Trevino v. Allstate Ins. Co.
| Decision Date | 25 January 1983 |
| Docket Number | No. 05-81-01347-CV,05-81-01347-CV |
| Citation | 651 S.W.2d 8 |
| Parties | Virginia TREVINO, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Robert E. Barfield, Amarillo, for appellant.
Arlen D. Bynum, Dallas, for appellee.
Before GUITTARD, C.J., and AKIN and STEPHENS, JJ.
Virginia Trevino brought this suit as a third-party beneficiary on a policy of homeowner's liability insurance issued by Allstate Insurance Company to Patrick Henry. She alleges that she was injured by the negligent horseplay of the insured Henry and that Henry's liability to her has been established by the allowance of her claim in the bankruptcy court. The present trial was before the trial court on an agreed statement of facts. The court rendered judgment for Allstate, and Trevino contends on this appeal that the agreed evidence shows as a matter of law that the insured had become "legally obligated to pay" the amount sued for as damages because of "bodily injury" within the terms of the policy. Allstate contends that all conditions precedent to recovery on the policy had not been performed and that as a matter of law the insured had not become "legally obligated to pay" the amount sued for as damages within the terms of the policy. We agree that Trevino has failed to plead and to prove that all conditions precedent to recovery had occurred or had been performed. Consequently, we affirm.
According to the agreed evidence, Trevino was injured on or about April 20, 1976, as a result of an act of horseplay on the part of the insured Henry, who had a policy of homeowner's insurance issued by Allstate. Trevino gave notice to Allstate of her intention to file a suit against Henry, and she did file in the District Court of Randall County a suit alleging that her injury was proximately caused by Henry's negligence. Henry did not "tender the defense" of the suit to Allstate, and Allstate did not participate in defending it. Before the Randall County suit could be tried, Henry filed a petition for voluntary bankruptcy. Trevino filed in the bankruptcy proceeding a proof of claim alleging that further prosecution of the Randall County suit had been stayed on account of the bankruptcy and that Henry was liable to her as alleged in the petition in the Randall County suit, a copy of which was attached. The bankruptcy judge signed an order allowing this claim in the amount of $10,000, reciting that the bankrupt, though properly notified of the hearing, did not appear and that no other parties at interest had filed or expressed any objection to the allowance of the claim. The order further recites that after hearing evidence and argument of counsel, the court finds that claimant Trevino had been damaged and injured by the bankrupt Henry in the amount of $10,000.
The agreed evidence in the present suit shows that Allstate had no notice of the filing of the petition in bankruptcy or of Trevino's action in the bankruptcy court and was not a party to that action. The suit in Randall County was never tried, but was dismissed for want of prosecution after the bankruptcy petition was filed.
On appeal, Allstate contends that all conditions precedent to recovery on the policy had not been performed. Specifically, Allstate complains that the insured Henry failed to forward suit papers to Allstate as required by the policy.
Trevino did not plead specifically that suit papers had been forwarded, nor did she plead generally that all conditions precedent to recovery had occurred or been performed, as authorized by rule 54 of the Texas Rules of Civil Procedure. Tex.R.Civ.P. 54. Allstate answered with a general denial. The only evidence in the record relative to this issue is the stipulation that Henry did not "tender the defense" of the Randall County suit to Allstate.
The relevant portion of the policy states that "the Insured shall, if claim is made or suit is brought against the Insured, forward to the Company every demand, notice, summons or other process received by him ...." The policy further provides, "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with ...." A similar policy provision requiring the forwarding of suit papers has been held to establish a condition precedent to recovery on the policy. 1 Weaver v. Hartford Accident & Indemnity Co., 570 S.W.2d 367, 369 (Tex.1978); Members Mutual Ins. Co. v. Cutaia, 476 S.W.2d 278, 278-79 (Tex.1972).
A condition precedent to the right to maintain an action must be performed and "the fact of performance or excuse of nonperformance must be alleged and proved in order to warrant a recovery." Southwestern Associated Telephone Co. v. City of Dalhart, 254 S.W.2d 819, 825 (Tex.Civ.App.--Amarillo 1952, writ ref'd n.r.e.). When a plaintiff avers generally that all conditions precedent have been performed, he is required to prove the performance of only those conditions precedent specifically denied by the defendant. The effect of this rule is to shift the burden of pleading to the defendant, but not the burden of proof, when the plaintiff has made a general allegation that all conditions precedent have been performed.
Trevino makes no specific allegations that the insured forwarded the suit papers as required by the policy, nor does she make a general allegation that all conditions precedent have been performed. In the absence of any pleading by Trevino of the performance of all conditions precedent, rule 54 did not cast on Allstate the burden to specifically plead the failure to perform any condition precedent. The burden to both plead and prove the performance of conditions precedent remained with Trevino.
We recognize that since Allstate made no objection to Trevino's pleadings before the judgment was signed, it waived any objection to Trevino's pleadings. Tex.R.Civ.P. 90. Nevertheless, waiver of pleading of a fact essential to the cause of action does not constitute waiver of proof of that fact. See Northrup v. O'Brien, 474 S.W.2d 614, 617 (Tex.Civ.App.--Dallas 1971, no writ); Great Southwest Life Insurance Co. v. Camp, 464 S.W.2d 702, 704 (Tex.Civ.App.--Fort Worth 1971, no writ); Gottschalk v. Gottschalk, 212 S.W.2d 223, 225 (Tex.Civ.App.--Austin 1948, no writ). Therefore, we must examine the record to determine whether the trial court correctly held that Trevino had failed to meet her burden of proof.
Our examination of the record reveals that the only evidence which might be relevant to this issue is the stipulation that the insured did not "tender the defense" of the Randall County suit to Allstate. This does not constitute affirmative evidence that suit papers were forwarded to Allstate and, in fact, could be interpreted to be an admission by Trevino that suit papers were not forwarded. Under this record, Trevino has not met her burden of proof on an essential element of her cause of action and the presumption contained in rule 54 is inoperative to relieve Trevino of this burden. Consequently, the trial court correctly rendered judgment for Allstate.
Affirmed.
In her motion for rehearing, Trevino contends that Allstate cannot rely on the policy provisions requiring the insured to forward suit papers because this provision was not put in issue in the trial court. She insists that she had no burden to show compliance with this provision unless it was put in issue by Allstate. Her argument is based on two provisions of Rule 94 of the Texas Rules of Civil Procedure, (1) the requirement that a responsive pleading allege affirmatively any "matter constituting an avoidance or affirmative defense" and, (2) the provision that in a suit on an insurance contract, the insurer is not allowed to raise an issue that the loss is due to a risk or cause within any of the exceptions to the general liability specified in the contract unless the particular exception is alleged in a responsive pleading. We...
To continue reading
Request your trial
-
In re Eastern Transmission Corp.
...The insured also bears the burden of proving that it complied with all conditions precedent to coverage. Trevino v. Allstate Ins. Co., 651 S.W.2d 8, 11 (Tex.Ct.App.1983) (writ refused Texas law also requires the insured to prove that the loss does not fall within an exclusion or exception w......
-
Note Inv. Grp., Inc. v. Assocs. First Capital Corp.
...be alleged and proved in order to warrant a recovery.” ’ ” Lidawi, 112 S.W.3d at 729 n. 1 (quoting Trevino v. Allstate Ins. Co., 651 S.W.2d 8, 11 (Tex.App.–Dallas 1983, writ ref'd n.r.e.) (quoting Sw. Associated Tel. Co. v. City of Dalhart, 254 S.W.2d 819, 825 (Tex.Civ.App.–Amarillo 1952, w......
-
Associated Indem. Corp. v. CAT Contracting, Inc.
...under a contract bears the burden of proving that all conditions precedent have been satisfied. See Trevino v. Allstate Ins. Co., 651 S.W.2d 8, 11 (Tex.App.--Dallas 1983, writ ref'd n.r.e.); City of San Antonio v. Guido Bros. Const. Co., 460 S.W.2d 155, 162-63 (Tex.Civ.App.--Beaumont 1970, ......
-
American States Ins. Co. v. Hanson Industries
...Lloyds Ins. Co., 858 S.W.2d at 635 and n. 2; Members Ins. Co. v. Branscum, 803 S.W.2d at 467; Trevino v. Allstate Ins. Co., 651 S.W.2d 8, 11 n. 1 (Tex.App. — Dallas 1983, writ ref'd n.r.e.); Shelton v. Ray, 570 S.W.2d 419, 420 (Tex.Civ. App. — El Paso 1978, no writ); State Bd. of Ins., Revi......