Watkins v. Hammerman & Gainer

Decision Date28 August 1991
Docket NumberNo. 3-90-195-CV,3-90-195-CV
Citation814 S.W.2d 867
PartiesMary Baer WATKINS, Appellant, v. HAMMERMAN & GAINER, Appellee.
CourtTexas Court of Appeals

Jaay D. Neal, Smith, Neal & Karam, San Antonio, for appellant.

John P. McWilliams, Gray & Becker, P.C., Austin, for appellee.

Before POWERS, ABOUSSIE and KIDD, JJ.

ABOUSSIE, Justice.

Appellant, Mary Baer Watkins, was allegedly injured in the course and scope of her employment with Armstrong Moving and Storage of El Paso. She filed a workers' compensation claim against Armstrong, which had workers' compensation coverage through Transit Casualty Company. On October 1, 1986, Watkins settled her claim through a Compromise Settlement Agreement ("CSA") with Transit which provided for Transit to pay a cash settlement and Watkins' injury-related medical expenses for three years. Watkins sued appellee, Hammerman & Gainer ("H & G"), the State Board of Insurance, Transit Casualty Company in Receivership, and Constitution State Service Company, alleging that her medical bills were not paid and that she was denied necessary surgery. Watkins alleged that H & G, in its capacity as claims adjuster, violated the Texas Deceptive Trade Practice--Consumer Protection Act ("DTPA") and Texas Insurance Code by representing that the insurance carrier would pay for three additional years of medical expenses. See Tex.Bus. & Com.Code Ann. § 17.41 et seq. (1987 & Supp.1991); Tex.Ins.Code Ann. art. 21.21 § 16(a) (Supp.1991). The trial court granted H & G's summary judgment motion and severed the action against H & G from the action against the other defendants. Watkins appeals the summary judgment. We will reverse the judgment and remand the cause to the trial court.

The crux of Watkins' cause of action against H & G is that, in the negotiations leading up to the CSA, H & G represented that the insurance carrier would pay Watkins' medical expenses for three years. Watkins pleaded that H & G's representations violated the DTPA by:

Causing confusion or misunderstanding as to the source, sponsorship, approval or certification of services;

Representing that services had sponsorship, approval, characteristics, uses or benefits which they did not have;

Representing that the agreement conferred or involved rights, remedies or obligations which it did not have or involve;

Failing to disclose information concerning coverage which was known at the time of the transaction when the failure to disclose was intended to induce Plaintiff into a transaction she would not have entered into had the information been disclosed.

See DTPA § 17.46(b)(2), (5), (12), (23). These alleged violations of § 17.46 of the DTPA are also the basis for Watkins' cause of action under the Tex.Ins.Code Ann. art. 21.21, § 16(a) (Supp.1991).

To recover on the merits, Watkins must establish each essential element of a cause of action. To obtain summary judgment, therefore, H & G must establish as a matter of law that there was no genuine issue of material fact as to at least one essential element of each cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Manoogian v. Lake Forest Corp., 652 S.W.2d 816, 818 (Tex.App.1983, writ ref'd n.r.e.). On review of a summary judgment, this Court will determine whether the movant has shown that there is no genuine issue as to a material fact and that it was entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). We must take as true all evidence favoring the non-movant and indulge every reasonable inference and resolve every doubt in her favor. Nixon, 690 S.W.2d at 548-49.

H & G asserted three independent bases for its motion for summary judgment: 1

(A) H & G acted solely as Transit's agent during the negotiation of the CSA.

(B) H & G is not connected to any alleged breach of the CSA following its execution.

(C) Watkins' claim is barred by the doctrine of merger.

Because the summary judgment order in the present cause does not state the specific grounds on which it was granted, Watkins must show that none of the independent arguments alleged in the motion is sufficient to support the order. See Hittner & Liberato, Summary Judgments in Texas, 20 St. Mary's L.J. 243, 282 (1989). On appeal, Watkins contends that the trial court erred in granting a take-nothing summary judgment because H & G raised defenses that would apply in a contract suit but not in a DTPA action for misrepresentation. Specifically, she argues that (1) a finding that H & G acted solely as an agent for its principal would not preclude its own individual liability under the DTPA, see Weitzel v. Barnes, 691 S.W.2d 598, 601 (Tex.1985); and (2) a finding that H & G was not connected to the breach of the CSA would not dispose of Watkins' DTPA claims because the DTPA does not require a breach of contract to establish liability. See DTPA § 17.46(b).

We will not address the merits of these arguments, however, because H & G's summary judgment proof failed to establish conclusive facts from which we can determine, as a matter of law, either that H & G was acting solely as an agent or that H & G was not connected in any way to the breach of the CSA. H & G's only summary judgment proof in support of its motion consisted of the affidavit of Tony Cordova, its employee who executed the CSA. Cordova asserted that: (1) H & G acted solely as an agent for Trans-Protection Service Company in negotiating the CSA; (2) H & G has not been involved in any way in decisions regarding the payment of medical bills under the agreement; and (3) H & G was not responsible for the payment of Watkins' medical bills.

As the employee who allegedly made the misrepresentations leading to this attempt to impose liability on his employer, H & G, Cordova is clearly an interested witness. A summary judgment may rest solely on the testimonial evidence of an interested witness if that evidence is uncontroverted, clear, positive, credible, free from contradictions and inconsistencies, and could have been readily controverted. Tex.R.Civ.P.Ann. 166a(c) (Supp.1991). In the present cause, however, Cordova's testimony regarding agency and H & G's connection with any breach of the CSA failed to meet several requirements for competent summary judgment proof. Rule 166a requires that "affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Tex.R.Civ.P.Ann. 166a(f) (Supp.1991). Cordova's affidavit identifies him as a claims representative. He fails to explain how he obtained the knowledge on which he based his conclusions and there is no proof that he is competent to make the conclusions he did.

An affidavit must set forth facts, not legal conclusions. Beta Supply, Inc. v....

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