LLC v. Bradshaw , 457 S.W.3d 70, 79 (Tex. 2015) ). The motion must specifically state the elements as to which the movant contends there is no evidence. TEX.R.CIV.P. 166a(i) ; Timpte Industries, Inc. v. Gish, 286 S.W.3d 306, 310 (...