Court of Appeals of Texas, Texarkana.

Lawrence J. DEIOTTE, Appellant,

v.

SECURITY INSURANCE COMPANY OF HARTFORD, d/b/a EBI Companies and d/b/a Orion Capital Companies, Appellee.

No. 06-01-00027-CV.

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Submitted Aug. 29, 2001.

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Decided Sept. 7, 2001.

Before CORNELIUS, C.J., GRANT and ROSS, JJ.

OPINION

ROSS.

*1 Lawrence Deiotte was injured on April 1, 1995, while working for Texas Steel Conversions. Security Insurance Company of Hartford, doing business as EBI Companies and Orion Capital Companies (Security Insurance), was Deiotte’s workers’ compensation insurer. In January 1997, Deiotte received additional treatment for the injury, including surgery, without the authorization of Security Insurance. Security Insurance originally denied the claim, but then paid it.¹ On January 24, 2000, Deiotte brought this bad faith claim against Security Insurance, contending the denial of the claim was made in bad faith.

Security Insurance moved for summary judgment on the grounds that 1) Deiotte failed to produce evidence of a breach of the duty of good faith and fair dealing; 2) Deoitte failed to exhaust his administrative remedies; 3) Deiotte’s claims are barred by the statute of limitations; and 4) Deiotte cannot, as a matter of law, recover the damages he seeks. The trial court granted the motion without specifying the grounds for its decision. Deiotte now appeals to this Court, contending that a genuine issue of material fact is present that precludes summary judgment.

An insured has a duty to deal fairly and in good faith with its insured in the processing and payment of claims. Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 340 (Tex.1995); Arnold v. Nat’l County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex.1987). The duty of good faith and fair dealing is imposed on the insurer because of the disparity of bargaining power and the exclusive control that the insurer exercises over the processing of claims. Aranda v. Ins. Co. of N. Am., 748 S.W.2d 210, 212 (Tex.1988). An insurer breaches its duty of good faith and fair dealing when “the insurer had no reasonable basis for denying or delaying payment of [a] claim, and [the insurer] knew or should have known that fact.” Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 50-51 (Tex.1997). Whether an insurer acted in bad faith because it denied or delayed a claim after its liability became reasonably clear is a question for the fact finder. Id. An insurer’s failure to deal fairly and in good faith with its insured is a tort cause of action, which is distinct from the contract cause of action for the breach of the terms of the underlying insurance policy.² Twin City Fire Ins. Co. v. Davis, 904 S.W.2d 663, 666 (Tex.1995); Viles v. Sec. Nat’l Ins. Co., 788 S.W.2d 566, 567 (Tex.1990).

The purpose of the Workers’ Compensation Act is to provide speedy, equitable relief to an employee injured in the course of employment. Aranda, 748 S.W.2d at 212. The contract between a compensation carrier and an employee creates the same type of special relationship that arises under other insurance contracts. Id. Thus, there is a duty on the part of workers’ compensation carriers to deal fairly and in good faith with injured employees in the processing of compensation claims. Id. at 212-13.

*2 Summary judgment is proper when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex.1979); Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 379 (Tex .App.-Texarkana 1989, no writ). The question on appeal is not whether the summary judgment proof raises a fact issue with reference to the essential elements of the plaintiff’s cause of action, but whether the summary judgment proof establishes that the movant is entitled to summary judgment as a matter of law. Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 736 (Tex.1990). A movant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of the claim. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). When the movant moves for summary judgment on reliance of an affirmative defense, the motion shall be granted on proving each element of the defense as a matter of law. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). Because the movant bears the burden of proof, all conflicts in the evidence are disregarded, evidence favorable to the nonmovant is taken as true, and all doubts as to the genuine issue of material fact are resolved in favor of the nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

In a standard summary judgment under Tex.R. Civ. P. 166a, once the movant has established a right to summary judgment, the burden shifts to the nonmovant to present issues which preclude summary judgment. Henry v. Dillard Dep’t Stores, Inc., 21 S.W.3d 414, 417 (Tex.App.-San Antonio 2000, pet. filed). Deiotte asserts that he met this burden by submitting his own affidavit and business records as evidence attached to his response to summary judgment. However, it is well settled that issues a nonmovant contends avoid the movant’s entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response and are not expressly presented by mere reference to summary judgment evidence. Lewis v. Adams, 979 S.W.2d 831, 835 (Tex.App.-Houston [14th Dist.] 1998, no pet.); see McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993). It is not the duty of the trial court or appellate court to sift through the summary judgment record to see if fact issues could have been raised. Holmes v. Dallas Int’l Bank, 718 S.W.2d 59, 60 (Tex.App.-Dallas 1986, writ ref’d n.r.e.). In his response to Security Insurance’s motion for summary judgment, Deiotte merely refers to the summary judgment evidence without giving reference to any specific evidence which could lead to a question of material fact.

Deiotte asserts for the first time on appeal that Security Insurance is equitably estopped from asserting that its actions did not violate the obligation of good faith and fair dealing and that equitable estoppel also prohibits the assertion that Deiotte failed to exhaust his administrative remedies. In an appeal from a summary judgment, issues to be reviewed by the appellate court must have been actually presented to and considered by the trial court. Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex.1992); see Tex.R. Civ. P. 166a(c). 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. Tex.R. Civ. P. 166a(c); Travis, 830 S.W.2d at 100; Lewis, 979 S.W.2d at 835. Thus, Deiotte’s argument for equitable estoppel is not under consideration by this Court.

*3 Security Insurance’s first contention on appeal concerns the failure of Deiotte’s brief to address all of the grounds presented by Security Insurance in its motion for summary judgment. By the most liberal review of Deiotte’s brief, the only grounds contested are that Deiotte failed to produce evidence of a breach of the duty of good faith and fair dealing and that there is no issue concerning exhaustion of administrative remedies.

When the trial court’s judgment does not specify the grounds on which the summary judgment is granted, the appellate court may affirm on any meritorious ground presented to the trial court. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Henry, 21 S.W.3d at 417-18. When there are multiple grounds for summary judgment and the order does not specify the ground on which the summary judgment was granted, as here, appellants must negate all grounds on appeal. Lewis, 979 S.W.2d at 833; see S.S., 858 S.W.2d at 381. If the appellant fails to negate each ground on which the judgment may have been granted, the appellate court must uphold the summary judgment. Lewis, 979 S.W.2d at 833; see S.S., 858 S.W.2d at 381.

The summary judgment must be upheld in favor of Security Insurance because Deiotte has not attacked each ground on which the judgment may have been granted. See Evans v. First Nat’l Bank of Bellville, 946 S.W.2d 367, 377 (Tex.App.-Houston [14th Dist.] 1997, writ denied). The trial court’s judgment may not be reversed in the absence of properly assigned error. Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex.1990); Evans, 946 S.W.2d at 377. Although this Court could affirm the judgment without addressing appellant’s points of error, we choose to do so in the interest of justice. See Lewis, 979 S.W.2d at 833.

As the movant for summary judgment, the insurer may negate an essential element of the appellant’s claim by showing that its liability was not reasonably clear, i.e., that there was a reasonable basis for believing a claim was not covered. Alvarado v.. Old Republic Ins. Co., 951 S.W.2d 254, 258 (Tex.App.-Corpus Christi 1997, no pet.). Security Insurance concedes that it did not initially pay the claim. The query centers on whether there was a reasonable basis for believing that the claim was not covered. Deiotte states in his affidavit that the same doctor made two conflicting reports, approximately two months apart, on his diagnosis. Deiotte asserts that Security Insurance delayed payment based on these conflicting reports. A dispute among medical opinions regarding a claim is a reasonable basis for delay. See Lias v. State Farm Mut. Auto. Ins. Co., 45 S.W.3d 330, 335 (Tex.App.-Dallas 2001, no pet.). Due to the lack of controverting evidence, as a matter of law Security Insurance’s delay in payment of the claim was reasonable.

Security Insurance also sought summary judgment on the ground that Deiotte failed to exhaust his administrative remedies. The Workers’ Compensation Act vests the power to award compensation benefits solely in the Texas Workers’ Compensation Commission (TWCC), subject to judicial review. Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 612 (Tex.1996); see Tex. Lab.Code Ann. § 408.001 (Vernon 1996), § 410.168 (Vernon Supp.2001). Enforcing exhaustion of all claims arising from a grievance under the administrative system is the best way to uphold the legislative purposes in establishing such a system without denying access to the judicial system. Access to the judicial system is not denied, but only delayed until all aspects of the grievance that can be resolved in the administrative system are resolved. Producers Assistance Corp. v. Employers Ins. of Wausau, 934 S.W.2d 796, 801 (Tex.App.-Houston [1st Dist.] 1996, no writ). Even though the administrative system may not be empowered to adjudicate, or to provide full relief, on all claims arising from a grievance before it, once those matters capable of being resolved have been adjudicated, the parties may be able to resolve the remaining matters on their own, thereby obviating any need for filing suit. Id.

*4 However, a plaintiff need not present a bad faith claim to the TWCC, because the TWCC has no authority over extra-contractual claims. Henry, 21 S.W.3d at 418; see Aranda, 748 S.W.2d at 214. In bad faith actions where an underlying contractual dispute, such as a coverage dispute, forms the basis of the bad faith claim, such underlying disputes must be administratively resolved before judicial action is sought on the bad faith claim. See Henry, 21 S.W.3d at 418. In this case, Security Insurance paid the claim submitted by Deiotte. The payment was merely delayed due to the initial denial. Since there is no underlying contractual dispute, Deiotte’s cause of action lies solely in tort, and he was not required to exhaust all of his administrative remedies.

Security Insurance also moved for summary judgment on the affirmative defense that the statute of limitations had expired. When a defendant moves for summary judgment based on the affirmative defense of limitations, the defendant assumes the burden of showing as a matter of law that the suit is barred. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 80-81 (Tex.1989); Fields v. City of Texas City, 864 S.W.2d 66, 68 (Tex.App.-Houston [14th Dist.] 1993, writ denied). The question of when a cause of action accrues is a question of law for the court. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990); Fields, 864 S.W.2d at 68.

Limitations statutes afford plaintiffs what the Legislature deems a reasonable time to present their claims and protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex.1990). The purpose of a statute of limitations is to establish a point of repose and to terminate stale claims. Id. For purposes of application of a statute of limitations, a cause of action accrues when the wrongful act effects an injury. Id. A first party claim, such as in this case, accrues when an insurer unreasonably fails to pay an insured under the policy. The injury-producing event is the denial of coverage.³ Id. at 829.

This cause of action for breach of the duty of good faith and fair dealing is subject to the two-year statute of limitations governing actions for personal injury. Tex. Civ. Prac. & Rem.Code Ann. § 16.003 (Vernon Supp.2001); see Arnold, 725 S.W.2d at 168. This suit was filed on January 24, 2000, stemming from the denial, and subsequent delay before eventual payment, of a claim in 1997. Deiotte has presented no evidence to challenge the assertion that the limitations period has expired. Deiotte has failed to even address the issue in his response to summary judgment at the trial court or his appeal to this Court. As such, no genuine issue of material fact is present, and summary judgment was appropriate.

Security Insurance’s final ground for summary judgment was that Deiotte cannot recover the damages he seeks as a matter of law. Deiotte seeks reimbursement for various bills he incurred during his health care. An employee must establish an independent injury separate from workers’ compensation benefits to recover for a bad faith cause of action. See Davis, 904 S.W.2d at 667. Deiotte is prohibited from recovering for lost compensation benefits without first exhausting his administrative remedies through the TWCC. See Saenz, 925 S.W.2d at 612; Henry, 21 S.W.3d at 419. However, Deiotte has also lost the possibility to recover for any independent tort damages asserted in the pleadings because he has failed to challenge all of Security Insurance’s grounds for summary judgment on appeal. “[P]leadings are not to be considered in determining whether fact issues are expressly presented in summary judgment motions.” City of Houston, 589 S.W.2d at 678; Lewis, 979 S .W.2d at 835.

*5 The judgment of the trial court is affirmed.

	Footnotes
1		The record is silent on the period of time between the denial of the claim and the subsequent payment. Counsel for Security Insurance stated at oral argument that it was a matter of months.
2		As a general rule there can be no claim for bad faith when an insurer has promptly denied a claim that is in fact not covered. Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex.1995). If there is no coverage, then there will not be an actionable bad faith claim absent an extreme act on the part of the insurer that would cause an injury that is independent of the policy claim. Id .
3		However, if there are underlying contract claims, the statute of limitations does not begin to run on a good faith and fair dealing claim until the underlying claims are finally resolved. Arnold v. Nat’l County Mut. Fire Ins. Co., 725 S.W.2d 165, 168 (Tex.1987).