Spencer v. Eagle Star Ins. Co. of America

• Decision Date: 09 February 1994
• Docket Number: No. C-9469,C-9469
• Parties: Charles SPENCER D/B/A Natural Furniture Store et al., Petitioners, v. EAGLE STAR INSURANCE COMPANY OF AMERICA, Respondent.
• Court: Texas Supreme Court

Page 154

876 S.W.2d 154

Charles SPENCER D/B/A Natural Furniture Store et al., Petitioners, v. EAGLE STAR INSURANCE COMPANY OF AMERICA, Respondent.

No. C-9469.

Supreme Court of Texas.

Feb. 9, 1994. ^*

Mark Kincaid, Austin, for Nat. Furniture Store.

Joe Longley and Tim Labadie, Austin, for Charles Spencer.

Randy Nelson, Roger D. Higgins, Belinda Vrielink, and Patrick Stolley, Dallas, for Eagle Star Ins. Co.

Justice HECHT delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice GONZALEZ, Justice HIGHTOWER, Justice CORNYN and Justice ENOCH join.

We withdraw our opinion of June 30, 1993, substitute the following in its stead, and overrule respondent's motion for rehearing.

The issue we address in this case is whether error in the instruction accompanying a jury question on liability for an "unfair practice in the business of insurance" made the question immaterial or merely defective. If the question is immaterial, the trial court properly disregarded the jury's affirmative answer and rendered judgment notwithstanding the verdict for the defendant. But if the question and instruction are merely defective, defendant is entitled only to a new trial. The court of appeals held that the jury question was immaterial and affirmed the trial court's judgment. 780 S.W.2d 837. We disagree and therefore reverse the judgment of the court of appeals and remand the case for a new trial.

As proprietors of the Natural Furniture Store, the Spencers were insured by Eagle Star Insurance Company against loss of the store's contents and interruption of its business. After the store was destroyed by fire, an investigator hired by Eagle Star reported that the fire had been intentionally set inside the store, and that the fire department's chief suspect was Charles Spencer. Spencer was never charged with any offense in connection with the fire.

While the investigation was pending, Eagle Star made no payments to the Spencers, and as a result, the Spencers claim, they were unable to reopen their business, service their bank loan, or resume their rent payments for the store after the fire-damaged areas were repaired. The Spencers hired an attorney and complained to the State Board of Insurance that Eagle Star had not responded to their agent's requests for information on the status of their claim and had not paid them anything under their policy. The Board forwarded their complaint to Eagle Star. Two days later, and more than five months after the fire, Eagle Star agreed to pay the full policy limits for coverage of the store's contents. The Spencers also demanded the policy limits for business interruption coverage. After Eagle Star decided that the Spencers were entitled to only a lesser amount, which it offered to pay, the Spencers sued Eagle Star for breach of contract, breach of the common law duty of good faith and fair dealing, and violations of the Texas Deceptive Trade Practices--Consumer Protection Act, TEX.BUS. & COM.CODE §§ 17.41-.63, ¹ Texas Insurance Code art. 21.21, ² and Board of Insurance Orders 41060 ³ and 41454. ⁴ After the Spencers filed suit, Eagle Star paid them the amount it had determined was due.

The trial court submitted two questions to the jury regarding Eagle Star's liability. Question 1A asked whether Eagle Star's handling of the Spencers' claim for loss of earnings was an "unfair practice in the business of insurance" defined by an accompanying instruction as "any act or series of acts which is arbitrary, without justification, or takes advantage of a person to the extent that an unjust or inequitable result is obtained." Question 1B asked whether Eagle Star had engaged in unconscionable conduct as defined in section 17.45(5)(A) of the DTPA. Eagle Star objected to the questions and instructions on the grounds that neither question "is based upon a cause of action recognized under Texas law," and "more specifically ... that [Question 1A] permits the jury to determine what duty, if any, is owed to the Spencers, which is a question of law for the Court, and not one of fact for the jury." The jury answered Question 1A "yes" and Question 1B "no". The trial court granted Eagle Star judgment notwithstanding the verdict on the ground that Question 1A was insufficient to support recovery by the Spencers. The court of appeals affirmed.

A trial court may disregard a jury finding only if it is unsupported by evidence, a condition not met in this case, or if the issue is immaterial. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966). A question is immaterial when it should not have been submitted, or when it was properly submitted but has been rendered immaterial by other findings. Id. A question which calls for a finding beyond the province of the jury, such as a question of law, may be deemed immaterial. 4 ROY W. MCDONALD, TEXAS CIVIL PRACTICE IN DISTRICT & COUNTY COURTS § 17.31 (1984 & Supp.1988).

Both lower courts correctly held that Question 1A was defective. When liability is asserted based upon a provision of a statute or regulation, a jury charge should track the language of the provision as closely as possible. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 937 (Tex.1980), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980). The charge here fails this test. Although the language of Question 1A--"unfair practice in the business of insurance"--appears to have been taken from TEX.INS.CODE art. 21.21, § 16(a), that statute by its express terms does not refer to every such practice imaginable but only to those specified by certain other statutes and regulations. Supra note 2. Without an instruction specifying the actions for which Eagle Star could be liable, Question 1A was improper. The instruction which accompanied Question 1A did not meet this requirement. It allowed the jury to find an unfair insurance practice based upon any action by Eagle Star that took advantage of the Spencers and resulted in an inequitable result. Liability cannot be imposed on any of the claims asserted by the Spencers on so broad and ill-defined a finding.

However, Question 1A plainly attempted to request a finding on a statutory cause of action, and while it was defective, it was not immaterial. To the contrary, it was the heart of the Spencers' case. Since Question 1A was material, the trial court could not disregard the jury's answer and render judgment notwithstanding the verdict. But because the charge was defective, and Eagle Star properly objected, it is entitled to a new trial. See generally State Dept. of Highways v. Payne, 838 S.W.2d 235 (Tex.1992).

As we held in Moulton v. Alamo Ambulance Serv., Inc., 414 S.W.2d 444, 449-50 (Tex.1967), an objection is sufficient to preserve error in a defective instruction. A request of substantially correct language is not required. The applicable rule is Rule 274, TEX.R.CIV.P., which states in part:

A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.

Eagle Star's objection fully complied with this rule.

The trial court was authorized only to grant a new trial, not to render judgment notwithstanding the verdict. Eagle Star and two amici curiae argue that in these circumstances judgment should be rendered against the Spencers, just as judgment was rendered against the plaintiffs in Payne. Payne is distinguishable. There, plaintiffs refused to submit a theory of recovery; here, plaintiffs submitted their theory defectively. In Payne, plaintiffs abandoned one basis of liability by refusing to submit it over defendant's objection; here, plaintiffs never abandoned their statutory claim but requested an improper submission of it to the jury. Inasmuch as the trial court should have granted a new trial, the same relief should be granted on appeal. See TEX.R.APP.P. 81(c), 184.

In other cases cited by Eagle Star and the amici, the party suffering rendition failed to submit any jury question on a controlling issue. See Cosgrove v. Grimes, 774 S.W.2d 662, 666 (Tex.1989) (rejecting plaintiff's argument that jury findings on attorney's failure to exercise "reasonable and ordinary care" supported recovery for DTPA claim based on breach of implied warranty), reversing and affirming in part 757 S.W.2d 508 (Tex.App.--Houston [1st Dist.] 1988) (noting that plaintiff failed to submit any issues supporting his DTPA claim). See also Woods v. Mercer, 769 S.W.2d 515, 518 (Tex.1988) (plaintiff neither pleaded nor requested jury findings on discovery rule). Another cited case, W.O. Bankston Nissan, Inc. v. Walters, 754 S.W.2d 127 (Tex.1988), is also distinguishable. Plaintiff, who bought a truck represented to be a year newer than it was, obtained as his only findings pertinent to actual damages, an amount for the fair market value of the car traded in. He failed, as the Court noted, to submit a proper measure of damages, for either the loss of the benefit of the bargain--the truck as represented and as received--or his out-of-pocket losses. The Court concluded first, however, that plaintiff had failed to meet his burden of proof, by showing his losses under either measure of damages.

Eagle Star and the amici argue that to remand this case for a new trial punishes Eagle Star, even though it objected to the improper charge, and gives the Spencers "a second bite at the apple". They argue that a remand only encourages plaintiffs to request submission of erroneous charges in hopes of a favorable verdict, knowing that their only risk is a new trial. The first answer to this argument is that submission of the charge is the trial court's responsibility, and the consequences of the trial court's error should not fall unduly upon plaintiffs. Further, even if plaintiffs controlled submission of the charge, the...