Saenz v. Family Sec. Ins. Co. of America, 04-88-00653-CV
| Decision Date | 21 March 1990 |
| Docket Number | No. 04-88-00653-CV,04-88-00653-CV |
| Citation | 786 S.W.2d 110 |
| Parties | Anna SAENZ, Individually and as Next Friend of Laura T. Saenz, and Linda K. Pesina, Appellants, v. FAMILY SECURITY INSURANCE COMPANY OF AMERICA, Appellee. |
| Court | Texas Court of Appeals |
Humberto G. Garcia, San Antonio, for appellants.
Anthony Icenogle, Karen Key Johnson, DeLeon, Boggins & Richards, Austin, for appellee.
Before REEVES, CHAPA and BIERY, JJ.
This is an appeal brought by Anna Saenz, Individually and as Next Friend of Laura T. Saenz and Linda K. Pesina, from a summary judgment granted in favor of Security Insurance Company of America, appellee.
In appellant's sole point of error, appellants assert that the trial court erred when it granted summary judgment in favor of Family Security Insurance Company of America (hereafter Security Insurance) solely on its pleadings, because the pleadings raise a genuine issue of material fact.
Severando Silva, Security Insurance's employee, was hired to sell life insurance by appellee. Silva sold a life insurance policy to Leonel Saenz, on the life of one of his employees, Mario Alvarez. (Leonel Saenz is Anna Saenz's husband and the father of Laura T. Saenz and Linda K. Pesina). Silva convinced Leonel Saenz to assist him in a plot to murder Mario Alvarez for the purpose of benefitting from the proceeds of Alvarez's life insurance policy. The authorities intervened and arrested both Leonel Saenz and Servando Silva. Both were tried by a jury, convicted and sentenced to a term of confinement in the Texas Department of Corrections.
The details of the conspiracy to commit the murder of Alvarez were totally unknown to appellants until the time of Leonel Saenz's arrest. Appellants alleged in their petition that Silva, an employee of Security Insurance, was acting in the discharge of his employment when he devised a plan in which Leonel Saenz would take an insurance policy out on the life of Mario Alvarez and then murder Alvarez for the insurance proceeds. The knowledge of the plot, details and acts of Silva, appellee's employee, allegedly caused appellants to suffer severe emotional distress.
Appellants assert their cause of action pursuant to Section 46 of the 2nd Restatement of Torts, which states: "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to others results from it, for such bodily harm...."
Security Insurance in its motion for summary judgment specifically indicated how appellants' pleadings were deficient, and this provided appellants with adequate notice of the deficiencies in their pleadings.
Appellee's motion for summary judgment was filed with the court on June 8, 1987. Security Insurance states in its motion the following:
There are no issues as to any material facts.
For the purposes of this motion Defendant [appellee] accepts as true all of the factual allegations contained in the petition filed by Plaintiff[s] [sic] [appellants].
The defendant is entitled to a judgment as a matter of law because the facts as plead by plaintiffs negate plaintiffs' cause of action.... The actions of Defendant Silva as plead by Plaintiffs if taken as true are clearly as a matter of law outside the scope and course of employment. (Emphasis added).
On August 21, 1987, the court held a hearing on appellee's motion for summary judgment. The court signed the order granting appellee's motion for summary judgment on September 2, 1987.
No special exceptions were filed, nor were any requested. Generally, a plaintiff will be given an opportunity to amend his pleading before a summary judgment will be rendered on plaintiff's pleading. Steele v. City of Houston, 603 S.W.2d 786, 788 (Tex.1980); Texas Department of...
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Summary judgment practice
...exception to this rule is when the plaintiff’s own pleadings negate a cause of action. See, e.g., Saenz v. Family Sec. Ins. Co. of Am. , 786 S.W.2d 110, 111 (Tex. App.—San Antonio 1990, no writ) (a plaintiff can plead himself out of court by affirmatively negating his cause of action). For ......
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Summary Judgment Practice
...exception to this rule is when the plaintiff’s own pleadings negate a cause of action. See, e.g., Saenz v. Family Sec. Ins. Co. of Am. , 786 S.W.2d 110, 111 (Tex. App.—San Antonio 1990, no writ) (a plaintiff can plead himself out of court by affirmatively negating his cause of action). For ......
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Summary Judgment Practice
...exception to this rule is when the plaintiff’s own pleadings negate a cause of action. See, e.g., Saenz v. Family Sec. Ins. Co. of Am. , 786 S.W.2d 110, 111 (Tex. App.—San Antonio 1990, no writ) (a plaintiff can plead himself out of court by affirmatively negating his cause of action). For ......
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Table of cases
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