In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00029-CV __________________
AMERICAN GENERAL LIFE INSURANCE COMPANY, Appellant
V.
ANNA DICKSON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Appellee __________________________________________________________________
On Appeal from the 60th District Court Jefferson County, Texas Trial Cause No. B-195,107 __________________________________________________________________
MEMORANDUM OPINION
In this interlocutory appeal, American General Life Insurance
Company argues the trial court abused its discretion in granting the
plaintiffs’ motion certifying a class action consisting of two equitable
claims, the first a claim for money had and received and another for
unjust enrichment. Based on the allegations in the pleadings and if it
1 prevailed, American General would have to disgorge the money it earned
on the life insurance policies it issued during the class period as that term
is defined in the trial court’s order to the policyowners whose named
beneficiaries or whose heirs became members of the class. 1
Relying on Rule 42(b)(3), the trial court conducted a hearing and
certified a class of equitable claims involving life insurance policies
issued by American General in the class period, named Anna Dickson as
the representative for the class, which allowed the claims Dickson
asserted against American General to proceed as a class. 2 Yet among
Rule 42’s many hurdles to certification, Rule 42(b)(3) requires that trial
courts find “the questions of law or fact common to the class predominate
over any questions affecting only individual members, and [prove] a class
action is superior to other available methods for the fair and efficient
adjudication of the controversy.” 3 That requirement of Rule 42—call it
1To be clear, the plaintiffs never claimed or argued American General withheld the face amounts on the policies it issued after the named beneficiaries or heirs to the life insurance policies filed claims and American General offered to pay the claims. See Tex. Ins. Code Ann. § 1103.104(a) (“Interest on the proceeds of a life insurance policy accrues from the date the company that issues the policy receives due proof of loss until the date the company accepts the claim and offers to pay.”). 2Tex. R. Civ. P. 42(b)(3). 3Id.
2 the Predominance Requirement—is often a difficult hurdle to clear and
is particularly difficult when the class representative is asserting
equitable claims.4 For the reasons explained below, we hold the trial
court abused its discretion in certifying Dickson’s claims as a class.
Background
For convenience, we focus on the Predominance Requirement.5 To
begin, we note the parties do not contest that American General, as the
successor of All American Life Insurance Company, issued a policy of life
insurance to Robert Lamar Damrel. In the proceeding below, the trial
court appointed Damrel’s daughter, Anna Dickson, as the representative
of the class. We will briefly describe Dickson’s claims since we assume
her claims are typical to those of the class for the purposes of the order
American General is challenging in its appeal. 6
In June 1985, Dickson’s father, Robert Damrel, purchased the
policy on which Dickson bases her claim. The record shows that summer,
4See Best Buy Co. v. Barrera, 248 S.W.3d 160, 163 (Tex. 2007) (reversing order certifying a class claim for money had and received); Stonebridge v. Life Ins. Co. v. Pitts, 236 S.W.3d 201, 206-07 (Tex. 2007) (reversing order certifying a class claim for money had and received). 5Tex. R. Civ. P. 42(b)(3). 6Id. 42(a)(3).
3 Damrel filled out an application for a life insurance policy that would pay
$48,133 in the event of his death. He named First Bank & Trust as the
beneficiary of the policy, and he assigned the policy to the bank.7 We
assume Damrel used the policy as collateral for a loan he obtained from
First Bank & Trust. While the application contains a line for an applicant
to list contingent beneficiaries of the policy, Damrel did not list anyone
as a contingent beneficiary in his application.
Later that month, All American Life Insurance Company of Texas
issued a life insurance policy to Damrel, which insured Damrel’s life for
$48,133.8 The policy is identified as Policy Number C001626. In January
7We have used the word apparently in the above sentence because the record does not include the documents Damrel signed when he closed on the loan. When Dickson sued, First Bank & Trust no longer existed, as the bank was sold in 1998 to another bank. Over the next eleven years, the shares in the successor bank were acquired and merged into three other banks, ending in 2009 with Wells Fargo Bank. In 2012, Wells Fargo sent American General a letter stating that “the loan files which had been transferred from First Bank & Trust have been lost and there is no loan owed by Robert Damrel to First Bank & Trust or to Wells Fargo Bank, NA.” Even though Wells Fargo no longer has documentation on Damrel’s loan, it released any claims it might have under Policy C001626, certified that any lien held by First Bank & Trust had been satisfied and assigned “any interest we ever had in the policy of insurance issued by American General Life Insurance Company to the heirs of Robert L. Damrel, Deceased.” 8Although a company named All American Life Insurance Company
apparently issued the life insurance policy that Damrel bought in 1985, 4 1996 Damrel died. But after Damrel died, neither First Bank & Trust, its
successors, nor Damrel’s wife, Concetta Damrel, ever filed claims with
American General against Policy Number C001626. 9
In May 2011, under an agreement American General reached with
the Texas Department of Insurance and regulators in several other
states, American General compared the Social Security Master Death
File against the names of the policyowners of record it maintains to
determine whether life insurance proceeds might be payable under some
of the policies it had issued that had not yet been claimed by beneficiaries
or heirs of the policyowners that could have not claimed escheat to a
state. As part of that process, in 2012 American General sent a letter
addressed to the “FAMILY OF ROBERT DAMREL” to Robert Damrel’s
last known address in Beaumont. 10 Jamie Carter was living there when
American General mailed the letter, which stated that American General
was trying to confirm whether the records of the Social Security
the evidence shows that All American Life Insurance Company was merged into American General Life Insurance Company before Damrel’s daughters filed the suit. 9Concetta Damrel died on March 23, 2006. 10Damrel’s death certificate is in the record. Dickson and Carter
included the death certificate in the documents they filed when responding to American General’s Motion for Summary Judgment. 5 Administration indicating that Robert Damrel had died were correct. The
letter also states that according to American General’s records, Damrel
was insured by American General under Policy Number C001626, a
policy in which Damrel named “FIRST BANK AND TRUST OF GROVES
TEXAS” as the beneficiary.
Upon receiving the letter, Dickson and Carter both sent American
General formal proofs of death. In them, Dickson and Carter certified
that Damrel died in January 1996, they represented that they were his
daughters, and that the policy American General issued was lost.11
Besides filing claims consisting of the proofs of death, Carter and Dickson
signed affidavits. In them, both stated they did not
locate any information concerning the loan agreement which caused [their] father to take out the life insurance policy in the first place. We know that First Bank & Trust does not exist any longer. Further, we know that if First Bank & Trust ever had a loan outstanding payable by my father to First Bank & Trust, that loan would have been barred by . . . limitations . . . years ago. My sister and I are asking you to issue a check for the benefits of the life insurance policy to us jointly. If not, the benefits should be paid to our father’s estate for ultimate division between my sister and me.
11Carter sent American General a proof of death more than two months before Dickson sent hers. 6 In the same affidavits, Dickson and Carter swore their mother, Concetta
Damrel died in 2006, explaining they had “inherited [her] estate,
including the life insurance benefits.”12
After American General received the proofs of death and affidavits
from Damrel’s daughters, American General sent their attorney a letter
stating that before issuing checks against Damrel’s policy to Carter and
Dickson, it would require Wells Fargo Bank (formerly known as First
Bank & Trust) to sign a release of assignment. On July 26, 2012, Wells
Fargo released American General from “any interest it has to the
insurance policy that was issued by American General Life Insurance
Company on the Life of Robert L. Damrel.” In the same instrument, Wells
Fargo assigned any interest it had in Policy Number C001626 “to the
heirs of Robert L. Damrel, Deceased.”
12Nothing in the record shows that First Bank & Trust released Damrel from the assignment before the bank was sold to another bank, that First Bank & Trust (or Damrel) ever changed the beneficiary on Policy Number C001626, or that Damrel ever named a contingent beneficiary on his policy. And Carter and Dickson both testified in depositions that were taken after American General paid the claim that until 2012 when they received the letter from American General and learned their father bought a policy of life insurance from American General, they were unaware he owned the policy. 7 Less than sixty days after Wells Fargo released its interest in the
policy, American General sent Carter a check representing her half in the
face amount of the policy plus the statutory interest it owed, which it
based on a calculation tied to the date American General received
Carter’s proof of loss. 13 Around three weeks later, American General sent
Dickson the remaining balance (half the face amount of the policy) plus
the statutory interest it owed, which it based on the date it received
Dickson’s proof of loss. 14
In January 2014, Dickson sued American General in Jefferson
County, Texas, alleging that American General owed her interest on the
policy “from the date that Mr. Damrel’s death was entered into the Social
Security Administration’s Death Master File” rather than from the date
it received her proof of loss. According to Dickson, by failing to pay the
full benefits including the interest she was owed, American General
engaged in fraud, acted maliciously, was grossly negligent, converted
funds, breached the contract, violated the Texas Insurance Code,
breached its duty of good faith and fair dealing, and was unjustifiably
13See Tex. Ins. Code Ann. § 1103.104 (Interest on Proceeds). 14Id.
8 enriched because it had retained and used her money “for about sixteen
years.” In October 2015, Dickson amended her petition and Carter joined
the suit. The amended petition contains the same claims as Dickson’s
original petition but asserts an additional “equitable cause of action of
money had and received[,]” a claim based on Dickson’s theory that a
named beneficiary or in the absence of a beneficiary the policyowner’s
heir’s rights in the proceeds of a life insurance policy vest immediately
upon the policyowner’s death. In the amended petition, Dickson and
Carter, as plaintiffs, sought an accounting, damages, and equitable relief.
They also asked the trial court to certify their claims so they could go
forward as a class.
The Plaintiffs’ Sixth Amended Petition, which is Dickson’s and
Carter’s live pleading, alleges just two claims—a claim for money had
and received and a claim for unjust enrichment. In the Sixth Amended
Petition, the plaintiffs asked the court to: (1) order an accounting; (2)
impose a constructive trust on the money American General earned on
the assets the plaintiffs alleged were rightfully owned by the class; (3)
order American General to disgorge the “earnings and compound
earnings on the life insurance proceeds [that rightfully belonged to the
9 members of the class that American General] comingled and invested”
with assets that it owned; and (4) allow the plaintiffs “all further legal
and or equitable relief that the Court may deem just and proper.” The
plaintiffs also asked the trial court to certify a class of all Texas residents
to whom American General paid death benefits under life insurance
policies issued in Texas and owned by Texas residents during the class
period. 15
In November 2018, Dickson filed a motion asking the trial court to
certify a class action based on the two equitable claims she alleged in her
Sixth Amended Petition. According to Dickson’s motion, her money had
and received, and her unjust enrichment claims were appropriate for
class certification and maintainable as class claims because the issues
common to the class predominate over the issues affecting only
individuals in the putative class. Dickson argued that because the
ownership in the proceeds that are payable under life insurance policies
vests in the beneficiaries or in the absence of beneficiaries in the heirs of
15The petition defined class periodas October 18, 2012, through the date of final judgment. The class allegations disclaimed any desire for the class to include any judges who were presiding over the case, the “staff of the presiding judges[,]” “the immediate family of the pres[id]ing judges[,]” and the employees of American General and its affiliates. 10 the policyowners on a policyowner’s death, the right to the earnings on
the proceeds from the date of policyowner’s death forward belongs to the
beneficiaries or heirs and not to American General, which had wrongfully
treated the proceeds from policies on which claims had not been filed as
its own until a policyowner’s beneficiary or heir filed a claim.
As to predominance and superiority, Dickson’s motion alleges
[the] questions of law and fact common to Dickson and putative class members predominate over any questions affecting only individual members of the [c]lass, and a [c]lass action as asserted herein is superior to other available to other methods to the fair and efficient adjudication of this controversy, in that . . . [a]ll evidence is materially the same for each [c]lass member. The law applicable to those facts likewise is the same.
In response to Dickson’s motion to certify her claims as a class,
American General argued that Dickson’s “motion fails under the
commonality and predominance analyses.” Noting Dickson sought both
equitable and monetary relief, American General observed that “Texas
courts are uniform in their view that such claims are inherently
inappropriate for class certification.” In the trial court, American General
explained that in a trial of equitable claims it would be entitled to inquire
into each class member’s knowledge and understanding surrounding the
circumstances that caused any delays in submitting a claim after a 11 policyowner died to allow a factfinder to weigh whether that person, in
equity and good conscience, was entitled to an equitable remedy or
recovery given the particular circumstances surrounding that
individuals’ claim.
American General pointed to Dickson’s claim “to understand the
challenges facing” a trial involving a class consisting of equitable claims
when the claims against the policies arise in a variety of circumstances,
each with different reasons explaining why the beneficiaries or heirs
delayed in filing a claim following a policyowner’s death. American
General concluded that given the fact that there would be various
explanations, the factfinder would be required to consider the individual
circumstances in deciding whether the delay in any given case should be
attributed to the individual or to American General depending on the
circumstances and the causes of the delay. Boiling it down, American
General argued the focus of the trial will be on individual issues, not
issues that are common to the class. 16
16To be sure, American General’s response included several more arguments, including: (1) the trial court lacked authority to certify a class; (2) Dickson could not establish that Texas law applied to all class members; (3) Dickson was not an appropriate class representative; (4) the class the trial court certified is too broad; and (5) Dickson failed to 12 In August 2020, the trial court held a hearing to consider the
parties’ arguments on whether Dickson’s claims should be certified and
allowed to proceed as a class. 17 No witnesses testified in the hearing. Over
five months later, the trial court, by order, certified Dickson’s money had
and received, and her unjust enrichment claims so they could proceed as
a class. The order from which American General appealed includes
extensive findings of fact, conclusions of law, and a trial plan. 18 In the
order, the trial court:
• defines the class; • appoints Anna Dickson as the representative for the class; • appoints four law firms as class counsel; • includes the findings required by Rule 42, Texas Rules of Civil Procedure, findings that address numerosity, commonality, typicality, and adequacy; and • finds that the questions of law predominate over the questions affecting only individual members of the class and finds that allowing the suit to proceed as “a class is superior to other
show that handling the case as a damages class would be a viable way to resolve the parties’ claims. 17See Tex. R. Civ. P. 42(c)(a)(A) (“When a person sues or is sued as
a representative of a class, the court must—at an early practicable time— determine by order whether to certify the action as a class action.”); Nat’l Gypsum Co. v. Kirbyville Indep. Sch. Dist., 770 S.W.2d 621, 627 (Tex. App.—Beaumont 1989, writ dism’d w.o.j.) (observing that in determining whether to certify a class, trial courts may consider the pleadings and other material in the record, together with the evidence presented in the certification hearing). 18Tex. R. Civ. P. 42(c); Henry Schein v. Stromboe, 102 S.W.3d 675,
685 (Tex. 2002). 13 available methods for the fair and efficient adjudication of the controversy.”
After the trial court signed the order, American General filed a
timely notice of appeal. 19 After filing the appeal, American General filed
a brief, in which it raises two issues. First, American General argues that
by failing to join the Texas Commissioner of Insurance as a party to the
suit, the trial court never acquired subject-matter jurisdiction over the
claims of the class seeking to declare certain sections of the Insurance
Code unconstitutional. Second, American General argues the trial court
abused its discretion in allowing Dickson’s suit to proceed as a class
action because Dickson failed to meet her burden to show her claims were
maintainable as a class under the various requirements in Rule 42, Texas
Rules of Civil Procedure.
Analysis
First, we address American General’s issue claiming the trial court
never acquired subject-matter jurisdiction over the suit because Dickson
and Carter failed to add the Texas Commissioner of Insurance to their
suit. Even though American General filed a plea to the jurisdiction based
19See Tex. R. App. P. 28.1 (Accelerated Appeal). 14 on their claim that Dickson and Carter were required to add the Texas
Commissioner of Insurance to the suit as a defendant because they were
challenging the constitutionality of several provisions of the Texas
Insurance Code, the record does not show the trial court has ever
conducted a hearing or ruled on American General’s plea. And even had
the trial court ruled on the plea, we are not aware of any statute giving a
private litigant in contrast to a governmental entity the right to file an
interlocutory appeal from a ruling on a plea to the jurisdiction.20 We
conclude that we lack jurisdiction to consider the arguments American
General raises in its first issue. 21
We do, however, have jurisdiction to consider American General’s
second issue, which argues the trial court abused its discretion in
granting Dickson’s motion to certify Dickson’s equitable claims as a
class. 22 Since the Predominance Requirement “is intended to prevent
class action litigation when the sheer complexity and diversity of the
individual issues would overwhelm or confuse a jury or severely
e.g., Tex. Civ. Prac. & Rem. Code Ann. § 51.014. 20See, 21SeeTex. R. App. P. 42.3(a). 22See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(3) (authorizing
appeals from interlocutory orders granting or denying a party’s motion seeking permission to proceed to litigate the suit as a class action suit). 15 compromise a party’s ability to present viable claims or defenses[,]” we
will address American General’s arguments claiming Dickson’s evidence
fails the Predominance Requirement before addressing American
General’s remaining arguments.23
According to American General, resolving equitable claims
involving delays in filing claims and determining the responsibility for
them will inevitably turn on discrete issues tied to the evidence admitted
at trial focusing on the individual members of the class. American
General suggests that evidence is relevant to explain as to each claim the
reasons for any delays in filing a claim so the factfinder may decide
whether in equity and good conscience the fault as to the delay lies on the
beneficiary, the policyowner or the policyowner’s assignee, an heir, or
American General. 24 The reasons it matters at this early stage of the
23Sw. Ref. Co. v. Bernal, 22 S.W.3d 425, 434 (Tex. 2000). 24American General suggests that the evidentiary issues will include the following: (1) establishing what each member knew in the period relevant to filing a proof of loss; (2) what each member relied on in deciding when to file a claim for benefits; (3) the explanation that American General offers to explain why there was delay in paying proceeds to someone American General ultimately determined filed a valid proof of death; (4) whether American General’s relationship with any of the members of the class created a fiduciary relationship that justifies disgorgement, requiring an accounting, or imposing a constructive trust; and (5) whether delays in payment were justified by 16 litigation is that it is well-settled that in class action suits, courts are not
permitted to adopt the approach of “certify now and worry later” in
determining whether individual issues are likely to predominate over the
common issue in a future trial. 25
As is relevant here, Rule 42(b)(3) of the Texas Rules of Civil
Procedure provides that a suit may proceed as a class action if other
prerequisites of the rule are satisfied and “the questions of law or fact
common to the members of the class predominate over any questions
affecting only individual members, and a class action is superior to other
available methods for the fair and efficient adjudication of the
controversy.” 26 Even though our procedural rules recognize that class
actions may sometimes reduce or eliminate the prospect of what might
otherwise be repetitive litigation, the Texas Supreme Court has
recognized that parties have “no right to litigate a claim as a class
action.” 27 Since the trial court named Dickson as the class representative,
we will assume that her claims are typical to those of the individuals who
the investigation needed to determine whether the person who filed a proof of death was the rightful beneficiary of the owner of the policy. 25Id. 26Tex. R. Civ. P. 42(b)(3). 27Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 452-53 (Tex. 2000).
17 comprise the class in evaluating American General’s arguments that the
trial court failed to perform a rigorous analysis is analyzing whether
Dickson’s claims are maintainable as a class based on the Predominance
Requirement in Rule 42. 28
In appeals from orders certifying a class, we evaluate the trial
court’s “actual, not presumed conformance with [Rule 42.]”29 Accordingly,
orders certifying proceedings as class actions are reviewed for abuse of
discretion. 30 To resolve this appeal, the question we must decide is
whether the trial court abused its discretion in finding that Dickson
established her claims were maintainable under the Predominance
Requirement in Rule 42. 31
28Tex. R. Civ. P. 42(b)(3); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348-49 (2011) (explaining the “class representative must be part of the class and possess the same interest and suffer the same injury as the class members”) (internal quotations omitted). 29Stromboe, 102 S.W.3d at 691 (cleaned up). 30Reimer v. State, 392 S.W.3d 635, 639 (Tex. 2013); Stromboe, 102
S.W.3d at 691. 31Stromboe, 102 S.W.3d at 694 (“The question [a trial] court must
decide before certifying a class, after rigorous analysis and not merely a lick and a prayer, is whether the plaintiffs have demonstrated that they can meet their burden of proof in such a way that common issues predominate over individual ones.”). 18 In performing a rigorous analysis of Rule 42’s certification
requirements, the “predominance requirement . . . is one of the most
stringent prerequisites to class certification.” 32 “The predominance
requirement prevents certification when complex and diverse individual
issues would overwhelm or confuse a jury or severely compromise a
party’s ability to preset other viable claims or defenses.” 33 Unless the trial
court is able to determine that the individual issues involved in the case
are able to be presented and “considered in a manageable, time-efficient
and fair manner, the trial court should not certify the litigation to proceed
as a class action.” 34
The class the trial court certified sued American General on two
claims—a claim for money had and received and a claim for unjust
enrichment. These are basically quasi-contract theories, theories that do
not rely on contracts “at all but an obligation imposed by law to do justice
even though it is clear that no promise was ever made or intended.”35 The
general rule is that when parties have an express contract covering the
32Bernal, 22 S.W.3d at 433. 33Pitts, 236 S.W.3d at 205. 34Id. 35Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000) (cleaned up); see Barrera, 248 S.W.3d at 162. 19 matter in dispute, the parties to the contract may not recover on an
implied contract claim. 36 Even so, that rule is subject to equitable
exceptions under some circumstances in situations involving restoring a
party’s property or preventing a party from enriching itself at the
expense of another when the evidence before the factfinder supports the
application of the exception in the trial. 37
The life insurance policies American General sold to those who
bought its policies over the years—its policyholders—contain terms
describing what American General owes a beneficiary of a policy upon
the policyholder’s death. Yet the class the trial court certified is seeking
equitable and not legal relief, so the class is seeking relief outside the
language of the policy. Still, the issue we must decide is whether the trial
court abused its discretion in certifying the claims as a class, not whether
the claims the trial court chose to certify are (or are not) viable. Thus, we
36See Fortune Prod. Co., 52 S.W.3d at 684. 37See Sw. Elec.Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467, 469-70 (Tex. 1998) (recognizing “that in some circumstances, overpayments under a valid contract may give rise to a claim for restitution or unjust enrichment”). 20 assume without deciding that Dickson’s equitable claims are viable based
on the facts she alleged in her pleadings. 38
Even then, in a trial involving the claims of the class, the class will
be required to prove that American General is holding money American
General allegedly earned on funds that in equity and good conscience
belong to the class under the plaintiffs’ theory that the ownership of the
proceeds in the polices vested upon each respective policyowners’ death.39
And in proving unjust enrichment, the class must prove that American
General wrongfully benefitted by withholding the earnings from the class
through fraud, duress, or by undue advantage. 40 For its part, American
General points to the Texas Insurance Code to rebut that claim, noting
that interest on the proceeds of life insurance policy does not begin to
accrue until the insurance company receives the proof of loss. 41 Thus, the
question appears to be whether equity and good conscience allowed
38See Barrera, 248 S.W.3d at 161 n.1 (“In this case, the trial court certified a “money-had-and-received” class, and we will presume without deciding the availability of such a class in the context presented.”). 39See Plains Expl. & Prod. Co. v. Torch Energy Advisors Inc., 473
S.W.3d 296, 302 n.4 (Tex. 2015). 40Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41
(Tex. 1992). 41Tex. Ins. Code Ann. § 1103.104.
21 American General to retain the earnings for its own account before
beneficiaries of policyowners who purchased American General policies
filed proofs of loss, a question that in many cases could turn on
individualized circumstances surrounding the reasons the individuals
who had the right to pursue claims under life insurance policies issued
by American General did not promptly file a claim after a policyowner’s
death.
Assuming Dickson’s claim is typical of those of the members of the
class, the questions that surround why there were delays that left
Damrel’s policy unclaimed, what explains the delays, and whether the
delays are in equity and good conscience attributable to American
General, Damrel’s assignees, or Dickson’s heirs, will require
individualized proof so the factfinder can decide whether in equity and
good conscience Dickson is entitled to any relief on the facts she’s alleged.
The history that gave rise to the claim involved in Dickson’s case shows
why equitable claims are unlikely candidates for class certification given
the Predominance Requirement and rigorous analysis courts are
required to perform before certifying class action proceedings under Rule
22 42. 42 Simply put, American General has the right to present any facts
and defenses that might allow a factfinder to conclude that a
policyowner’s beneficiary or heir in equity and good conscience is not
entitled to the money American General earned during a period that the
beneficiary or heir delayed in filing their proofs of loss. 43
And facts surrounding why individual members of the class delayed
filing claims for benefits under the policies are not the only issues that
will require the factfinder to hear evidence tailored to individual claims
given the other defenses that American General pled. As to Carter and
Dickson, American General alleged that laches barred their claims, and
it also pleaded that Dickson and Carter have unclean hands. Laches is
an equitable remedy that, on proper findings, prevents a party from
prevailing on a claim because of a lapse of time resulting in a claim
becoming stale. 44 To prevail on a defense of laches, American General
must show (among other things) that an individual like Dickson
unreasonably delayed asserting her rights. 45 To present its laches
42Pitts,236 S.W.3d at 206. 43See Barrera, 248 S.W.3d at 162. 44Vickery v. Vickery, 999 S.W.2d 342, 355 (Tex. 1999) (op. on reh’g). 45Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998).
23 defense, American General would likely try to present evidence to show
that a beneficiary of a policyowner failed to conduct a reasonable search
after a policyowner’s death and was at fault for failing to discover they
were named or that a life insurance policy existed that the policyowner
purchased before they died.
In its brief, American General argues class certification is
inappropriate because the class claims (and its equitable defenses to
them) will require individualized inquiries into each class member’s
knowledge, conduct, and experience in defending Dickson’s claim. When
American General was in the trial court, they made these same
arguments. For example, in arguing that Dickson and Carter had
unclean hands, American General presented evidence in the trial court
showing that Dickson and her sister represented they inherited their
mother’s estate without disclosing in their affidavits that their mother
gave twenty percent of her estate to their cousin in her will. 46 According
46From the information in the trial court’s record, it appears to us that Dickson’s and Carter’s attorney did provide Concetta Damrel’s will to American General. The will includes a provision giving Dickon’s and Carter’s cousin twenty percent of their mother’s estate. So while their affidavits do state they inherited their mother’s estate, they did not say they inherited her entire estate, and the information is one of the many documents their attorney sent American General. As we understand its 24 to American General, if the evidence in the trial shows that Dickson and
Carter disinherited their cousin by failing to give him his share of the
policy proceeds from the policy, a factfinder could decide that Dickson
and Carter have unclean hands and find they are not entitled to an
equitable remedy on their claims. In the end, American General suggests
the “actual outcome of the analysis on each equitable defense is
irrelevant” given the fact that a trial would require the factfinder to
conduct an individualized analysis in each case, which makes the trial
court’s decision to certify the claims improper.
Given the complexities of a trial involving equitable claims like
Dickson’s and assuming her claims are typical of the members of the
class, we conclude the individual differences “between each class
member’s experience . . . could determine in whose favor the equities
weigh in resolving their claims.” 47 Because Dickson failed to prove at the
outset that individual issues governing her equitable claims alleging
argument, American General suggests it would be entitled to argue in the trial of equitable defenses and claims to prove that an individual submitted a materially misleading affidavit by omitting material information from the affidavit even if the individual also provided the missing information somewhere in other documents submitted to the insurance company in connection with a claim. 47Pitts, 236 S.W.3d at 206.
25 money had and received and unjust enrichment are maintainable in a
fair, manageable, and time-efficient manner on a class-wide basis, we
conclude she failed to meet the Predominance Requirement of Rule
42(b)(3). 48
Conclusion
We hold Dickson failed to establish the class was maintainable
based on the predominance requirement in Rule 42(b)(3). 49 We reverse
the trial court’s order and remand the case to the trial court for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
_________________________ HOLLIS HORTON Justice
Submitted on October 7, 2021 Opinion Delivered July 14, 2022
Before Golemon, C.J., Kreger and Horton, JJ.
48Tex. R. Civ. P. 42(b)(3); Barrera, 248 S.W.3d at 163. 49Id.