Transportation Ins. Co. v. Moriel

• Decision Date: 03 July 1991
• Docket Number: No. 08-90-00313-CV,08-90-00313-CV
• Citation: 814 S.W.2d 144
• Court: Texas Court of Appeals
• Parties: TRANSPORTATION INSURANCE COMPANY, Appellant, v. Juan Carlos MORIEL, Appellee.

Page 144

814 S.W.2d 144

TRANSPORTATION INSURANCE COMPANY, Appellant, v. Juan Carlos MORIEL, Appellee.

No. 08-90-00313-CV.

Court of Appeals of Texas El Paso.

July 3, 1991.

Rehearing Overruled July 31, 1991.

Victor F. Poulos, Mayfield and Perrenot, El Paso, Charles I. Hadden, Peter G. Thompson, Ross, Dixon & Masback, Washington, D.C., for appellant.

C.R. Kit Bramblett, Bramblett & Bramblett, Susan Larsen, El Paso, for appellee.

Before FULLER, WOODARD and KOEHLER, JJ.

OPINION

WOODARD, Justice.

This is an appeal from a judgment based upon a jury award to the Appellee of $101 thousand compensatory damages and $1 million in punitive damages resulting from the insurance company's breach of its duty to deal fairly and in good faith with reference to a prior worker's compensation claim. We affirm.

The jury found that the Company had unreasonably delayed payment of Mr. Moriel's medical bills, and that such delay had amounted to a heedless and reckless disregard of Moriel's rights.

Points of Error Nos. One and Seven contend that the finding by the trial court of "uncertain" liability by the Company, and Moriel's admission of "uncertain" liability, precludes damages for mental anguish and punitive damages as a matter of law because failure to pay an uncertain liability cannot be heedless and reckless conduct.

Mental anguish damages are recoverable when there is proof of a willful tort, willful and wanton disregard or gross negligence. Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115 (Tex.1984).

Moriel had won an award from the Industrial Accident Board (IAB). The Company appealed to the trial court and Moriel counterclaimed that the Company had failed to pay medical expenses. The trial court had entered a prior partial judgment based upon a settlement agreement arrived at between the parties. The pertinent part of the judgment recited:

And it appearing to the Court that the extent of the injury and liability for compensation or medical expenses are uncertain and that under the agreement of settlement, Plaintiff TRANSPORTATION INSURANCE COMPANY, is to pay....

The partial judgment subsequently expressly decreed that "all liability of any character" arising out of claims made pursuant to allegations of bad faith and unpaid or delayed payments of medical bills are excluded. The trial court's opinion regarding "uncertainty" is merely a preamble recital and not controlling when there is conflict between the preliminary recital and the decretal portion of the judgment. George Thomas Homes, Inc. v. Southwest Tension Systems, Inc., 763 S.W.2d 797 (Tex.App.--El Paso 1988, no writ). It is in conflict with the decretal part of the judgment, as the essence of the plaintiff's separated action is that the medical bills were "certain," and the Company, in bad faith, delayed payment of them. For the trial court to find the liability for the medical bills to be "uncertain" as a matter of law on the one hand and then decree that an action may be brought based upon the "certainty" of the medical bills on the other hand is conflictive. Although it has been held that the court is to apply the same standard as the IAB when reviewing settlement agreements in worker's compensation cases, and that an essential element in approving the settlement agreement was a determination of whether the insurer's liability or the extent of the injury was uncertain, indefinite or incapable of being determined [Price v. Texas Employers' Insurance Association, 782 S.W.2d 938 (Tex.App.--Tyler 1988, no writ) ], it was stated in the judgment that both were uncertain. As the judgment ordered the full medical bills in question to be paid, then allowed for an action based upon its failure to pay, it was obvious that some question as to the extent of the injury allowed the trial court to approve the settlement in keeping with Price, if Price was complied with.

The Appellant relies on the language by this Court in a somewhat similar case, National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Dominguez, 793 S.W.2d 66 (Tex.App.--El Paso 1990, writ denied), to wit:

Although we have previously concluded Appellant had waived the defenses of judicial admission and equitable estoppel, the fact remains that Dominguez agreed that Appellant's liability was indefinite, uncertain and incapable of being exactly established and determined, precluding conscious indifference on the part of Appellant. Id. at 74.

The settlement agreement between the parties in the case before us is not in evidence. There is no evidence that Moriel agreed that the Company's liability was uncertain.

Justice Koehler, in his following dissent, states that Moriel agreed that the medical bills were "uncertain" by his attorney's unqualified approval of the judgment. We respectfully disagree. A consent judgment is in most respects the same as a contract between the parties and is ordinarily to be construed as such. Heights Funeral Home v. McClain, 288 S.W.2d 839 (Tex.Civ.App.--Beaumont 1956, writ ref'd n.r.e.). The intentions of the parties in such instances may be determined from the recitations of the judgment itself. Id. The previous reasoning used in differentiating the preamble recitation from the decretal provisions applies here. Assuming arguendo that an expressed impression formed by the trial judge--perhaps based upon evidence and perhaps not--creates the possibility of a contractual duty, this "term" of contract is surplusage. For the parties to agree that the medical bills were "uncertain," and then agree that they may proceed to litigate whether the medical bills were "uncertain" is inconsistent with the intent of the instrument. The contractual view of the judgment as a whole renders the "term" of "uncertainty" inadvertent surplusage as to the payment of the medical bills.

Estoppel by judgment operates on issues of fact and issues of law. The determination of the particular issue must have been essential to the support of the prior judgment. The particular issue must have been actually determined by the prior judgment, or else must have been necessarily involved in the determination made. The estoppel applies whether the issue is determined by agreement or by the tribunal to which it has been submitted. The determination made by the prior judgment need not have been right.

Heights Funeral Home v. McClain, 288 S.W.2d at 843. When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. Restatement (Second) of Judgments, § 27 (1982). If issues are determined but the judgment is not dependent upon the determinations, relitigation of those issues in a subsequent action between the parties is not precluded. Id. at 258. An agreed judgment serves as an estoppel in a subsequent action only as to those facts actually and necessarily decided. Dominguez, 793 S.W.2d at 71. As pointed out by Justice Koehler in the same paragraph, if the judgment does not recite that the trial court had heard evidence and expressed its opinion that the liability and extent of injuries were indefinite, uncertain and incapable of being established before approving the settlement, there is no conclusion of actual litigation of the question or opportunity for waiver by trial by consent. There is no recitation in the judgment that the trial court heard evidence in this case. Points of Error Nos. One and Seven are overruled.

In that the remaining points of error concern legal and factual insufficiency assertions, we set forth here the standards of review we apply to such points to avoid repetition under each of them. In considering a "no evidence" legal insufficiency point, we consider only the evidence which tends to support the jury's findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). A factual insufficiency point requires us to examine all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The reviewing court cannot substitute its conclusions for those of the jury. If there is sufficient competent evidence of probative force to support the finding, it must be sustained. Carrasco v. Goatcher, 623 S.W.2d 769 (Tex.App.--El Paso 1981, no writ). It is not within the province of the court to interfere with the jury's resolution of conflicts in the evidence or to pass on the weight or credibility of the witness's testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951). Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508 (1947); Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820 (1947).

Point of Error No. Two alleges factual and legal insufficiencies to support the jury's finding of heedless and reckless disregard of Moriel's rights by the Company.

Moriel received a job related injury on March 15, 1986, when a stack of countertops fell on him in an El Paso hardware store. Moriel sustained a fractured pelvis, a broken left wrist and broken ribs.

Some ten days later, the Company's adjuster visited Moriel in the hospital and then arranged compensation for lost wages. He recommended that the insurance company set aside money to cover lost wages and medical expenses.

After Moriel was discharged from the hospital, he lost sensation in one of his legs. He was sent back to the hospital for testing on an outpatient basis, incurring an additional $382.25 charge by Providence Hospital. The Company paid the firstly incurred hospital charges of $6,706.30, but failed to pay the latter until over one year later. In the interim,...