Transport Ins. Co. v. Faircloth

• Decision Date: 27 May 1993
• Docket Number: No. 09-92-118,09-92-118
• Parties: TRANSPORT INSURANCE COMPANY, Lindsey & Newsom Claims Services and Janet E. Jones, Appellants, v. Paula Trippel FAIRCLOTH, Appellee. CV.
• Court: Texas Court of Appeals

Page 926

861 S.W.2d 926

TRANSPORT INSURANCE COMPANY, Lindsey & Newsom Claims Services and Janet E. Jones, Appellants, v. Paula Trippel FAIRCLOTH, Appellee.

No. 09-92-118 CV.

Court of Appeals of Texas Beaumont.

May 27, 1993.

As Corrected Sept. 17, 1993.

Arthur K. Smith, Calhoun & Stacy, Dallas, for appellant.

George E. Chandler, Lufkin, John E. Kinney, Woodville, David Porter, Porter & Duran, Lufkin, William W. Kilgarlin, Powell, Popp & Ikard, Austin, L. Brent Farney, Law Offices of George Chandler, Lufkin, for appellee.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

BROOKSHIRE, Justice.

Paula Trippel Faircloth, as plaintiff, filed a suit in the District Court of Tyler County. The appellants here were named defendants. In a jury trial, Paula Faircloth received a favorable jury verdict. The jury's answers were supportive of a judgment based on different causes of actions under different theories of recovery. After verdict, Paula basically moved for relief and judgment under TEX.INS.CODE ANN. art. 21.21 (Vernon 1981 and Vernon Supp.1993).

Paula's theory of her case was that on May 15, 1984, Judith and Marvin Kervin were wrongfully killed when struck by a Transport insured Allied truck. The allegations were that the truck came across the center stripe of U.S. Highway 69 at a point north of Woodville, colliding with an oncoming motor vehicle in which the Kervins were riding. A fundamental thrust of the present litigation was that Transport and its agents and representatives engaged in a course of conduct which resulted in (allegedly) grossly underpaying Paula the true value of her claims and losses. Paula's petition also recited that the several defendants engaged in certain acts and courses of conduct that defrauded Paula.

Concerning parentage, Paula has never claimed that Marvin Kervin was her natural father. Her position was that Marvin was just like a Daddy to her and the only Daddy she had ever known. A birth certificate exists. This birth certificate reflects that Judith Kervin is Paula's mother.

Immediately subsequent to the May 1984 collision, Transport engaged Lindsey & Newsom Claim Services as adjusters and investigators to investigate and look into the collision and to manage any potential liability damage claims. Lindsey & Newsom speedily dispatched one of its adjusters and investigators to make the investigation for Transport. This person was one Janet E. Jones. Ms. Jones, after looking into the relevant matters and surrounding circumstances, concluded that Paula was the daughter of Judith Kervin. Paula at the time, after May 15, 1984, was orphaned--a double orphan at her age of 15. Ms. Jones then commenced the process of settling and adjusting Paula's claims for damages against Transport. Paula has alleged that Ms. Jones' actions and conduct were authorized by Transport.

Paula filed several amended original petitions. In her live pleadings she complained of Transport Insurance Company, Troy Caldwell, individually and in his fiduciary capacity as the guardian of Paula, Lindsey & Newsom Claim Services, Janet E. Jones, and other defendants.

After pleading numerous definitions and statutes, Paula alleged that she was a consumer under TEX.BUS. & COMM.CODE ANN. § 17.41 et seq. (Vernon 1987), known as the Texas Deceptive Trade Practices-Consumer Protection Act. She further alleged that Transport and some of the other defendants violated her rights under TEX.INS.CODE ANN. art. 21.21-2 (Vernon Supp.1993).

The allegations concerning factual matters were lengthy and in detail. Paula's allegations include a description of a scene at the funeral home, where Paula was making the arrangements for the funeral services of her loved ones. This scene took place within 24 hours of the fatal collision. Paula alleged that she was approached by Ms. Jones who allegedly identified herself as an insurance adjuster who was working for Lindsey & Newsom, who in turn were looking after the affairs of Transport. Paula asserted that Ms. Jones commenced talking to Paula about the fact that all claims for damages for the deaths needed to be immediately settled. Paula then alleged that Ms. Jones stated that if these claims were not settled very early that probably Paula would not recover any damages. These allegations are set out in Paula's trial pleadings.

Paula claimed that she was in an extreme emotional state at the time and was totally unfamiliar with legal matters. The next day or so the defendant, Caldwell, a friend, introduced Paula to an attorney at law residing in east Texas. The funeral services for Marvin and Judith were conducted on May 20, 1984. On May 22nd the attorney for the friend and defendant Caldwell caused to be filed an application for the appointment of Troy Caldwell to act as temporary guardian of the person and estate of Paula Marie Trippel, now Mrs. Faircloth. Paula alleged that she was improperly induced to execute a selection of a guardian. She, under the circumstances, selected Caldwell. On the same day, May 22nd, a county court entered an order appointing Caldwell as the temporary guardian of the estate and person of Paula.

On the same date the county court approved and authorized a fee arrangement between Caldwell as guardian, and an attorney, Askins. The attorney was to receive one-third of the settlement proceeds. Caldwell filed an initial bond of $1,000 as temporary guardian. Paula alleged that each of the defendants named was aware of the application of Caldwell to be appointed temporary guardian. No record in the nature of a statement of facts was made of the proceedings with respect to this application for the appointment of a temporary guardian.

In mid-June 1984 the temporary guardian filed his application to be made the permanent guardian. On June 19, 1984, an order was entered appointing Caldwell as the permanent guardian. On that same date a settlement was entered into by and between Transport and the guardian, settling the claims of Paula. The settlement amount was $250,000. The county court entered an order approving such a settlement on the same date, June 19, 1984. The guardian's bond was increased to $20,000. No record in the nature of a statement of facts was made of the proceeding involving the appointment of a permanent guardian or the setting of the bond. No guardian ad litem was appointed. No attorney ad litem was appointed. The settlement proceeding was not recorded.

Paula further alleged that on the same date, June 19, Caldwell in his capacity as permanent guardian executed a full and complete release of all her claims.

Paula averred that she was of such a tender age that she could not bind herself to any of the terms or conditions of the said release of the various defendants. She maintained that the attempted settlement was grossly inadequate and that she was not in any mental state emotionally, intellectually or otherwise to be engaged in such settlement matters so soon after the death of her loved ones; and that several of the defendants, namely, Transport, Caldwell, Jones, and others collectively took unfair advantage. She asserted she was entitled to a district court hearing with a guardian ad litem or an attorney ad litem to independently and adequately represent her welfare and her long range interest. Paula claimed she needed protection from her guardian.

Paula averred that the defendants acted in concert and that the defendants had a duty to deal with her fairly under the facts and that they violated this duty. Paula pleaded for relief under numerous statutes and theories of recovery, including the DTPA. She especially alleged that Transport, Caldwell, Lindsey & Newsom, and Jones represented to her (immediately after the funeral) that if she took her claim for the death of her parents to court she would, in all probability, receive nothing--and in any event, would receive far less than the settlement offer of $250,000. Paula states that $250,000 was grossly inadequate and that these defendants engaged in other misleading and other deceptive acts and practices, specifically violating DTPA, § 17.46, in various aspects and that the defendants engaged in unconscionable action and courses of action entitling Paula to recover damages under DTPA § 17.50 and further, that Paula was entitled to recover under the provisions of art. 21.21 of the Texas Insurance Code.

Other causes of action were pleaded by Paula including, inter alia, actions based on fraud, duress, bad faith conduct, wrongful conspiracy. In separate paragraphs, Paula alleged that the defendants had breached the duty to deal in good faith and to deal fairly and that the defendants breached fiduciary duties and that each of the defendants acted with fraud, oppression, and malice, and that the plaintiff was therefore entitled to recover punitive damages. Paula petitioned for attorney's fees and various other relief.

Paula alleged that her guardian, Caldwell, had not taken his oath and the bond of the guardian was not filed in the office of the County Clerk until these filings were made on July 13, 1984, being after the attacked settlement was consummated. Caldwell has been described as a part-time minister. Caldwell and his daughter had known Paula to some degree. Paula began living in Caldwell's house. Paula pleaded that the defendants and their employees, agents, attorneys, and other representatives knowingly dealt with Paula as a claimant and knowingly undertook negotiations with her and knowingly lead her into an unfair and grossly inadequate settlement. Paula averred that these defendants and others had a duty to deal with her, a fifteen-year old, fairly under the facts and circumstances. And she maintained that this duty existed at common law and under the defendants' own policies, procedures and standards, as well as the Unfair Claim Settlement Practices Act, TEX.INS.CODE ANN. art. 21.21-2, and by other statutory enactments. The plaintiff set out that the defendants...