ON MOTION FOR REHEARING
COHEN, Justice.
Appellant’s motion for rehearing is granted, our opinion of December 29, 1988, is withdrawn, and the following is substituted.
This is an appeal from a judgment for damages to an employer because of an insurer’s wrongful denial of an employee’s group health insurance claim. Appellee, Erbauer Construction Corporation. (“Er-bauer”), sued Pan American Life Insurance [149]*149Co. (“Pan Am”), alleging bad faith settlement practices and violations of the Deceptive Trade Practices Act (“DTPA”) and the Insurance Code. After a nonjury trial, the court awarded $1.2 million actual damages, plus $2.4 million in additional damages under the Insurance Code and the DTPA, plus attorney’s fees, and prejudgment interest, totaling $4,699,230.25.
Crystal Gill, the two-year-old daughter of an Erbauer employee, Dewey Gill, was injured in a mobile home fire on December 22, 1979. She suffered burns and smoke inhalation that caused brain damage, rendering her a blind, spastic quadriplegic. She was treated at Herman Hospital and at the Shriner’s Burn Center in Galveston before being transferred to a state institution in Louisiana, following Pan Am’s denial of her claim under Erbauer’s group insurance policy. Hermann Hospital had earlier contacted both parties to determine whether the child was covered under her father’s insurance policy and was told by both that she was. However, Pan Am later denied the claim, and in November 1981, Hermann Hospital sued both Erbauer and Pan Am for Crystal Gill’s hospital bills. Erbauer filed this cross-claim against its co-defendant, Pan Am. The Gills intervened in the suit in January 1982, and discovery occurred over the next five years.
Immediately before trial, on December 3, 1986, Hermann Hospital settled with both Erbauer and Pan Am, and the remaining claims were tried on December 29, 1986. The Gills settled with Pan Am during trial, and trial continued on Erbauer’s cross-claim against Pan Am for damages to its business due to Pan Am’s wrongful denial of Dewey Gill’s claim for medical benefits. At trial, Erbauer showed that the market in Houston in the early 1980’s for skilled, nonunion construction employees was very competitive. Erbauer showed that as a result of the denial of Gill’s claim, rumors arose that it was not providing adequate benefits to its workers, and because of these rumors, Erbauer could no longer attract quality employees. Consequently, Er-bauer’s reputation declined, its bids for industrial projects were not accepted, and ultimately, it was sold for less than it would have been worth if Pan Am had not wrongfully denied Gill’s claim.
In its first point of error, Pan Am contends the trial court lacked subject matter jurisdiction because state law is preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”).1 Pan Am relies on 29 U.S.C.S. § 1144(a) (1982), which provides:
The provisions of this title and title IV shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 4(a) and not exempt under section 4(b)....
In Castillo v. Neely’s TBA Dealer Supply, Inc., 776 S.W.2d 290 (Tex.App.—Houston [1st Dist.] 1989, writ denied), we held that ERISA’s preemption provision was an affirmative defense that could be, and was, waived by a defendant who did not plead the defense and did not offer evidence or obtain findings in the trial court regarding the defense. Id. at 292-94. Pan Am did less here to raise the defense than the defendant did in Castillo. Pan Am raised the ERISA defense for the first time in this Court. We adhere to our holding in Castillo and hold that the preemption defense was waived. Accord Great North American Stationers v. Ball, 770 S.W.2d 631 (Tex.App.—Dallas 1989, writ dism’d).
Pan Am’s first point of error is overruled.
In its second point of error, Pan Am contends:
The trial court’s judgment should be reversed because [Erbauer’s] claims against Pan Am are barred by the applicable statutes of limitations.
This judgment arose from a cross-claim filed in Hermann Hospital’s original suit against both parties. Erbauer timely filed its cross-claim in 1981, within the limitations period, but it never served Pan Am until it filed its amended cross-claim on December 2, 1986. This was more than [150]*150five years after Pan Am had denied Gill’s claim on April 11, 1981. Pan Am contends that because service, not mere filing, is necessary to toll the statute of limitations, Erbauer’s failure to obtain service allowed both the two-year and the four-year limitations periods to expire before December 1986.
Immediately before trial, the court held a hearing on Pan Am’s motion to dismiss due to limitations. There was no testimony at the hearing, only argument of counsel. Pan Am’s attorney stated that Pan Am had not been served with citation and had not received a copy of the cross-claim, but admitted that Erbauer had asked that Pan Am be served. Erbauer’s lawyer responded, “We do not know whether the Commissioner of Insurance effected service ... or not. We know -that we sought issuance of it. We know that we paid our fifteen dollar filing fee, not once, but twice.” The trial court orally overruled the motion to dismiss.
We construe Pan Am’s point of error as a complaint that the trial judge erroneously overruled its pretrial motion to dismiss. We have found no other place in the record where Pan Am’s trial counsel requested relief based on limitations.
Texas courts have held that service of citation is not required when one defendant files a cross-claim against another defendant. Early v. Cornelius, 120 Tex. 335, 39 S.W.2d 6, 8 (1931); Empire Gas and Fuel Co. v. Noble, 36 S.W.2d 451, 454 (Tex.Comm’n App.1931, judgm’t adopted); Sullivan v. Doyle, 108 Tex. 368, 194 S.W. 136, 137 (1917); Carter v. G & L Tool Co. of Utah, Inc. 428 S.W.2d 677, 681 (Tex.Civ.App.—San Antonio 1968, no writ); Galloway v. Moeser, 82 S.W.2d 1067, 1069 (Tex.Civ.App.—Eastland 1935, no writ); 2 R. McDonald, Texas Civil Practice in District and County Courts § 7.56 (rev.1982). If a cross-defendant is not entitled to notice of the cross-claim, the failure to notify it cannot give rise to a valid defense of limitations. In such cases, the cross-defendant’s general appearance “brings him before the court for all purposes and charges him with notice of the cross-claim, whether it be filed before or after his appearance in answer to the plaintiff’s demand.” 2 R. McDonald at 275. Pan Am’s authorities are distinguishable because none involves a cross-claim against a co-defendant.
Finally, we note that although Pan Am presented evidence at trial regarding limitations, it did not ask for any relief on that basis after the court overruled its pretrial motion. We have not been directed to any post-trial brief, motion for judgment, motion for new trial, request for findings of fact and conclusions of law, or other post-trial request for relief based on limitations. We have reviewed the trial court’s oral order overruling Pan Am’s pretrial motion to dismiss because Pan Am obtained an adverse ruling, and because Erbauer has not contended that the limitations defense was waived. We decline, however, to consider any evidence from the trial concerning the limitations defense because Pan Am did not ask for any relief during or after the trial based on limitations.
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ON MOTION FOR REHEARING
COHEN, Justice.
Appellant’s motion for rehearing is granted, our opinion of December 29, 1988, is withdrawn, and the following is substituted.
This is an appeal from a judgment for damages to an employer because of an insurer’s wrongful denial of an employee’s group health insurance claim. Appellee, Erbauer Construction Corporation. (“Er-bauer”), sued Pan American Life Insurance [149]*149Co. (“Pan Am”), alleging bad faith settlement practices and violations of the Deceptive Trade Practices Act (“DTPA”) and the Insurance Code. After a nonjury trial, the court awarded $1.2 million actual damages, plus $2.4 million in additional damages under the Insurance Code and the DTPA, plus attorney’s fees, and prejudgment interest, totaling $4,699,230.25.
Crystal Gill, the two-year-old daughter of an Erbauer employee, Dewey Gill, was injured in a mobile home fire on December 22, 1979. She suffered burns and smoke inhalation that caused brain damage, rendering her a blind, spastic quadriplegic. She was treated at Herman Hospital and at the Shriner’s Burn Center in Galveston before being transferred to a state institution in Louisiana, following Pan Am’s denial of her claim under Erbauer’s group insurance policy. Hermann Hospital had earlier contacted both parties to determine whether the child was covered under her father’s insurance policy and was told by both that she was. However, Pan Am later denied the claim, and in November 1981, Hermann Hospital sued both Erbauer and Pan Am for Crystal Gill’s hospital bills. Erbauer filed this cross-claim against its co-defendant, Pan Am. The Gills intervened in the suit in January 1982, and discovery occurred over the next five years.
Immediately before trial, on December 3, 1986, Hermann Hospital settled with both Erbauer and Pan Am, and the remaining claims were tried on December 29, 1986. The Gills settled with Pan Am during trial, and trial continued on Erbauer’s cross-claim against Pan Am for damages to its business due to Pan Am’s wrongful denial of Dewey Gill’s claim for medical benefits. At trial, Erbauer showed that the market in Houston in the early 1980’s for skilled, nonunion construction employees was very competitive. Erbauer showed that as a result of the denial of Gill’s claim, rumors arose that it was not providing adequate benefits to its workers, and because of these rumors, Erbauer could no longer attract quality employees. Consequently, Er-bauer’s reputation declined, its bids for industrial projects were not accepted, and ultimately, it was sold for less than it would have been worth if Pan Am had not wrongfully denied Gill’s claim.
In its first point of error, Pan Am contends the trial court lacked subject matter jurisdiction because state law is preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”).1 Pan Am relies on 29 U.S.C.S. § 1144(a) (1982), which provides:
The provisions of this title and title IV shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 4(a) and not exempt under section 4(b)....
In Castillo v. Neely’s TBA Dealer Supply, Inc., 776 S.W.2d 290 (Tex.App.—Houston [1st Dist.] 1989, writ denied), we held that ERISA’s preemption provision was an affirmative defense that could be, and was, waived by a defendant who did not plead the defense and did not offer evidence or obtain findings in the trial court regarding the defense. Id. at 292-94. Pan Am did less here to raise the defense than the defendant did in Castillo. Pan Am raised the ERISA defense for the first time in this Court. We adhere to our holding in Castillo and hold that the preemption defense was waived. Accord Great North American Stationers v. Ball, 770 S.W.2d 631 (Tex.App.—Dallas 1989, writ dism’d).
Pan Am’s first point of error is overruled.
In its second point of error, Pan Am contends:
The trial court’s judgment should be reversed because [Erbauer’s] claims against Pan Am are barred by the applicable statutes of limitations.
This judgment arose from a cross-claim filed in Hermann Hospital’s original suit against both parties. Erbauer timely filed its cross-claim in 1981, within the limitations period, but it never served Pan Am until it filed its amended cross-claim on December 2, 1986. This was more than [150]*150five years after Pan Am had denied Gill’s claim on April 11, 1981. Pan Am contends that because service, not mere filing, is necessary to toll the statute of limitations, Erbauer’s failure to obtain service allowed both the two-year and the four-year limitations periods to expire before December 1986.
Immediately before trial, the court held a hearing on Pan Am’s motion to dismiss due to limitations. There was no testimony at the hearing, only argument of counsel. Pan Am’s attorney stated that Pan Am had not been served with citation and had not received a copy of the cross-claim, but admitted that Erbauer had asked that Pan Am be served. Erbauer’s lawyer responded, “We do not know whether the Commissioner of Insurance effected service ... or not. We know -that we sought issuance of it. We know that we paid our fifteen dollar filing fee, not once, but twice.” The trial court orally overruled the motion to dismiss.
We construe Pan Am’s point of error as a complaint that the trial judge erroneously overruled its pretrial motion to dismiss. We have found no other place in the record where Pan Am’s trial counsel requested relief based on limitations.
Texas courts have held that service of citation is not required when one defendant files a cross-claim against another defendant. Early v. Cornelius, 120 Tex. 335, 39 S.W.2d 6, 8 (1931); Empire Gas and Fuel Co. v. Noble, 36 S.W.2d 451, 454 (Tex.Comm’n App.1931, judgm’t adopted); Sullivan v. Doyle, 108 Tex. 368, 194 S.W. 136, 137 (1917); Carter v. G & L Tool Co. of Utah, Inc. 428 S.W.2d 677, 681 (Tex.Civ.App.—San Antonio 1968, no writ); Galloway v. Moeser, 82 S.W.2d 1067, 1069 (Tex.Civ.App.—Eastland 1935, no writ); 2 R. McDonald, Texas Civil Practice in District and County Courts § 7.56 (rev.1982). If a cross-defendant is not entitled to notice of the cross-claim, the failure to notify it cannot give rise to a valid defense of limitations. In such cases, the cross-defendant’s general appearance “brings him before the court for all purposes and charges him with notice of the cross-claim, whether it be filed before or after his appearance in answer to the plaintiff’s demand.” 2 R. McDonald at 275. Pan Am’s authorities are distinguishable because none involves a cross-claim against a co-defendant.
Finally, we note that although Pan Am presented evidence at trial regarding limitations, it did not ask for any relief on that basis after the court overruled its pretrial motion. We have not been directed to any post-trial brief, motion for judgment, motion for new trial, request for findings of fact and conclusions of law, or other post-trial request for relief based on limitations. We have reviewed the trial court’s oral order overruling Pan Am’s pretrial motion to dismiss because Pan Am obtained an adverse ruling, and because Erbauer has not contended that the limitations defense was waived. We decline, however, to consider any evidence from the trial concerning the limitations defense because Pan Am did not ask for any relief during or after the trial based on limitations. The record, therefore, must stand as it did at the time of the pretrial motion. Pan Am’s failure to request findings of fact or conclusions of law concerning the affirmative defense of limitations, on which it had the burden of proof, precludes review of the record made after the pretrial hearing.2 See MBank Abilene, N.A. v. Westwood Energy, Inc., 723 S.W.2d 246, 252 (Tex.Civ.App.—Eastland 1986, no writ); Pinnacle Homes Inc. v. R.C.L. Offshore Eng’g Co., 640 S.W.2d 629, 631 (Tex.App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.); Tex.R. Civ.P. 299.
Pan Am’s second point of error is overruled.
In its third point of error, Pan Am argues that the trial court abused its discretion for failing to strike the unserved [151]*151cross-claim. Pan Am relies on Tex.R.Civ.P. 73, which allows sanctions for not delivering pleadings to adverse parties in accordance with Tex.R.Civ.P. 72. However, the rule is not mandatory; it states that the “court may. in its discretion ... order ... such pleading stricken_” Tex.R.Civ.P. 73 (emphasis added).
The purpose of Rule 72 is to prevent surprise. Here, the trial court made the following supplemental finding of fact concerning the issue of surprise to Pan Am:
There was unconvincing and insufficient evidence to establish that Pan American Life Insurance Company or its counsel were not aware of and did not have actual evidence of the original answer and cross-claim filed by Erbauer Construction Corporation as cross-plaintiff against Pan American Life Insurance Company as cross-defendant.
This finding of fact has not been attacked on appeal. Moreover, the trial court refused to make a finding of fact requested by Pan Am that it had no actual knowledge of Erbauer’s cross-claim before December 2, 1986.
A trial court abuses its discretion if it acts without reference to any guiding rules and principles in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). The mere fact that a trial court may decide a matter within its discretionary authority differently from what an appellate court would decide in a similar circumstances is not an abuse of discretion. Id. Here, Pan Am was served with the cross-claim more than three weeks before trial. On the day set for trial, it announced ready and did not request a continuance until the final day of trial. The burden of proof is on the complaining party to show an abuse of discretion. Hardin v. Hardin, 597 S.W.2d 347, 349-50 (Tex.1980). Pan Am has not met this burden.
Pan Am’s third point of error is overruled.
In its fourth point of error, Pan Am complains that the trial court erred by denying its motion for new trial based upon newly discovered evidence. To obtain a new trial based on newly discovered evidence, a party must show the trial court that: 1) the evidence has come to light since trial; 2) it is not due to lack of diligence that it was not produced sooner; 3) the new evidence is not cumulative; and 4) the new evidence is so material that it would have probably produced a different result if a new trial were granted. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983). The standard of review we must apply to the denial of a motion for new trial is whether the judge abused her discretion. Id.
In its motion, Pan Am contended its newly discovered evidence, affidavits from former employees of Erbauer discussing other possible causes of the company’s economic difficulties, was discovered by its investigator hired following trial. Pan Am did not take any action to delay the start of trial or request a continuance prior to trial to pursue further discovery. As stated above, Pan Am filed its motion for continuance on the last day of trial. Pan Am has failed to establish that it used due diligence in attempting to discover the new evidence. Id. Further, these affidavits are properly characterized as rebuttal or impeachment testimony of Erbauer’s evidence regarding damages. Pan Am has not met its burden that this evidence would have produced a different result if a new trial were granted. Finally, we note, again, the trial court’s finding that Pan Am did not prove its unawareness of the cross-claim. Every reasonable presumption should be made on review in favor of orders of the trial court refusing new trials. Id. We find no abuse of discretion.
Pan Am’s fourth point of error is overruled.
In its fifth, seventh, ninth, and tenth points of error, Pan Am argues that there is no evidence, or that there is factually insufficient evidence, to support the trial court’s findings of fact.
The standard of review for a factual insufficiency challenge requires this [152]*152Court to examine and weigh all of the evidence, Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986), and to set aside the findings of fact only if they are so contrary to the overwhelming weight of the evidence that they are clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In considering a “no evidence” challenge, this Court must consider only the evidence and reasonable inferences drawn from the evidence that, when viewed in their most favorable light, support the jury verdict or trial court finding. Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 787 (Tex.App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.). This Court must disregard all evidence and inferences to the contrary. Id. If there is more than a scintilla of evidence to support the finding, the no evidence challenge cannot be sustained. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla, and, in legal effect, no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).
Pan Am’s fifth point of error addresses the findings of fact relating to causation, foreseeability, and the amount of the actual damages incurred by Erbauer. Pan Am also challenges the trial court’s sixteenth finding of fact, that denial of the Gills’ claim caused direct and foreseeable harm to Pan Am. Erbauer’s expert testified, when questioned by the trial court, that improper denial of a claim for medical benefits could cause substantial problems for a construction firm seeking to retain a skilled and productive work force. Further, this same expert testified as to the keen competition and marketing necessary to remain on the bidding lists of the large industrial clients along the ship channel, particularly during the boom years in the late 1970’s and early 1980’s. This same testimony also supports findings of fact numbers 24, 25, 26, and 39, that relate to causation and foreseeability. Pan Am had experience in writing group construction insurance plans, and its manager of group claims acknowledged that wrongful denial of a claim would affect not only the employee, but the employer. Pan Am was aware that denial of a claim would have ramifications beyond the individual employee and could affect the reputation and business credibility of Erbauer.
Pan Am argues that the award of $1,200,000 in actual damages is not supported by the evidence. In Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1098-99 (1938), the court stated the proper measure of damages as follows:
In order that a recovery may be had on account of lost profits, the amount of the loss must be shown by competent evidence with reasonable certainty. Where the business is shown to have been already established and making a profit at the time when the contract was breached or the tort committed, such pre-existing profit, together with any facts and circumstances, may indicate with reasonable certainty the amount of profits lost. It is permissible to show the amount of business done by the plaintiff in a corresponding period of time not too remote, and the business during the time for which recovery is sought.
Id.
Erbauer’s evidence consisted of testimony by officers of the company and a competitor that had received a contract, which he testified was initially intended for Er-bauer. The president of Erbauer, Dr. Charles Walker, also testified as an expert concerning business evaluation and loss of future profits.
Q: How valuable is that relationship that Erbauer had with its employees, and with established and major industrial clients, to outsiders who might want to enter the marketplace?
A: It would be the only thing of real value.
Q: All right [sic] sir. If you — well, do you have an opinion, Dr. Walker, and if Erbauer had maintained its present goodwill, and if the events that we have heard here in this courtroom, which occurred after April 11th, of 1980, had not oc[153]*153curred, what Erbauer would have been able to sale [sic] its goodwill and its operating assets for?
A: A minimum of three million dollars. Q: Okay. And, how did you arrive at that, sir?
A: I took six times the five hundred thousand dollars, and I got three million dollars.
Q: Why did you use the multiple of six times the earnings?
A: I was being very conservative.
Q: All right [sic], sir. Now, excuse me. When you say “five hundred thousand,” is that five hundred thousand the earnings and the profits of the corporation?
A: Yes, sir, for the fiscal year ending September 30th, of 1980.
Q: All right [sic]. What, in fact, did Erbauer sell its operating assets that it had acquired through these four, five or six years of business, what did it sell its operating assets for?
A: The sale price was one million one hundred and fifty-seven thousand and five hundred dollars.
Q: All right [sic]. And, if I subtract three million — excuse me — if I subtract [sic] one million one hundred and fifty-seven thousand and five hundred dollars from three million, and if I do the sub-straction [sic], I get one million eight hundred and forty-two thousand and five hundred dollars. Now, assuming that my substraction [sic] is correct, Dr. Walker, do you have an opinion as to the damage to Erbauer’s good will caused by the act of Pan American Life Insurance Company?
A: Yes, sir.
Q: And, what is that opinion?
A: A million and eight, and based solely on this one item.
The witness then proceeded to prepare a chart on the court’s blackboard summarizing the alleged damages. Although this chart was accepted into evidence as plaintiff’s exhibit 10, it is not before this Court. However, the alleged increased expenses, lost profits, and damage to goodwill resulting from the denial of the claim can be reconstructed from the testimony of the witness and follows below:
Additional cost of interest — $67,500
Cost of additional CPA reviews — $35,000
Lost profits from ITC contract — $190,000
Lost profits from Exxon contract — $400,-000
Lost profits from Haldeman contract— $300,000
Damage to goodwill of Erbauer — $1,800,-000
Total damages alleged by Erbauer— $2,792,500
Erbauer was required to provide the court with evidence sufficient to provide a reasonable basis to estimate the loss and assess damages. Gulf Coast Inv. Corp. v. Rothman, 506 S.W.2d 856, 858- (Tex.1974). The trial court awarded Erbauer less than half of the damages it alleged. The evidence in the record is sufficient to find causation and damages.
Pan Am’s fifth point of error is overruled.
Pan Am’s seventh point of error challenges the findings concerning Pan Am’s failure to properly process and pay Erbauer’s claim on behalf of the policy beneficiary, Crystal Gill, and of Pan Am’s handling of the claim in bad faith. The testimony of the beneficiary, Dewey Gill, of Erbauer’s personnel manager, Ms. Louise Harshman, and of Pan Am’s claims manager support the findings. Mr. Gill testified that he wanted insurance coverage for his dependents, and that he completed the necessary form at Erbauer’s personnel office. Pan Am’s claims manager testified that a participant was covered by the policy retroactively from the time he requested the coverage. Ms. Louise Harshman Hubbard, personnel manager for Erbauer, testified that she telephoned Mark Foster, Er-bauer’s contact with Pan Am, both before and after the fire concerning coverage for the Gill family. She testified that at both times, Foster confirmed the Gill family had medical benefits. Pan Am’s claims office paid the initial medical bills sent by Er-bauer, but later denied liability and refused to pay any further claims. Further, Pan Am presented no evidence that it conducted [154]*154any investigation before or after denying the claim. We hold the evidence was sufficient.
Pan Am’s seventh point of error is overruled.
In its ninth and tenth points of error, Pan Am attacks the evidence supporting the trial court’s findings of: 1) its misrepresentations to Erbauer; 2) certain acts proscribed by art. 21.213 of the Insurance Code; and 3) violations of the DTPA. Tex.Bus. & Com.Code Ann. § 17.41 et seq. (Vernon 1987). Testimony from both the officers at Erbauer who purchased the policy and from Mark Foster and James Iiams, agents of Pan Am, recounted the discussions surrounding the purchase of the policy. Pan Am knew Erbauer’s needs and represented that the policy would meet them. The policy included an “inadvertent error” clause that provided for coverage even if Erbauer made a clerical mistake in processing an enrollee. Sufficient evidence was presented to the court, as trier of fact, to support findings of fact holding that Pan Am knowingly misrepresented the coverage and services it would provide under the policy.
Points of error nine and ten are overruled.
In its eleventh point of error, Pan Am makes no evidence challenge to the findings of fact regarding express representations by Pan Am’s agent, Mark Foster, on December 20 and 27, 1979, to Er-bauer that Dewey Gill and his dependents had medical coverage benefits under Er-bauer’s insurance policy. The record reflects that Ms. Hubbard testified that she called Foster on December 20 and 27 to discuss the Gills’ insurance. Although Foster testified that he did not receive the calls, the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Rego v. Brannon, 682 S.W.2d 677, 680 (Tex.App.—Houston [14th Dist.] 1984, writ ref’d n.r. e.). The trial court was presented with evidence that Foster made the representations attributed to him in the findings of fact.
Pan Am’s eleventh point of error is overruled.
In its sixth point of error, Pan Am complains that the trial court committed reversible error in overruling its motion for continuance on the final day of trial. The granting or denial of a motion for continuance is within the sound discretion of the trial court and will not be disturbed unless the record discloses a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986). In its brief, Pan Am cites Peterson v. Clay, 225 S.W. 1112, 1115 (Tex.Civ.App.—Amarillo 1920, no writ); however, this case addresses the proper standard to be applied to a motion for a continuance, e.g., to demonstrate due diligence when new evidence comes to light during trial. There is no evidence before this Court that Pan Am attempted any discovery during the intervening period between the time when the case was reset on December 3 and the start of trial on December 29, 1986. Pan Am’s motion for continuance came on the last day of trial, after Pan Am had announced “ready for trial” on both December 3 and 29. Pan Am does not address in its brief how the trial court’s refusal to grant its motion for continuance rose to the level of an abuse of discretion. Again, we note the trial court’s finding that Pan Am did not prove it was unaware of Erbauer’s claim. We do not find that the trial court abused its discretion in declining to grant this motion at the close of trial.
Pan Am’s sixth point of error is overruled.
In its eighth point of error, Pan Am argues that the judgment of the trial court must be reversed because the evidence is insufficient to support the omitted finding that Pan Am’s bad faith in settling the claim was the proximate cause of Er-bauer’s damages. Under Tex.R.Civ.P. 299, omitted findings of fact, where supported by the evidence, and where one or more elements of a ground of recovery have [155]*155been found by the trial court, are to be presumed in support of the judgment. In the instant case, we have resolved the issues of sufficiency of the evidence in favor of Erbauer. Pan Am’s own expert acknowledged the consequences of a rumor that a construction company was not providing promised benefits to its employees. Further, Iiams, Pan Am’s group claims manager, testified that Pan Am was also aware of the ramifications of a wrongful denial of a claim. He also testified that no investigation was performed to further determine the merits of the claim once it was denied. Upon a complete examination of the record, we find sufficient evidence to support the omitted finding of causation between Pan Am’s bad faith denial of the claim and Erbauer’s damages.
Pan Am’s eighth point of error is overruled.
The judgment of the trial court is affirmed.
DUNN, J., dissents.