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At a Glance:
Batte v. Twin City Fire Ins. Co.
November 24, 1999
Unpublished Opinion

Batte v. Twin City Fire Ins. Co.

United States District Court, N.D. Texas, Dallas Division.

Carrie BATTE, Plaintiff,



No. Civ.A. 398CV1282D.


Nov. 24, 1999.



*1 In this action plaintiff Carrie Batte (“Batte”) seeks to hold defendant Twin City Fire Insurance Company (“Twin City”) liable on extracontractual claims for failing to pay workers’ compensation benefits. Twin City moves for partial1 summary judgment dismissing those claims. For the reasons that follow, the court grants the motion.


Batte was an employee of Life–Like Products, Inc. (“Life–Like”). Twin City provided workers’ compensation insurance to Life–Like’s employees. On June 25, 1996 Batte suffered an on-the-job injury when she tripped and fell on her knees while carrying a heavy tub of ice chest straps. A physician treated Batte at the emergency room at a local hospital for injury to her left knee. The doctor authorized her to return to work the same day under certain restrictions, and Batte did so. Batte later informed her employer of pain in her right knee and of her desire to seek medical treatment. She maintained that she had also injured her right knee in the June 25, 1996 slip and fall. She received treatment for that knee on July 24, 1996 from Robert P. Roye, M.D. (“Dr.Roye”), an orthopaedic surgeon.

On July 18, 1996 Life–Like notified Twin City of Batte’s injury to her left knee by way of an Employer’s First Report of Injury or Illness (“First Report”). Twin City assigned Richard Hyde (“Hyde”), a claims adjuster, to handle the workers’ compensation claim. Hyde conducted an investigation and concluded that the injury to Batte’s left knee was compensable. On July 24, 1996 Twin City disputed Batte’s claim for benefits for her right knee, maintaining that it was unrelated to the injury sustained on June 25, 1996 to her left knee.

Batte filed a claim for compensation for her right knee with the Texas Workers’ Compensation Commission (“TWCC”). The parties participated in a benefit review conference, a contested case hearing, and an appeal to the TWCC Appeals Panel, following which the TWCC found in Batte’s favor. Twin City did not seek judicial review of the TWCC’s decision. It paid income and medical benefits to Battee based on the injury to her right knee.

Batte then sued Twin City in state district court alleging claims for breach of contract; violation of the Texas Deceptive Trade Practices–Consumer Protection Act (“DTPA”), Tex. Bus. & Com.Code Ann. §§ 17.41–17.63 (West 1987 & Supp.1999); unfair insurance practices, in violation of Tex. Ins.Code Ann. art. 21.21 (West 1981 & Supp.1999), and the statutes, rules, and regulations incorporated therein; and breach of the duty of good faith and fair dealing.2 Twin City moves for summary judgment dismissing Batte’s extracontractual claims.


The court begins by addressing three procedural matters. First, after Twin City filed its reply brief, Batte filed a November 2, 1999 “reply” to Twin City’s reply. This is not permitted under the court’s local civil rules. The movant’s reply brief is the final pleading unless leave of court is granted. See N.D. Tex. Civ. R. 7.1(f) (permitting reply brief after response filed); R. 56.7 (“Except for the motions, responses, replies, briefs, and appendixes required by these rules, a party may not, without the permission of the presiding judge, file supplemental pleadings, briefs, authorities, or evidence.”). Moreover, the party who has the burden on a particular matter ordinarily is permitted to open and close the briefing. Dondi Properties Corp. v. Commerce Sav. & Loan Ass’n, 121 F.R.D. 284, 291 (N.D.Tex.1988) (en banc). The court has therefore not considered Batte’s November 2, 1999 “reply” for any purpose in deciding this motion.

*2 The second procedural matter concerns the pleading to which the court must look to identify the claims that Batte is alleging. Before Twin City removed this case, Batte filed an original petition and a first amended original petition in state district court. Following removal, she sought and obtained leave of this court to file a second amended complaint. Although Batte had submitted a proposed amended pleading with her motion for leave to amend, the court in granting her motion directed that she “file a second amended complaint within 15 days of the date this order is filed” because “her current proposed pleading is improperly denominated as a ‘second amended original petition.” ’ Mar. 4, 1999 Ord. at 1. According to the clerk’s docket, however. Batte never filed a second amended complaint. Accordingly, in deciding Twin City’s motion, the court will look to Batte’s first amended original petition, filed in state district court prior to removal, as the operative pleading.3

Third, despite its assertion in a footnote that Batte’s breach of contract claim is “non-sensical and without meaning,” D. Br. at 15 n. 2, Twin City seeks summary judgment concerning only Batte’s extracontractual claims, but has not, as required by Rule 56.3(c), styled its motion as one for partial summary judgment. See Rule 56.3(c) (“If a moving party seeks summary judgment on fewer than all claims or defenses, the motion must be styled as a motion for partial summary judgment.”). The court has treated the motion as one for partial summary judgment.4


Batte asserts claims for extracontractual liability based on the DTPA, article 21.21 of the Texas Insurance Code, and breach of the duty of good faith and fair dealing. The court will address as a threshold matter her claim for breach of the duty of good faith and fair dealing because if Batte has failed to avoid summary judgment concerning this cause of action, her DTPA and Texas Insurance Code claims fail as well. See Higginbotham v. State Farm Mut. Auto. Ins. Co., 103 F.3d 456, 460 (5th Cir.1997) (holding that under Texas law, extracontractual claims pursuant to DTPA and Texas Insurance Code require same predicate for recovery as bad faith cause of action and that because insurer was found not to have acted in bad faith, insured’s claims under DTPA and Insurance Code were also properly dismissed).


Texas law recognizes a cause of action for breach of the duty of good faith and fair dealing. “In order to sustain such a claim, the insured must establish the absence of a reasonable basis for denying or delaying payment of the claim and that the insurer knew, or should have known, that there was no reasonable basis for denying or delaying payment of the claim.” Id. at 459. “As long as the insurer has a reasonable basis to deny or delay payment of a claim, even if that basis is eventually determined by the fact finder to be erroneous, the insurer is not liable for the tort of bad faith.” Id. “[I]nsurance carriers maintain the right to deny questionable claims without being subject to liability for an erroneous denial of the claim.” Id.


*3 Twin City asserts that the summary judgment evidence establishes that its obligation to pay workers’ compensation benefits for Batte’s right knee injury was not reasonably clear. Twin City offers evidence to support the existence of a reasonable basis to contest Batte’s claim that she also injured her right knee on June 25, 1996. This includes the emergency room medical treatment report, which states that Batte informed hospital personnel that she had tripped and fallen on her left knee; the doctor’s return to work orders, which restricted Batte from bearing weight on her left foot (without mentioning her right foot); the First Report, which refers to the left knee as the part of the body injured; the statements of Life–Like’s Assistant Personnel Director, Scott D. Slaydon, to Hyde regarding Life–Like’s information about the incident; and the Supervisor’s Investigation Report of Margaret Watson, the Supervisor of the Silkscreen Department. All these materials indicated an injury to the left knee and did not mention an injury to the right knee. Twin City has also adduced Batte’s deposition testimony, in which she conceded that the doctor did not evaluate her right knee at the hospital on June 25, 1996, and that it was reasonable for the doctor and her coworkers to have believed that she had only hurt her left knee based on what she had told them and what they had seen on the day of the accident.

In response to defendant’s motion, Batte maintains that although her left knee caused her more pain, resulting in her being taken to the hospital for treatment of that knee, she advised her employer that she had injured both knees as a result her fall; her employer did not consult with her before notifying Twin City that she had only injured her left knee; and that she told Dr. Roye on July 24, 1996 that she had injured both knees and informed Hyde the same day how she fell and that both knees were injured. She asserts that Twin City refused to investigate her claim and informed her to appeal to the TWCC.5 Batte also posits that, as in Standard Fire Insurance Co. v. Stephenson, 963 S.W.2d 81 (Tex.App.1997, no writ).6 Twin City conducted an outcome-oriented investigation, and that it conducted no investigation but simply sought to prove its denial. She relies on evidence that (1) Twin City obtained a medical review from Katherine Blanchette, M.D., to support its position,7 and witness statements in April 1997 that did not describe Batte’s fall but merely described her expressions of pain, and that Twin City appealed the TWCC contested case hearing decision to the Appeals Panel and objected to her introducing a picture of the tub she was carrying and a description of the tub. She contends that after its original, inadequate investigation, liability became reasonably clear based on her statements, Dr. Roye’s report, and the benefit review conference and contested case hearing.8

The court holds that a reasonable jury could not find that Twin City breached its duty of good faith and fair dealing. According to the evidence, on the date of the incident Batte never mentioned to the treating physician that she had injured her right knee. Consequently, the physician treated her left knee and imposed restrictions on her returning to work that were based only on this injury. Any injury to Batte’s right knee was of so little consequence that Life–Like supervisory personnel and her coworkers thought she had suffered an injury only to her left knee. Regardless whether she told her employer that she had injured both knees, Life–Like notified Twin City only of the left knee injury.9 Even if she told Hyde that she had injured both knees, it was reasonable, in view of substantial contrary evidence from disinterested sources, for Twin City to question whether she had suffered this injury and to continue with its investigation. Any knowledge that Twin City acquired during the TWCC proceeding is irrelevant. “[W]hether there is a reasonable basis for denial, however, must be judged by the facts before the insurer at the time the claim was denied.” Viles v. Security Nat’l Ins. Co., 788 S.W.2d 566, 567 (Tex.1990).

*4 The court also rejects Batte’s reliance on Standard Fire Insurance Co. In that case the insurance adjuster testified that, following instructions from her supervisors, she had intentionally conducted an investigation to disprove the compensability of the claim. Standard Fire Insurance Co., 963 S.W.2d at 84–85. Batte has adduced no such evidence.

Because a jury could not reasonably find that Twin City denied workers’ compensation benefits to Batte after it knew or should have known that its liability for the injury to her right knee was reasonably clear, Batte’s bad faith claim lacks merit as a matter of law. “Plainly put, an insurer will not be faced with a tort suit for challenging a claim of coverage if there was any reasonable basis for denial of that coverage.” Higginbotham, 103 F.3d at 460 (citing Emmert v. Progressive County Mut. Ins. Co., 882 S.W.2d 32, 36 (Tex.App.1994, writ denied)).


Under Texas law, extracontractual tort claims pursuant to the DTPA and the Texas Insurance Code require the same predicate for recovery as do bad faith causes of action. Id. Thus an insured may not prevail on claims under article 21.21 of the Texas Insurance Code or the DTPA if the court concludes that the insured has no cause of action for breach of the duty of good faith and fair dealing. See id. Because Batte has failed to present evidence that establishes a genuine issue of material fact concerning her claim for breach of the duty of good faith and fair dealing, the court concludes that her DTPA and Texas Insurance Code claims also fail.

Accordingly, the court grants Twin City’s motion for partial summary judgment.




As the court explains infra at § II, Twin City’s motion is properly treated as one for partial summary judgment although not denominated as such.


The court bases its understanding of Batte’s claims on her first amended original petition, filed in state district court prior to removal. See infra § II.


The court cannot determine whether this ruling significantly impacts the claims at issue because of ambiguity between the two pleadings concerning whether Batte intends to maintain her breach of contract claim. In her first amended original petition she clearly alleges such a cause of action. See 1st Am. Orig. Pet. ¶ V. In her proposed second amended original petition she deletes the heading “First Cause of Action: Breach of Contract,” but under the heading “Conditions Precedent” still asserts that Twin City “breached the insurance contract by failing to provide coverage, resulting in damages to Plaintiff.” See Prop.2d Am. Orig. Pet. ¶ IV. This language is identical to that found in the breach of contract claim in her first amended original petition. The court has treated the breach of contract claim as if it remains in the case. Twin City appears to do so as well. See D. Br. at 15 n. 2 (asserting that Batte’s breach of contract claim is “non-sensical and without meaning”).


Twin City has also attached a declaration to its motion. This document should have been included in its appendix. See Rule 56.6(a) (“A party who relies on affidavits, depositions, answers to interrogatories, or admissions on file to support or oppose a motion for summary judgment must include such evidence in an appendix.”). Because a declaration is the functional equivalent of an affidavit, Rule 56.6(a) applies. In view of the abbreviated length of the declaration (two pages) and of Twin City’s otherwise faithful compliance with the local rules, and because this misstep has not interfered with the decisional process of the court or caused Batte any apparent prejudice, the court will not require that Twin City amend its motion to correct this error.


To the extent that Batte complains about Twin City’s investigation, the court holds that a reasonable jury could not find that it was inadequate.


In her brief, Batte cites Standard Fire Insurance Co. by the correct volume and page number, but identifies the style of the case as “State Farm v. Simmons,” a decision of the Texas Supreme Court. See P. Br. at 2. It is clear, however, that she is referring to Standard Fire Insurance Co., which addresses the “outcome-oriented” investigation. (On the next page of her brief, Batte cites Standard Fire Insurance Co. as being found at “955 S.W.2d 665.” See P. Br. at 3. The Standard Fire Insurance Co. opinion published in the advance sheet at that citation was withdrawn, however, from the bound volume.)


Batte cites a quotation that she appears to attribute to Twin City: “Sending file to Dr. Blanchette to review relationship of right knee to our injury. This should help us in our position at CCH .” P. Br. at 2. She cites pages 37–46 of her appendix as support for this assertion concerning the evidence. The court has carefully read those pages, however, and has not found the quoted statement. The court has no obligation to search the balance of the summary judgment evidence to locate the quotation in question. “Rule 56 does not impose a duty on the district court to sift through the record in search of evidence to support a party’s opposition to summary judgment.” Doddy v. Oxy USA, Inc., 101 F.3d 448, 463 (5th Cir.1996) (citing Jones v. Sheehan, Young & Culp. P.C., 82 F.3d 1334, 1338 (5th Cir.1996)). When a party fails to refer to items in the record, the evidence is not properly before the court in deciding whether to grant the motion. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th Cir.1992); Nissho–Iwai Am. Corp. v.. Kline, 845 F.2d 1300, 1307 (5th Cir.1988) (on rehearing) (denying rehearing after plaintiff asserted that deposition was of record when district court granted partial summary judgment, and holding that because plaintiff failed to designate, or in any way refer to, deposition as source of factual support for response to motion, deposition was never made part of competent summary judgment record before district court).


Plaintiff cites globally to pages 2–32 of her appendix and to the transcript of the TWCC contested case hearing in support of this assertion. See P. Br. at 3. This is improper because it does not comply with Rule 56.5(c) (“A party whose motion or response is accompanied by an appendix must include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence.”). As the court explained in Craig v. Ryder Truck Rental, Inc., Civil Action No. 3:97–CV–1533–D (N.D. Tex. June 12, 1998) (Fitzwater, J.), aff’d, 174 F.3d 198 (5th Cir. Feb. 24, 1999) (table) (per curiam):

In his summary judgment response, [plaintiff] has produced a chart, see Opinion Ex. A. that purports to identify the evidence that creates genuine fact issues concerning each of his claims. It is overbroad, however, citing large groups of deposition pages and exhibits–including entire pages at one time–as being relevant to multiple claims, without specifying the specific portions on which he relies.

Slip op. at 3.

Because this case was filed prior to 1998, this court’s new summary judgment local civil rules do not apply. But if they did, it is clear that [plaintiff’s] response would not satisfy LR 56.5(c), which provides that “[a] party whose motion or response is accompanied by an appendix must include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence.”

Id. at n. 3.


Batte faults her employer for this. But the fact that the employer may have made a mistake does not weaken Twin City’s contention that it acted in good faith.

End of Document