Gulf Atlantic Life Insurance Co. v. Hurlbut

696 S.W.2d 83, 1985 Tex. App. LEXIS 12109

• Court: Court of Appeals of Texas
• Decided: June 14, 1985
• Docket: 05-81-01363-CV
• Status: Published

Opinions

GUITTARD, Chief Justice.

Insurance agents C. Daniel Hurlbut and A.C. Hovater sued their former employer, Gulf Atlantic Life Insurance Company, its parent corporation, and several corporate officers for fraud, business disparagement, and tortious interference with contract rights. The trial court rendered judgment for actual and exemplary damages against all defendants. On this appeal defendants contend that all claims asserted are barred by limitation as a matter of law. We agree. We also hold that no action lies for defendants’ alleged false statements to an assistant Texas attorney general and the Texas Board of Insurance Commissioners (hereinafter referred to as the Insurance Board) in response to an investigation into possible violations of the insurance laws in the absence of a claim for malicious prosecution. Accordingly, we reverse and render judgment that plaintiffs take nothing.

FACTUAL BACKGROUND

Both plaintiffs had an insurance agent’s license and a local recording agent’s license from the Insurance Board. Also, both plaintiffs were agents for defendant Gulf Atlantic Life Insurance Company before the events leading to the present suit occurred. Plaintiff Hurlbut had been a regional manager for Gulf Atlantic in Houston. Plaintiff Hovater had been an independent insurance agent with experience in mass-marketing of individual cancer insurance, life insurance, and accidental death and disability policies to groups of employees. Hovater had a letter of introduction from the Southern Regional School District Association, which gave him access to groups of school employees. Hovater began representing Gulf Atlantic as an agent early in 1974.

In April 1974 a meeting was held in Gulf Atlantic’s Dallas office between plaintiffs and the individual defendants. Those Gulf Atlantic employees present included defendant William Barnes, president; defendant Earl Smith, secretary; defendant Ralph Curtis, vice president for marketing; defendant Kenneth Thompson, agency vice president; and defendant Harold W. Watson, director of mass marketing. Also present was defendant Jack Warner, vice president for marketing of defendant Nationwide Corporation, the corporate parent of Gulf Atlantic. At this meeting it was proposed that Hurlbut and Hovater join their efforts in an association to be known as “Agency Associates” for promotion of mass marketing of Gulf Atlantic’s insurance policies. According to defendants, the discussion was confined to mass marketing of individual cancer, life, and accidental death and disability insurance policies, chiefly to groups of school employees to whom Hovater had access by his letter of introduction from the Southern Regional School District Association. According to plaintiffs, there was also a discussion of group health insurance policies to be marketed on a trust plan by which several small groups of employees could combine to obtain one group health insurance policy. According to this arrangement, a bank would act as trustee, plaintiffs would act as administrators, and Gulf Atlantic would underwrite the plan and issue a group health insurance policy to cover all the employees of the participating groups. Plaintiffs would then sell this group health insurance program to various school districts and other agencies or groups. Plaintiffs would also collect the premiums, deposit them in the trust account, deduct commissions and expenses (including claims), and pay over any balance to Gulf Atlantic. Defendant Warner acknowledged that he was familiar with such arrangements, and he agreed to send sample trust documents to plaintiffs for their use. Defendant Barnes, president of Gulf Atlantic, instructed plaintiffs to work through defendant Thompson, Gulf Atlantic’s agency vice president, to establish this program.

After this meeting, plaintiffs set up an agency office in Houston with funds advanced by Gulf Atlantic. They employed as bookkeeper and office manager Roy Bengel, who had experience in this type of business. With Bengel, plaintiffs formulated a schedule of rates and benefits and prepared various forms to be used in presenting this group health insurance program. Defendant Warner sent plaintiffs copies of one or more trust agreements used in similar group insurance programs. Plaintiff Hovater inquired of defendant Thompson concerning an attorney to prepare the proposed trust document and Thompson referred him to Ira Allen, a Dallas lawyer. Accordingly, plaintiffs sent Bengel to Dallas and to meet with Allen in June 1974. Bengel gave Allen a proposed typewritten trust 'document designated “National Health Group Insurance Trust,” naming Franklin Bank of Houston as trustee. This was the bank with which defendants did business. Allen redrafted the document, making a number of changes, including a change of the name to “NationWide Health Insurance Trust” and the addition of an individual trustee. There is no evidence in the record that this document was ever completed and delivered to Franklin Bank, the “named” trustee, to establish a trust account or to Gulf Atlantic as the basis for a master group policy, although plaintiffs testified that they signed it and relied on Allen to take care of it.

It is clear from the record that all of the parties knew that before Agency Associates could begin selling this group health insurance that: (1) a master policy had to be approved by the Insurance Board; (2) an insurance trust had to actually be established by Agency Associates; and (3) a licensed insurance company had to agree to underwrite the insurance program and actually issue the approved master policy to Agency Associates and the trustee. However, according to Hovater, Gulf Atlantic was anxious to start selling this program to school districts before school started in September 1974. In June or July of 1974 Thompson urged plaintiffs to “get some business going.” Hovater testified that he assured Thompson they would do so “as soon as you give me the word,” and Thompson then told him, “You have the word. Start selling.” This is the statement that plaintiffs say they took as authorizing them to sell group health insurance for Gulf Atlantic through the Nation-Wide Health Insurance Trust.

When plaintiffs started selling, they knew that no master policy had been issued. Plaintiffs assert that they relied on Gulf Atlantic to file the master policy and obtain its approval by the Insurance Board. Hovater testified that when he inquired about Board approval, defendant Smith, secretary of Gulf Atlantic, whose duty it was to obtain the necessary approval of policy forms, gave him a copy of a proposed policy to be issued to the “West Texas Pipe Trades Health Insurance Trust” and stated that Agency Associates policy would be “virtually identical.” According to Hurlbut, Smith assured him and Hovater that they need not worry about the master policy because getting it approved and issued was just a matter of “paperwork” as it was identical to a policy that Gulf Atlantic was already using for other trusts with no problems. Both plaintiffs testified that they made weekly inquiries to Thompson concerning the status of the master policy and that he assured them that everything was in order. Furthermore, according to Bengel, plaintiffs’ bookkeeper, all promotional materials, including a schedule of rates and benefits, were examined and approved by Thompson before printing. Relying on these assurances and approvals, plaintiffs began selling group health insurance under the Nation-Wide Health Insurance Trust in August 1974 and continued to do so until January 1975. Plaintiffs sold this insurance even though they had not even established a Nation-Wide Health Insurance Trust bank account. In addition, plaintiffs collected premiums, but they did not deposit them in a trust account, as none had been established; they deposited them in Agency Associates’ checking account. Bengel prepared monthly statements of the premiums collected which, he testified, he sent regularly to Thompson in Dallas. When plaintiffs contacted school representatives and others in their sales program, they responded to any inquiry concerning their authority to sell the program by suggesting that such inquiries be directed to defendant Barnes in Dallas.

The program proceeded in this manner through December 1974. Despite Thompson’s repeated assurances, no master policy was ever furnished. In late December Wayne Holder, city attorney of Freeport, Texas, made a telephone call to Barnes inquiring about the master policy. Holder testified that both Barnes and Thompson told him that Gulf Atlantic was not underwriting the Nation-Wide Health Insurance program. Holder reported this information to Hurlbut and also to Texas Attorney General John Hill, who assigned his assistant, Bill Flanary, to investigate. At the suggestion of defendant Warner, plaintiffs met with Barnes, Thompson, and others in Barnes’ office on January 21, 1975. There plaintiffs were surprised by the appearance of Flanary, who asked Barnes whether plaintiffs had authority to write group insurance for Gulf Atlantic through a trust plan. Barnes replied that they did not.

At Flanary’s request, plaintiffs accompanied him to a local office of the Attorney General in Dallas and cooperated in the investigation. Flanary immediately filed suit in the district court of Brazoria County for a temporary injunction restraining plaintiffs from selling group health insurance under the Nation-Wide Health Insurance Trust and for a receivership of Agency Associates. Plaintiffs signed an agreed order granting the injunction and authorizing the receiver to take over their assets. Also, a proceeding was begun before the Board of Insurance Commissioners, which issued an order revoking their licenses on the ground of their selling unapproved insurance. There is no evidence of who initiated these proceedings. Both plaintiffs were indicted by the grand jury in Harris County for misapplication of premium funds paid to them by the Pasadena Independent School District. There is no evidence of who initiated these criminal charges. These indictments were dismissed on the ground that these charges amounted to double jeopardy because of the earlier proceedings to revoke their licenses.

Plaintiffs’ petition alleges that they sustained damages to their reputation because of the receivership, the license revocations, the criminal prosecutions, and the attendant publicity. Both plaintiffs testified about substantial damages in these respects.

FRAUD

The evidence varies substantially from the fraud asserted in Plaintiffs’ petition, which alleges that at the time of the original meeting in Dallas in April 1974 defendants “engaged in a conspiracy to increase business and take advantage of the relationship which plaintiffs had with the many school districts in the central and southern part of the United States.” They alleged various “overt acts” done in furtherance of this conspiracy, and specified various “causes of action” based on these acts. With respect to fraud, the petition alleges:

a. Fraud, in that misrepresentations were made by the Defendants to induce the Plaintiffs to enter into the establishment of a general agency (Agency Associates) for the purpose of writing an insurance trust to various school districts and other multiple employers, and advising plaintiffs that they should now proceed to issue said policies in late Summer or early Fall of 1974 and but for these fraudulent misrepresentations of the Defendants, Plaintiffs would not have issued said policies to their damage and detriment as herein alleged.

At the trial, plaintiffs presented no evidence of a conspiracy formed in April 1974 to defraud them by taking advantage of their relationship with the school districts. Plaintiffs testified that all parties appeared enthusiastic about the program at this original meeting. So far as the evidence shows, defendants remained committed to the program until difficulties developed several months later.

At most, the evidence shows the following. Defendant Thompson told plaintiffs to “start selling” insurance under the proposed Nation-Wide Health Insurance trust in July or August 1974 when Gulf Atlantic had no master policy filed and approved by the Insurance Board. Gulf Atlantic failed to get such a master policy approved; therefore, it was unable to furnish a master policy to plaintiffs. Then, when Holder made inquiry of Barnes about the master policy for the city of Freeport and, again, when the assistant attorney general undertook his investigation, Barnes and the other defendants denied that they had ever authorized plaintiffs to sell group health insurance through a trust plan for Gulf Atlantic. This denial left plaintiffs in the position of having sold unauthorized insurance, contrary to the Insurance Code and, consequently, exposed them to an investigation by the attorney general that resulted in receivership proceedings, revocation of their licenses, and criminal prosecution for misapplication of premium funds.

In answer to special issues, the jury found that each of the defendants “fraudulently represented to plaintiffs that plaintiffs were authorized to write group health insurance through a trust arrangement to be underwritten by Gulf Atlantic Life Insurance Company.” The jury further found that this fraudulent representation was a proximate cause of damages or loss to plaintiffs. The jury also found that each of the defendants entered into a conspiracy to defraud plaintiffs by making such representations and that this conspiracy was a proximate cause of plaintiffs’ damages. The jury answered “we do not” in response to special issue number 27:

Do you find from a preponderance of the evidence that Plaintiffs knew or by the exercise of ordinary care should have known of the fraud, if any, of the Defendants on or before January 20, 1975?

Since the suit was filed January 21, 1977, an affirmative answer to this issue would have barred recovery on the fraud claim under the two-year statute of limitations. In the trial court, defendants moved for judgment in their favor notwithstanding this finding on the ground that the evidence established as a matter of law that plaintiffs knew or should have known of the fraud on or before January 20, 1975. They urge that contention again on this appeal.

The law is well settled that a cause of action for fraud accrues when the plaintiff discovers the fraud or has knowledge of facts which would cause a reasonably prudent person to make inquiry that would lead to discovery of the fraud. Knowledge of such facts is in law knowledge of the fraud itself. White v. Bond, 362 S.W.2d 295 (Tex.1962); Glenn v. Steele, 141 Tex. 565, 61 S.W.2d 810 (1933). Accordingly, we review the pleadings and evidence to determine what facts were within plaintiffs’ knowledge on or before January 20, 1975.

According to the petition, the representation that plaintiffs “should now proceed to issue said policies” on which plaintiffs relied was made “in late Summer or early Fall of 1974.” Hurlbut testified that this representation was made in June or July. Plaintiffs rely on this statement as a representation that they were authorized to go ahead with their marketing activities for the Nation-Wide Health Insurance Trust. These activities began in August 1974. It is undisputed, however, that in December or early January 1975 plaintiffs knew that they were not authorized to write insurance for Gulf Atlantic in August and, therefore, that defendants’ initial representations were false. Their petition expressly alleges:

It was not until the latter part of 197⅛ when Plaintiffs learned for the first time that, in truth and in fact, Gulf Atlantic had not underwritten said program and that the policies of insurance which had been sold through the insurance trusts to various school districts were improper and wrong. Even after a letter was received in November, 1974 from Ira Allen and contact had been made with the Defendant Thompson of Gulf Atlantic, Gulf Atlantic was still assuring the Plaintiffs that it was all right to proceed with the writing of said insurance and that Gulf Atlantic had the “muscle” in Austin, through its attorneys, to take care of any questions that might arise. Plaintiffs, as insurance men, knew that said policies had to be approved by the State, but since it is the normal function of the insurance company to approve said policies, Plaintiffs believed that said policies had been so approved. The approval of said policies was a matter within the total control of the Defendants; and, therefore, Plaintiffs felt justified in relying upon said representation. [Emphasis added.]

We conclude that this allegation that plaintiffs learned late in 1974 that Gulf Atlantic had not underwritten the program and that the policies they had sold were “improper and wrong” is not taken out of context, as plaintiffs insist. It is deliberate, clear, and unequivocal, and it has not been abandoned or amended. Consequently, it is a judicial admission binding on plaintiffs and precludes them from introducing evidence to the contrary. Johnson v. Johnson, 579 S.W.2d 30, 31 (Tex.Civ. App.—Beaumont 1979, no writ); see also Kirk v. Head, 137 Tex. 44, 152 S.W.2d 726, 729 (1941) (Pleadings on which case is tried are judicial admissions.).

Actually, this allegation is entirely consistent with plaintiffs’ evidence as presented. Plaintiffs made no attempt to prove that they did not discover, before January 21, 1975, their lack of authority to sell group health insurance for Gulf Atlantic in August 1974. They insisted, rather, that they relied on defendants’ repeated assurances that the necessary filing would later be made with the Insurance Board and that the master policy would eventually be issued. Thus we find nothing in the evidence that would explain or avoid the effect of the quoted admission in plaintiffs’ petition.

On this appeal defendants contend, as they did in the trial court, that they are entitled to judgment notwithstanding the jury’s answer to special issue number 27 because the evidence shows as a matter of law that plaintiffs knew or should have known before January 1,1975, that defendants had made false representations to them concerning their authority to sell group health insurance for Gulf Atlantic. We agree. Taking the evidence most strongly in plaintiffs’ favor,¹ the most that it shows is that after plaintiffs discovered they had been selling group health insurance without proper authority, they relied on further assurances by defendants that the problem would be straightened out and that the necessary authority would eventually be obtained. However, when one discovers that a representation on which he has relied to his detriment is false, reliance on further representations of the same sort by the fraudfeasor will not postpone the running of limitations. Stafford v. Wilkinson, 157 Tex. 483, 304 S.W.2d 364, 366-67 (1957); Phillips v. Baker, 114 S.W.2d 421 (Tex.Civ.App.—San Antonio 1938, writ ref’d); see also Frownfelter v. International Shoe Co., 273 F.2d 338, 339 (5th Cir.1960).

Plaintiffs contend that the evidence only raises a fact issue as to whether plaintiffs “knew or should have known of the fraud” because of defendants’ continued assurances that a master policy would be forthcoming. We cannot agree. Defendants’ subsequent assurances, at most, would raise an issue as to whether defendants are estopped from pleading the statute of limitations in bar of this suit. Plaintiffs did not plead estoppel in the trial court, nor did they request a special issue presenting to the jury this ground for avoiding the bar of the statute. Consequently, plaintiffs have waived this issue. Furthermore, because the individual defendants in their testimony denied giving the assurances on which plaintiffs allegedly relied, estoppel cannot be established as a matter of law.

We recognize that where the discovery rule is applicable, as in suits for fraud, and the petition does not affirmatively show that the cause of action accrued more than two years before the suit was filed, the defendant has the burden of establishing that the cause of action accrued at such a time as to be barred by limitation. Whatley v. National Bank of Commerce, 555 S.W.2d 500, 505 (Tex.Civ. App.— Dallas 1977, no writ). However, where, as here, the petition shows on its face that the cause of action accrued more than two years before the suit was filed, the plaintiff has the burden to establish estoppel in avoidance of the affirmative defense of limitation. Cook v. Smith, 673 (Tex.App. —Dallas 1984, writ ref'd n.r.e.).

The same rule applies when the limitation defense is not raised by the petition, but is established by the evidence as a matter of law and the plaintiff seeks to interpose an estoppel to avoid the limitation defense. Nichols v. Smith, 507 S.W.2d 518, 521 (Tex.1974); see also Oram v. General American Oil Co., 513 S.W.2d 533, 534 (Tex.1974). Regardless of whether the present petition affirmatively shows on its face that plaintiffs’ cause of action accrued before the end of 1974, we hold that the evidence establishes the limitation defense as a matter of law. In order to avoid the limitation defense because of defendants’ subsequent assurances, plaintiffs had the burden to request and secure a favorable finding on the issue of estoppel. Irwin v. Prestressed Structures, Inc., 471 S.W.2d 865, 867 (Tex.Civ.App.—Eastland 1971, writ ref’d n.r.e.); Reliance Electric & En gineering Co. v. Carrier —Houston Corp., 445 S.W.2d 48, 50-51 (Tex.Civ.App.—Houston [1st Dist.] 1969, writ ref’d n.r.e.).

This distinction between application of the discovery rule and avoidance of the limitation defense by estoppel to plead limitation was also recognized in Borderlon v. Peck, 661 S.W.2d 907, 908-09 (Tex.1983), in which the supreme court held that a statute abolishing the discovery rule with respect to certain types of medical malpractice did not prevent a plaintiff from avoiding the bar of limitation by pleading and proving facts raising fraudulent concealment as an estoppel against the limitation defense. Thus, in the present case, plaintiffs’ reliance on defendants’ subsequent assurances may have raised an estoppel, but did not negate their actual discovery of the fraud.

For these reasons, we sustain defendants’ third point, which asserts that the jury’s answer to special issue number 27 should be disregarded, and hold that the evidence establishes as a matter of law that plaintiffs knew or should have known of the falsity of defendants’ representations more than two years before the suit was filed.

BUSINESS DISPARAGEMENT

(1) One-Year Statute of Limitations

Defendants contend that the trial court erred in failing to disregard the jury’s answers to the issues submitting plaintiffs’ theories of business disparagement and tor-tious interference with contract rights because these claims, having their basis in defamatory utterances, are barred by the one-year statute of limitations, TEX.REV. CIV.STAT.ANN. art. 5524(1) (Vernon 1958). This statute requires that actions “for injuries done to the character or reputation of another by libel or slander” be commenced and prosecuted within one year after the cause of action has accrued. The parties stipulated that any claim by plaintiffs for libel or slander is barred by article 5524(1). Accordingly, we must determine whether the claims as pleaded and proved should properly be regarded as claims for libel or slander.

We conclude that plaintiffs’ disparagement claim is in its essence a claim for slander. The petition alleges that in April 1974 defendants agreed with plaintiffs to engage in mass marketing of group health insurance through an insurance trust program to school districts and other groups of employees and that plaintiffs proceeded to market this program in accordance with defendants’ instructions, but that defendants failed to file the master policy underwriting the program with the Insurance Board and gave false information to the Board and to the Attorney General to the effect that defendants were not involved in this insurance trust program. Plaintiffs alleged that this false information caused plaintiffs’ insurance licenses to be revoked and that, by intentionally presenting false evidence to the Attorney General and the grand jury, defendants caused indictments to be returned against plaintiffs, knowing that such false evidence would lead to plaintiffs’ arrest on criminal charges. The petition alleges further that by virtue of defendants’ conspiracy to give this false information, plaintiffs:

have been held up to public ridicule and contempt, have been branded as common criminals, have had their insurance licenses revoked, are unable to secure any type of job which would pay them commensurate with their ability and experience, have suffered severe and extreme hardship in the support of their families, and are unable to practice their profession as licensed insurance agents.

On the basis of these allegations, plaintiffs assert various causes of action, including “[disparagement of each of the Plaintiffs’ trade and calling ... in that Defendants, as hereinabove alleged, have disparaged the abilities and reputations of each of the Plaintiffs causing them to lose their licenses.” The petition alleges that each plaintiff is entitled to recover “actual damages for loss of earnings, injury to their reputation, emotional distress, damages from the tortious interference of the contracts, and loss of property” in the sum of $1,200,000.

Defendants pleaded “that plaintiffs’ causes of action are barred by limitation as respect their entire cause of action.” They specifically pleaded the one-year statute, article 5524, “as respects the claim of slander.”

The only false statements alleged in the petition as a basis for the damages claimed are those alleged to have been made to the Attorney General and the Board of Insurance Commissioners. At trial plaintiffs introduced evidence that Wayne Holder, city attorney of the city of Freeport, made a complaint to the Attorney General and to the Board of Insurance Commissioners concerning plaintiffs’ failure to produce a master policy evidencing Gulf Atlantic’s underwriting of group health insurance for the employees of the city. As a result of this complaint, Bill Flanary, an assistant attorney general, undertook an investigation, and in the course of this investigation met with plaintiffs and some of the defendants in the offices of Gulf Atlantic in Dallas on January 21, 1975. At this meeting defendant Barnes told Flanary that plaintiffs had no authority to write group health insurance for Gulf Atlantic through a trust plan. Also, the record contains a sworn statement given by Barnes in February 1975 to Flanary and another assistant attorney general in which Barnes states that he knew nothing about the proposed NationWide Health Insurance Trust until late December 1974 and that he had never approved any group health insurance for plaintiffs or any group to whom plaintiffs had purported to sell such insurance. There is no evidence that any of defendants testified before the Insurance Board or the grand jury in Harris County.

The record does show that immediately after the meeting on January 21, Flanary filed suit in the district court of Brazoria County asking for the appointment of a receiver to take over all of plaintiffs’ assets and that plaintiffs signed an agreed order granting this relief. The receiver so appointed later turned all these assets over to the liquidator for the Insurance Board, who applied them to payment of claims against the Nation-Wide Health Insurance Trust. The record also shows that the Insurance Board revoked plaintiffs’ licenses on the ground that they were selling unapproved insurance, but does not reveal the evidence presented to the Board as a basis for that action. The indictment under which Hurl-but was arrested charges him with “misapplication of Fiduciary Property.” Specifically, this indictment alleges that Hurlbut misapplied premium payments made to him by the Pasadena Independent School District. The indictment under which Hovater was arrested charges him with “theft” of money, presumably premium payments, from the Pasadena Independent School District. There is no evidence in the record to indicate who made the complaints resulting in these indictments.

All of plaintiffs’ evidence of damages relates to the results of the receivership, the loss of their licenses, their indictment and imprisonment, and the attendant publicity. Plaintiffs testified that these actions destroyed their business and means of livelihood, alienated their friends, and caused them humiliation, mental anguish, and loss of earnings. There was no proof of the value of their business or of any particular losses they sustained except that their income had fallen substantially below the $20,000 to $30,000 a year that each had earned as insurance agents before undertaking the group health insurance program for Gulf Atlantic. Plaintiffs had not been associated with each other before they made their arrangements with Gulf Atlantic. No attempt was made to show what commissions plaintiffs would have realized if the program had been carried forward under proper authority. Plaintiffs had purported to sell group health insurance for Gulf Atlantic for at least four months, yet no evidence was even offered to show what commissions would have been due them on the insurance they purported to write during these four months, what their net income would have been for that period, or, indeed, whether they would have realized any profits above expenses. The only evidence they presented was defendants’ representations at the first meeting with plaintiffs that other agents had made $100,000 to $150,000 per year on similar programs and that plaintiffs would have the same “potential” after two or three years.

In charging the jury, the trial court defined the term “to disparage the trade or calling” as “the making of a statement concerning a person’s services or business which is untrue and/or misleading which statement is made for the purpose of influencing other persons not to do business with or use or purchase Plaintiff’s services.” The jury found that each of the defendants entered into a conspiracy to disparage the trade or calling of plaintiffs and that this conspiracy was a proximate cause of damages or loss to plaintiffs. The jury further found that each of defendants individually disparaged the trade or calling of plaintiffs and that these acts were done with malice and were a proximate cause of damages or loss to plaintiffs. The damage issues inquired generally what sum would reasonably compensate each plaintiff “for his actual damages ... resulting from the events in question.” In these issues the jury was instructed to consider “[l]oss of earnings, loss of earning capacity, effect on reputation and mental anguish.” In argument to the jury, plaintiffs’ counsel made no attempt to show by calculations based on any of the testimony what plaintiffs’ actual pecuniary loss had been. Instead, they stressed the damages to plaintiffs’ reputations resulting from the unfavorable newspaper publicity and plaintiffs’ humiliation and mental anguish at being unable to care for their families in the manner to which they were accustomed. The jury answered all the issues in plaintiffs’ favor and found actual damages of $1,200,000 in favor of each. Defendants moved for judgment notwithstanding the verdict on the ground, among others, that the disparagement claim was barred by the one-year statute of limitations applying to libel or slander. Defendants bring these contentions forward by appropriate points in their brief on this appeal.

We agree that the disparagement claim is barred by limitation. Clearly, Barnes’ statements to Flanary were defamatory to plaintiffs’ characters and reputations personally rather than merely disparaging to their business. Taken in context, these statements charge plaintiffs with fraud and the crime of selling unapproved insurance. In the light of Flanary’s inquiry, Barnes’ statement to Flanary that plaintiffs were not authorized to write group health insurance for Gulf Atlantic through a trust was equivalent to a charge that plaintiffs’ activities were fraudulent and illegal, since Barnes knew that plaintiffs had been representing themselves as agents of Gulf Atlantic. The Insurance Code provides various criminal penalties that would have been applicable if Barnes’ statement had been true. TEX.INS.CODE ANN. art. 21.15-3 & 21.15-5 (Vernon 1981). Article 21.15-3 imposes a criminal penalty on an agent who procures payment of an obligation for an insurance premium by fraudulent representations. Article 21.-15-5 provides that an agent who collects premiums for an insurance company lawfully doing business in this state and applies any money received by him contrary to the instructions or without the consent of the company for which the money was received shall be punished as if he had stolen it. Since Barnes knew that plaintiffs had collected premiums for policies to be issued by Gulf Atlantic through the Nation-Wide Health Insurance Trust, Barnes’ statement that Gulf Atlantic had not authorized them to do so was equivalent to a charge of theft.

Such a charge was expressly characterized as defamatory by plaintiffs in their petition. Plaintiffs alleged that as a result of this false information plaintiffs “have been held up to public ridicule and contempt” and “have been branded as common criminals.” A communication is defamatory if it tends to harm the reputation of another or to lower him in the estimation of the community or to deter third persons from associating or dealing with him. RESTATEMENT (SECOND) OF TORTS § 559 (1977). Actionable slander is defined to include several distinct categories of oral defamation, among which are false statements imputing to another the commission of a crime and those affecting another injuriously in his business, profession, or occupation. Braugh v. Enyart, 658 S.W.2d 221, 226 (Tex.App.—Corpus Christi 1983, writ ref'd n.r.e.); RESTATEMENT (SECOND) OF TORTS §§ 571, 573 (1977); Pros-ser and Keeton on the Law of Torts § 112 at 788-92 (W. Keeton 5th ed. 1984) [hereinafter cited as Prosser and Keeton ]. Business disparagement, on the other hand, is a species of the tort of “injurious falsehood,” which may cast no reflection on either the plaintiff’s person or his property, but is maliciously uttered and, because of special circumstances, results in special damage. Prosser and Keeton § 128. The distinction between the two torts has been drawn in cases turning on the question of whether special harm must be shown and is explained by Prosser and Keeton as follows:

Although it is important to distinguish between personal defamation of the plaintiff on the one hand and disparagement of his property on the other, it is not always easy to do so. If the statement charges the plaintiff with personal misconduct, or imputes to him reprehensible personal characteristics, it is regarded as libel or slander.... On the other hand, if the aspersions reflect only upon the quality of what the plaintiff has to sell, or the character of his business as such, it is merely disparagement, and proof of damage has always been essential to the cause of action_ The difficulty in the distinction between the personal aspersion and the commercial disparagement lies in the fact that many statements effectuate both harms. It might be possible to imply some accusation of personal inefficiency or incompetence, at least, in nearly every imputation directed against a business or its product. The courts have gone to some lengths, however, in refusing to do so, particularily where the most that can be made out of the words is a charge of ignorance or negligence. Personal defamation is found only where the imputation fairly implied is that the plaintiff is dishonest or lacking in integrity, or that he is deliberately perpetrating a fraud upon the public by selling a product which he knows to be defective.

Prosser and Keeton § 128, at 964-65. See also RESTATEMENT (SECOND) OF TORTS § 623A comment g (1977); Hibsch-man, Defamation or Disparagement, 24 Minn.L.Rev. 625-34 (1940).

In Texas, the difference between defamation and business disparagement has been recognized by the courts. Thus the owner of a business may be libeled, but not the business itself. Newspapers, Inc. v. Matthews, 161 Tex. 284, 339 S.W.2d 890, 893 (1960). On the other hand, disparagement of a business or a property is actionable, though the injurious falsehood does not go far enough to constitute libel or slander. Page v. Layne-Texas Co., 258 S.W.2d 366, 369 (Tex.Civ.App.— Galveston 1953, writ dism’d by agr.). Examples of such non-defamatory injurious falsehoods include publication of matter derogatory to the plaintiff’s title to his property or to his business of a kind to prevent others from dealing with him. A.H. Belo Corp. v. Sanders, 632 S.W.2d 145, 146 (Tex.1982) (slander of title); Page, 258 S.W.2d at 368-69 (impairment of contractor’s credit resulting from false claim to bonding company); Ward v. Gee, 61 S.W.2d 555, 556-57 (Tex. Civ.App.— Eastland 1933, writ dism’d) (impairment of credit resulting from false claim of ownership of business); Houston Chronicle Publishing Co. v. Martin, 5 S.W.2d 170, 173-74 (Tex.Civ.App.—El Paso 1928, writ dism’d) (impairment of value of bulls resulting from a statement concerning foot and mouth disease); RESTATEMENT (SECOND) OF TORTS, §§ 623A, 624, 626 (1977); Prosser and Keeton § 128, at 967.

In distinguishing between personal defamation and disparagement of business, the type of damages claimed is significant. Libel or slander is actionable without proof of special damages; thus no specific economic loss need be proved. Braugh, 658 S.W.2d at 226. In business disparagement and other “injurious falsehood” claims, special damages are “the gist of the action,” and neither damages to reputation nor consequential mental distress is recoverable. Ward, 61 S.W.2d at 556-57; RESTATEMENT (SECOND) OF TORTS, § 633 comment j (1977).

Difficulty arises in cases where both general damages to personal reputation and special damages to a particular business are alleged. The Restatement recognizes that although the two torts impinge on different interests, they may overlap in some fact situations, so that an action may be brought for both in the same suit so long as the damages are not duplicated. RESTATEMENT (SECOND) OF TORTS, § 673A Comment g (1977). When the suit does not purport to be brought for both, and one is barred by limitation, the court must decide which tort is claimed. This question must be determined from the factual allegations of the petition, the evidence adduced in support of these allegations, and the type of damages alleged and proved rather than merely from the use of the term “disparage” in the petition or in the court’s charge. Otherwise, any plaintiff having a claim for oral defamation concerning his business practices, a well-recognized category of actionable slander, Braugh, 658 S.W.2d at 224, would be able to avoid the one-year statute of limitations by simply designating the defamatory statement “disparagement” rather than “slander.”

A simple solution to this problem would be to apply the limitation statute governing libel or slander to the injurious falsehood whenever it is personally defamatory, as distinguished from one that injures only business or property interests. This approach has been adopted in New York, where it is held that false statements having a direct tendency to injure the plaintiff’s reputation in his profession and business give rise only to a cause of action for slander. The New York court held that “a person possessing a cause of action in libel or slander may not avoid the statute of limitations applicable to such a cause of action by the device of claiming that the cause of action is an action on the case to which a longer statute of limitations is applicable.” Dubourcq v. Brouwer, 124 N.Y.S.2d 61, 62 (Sup.Ct.1953), aff'd, 282 A.D. 861, 124 N.Y.S.2d 842, aff'd, 283 A.D. 942, 131 N.Y.S.2d 300. Likewise, in Lucci v. Engel, 73 N.Y.S.2d 78, 79 (Sup.Ct.1947), the court distinguished the torts of injurious falsehood and defamation and held that if the false statements complained of are defamatory, the statute of limitation applicable to defamation applies. The court reasoned:

To hold that the complaint makes out a cause of action for injurious falsehood, which is in the nature of an action on the case, would permit plaintiff to escape the statute of limitations applicable to libel actions by the simple expedient of terming his action one on the ease instead of one for libel.

73 N.Y.S.2d at 79. See also Universal Airline, Inc. v. Eastern Airlines, Inc., 188 F.2d 993, 996 (D.C.Cir.1951); Ouigley v. Hawthorne Lumber Co., 264 F.Supp. 214, 218-20 (S.D.N.Y.1967). We adopted a similar approach in Moore & Associates v. Metropolitan Life Insurance Co., 604 S.W.2d 487, 491 (Tex.Civ.App.— Dallas 1980, no writ), where we held that letters accusing a physician of charging excessive fees were defamatory and, therefore, article 5524(1) barred his claim for tortious interference with contracts as well as for libel.

In the present case, however, we need not go so far as to hold that the one-year statute applies whenever a false statement disparaging a business interest is also personally defamatory, although this result would seem to follow from the language of article 5524(1), which prescribes the one-year limitation period for action “for injuries done to the character or reputation of another by libel or slander.” We hold, rather, that in determining whether the one-year statute applies to a defamatory or disparaging statement, a plaintiffs pleadings and proof must be examined to see whether the primary gravamen of the tort is an injury to the plaintiffs personal reputation, and whatever damages ensue from that injury, or whether the gravamen is a direct injury to the plaintiffs business or property. In making this determination, it is important to consider whether the plaintiff alleges that he has been falsely charged personally with criminal and dishonest conduct. Likewise, it is important to consider whether the damages sought are general damages for injury to personal reputation, humiliation, and mental anguish, all of which are typical of an action for defamation, as distinguished from specific damages to a particular business or property interest. If the main complaint is a false charge of personal misconduct and the damages alleged and proved are primarily personal and general, then the claim must be regarded as one for libel or slander within article 5524(1), even though incidental or consequential business or property losses are also pleaded and proved. On the other hand, if the main complaint is a false statement directly injurious to a business or property interest, and the damages alleged and proved are limited to business or property losses established with the specificity required for these sorts of damages, then the claim may properly be considered as one for business or property disparagement, even though aspects of personal defamation may be incidentally involved. Under this rule, the injured party may sue for both torts in the same suit so long as he avoids duplication of damages, as the Restatement recognizes. Similarly, if the defamation claim is barred because of its shorter limitation period, the disparagement claim will not be barred by the shorter limitation period so long as the injured party does not plead allegations and proof typical of an action for defamation.

This analysis is consistent with Brown v. American Freehold Loan Mortgage Company, 97 Tex. 599, 80 S.W. 985, 988 (1904), on which plaintiffs rely. In Brown a petition alleging malicious destruction of the business of a firm of loan brokers by a competitor’s false statements to the brokers’ customers concerning the brokers’ solvency and financial responsibility was held not subject to demurrer under the one-year statute of limitation. In that case the petition did not allege any statements charging the brokers with crime, although the statements complained of were alleged to disparage their honesty and reliability in business. The only damages alleged were lost profits of the business, not general damages to the brokers’ reputations. We do not regard Brown as holding that business losses resulting generally from libel or slander are not within the one-year statute of limitations. Rather, it was a case in which the main complaint was direct injury to a business and only damages to that business were claimed.

We conclude that the injury alleged and proved here is a general injury to each plaintiff’s personal reputation resulting from charges of fraudulent and criminal conduct rather than special injury to their business. No evidence was offered of damages resulting from loss of business expected from any particular customer or prospective customer to whom disparaging statements were made by defendants. The damages alleged and proved resulted only indirectly from the disparaging statements alleged, and more immediately from the receivership, the orders revoking their licenses, and their prosecution for misappropriation of insurance premiums. Plaintiffs claimed, proved, and recovered all damages that would be recoverable in an action for personal defamation. Specifically, those damages included damages to personal reputation, alienation of friends, humiliation, and mental distress, none of which are damages allowed by law for business disparagement. Such pecuniary loss as was proved was loss of earnings in general by the individual plaintiffs rather than loss of profits from the particular business they were carrying on together. No attempt was made to calculate the expected profits from Agency Associates, based on volume of premiums, rate of commissions, and allowance for expenses. When a business has been completely destroyed by the tor-tious act of another, the measure of damages is the market value of the business on the date of the loss rather than the loss of expected profits. Sawyer v. Fitts, 630 S.W.2d 872, 874 (Tex.App.—Fort Worth 1982, no writ). Plaintiffs testified that their business was completely destroyed, but they offered no testimony concerning the value of that business.

In short, this suit has been pleaded as a slander case, proved as a slander case, and submitted to the jury as a slander case, with only formal use of the term “business disparagment” instead of slander. We cannot accept the view that defendants have waived this point by failing to object to the damage issues. Defendants pleaded the one-year statute in bar of the disparagement claim, moved for judgment on that ground, and urge that bar on this appeal. We hold that any recovery allowed for the “business disparagement” alleged here is barred by the one-year statute as a matter of law.

(2) Liability for Statements to Public Officials

In addition to the one-year statute, defendants have presented other grounds establishing that recovery for “disparagement” is precluded as a matter of law. Plaintiffs alleged that the disparaging statements in question were made to the Attorney General, the Board of Insurance Commissioners, and to the grand jury in Harris County “with the knowledge that the Attorney General of Texas, the State Board of Insurance, and the Grand Jury, would act upon these representations in a manner adverse to the Plaintiffs.” Defendants contended in the trial court, and also here, that “such problems and related damages as Plaintiffs may have suffered came at the hands of the proper state officials, and not these Defendants.” They also contend that the disparaging statements made to Flanary are privileged and cannot form the basis of a suit for damages.

We agree. Plaintiffs have cited no authority, and we have found none, holding that a party may be held liable in damages for giving false information resulting in adverse action by a judicial or quasi-judicial agency. The law is well established that ordinarily no action for damages lies for a statement made in the course of a judicial proceeding, though the language be false and published with express malice. This rule applies to communications to law-enforcement officers and to agencies exercising quasi-judicial powers. Reagan v. Guardian Life Insurance Co., 140 Tex. 105, 166 S.W.2d 909, 912 (1942) (letter filed with Board of Insurance Commissioners); Hott v. Yarbrough, 112 Tex. 179, 245 S.W. 676, 678-79 (1922) (letters to grand jury foreman and to county attorney). The rule is one of public policy founded on the theory that the good it accomplishes in protecting the public outweighs any wrong or injury that may result to a particular individual. Reagan, 166 S.W.2d at 913. The only remedy for such a wrong is an action for malicious prosecution or malicious abuse of civil process, neither of which is asserted here. Runge v. Franklin, 72 Tex. 585, 10 S.W. 721, 724 (1889). The same privilege applies in a suit for “disparagement.” Ward v. Gee, 61 S.W.2d 555, 557 (Tex.Civ.App.—Eastland 1933, writ dism’d); RESTATEMENT (SECOND) OF TORTS § 635 (1977); Prosser and Keeton § 128, at 973.

Plaintiffs contend that any claim of privilege is waived because defendants requested no issues or instructions to the jury on this defense. This contention raises the question of whether an absolute privilege is an affirmative defense on which defendants had the burden of proof. We conclude that it is not an affirmative defense where, as here, both pleadings and evidence show that the statements complained of were not actionable. We recognize that a defendant has the burden to plead and prove a qualified privilege in order to cast on the plaintiff the burden to establish malice. Denton Publishing Co. v. Boyd, 460 S.W.2d 881, 884 (Tex.1970). However, when the evidence establishes that the defamatory or disparaging statement was made to a public officer or was made in the course of a judicial or quasi-judicial proceeding, a different analysis applies. According to the authorities above cited, particularly Reagan and Hott, no action lies in this situation. As the supreme court stated in Reagan:

The rule of privilege as applied to absolutely privileged communications is not founded on the theory that the communications furnish any defense, but on the fact that the law allows absolute privilege or immunity on account of the occasion upon which the communications is made.

166 S.W.2d at 913. See also Putter v. Anderson, 601 S.W.2d 73, 76 (Tex.Civ.App.—Dallas 1980, writ ref’d n.r.e.) (Defendant’s trial amendment properly allowed to allege absolute privilege, since issue already before the court by plaintiff’s own pleading and proofs.); Duncantell v. Universal Life Insurance Co., 446 S.W.2d 934, 936 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref’d n.r.e.) (defamatory letter to Insurance Commission “not actionable”). We are not aware of any authority holding that an absolute privilege is waived by failing to assert it as a defense.

In view of these authorities, we hold that plaintiffs’ petition on its face and their own evidence show that defendants are not liable for any false statements made by defendants to the assistant attorney general or to the Board of Insurance Commissioners.

TORTIOUS INTERFERENCE WITH CONTRACT RIGHTS

Some of the same grounds that bar plaintiffs’ recovery for “business disparagement” also apply to their claim for tor-tious interference with contract rights because both claims are based on the same allegedly false and disparaging statements. Since these statements were personally defamatory, in that they had the effect of charging both criminal conduct and fraudulent business practices, and the damages sought resulted from injury to plaintiffs’ reputation, the one-year limitation period provided by article 5524(1) bars recovery although the claim is designated as one for tortious interference. Moore & Associates v. Metropolitan Life Insurance Co., 604 S.W.2d 487, 491 (Tex.Civ.App.— Dallas 1980, no writ).

Also, since the statements in question were made to the Attorney General and the Board of Insurance Commissioners, according to the allegations of the petition, the same immunity to liability for damages exists as in suits for defamation. Prosser and Keeton § 129, at 989.

In addition to these matters, other insurmountable obstacles lie in the way of plaintiffs’ recovery for tortious interference with contracts. Plaintiffs have not alleged or proved any contract rights with which defendants interfered, other than Gulf Atlantic’s own breach of contract with them, and plaintiffs have asserted no claims for breach of contract.

In their petition plaintiffs alleged: “Tor-tious interference with the contractual rights of the Plaintiffs in that the Defendants engaged in a course of conduct for the express purpose of wrongfully interfering with their insurance business and the sale of insurance to cities, school districts and other similar firms.... ”

Plaintiffs offered in evidence none of the contracts on which they base any “contractual rights” with which defendants allegedly interfered. In order to establish a right of action for tortious interference with existing contract rights, there must be in existence a valid contract subject to that interference. O'Connor v. Glitsch Engineering & Sales Corp., 589 S.W.2d 808, 809 (Tex.Civ.App.— Dallas 1979, no writ); Armendariz v. Mora, 553 S.W.2d 400, 404 (Tex.Civ.App.—El Paso 1977, writ ref’d n.r.e.). Plaintiffs did not establish any contract rights as between themselves and the “cities, school districts and other similar firms” to which they were selling group health insurance. In this activity plaintiffs were purporting to act as agents for Gulf Atlantic. Any economic benefits plaintiffs may have legitimately expected were to come from Gulf Atlantic in the form of commissions rather than from the policyholders and their members. If Gulf Atlantic breached its contract with plaintiffs, it may be liable to them for that breach, but plaintiffs have made no claim for breach of contract. Defendants’ breach of their own contract with plaintiffs is not a basis for the tort of interference with contract rights. See Rodriguez v. Dipp, 546 S.W.2d 655, 657 (Tex.Civ.App.—El Paso 1977, writ ref’d n.r.e.) (breach of contractual duty does not constitute a tort); Terry v. Zachry, 272 S.W.2d 157, 159 (Tex.Civ.App.—San Antonio 1954, writ ref’d n.r.e.) (tort liability may arise for “breach of a contract between others”); see also Prosser and Keeton § 129, at 990. In this case no recovery can be based on interference with plaintiffs’ existing contract rights because no existing contract rights were proved.

The same difficulty exists if plaintiffs’ claim may be considered one for interference with prospective economic advantage rather than with existing contract rights. The economic benefits expected were commissions from Gulf Atlantic for acting as its agents in selling group health insurance to “cities, school districts, and other similar firms,” rather than from any prospective contractual relationships between plaintiffs and the prospective policyholders. Plaintiffs’ only arguably established relationship was evidenced by Hovator’s letter from the Southern Regional School District Association. Plaintiffs rely on this letter only as providing “access” to school officials. Any loss of value of this relationship resulted from the general injury to plaintiffs’ reputation because of the receivership, license revocations, and criminal prosecutions rather than from any interference by defendants with plaintiffs’ relationship with particular school officials. Consequently, plaintiffs have not established any right to recover damages for tortious interference with any relationship between plaintiffs and third parties from whom plaintiffs expected substantial economic advantages.

Finally, no proper damages for tortious interference have been proved. The measure of damages for interference with contracts is the same as for breach of contract — the court attempts to put the plaintiff in the same economic position he would have been in had the contract not been breached. Armendariz v. Mora, 553 S.W.2d 400, 406 (Tex.Civ.App.—El Paso 1977, writ ref’d n.r.e.). Plaintiffs made no attempt to prove their expected profits based on their experience of selling group health insurance to “cities, school districts, and other similar firms.” Neither the amount of premiums, the rate of commission, nor their expenses of doing business was proved. Nor did plaintiffs make even a general estimate of their prospective profits based on their actual experience. Actual damage or loss is an essential element of a claim for tortious interference. Armendariz, 553 S.W.2d at 404. Consequently, plaintiffs have failed to establish a right to recover damages for tortious interference with contract rights or with prospective economic advantage.

CONSPIRACY

Plaintiffs’ petition not only alleges claims against defendants individually for fraud, “business disparagement,” and tortious interference with contract rights, but also alleges that defendants entered into a conspiracy to engage in such tortious conduct. In response to special issues the jury found that all defendants entered into a conspiracy to commit each of these alleged torts and that this conspiracy was a proximate cause of damages or loss to plaintiffs. In their motion for judgment and in this appeal, defendants contend that these findings are without support in the evidence and should be disregarded. We do not reach these contentions because of our holding that plaintiffs’ claims against the individual defendants are barred by limitation and by the other considerations stated in this opinion. The gist of a civil conspiracy is the damage resulting from commission of a wrong that injures another and not the conspiracy itself. Schlumberger Well Surveying Corp. v. Nortex Oil and Gas Corp., 435 S.W.2d 854, 856 (Tex. 1968). Thus an actionable civil conspiracy must consist of wrongs that would have been actionable against the conspirators individually. International Bankers Life Insurance Co. v. Holloway, 368 S.W.2d 567, 581 (Tex.1963). Generally, if an act by one person cannot give rise to a cause of action, then the same act cannot give rise to a cause of action if done pursuant to an agreement between several persons. Merrell v. Fanning & Harper, 597 S.W.2d 945, 953 (Tex.Civ.App.—Tyler 1980, no writ).

We recognize an apparent exception to this rule in cases that involve a combination between defendants to refuse to deal with the plaintiff. In such cases acts committed by several persons in concert may constitute an actionable wrong, although the same acts by an individual would not be wrongful. Delz v. Winfree, 80 Tex. 400, 16 S.W. 111, 112 (1891); Texas Public Utilities Corp. v. Edwards, 99 S.W.2d 420, 424-25 (Tex.Civ.App.— Austin 1936, writ dism’d). This exception to the general rule, however, cannot be applied so as to extend the period prescribed by the statute of limitations in a case where all claims against the several tort-feasors are barred. We also recognize that liability may be based on a conspiracy to instigate a malicious prosecution, but we know of no authority holding that such liability exists where, as here, some of the elements of malicious prosecution cannot be proved and liability is asserted on other grounds, all of which are barred by limitations. Consequently, we hold that the jury’s findings of conspiracy provide no independent support for the trial court’s judgment for damages.

THE STATEMENTS TO WAYNE HOLDER

In the foregoing discussion we have not considered the evidence of the statements made by defendants Barnes and Thompson to Wayne Holder, the city attorney of Free-port, that Gulf Atlantic was not underwriting the Nation-Wide group insurance program as bearing on the disparagement and tortious interference claims because, as we interpret plaintiffs’ trial petition, it does not allege these statements as the basis for those claims, but rather attributes all of the damages alleged to Barnes’ later statements to Flanary and to the Insurance Board, which resulted in the receivership, license revocations, and criminal proceedings. If the petition is subject to the interpretation that these statements to Holder are alleged as a basis for the disparagement and interference claims, there are other reasons why these statements provide no ground to support the trial court’s judgment.

First, although we recognize that these statements are not protected by the absolute privilege applicable to statements made to a judicial or quasi-judicial agency, any cause of action based on these statements to Holder is barred by the two year statute of limitations because they were known to plaintiffs more than two years before the suit was filed. Hurlbut admitted in his testimony that Holder advised him in December 1974 that he had talked to Barnes and that Barnes had told him that Gulf Atlantic was not underwriting the program. Consequently, the evidence shows as a matter of law that any cause of action plaintiffs had based on these statements arose more than two years before the suit was filed.

Second, no damages were proved as the result of any disparaging statements by defendants to Holder, as distinguished from damages resulting from the subsequent proceedings for receivership, license revocation, and criminal prosecution. Plaintiffs lost no commissions expected from their arrangements with the city of Freeport because the evidence shows that plaintiffs obtained group health insurance coverage from another carrier, and there is no evidence that this coverage was on terms less advantageous than the terms plaintiffs expected to obtain from Gulf Atlantic. However, even if plaintiffs subsequently lost commissions expected from these arrangements, that loss was the result of the subsequent legal proceedings rather than directly from defendants’ statements to Holder.

JUDGMENT

The judgment of the trial court is reversed, and judgment is rendered that plaintiffs take nothing by this suit against any of the defendants.

Reversed and rendered.

AKIN, J., files a dissenting opinion.

1 . Plaintiffs’ evidence on this issue is summarized in detail in an unpublished supplement to this opinion.