Court of Appeals of Texas, Dallas.

Hazel “Penny” M. HICKEY, Individually and on Behalf of the Estate of Richard Emmett Hickey, Deceased, Appellant

v.

CNA INSURANCE COMPANY, Sarah Holguin, Transcontinental Insurance Company, Transportation Insurance Company, and the Subsequent Injury Fund of the Texas Worker’s Compensation Commission, Appellees.

No. 05-95-01320-CV.

|

Oct. 2, 1997.

Before OVARD, MALONEY, and WRIGHT, JJ.

OPINION

MALONEY.

*1 Hazel “Penny” M. Hickey¹ sued CNA Insurance Company, Transcontinental Insurance Company, Transportation Insurance Company, and Sarah Holguin (the CNA defendants) for breach of the duty of good faith and fair dealing. Hickey subsequently amended her petition, seeking judicial review of a Texas Workers’ Compensation Commission (the Commission) decision denying her claim for death benefits arising out of her son’s death. The trial court granted summary judgment to the CNA defendants on Hickey’s good faith and fair dealing claims and subsequently granted the CNA defendants’ motion to add the Subsequent Injury Fund (SIF) as a third party defendant.² Following a jury trial, the trial court entered a take-nothing judgment in favor of all defendants.

Hickey raises twelve points of error on appeal. In ten points of error, Hickey contends the trial court erred in (1) granting or denying various motions filed by the parties before, during, and after trial; (2) allowing the SIF to participate as a separate party at trial; (3) admitting and allowing argument on various Commission rulings; (4) denying Hickey’s requested jury instructions; (5) allowing appellees to use the court’s order in limine as a “sword and a shield;” and (6) granting summary judgment on Hickey’s bad faith claims. In two additional points of error, Hickey contends the evidence is factually insufficient to support the jury’s verdict. The CNA defendants and the SIF filed separate briefs, both raising questions about this Court’s jurisdiction over the appeal of the workers’ compensation claim. The CNA defendants raise one additional cross-point contending the trial court erred in overruling their objections to Hickey’s summary judgment evidence. For the reasons stated below, we affirm the trial court’s judgment.

BACKGROUND

Richard Emmett Hickey was killed during the course of his employment. At the time, he was living with his mother, Hazel “Penny” M. Hickey.³ Hickey filed a claim for death benefits. She sent a copy of the claim to Sarah Holguin, a claims adjuster for Transportation Insurance Company. Hickey asked Holguin to let her know if she needed further information. Holguin hired Crawford & Company, an independent adjusting firm, to investigate the claim. Don Lish, a Crawford & Company investigator, interviewed Hickey and sent a report to Holguin.

Shortly thereafter, Hickey received a Notice of Refused or Disputed Claim. The notice stated that the “carrier [did] not dispute liability,” but that the carrier had not received “sufficient information to establish the existence of economic benefit … according to [Texas Workers’ Compensation Commission] Rule 132.2.” On receiving this notice, Hickey’s attorney wrote Holguin asking what additional evidence she needed to find the existence of an economic benefit. In his letter, Hickey’s attorney asserted that the Lish report showed the necessary economic benefit; nevertheless, he agreed to provide whatever else the carrier considered necessary to meet the requirements of rule 132.2. Hickey received no response to this letter.

*2 The case was eventually brought before the Commission pursuant to chapter 410 of the Texas Labor Code. A benefit review conference (BRC) was held, followed by a contested case hearing (CCH). After hearing evidence, the CCH officer concluded (1) Hickey was not a “dependent parent,” and (2) she was therefore not entitled to receive death benefits. The CCH officer ordered the death benefits paid to the SIF.⁴ Hickey appealed the CCH officer’s decision to the Workers’ Compensation Appeals Panel. The appeals panel affirmed, noting that the evidence supported the CCH officer’s determination that Hickey was not dependent on her son under the statute.

While the workers’ compensation proceedings were pending, Hickey filed suit in district court against the CNA defendants.⁵ In her petition, Hickey alleged causes of action against the CNA defendants for breach of the duty of good faith and fair dealing.⁶ Hickey sought recovery of actual and exemplary damages as well as attorney’s fees. The CNA defendants moved for summary judgment on Hickey’s bad faith claims, arguing (1) they owed no duty of good faith and fair dealing to Hickey; and (2) if a duty indeed existed, they did not breach the duty.

After the appeals panel issued its final decision in the administrative proceeding, Hickey amended her petition to include an appeal from the workers’ compensation appeals panel decision. After Hickey amended her petition, the trial court granted CNA’s summary judgment motion and ordered that Hickey take nothing on her bad faith claims. The summary judgment order disposed of all Hickey’s claims except her appeal from the appeals panel decision.

Next, the CNA defendants sought leave to file a third party action against the SIF. In September 1993, the trial court granted the motion and allowed the SIF to be joined as a third party defendant. At trial, Hickey presented four witnesses. After both sides rested and closed, the jury concluded Hickey was not dependent on her son at the time of his death. The trial court entered judgment on the jury’s verdict affirming the workers’ compensation appeals panel’s decision and ordering that Hickey take nothing on her claim for death benefits and attorney’s fees. This appeal followed.

JURISDICTION

On appeal, appellees question this Court’s jurisdiction. Appellees argue this Court lacks jurisdiction because Hickey did not properly invoke the trial court’s jurisdiction under section 410.252 of the Texas Labor Code. According to appellees, amending the petition in her bad faith lawsuit was not “filing suit” for purposes of section 410.252(a) and did not vest the trial court with jurisdiction over the workers’ compensation appeal.

1. Applicable Law

Under section 410.252(a), a party may seek judicial review of an appeals panel decision by filing suit no later than the fortieth day after the appeals panel decision was filed with the division of hearings. Tex. Lab.Code Ann. § 410.252(a) (Vernon 1996). The petitioner must file her petition with the appropriate court in the county where the employee resided at the time of injury or death. Tex. Lab.Code Ann. § 410.252(b)(1) (Vernon 1996). The Code also requires that the petitioner simultaneously file a copy of the petition with the trial court and the Commission, and serve a copy on any opposing party. Tex. Lab.Code Ann. § 410.253 (Vernon 1996).

2. Application of Law to Facts

*3 Here, the appeals panel decision was filed with the division on September 16, 1992. Hickey amended her petition seeking review of the appeals panel decision on October 23, 1992, within the forty day period required by section 410.252(a).

Although appellees contend section 410.252(a) requires the filing of an original petition to invoke the trial court’s jurisdiction, they cite no authority, and we have found none, that requires the filing of an original petition to properly invoke the trial court’s jurisdiction over a workers’ compensation appeal. The statutory language does not explicitly require an original petition. The statute requires only that the party bringing the appeal file a petition in district court. Tex. Lab.Code Ann. § 410.252(b) (Vernon 1996). Appellees would have us engraft the word “original” onto the language chosen by the legislature in adopting section 410.252(b). This, we decline to do. See Morales v. Employers Cas. Co., 897 S.W.2d 866, 868-69 (Tex.App.-San Antonio 1995, writ denied) (op. on reh’g) (rejecting argument that section 410.252 deadlines run from receipt of “actual notice” because statute does not expressly refer to “actual notice”).⁷

We conclude that amending an already-filed petition to seek review of a workers’ compensation ruling satisfies the “filed suit” requirement of the Code. The trial court properly invoked its jurisdiction to review the appeals panel decision. See Tatum v. Second Injury Trust Fund, 730 S.W.2d 351, 353 (Tex.App.-Dallas 1987, no writ) (suggesting that if amended petition naming proper parties had been filed within statutory time frame, trial court would have had jurisdiction over workers’ compensation appeal); Charter Oak Fire Ins. Co. v. Gorman, 693 S.W.2d 686, 689 (Tex.App.-Houston [14th Dist.] 1985, writ ref’d n.r.e.) (same). Because the trial court had jurisdiction to review the workers’ compensation ruling, we have jurisdiction to review the trial court’s judgment.

INSUFFICIENT RECORD

In her first point of error, Hickey contends the trial court erred in granting the CNA defendants’ motion for leave to file a third party action against the SIF. In her third point of error, Hickey contends the trial court erred in denying her motion to align parties.

1. Applicable Law

To preserve a complaint for appellate review, a party must make a timely, specific objection in the trial court. See Tex.R.App.P. 52(a). Failure to make a timely objection waives any error on appeal. Id. In addition, rule 50(d) of the Texas Rules of Appellate Procedure places the burden on the appealing party to present a record sufficient to show error requiring reversal. Tex.R.App.P. 50(d).

2. Application of Law to Facts

a. Motion for Leave to File Third Party Action

The transcript does not contain (1) the CNA defendants’ motion for leave to file third party action; (2) Hickey’s response, if any, to that motion; or (3) the court’s order granting the motion. In addition, the statement of facts reflects no oral objection to the CNA defendants’ motion to join the SIF as a third party defendant.⁸

*4 This record does not show Hickey preserved error by making a timely objection in the trial court. Hickey, as the complaining party, had the burden to present this Court with a record sufficient to show error requiring reversal. See Tex.R.App.P. 50(d). Because Hickey has not met her burden under rule 50(d), we have nothing to review. We overrule Hickey’s first point of error.

b. Motion to Align Parties

We find no ruling on Hickey’s motion to align in the record before this Court. Again, we are unable to determine whether, as Hickey suggests, the trial court ruled on Hickey’s motion. Because the record does not contain any ruling on Hickey’s motion, we conclude Hickey has not met her burden of presenting a sufficient record under rule 50(d). We overrule Hickey’s third point of error.

SEVERANCE

In her second point of error, Hickey contends the trial court erred in denying her motion to sever the claims against the SIF. Under this point, Hickey argues that (1) Hickey had no claims against the SIF; and (2) the SIF’s presence in the suit was therefore improper, unnecessary, and prejudicial.

1. Standard of Review

Determining whether to grant or deny a motion for severance is a matter falling within the trial court’s sound discretion. See Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex.1996) (original proceeding); Guaranty Federal Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990) (op. on reh’g). We do not disturb a trial court’s ruling on a motion to sever absent an abuse of that discretion. See Guaranty Federal, 793 S.W.2d at 658; General Resources Organization, Inc. v. Deadman, 907 S.W.2d 22, 28 (Tex.App.-San Antonio 1995), writ denied with concurring opinion on denial of writ, 932 S.W.2d 485 (Tex.1996).

2. Applicable Law

The rules of civil procedure permit a trial court to sever any claim against a party and proceed on the severed or remaining claim separately. See Tex.R.Civ.P. 41. A trial court properly severs a claim if (1) the controversy involves more than one cause of action, (2) the severed claim is one that could be asserted independently in a separate lawsuit, and (3) the severed claim is not so interwoven with the remaining claims that they involve the same facts and issues. See Liberty Nat’l, 927 S.W.2d at 629; Guaranty Federal, 793 S.W.2d at 658. Trial courts grant severances to do justice, avoid prejudice, and further convenience. Guaranty Federal, 793 S.W.2d at 658.

3. Application of Law to Facts

The CNA defendants’ claim against the SIF was for reimbursement of benefits paid to the fund should Hickey ultimately prevail on her claim for death benefits. This claim as well as the claims between Hickey and the CNA defendants all arose out of the death of Hickey’s son and her resulting claim for death benefits.⁹ Because the CNA defendants did not contest liability for death benefits, the cause of action between the CNA defendants and the SIF was arguably not the type that could be tried and determined on its own. Assuming, without deciding, the CNA-SIF cause of action could have been tried on its own, we conclude the causes of action were so interwoven that each required the same evidence on the same facts and issues. The trial court did not abuse its discretion in denying Hickey’s request for a severance. See Deadman, 908 S.W.2d at 28 (upholding denial of severance because, although actions were separate and distinct and could be tried separately, actions were so interwoven that each required evidence on same facts and issues). We overrule Hickey’s second point of error.

ADMISSIBILITY OF COMMISSION’S RULINGS

*5 In her fifth point of error, Hickey contends the trial court erred in (1) admitting into evidence “the rulings and findings of the Commission panels,” and (2) allowing “extensive” and “repetitive” arguments on those rulings. Hickey contends the statute prohibits the trial court’s admitting the workers’ compensation rulings and their admission violates the Texas Supreme Court’s most recent pronouncements in Texas Workers’ Compensation Commission v. Garcia, 893 S.W.2d 504 (Tex.1995).

1. Standard of Review

Determining whether to admit or exclude evidence is a matter within the trial court’s sound discretion. See Oddo v. State, 912 S.W.2d 831, 833 (Tex.App.-Dallas 1995, writ denied); Tracy v. Annie’s Attic, Inc., 840 S.W.2d 527, 531 (Tex.App.-Tyler 1992, writ denied). We do not disturb a trial court’s evidentiary rulings absent an abuse of discretion. Oddo, 912 S.W.2d at 833.

2. Applicable Law

Two provisions of the workers’ compensation statute govern the admissibility of the Commission’s decisions and records in jury trials. The first requires a trial court to “inform” the jury of the appeals panel decision in its charge to the jury. See Tex. Lab.Code Ann. § 410.304(a) (Vernon 1996). The second allows admission into evidence of “[a]ll facts and evidence” contained in the Commission’s record “to the extent allowed under the Texas Rules of Civil Evidence.” Tex. Lab.Code Ann. § 410.306(b) (Vernon 1996). The Texas Supreme Court has interpreted this provision to mean the “Commission’s record” is admissible in a jury trial. See Garcia, 893 S.W.2d at 515 n. 11; accord ESIS, Inc. v. Johnson, 908 S.W.2d 554, 560 (Tex.App.-Fort Worth 1995, writ denied). The record includes the written opinion of the appeals panel. See ESIS, 908 S.W.2d at 560.

3. Application of Law to Facts

Here, the trial court admitted the opinions of the CCH officer and the appeals panel into evidence. In addition, the trial court admitted the BRC report prepared by the BRC officer before the CCH officer held his hearing. Although Hickey contends admission of this evidence was error, we cannot agree.

The Garcia court held that section 410.306(b) permitted the admission of the Commission’s “record” at trial. See Garcia, 893 S.W.2d at 515 n. 11. We agree with our sister court that the administrative “record” includes the various decisions of the administrative hearing officers. See ESIS, 908 S.W.2d at 560. We conclude the trial court did not err in admitting the administrative decisions into evidence at trial.¹⁰ Because the evidence was admissible, counsel was entitled to argue this evidence to the jury. See Crum & Forster, Inc. v. Monsanto Co., 887 S.W.2d 103, 138 (Tex.App.-Texarkana 1994) (recognizing that litigants generally have right to discuss all matters in evidence during closing argument), judgment vacated pursuant to settlement, 1995 WL 273592 (Tex.App.-Texarkana 1995, no writ); Circle Y of Yoakum v. Blevins, 826 S.W.2d 753, 756 (Tex.App.-Texarkana 1992, writ denied) (same). The trial court did not err in overruling Hickey’s objections to appellees’ closing arguments. We overrule Hickey’s fifth point of error.

REQUESTED JURY INSTRUCTIONS

*6 In her sixth and seventh points of error, Hickey contends the trial court erred in denying her requested jury instructions on (1) the weight to be accorded the appeals panel decision, and (2) the differing standards for dependency under the workers’ compensation statute and the federal income tax laws.

1. Standard of Review

The trial court has broad discretion in determining whether and how to submit instructions to the jury. See Jobe v. Penske Truck Leasing Corp., 882 S.W.2d 447, 451 (Tex.App.-Dallas 1994, no writ); Lakeway Land Co. v. Kizer, 796 S.W.2d 820, 826 (Tex.App.-Austin 1990, writ denied). On appeal, we do not overturn a trial court’s refusal to submit a requested instruction unless the court abused its discretion. See Magro v. Ragsdale Bros., Inc., 721 S.W.2d 832, 836 (Tex.1986); Oechsner v. Ameritrust Texas, N.A., 840 S.W.2d 131, 134 (Tex.App.-El Paso 1992, writ denied). In deciding whether the trial court abused its discretion, we may not substitute our judgment for that of the trial court. See European Crossroads’ Shopping Ctr., Ltd. v. Criswell, 910 S.W.2d 45, 54 (Tex.App.-Dallas 1995, writ denied); Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 826 (Tex.App.-Houston [1st Dist.] 1987, writ ref’d n.r.e.), cert. dism’d, 485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988). We decide only whether the trial court’s action was arbitrary and unreasonable. See Criswell, 910 S.W.2d at 54; Texaco, 729 S.W.2d at 826.

2. Applicable Law

In all jury cases, the court shall submit such instructions and definitions as shall be proper to enable the jury to render a verdict. Tex.R.Civ.P. 277. A proper jury instruction must (1) assist the jury, (2) accurately state the law, and (3) find support in the pleadings and evidence. See Criswell, 910 S.W.2d at 53; see also Jobe, 882 S.W.2d at 451. A trial court should submit explanatory instructions when it determines, in its sole discretion, that the instructions will help the jury understand the meaning and effect of the applicable law and presumptions. See Angelo Broadcasting, Inc. v. Satellite Music Network, Inc., 836 S.W.2d 726, 735 (Tex.App.-Dallas 1992, writ denied), overruled on other grounds by Hines v. Hash, 843 S.W.2d 464, 469-70 (Tex.1992); Security Sav. Ass’n v. Clifton, 755 S.W.2d 925, 933 (Tex.App.-Dallas 1988, no writ). Trial courts should refuse to submit legally correct, but unnecessary, jury instructions. Criswell, 910 S.W.2d at 54; Samsel v. Diaz, 659 S.W.2d 143, 144 (Tex.App.-Corpus Christi 1983, no writ). A jury need not be burdened with surplus instructions. Acord v. General Motors Corp., 669 S.W.2d 111, 116 (Tex.1984) We reverse a judgment for failure to submit a requested instruction only if (1) the trial court abused its discretion in refusing to submit the instruction, and (2) the error amounted to such a denial of the complaining party’s rights as was calculated to cause, and probably did cause, the rendition of an improper verdict. See Criswell, 910 S.W.2d at 54.

3. Application of Law to Facts

a. Weight of Appeals Panel Decision

*7 Hickey requested an instruction that the jury was “not required to accord the [Commission’s] decision … any particular weight.” The trial court instructed the jury that the Commission had ruled that Hickey was not a “dependent parent” under the workers’ compensation statute. Immediately following this instruction, the trial court told the jury their “decision [was] to be determined from all of the evidence which [had] been admitted.”

In effect, the trial court told the jury to consider all the evidence before it and not focus exclusively on any one piece of evidence. Hickey cites no authority, and we are aware of none, that requires the trial court to provide an additional instruction telling the jury what weight to give the Commission’s decision. Accordingly, we conclude the trial court did not abuse its discretion in denying the requested instruction.

In reaching our decision, we necessarily reject Hickey’s argument that the court’s opinion in Garcia mandated such an instruction. Contrary to Hickey’s suggestion, Garcia did not require submission of an instruction like Hickey requested. While Garcia does suggest that a jury is not required to give the Commission’s ruling any particular weight, see Garcia, 893 S.W.2d at 515, it does not require a special instruction to that effect. We overrule Hickey’s sixth point of error.

b. Differing Dependency Standards

Here, the trial court tracked the statutory language in defining the term “dependent” under the workers’ compensation statute in its charge to the jury. Tex. Lab.Code Ann. § 401.011(14) (Vernon 1996). Nothing more was required. Accordingly, we conclude the trial court did not abuse its discretion in denying Hickey’s requested instruction.

Additionally, during direct examination of Hickey as well as during closing argument, Hickey’s counsel repeatedly informed the jury of the different standards for determining dependency under the income tax laws and the workers’ compensation statute. On this record, we fail to see how the failure to submit the requested instruction could have led to the rendition of an improper verdict. We overrule Hickey’s seventh point of error.

SUMMARY JUDGMENT

In her eleventh point of error, Hickey contends the trial court erred in granting summary judgment to the CNA defendants on Hickey’s bad faith claims. Specifically, Hickey contends summary judgment was improper because the only evidence in existence at the time the CNA defendants denied her claim was evidence supporting her claim for benefits.

1. Standard of Review

The standard of review in summary judgment is well established. Tex.R.Civ.P. 166(a)(c); see McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex.1990); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962); Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952); Ross v. Texas One Partnership, 796 S.W.2d 206, 209 (Tex.App.-Dallas 1990), writ denied per curiam, 806 S.W.2d 222 (Tex.1991). When the trial court’s summary judgment does not specify the grounds on which it was granted, we affirm the trial court’s judgment if any of the movant’s theories are meritorious. See Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 79 (Tex.1989).

2. Applicable Law

a. Duty of Good Faith and Fair Dealing

*8 To prevail on a claim for breach of the duty of good faith and fair dealing, the plaintiff must establish (1) the absence of a reasonable basis for denying or delaying payment under the policy, and (2) the insurer knew or should have known no reasonable basis existed for denying or delaying the claim. Aranda v. Insurance Co. of N. Am., 748 S.W.2d 210, 213 (Tex.1988); Koral Indus., Inc. v. Security-Connecticut Life Ins. Co., 788 S.W.2d 136, 147 (Tex.App.-Dallas), writ denied per curiam, 802 S.W.2d 650 (Tex.1990). Under the first prong of the test, the trial court must objectively determine whether a reasonable insurer under similar circumstances would have denied or delayed the insured’s claim. Aranda, 748 S.W.2d at 213. Under the second prong, the court must determine whether (1) the insurer actually knew there was no reasonable basis to deny or delay the claim, or (2) the insurer, based on its duty to investigate, should have known there was no reasonable basis for denying or delaying the claim. Id.

Because the proponent of a bad faith claim has the burden of proving no reasonable basis existed for the insurer’s actions, the insurer satisfies its summary judgment burden by establishing a reasonable basis for denial or delay of the claim. See Connolly v. Service Lloyds Ins. Co., 910 S.W.2d 557, 561 (Tex.App.-Beaumont 1995, no writ). The bad faith inquiry focuses on the reasonableness of the carrier’s conduct in denying or delaying payment. Connolly, 910 S.W.2d at 563. A bona fide controversy is a sufficient reason for not making prompt payment of a claim. See id.; see also St. Paul Lloyd’s Ins. Co. v. Huang, 808 S.W.2d 524, 526 (Tex.App.-Houston [14th Dist.] 1991, writ denied); St. Paul Guardian Ins. Co. v. Luker, 801 S.W.2d 614, 618 (Tex.App.-Texarkana 1990, no writ).

b. Death Benefits

Under the Code, if a compensable injury to an employee results in death, the insurance carrier must pay death benefits to the employee’s legal beneficiary. See Tex. Lab.Code Ann. § 408.181 (Vernon 1996). When the employee is not survived by any eligible spouse, child, or grandchild, death benefits are paid in equal shares to the surviving dependents of the deceased employee who are either parents, stepparents, siblings, or grandparents. Id. § 408.182(d); see also 28 Tex. Admin. Code § 132.6(a) (West 1996). If the deceased employee is not survived by any legal beneficiaries, the Code requires that death benefits be paid to the SIF. Id. § 408.182(e).

To establish dependency, a person must show he or she received a regular or recurring economic benefit that contributed substantially to her welfare and livelihood. See Tex. Lab.Code Ann. § 401.011(14) (Vernon 1996). The Texas Workers’ Compensation Commission rules expand the code definition and create presumptions in determining dependency. 28 Tex. Admin. Code § 132.2 (West 1996) (Texas Workers’ Compensation Comm’n, Determination of Facts of Dependent Status). Rule 132.2 provides, in part, as follows:

*9 (b) A benefit which flowed from a deceased employee, at the time of death, on an established basis in at least monthly intervals to the person claiming to be dependent, is presumed to be a regular or recurring economic benefit. This presumption may be overcome by credible evidence. The burden is on the claimant to prove that benefits, which flowed less frequently than once a month, were regular or recurring at the time of the employee’s death.

(c) It shall be presumed that an economic benefit, whose value was equal to or greater than 20% of the [claimant’s] net resources in the period (see subsection (d) of this section) for which the benefit was paid, is an economic benefit which contributed substantially to the [claimant’s] welfare and livelihood. This presumption may be overcome by credible evidence. The burden is on the claimant to prove that benefits whose value was less than 20% of the [claimant’s] net resources contributed significantly to the [claimant’s] welfare and livelihood.

(d) Net resources for the purpose of subsection (b) of this section are 100% of all wage and salary income and all other income including nonpecuniary income and all income of the [claimant’s] spouse, less 100% of social security taxes and federal income tax withholding.

Id. The claimant has the burden to furnish sufficient information to enable the Commission to accurately identify the net resources and to establish the existence of the economic benefit claimed. This information may include, but is not limited to, tax returns, a financial statement of the individual, and check stubs. Id. § 132.2(e). Finally, if the economic benefit was in the form of goods and services, the market value of the same or similar goods and services in the same vicinity determines the goods’ and services’ value as a contribution. Id. § 132.2(f).

3. Summary Judgment Evidence

The CNA defendants offered the affidavit of Sarah Holguin, Transportation’s claims adjuster, in support of their summary judgment motion. Holguin’s affidavit stated that, when she learned of Richard’s death, she promptly contacted Crawford & Company to investigate the circumstances surrounding the accident. Holguin specifically asked Don Lish at Crawford & Company to contact Hickey because she understood Hickey might be a beneficiary entitled to benefits.

Lish reported to Holguin that Hickey “believed and contended” that her son contributed over 50% of the money and labor necessary to “keep [Hickey’s] house going.” Holguin, however, did not initiate benefits because she understood that, to be entitled to benefits, Hickey had to establish both that she was receiving a regular and recurring economic benefit and that the benefit contributed substantially to her welfare and livelihood. Holguin did not believe Hickey had done so.

Holguin told Hickey’s attorney on several occasions that, to receive benefits, Hickey needed to demonstrate and substantiate the regular and recurring economic benefit provided by Hickey’s son. Holguin’s affidavit stated Hickey was never “able to demonstrate” the existence of such a benefit “so [the] matter was submitted to the … Commission.”

*10 A BRC was held in April 1992. The BRC officer ultimately recommended denying Hickey’s claim for benefits. The CCH officer and the appeals panel both agreed with that recommendation.¹¹ At all times, Holguin knew Transportation would be required to pay death benefits. The question was not whether to pay them, but to whom to pay them, Hickey or the SIF. Her personal preference was to pay them to Hickey.

4. Application of Law to Facts

The CNA defendants moved for summary judgment on the grounds that (1) they owed no duty of good faith and fair dealing to Hickey, and (2) even if they did owe that duty to Hickey, they did not breach that duty. Assuming, without deciding, the carrier owed a duty to Hickey, the summary judgment evidence conclusively establishes the CNA defendants did not breach that duty.

Holguin’s affidavit established that she did not initiate payments to Hickey because Hickey never established she was dependent on her son when he died. See Tex. Lab.Code Ann. §§ 408.182(d), 401.011(14) (Vernon 1996). Additionally, both the CCH officer and the appeals panel concluded Hickey had not met her burden of establishing dependence on her son. The CNA defendants’ summary judgment evidence showed Hickey did not satisfy the statutory requirements for payment of death benefits. That failure is, as a matter of law, a reasonable basis for an insurance company to deny or delay payment of a claim.

In her response to summary judgment and on appeal, Hickey relies on Lish’s report and Hickey’s Affidavit of Dependency to show a fact issue existed. She argues that the CNA defendants had both documents in their “file” when they denied Hickey’s claim for benefits, and both these documents established she was dependent on her son at the time of his death.

We do not read the Lish report to “conclude” that Hickey was dependent on her son when he died. Rather, Lish’s report recounts his interview with Hickey and memorializes her statements. Hickey told Lish that (1) her son made “most of the house payment consistently,” took care of the house, and paid the utility bills; and (2) she did not want to talk about the specifics of her son’s contributions. Lish’s report related that Hickey was “quite upset” during their interview and he did not feel it was “appropriate or timely” to “press her on specifics regarding amount of percentages, etc.” Nevertheless, he reported that it was clear that Hickey believed her son “contributed substantially and far in excess of fifty percent” of the money and physical labor required to keep the house going. Lish’s report does not establish dependency; rather, it summarizes Hickey’s claims of financial dependence. When read as a whole, the report indicates only Hickey’s belief that her son contributed substantially to her well-being.

We cannot agree with Hickey that this document raises a fact issue precluding summary judgment in this case. Nothing in the report substantiates Hickey’s assertions, and these unsubstantiated assertions do not provide sufficient information for the Commission to accurately identify her net resources and to establish the existence of the economic benefit claimed. Because the unsubstantiated statements in Lish’s report do not establish (1) a regular and recurring benefit that (2) contributed substantially to Hickey’s welfare and livelihood, they do not meet the requirements of rule 132.2(e). Accordingly, we conclude the report does not raise a fact issue on the reasonableness of the CNA defendants’ decision to deny or delay payment on Hickey’s claim.

*11 We reach a similar conclusion when reviewing Hickey’s “Original Affidavit of Dependency.” In the affidavit, Hickey states that, while her son was living with her, she received a “regular and recurring economic benefit from [him] which contributed substantially to [her] welfare and livelihood and well-being.” She states the economic benefits were provided to her on at least a monthly basis. Hickey also estimated the direct economic benefit she received from her son was “far more than 20% of [her] net resources, consisting of [her] net wage and salary income or other income, less federal taxes, federal withholding and social security taxes for the periods involved.”¹²

Rule 132.2 requires a person claiming death benefits as a dependent parent to furnish sufficient information to enable the Commission to (1) accurately identify the net resources, and (2) establish the existence of the economic benefit claimed. 28 Tex. Admin. Code § 132.2(e) (West 1996). Hickey’s affidavit tracks the language of section 401.011(14) of the Code and rule 132.2(d) and concludes, without any evidence to substantiate her conclusions, that her son contributed “more than 20% of her net income.” Because this does not satisfy rule 132.2(e), it cannot raise a fact issue on the reasonableness of the CNA defendants’ decision to deny or delay payment of Hickey’s claim.

We recognize that a bona fide controversy existed at the time the CNA defendants denied or delayed payment of Hickey’s claim. A bona fide controversy over a person’s right to benefits can provide a sufficient basis for denying or delaying payment of a claim. We conclude the trial court properly granted summary judgment on Hickey’s bad faith claims.

We overrule Hickey’s eleventh point of error. Our disposition of this point of error makes it unnecessary for us to consider the CNA defendants’ cross-point of error. Tex.R.App.P. 90(a).

FAILURE TO CITE AUTHORITY

In her fourth point of error, Hickey contends the trial court erred in allowing the SIF to participate as a separate party at trial. In her eighth point of error, Hickey contends the trial court erred in allowing appellees to use the court’s order in limine (prohibiting Hickey from raising alleged due process violations) as both “a sword and a shield.” In her ninth and tenth points of error, Hickey contends the jury’s findings are against the great weight and preponderance of the evidence. In her twelfth point of error, Hickey contends the trial court erred in denying various motions to compel discovery and motions for sanctions resulting from appellees’ alleged discovery abuse.

1. Applicable Law

Rule 74(f) of the Texas Rules of Appellate Procedure requires an appellant to include in her brief “such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.” Tex.R.App.P. 74(f). Points of error must be supported by argument and authority. Id.; see Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex.1983). An appellant waives review of any point of error not supported by argument and authority. See Farmers Tex. County Mut. Ins. Co. v. Griffin, 868 S.W.2d 861, 870 (Tex.App.-Dallas 1993, writ denied).

2. Application of Law to Facts

a. Participation of SIF as Separate Party

*12 Hickey cites no authority in support of her argument that the trial court erred in allowing the SIF to participate as a separate party at trial. This argument is made in conjunction with Hickey’s first three points of error; however, the only authority cited in this portion of the brief relates to the (1) filing of a petition for judicial review of a workers’ compensation ruling, (2) Commission’s intervening in a workers’ compensation appeal, (3) carrier’s right to reimbursement for payments made to the SIF, and (4) order of proceedings in a jury trial. None of these provisions relate to or support Hickey’s claim that allowing participation of the SIF at trial was error. Because Hickey has failed to cite any authority to support her fourth point of error, we conclude nothing is presented for our review. We overrule Hickey’s fourth point of error.

b. Order in Limine, Factual Sufficiency, Discovery and Sanctions Motions

Hickey cites no authority in support of her argument that (1) the trial court improperly allowed appellees to use the court’s order in limine as both “a sword and a shield,” (2) the jury’s findings were against the great weight and preponderance of the evidence, or (3) the trial court erred in denying her motions to compel discovery and motions for sanctions. By failing to cite any authority in support of these points of error, Hickey has failed to comply with rule 74(f). Accordingly, nothing is presented for our review. We overrule Hickey’s eighth, ninth, tenth, and twelfth points of error.

OVARD, MALONEY and WRIGHT, JJ., affirm the trial court’s judgment.

	Footnotes
1		Hickey filed suit individually and on behalf of the estate of her deceased son, Richard Emmett Hickey.
2		When necessary, the CNA defendants and the SIF are collectively referred to as “appellees.”
3		We use “Hickey” to refer to Richard Emmett Hickey’s mother and “the deceased” to refer to Richard Emmett Hickey.
4		Payments are made to the SIF when there are no legal beneficiaries entitled to benefits. See Tex. Lab.Code Ann. § 403.007 (Vernon 1996).
5		The original petition was actually filed against CNA Insurance Company, Sarah Holguin, Crawford & Company, and Don Lish. Lish and Crawford & Company were subsequently nonsuited, and Hickey added Transcontinental Insurance Company and Transportation Insurance Company as additional defendants in an amended petition.
6		Although Hickey’s live pleading arguably asserts additional claims for intentional and negligent infliction of emotional distress as well as violations of the insurance code, on appeal the parties have treated the petition as raising only bad faith claims. Because the CNA defendants’ summary judgment motion specifically sought judgment on all of Hickey’s claims and because the other claims arguably raised in the amended petition have not been raised on appeal, we consider only the bad faith claims in our opinion.
7		Other Texas courts have considered the filing of an amended petition the equivalent of filing suit. See Yevak v. Yevak, 713 S.W.2d 164, 167 (Tex.App.-Texarkana 1986, no writ) (using amended petition to determine residency requirement in divorce action); Perusse v. Perusse, 402 S.W.2d 931, 934 (Tex.Civ.App.-El Paso 1966, writ dism’d) (same). We see no reason to treat these amended petitions differently.
8		Although it is not entirely clear whether a separate hearing was held on the motion for leave to file third party action, one of the attorneys representing the CNA defendants stated during a hearing on Hickey’s motion to sever that he believed a hearing was held on the motion.
9		The only claim remaining at the time of trial (and at the time Hickey requested a severance) involved the appeal of the administrative decision denying Hickey’s claim for death benefits. The bad faith claims had already been disposed of on summary judgment.
10		Although Hickey contends admission of the administrative decisions was prohibited by section 410.304(a), we disagree. Section 410.304(a) simply states that the trial court must inform the jury of the Commission’s decision in its charge to the jury. See Tex. Lab.Code Ann. § 410.304(a) (Vernon 1996). The statute does not contain any language limiting the admissibility of evidence at trial. Moreover, we note, as did the SIF in its brief to this Court, that section 410.168(b) specifically prohibits disclosing the CCH officer’s decision on attorney’s fees to a jury at a subsequent trial. See Tex. Lab.Code Ann. § 410.168(b) (Vernon 1996). This fact suggests that the legislature specifically contemplated that the hearing officer’s decision would be admissible. If it were not, it would have been unnecessary for the legislature to adopt a specific provision excluding any evidence of the attorney fee award.
11		The CNA defendants attached as summary judgment evidence the decisions of the CCH officer and the appeals panel.
12		Hickey’s affidavit lists these benefits as including the continuous upkeep and maintenance of the house, car, and landscaping as well as assistance in paying mortgage, utility, and grocery bills.