Court of Appeals of Texas, Dallas.

Betty COURSEY, Appellant,

v.

Scott TRITCH, Clyde Lochnes, and The Travelers Companies, Appellee.

No. 05-93-00913-CV.

|

May 24, 1994

Before LAGARDE, BARBER and WHITTINGTON

WHITTINGTON, Justice.

O P I N I O N

*1 Betty Coursey appeals the trial court’s granting of Travelers Indemnity Company of Rhode Island’s (Travelers) summary judgment motion. In her sole point of error, Coursey contends that the trial court erred in granting summary judgment in favor of Travelers. Because the summary judgment motion did not address issues raised in Coursey’s second- amended-original petition, we reverse the summary judgment as to Coursey’s claims for fraud and insurance code violations. We affirm the summary judgment as to Coursey’s claim for breach of the duty of good faith and fair dealing. We remand the case to the trial court for further proceedings.

FACTUAL BACKGROUND

Coursey sued Scott Tritch, Clyde Lochner, and Travelers for negligence in handling and adjusting her workers’ compensation claim. On January 8, 1993, Travelers filed a motion for summary judgment alleging that Coursey was estopped from asserting her claims because she made a judicial admission in a settlement agreement in connection with her suit for workers’ compensation benefits. On February 3, 1993, Coursey filed her second- amended-original petition. This petition added claims against Travelers for violations of the insurance code and fraud. The parties agreed to sever Coursey’s claims against Lochner and Tritch and dismiss those claims with prejudice. On February 8, 1993, Travelers filed a brief in support of its motion for summary judgment. On February 10, 1993, the trial court granted Travelers’ motion for summary judgment on all Coursey’s causes of action.

STANDARD OF REVIEW

In her sole point of error, Coursey contends that the trial court erred in granting summary judgment in favor of Travelers.

In reviewing a summary-judgment record, this Court applies the following standards:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non- movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The purpose of the summary-judgment rule is not to provide either a trial by deposition or a trial by affidavit, but is to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that no genuine issue of fact remains. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962). For the defendant, as movant, to prevail on a summary judgment, it must either disprove at least one element of the plaintiff’s theory of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff’s cause of action. International Union UAW Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 563 (Tex. App.-Dallas 1991, writ denied). An issue is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Triton Oil and Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982). In a summary-judgment case, the question on appeal is whether the summary-judgment proof establishes, as a matter of law, there is no genuine issue of fact as to one or more of the essential elements of the cause of action. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970).

FRAUD AND INSURANCE CODE VIOLATIONS

*2 After Travelers filed its motion for summary judgment, Coursey amended her petition to allege fraud and insurance code violations.

The fact that a party amended its petition and added an alternative theory of recovery after the other party’s motion for summary judgment had been filed cannot shift the movant’s burden. Whiddon v. Metni, 650 S.W.2d 904, 905-06 (Tex. App.-Dallas 1983, writ ref’d n.r.e.). In Whiddon, the plaintiff filed a second-amended-original petition asserting a third theory of recovery after the defendant had filed a motion for summary judgment on the two causes of action originally pleaded by the plaintiff. This Court held that a motion for summary judgment that does not address issues raised in an amended petition is legally insufficient to merit summary judgment on a theory of recovery raised in the amended petition. See Whiddon, 650 S.W.2d at 905-06.

Travelers’s motion for summary judgment did not address Coursey’s claims of fraud and insurance code violations raised in her second-amended-original petition. The motion for summary judgment addressed only Coursey’s claims for breach of the duty of good faith and fair dealing.

We reverse the summary judgment as to Coursey’s claims for fraud and insurance code violations.

DUTY OF GOOD FAITH AND FAIR DEALING

Coursey claimed in her original petition that Travelers breached the duty of good faith and fair dealing. Travelers’s motion for summary judgment addressed this cause of action.

A cause of action for breach of the duty of good faith and fair dealing must allege that the insurer denied a claim or delayed payment with no reasonable basis or that the insurer failed to determine whether there was a reasonable basis for denial or delay. Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987).

Under the doctrine of judicial estoppel, a party is estopped by having alleged or admitted in a former proceeding under oath the contrary to the assertion sought to be made. Izaguirre v. Texas Employers’ Ins. Assoc., 749 S.W.2d 550, 555 (Tex. App.-Corpus Christi 1988, writ denied). Where the plaintiff uses the judicial process to reach a favorable settlement, the plaintiff is bound by the facts asserted. Plate & Platter, Inc. v. Wolf, 780 S.W.2d 453, 455 (Tex. App.-Dallas 1989, writ denied).

The stipulation and agreement Coursey signed and filed in the district court included the statement, “There is a bona fide issue and dispute between the Plaintiff and Defendant as to the compensability, nature, duration and extent of Plaintiff’s loss of wage earning capacity and disability, and the liability of Defendant is indefinite, uncertain and incapable of being satisfactorily established.” Coursey asserts that the stipulation and agreement attached to Travelers’s summary judgment motion were not properly authenticated; therefore, the trial court should not have considered them. The stipulation and agreement were certified copies of court records. Certified copies of court records are self- authenticating. Tex. R. Civ. Evid. 902(4).

*3 An insurance company has a right to withhold payments in cases in which liability is uncertain. Izaguirre, 749 S.W.2d at 555. Because Coursey has admitted in the stipulation and agreement that liability is indefinite, uncertain, and incapable of being satisfactorily established, Coursey cannot claim a breach of the duty of good faith and fair dealing. See Izaguirre, 749 S.W.2d at 555.

We hold that the trial court properly granted summary judgment on Coursey’s claim for breach of the duty of good faith and fair dealing.

We affirm the summary judgment as to Coursey’s claim for breach of the duty of good faith and fair dealing and reverse the summary judgment as to Coursey’s claims for fraud and insurance code violations. We remand the case to the trial court for further proceedings.