Court of Appeals of Texas, Houston (14th Dist.).

Deborah TILLERSON, Appellant,

v.

KEMPER NATIONAL INSURANCE COMPANY and Lumbermen’s Mutual Casualty Company, Appellees.

No. 14-97-00918-CV.

|

May 6, 1999.

ANDERSON, EDELMAN, and SEARS.⁴

OPINION

EDELMAN.

*1 In this insurance bad faith case, Deborah Tillerson appeals summary judgments granted in favor of Kemper National Insurance Company and Lumbermens Mutual Casualty Company (collectively, “Lumbermens”) on the ground that Lumbermens owed Tillerson a non-delegable duty to conduct a reasonable, non-slanderous investigation of her claim which it breached, causing Tillerson harm. We affirm.

Background

Tillerson suffered a work-related injury for which she was receiving workers’ compensation benefits from Lumbermens. Lumbermens hired Online Systems, Inc. (“Online”), an investigating company, to investigate Tillerson’s activities to determine whether she remained entitled to benefits. While conducting the investigation, one of Online’s employees allegedly slandered Tillerson. However, Lumbermens did not delay, reduce, or deny payment of any of Tillerson’s benefits.

Tillerson filed suit against, among others: (1) Online and its employee for slander and negligence; and (2) Lumbermens for breach of the duty of good faith and fair dealing, alleging that Online was acting as its agent. Lumbermens filed motions for summary judgment on the grounds that: (a) the duty of good faith was not breached because Tillerson’s claims do not involve delay or denial of payment of a claim; and (b) Lumbermens owed no other duty to Tillerson for the acts of Online because Online was an independent contractor, the actions of which Lumbermens did not control. Tillerson’s summary judgment response argued that: (a) a breach of the duty of good faith and fair dealing is not limited to denying or delaying payment of claims but also extends to bad faith in failing to reasonably investigate a claim; and (b) Lumbermens is responsible for the acts of its agent even if the agent is an independent contractor because an insurer’s duty of good faith is non-delegable. The trial court granted summary judgment in favor of Lumbermens and severed Tillerson’s claims against the remaining defendants.

Standard of Review

A summary judgment may be granted if the summary judgment evidence shows that, except as to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or response. See Tex.R.Civ.P. 166a(c). Summary judgment may be granted if a defendant disproves at least one element of each of the plaintiff’s claims or establishes all elements of an affirmative defense to each claim. See American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). In reviewing a summary judgment, evidence favorable to the nonmovant is taken as true and every reasonable inference is indulged and any doubts resolved in favor of the nonmovant. See id.

Failure to File Special Exceptions

Although she did not raise the contention in her summary judgment responses, Tillerson argues on appeal that the trial court improperly granted summary judgment on her failure to state a claim without first requiring special exceptions to be filed. See, e.g., Perry v. S.N., 973 S.W.2d 301, 303 (Tex.1998) (reiterating that a court generally may not grant summary judgment for failure to state a cause of action without first giving the plaintiff an opportunity to amend his pleadings).

*2 Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. See Tex.R.Civ.P. 166a(c). Therefore, except for the legal sufficiency of the evidence to support the summary judgment, a non-movant may not, on appeal, raise any ground for reversing the summary judgment that was not presented to the trial court by written response to the motion. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). This includes error by the trial court in granting summary judgment for a failure of the pleadings to state a cause of action without requiring the movant to first file special exceptions and allowing the plaintiff an opportunity to amend his pleadings. See Vawter v. Garvey, 786 S.W.2d 263, 263-64 (Tex.1990). In the present case, because Tillerson failed to raise this contention in the trial court, it presents nothing for our review on appeal.¹

Breach of Duty

Tillerson first challenges the summary judgments on the ground that Lumbermens owed a duty to conduct any investigation of her claim in a reasonable manner, and that the alleged slander breached that duty even if it resulted in no denial or delay in payment of her claim.

Workers’ compensation carriers have a duty to deal fairly and in good faith with injured employees in the processing of compensation claims. See Aranda v. Insurance Co. of North Am., 748 S.W.2d 210, 212-13 (Tex.1988). An insurer’s duty of good faith arises out of the parties’ unequal bargaining power whereby an insurance company has exclusive control over the evaluation, processing, and denial of claims. See Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 52 (Tex.1997). Before this tort was recognized, policyholders could recover for bad faith handling of claims only under contract law. See id. Recovery was limited to the amount due under the policy, plus interest, and no recovery was available for emotional distress, economic loss from deprivation of policy benefits, or punitive damages. See id. Therefore, insurers had little to lose by wrongfully denying claims or coercing unfair settlements. See id.

On the other hand, insureds generally buy insurance to protect against risks they cannot easily afford to pay. See id. When an insurer unreasonably denies a legitimate claim, the insured might choose to drop the claim or settle it for only a part of his actual damages due to the economic and emotional burden and stress of the loss and the litigation required to recover for it. See id. Because of this “special relationship” between the insured and insurer, a duty is imposed on the insurer to investigate claims thoroughly and in good faith, and to deny claims only after an investigation reveals there is a reasonable basis to do so. See Viles v. Security Nat’l Ins. Co., 788 S.W.2d 566, 568 (Tex.1990).

*3 Tillerson has cited and we are aware of no Texas authority holding that an insurer can be liable for bad faith in the absence of a delay or denial of payment of benefits. In light of the foregoing rationale for the good faith duty, Tillerson has thus provided us no basis to conclude that bad faith liability can result from an investigation which is not accompanied by a delay or denial of payment of a claim. Tillerson has not alleged or offered evidence that Lumbermens delayed or denied payment of any of her benefits, nor has she challenged the admissibility or sufficiency of Lumbermens’s evidence on this aspect.² Therefore, Tillerson has not demonstrated that granting the summary judgment on the ground that there was no delay or denial of payment of benefits was error.

Liability for Acts of Agent

Tillerson further argues that Lumbermens is not excused from liability for breach of the duty of good faith and fair dealing by the fact that the breach was committed by Lumbermens’s agent, even if the agent was an independent contractor.³ However, because Tillerson not shown that bad faith liability is provided by law in the absence of a delay or denial of benefits, we need not address whether that liability is excused by Lumbermens’s agents being independent contractors. Accordingly, Tillerson’s point of error is overruled and the judgment of the trial court is affirmed.

	Footnotes
4		Senior Justice Ross A. Sears sitting by assignment.
1		Summary judgment for failure to state a cause of action is also proper without requiring special exceptions if: (1) a plaintiff pleads facts which affirmatively negate his cause of action, See Texas Dept. of Corrections v. Herring, 513 S.W.2d 6, 9 (Tex.1974); or (2) the pleading deficiency is not of a type that can be cured by amendment. See Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex.1998). In this case, Tillerson’s fifth amended petition expressly states that she had “filed a worker’s compensation claim and was still receiving benefits under that claim or eligible to receive benefits at all times material hereto.” In addition, there is no allegation or evidence in the record that Lumbermens has delayed or denied payment of any benefits to Tillerson. Therefore, as explained further in the following section, even if Tillerson had preserved her objection to the summary judgment for being granted without requiring special exceptions, it is arguable that the summary judgment could have been affirmed on the grounds that Tillerson had pled facts which affirmatively negated her cause of action and/or that the pleading deficiency was not of a type that could have been cured.
2		If anything, her petition substantiates Lumbermens’s allegation in this regard. See supra note 1.
3		See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 696-700 (Tex.1994) (recognizing that only insurance carriers, and not their agents and contractors for handling claims, are liable to insureds for actions by the agents or contractors that breach the duty of good faith and fair dealing owed by the carriers to the insureds).