Shaw v. National County Mut. Fire Ins. Co., 01-86-0320-CV

• Decision Date: 30 December 1986
• Docket Number: No. 01-86-0320-CV,01-86-0320-CV
• Citation: 723 S.W.2d 236
• Parties: Shelly SHAW, Appellant, v. NATIONAL COUNTY MUTUAL FIRE INSURANCE CO., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 236

723 S.W.2d 236

Shelly SHAW, Appellant, v. NATIONAL COUNTY MUTUAL FIRE INSURANCE CO., Appellee.

No. 01-86-0320-CV.

Court of Appeals of Texas Houston (1st Dist.).

Dec. 30, 1986.

Roy W. Smith, Smith, Howard & Watson, Houston, for appellant.

Marc A. Young, Law Offices of Kenneth N. Knox, Houston, for appellee.

Before DUGGAN, COHEN and DUNN, JJ.

OPINION

DUNN, Justice.

Appellant, Shelly Shaw (Shaw) appeals an instructed verdict for appellee, National County Mutual Fire Insurance Co. (National), in the amount of $1,391.98. We affirm.

National insured Shaw's automobile, which was involved in a three-car accident. National paid Shaw $1,391.98 for her property damage. Shaw also recovered $1,689.66 for property damage from Hartford Insurance Company, which insured another car in the accident, and released Hartford from all liability. On learning of the Hartford recovery, National sued Shaw to recover the $1,391.98 it had paid her. In its original petition, National asserted:

The Defendant has been paid twice for the damages to her vehicle, and by signing a Release for the Hartford Insurance Company, prevented the Plaintiff from seeking damages against the responsible party.... The Defendant, by signing a Release, violated the terms of her insurance policy and prevented Plaintiff from making a recovery from the responsible party.

Shaw admitted during trial that she released Hartford with knowledge that the release terminated her own and National's rights against any third party for claims arising from the accident. Shaw also admitted in response to National's first requests for admissions:

1. That she had a policy of insurance in effect on June 27, 1982, with National;

2. That the policy had a provision covering property damage to her automobile;

3. That the policy insured a 1980 Chevrolet vehicle;

4. That she was involved in an automobile accident on June 27, 1982 and made a claim under the policy for damage to her vehicle;

5. That she was paid $1,391.98 by National for the damage to her vehicle caused by the accident;

6. That she was paid $1,689.66 by Hartford for the damage to her vehicle as a result of the accident of June 27, 1982;

7. That she signed a release when she received this money from Hartford releasing any cause of action that she might have as a result of this accident;

9. That on or about October 11, 1984, demand was made upon her by National to refund the amount National had paid her;

11. That the money received from National and Hartford was for the damage to her vehicle that occurred on June 27, 1982.

National also submitted a second request for admissions to Shaw. Before considering Shaw's points of error one and two relating to whether the trial court properly granted an instructed verdict, we must first address the effect of her failure to timely file answers to National's second request for admissions, number 1 and 2, set out below:

(1) Shelly Shaw has not refunded any portion of the One Thousand Three Hundred Ninety-One and 98/100 Dollars ($1,391.98) received by her from National County Mutual Fire Insurance Company.

(2) Shelly Shaw owes National County Mutual Fire Insurance Company One Thousand Three Hundred Ninety One and 98/100 Dollars ($1,391.98) as a result of receiving payments from both The Hartford Insurance Company and National County Mutual Fire for the damage to her vehicle as a result of the collision of June 28, 1982.

Appellant was served this request for admission on October 30, 1985, as is evidenced by her attorney's acknowledgement of receipt on the "green card," which is a part of this record. The record contains a certificate of service by appellant's attorney that the answers to the admissions were mailed to National by certified mail on December 3, 1985. The certificate of service signed by appellant's attorney complies with Tex.R.Civ.P. 21a. Such a certificate is prima facie evidence of the date of service, i.e., December 3, 1985, and it is self-evident that appellant's admissions 1 and 2 were not timely answered, the expiration of the 30 days being November 30, 1985. See Costello v. Johnson, 680 S.W.2d 529, 531 (Tex.App.--Dallas 1984, writ ref'd n.r.e.); Tex.R.Civ.P. 21a.

When appellant did not timely answer the request for admissions, or move for more time to answer, they were deemed admitted by operation of Tex.R.Civ.P. 169. This is so whether or not the district court signed an order deeming the request admitted. Packer v. First Texas Savings Association, 567 S.W.2d 574 (Tex.Civ.App.--Eastland 1978, writ ref'd n.r.e.). If Shaw did not desire to have the request for admissions deemed admitted, it was her responsibility, not National's, to file a motion and seek a hearing. Id.

We find that the...