Court of Appeals of Texas,

Beaumont.

Robert NICHOLS, Patricia Ann Nichols, Amber Nichols and Kari Nichols, Appellants

v.

THORNBERRY OIL FIELD SERVICE, INC., O.T. Thornberry, james Loge and Jonathan M. Thornberry, Appellees

No. 09-92-122 CV.

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Nov. 18, 1993.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

Opinion

WALKER, Chief Justice.

*1 On September 30, 1993, this Court filed its opinion which affirmed in part, reversed and remanded in part, the judgment of the trial court.

On October 5, 1993, appellants filed their motion to amend record and for rehearing on point of error eleven. We determine that appellants’ motions should in all things be granted. On October 14, 1993, appellees filed their motion for rehearing, same being overruled by this Court.

Upon reconsideration we are of the opinion that appellants should be allowed to amend the record on appeal to include an inadvertently omitted pleading, pursuant to Tex.R.App. P. 55(c).

Rule 55(c) enables this Court, after submission, to set aside a portion of the opinion to obtain a more satisfactory submission of the case.

This opinion on rehearing shall only affect that portion of this Court’s original opinion relating to point of error eleven. In all other regards, the original opinion filed September 30, 1993, represents the unanimous opinion of this Court.

In our original opinion we overruled appellants’ point of error eleven for failure to bring forth a sufficient record for review. We did so pursuant to Tex.R.App. P. 50(d). Upon reconsideration we believe that the ends of justice will best be served by now sustaining appellants’ point of error eleven.

The amendment to our appellate record reveals that appellants, plaintiffs below, did plead a cause of action for Insurance Code violation, Deceptive Trade Practice violations, and breach of express and implied warranties. The trial court, on March 22, 1991, granted summary judgment in favor of defendants, now appellees, on plaintiffs’ second amended petition. Our allowing the record on appeal to be amended, now convinces us that the trial court erred in granting summary judgment favoring defendants’.

The defendant-movant for summary judgment must establish as a matter of law that there is no genuine issue of material fact as to one or more of the essential elements of the non-movant’s cause of action. Citizens First Nat. Bank, Etc. v. Cinco Explor., 540 S.W.2d 292, 294 (Tex.1976). In essence, the defendant-movant is required to meet the non-movant’s causes of actions, as they are plead, and to demonstrate that the non-movant cannot prevail. See Rogers v. R.J. Reynolds Tobacco Co., 761 S.W.2d 788, 795 (Tex.App.-Beaumont 1988, writ denied). The question on appeal is whether summary judgment proof establishes as a matter of law that no genuine issue of material fact exists, not whether proof raises a fact issue. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970).

The burden of proof is on the movant, and all doubts as to the existence of a genuine issue of a material fact are to be resolved against the movant. We view the evidence in the light most favorable to the non-movant. All conflicts in the evidence will be disregarded and the evidence favorable to the non-movant will be accepted as true. Every reasonable inference from the evidence must be indulged in favor of non-movant and all doubts resolved in his favor. Evidence favoring the movant’s position will not be considered unless it is uncontroverted. See generally City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979); McCord v. Avery, 708 S.W.2d 954, 955 (Tex.App.-Fort Worth 1986, no writ).

*2 Appellants contend that with respect to the Insurance Code violations, while Robert Nichols was incapacitated from the injuries received as a result of the explosion, appellees approached Patricia Nichols promising her that appellees could procure insurance coverage needed to protect Mrs. Nichols from the tragedy suffered by her husband. Appellants contend that at this point appellees became engaged in the business of providing insurance to the Nichols. Appellants contend that appellees’ conduct violated the duties under Tex. Ins.Code Ann. art. 21.21 (Vernon Supp.1992), through their fraud and misrepresentation in inducing Patricia Ann Nichols to endorse the forms alleged to provide her the proper insurance coverage to suit her needs during a time of crisis. Appellants contend that the result of such action by appellees constitutes engaging in the business of insurance as defined by Texas law. Article 21.21 § 2 provides that a person for purposes of the Insurance Code is defined as any individual, corporation, and or any other legal entity engaged in “the business of insurance.”

Jonathan Thornberry testified that the back-dating of an employment application was because Thornberry Oil wanted to ensure that Nichols’ medical bills were paid by the compensation carrier.

We hold that the evidence of back-dating Robert Nichols’ employment contract standing alone is sufficient evidence to raise a fact issue as to whether appellees were attempting to engage in the business of providing insurance to the Nichols. This, coupled with appellants’ allegations of collusion between appellees and the carrier, may, upon trial, present questions for jury determination.

Regarding appellants’ breach of warranty claims the trial court granted summary judgment in favor of appellees which we hold to be erroneous. Appellants provided several witnesses who testified under oath that Nichols was not a “covered employee.” This evidence was not allowed before the jury, however appellees were allowed to present evidence of Thornberry’s interest in providing coverage for benevolent and caring reasons. Appellants were not allowed to impeach appellees’ testimony with evidence to the contrary. Appellants contend that appellee’s compensation carrier and liability carrier had a keen interest in allowing Nichols to get workers’ compensation benefits. Appellants contend collusion between appellees, Texas Employers’ Insurance Association (the workers’ compensation carrier), and TEIA’s parent company (Employers’) the liability carrier. Appellants contend that the direct and circumstantial evidence showed that it was Thornberry’s, TEIA’s, and Employer’s goal to turn Nichols’ independent contractor claim for common law negligence with unlimited liability into a mere employee’s claim for meager workers’ compensation benefits with the built-in statutory caps.

We hold that the evidence which the trial court did allow was sufficient to create a fact issue sufficient to defeat summary judgment. This evidence consisted of testimony by Patricia Nichols, that while Robert Nichols was in the hospital she received a call from Thornberry to come to Thornberry’s office and “sign some papers” which she was requested to back-date. Patricia Nichols testified that she had no idea what she was signing. There was testimony by Leon Wilson, another contract welder for Thornberry, that a week after Nichols was hurt in the explosion, Thornberry approached Wilson and told him he was going to start “pulling workers’ comp out of my check.” Furthermore, there was testimony of one John Crawford, who was Nichols’ “welders helper” who suffered a concussion from the explosion. Crawford testified that when he arrived home the same night as the explosion, Thornberry had taped a W-4 form on the door. Crawford was informed that he needed to fill it out saying “something about insurance.” Appellants were not allowed full opportunity to develop their facts.

*3 Appellants’ point of error eleven is sustained, which calls for a reversal of the summary judgment and a remand to the trial court for trial on the merits.

MOTION TO AMEND RECORD GRANTED.

MOTION FOR REHEARING ON POINT OF ERROR ELEVEN GRANTED.

SUMMARY JUDGMENT REVERSED AND REMANDED.