Texas Farmers Ins. Co. v. Soriano
| Decision Date | 30 November 1992 |
| Docket Number | No. 04-90-00222-CV,04-90-00222-CV |
| Parties | TEXAS FARMERS INSURANCE COMPANY v. Richard R. SORIANO and Auforth, Keas, & O'Reilly. |
| Court | Texas Court of Appeals |
Roger Townsend, Ben Taylor, Fulbright & Jaworski, Houston, W. Wendell Hall, Fulbright & Jaworski, San Antonio, for appellant.
Raymond C. Alexander, Tom C. Hermansen, Hunt, Hermansen, McKibben & Barger, Corpus Christi, Ronald B. Brin, Thomas F. Nye, Lynette Maniss Frederick, Alan J. Couture, Brin & Brin, P.C., Corpus Christi, for appellees.
David E. Chamberlain, Lea & Chamberlain, Austin, amicus curiae.
ON APPELLANT'S AND APPELLEES' MOTIONS FOR REHEARING AND ON
APPELLEES' MOTION FOR REHEARING EN BANC
Before the court en banc.
The motion for rehearing en banc is granted, the opinion of this court dated July 22, 1992 is withdrawn, and the following opinion is substituted therefore.
Richard R. Soriano sued Texas Farmers Insurance Company 1 in Duval County alleging negligence, breach of the duty of good faith and fair dealing, and gross negligence based on several lawsuits wherein Farmers defended Soriano's interests pursuant to an insurance policy. Farmers sought contribution or indemnity from the law firm of Auforth, Keas & O'Reilly, which had represented Soriano in the underlying lawsuits. Based on a jury verdict, the trial judge rendered judgment against Farmers for $520,577.24 in actual damages and prejudgment interest, plus $5,000,000 in exemplary damages. The trial court also ordered a take nothing judgment on Farmers' third party action against Auforth, Keas & O'Reilly.
Facts.
In September of 1979, Richard Soriano and his friend Adolfo Lopez were celebrating following a football game in Duval County. After apparently considerable drinking, Soriano and his passenger, Adolfo Lopez, were involved in a car accident. Just prior to the accident, Soriano tried to pass a truck in rainy weather, and collided head on with another vehicle. 2 Soriano's passenger, Adolfo Lopez, was fatally injured.
The occupants of the oncoming vehicle, which was driven by Mr. Medina, also sustained severe injuries. Mr. Medina suffered serious injuries including broken ribs, a broken jaw, broken feet, and severe head lacerations, while his wife of thirty years was killed in the accident. Additionally, the Medinas' eleven-year-old son sustained three broken teeth, and their twelve-year-old daughter suffered a broken collar bone and facial cuts resulting in permanent scars.
Soriano was insured under his parents' policy with Farmers, which, apparently, consisted of only minimum coverage. Any one injury had limits of $10,000, with the aggregate not to exceed $20,000. Farmers set up tentative reserves of $9,000 for Mr. Medina, $9,000 for the estate of Mrs. Medina, and $1,000 for each of the Medinas' two children. 3 Farmers initially attempted to settle the entire case directly with the Medinas by tendering the entire policy limits of $20,000; however, the Medinas refused the offer at that time and, instead, hired an attorney in order to discover whether or not Soriano possessed any personal assets. Subsequently, the parents of Adolfo Lopez also hired an attorney and filed suit. Farmers hired Fred Auforth to defend Soriano in both lawsuits in compliance with Farmers' duties under the insurance policy.
The two lawsuits were consolidated for trial. As the jury was being selected, Auforth, on behalf of Farmers, settled the Lopez claim for $5,000 without prior notice to the Medinas. Huseman, the Medinas' attorney, testified that he told Auforth that he was willing to settle all of the Medinas' claims for the $20,000 prior to the Lopez settlement, and that none of the Medina claims would be settled for less than the $20,000 originally offered. Farmers asserts that after it settled the Lopez claim, it offered the remaining $15,000 of insurance to the Medinas, who refused the offer and demanded the full original policy limits of $20,000.
The case went to trial and the Medinas recovered a judgment of $172,187 plus interest against Soriano. Soriano then assigned Appellant raises the following points of error:
whatever rights he had against Farmers in exchange for a covenant not to execute. 4 Suit was then filed in Richard Soriano's name against Farmers, wherein various causes of action were alleged, including negligence, gross negligence, and breach of the duty of good faith and fair dealing. A jury subsequently found that Farmers was negligent and grossly negligent in handling the Medina claims and that it had breached its duty of good faith and fair dealing to Soriano.
1. the trial court erred in denying appellant's objections to the charge and in rendering judgment against the appellant because there is no evidence or finding that the Lopez settlement was unreasonable, negligent, or made in bad faith;
2. the trial court erred in denying appellant's Motion for Instructed Verdict, appellant's objections to the charge, in rendering judgment against the appellant, and in overruling appellant's Motions to Disregard Jury Findings and for Judgment Notwithstanding the Verdict because the evidence is legally and factually insufficient to support findings of negligence, gross negligence, proximate cause, and breach of the duty of good faith and fair dealing;
3. the trial court erred in overruling appellant's objections to submission of Special Issue No. 1 because it was unsupported by any written pleading, contrary to the theory the case was tried upon, and calculated to nudge the jury toward its insupportable finding of negligence;
4. the trial court erred in overruling appellant's objections to the instruction submitted under Special Issue No. 3 because it was unsupported by any written pleading and was calculated to confuse the jury into making its insupportable bad faith finding;
5. the trial court erred in overruling appellant's objections to the instruction submitted under Special Issue No. 9 because it erroneously instructed the jury to include, as damages, the full amount of the Webb County judgment, thereby depriving the jury of discretion to award a lesser amount or zero;
6. the trial court erred in rendering judgment against the appellant, in overruling appellant's Motion to Disregard Jury Findings and in overruling appellant's Motion for New Trial or for suggestion of remittitur because the evidence is legally and factually insufficient to support the finding of actual damages;
7. the trial court erred in denying appellant's objections to the charge, in rendering judgment against the appellant, and in overruling appellant's Motion for Judgment Notwithstanding the Verdict because there is no finding and insufficient evidence that any vice principal of the appellant committed conduct for which exemplary damages may be awarded and, alternatively, the answer to Special Issue No. 6 conflicts with the liability findings against the appellant, in which case the trial court erred in overruling appellant's Motion for New Trial;
8. the trial court erred in rendering judgment against the appellant and in overruling appellant's Motion to Disregard Jury Findings, Motion for Judgment Notwithstanding the Verdict and Motion for New Trial because Special Issue No. 4, that the appellant acted intentionally and knowingly, is not supported, either legally or factually, by the evidence;
9. the trial court erred in rendering judgment against the appellant, and in overruling appellant's Motion to Disregard Jury Findings, Motion for Judgment Notwithstanding the Verdict, and Motion for New Trial or for suggestion of remittitur because the evidence is legally and factually insufficient to support the excessive award of $5,000,000 in exemplary damages and further, the exemplary damages awarded violated appellant's right to due process and equal protection under the Texas and federal constitutions, as well as the prohibition against excessive fines contained in Tex. Const. art. I, § 13; and 10. the trial court erred in overruling appellant's Motion to Modify, Correct, or Reform the Judgment because the judgment awards excessive and duplicative interest.
Initially, appellant contends that the trial court erred in denying appellant's objections to the charge and in rendering judgment against it because there is no evidence or finding that the Lopez settlement was unreasonable, negligent, or made in bad faith.
We immediately note that most, if not all, of appellant's points of error are improperly multifarious. Kroger Co. v. Cellan, 560 S.W.2d 505, 507 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.); TEX.R.APP.P. 74. We will, nevertheless, address the issues as we understand them.
Appellant is required to present this court with a record which establishes the error complained of and with a brief which clearly defines the points of error, cites proper authority, and directs the attention of this court to the record where the error is properly preserved. TEX.R.APP.P. 50, 74.
In order to preserve error, "[a] party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection." Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex.1985), citing TEX.R.CIV.P. 274. "A party is [also] confined to grounds of objection stated in the trial court, and will not be able to enlarge his complaint on appeal"; when violated, an "[a]ppellant has waived any complaint regarding the wording of [the] Special Issue [complained of]." Williams v. Union Carbide Corp., 734 S.W.2d 699, 703 (Tex.App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.).
A review of that part of the record cited by appellant for support in accordance with TEX.R.APP.P. 74 reveals that the appellant has improperly enlarged his complaint on appeal. Id. Before the court below, appellant clearly directed its objections to Special Issue No. 1 from the standpoint of whether "the offer of settlement of the Maria Medina...
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