Tweedell v. Hochheim Prairie Farm Mut. Ins. Ass'n

• Decision Date: 12 February 1998
• Docket Number: No. 13-96-142-CV,13-96-142-CV
• Citation: 962 S.W.2d 685
• Parties: John TWEEDELL, Don Hicks, and Billy D. White, Appellants, v. HOCHHEIM PRAIRIE FARM MUTUAL INSURANCE ASSOCIATION, Hochheim Prairie Casualty Insurance Company, Hochheim Prairie Insurance Company, John E. Trott, Jr., Melvin L. Hairell, Joe Tipton, Everett C. Dunahoe, and Celeste Matula, Appellees.
• Court: Texas Court of Appeals

Page 685

962 S.W.2d 685

John TWEEDELL, Don Hicks, and Billy D. White, Appellants, v. HOCHHEIM PRAIRIE FARM MUTUAL INSURANCE ASSOCIATION, Hochheim Prairie Casualty Insurance Company, Hochheim Prairie Insurance Company, John E. Trott, Jr., Melvin L. Hairell Joe Tipton, Everett C. Dunahoe, and Celeste Matula, Appellees.

No. 13-96-142-CV.

Court of Appeals of Texas Corpus Christi.

Feb. 12, 1998.

Rehearing Overruled April 2, 1998.

Jerry R. Tucker, Sr., Spring Branch, for Appellants.

Harold H. Walker, Gardere Wynne Sewell & Riggs, Houston, Stacy R. Obenhaus, Gardere & Wynne, Dallas, Kathy Goodman, Gardere, Wynne, Sewell & Riggs, Houston, for Appellees.

Before DORSEY, FEDERICO G. HINOJOSA, Jr., and RODRIGUEZ, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

This case involves misrepresentations allegedly made by an insurance company to some of its agents. Appellants, John Tweedell, Don Hicks, and Billy D. White, were independent insurance agents authorized to sell property and casualty insurance for Hochheim Prairie Farm Mutual Insurance Association, Hochheim Prairie Casualty Insurance Company, and Hochheim Prairie Insurance Company (collectively "the Hochheim Companies"). In 1990, the Hochheim Companies terminated appellants' sales representative and agency contracts and refused to renew all policies issued by appellants because of overall combined high loss ratios for the years 1986, 1987, 1988, and 1989. Appellants sued the Hochheim Companies and their officers, John E. Trott, Melvin L. Hairell, Joe Tipton, Everett C. Dunahoe, and Celeste Matula (collectively "appellees") for breach of fiduciary duties and violations of the Deceptive Trade Practices-Consumer Protection Act ¹ ("DTPA") and article 21.21 of the Insurance Code. ² Appellees filed a counterclaim alleging appellants had filed their DTPA claims in bad faith and moved for partial summary judgment on the ground that appellants lacked standing to bring their causes of action. The trial court granted the motion for summary judgment and severed-out the counterclaim. By three points of error, appellants contend the trial court erred in granting the motion for summary judgment because (1) they have standing and (2) genuine issues of material fact exist. We affirm in part and reverse and remand in part.

The proper inquiry on appeal is whether the defendant, in seeking summary judgment, fulfilled his initial burden (1) to establish as a matter of law that there remains no genuine issue of material fact as to one or more essential elements of the plaintiff's cause of action, or (2) to establish his affirmative defense to the plaintiff's cause of action as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant must be taken as true. Nixon, 690 S.W.2d at 549. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Id. Once the movant establishes an affirmative defense which would bar the suit as a matter of law, the non-movant must produce summary judgment proof raising a fact issue in avoidance of the affirmative defense. Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex.App.--Corpus Christi 1991, writ denied).

By their second point of error, appellants complain that the trial court erred in granting summary judgment on their DTPA claims on the ground that they are not "consumers" as defined by the DTPA. ³ Appellants contend they are consumers because (1) they bought policies from the Hochheim Companies and (2) they sought the products and services of the Hochheim Companies for their rural customers.

Appellants' allegations of an unconscionable course of conduct are made actionable solely by section 17.50 of the DTPA. See Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 274 (Tex.1995); see also TEX. BUS. & COM.CODE ANN. § 17.50(a)(3) (Vernon Supp.1998). To have a cause of action under section 17.50, a claimant must be a consumer. See TEX. BUS. & COM.CODE ANN. § 17.50; Faircloth, 898 S.W.2d at 274. Section 17.45 of the DTPA defines consumer as "an individual, partnership, corporation, this state, or agency of this state who seeks or acquires by purchase or lease, any goods or services[.]" TEX. BUS. & COM.CODE ANN. § 17.45(4) (Vernon 1987). Whether a plaintiff is a consumer is a question of law for the trial court to decide. First Fed. Sav. & Loan Ass'n v. Ritenour, 704 S.W.2d 895, 898 (Tex.App.--Corpus Christi 1986, writ ref'd n.r.e.). To establish status as a consumer, a plaintiff must have sought or acquired goods or services by purchase or lease, and those goods or services must form the basis of the claim. Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 351 (Tex.1987); Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 539 (Tex.1981); Shelton Ins. Agency v. St. Paul Mercury Ins. Co., 848 S.W.2d 739, 744 (Tex.App.--Corpus Christi 1993, writ denied). The absence of either requirement will defeat a DTPA claim. Cameron, 618 S.W.2d at 539.

Appellants' allegations fail to satisfy these requirements. Although appellants purchased insurance policies for themselves from the Hochheim Companies, these policies are not the basis of their claims. Appellants do not contend that the Hochheim Companies misrepresented the coverage available under the terms of the policies in order to induce appellants to purchase the insurance. While appellants' second allegation, that they sought the Hochheim Companies' products or services for their customers, may be accurate, the products or services were not obtained through appellants' purchase or lease. Accordingly, we conclude that appellants do not have standing as consumers under the DTPA.

We hold that the trial court did not err in granting summary judgment against appellants on their DTPA claims. Appellant's second point of error is overruled.

By their first point of error, appellants complain that the trial court erred in granting appellees' motion for summary judgment on the ground that appellants are not persons under article 21.21 of the Insurance Code.

Section 16(a) of article 21.21 provides:

Any person who has sustained actual damages as a result of another's engaging in an act or practice declared in Section 4 of this Article or in rules or regulations lawfully adopted by the Board under this Article to be unfair methods of competition or unfair or deceptive acts or practices in the business of insurance or in any practice defined by Section 17.46 of the Business & Commerce Code, as amended, as an unlawful deceptive trade practice may maintain an action against the person or persons engaging in such acts or practices.

Act of March 19, 1985, 69th Leg., R.S., ch. 22, § 3, 1985 Tex. Gen. Laws 71, 72 (amended 1995) (current version at TEX. BUS. & COM.CODE ANN. art. 21.21, § 16(a) (Vernon Supp.1998)). A "person" is defined as "any individual, corporation, association, partnership, reciprocal exchange, inter-insurer, Lloyds insurer fraternal benefit society, and any other legal entity engaged in the business of insurance, including agents, brokers, adjusters, and life insurance counselors." TEX. BUS. & COM.CODE ANN. art. 21.21, § 2(a) (Vernon Supp.1998).

Appellees argued in their motion for summary judgment that only insureds or beneficiaries of an insurance policy have standing to file an article 21.21 claim. Appellees relied on Chaffin v. Transamerica Ins., ⁴ CNA Ins. Co. v. Scheffey, ⁵ Shelton Ins. Agency, and Favor v. Hochheim Prairie Farm Mut. Ins. Ass'n. ⁶ We find appellees' reliance on these cases to be misplaced.

In Chaffin, homeowners, relying on article 21.21, sued Transamerica Insurance Company for tortious handling of a water damage claim under the terms of an insurance policy. Chaffin v. Transamerica Ins. Co., 731 S.W.2d 728, 730 (Tex.App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.). The insured was the subcontractor whose work caused the damage, but the homeowners were not named in the policy as additional insureds or beneficiaries. Id. The homeowners argued that the "any person" language of section 16(a) of article 21.21 gave them standing to directly sue the insurance company. Id. at 731. After setting forth the provisions of sections 2 and 16(a), the Houston Fourteenth Court of Appeals noted that part of the difficulty in applying article 21.21 stemmed from the definition of "person" set forth in section 2. Id. The court admitted that under Texas law, "person" as used in section 16 was not limited to "one engaged in the business of insurance" as stated in section 2. Id. (citing Ceshker v. Bankers Commercial Life Ins. Co., 568 S.W.2d 128, 129 (Tex.1978)). However, the court refused to extend "the construction of 'person' beyond one who is either an insured or a beneficiary of the policy" because in Texas an injured third party may not directly sue the tortfeasor's insurer. Id. (citations omitted).

In Scheffey, a doctor sued a worker's compensation insurance carrier for alleged violations of article 21.21, in addition to other claims. CNA Ins. Co. v. Scheffey, 828 S.W.2d 785, 786-87 (Tex.App.--Texarkana 1992, writ denied). Relying on Chaffin, the Texarkana Court of Appeals held that the doctor did not have standing under article 21.21 because he was not the insured or an intended beneficiary of the policy at issue. Id. at 787. Furthermore, the doctor was not in the business of insurance, nor did he compete with CNA. Id. at 788. Thus, he could not claim that CNA had violated article 21.21 by engaging in unfair competition or practice. Id.

Our opinion in Shelton Ins. Agency was based on the fact that Shelton's article 21.21 claims were derived from a client's policy and losses the insurance company refused to cover. Shelton Ins. Agency, 848 S.W.2d at 742. Relying on Chaffin, w...