Court of Appeals of Texas,
San Antonio.
Ronald EAVES, Appellant,
v.
ZURICH AMERICAN INSURANCE CO., Appellee.
No. 04-01-00690-CV.
|
Dec. 31, 2002.
Attorneys & Firms
John E. Russo, for Ronald Eaves.
Carol P. Keough, for Zurich American.
Sitting: PHIL HARDBERGER, Chief Justice, ALMA L. LÓPEZ, Justice, and KAREN ANGELINI, Justice.
Opinion
Opinion by KAREN ANGELINI, Justice.
*1 Ronald Eaves appeals the trial court’s grant of summary judgment and dismissal of his claims against Zurich American Insurance Co. In two issues, Eaves argues that there are genuine issues of material fact with respect to his fraud and negligence claims against Zurich. We overrule both issues and affirm the judgment of the trial court.
Background
On April 14, 1998, a pair of wire cutters fell on top of Eaves’s head from a height of over 150 feet. Eaves reported the incident to his employer, Cooperheat-MQS, Inc. (“Cooperheat”).1 On December 30, 1998, more than eight months after the accident, Cooperheat completed Texas Workers’ Compensation Commission (“TWCC”) Form 1, First Report of Injury or Illness, noting that Eaves was injured on April 14, 1998 when wire cutters dropped from 151 feet and hit him on the head. This form was forwarded to Cooperheat’s current workers’ compensation carrier, Zurich American Insurance Co. (“Zurich”). On December 31, 1998, Zurich sent Eaves a letter to his last known address, acknowledging Eaves’s claim and assigning him a claim number. The letter was returned unopened to Zurich.
While investigating the claim, Zurich paid those medical bills of Eaves that had been forwarded to it. On February 9, 1999, within sixty days of receiving the first notice of injury from Cooperheat, Zurich timely filed TWCC Form 21, Notice of Disputed Claim, and denied Eaves’s claim:
Carrier accepts that the clmt [sic] had a[n] incident on 4/14/98, but it did not result in a[n] injury. Clmt [sic] elected to file under his group carrier even after given his right to file under workers’ compensation. Clmts [sic] right to seek workers’ compensation benefits is barred. Clmt [sic] had election of remedies. No medical to support a[n] on the job injury. Carrier denies any and all medical treatment and disability TIBS, IIBS, SIBS, and LIBS.
On February 22, 1999, the TWCC issued a letter to Eaves, explaining his rights and obligations under the Texas Workers’ Compensation Act. It stated that an “Employee’s Notice of Injury or Occupational Disease and Claim for Compensation Form (TWCC-41) must be completed and returned to this office within one year from the date of injury to protect your interest in this claim.” On February 24, 1999, Eaves completed TWCC Form 41. On March 9, 1999, the TWCC received the form.
Zurich, the carrier which had denied Eaves’s claim, was not, in fact, the correct carrier. Cooperheat’s policy with Zurich began in June of 1998, months after the date of Eaves’s injury. At the time of Eaves’s accident, Cooperheat had workers’ compensation insurance issued by the Insurance Company of the State of Pennsylvania (“ICSOP”). On May 4, 1999, ICSOP also disputed Eaves’s claim by completing TWCC Form 21:
Carrier accepts injury to neck as being compensable. Carrier denies disability and if any disability exists, it is solely due to a non-occupational condition. Claimant made an election of remedies.
*2 Eaves then sued Zurich for negligence, fraud, and conspiracy to commit fraud.2 Zurich filed a motion for summary judgment. The trial court granted the motion for summary judgment and dismissed all of Eaves’s claims with prejudice. Eaves appeals the summary judgment.
Fraud and Conspiracy to Commit Fraud
Eaves alleges that Zurich, ICSOP, and his employer, Cooperheat, conspired to prevent Eaves from timely filing his workers’ compensation claim: “In sum, Cooperheat, Zurich, and ICSOP did everything they could to prevent Eaves from filing his workers’ compensation claim, and thereby, defrauded Eaves.” Section 409.003 provides that an “employee or person acting on the employee’s behalf shall file with the commission a claim for compensation for an injury not later than one year” after the date of injury. Tex. Lab.Code Ann. § 409.003 (Vernon 1996). The summary judgment evidence, however, conclusively shows that Eaves did timely file his TWCC Form 41 with the TWCC on March 9, 1999, well within the one-year deadline. Eaves, therefore, was not prevented from filing his claim due to an alleged fraudulent activity by Zurich and suffered no injury.
To state a claim for fraud, a party must show that (1) a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex.2001). Likewise, to prevail on a conspiracy theory, a party must establish the following elements: (1) a combination of two or more persons; (2) an object to be accomplished (an unlawful purpose or a lawful purpose by unlawful means) (3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 675 (Tex.1998); see also Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 856 (Tex.1968) ( “[T]he gist of a civil conspiracy is the damage resulting from commission of a wrong which injures another, and not the conspiracy itself.”). Here, the evidence conclusively shows that Eaves was not injured by an alleged conspiracy to defraud or by any alleged fraudulent activity. Eaves’s first issue is overruled.
Negligence
In its summary judgment, Zurich argued that Eaves could not recover on his negligence cause of action, because Zurich did not owe him a duty. Eaves responded that Zurich undertook the duty pursuant to section 323 of the Second Restatement of Torts when it processed Eaves’s workers’ compensation claim and began its investigation of the claim. Section 409.021(a) of the Texas Labor Code mandates that a workers’ compensation insurance carrier do one of two things within seven days after receiving written notice of injury: begin paying benefits as required by the Texas Workers’ Compensation Act or give written notice of refusal to pay benefits. Tex. Lab.Code Ann. § 409.021(a) (Vernon 1996); Continental Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex.2002). Under section 409.021(c), a carrier who initiates benefits may take up to sixty days to investigate or deny compensability for any valid reason. Tex. Lab.Code Ann. § 409.021(c) (Vernon 1996); Downs, 81 S.W.3d at 806. And, under section 409.022(b), a carrier who files a notice of refusal may investigate or deny compensability, but is limited to the grounds specified in the notice as bases for contesting compensability, except for newly discovered evidence. Tex. Lab.Code Ann. § 409.022(b) (Vernon 1996); Downs, 81 S.W.3d at 806. Here, the summary judgment evidence shows that Zurich was complying with its statutory duties by initiating medical benefits for Eaves, investigating his claim, and then denying it within the sixty days. Under these facts, Zurich did not undertake any duty to Eaves. We overrule Eaves’s second issue.
Conclusion
*3 Having overruled both issues, we affirm the judgment of the trial court.
Footnotes |
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| 1 | Throughout his brief, Eaves relies on evidence not included in the summary judgment record. Most of the evidence to which Eaves refers was attached to his motion for new trial. We recite the facts here based on the summary judgment record, i.e. that evidence attached to Zurich’s motion for summary judgment and Eaves’s response. | |
| 2 | Eaves also sued Cooperheat, Geri Chapman, a Cooperheat employee, Anderson Industrial Services, Inc., the employer of the employee who dropped the wire cutters, and ICSOP. After the trial court granted summary judgment in favor of Zurich, it severed all of Eaves’s claims against Zurich into a separate cause of action. | |