Insurance Coverage in Texas Long-Term Disability Plan Lawsuit– Fort Worth, Texas Insurance Defense Attorneys

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10052
JUDY B. KILLEN,
Plaintiff-Appellant,
v.
RELIANCE STANDARD LIFE INSURANCE COMPANY,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Texas
Before STEWART, Chief Judge, OWEN, Circuit Judge, and MORGAN, District Judge.∗
CARL E. STEWART, Chief Judge:
Plaintiff-Appellant Judy Killen (“Killen”) worked as an ultrasound technician for Covenant Health Systems (“Covenant”) beginning in 2002. She ceased working in March 2009 due to neck, shoulder, and upper back pain. She was awarded 24 months of benefits from Covenant’s long-term disability insurance plan, which Defendant-Appellee Reliance Standard Life Insurance Company (“Reliance Standard”) administered. After three internal decisions by Reliance Standard rejecting Killen’s request for extended long-term disability benefits, she brought suit in federal court. The district court held
∗ District Judge of the Eastern District of Louisiana, sitting by designation.
United States Court of Appeals
Fifth Circuit
FILED
January 8, 2015
Lyle W. Cayce
Clerk
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that Reliance Standard did not abuse its discretion in finding that Killen could perform sedentary work, and granted summary judgment to Reliance Standard. For the reasons discussed herein, we AFFIRM.
I. Factual and Procedural Background
Killen worked for Covenant from 2002 until March 2009, when she claimed that neck, shoulder and upper back pain made it too difficult for her to continue. Reliance Standard administered Covenant’s long-term disability plan (the “Plan”)—which is governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.—and also paid benefits under the Plan if it found an employee disabled.
Killen collected benefits from June 2009 to June 2011. During this time, Killen separately qualified for Social Security disability benefits. To continue receiving benefits under the Plan after two years, a claimant must be “totally disabled” such that she is incapable of performing the material duties of any occupation for which she is qualified by way of education, training, or experience. Under the contract, an insured is totally disabled if “due to an Injury or Sickness he or she is capable of only performing the material duties on a part-time basis or part of the material duties on a Full-time basis.”
At the outset, Killen’s primary care physician—Dr. Steven Crow (“Dr. Crow”)—treated her. Dr. Crow treated Killen on over twenty separate occasions over the next four years and addressed a variety of maladies she experienced beginning in late 2008. In August 2010, Killen seriously injured her right shoulder by exacerbating an apparently pre-existing tear in the rotator cuff. Dr. Crow found in September 2010 that Killen “had severe pain in the shoulder since that time,” and that she was experiencing “[s]hooting pain towards her neck.” Shortly thereafter, Dr. Crow referred her to Dr. Kevin Crawford (“Dr. Crawford”), an orthopedic surgeon who determined in October 2010 that Killen had a “high-grade full-thickness rotator cuff tear” in her right 2
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shoulder. The tear was further corroborated by a radiologist’s report. In a follow-up appointment in January 2011, however, Dr. Crawford found that Killen’s “function is good, even though she has some discomfort.”
In May 2011, Reliance Standard’s internal vocational staff—evaluating the reports outlined above after Killen requested continued benefits—performed a residual employability analysis and listed five sedentary occupations appropriate for Killen. Consequently, Reliance Standard determined that, while Killen could no longer work as an ultrasound technician, she “appear[ed] capable of sedentary work activity.” Reliance Standard thereafter decided to discontinue Killen’s benefits.
This first denial apparently crossed in the mail with additional documents Killen sent to Reliance Standard, among them a treatment report from Dr. Crow and a letter from Dr. Crawford. Dr. Crow’s letter noted Killen’s “severe anxiety.” Dr. Crawford’s June 2011 letter, however, is the subject of dispute by the parties and is ambiguous about Killen’s condition. He wrote that Killen was “reasonably functional despite the findings on MRI,” but elaborated that “[w]hen I say functional, I mean that she still can get by with activities of daily living and can get her hand to her mouth and fix the back of her hair to some extent.” Reliance Standard evaluated these additional documents apparently as a courtesy; it would otherwise have had to open up a more probing internal appeal. The company again denied continued coverage.
Subsequently, through her attorney, Killen filed an internal appeal with Reliance Standard, relying on an August 2011 letter from Dr. Crow that repeatedly emphasized how she was “incapable of holding down a job” due to her medical issues. At Reliance Standard’s urging, she submitted to an in-person evaluation and independent review conducted in February 2012 by Dr. Mary Burgesser (“Dr. Burgesser”), a physical medicine and rehabilitation specialist. Dr. Burgesser, while crediting Killen’s chronic, irreparable right 3
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shoulder pain and acknowledging Dr. Crawford’s diagnosis, concluded in a detailed report that the injury did not prevent her from performing sedentary work. A subsequent (second) residual employability analysis conducted in March 2012 by Reliance Standard, this time taking into account Dr. Burgesser’s report, came to a similar conclusion as the first: Killen was capable of performing sedentary work in at least three alternative occupations. Relying on these reports, Reliance Standard denied Killen’s appeal in March 2012. In its letter, Reliance Standard noted that Killen had been receiving disability benefits from the Social Security Administration (“SSA”)—benefits which offset Reliance Standard’s own obligations to Killen—but explained that the SSA may have used a different standard in evaluating benefits decisions and also did not have Dr. Burgesser’s report when it awarded Killen benefits.
Nearly four months later, Killen sought to supplement the record with a letter from Dr. Crow adhering to the contents of his August 2011 letter: he still believed, he wrote, that Killen was “unable to work due to her medical issues.” Reliance Standard responded, notifying Killen that it had closed her file and would not supplement it with the letter.
After Killen exhausted her administrative appeals, she filed suit in August 2012 in federal court under 29 U.S.C. § 1132(a)(1)(B). In December 2013, the district court granted summary judgment to Reliance Standard.
Killen timely appealed, arguing that Reliance Standard: (1) lacked substantial evidence supporting its denial; (2) failed to give Killen a full and fair review of her claim; (3); issued a decision tainted by a conflict of interest because it both administers and pays benefits; and (4) inappropriately refused to allow Killen to introduce the letter from Dr. Crow after it made a final decision to terminate her benefits.
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II. Standard of Review
Review of summary judgment decisions in the ERISA context is de novo, and we apply the same standard as the district court. Schexnayder v. Hartford Life & Accident Ins. Co., 600 F.3d 465, 468 (5th Cir. 2010). Because the Plan gave Reliance Standard discretion to determine benefit eligibility as well as to construe the Plan’s terms, the court reviews Reliance Standard’s denial under the Plan for abuse of discretion. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 246 (5th Cir. 2009). “A plan administrator abuses its discretion where the decision is not based on evidence, even if disputable, that clearly supports the basis for its denial.” Holland, 576 F.3d at 246 (internal quotation marks and citations omitted). “If the plan fiduciary’s decision is supported by substantial evidence and is not arbitrary and capricious, it must prevail.” Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d 262, 273 (5th Cir. 2004).
Killen argues in her briefs repeatedly that the summary judgment standard requires that the evidence and inferences drawn from that evidence be viewed in the light most favorable to her since she is the nonmovant. She points to cases reciting the boilerplate language of the summary judgment standard. However, she misapprehends the nature of appellate review of summary judgment decisions on ERISA benefits cases where the plan at issue vests discretion, as this one does, in a plan administrator.1 In that case, “[t]he fact that the evidence is disputable will not invalidate the decision; the evidence need only assure that the administrator’s decision fall [sic] somewhere on the continuum of reasonableness—even if on the low end.”
1 The parties do not dispute that the Plan vests discretionary authority with Reliance Standard. The Plan states that Reliance Standard “has the discretionary authority to interpret the Plan and the insurance policy and to determine eligibility for benefits.” 5
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Porter v. Lowe’s Cos., Inc.’s Bus. Travel Acc. Ins. Plan, 731 F.3d 360, 363–64 (5th Cir. 2013) (internal quotation marks and citation omitted).
The case on which Killen primarily relies, Baker v. Metropolitan Life Ins. Co., 364 F.3d 624 (5th Cir. 2004), is inapposite. While Baker does explain that appellate courts review district court decisions in the ERISA context de novo and draw all inferences in favor of the nonmovant, id. at 627–28, Killen’s selective citation to the case leaves out Baker’s later clarification: “when an administrator has discretionary authority with respect to the decision at issue, the standard of review should be one of abuse of discretion.” Id. at 627. A court must “give deference to the decision of the plan administrator and may not substitute its judgment for the decision of the fiduciary.” 1A Couch on Ins. § 7:59 (3d ed. 2014).
III. Discussion
A.
Killen first challenges the district court’s finding that substantial evidence supported the plan’s denial of benefits. Substantial evidence is “more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks and citation omitted). Killen claims that the Plan language requires Reliance Standard to show that she can perform all of the job duties of a sedentary vocation on a full-time basis before discontinuing benefits. While it might have shown she could perform sedentary work, she argues, Reliance Standard never showed she could do so full time. Additionally, she claims the district court misconstrued the medical evidence and ignored objective documentation of her pain.
“[M]ost disputed claims for disability insurance benefits are awash in a sea of medical evidence, often of contradictory nature,” 10A Couch on Ins. § 147:33, and this case is no different. Indeed, counsel for Killen admitted as
6
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much at oral argument. Courts frequently hear cases, like this one, where the plaintiff’s own treating physicians generally support a finding of disability and the defendant’s vocational specialists and independent medical examiners disagree.
In Holland, for example, a former paper machine specialist who had experienced a heart attack sought long-term disability benefits. See 576 F.3d at 243. The Plan’s language closely tracked the applicable language in this case. See id. at 244. The employee’s primary care physician equivocated, but supported a finding of total disability, and a specialist’s statements about his health were ambiguous: the specialist noted that the plaintiff had serious airway damage, but was improving. Id. The administrator had a third and fourth doctor conduct a paper review of the medical records, and a fifth doctor conducted a physical examination: all three agreed that the employee was not totally disabled. See id. at 244–45. The administrator never consulted a vocational expert. Id. at 249. The internal claim for benefits was denied twice. This court held that there had been no abuse of discretion; the existence of contradictory evidence, the court noted, “does not . . . make the administrator’s decision arbitrary. Indeed, the job of weighing valid, conflicting professional medical opinions is not the job of the courts; that job has been given to the administrators of ERISA plans.” Id. at 250 (internal quotation marks and citation omitted); accord Wade v. Hewlett-Packard Dev. Co., 493 F.3d 533, 540–41 (5th Cir. 2007), abrogated on other grounds by Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010) (upholding a denial of benefits where plaintiff’s two treating physicians supported a disability finding but an examining neurophysiologist in a separate assessment found otherwise).2
2 There is no obligation to weigh treating physicians’ opinions any differently than those of other doctors or specialists. The Supreme Court recently clarified that “courts have 7
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When we find an abuse of discretion, the discrepancies between the facts and the administrator’s findings are often stark. In Lain v. UNUM Life Ins. Co. of Am., a claimant had experienced serious chest pains and esophageal problems documented by multiple treating physicians. See 279 F.3d 337, 340–42 (5th Cir. 2002), overruled on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115–19 (2008). Based on two internal reviews of the claimant’s medical files—one of which seemed to actually substantiate the individual’s complaints—and without an independent physical examination,3 the administrator denied benefits. See id. at 341–42. This court found an abuse of discretion, noting that there was a “complete absence in the record of any ‘concrete evidence’ supporting [the administrator’s] determination.” Id. at 347.
In this case, substantial evidence supported Reliance Standard’s decision to deny long-term disability benefits to Killen. While there is evidence in the record to support Killen’s claim for disability—which the district court recognized—there is also more than enough evidence supporting a denial to insulate the decision from reversal, particularly under our narrow review for abuse of discretion.
First, Reliance Standard’s vocational expert and examining physician provided sufficient evidence—including evidence of Killen’s ability to perform full-time sedentary work—to justify the denial. A vocational expert employed by Reliance Standard identified between three and five sedentary jobs Killen could perform. Additionally, Dr. Burgesser wrote in her report that Killen was
no warrant to require administrators automatically to accord special weight to the opinions of a claimant’s physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician’s evaluation.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003).
3 ERISA does not mandate an independent medical examination prior to a denial. See, e.g., Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 91 & n.3 (2d Cir. 2009) (collecting cases). 8
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“capable of performing at a sedentary work capacity . . . . The sedentary work would involve sitting most of the time and walking or standing for brief periods.” On a separate form, Dr. Burgesser listed a series of activities that Killen could perform “on a regular basis in an 8-hour workday.” The form noted that Killen could sit “frequent[ly],” and that she could “occasional[ly]” stand, walk, climb stairs, and drive. Contrary to Killen’s position that Reliance Standard never showed she could perform full-time work, these findings—taken together—demonstrate that Killen could perform full-time work.
Second, Killen’s own treating physicians equivocated at different times about the extent of her disability, even after the rotator cuff tear. Though her primary care physician ultimately concluded that she was totally disabled, her orthopedic surgeon’s reports are ambiguous at best on the issue. Indeed, in a follow-up appointment to address her right shoulder rotator cuff tear, he stated that her “function is good, even though she has some discomfort.”
The evidence in this case is comparable to that presented in Holland and Wade. In both of those cases—as in this one—there were conflicting medical opinions, with the plaintiffs’ treating physicians generally supportive of a finding of disability and the defendants’ internal reviews or independent examining physicians determining otherwise. See Holland, 576 F.3d at 244–45; Wade, 493 F.3d at 535–37. As the district court here acknowledged, it is the role of the ERISA administrator, not the reviewing court, to weigh valid medical opinions. See Holland, 576 F.3d at 250; Wade, 493 F.3d at 541. And unlike in Lain, it cannot be said in this case that there is a “complete absence in the record of any ‘concrete evidence’” supporting a denial. Lain, 279 F.3d at 347. Reliance Standard’s decision was supported by substantial evidence.4
4 Killen argues also that some of the district court’s discussion of statements she made to her physicians—for example, telling Dr. Crow that she wanted to get on disability—
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B.
Killen next argues that Reliance Standard failed to provide a full and fair review of her claim because (1) the company did not provide sufficient evidence in support of its initial May 2011 denial of benefits and (2) the company brought forward its strongest evidence of Killen’s continued ability to perform full-time sedentary work during the final appeal without giving her a meaningful opportunity to respond.5
When denying claims, ERISA-covered employee benefit plans must: (1) provide adequate notice; (2) in writing; (3) setting forth the specific reasons for such denial; (4) written in a manner calculated to be understood by the participant; and (5) afford a reasonable opportunity for a full and fair review by the administrator. Wade, 493 F.3d at 540 (citing 29 U.S.C. § 1133).
Killen’s first argument is foreclosed by our decision in Wade. In Wade, the administrator failed to comply even with the basic requirements of § 1133 during its initial internal review. While we found that the administrator’s errors at least arguably reflected a failure to substantially comply with ERISA and its accompanying regulations, we stated that “[t]he statute and regulations do not require compliance with Section 1133 at each and every level
improperly contributed to its substantial evidence finding. Killen is correct that some of these statements are not especially germane to the substantial evidence inquiry, but the district court’s mere mention of those details, particularly in light of its recognition of the importance of the opinions of Dr. Burgesser and the vocational analyst to Reliance Standard’s denial, does not disturb our holding that substantial evidence supported the denial. Killen’s argument that neither Reliance Standard nor the district court considered the objective reports of her pain are also belied by the record. Both the district court and Reliance Standard’s independent medical examiner acknowledged Killen’s pain.
5 Killen, in her briefing, alternatively characterizes these alleged ERISA violations as “procedurally unreasonable.” But the doctrine of procedural unreasonableness is a “separate concept that is a subset of our conflict of interest analysis.” Truitt v. Unum Life Ins. Co. of Am., 729 F.3d 497, 509 n.4 (5th Cir. 2013). 10
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of review of a Plan’s internal claims processing,” and found that the claimant had been provided a full and fair review. See id.
Here, by contrast, Reliance Standard substantially complied with ERISA at every step, including its initial denial. In its May 2011 initial written denial, Reliance Standard addressed: (1) medical records about Killen’s right shoulder injury, crediting her right rotator cuff tear but highlighting Dr. Crawford’s observation that her function was “good even though you have discomfort”; (2) the myriad medical issues—unrelated to the right shoulder problem—that Killen experienced, including those related to her neck and shoulder pain, heart problems, and depression; and (3) the internal vocational rehabilitation specialist’s finding based on submitted records that “while unable to work in your normal occupation, you appear capable of sedentary work activity.” Killen’s view that these findings do not permit the inference that she could perform full-time sedentary work takes too narrow a view of the evidence.
Killen also argues that Reliance Standard unfairly brought forward its strongest evidence—the independent medical examiner’s report—only in the final stage of her appeal, thereby preventing her from engaging in the “meaningful dialogue” contemplated by § 1133. See Lafleur v. La. Health Serv. & Indem. Co., 563 F.3d 148, 154 (5th Cir. 2009).
Circuits that have addressed the issue have generally determined that ERISA does not guarantee claimants an opportunity to rebut an independent medical examination report generated during an appeal prior to a denial of benefits. See Metzger v. UNUM Life Ins. Co. of Am., 476 F.3d 1161, 1167 (10th Cir. 2007) (holding that ERISA and its implementing regulations do “not require a plan administrator to provide a claimant with access to the medical opinion reports of appeal-level reviewers prior to a final decision on appeal”); see also Pettaway v. Teachers Ins. & Annuity Ass’n of Am., 644 F.3d 427, 436 (D.C. Cir. 2011) (same); Midgett v. Washington Grp. Int’l Long Term Disability 11
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Plan, 561 F.3d 887, 895–96 (8th Cir. 2009) (same); Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241, 1245–46 (11th Cir. 2008) (same).
Citing Metzger, this court in an unpublished opinion adopted a similar stance. Shedrick v. Marriott Int’l, Inc., 500 F. App’x 331, 339 (5th Cir. 2012) (“Further, there does not appear to be relevant case law or regulations for the proposition that Aetna violated ERISA’s full and fair review requirement by failing to consider evidence submitted after [the claimant’s] appeal was closed or by not allowing [the claimant] to rebut the report by Dr. Wallquist.”).
Killen does not dispute the force of this precedent. Rather, she contends that it is inapplicable where the first-stage denial did not provide evidence that she could call into question. But here, even assuming arguendo that Reliance Standard did not provide Killen with sufficient evidence justifying the initial denial for her to rebut, the underlying justification for each denial remained constant. Each letter rejected Killen’s claim for benefits on the same ground: her ability to perform sedentary work. This takes the facts out of our line of cases where the insurer impermissibly uses a “bait-and-switch” tactic, providing one justification at the first stage and then, during the review, changing the grounds for the denial. See, e.g., Rossi v. Precision Drilling Oilfield Servs. Corp. Emp. Benefits Plan, 704 F.3d 362, 366 (5th Cir. 2013); Robinson v. Aetna Life Ins. Co., 443 F.3d 389, 394 (5th Cir. 2006) (“Aetna’s shifting justification for its decision and failure to identify its vocational expert meant that Robinson was unable to challenge Aetna’s information or to obtain meaningful review of the reason his benefits were terminated.”).
While the information provided in Dr. Burgesser’s report might have further bolstered Reliance Standard’s position, there was nothing in the report that altered the company’s original position. Therefore, Killen was not “sandbagged” by a report containing unanticipated factual findings. She was on notice beginning with the initial May 2011 denial that she needed to bring 12
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forward evidence of her inability to perform sedentary work. Reliance Standard provided her an adequate opportunity to do so.
C.
We turn to Killen’s argument that Reliance Standard’s decision was “procedurally unreasonable”—that is, that the company’s conflict of interest as both the administrator of the Plan and the payor of benefits tainted its denial—because of its failure to adequately distinguish the SSA’s disability finding.
The Supreme Court has held that a “plan administrator [who] both evaluates claims for benefits and pays benefits claims,” as Reliance Standard does here, has a conflict of interest. See Glenn, 554 U.S. at 112. But the Court purposefully avoided enunciating a precise standard for evaluation of the impact of the conflict. See id at 119. In Glenn, and in a post-Glenn case in this court with similar facts, Schexnayder, the defendant-administrators denied disability benefits, but not before the claimants successfully applied for disability benefits before the SSA. See Glenn, 554 U.S. at 118; Schexnayder 600 F.3d at 471. The administrators financially benefitted from those decisions (payments from the SSA offset their own obligations) and then ignored the agency’s findings of total disability entirely; the result was a reversal of those benefits decisions. See Glenn, 554 U.S. at 118; Schexnayder 600 F.3d at 471.
Here, by contrast, Reliance Standard twice addressed the SSA benefits awarded to Killen, once distinguishing its denial in detail. Compare Schexnayder, 600 F.3d at 471 n.3 (“It is the lack of any acknowledgement which leads us to conclude that Hartford’s decision was procedurally unreasonable.”). We find no procedural unreasonableness on these facts suggesting that we should accord the conflict of interest factor any special weight.
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D.
Killen’s final argument is that Reliance Standard improperly failed to allow her to supplement the administrative record with a letter from Dr. Crow submitted four months after the third denial.
When assessing factual questions in benefits cases, “a long line of Fifth Circuit cases stands for the proposition that . . . the district court is constrained to the evidence before the plan administrator.” Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir. 1999) (collecting cases), overruled on other grounds by Glenn, 554 U.S. at 112. Before filing suit, “the claimant’s lawyer can add additional evidence to the administrative record simply by submitting it to the administrator in a manner that gives the administrator a fair opportunity to consider it.” Id. at 300. Such a “fair opportunity” must come in time for the administrator to “reconsider his decision.” Id.
Here, the file was already closed and Killen had exhausted two internal appeals. We cannot say that such a late submission of evidence, only four weeks before Killen filed suit, gave Reliance Standard the “fair opportunity” contemplated by Vega. Although Dr. Crow rebuts Dr. Burgesser’s opinion directly in the letter, he does so by repeating a position he had already taken. Indeed, he explained in the supplemental letter that “nothing has really changed in her condition.” The letter, therefore, would not have changed the outcome here. Cf. Keele v. JP Morgan Chase Long Term Disability Plan, 221 F. App’x 316, 320 (5th Cir. 2007) (“We need not decide this question of Vega’s precise requirements today, because we conclude that the documents in dispute do not change the disposition of the case.”). We decline to find an abuse of discretion in Reliance Standard’s decision not to supplement the record, and we find no fault in the district court’s choice not to consider the letter.
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IV. Conclusion
For the foregoing reasons, we AFFIRM the district court’s decision granting summary judgment to Reliance Standard on the ground that it did not abuse its discretion in denying Killen long-term disability benefits. 15
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Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Jul 14th, 2015 Employment Law Defense, Insurance Defense Litigation

Biennial Report of the Texas Department of Insurance Non Subscriber Statistics–Fort Worth, Texas Non Subscriber Lawyers

The Biennial Report of the Texas Department of Insurance to the 83rd Legislature , released December 2012 by the Texas Department of Insurance, reports fewer Texas employers are currently opting to leave the state’s workers’ compensation system. According to the report prepared for the Texas legislature, lower workers compensation insurance premiums and an increased availability of workers compensation health care networks have led to fewer employers opting out of the system. “The percentage of Texas employers that are nonsubscribers to the workers compensation system decreased to 33 percent in 2012 — the second-lowest percentage since 1993 (an estimated 113,000 employers in 2012).” In 1993, 44 percent of Texas employers were non-subscribers. The report also noted a reversal of the trend of larger employers choosing to opt out of the Texas workers’ compensation system after 2008. The non-subscription rates among large employers fell from 26 percent in 2008 to 15 percent in 2010 and 17 percent in 2012.

Jul 14th, 2015 Nonsubscriber Law, Workers' Compensation Defense

The Enforcement Program of EEOC–Fort Worth, Texas Employment Law Attorneys

Private Sector Enforcement Program: Providing quality services that are fair and prompt for both employees and employers in our administrative processing system is vital to our mission. In FY 2009, we received 93,277 private sector charges of discrimination. We also received 2,728 charges through net transfers from state and local Fair Employment Practices Agencies (FEPAs). We achieved 85,980 resolutions, with a merit factor resolution rate of 20.3%. (Merit factor resolutions include mediation and other settlements and cause findings, which, if not successfully conciliated, are considered for litigation.) Through our administrative enforcement activities, we also secured more than $294.2 million in monetary benefits. Overall, we secured both monetary and non-monetary benefits for more than 17,491people through our charge processing. We had a pending inventory of 85,768 charges at the end of the fiscal year. [See Enforcement and Litigation Statistics]

Federal Sector Enforcement Program: In our federal sector enforcement role, the EEOC is responsible for providing hearings and appeals after the initial processing of the complaints by each individual federal agency. Unlike our responsibilities in the private sector, we do not process complaints of discrimination for federal employees. In the federal sector, individuals file complaints with their own federal agencies and those agencies conduct a full and appropriate investigation of the claims raised in the complaints. Complainants can then request a hearing before an EEOC administrative judge. In FY 2009, we received a total of 7,277 requests for hearings. Additionally, we resolved a total of 6,779 complaints and secured more than $44.5 million in relief for parties in these complaints.

The EEOC also adjudicates appeals of federal agency actions on discrimination complaints and ensures agency compliance with decisions issued on those appeals. During FY 2009, the EEOC received 4,745 requests for appeals of final agency actions in the federal sector. [See Annual Report on the Federal Work Force]

Mediation

Private Sector Mediation Program: The EEOC’s mediation program has been very successful and has contributed to the ability, over the past few years, to better manage our growing inventory and resolve charges in 180 days or fewer. In FY 2009, the EEOC’s National Mediation Program secured 8,498 resolutions, and we obtained more than $121.6 million in monetary benefits for complainants from mediation resolutions.

Participant confidence in our program is high, with our FY 2009 figures reflecting that 96% of all participants would return to EEOC’s Mediation Program in the future. We believe this high confidence level helps with our continuing efforts to convince parties to charges, particularly employer representatives, of the value of the mediation approach.

Although participants almost uniformly view the mediation program favorably, the percentage of employers agreeing to mediate is considerably lower than the percentage of charging parties agreeing to mediate. As part of our effort to increase the participation of employers in the mediation program, we have encouraged employers to enter into Universal Agreements to Mediate (UAMs). These agreements reflect the employer’s commitment to utilize the mediation process to resolve charges.

Many employers entered into these agreements in FY 2009, resulting in a cumulative multi-year total of 1,603 UAMs (192 National/Regional UAMS and 1,411 Local UAMs).

Federal Sector Mediation Program: Using Alternative Dispute Resolution (ADR) techniques to resolve workplace disputes throughout the federal government can have a powerful impact on agencies’ EEO complaint inventories and, in turn, the Commission’s hearings and appeals inventories. Resolving disputes as early as possible in the federal sector EEO process improves the work environment and reduces the number of formal complaints, allowing all agencies, including the EEOC, to redeploy resources that otherwise would be devoted to these activities. In addition, a growing number of agencies have incorporated dispute prevention techniques into their ADR programs, further increasing productivity and reducing the overall number of employment disputes.

Data submitted by federal agencies at the close of FY 2008, the most recent data available, indicate that there were 38,898 instances of pre-complaint EEO counseling across the federal government. Of that number, the parties participated in ADR in 19,267 cases, or 49.5% of the time.

The Commission’s efforts in promoting and expanding mediation/ADR at all stages of the federal EEO complaint process also appear to be having a positive effect on federal agencies’ EEO complaint inventories. As more agencies expand their efforts to offer ADR during the informal process, we expect to see continued decreases in the number of formal complaints filed, which will reduce costs for complainants and all federal agencies, and enable agencies to focus resources on their primary missions.

EEOC continues to actively pursue a variety of ways to assist federal agencies in improving alternative dispute resolution by identifying and sharing best practices, providing assistance in program development and improvements, providing training to federal employees and managers on the benefits of ADR, and maintaining a web page that serves as a clearinghouse for information related to federal sector ADR. We will continue to expand technical assistance efforts with agencies to encourage the development of effective ADR programs and promote ADR training among government managers and staff.

Jul 14th, 2015 Employment Law Defense

Theft Coverage Under Texas Renter’s Insurance Policy– Fort Worth, Texas Insurance Defense Litigation Lawyers

NUMBER 13-13-00381-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
REVEREND RESHUNN D. CHAMBERS, TH.M, Appellant,
v.
AMERICAN HALLMARK INSURANCE
CO. OF TEXAS, Appellee.
On appeal from the 192nd District Court
of Dallas County, Texas.
OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Opinion by Justice Rodriguez
Appellant Reverend Reshunn D. Chambers, Th.M (Chambers) appeals the trial court’s grant of summary judgment in favor of appellee, American Hallmark Insurance Co.
2
of Texas (Hallmark).1 Chambers raises three issues on appeal challenging the trial court’s grant of Hallmark’s “no cause of action” traditional motion for summary judgment and Hallmark’s special exceptions. We reverse and remand in part and affirm in part.
I. BACKGROUND
Chambers purchased a renter’s insurance policy (the Policy) from Hallmark that went into effect on February 1, 2010. The insurance policy covered the premises at 502 S.W. 16th Street in Grand Prairie, Texas. Chambers paid $252.00 in premiums on the Policy. On or about March 13, 2010, Chambers reported a loss of personal property from the residence identified on the Policy. Chambers submitted his claim for coverage with Hallmark. Hallmark claimed that the alleged theft was not a covered loss under the Policy and denied the claim.
On February 9, 2012, Chambers filed suit in the 192nd District Court of Dallas County as a pro se litigant. Chambers’s original petition purported to allege claims for negligence, violations of Chapters 541 and 542 of the Texas Insurance Code, and violations of Chapter 17 of the Texas Business and Commerce Code (DTPA).2 On March 12, 2012, Hallmark filed its original answer and special exceptions to Chambers’s petition. The trial court granted Hallmark’s special exceptions and required Chambers to replead to: 1) “provide fair notice of the specific acts and violations alleged against [Hallmark] under the Texas Insurance Code and Texas DTPA,” and 2) dismiss “any and
1 This case is before the Court on transfer from the Fifth Court of Appeals in Dallas pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through 2013 3d C.S.).
2 Chambers titled his pleadings as “complaints.” To prevent confusion we shall refer to his pleadings as “petitions” in conformity with the Texas Rules of Civil Procedure. TEX. R. CIV. P. 78.
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all claims against [Hallmark] that constitute negligent claim handling.” Chambers was given thirty days to replead.
Chambers did not file an amended petition within the thirty days provided by the court. On June 12, 2012, Hallmark filed a motion to dismiss for want of prosecution. At the hearing on Hallmark’s motion to dismiss, the trial court gave Chambers an additional two weeks to file an amended petition in compliance with its order. Chambers then filed, on June 27, 2012, a motion to vacate the court’s order granting Hallmark’s special exceptions. The court never ruled on Chambers’s motion to vacate, and Chambers filed an amended petition on July 11, 2012. Hallmark filed an amended answer and counter-claim against Chambers alleging civil fraud, among other causes of action, and asserting the affirmative defense of fraud.
Hallmark again specially excepted to Chambers’s amended pleading. Chambers then filed a second amended petition alleging claims pursuant to the Texas Insurance Code and DTPA, and adding claims under the Texas Administrative Code pursuant to section 21.203. Hallmark filed a traditional motion for summary judgment on Chambers’s claims and on its counter-claims.
In its motion, Hallmark sought summary judgment on the basis that Chambers had failed to plead a cause of action. Hallmark also moved for summary judgment on its affirmative defense of fraud and its counter-claims for fraud. Hallmark filed summary judgment evidence consisting of Chambers’s deemed admissions, the deposition excerpts of Chambers’s family members, Chambers’s “sworn proof of loss” and “affidavit of property theft,” the general warranty deed for the premises, and an affidavit by
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Hallmark’s attorney on attorneys’ fees. The evidence supported Hallmark’s fraud counter-claim and its affirmative defense of fraud.
After hearing the arguments of the parties, the trial court issued an order granting Hallmark’s motion for summary judgment on all grounds but fraud.3 Hallmark then non-suited its counter-claim for fraud against Chambers. The court vacated its previous order and re-issued a final judgment that disposed of all claims before the court.
This appeal followed.
II. PRESERVATION OF ERROR
Chambers complains of three issues on appeal: 1) summary judgment was not appropriate on the affirmative defense of fraud; 2) summary judgment was not appropriate on Chambers’s pleadings, and 3) the court erred when it granted Hallmark’s special exceptions on Chambers’s original petition. As a threshold matter, Hallmark contends that Chambers failed to preserve error on his appellate issues.4
In Chambers’s second issue, he is challenging the legal sufficiency of the trial court’s order granting Hallmark’s motion for summary judgment on his pleadings. The Texas Supreme Court has noted that a non-movant is not required to object to the legal sufficiency of a traditional motion for summary judgment to raise a complaint on appeal. Cimarron Hydrocarbons Corp. v. Carpenter, 143 S.W.3d 560, 562 (Tex. App.—Dallas
3 In its brief, Hallmark states that the trial court “clearly denied” summary judgment on the basis of their affirmative defense of fraud. Hallmark made the following representation in its brief: “if the [c]ourt had found in favor of Hallmark on its affirmative defense of fraud, then it would likewise have found in favor of Hallmark on the counter-claim involving fraud . . . which it clearly did not.”
4 Because Hallmark’s affirmative defense of fraud was not a ground on which the trial court based its order granting the summary judgment, there can be no error on that basis on appeal. We will not reach Chambers’s first issue.
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2004, pet. denied) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993)). Hallmark’s contention that Chambers was required to bring forth competent summary judgment evidence misstates the burden of proof in a traditional motion for summary judgment. See TEX. R. CIV. P. 166a(b); Tello v. Bank One, 218 S.W.3d 109, 118–19 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see also Medlock v. Comm’n for Lawyer Discipline, 24 S.W.3d 865, 870 (Tex. App.—Texarkana 2000, no pet.). Chambers’s issue on appeal challenging the legal sufficiency of the trial court’s grant of summary judgment is properly before this Court.5
In Chambers’s third issue, he challenges the trial court’s grant of Hallmark’s special exceptions. To preserve error, Chambers was required to object to the ruling on the special exceptions before the trial court and properly raise the issue before this Court on appeal. See Mowbray v. Avery, 76 S.W.3d 663, 678 (Tex. App.—Corpus Christi 2002, pet denied); Gomez v. Tex. Windstorm Ins. Ass’n, No. 13-04-598-CV, 2006 WL 733957, at *12 (Tex. App.—Corpus Christi March 23, 2006, pet. denied) (mem. op.); see also TEX. R. APP. P. 33.1. Chambers filed a “Motion to Vacate Order on Defendant’s Special Exception” after the court issued its order granting Hallmark’s special exceptions. Because Chambers objected to the trial court about its ruling on Hallmark’s special exceptions, we find that Chambers’s motion to vacate was sufficient to preserve error in the trial court. See TEX. R. APP. P. 33.1(c). Chambers’s third issue is properly before this Court.
5 Chambers only addresses his causes of action under the DTPA and Texas Insurance Code on appeal, therefore only those causes of action are preserved for appellate review. See Young v. City of Dimmitt, 787 S.W.2d 50, 50 (Tex. 1990).
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III. SUMMARY JUDGMENT ON CHAMBERS’S PLEADINGS
A. Standard of Review for Summary Judgment on the Pleadings
A movant may file a motion for summary judgment that, instead of proving or disproving facts, shows the non-movant has no viable cause of action or defense based on the non-movant’s pleadings. See generally Helena Lab. Corp. v. Snyder, 886 S.W.2d 767, 768–69 (Tex. 1994) (per curiam); Hansler v. Nueces County, No. 13-99-00583-CV, 2001 WL 997350, at *2 (Tex. App.—Corpus Christi May 3, 2001, no pet.) (mem. op.) (stating that summary judgment can be used to establish that the nonmovant has not pled a viable cause of action). Summary judgment based on a pleading deficiency may be proper if a party has had an opportunity, by special exception, to amend and fails to do so, or files an additional defective pleading. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Gallien v. Washington Mut. Home Loans, Inc., 209 S.W.3d 856, 866 (Tex. App.—Texarkana 2006, no pet.). A review of the pleadings in such case is de novo, with the reviewing court taking all allegations, facts, and inferences in the pleadings as true and viewing them in a light most favorable to the pleader. Natividad, 875 S.W.2d at 699 (noting that the focus of the review is on the non-movant’s pleadings at the time of the summary judgment).
If the plaintiff, after amending its petition in response to an order sustaining special exceptions, still fails to plead a valid claim, the trial court may grant summary judgment on the pleadings. Gross v. Davies, 882 S.W.2d 452, 454 (Tex. App.—Houston [1st Dist] 1994, writ denied) (citing Greater S.W. Office Park, Ltd. v. Tex. Commerce Bank Nat’l Ass’n, 786 S.W.2d 386, 388 (Tex. App.—Houston [1st Dist.] 1990, writ denied)). When
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a motion for summary judgment is directed solely to a petition, the reviewing court must take every factual allegation in the petition as true. Anders v. Mallard & Mallard, Inc., 817 S.W.2d 90, 93 (Tex. App.—Houston [1st Dist.] 1991, no writ). If a liberal construction of the petition to which the motion for summary judgment is directed reveals a valid claim, the judgment on the petition should be reversed. Id. We will affirm the summary judgment only if the pleadings are legally insufficient. Natividad, 875 S.W.2d at 699.
B. Applicable Law
Texas follows a “fair notice” standard for pleading, in which courts assess the sufficiency of pleadings by determining whether an opposing party can ascertain from the pleading the nature, basic issues, and the type of evidence that might be relevant to the controversy.” Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007); see also TEX. R. CIV. P. 47(a) (original pleading shall contain short statement of cause of action sufficient to give fair notice of the claim involved), 45(b) (pleading shall consist of a statement in plain and concise language of the plaintiff’s cause of action; the allegation is not objectionable “when fair notice to the opponent is given by the allegations as a whole”). “Rule 45 does not require that the plaintiff set out in his pleadings the evidence upon which he relies to establish his asserted cause of action.” Dallas Area Rapid Transit v. Morris, 434 S.W.3d 752, 760–61 (Tex. App.—Dallas 2014, pet denied) (quoting Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494–95 (Tex. 1988)).
The purpose of the fair notice requirement is to give the opposing party information sufficient to enable it to prepare a defense. Horizon/ CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000). A court will look to the pleader’s intent “and the pleading
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will be upheld even if some element of a cause of action has not been specifically alleged.” Morris, 434 S.W.3d at 761 (quoting Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982)).
C. Analysis
Chambers’s second issue challenges the trial court’s grant of Hallmark’s summary judgment on his pleadings. Hallmark had previously filed special exceptions complaining that Chambers failed to state a claim on which relief could be granted. Chambers amended his petition, attaching his original petition as an exhibit. At that time the court noted that Chambers’s pro se pleading was still defective and was “offensive to this [c]ourt.” The court went on to tell Chambers that his pleadings were not amended properly. Chambers was instructed to “[r]efine [his] pleadings, refile [sic] your lawsuit in a way that can sustain or overcome [Hallmark’s] challenge.”
On August 13, 2012, Chambers filed his second amended petition. This petition specifically pled the portions of the DTPA and the Texas Insurance Code that Chambers contended Hallmark violated with sufficient facts to put Hallmark on notice of the allegations against it. Additionally, Chambers complied with the trial court order and did not replead his claim for negligence. We determine that Chambers made a “good faith” effort to replead his claims to state a valid cause of action in compliance with the trial court’s order. See Humphreys v. Meadows, 938 S.W.2d 750, 753 (Tex. App.—Fort Worth 1996, writ denied) (explaining that if the plaintiff makes a good faith effort to amend after special exceptions, the defendant is required to specially except to the amended pleadings); but see Ford v. Performance Aircraft Servs., 178 S.W.3d 330, 336 (Tex. App.—Fort Worth 2005, pet. denied) (recognizing that a plaintiff’s right to cure is not
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unlimited).
Because the trial court had previously granted Hallmark’s special exceptions, Hallmark’s motion for summary judgment was an appropriate procedural tool to address continuing deficiencies. See Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). Because Hallmark did not specially except to the second amended petition we will construe the petition liberally in favor of Chambers. See Dallas Area Rapid Transit v. Morris, 434 S.W.3d 752, 761 (Tex. App.—Dallas 2014, pet. denied) (stating that “in the absence of special exceptions, a petition will be construed liberally in favor of the pleader”). We will determine whether Chambers’s live pleading states a claim upon which relief could be granted.
Chambers’s second amended petition included a section titled “Statement of Factual Allegations,” in which he pled the following relevant facts:
 Hallmark is an insurance company that writes homeowner’s and renter’s insurance policies in the State of Texas through a network of insurance company agents that are appointed as its agents. Virtually all policies sold by Defendant to homeowners or renters are single premium policies where the entire period of insurance coverage, . . . is paid for in one or more payments and policy is underwritten and placed into full force and effect.
 In selling single premium homeowner’s insurance policies, Defendant represents that if an insured’s underlying debt is paid off early or their insurance terminates, Defendant will refund the unearned portion of the homeowner’s insurance premium.
 Defendant has refused or failed to promptly refund unearned portions of the homeowner’s insurance premiums to insured and has unlawfully retained these premiums, unjustly enriching itself.
 Defendant maintains business policies and practices that require insureds to fulfill conditions not required by their insurance policies or by
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law as a precondition to obtaining refunds of unearned homeowner’s insurance premiums paid to Defendant by insured.
 Defendant has totally failed to establish procedures that are sufficient to ensure that it will receive timely notification from claims filed by insured to the extent that the claims department had terminated homeowner’s policy when insured has initiated a claim of loss and property is no longer insured as a direct result of the loss.
 Defendant delegates premium intake and refund functions to its agents and/or claims adjusters, but Defendant grossly fail[s] to implement any meaningful audit procedures to ensure that it[s] agents and/or claims adjusters are making timely refunds owed to insureds.
Chambers also titled sections of his second amended petition “Texas Deceptive Trade Practices—Consumer Protection Act Violations” and “Texas Insurance Code Violations” where he set forth the portions of the statutes of which he was complaining.6
1. Chambers’s DTPA Claims
The facts pled by Chambers, which we take as true for the purpose of this review, alleged that Hallmark represented that unearned premiums would be returned in the event of early policy termination. For instance, Chambers alleged that Hallmark violated the DTPA by “representing that a contract agreement confers or involves rights, remedies, or obligations which it does not have, nor intend to have, or which are prohibited by law.”7 TEX. BUS. & COMM. CODE § 17.46(b)(12). Chambers alleged that he paid the premium in full and that his insurance terminated before the expiration of the policy period.
6 Chambers’s code citations contained errors; however, we do not find that the citation errors precluded Hallmark from understanding the substantive allegations against it. See, e.g., CKB & Assocs., Inc. v. Moore McCormack Petro., Inc., 809 S.W.2d 577, 586 (Tex. App.—Dallas 1991, writ denied).
7 Chambers also alleged violations of Texas Business and Commerce Code section 17.46 (b)(5). See TEX. BUS. & COMM. CODE ANN. § 17.46(b)(5) (West, Westlaw through 2013 3d C.S.) (representing that goods or services have characteristics, uses, or benefits which they do not have).
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Chambers further alleged that Hallmark refused to refund the unearned portion of his premium in violation of the policy, and that such action was unlawful. The specific facts in the second amended petition, taken in conjunction with the alleged statutory violations, provide fair notice of Chambers’s DTPA claims. See Low v. Henry, 221 S.W.3d at 612; see also TEX. R. CIV. P. 47(a). The trial court erred in entering summary judgment on Chambers’s pleadings against Hallmark under the DTPA.
2. Claims under the Texas Insurance Code
We likewise find that Chambers’s pleadings, liberally construed, state claims for violations of the Texas Insurance Code. Chambers pled that Hallmark made misrepresentations regarding the rental policy he purchased.8 Specifically, Chambers complained Hallmark misrepresented that he would receive a refund of any unearned premiums paid on the policy. Chambers alleged Hallmark violated sections 541.051(1)(B), 541.052; and 541.061 of the Texas Insurance Code. Those statutes make misrepresentations by an insurer, directly or through advertising, actionable. See TEX. INS. CODE ANN. §§ 541.051, 052, .061 (West, Westlaw through 2013 3d C.S.). Because Hallmark moved for traditional summary judgment on the pleadings, we take the facts plead by Chambers as true and do not address the merits of his claims.
Employing a liberal reading of the pleadings—as required by the Texas Rules of Civil Procedure and case law—Chambers expressly pled that Hallmark made at least two
8 Chambers cited section 1153 of the Texas Insurance Code in his fact section discussing policy refunds. TEX. INS. CODE. ANN. § 1153.202 (West, Westlaw through 2013 3d C.S.) While we agree with Hallmark that section 1153 is wholly inapplicable to Chambers’s claims, we note that Chambers set forth sufficient facts, without reference to section 1153, to maintain his cause of action.
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representations. First, Chambers alleged that Hallmark represented that if the insurance terminated prior to the end of the policy period, then Hallmark would refund the unearned portion of the premium paid. Chambers noted that he did not receive his refund and that Hallmark failed to ensure its representatives made timely refunds. Second, Chambers pled that Hallmark maintained business policies and practices that required insureds to fulfill conditions not required by the wording in the policies or the law in order to obtain refunds. These statements were sufficient to plead a claim under the Texas Insurance Code. We find that Chambers’s pleadings comply with the fair notice provisions and were sufficient to allow Hallmark to determine the nature, basic issues, and type of evidence relevant to the controversy. The trial court erred in entering summary judgment on Chambers’s pleadings against Hallmark under the Texas Insurance Code. See Low, 221 S.W.3d at 612.
3. Chambers’s Coverage Claim
Chambers also contends that the trial court erred in granting summary judgment on his coverage claim. Chambers’s original petition contained allegations that could have conceivably constituted a coverage claim; however, those allegations were not included in Chambers’s second amended petition. Amended pleadings supersede and supplant previous pleadings. Smith Detective Agency & Nightwatch Serv., Inc. v. Stanley Smith Sec., Inc., 938 S.W.2d 743, 747 (Tex. App.—Dallas 1996, writ denied). When Chambers amended his pleadings and did not reassert his coverage claim, he effectively non-suited that claim. See FKM P’ship v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008) (discussing non-suit by amended
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petition). Chambers therefore did not have any pleadings before the trial court on his coverage issue, and it was not included in the summary judgment.
We sustain Chambers’s second issue as to his claims brought pursuant Chapter 17 of the Texas Business and Commerce Code and Chapter 541 of the Texas Insurance Code. We overrule Chambers’s issue as it applies to his coverage claim.
IV. SPECIAL EXCEPTIONS
By his third issue, Chambers complains that the trial court abused its discretion when it sustained Hallmark’s special exceptions to his original petition. The court ordered Chambers to 1) provide fair notice of the specific acts and violations alleged against Hallmark under the Texas Insurance Code and the DTPA, and 2) dismiss any and all claims against Hallmark that constitute negligent claim handling. Chambers did amend his pleadings to comply with the court’s order.
A. Standard of Review & Applicable Law
The purpose of special exceptions is to inform the opposing party of defects in its pleadings so it can cure them, if possible, by amendment. Auld, 34 S.W.3d at 897. The trial court has broad discretion to sustain special exceptions and order more definite pleadings as a particular case may require. See Hubler v. City of Corpus Christi, 564 S.W.2d 816, 820 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.). The standard of review of a trial court’s dismissal upon special exceptions is de novo on the legal question of whether the pleading stated a cause of action. Krupicka v. White, 584 S.W.2d 733, 737 (Tex. Civ. App.—Tyler 1979, no writ).
The trial court has wide discretion in ruling on special exceptions and its action in
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sustaining them, where it grants leave to amend, will not be disturbed on appeal in the absence of an abuse of discretion. Portugal v. Jackson, 647 S.W.2d 393, 394 (Tex. App.—Waco 1983, writ ref’d n.r.e.). A trial court abuses its discretion if it: 1) reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law; 2) fails to correctly analyze or apply the law; or 3) acts without reference to any guiding rules or principles. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).
The party complaining of the pleadings must identify the particular part of the pleading challenged and point out the particular defect, omission, obscurity, duplicity, generality, or other insufficiency. See TEX. R. CIV. P. 91; Muecke v. Hallstead, 25 S.W.3d 221, 224 (Tex. App.—San Antonio 2000, no pet.). General allegations that the petition is vague, indefinite, or does not state a cause of action are not sufficient to identify the defect. Spillman v. Simkins, 757 S.W.2d 166, 168 (Tex. App.—San Antonio 1988, writ dism’d). If the special exception is not specific, it is a prohibited general demurrer and should be overruled. TEX. R. CIV. P. 90; Spillman, 757 S.W.2d at 168.
B. Analysis
Hallmark’s special exceptions were filed with its original answer. It set out the paragraphs of Chambers’s original pleading that it excepted to and identified the defective portions of the pleading. See Spillman, 757 S.W.2d at 168. Specifically, Hallmark excepted to the “Noncompliance with Texas Insurance Code: Unfair Settlement Practice and the Prompt Payment of Claims” section and the “Negligence” section of Chambers petition. See id. Hallmark requested the court order Chambers to replead to state the
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alleged acts and omissions Hallmark committed that entitled Chambers to damages. Hallmark’s exceptions were specific and were not a prohibited general demurrer. See id.
The trial court did not abuse its discretion sustaining Hallmark’s special exceptions. We overrule Chambers’s third issue.
IV. CONCLUSION
We reverse and remand on Chambers’s DTPA and Texas Insurance Code claims and affirm as to the remainder of the judgment.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the
11th day of June, 2015.

Jul 14th, 2015 Insurance Defense Litigation

Travel and Course of Scope Issue in Texas Workers’ Compensation Lawsuit–Texas Workers’ Compensation Defense Lawyers

IN THE SUPREME COURT OF TEXAS

NO. 14-0272

SEABRIGHT INSURANCE COMPANY, PETITIONER,
v.
MAXIMINA LOPEZ, BENEFICIARY OF CANDELARIO LOPEZ, DECEASED,
RESPONDENT

ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS

Argued March 26, 2015
JUSTICE GREEN delivered the opinion of the Court, in which CHIEF JUSTICE HECHT,
JUSTICE WILLETT, JUSTICE GUZMAN, JUSTICE LEHRMANN, JUSTICE BOYD, JUSTICE DEVINE, and
JUSTICE BROWN joined.
JUSTICE JOHNSON filed a dissenting opinion.
This workers’ compensation case requires us to determine whether summary judgment
evidence conclusively established that an employee was acting in the course and scope of his
employment when he died in an automobile accident while traveling to a job site. A contested case
hearing officer for the Texas Department of Insurance, Workers’ Compensation Division, heard
evidence and determined that the employee suffered a compensable injury, and a three-member
appellate panel affirmed. The insurer sought judicial review, and the trial court granted summary
judgment for the claimant and affirmed the administrative decision. The court of appeals likewise
affirmed. 427 S.W.3d 442, 450–51 (Tex. App.—San Antonio 2014). We agree that conclusive
evidence established that the employee was acting in the course and scope of his employment at the
time of his death and affirm the court of appeals’ judgment.
I. Factual and Procedural Background
The relevant facts of this case are undisputed. Interstate Treating, Inc., a company that
fabricated and installed materials for the oil and gas processing industry, hired Candelario Lopez in
1999. 1 Interstate Treating’s primary office and fabrication department was in Odessa, Texas.
Interstate Treating provided its installation services at other, often remote, locations. Lopez resided
in Rio Grande City, Texas, with his wife, Maximina Lopez, but he never worked in the vicinity of
Rio Grande City during his employment with Interstate Treating. When Interstate Treating assigned
Lopez to work at remote job sites, Lopez made his own living arrangements—usually staying in a
motel—and Interstate Treating paid Lopez an hourly wage plus per diem for his lodging and food
expenses. Interstate Treating also would provide Lopez with a company vehicle to use at the remote
job locations, but Lopez was not paid for any time traveling to or from the job site.
In September 2007, Interstate Treating assigned Lopez to work on the installation of a gas
processing plant near Ridge, Texas—a distance the parties estimate to be 450 miles from Lopez’s
home in Rio Grande City. Although Interstate Treating expected Lopez to stay in a motel, Lopez
had full control of which motel he stayed in while working at the Ridge job site. He chose to stay
approximately forty miles from Ridge at a motel in Marlin, Texas. Interstate Treating allowed Lopez
1 Lopez worked temporary assignments for Interstate Treating. The record indicates that there were times
between temporary assignments that Lopez was not working.
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to use a company vehicle to drive between his motel in Marlin and the Ridge job site. Interstate
Treating paid the vehicle’s insurance and provided Lopez with a credit card so that he could fuel the
vehicle. Lopez drove from his motel in Marlin to the Ridge job site every day, often allowing other
Interstate Treating employees to ride with him. Although Interstate Treating had no express policy
regarding carpooling, the use of company vehicles to transport employees to and from remote job
sites was a common occurrence. On the morning of September 11, 2007, Lopez was transporting
two other Interstate Treating employees to the Ridge job site when he died in an automobile accident.
Maximina sought death benefits from Interstate Treating’s workers’ compensation insurance
carrier, SeaBright Insurance Co. SeaBright denied coverage, taking the position that Lopez was not
acting in the course and scope of his employment at the time of the accident. Maximina then
initiated an administrative proceeding to challenge SeaBright’s denial of benefit payments. The
parties participated in a contested case hearing under Texas Labor Code section 410.151, and the
hearing officer determined that Lopez was acting in the course and scope of his employment and
ordered SeaBright to pay death benefits. A three-member appeals panel affirmed the hearing
officer’s decision.
SeaBright sought independent judicial review of the administrative decision. SeaBright’s
petition challenged four administrative determinations:
C Lopez’s work involved travel away from Interstate Treating’s premises;
C Lopez was engaged in or furthering the affairs or business of Interstate Treating at the time
of his fatal vehicle accident on September 11, 2007;
C Lopez sustained damage or harm to the physical structure of his body in the course and scope
of his employment at the time of his fatal vehicle accident on September 11, 2007; and
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C Lopez sustained a compensable injury on September 11, 2007.
Both parties filed motions for summary judgment on the issue of whether Lopez was acting in the
course and scope of his employment at the time of the accident. The trial court granted Maximina’s
motion and denied SeaBright’s motion, affirming the administrative decision.
SeaBright appealed, and the court of appeals affirmed. 427 S.W.3d at 450–51. The court
of appeals began its opinion by noting that “[f]or an employee’s injury to be considered in the course
and scope of employment, it must (1) relate to or originate in the employer’s business, and (2) occur
in the furtherance of the employer’s business.” Id. at 447. In analyzing the first element, the court
of appeals concluded that the accident occurred during Lopez’s commute from his employerprovided
housing to the job site, in an employer-provided vehicle, and in an area of the state he
would not have been in but for his employment with Interstate Treating. Id. at 450. This evidence
of the relationship between Lopez’s travel and his employment with Interstate Treating was “so close
it can fairly be said the injury had to do with and originated in the work, business, trade, or
profession of Interstate [Treating].” Id. (citation omitted). Citing this Court’s opinion in Leordeanu
v. American Protection Insurance Co., 330 S.W.3d 239, 242 (Tex. 2010), the court of appeals held
that Lopez’s travel to the job site met the second element because such travel always furthers the
employer’s business. 427 S.W.3d at 447–48. Ultimately, the court of appeals affirmed the trial
court’s judgment, finding the summary judgment evidence established that Lopez was acting in the
course and scope of his employment at the time of the accident as a matter of law. Id. at 450–51.
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SeaBright petitioned this Court for review. We granted the petition. 58 TEX. SUP. CT. J. 369
(Feb. 23, 2015).
II. Discussion
We review a grant of summary judgment de novo. State v. Ninety Thousand Two Hundred
Thirty-Five Dollars & No Cents in U.S. Currency ($90,235), 390 S.W.3d 289, 292 (Tex. 2013). A
party moving for traditional summary judgment has the burden to prove that there is no genuine issue
of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review
summary judgment evidence “in the light most favorable to the party against whom the summary
judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not.” Mann Frankfort Stein & Lipp
Advisors, Inc., 289 S.W.3d at 848 (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.
2005)). When both sides move for summary judgment and the trial court grants one motion and
denies the other, we review the summary judgment evidence presented by both sides, determine all
questions presented, and render the judgment the trial court should have rendered. Comm’rs Court
of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997).
“The Texas Legislature enacted the [Texas Workers’ Compensation] Act in 1913 in response
to the needs of workers, who, despite escalating industrial accidents, were increasingly being denied
recovery.” Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000) (citation omitted). In order to
balance the competing interests of providing “compensation for injured employees while protecting
employers from the costs of litigation, the Legislature provided a mechanism by which workers
5
could recover from subscribing employers without regard to the workers’ own negligence while
limiting the employers’ exposure to uncertain, possibly high damage awards permitted under the
common law.” In re Poly-Am., L.P., 262 S.W.3d 337, 350 (Tex. 2008) (citations omitted). The Act
ultimately struck a bargain that allows employees to receive “a lower, but more certain, recovery than
would have been possible under the common law.” Kroger Co., 23 S.W.3d at 350 (citation omitted).
We liberally construe the Act in favor of injured workers to effectuate these purposes. In re Poly-
Am., L.P., 262 S.W.3d at 350.
The Act provides for employee compensation when injuries “arise[] out of and in the course
and scope of employment for which compensation is payable.” TEX. LAB. CODE § 401.011(10)
(defining “compensable injury”). While determining whether an injury is compensable may involve
other inquiries, the only issue the parties present in this case is whether Lopez was acting in the
course and scope of his employment at the time of his death. See id. §§ 401.011(10), (12);
410.302(b) (“A trial [reviewing a final decision of the appeals panel regarding compensability] is
limited to issues decided by the appeals panel and on which judicial review is sought.”). The
Legislature defined “course and scope of employment” to mean:
[A]n activity of any kind or character that has to do with and originates in the work,
business, trade, or profession of the employer and that is performed by an employee
while engaged in or about the furtherance of the affairs or business of the employer.
The term includes an activity conducted on the premises of the employer or at other
locations.
Id. § 401.011(12). We have previously stated that a similar statutory definition of “course and scope
of employment” required the injury to “(1) relate to or originate in, and (2) occur in the furtherance
of, the employer’s business.” Leordeanu, 330 S.W.3d at 241.
6
Regarding the origination element, “[a]n employee’s travel to and from work . . . cannot
ordinarily be said to originate in the [employer’s] business . . . because ‘[t]he risks to which
employees are exposed while traveling to and from work are shared by society as a whole and do not
arise as a result of the work of employers.’” Id. at 242 (quoting Evans v. Ill. Emp’rs Ins. of Wausau,
790 S.W.2d 302, 305 (Tex. 1990)). However, a distinction can be made if “the relationship between
the travel and the employment is so close that it can fairly be said that the injury had to do with and
originated in the work, business, trade or profession of the employer.” Shelton v. Standard Ins. Co.,
389 S.W.2d 290, 292 (Tex. 1965). This inquiry is satisfied if the employee’s travel was “pursuant
to express or implied conditions of his employment contract.” Meyer v. W. Fire Ins. Co., 425
S.W.2d 628, 629 (Tex. 1968) (citations omitted). Courts have generally employed a fact-intensive
analysis to determine whether an employee’s travel originated in the employer’s business, focusing
on the nature of the employee’s job, the circumstances of the travel, and any other relevant facts.
See, e.g., Tex. Mut. Ins. Co. v. Jerrols, 385 S.W.3d 619, 630 (Tex. App.—Houston [14th Dist.] 2012,
pet. dism’d); Zurich Am. Ins. Co. v. McVey, 339 S.W.3d 724, 730 (Tex. App.—Austin 2011, pet.
denied); see also Am. Home Assur. Co. v. De Los Santos, No. 04-10-00852-CV, 2012 WL 4096258,
at *4 (Tex. App.—San Antonio Sept. 19, 2012, pet. denied) (mem. op.).
The facts of this case are most similar to those of Texas Employers’ Insurance Ass’n v. Inge,
208 S.W.2d 867 (Tex. 1948). In that case, the employee, Inge, worked at a drilling site in an isolated
part of Pecos County, Texas, that was 31.5 miles from the nearest city. Id. at 867–68. Inge was paid
hourly wages while working at the drilling site, but was not paid for travel time to and from the
drilling site. Id. at 868. However, the employer expected one of its employees to transport the other
7
workers to and from the drilling site and paid that employee seven cents per mile for doing so. Id.
The employer allowed the workers to determine which employee was to drive, and the group chose
Inge. Id. The employer paid Inge the seven cents per mile, but did not pay for gasoline or vehicle
repairs or exercise control over Inge’s route, speed, manner of driving, or schedule. Id. Inge later
died in a car accident on a return trip from work. Id. The parties stipulated to the above facts, and
the trial court concluded that Inge was acting in the course and scope of his employment. Id. at 867.
We affirmed, noting that the “location of the drilling site in an uninhabited area made it essential that
[the employer] furnish transportation to his employees,” and that “this [free transportation] was an
important part of their contract of employment.” Id. at 869.
While Inge was not decided on a motion for summary judgment, we reviewed the trial court’s
application of the law to the stipulated facts de novo. See id. at 867 (“[T]he only matters in dispute
were the legal questions whether Inge, at the time of his death, was acting in the course of his
employment . . . .”); see also Amaro v. Wilson Cnty., 398 S.W.3d 780, 784 (Tex. App.—San Antonio
2011, no pet.) (reviewing a trial court’s application of the law to stipulated facts de novo); Markel
Ins. Co. v. Muzyka, 293 S.W.3d 380, 384 (Tex. App.—Fort Worth 2009, no pet.) (same); Panther
Creek Ventures, Ltd. v. Collin Cent. Appraisal Dist., 234 S.W.3d 809, 811 (Tex. App.—Dallas 2007,
pet. denied) (same); Alma Group, L.L.C. v. Palmer, 143 S.W.3d 840, 843 (Tex. App.—Corpus
Christi 2004, pet. denied) (same). “A trial court has no discretion in deciding the law or its proper
application.” Alma Group, L.L.C., 143 S.W.3d at 843 (citation omitted); accord In re D. Wilson
Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006) (orig. proceeding).
8
Here, we likewise review the application of law to the summary judgment evidence to
determine whether the relationship between Lopez’s travel and employment is so close that it can
fairly be said that his injury had to do with and originated in Interstate Treating’s work, business,
trade, or profession. See Shelton, 389 S.W.2d at 292. Our starting point is to determine what
Interstate Treating’s business was. Interstate Treating’s president testified in a deposition that, at the
time of the accident, Interstate Treating had roughly 150 employees. About half of those employees
worked at Interstate Treating’s Odessa office fabricating equipment. The other half worked on a
temporary assignment installing a gas processing plant near Ridge. The location of installation
employees was never permanent, and Interstate Treating installed equipment in multiple states.
Although Interstate Treating could have hired local employees at each temporary, remote job site,
its general practice was to hire people who had worked on previous installation jobs. From the
evidence in the record, we conclude that Interstate Treating’s business called for employing
specialized, non-local work crews in constantly changing, remote locations on temporary
assignments.
We next address the nature of Lopez’s employment. Lopez had worked on previous
installation jobs for Interstate Treating, and he was hired as a civil foreman at the temporary job site
near Ridge. His job required him to oversee the installation of all of the plant’s concrete foundations
and the placement of the plant’s equipment. While working at a temporary, remote job site like the
one near Ridge, Lopez and his coworkers were paid per diem to offset lodging and food expenses.
Although Lopez could stay at any motel he wished, Interstate Treating expected him to secure
temporary lodging rather than commute 450 miles from his home in Rio Grande City. Upon Lopez’s
9
request, Interstate Treating provided him with a company vehicle to drive to and from the job site
and paid the vehicle’s fuel and insurance expenses. Lopez was driving himself and two of his
coworkers from the motel to the Ridge job site in the company-provided vehicle when he died.
The ultimate inquiry under the origination element is to determine if the relationship between
Lopez’s travel and his employment with Interstate Treating “is so close that it can fairly be said that
the injury had to do with and originated in the work, business, trade or profession of the employer.”
Id. As discussed above, we conclude that Interstate Treating’s business called for employing
specialized, non-local work crews in constantly changing, remote locations on temporary
assignments. Interstate Treating’s business required its installation workers, like Lopez, to obtain
temporary housing and travel from that temporary housing to that temporary, remote location.
Lopez’s travel from his temporary housing to the Ridge job site and, more importantly, the risks
associated with such travel were dictated by Interstate Treating’s business model and enabled by
Interstate Treating’s provision of the vehicle and payment of per diem and other expenses. See
Meyer, 425 S.W.2d at 629 (stating that an employee’s travel injuries fall in the course and scope of
employment if the travel is “pursuant to express or implied conditions of his employment contract”).
As with the employee in Inge, who was not provided a company car or fuel expenses but who was
paid per mile to transport other employees to a remote work location, the provision of transportation
to the temporary, remote work location was an essential part of Lopez’s employment. Lopez’s travel
is more akin to those “employees such as deliverymen, messengers, collectors, and others, who by
the very nature of the work they have contracted to do are subjected to the perils and hazards of the
streets.” Smith v. Tex. Emp’rs’ Ins. Ass’n, 105 S.W.2d 192, 193 (Tex. 1937). Accordingly, we hold
10
that the relationship between Lopez’s travel and his employment “is so close that it can fairly be said
that the injury had to do with and originated in the work, business, trade or profession” of Interstate
Treating. Shelton, 389 S.W.2d at 292. Maximina conclusively established the origination element.
Regarding the furtherance element, we have recognized that “[a]n employee’s travel to and
from work makes employment possible and thus furthers the employer’s business.” Leordeanu, 330
S.W.3d at 242. Here, it is undisputed that Lopez was traveling to the Ridge job site when he died.
Lopez’s travel makes “employment possible and thus furthers” Interstate Treating’s business. See
id. Maximina conclusively established the furtherance element.
Even if an employee is engaged in actions that originate in and further the employer’s
business at the time of injury, the employee may not be acting in the course and scope of his
employment if his actions fall in one of two statutory exclusions. The phrase “course and scope of
employment” does not include:
(A) transportation to and from the place of employment unless:
(i) the transportation is furnished as a part of the contract of employment or
is paid for by the employer;
(ii) the means of the transportation are under the control of the employer; or
(iii) the employee is directed in the employee’s employment to proceed from
one place to another place; or
(B) travel by the employee in the furtherance of the affairs or business of the
employer if the travel is also in furtherance of personal or private affairs of the
employee unless:
(i) the travel to the place of occurrence of the injury would have been made
even had there been no personal or private affairs of the employee to be
11
furthered by the travel; and
(ii) the travel would not have been made had there been no affairs or business
of the employer to be furthered by the travel.
TEX. LAB. CODE § 401.011(12)(A)–(B). “[S]ubsection (A) applies to travel to and from the place
of employment,” and “subsection (B) applies to other dual-purpose travel.” Leordeanu, 330 S.W.3d
at 248 (footnote omitted). Both the origination and furtherance elements must be satisfied even if
an employee qualifies for one of the exceptions to an exclusion under subsections (A) or (B). See
id. at 244, 249; Freeman v. Tex. Comp. Ins. Co., 603 S.W.2d 186, 192 (Tex. 1980) (stating that the
exceptions to the exclusion do “not enlarge the definition of ‘course of employment’”).
Here, it is undisputed that Lopez was traveling only to his place of employment, rather than
furthering any of his personal or private affairs. Therefore, Lopez’s travel implicates the exclusion
in subsection (A) and not subsection (B). See Leordeanu, 330 S.W.3d at 248. It is also undisputed
that Interstate Treating provided Lopez with a company vehicle to drive to and from the job site and
paid the vehicle’s fuel and insurance expenses. These undisputed facts conclusively establish that
Interstate Treating paid for Lopez’s transportation. Maximina therefore conclusively established the
exception to the exclusion in subsection (A)(i). See TEX. LAB. CODE § 401.011(12)(A)(i). We
therefore hold that Lopez was acting in the course and scope of his employment at the time of the
September 11, 2007 accident.
III. Conclusion
Maximina conclusively established that Lopez’s travel to the Ridge job site originated in and
furthered Interstate Treating’s business, satisfying the statutory definition of “course and scope of
12
employment.” Because Interstate Treating furnished and paid for Lopez’s transportation, the
statutory exclusion in subsection (A) does not apply. Therefore, we hold that Lopez was acting in
the course and scope of his employment when he died, and Maximina is entitled to benefits. We
affirm the court of appeals’ judgment.
______________________________
Paul W. Green
Justice
OPINION DELIVERED: June 12, 2015
13
IN THE SUPREME COURT OF TEXAS
444444444444
NO. 14-0272
444444444444
SEABRIGHT INSURANCE COMPANY, PETITIONER,
v.
MAXIMINA LOPEZ, BENEFICIARY OF CANDELARIO LOPEZ, DECEASED,
RESPONDENT
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444
JUSTICE JOHNSON, dissenting.
In my view, Lopez’s death was not in the course and scope of his employment. Because the
Court holds otherwise, I respectfully dissent.
An injured employee is entitled to compensation under the Texas Workers’ Compensation
Act if “the injury arises out of and in the course and scope of employment.” TEX. LAB. CODE
§ 406.031(a)(2). As relevant to this case,
“[c]ourse and scope of employment” means an activity of any kind or character that
has to do with and originates in the work, business, trade, or profession of the
employer and that is performed by an employee while engaged in or about the
furtherance of the affairs or business of the employer. The term includes an activity
conducted on the premises of the employer or at other locations. The term does not
include:
(A) transportation to and from the place of employment unless:
(i) the transportation is furnished as a part of the contract of
employment or is paid for by the employer;
(ii) the means of the transportation are under the control of the
employer; or
(iii) the employee is directed in the employee’s employment to
proceed from one place to another place;
Id. § 401.011(12).
The definition requires two elements to be met for an injury to have occurred in the course
and scope of employment. See Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 241 (Tex. 2010).
The first is origination, which requires that the activity “has to do with and originates in the work,
business, trade, or profession of the employer.” TEX. LAB. CODE § 401.011(12). The second is
furtherance, which requires that the activity be “performed by an employee while engaged in or about
the furtherance of the affairs or business of the employer.” Id. The part of the definition that
specifically excludes injuries occurring during transportation to and from the place of employment,
commonly referred to as the “coming and going rule,” is relevant to the disposition of this case. See
id. § 401.011(12)(A)(i)-(iii).
An injury while traveling to or from the place of employment is excluded from coverage
unless one of three exceptions to the exclusion are met. Id. But proving an exception to the coming
and going rule does not mean that the travel was an activity within the course and scope of
employment, so as to render the injury compensable. See Zurich Am. Ins. Co. v. McVey, 339 S.W.3d
724, 729 (Tex. App.—Austin 2011, pet. denied). Rather, proving an exception merely prevents the
employee’s injury during the travel from being automatically excluded from coverage. See Tex. Gen.
Indem. Co. v. Bottom, 365 S.W.2d 350, 353 (Tex. 1963); McVey, 339 S.W.3d at 729. And injuries
to employees during travel to and from work generally do not originate in the employer’s business
2
because “[t]he risks to which employees are exposed while traveling to and from work are shared
by society as a whole and do not arise as a result of the work of employers.” Evans v. Ill. Emp’rs
Ins. of Wausau, 790 S.W.2d 302, 305 (Tex. 1990); see Smith v. Tex. Emp’rs’ Ins. Ass’n, 105 S.W.2d
192, 193 (Tex. 1937).
At the time of the accident, Lopez was traveling to work on State Highway 7 in a company
truck he had been granted permission to use. Thus, an exception to the coming and going exclusion
applies because the transportation was paid for by his employer, Interstate Treating, Inc. TEX. LAB.
CODE § 401.011(12)(A)(i). But unless the evidence shows that his injury met the furtherance and
origination requirements, it was not covered.
The furtherance aspect is satisfied because Lopez was on his way to the job site. See
Leordeanu, 330 S.W.3d at 242. Therefore, whether the accident originated in Interstate Treating’s
business is determinative of the course and scope issue. In making that determination, the focus is
on “whether the relationship between the travel and the employment is so close that it can fairly be
said that the injury had to do with and originated in the work, business, trade or profession of the
employer.” Id. The Court has noted several factors that reflect on whether an employee’s travel
originates in the employer’s business or work, including: (1) whether the employment contract
expressly or impliedly required the travel involved; (2) whether the employer furnished the
transportation; (3) whether the employee was traveling on a special mission for the employer; and
(4) whether the travel was at the direction of the employer, such as requiring the employee to bring
tools or other employees to work or another location. See, e.g., Am. Gen. Ins. Co. v. Coleman, 303
S.W.2d 370, 374 (Tex. 1957) (identifying that undertaking a special mission or performing a service
3
at the direction of the employer is within the course and scope of employment even if also going to
or leaving from the place of employment); Tex. Emp’rs’ Ins. Ass’n v. Inge, 208 S.W.2d 867, 868-69
(Tex. 1948) (“The substance of the arrangement was that the members of the drilling crew were
being transported to the well location free of cost to them; and this was an important part of their
contract of employment.”). No single factor is necessarily determinative, but we have said that
“[r]educed to its simplest terms, the problem is whether [the injured employee] was already working,
or was simply on his way to work, at the time of the accident.” Meyer v. W. Fire Ins. Co., 425
S.W.2d 628, 628 (Tex. 1968).
The Court relies on Meyer for the proposition that “origination” is satisfied “if the
employee’s travel was ‘pursuant to express or implied conditions of his employment contract.’” ___
S.W.3d at ___ (quoting Meyer, 425 S.W.2d at 629-30). Certainly, the Court’s statement is true, but
it does not apply to this case. In Meyer, the injured employee was a service supervisor for a home
builder. Meyer, the injured employee, frequently took calls at his home or wherever he happened
to be, and responded to them directly from there. As we explained the facts,
[Meyer’s] duties did not require him to report to the office daily or at any particular
time. Although he “liked to get by” the office once a day to pick up messages, he did
not always do so. He did not have a desk at his employer’s office, and he usually
received complaints and did his required paper work at his home.
On the day of the automobile accident and resulting injury, Meyer began the working
day at home by taking two business telephone calls from Fairview Addition
homeowners and completing some paper work in preparation for a meeting at the
office that afternoon. He testified in his deposition that he then left his home to make
service calls in a subdivision in Northeast Austin. Although he was not required to
report to his employer’s office that morning and had no duties to perform there, he
decided to drive by the office on his way to the subdivision to determine whether
there were any messages relating to service calls in Northeast Austin, so that he could
4
perform all his work in that area at one time. The automobile collision occurred
before he reached his employer’s office, and on the usual and customary route
between Meyer’s home and the office.
Meyer, 425 S.W.2d at 629. The trial court granted summary judgment to the workers’ compensation
insurer on the basis that Meyer was not in the course of his employment when he was injured in the
accident, and the court of appeals affirmed. This Court reversed and remanded on the basis that
Meyer’s duties as a service supervisor required him to travel from place to place in
order to discharge the duties of his employment. Thus there is evidence that he was
impliedly directed to travel to make his service calls on the morning of the accident,
and injuries thus sustained while furthering his employer’s business by making such
service calls would be compensable . . . .
The [evidence] supports the contention that Meyer was not on his way to [b]egin
work, or to be assigned work; but that he had already begun work and was traveling
on the streets to make service calls pursuant to his usual duties, and merely deviated
to his employer’s office to see if there were other duties to be performed in the
neighborhood of his planned service calls. Assuming that the evidence upon trial on
the merits were to establish that Meyer was not reporting to work or to be assigned
work at his employer’s office, his deviation to his employer’s office while in the
course of his usual service calls would not place him within the category of workers
driving from home to work, . . .
Id. at 630.
The differences between Meyer’s situation and Lopez’s situation are readily apparent. Meyer
did not have a fixed place to work, such as an office or particular job site. Id. at 629. Lopez did.
Meyer was not traveling to get to his work; he was traveling as part of his work. Id. at 630. Lopez
was not traveling as part of his work; he was traveling to get to his work. Meyer had already begun
work when he was injured. Id. Lopez had yet to begin work when he was injured. There is no
evidence that express or implied conditions of Lopez’s employment contract required more than that
he show up at the job site and work.
5
Traveling public roadways entails risks of accidents and injuries. Employees who travel as
part of their duties are at risk of being injured during the travel, whereas they would not have that
risk if they worked at a fixed place of employment. See Smith, 105 S.W.2d at 193. Even though the
risk of traffic injuries is qualitatively the same as to both employees traveling to or from work and
those employees whose job duties require travel, the latter employee’s risk of traffic injury is in
addition to the risk of merely going to and from work that all employees share. Plus, travel by
employees as part of their job duties clearly would be in the course and scope of employment . But
Lopez had not yet begun work at the time of the accident. This risk of injury to which he was
exposed on the morning of the accident was the same as any other person traveling on public roads
to reach a job site. The duties of his job did not create the chances of his being injured. And the fact
that he was going to work from a temporary residence in Marlin does not change that. Whether he
was going to work from his home in Rio Grande City to a job site forty miles away or traveling forty
miles to Interstate Treating’s job site from his temporary residence in Marlin, the risk of injury to
which Lopez was exposed under the facts of this case is the same: the risk of injury in a traffic
accident on a public roadway while on the way to begin work. That is not a risk covered by
SeaBright Insurance’s policy of workers’ compensation insurance.
The Court’s reliance on Texas Employers’ Insurance Association v. Inge, 208 S.W.2d 867
(Tex. 1948), is also misplaced. There the employer paid $0.07 per mile for an employee to transport
himself and other employees to a remote drill site, although the employees determined which of them
would drive. Inge, 208 S.W.2d at 868. The drill site was remote, housing was not available nearby,
and the company offered free transportation to its employees as an employment incentive. See id.
6
at 868-69. Further, the existing wartime conditions necessitated employer-provided transportation
as the only practical manner to secure employees in the remote location. Id. at 869. In Lopez’s case,
however, there were motels near the Ridge job site, and Lopez’s supervisor even asked Lopez why
he was staying so far from the site.
Moreover, it was not Interstate Treating’s policy to provide its employees with off-site
transportation as an employment incentive for field projects. As noted previously, the company
merely acquiesced to Lopez’s request to use a company truck to travel to and from work. Interstate
Treating did not initiate Lopez’s use of the truck by offering it to him. No evidence suggests that
Interstate Treating explicitly or implicitly required Lopez to transport other workers to the job site,
nor is there evidence that Interstate Treating promised other employees free transportation by means
of the truck Lopez was given permission to use. Nothing in the record suggests that Interstate
Treating had to offer transportation incentives to its field employees in order to secure or retain their
employment.
The Court says that Interstate Treating’s business model calls for extended-duration field
work away from employees’ residences, so Lopez’s travel was effectively dictated by Interstate
Treating. __ S.W.3d __. However, where the employee is traveling to a fixed-location job site on
public roads, regardless of whether the employee leaves from a temporary or permanent residence,
the risk is the same—the ordinary risks associated with highways and roads. There is no meaningful
distinction between the two. This situation is not analogous to those instances where the duties of
the job itself require travel, such as travel by delivery and service workers.
7
Additionally, while the Court credits Interstate Treating’s payment of a per diem as evidence
of a close relationship between travel and the employment, merely increasing a worker’s pay through
a per diem does not expand workers’ compensation coverage to include ordinary risks of traveling
to and from a job site. A per diem is simply a form of compensation, and in Lopez’s case it was not
related to commuting. As the record reflects, the per diem was for temporary housing and meal
expenses. The type of lodging he rented, the location of the lodging, and the types of food he ate
were not matters dictated by Interstate Treating. And to the extent the lodging was distant from the
job site, exposing Lopez to increased traffic during his commute to and from work, the choice of
how far he had to drive to get to work was his.
Workers’ compensation insurance is not life insurance. Nor is it all-risk accident insurance.
It is insurance covering work-related injuries. While tragic, Lopez’s death under these circumstances
did not originate in his employment duties for Interstate Treating. Rather, it originated in the
ordinary, usual risks all workers assume when they travel to and from fixed work locations.
I would hold that the record conclusively proves that the requisite nexus between the travel
and Lopez’s employment duties did not exist, and Lopez was not injured in the course and scope of
his employment. I would reverse the judgment of the court of appeals and render judgment for
SeaBright Insurance Company.
________________________________________
Phil Johnson
Justice
OPINION DELIVERED: June 12, 2015

Jul 14th, 2015 Workers' Compensation Defense

EEOC Sues Dunkin’ Donuts for Disability Discrimination–Fort Worth, Texas Employment Lawyers

EEOC Sues Dunkin’ Donuts for Disability Discrimination

PRESS RELEASE
7-6-15

Restaurant Fired Manager Days Before Medical Leave for Cancer Surgery, Federal Agency Charges

BALTIMORE – OHM Concessions Group, LLC, which operates Dunkin’ Donuts stores at Baltimore-Washington International Airport (BWI), violated federal law when it refused to provide a regional manager with medical leave and instead fired her because of her disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced today.

According to the EEOC’s lawsuit, Joan O’Donnell successfully performed her job duties as a regional manager at the company’s BWI Dunkin’ Donuts locations. After O’Donnell was diagnosed with breast cancer, she e-mailed the owner to explain that she was diagnosed with breast cancer and would need surgery. She also talked to her supervisor about her diagnosis and requested four to eight weeks of unpaid leave for surgery, chemotherapy and radiation treatment. The EEOC charged that Dunkin’ Donuts refused to provide a reasonable accommodation and instead abruptly discharged O’Donnell because of her disability just three days before the start of her medical leave.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit (EEOC v. OHM Concessions Group, LLC, d/b/a Dunkin Donuts, Civil Action No. 15-1946) in U.S. District Court for the District of Maryland, Baltimore Division after first attempting to reach a pre-litigation settlement through its conciliation process.

“Granting an employee unpaid leave for needed medical treatment is not only the compassionate thing to do, it is required by federal law unless the employer can show it would pose an undue hardship,” said EEOC Philadelphia District Director Spencer H. Lewis, Jr.

EEOC Regional Attorney Debra M. Lawrence added, “It is disappointing that as we mark the 25th anniversary of the ADA later this month, some employers still fail to understand that a leave of absence for medical treatment related to a disability, such as breast cancer, constitutes a reasonable accommodation.”

The EEOC Philadelphia District Office has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio. The legal staff of the EEOC Philadelphia District Office also prosecutes discrimination cases arising from Washington, D.C. and parts of Virginia.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the agency is available at its website, www.eeoc.gov.

Jul 14th, 2015 Employment Law Defense

Appeals Court Affirms Jury Verdict of $1.5 Million in EEOC Sexual Harassment/ Retaliation Suit Against New Breed Logistics–Fort Worth, Texas Employment Defense Lawyers

Appeals Court Affirms Jury Verdict of over $1.5 Million in EEOC Sexual Harassment and Retaliation Suit Against New Breed Logistics

PRESS RELEASE
7-10-15

Company Subjected Three Women to Abuse by Supervisor, Fired Male Employee Who Supported Harassment Victims

MEMPHIS, Tenn. – A federal appeals court has refused to grant New Breed Logistics’ petition for rehearing of a decision in favor of the U.S. Employment Opportunity Commission (EEOC), the federal agency announced today. The denial of the petition upholds a jury verdict of over $1.5 million in EEOC’s lawsuit against the High Point, N.C.-based logistics services provider for sexual harassment and retaliation against three temporary female employees. New Breed had petitioned the full panel of the Sixth Circuit Court of Appeals to rehear the case.

On April 22, the appeals court affirmed the May 9, 2013 federal jury verdict in Memphis. The jury had found in favor of EEOC, and awarded the discrimination victims $1,513,094. Judge S. Thomas Anderson, U.S. District Judge for the Western District of Tennessee, presided over the trial and denied New Breed’s motion for a new trial on all grounds. According to the EEOC’s suit, Civil Action No. 2:10-cv-02696-STA-TMP in the U.S. District Court for the Western District of Tennessee at Memphis, New Breed Logistics unlawfully discriminated against three female workers in its Memphis warehouse who were sexually harassed by a New Breed supervisor, and retaliated against them after they objected to his sexual advances. The EEOC also charged that a New Breed supervisor retaliated against a male employee who verbally opposed the supervisor’s sexual harassment and supported the women’s complaints.

The opinion from the Sixth Circuit, on an issue of first impression, clarified the scope of protected activity under the opposition clause of Title VII’s retaliation provision. The Court of Appeals held, among other things, that the opposition clause of Title VII has an “expansive definition” and courts should give “great deference” to EEOC’s interpretation of opposing conduct.

“The Commission is pleased the Sixth Circuit did not see any reason to reconsider its earlier opinion,” said EEOC General Counsel David Lopez. “Telling a harassing supervisor to cease his or her harassing conduct constitutes protected activity under Title VII and changes the law of opposition in Tennessee, Ohio, Kentucky and Michigan, the jurisdictions covered by the Sixth Circuit.”

The appeal in the U.S. Court of Appeals for the Sixth Circuit was handled by Assistant General Counsel Lorraine C. Davis and Appellate Attorney Susan Oxford of the Appellate Services Division of EEOC’s Office of General Counsel.

Faye A. Williams, regional attorney for the Memphis District Office, said, “The denial of the petition for rehearing paves the way for New Breed to finally compensate the four claimants for the sexual harassment and retaliation they endured at the hands of the warehouse supervisor. While it took about seven years for the claimants to achieve justice, in this case, justice delayed is not justice denied.”

New Breed Logistics, a logistics services provider that helps companies design and operate supply chains, warehousing and distribution, operates five Memphis warehouses. New Breed is a national company, headquartered in High Point, N.C. The company also has warehouses in Atlanta, Chicago, Dallas, Texas, Los Angeles and Kearny, N.J.

On June 17, 2015, the EEOC Commissioners held a Meeting on Retaliation in the Workplace: Causes, Remedies and Strategies for Prevention. Further, EEOC Chair Jenny R. Yang announced the formation of a select task force of academics, practitioners and stakeholders, under the co-leadership of Commissioners Chai R. Feldblum and Victoria A. Lipnic, to study harassment in the workplace in all its forms and the ways in which it could be prevented.

The EEOC enforces laws prohibiting discrimination in employment. Further information about the EEOC is available on its website at www.eeoc.gov.

Jul 14th, 2015 Employment Law Defense

The Three Point Contact in a Texas Workers’ Compensation Claim–Texas Workers’ Compensation Attorneys

The Three Point Contact is the beginning of the process used in determining the nature and extent of injury and disability in a Texas workers’ compensation claim. Contact of the injured employee, the employer and the treating physician, the claim process of returning the injured employee to work as soon as practical, begins. Three point contact is required on all lost time claims and should be done as soon as possible after the injury occurs. Although the Claim Examiner is responsible for the handling and processing of the claim, the three point contact process can be completed by assignment. Don’t just go through the motions, however, this is detective work. There is rarely an excuse to not be able to get an answer to a question if you press hard enough, politely. The Employee contact should be done as soon as possible after the accident. Information concerning how the accident occurred, the exact nature and extent of the injury and the physical limitations, should be the focus of the contact. The injured employee’s treating physician, treatment plan and return to work date, should also be determined. This contact is intended to establish a genuine concern for the injured worker. This contact can also determine if the injured employee has any other issues, pre-existing medical conditions, financial issues, which may hinder return to work. The adjuster/employee line of communication should be maintained after every significant doctor’s appointment until the injured worker is returned to work.

Jul 14th, 2015 Workers' Compensation Defense

Coverage Denial in Texas Homeowner’s Insurance Policy Lawsuit– Fort Worth, Texas Insurance Defense Attorneys

Affirm in part; Reverse in part; and Remand. Opinion Filed June 9, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00481-CV
DAVID FUSARO, Appellant
V.
TRINITY UNIVERSAL INSURANCE COMPANY, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-04057-2012
OPINION
Before Justices Lang, Myers, and Evans
Opinion by Justice Evans
David Fusaro appeals from a summary judgment in favor of Trinity Universal Insurance
Company (TUIC). Fusaro contends that: (1) the trial court erred by finding that his contract
claims against TUIC were barred by the statute of limitations; (2) the filing of the first amended
petition precluded the trial court’s entry of summary judgment; (3) his claims asserted against
TUIC’s insured were covered under TUIC’s policy; and (4) TUIC’s challenge to the final
judgment in the first lawsuit is barred by collateral estoppel.1 We affirm in part and reverse and
remand in part.
1 In his brief, Fusaro also asserts that the trial court erred in imposing sanctions without identifying the
sanctionable conduct or statutory authority supporting the sanction award. By letter to the court dated February 27,
2015, however, appellant waived the appeal of this issue. Accordingly, we do not address issue eight in this
opinion.
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BACKGROUND
In June 2007, Christopher Becherer’s mother drove her Isuzu Rodeo to Becherer’s house where she left it with Becherer to replace the brakes. Becherer used a hydraulic jack centered on the front of the vehicle to jack up the vehicle, remove the front wheels, and work on the brakes. Although Becherer had jack stands nearby, he did not use them. Becherer’s friend, Fusaro, was at his house and offered to help when Becherer had difficulty removing a brake caliper. While Fusaro was partially under the front passenger wheel well struggling to loosen a caliper bolt, the hydraulic “jack gave way” and the vehicle suddenly fell on top of Fusaro.
Becherer had a Texas Homeowners Policy—Form B with TUIC. In September 2007, Fusaro notified TUIC of a claim against Becherer. On October 4, 2007, TUIC denied the claim on the basis of no coverage. TUIC relied on exclusion 1.f. of the policy to deny coverage which provides:
1. Coverage C (Personal Liability) and Coverage D (Medical Payments to Others) do not apply to:
* * *
f. Bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
1) Motor or engine propelled vehicles or machines designed for movement on land, including attached machinery or equipment;
* * *
which are owned or operated by or rented or loaned to an Insured.
In July 2008, Fusaro filed a lawsuit against Becherer for his injuries (the “underlying litigation”). Becherer notified TUIC of the lawsuit. On August 4, 2008, TUIC again denied coverage and declined to defend Becherer in the lawsuit. At a bench trial that lasted approximately one hour, Becherer appeared pro se and stipulated in writing that Fusaro’s “injuries were proximately caused by the incident described in plaintiff’s petition” and that past and future reasonable medical expenses were $243,000. After testimony and the admission of
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stipulated exhibits, the court entered a final judgment dated March 22, 2011 against Becherer in the amount of $1,152,465.75.
On April 25, 2011, Fusaro and Becherer executed an assignment of claims and covenant not to execute. Fusaro agreed to not execute or enforce the judgment against Becherer in exchange for Becherer’s assignment to Fusaro of Becherer’s claims against TUIC. On October 19, 2012, Fusaro filed a lawsuit against TUIC asserting Becherer’s claims for breach of contract and breach of the duty of good faith and fair dealing.2 On October 9, 2013, Fusaro filed no-evidence and traditional motions for partial summary judgment. On November 8, 2013, TUIC filed a traditional motion for summary judgment alleging, among other things, that the statute of limitations barred Fusaro’s claims and the policy excluded coverage for Fusaro’s bodily injuries. Fusaro amended his petition on November 18, 2013 to add claims for violations of sections 541.051 and 541.060 of the insurance code for which treble damages and attorney fees were sought pursuant to section 541.152. On February 14, 2014, the trial court granted TUIC’s motion for summary judgment and denied Fusaro’s no-evidence and traditional motions for partial summary judgment. Fusaro then filed a notice of appeal.
ANALYSIS
A. Standard of Review
We review the trial court’s traditional summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2003). The party moving for summary judgment bears the burden of proof. Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013). Under Texas Rule of Civil Procedure 166a(c), the moving party must show that no genuine issue of material fact
2 The trial court also granted summary judgment on Fusaro’s claim that TUIC breached a duty of good faith and fair dealing owed to Becherer. In his appellate brief, however, Fusaro does not challenge this ground of summary judgment and states it became moot by the filing of his amended petition. Accordingly, we affirm the summary judgment granted as to Fusaro’s claim for breach of a duty of good faith and fair dealing.
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exists and that it is entitled to judgment as a matter of law. W. Inv., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Further, in reviewing a summary judgment, we consider the evidence in the light most favorable to the non-movant and resolve any doubt in the non-movant’s favor. Id.
B. Coverage Exclusion 1.f. (Issue 5)
Fusaro contends that the exclusion claimed by TUIC for denying coverage fails because the injury did not arise from maintenance of a vehicle which was “owned or operated by or rented or loaned to an Insured.” As discussed above, the relevant exclusion language is as follows:
1. Coverage C (Personal Liability) and Coverage D (Medical Payments to Others) do not apply to:
* * *
f. Bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
1) Motor or engine propelled vehicles or machines designed for movement on land, including attached machinery or equipment;
* * *
which are owned or operated by or rented or loaned to an Insured.
TUIC argues, and Fusaro does not contest, that there was a bodily injury arising out of the maintenance of a motor vehicle thereby satisfying the general clause in exclusion 1.f.: “bodily injury . . . arising out of . . . maintenance.” Neither party disputes that Becherer’s mother’s Isuzu Rodeo is a vehicle within the meaning of 1.f.1): “engine propelled vehicles . . . designed for movement on land.” However, the parties disagree about the application of the last clause of the exclusion following the enumerated subparts: “which are owned or operated by or rented or loaned to an Insured.” TUIC contends that the exclusion applies because Becherer was operating the vehicle when he and Fusaro were changing the brake pads. Fusaro argues that he could not have been operating the vehicle when the injury occurred because he was not driving the vehicle.
In this policy, the words in the last clause are not defined terms. Insurance policies are contracts and are controlled by the rules of construction applicable to contracts generally. See
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Kim v. State Farm Mut. Auto. Ins. Co., 966 S.W.2d 776, 778 (Tex. App.—Dallas 1998, no pet.). Thus, the terms are to be given their ordinary and generally accepted meaning. Bituminous Cas. Corp. v. Maxey, 110 S.W.3d 203, 208-09 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Further, when construing the language used in a particular policy, the supreme court stated:
The language used in the policies ‘must be construed according to the evident intent of the parties, [t]o be derived from the words used, the subject-matter to which they relate, and the matters naturally or usually incident thereto,’ and it is only when ‘the words admit of two constructions, that one will be adopted most favorable to the insured.
See State Farm Mut. Auto. Ins. Co. v. Pan Am. Ins. Co., 437 S.W.2d 542, 544 (Tex. 1969); see also Kim, 966 S.W.2d at 778.
The verb “owned” means “to have or hold as property.” WEBSTER’S THIRD NEW INT’L DICTIONARY 1612 (1993). “Operate” is defined as “to perform a work or labor” and “to exert power or influence” and “to produce an effect.” WEBSTER’S 1580. “Rent” means “to grant the possession and enjoyment of for rent.” WEBSTER’S 1923. And “loan” is defined as “lend” (WEBSTER’S 1326) which means “to give into another’s keeping for temporary use on condition that the borrower return the same or its equivalent.” Webster’s 1293. It is clear that the import of these terms and this clause is that the vehicle must be the insured’s property (“owned”) or the insured must have authorized possession (“rented or loaned”) or exercise control of the vehicle whether the insured was performing a work or labor on the vehicle or producing an effect with the vehicle (“operated”). Cf. Republic Ins. Co. v. Haverlah, 565 S.W.2d 587, 589 (Tex. App.—Austin 1978, no pet.) (plane crashed after pilot exited airplane; insurer’s argument that coverage exclusion applied because plane was not being “operated by” pilot at the time of the accident rejected by court which concluded pilot had personal physical management of aircraft, performing customary acts of maintenance and handling, so as to place him in position of operating plane on occasion of the accident). In this insurance policy, this last clause of
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exclusion 1.f. is not related to the cause of the injury; causation is the subject of the first clause that the parties conceded was satisfied because the injury was caused by maintenance of a motor vehicle. The significance of the last clause of the exclusion in dispute is its requirement that the insured have some form of dominion and control over the vehicle. The insured was performing customary acts of maintenance and handling on the motor vehicle loaned to him by his mother when the accident occurred which was normal operation of the vehicle. See id. Accordingly, we conclude that exclusion 1.f. applies and we resolve issue five against appellant.
C. Effect of Filing an Amended Petition on the Summary Judgment (Issue 7)
In his amended petition, Fusaro alleged violations of sections 541.051, 541.060 and 541.152 of the Texas Insurance Code. Fusaro argues that because he filed these claims after TUIC’s motion for summary judgment, the order granting the motion could not dispose of all of Fusaro’s claims. Based on the record before us, we agree that not all of the insurance code claims were disposed of by the trial court.
In paragraph 6.05 of Fusaro’s amended petition, he alleges that TUIC violated the insurance code when it provided “false, deceptive, and misleading information to its insured” by claiming that “maintenance on a motor vehicle, under the facts presented herein, would be excluded from coverage.” The basis of these alleged insurance code violations is the improper denial of coverage. Although granting summary judgment on a claim not addressed in the summary judgment motion is generally reversible error, the Supreme Court has recognized a limited exception to this rule. G&H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011). Essentially, this error is recognized as harmless when the omitted cause of action is precluded as a matter of law by other grounds raised in the case. Id. As discussed above, we decided that exclusion 1.f. applies and coverage is precluded. Thus, there was no improper denial of coverage by TUIC and any allegation of misrepresentation based upon that fact fails as a matter
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of law. As paragraph 6.05 relies upon an improper denial of coverage, the dismissal of these insurance code violations was proper.3 Further, any error resulting from the dismissal of Fusaro’s claim as alleged in paragraph 6.05 against TUIC is harmless because this claim was precluded as a matter of law. Accordingly, we conclude that the insurance code violations described in paragraph 6.05 of Fusaro’s amended petition were properly disposed of by the trial court.
In section 6.08 of his amended petition, Fusaro added a generic paragraph alleging insurance code violations that reads as follows:
Additionally, because Defendant TUIC knowingly misrepresented to Christopher Becherer the terms of his policy; made an untrue statement of material fact; failed to state a material fact necessary to make other statements made not misleading, considering the circumstances under which the statements were made; and, made a statement in a manner that would mislead a reasonably prudent person to a false conclusion of a material fact, which representations resulted in legal injury to Becherer when the Final Judgment in the Underlying Lawsuit was entered, Plaintiff is entitled to recover treble damages and reasonable attorney fees in accordance with §541.051, §541.060, and §541.152 of the Texas Insurance Code.
Unlike the allegations described in paragraph 6.05, the sweeping allegations of paragraph 6.08 do not necessarily arise from the denial of coverage. Nor are the claims disposed of by our decision that the policy exclusion applied to Fusaro’s bodily injury in this case because such statutory claims can exist in the absence of coverage. See Vause v. Liberty Ins. Corp., 456
3 We would further note that there is a two-year statute of limitations for violations of the insurance code. See TEX. INS. CODE. ANN. § 541.162 (West 2009). Further, the insurance code violation claims alleged in paragraph 6.05 accrued for limitation purposes once TUIC “improperly” denied coverage. See Lozada v. Farrall & Blackwell Agency, Inc., 323 S.W.3d 278, 289 (Tex. App.—El Paso 2010, no pet.) (“[W]hen insurance benefits are the issue in such causes of action, the statute of limitations begins running on the day the insurance claim is denied.”). As stated above, the denial of coverage occurred, at the latest, on August 4, 2008 and Fusaro did not initiate this litigation against TUIC until 2012. Accordingly, the insurance code violations described in paragraph 6.05 of Fusaro’s amended petition are also barred by the statute of limitations. This argument was raised in TUIC’s motion for summary judgment and its appellee brief even though Fusaro did not clearly plead insurance code violations until his amended petition which was filed with Fusaro’s response to the motion for summary judgment. Fusaro also addressed this issue in his response to TUIC’s motion for summary judgment.
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S.W.3d 222, 230 (Tex. App.—San Antonio 2014, no pet.).4 Because Fusaro filed the amended petition after TUIC filed its motion for summary judgment, there is simply insufficient information in Fusaro’s pleading and TUIC’s motion for summary judgment to determine to what conduct Fusaro’s claims stated in paragraph 6.08 refer; that is, whether conduct different from the claims in paragraph 6.05 of his amended petition is the basis for the claims in paragraph 6.08. Accordingly, our decision that exclusion 1.f. precludes coverage does not apply, we cannot determine an accrual date, and consider these arguments to not have been presented to the trial court. For these reasons, we conclude the trial court erred when it granted TUIC’s motion for summary judgment as to the claims in paragraph 6.08.
CONCLUSION
On the record of this case, we conclude exclusion 1.f. of Becherer’s Texas Homeowners Policy—Form B issued by TUIC applies to the bodily injury suffered by Fusaro when Becherer’s mother’s vehicle fell on Fusaro while the two men performed maintenance on the vehicle. We further determine that Fusaro’s assertion of Becherer’s claims alleged in paragraph 6.05 of the amended petition—that TUIC misrepresented the coverage afforded under the policy when it stated its (correct) reasons for denying coverage—were properly disposed of by the trial court. Accordingly, we affirm the summary judgment as to those matters. We reverse the summary judgment as to the insurance code claims alleged in paragraph 6.08 of Fusaro’s amended petition
4 The court in Vause observed:
A section 541.061 claim requires evidence that the insurer denied coverage under circumstances that it previously had represented would be covered. See TEX. INS. CODE § 541.051 (creating liability for an insurer that misrepresents the terms, benefits, or advantages of a policy); see Morris, 383 S.W.3d at 150 (dispute between Morris and TMIC was extent of Morris’s injury, not what the policy said or whether it covered Morris’s disc problems if they were related to his previous back strain); see also Effinger v. Cambridge Integrated Servs. Group, 478 Fed. Appx. 804, 807 (5th Cir. 2011) ( “Section 541.061 contemplates . . . situations where a carrier represents ‘specific circumstances’ which will be covered and subsequently denies coverage.”). Section 541.051 similarly requires evidence that the insurer misrepresented the terms or benefits of the policy. See TEX. INS. CODE § 541.051.
Vause, 456 S.W.3d at 230.
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because they were not addressed in TUIC’s motion for summary judgment and remand those claims for further proceedings.
140481F.P05
/ David Evans/
DAVID EVANS
JUSTICE
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Court of Appeals Fifth District of Texas at Dallas
JUDGMENT
DAVID FUSARO, Appellant
No. 05-14-00481-CV V.
TRINITY UNIVERSAL INSURANCE COMPANY, Appellee
On Appeal from the 401st Judicial District Court, Collin County, Texas Trial Court Cause No. 401-04057-2012.
Opinion delivered by Justice Evans.
Justices Lang and Myers participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court’s judgment as to the insurance code claims alleged in paragraph 6.08 of appellant’s amended petition because they were not addressed in appellee’s motion for summary judgment. In all other respects, the trial court’s judgment is AFFIRMED. We REMAND this cause to the trial court for further proceedings consistent with this opinion.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 9th day of June, 2015.

Jul 14th, 2015 Insurance Defense Litigation

Ultra Grocery Reaches $200K Discrimination Settlement–Fort Worth, Texas Employment Attorneys

Ultra Grocery Reaches $200K Discrimination Settlement

July 14, 2015

Ultra grocery store is set to settle a hiring discrimination case by paying women it failed to hire $200,000, and agreeing to hire more female workers. The EEOC sued Ultra in July 2013 for not hiring women for any night stock positions in at least three years. Under the proposed agreement, the store would hire one woman for every four male night stocking crew positions over the next three years.

Read the full article at: The Chicago Tribune http://www.chicagotribune.com/suburbs/post-tribune/news/ct-ptb-ultra-settles-discrimination-claim-st-0702-20150701-story.html

Jul 14th, 2015 Employment Law Defense