State Farm Life Insurance Co v. Beaston

907 S.W.2d 430, 1995 WL 385498

• Court: Texas Supreme Court
• Decided: October 27, 1995
• Docket: D-4454
• Status: Published

Opinions

OWEN, Justice,

delivered the opinion of the Court

in which GONZALEZ, HECHT, CORNYN, and ENOCH, Justices, join. PHILLIPS, Chief Justice, and SPECTOR, Justice, join in Parts III, IV, and V.

We are called upon to interpret the terms of a life insurance policy and to decide whether a plaintiff can recover mental anguish damages from an insurance company for a violation of Article 21.21 of the Texas Insurance Code absent a finding that the defendant acted knowingly. Because we hold that the plaintiff is not entitled to benefits under her husband’s policy and that a finding of knowing conduct is required to recover mental anguish damages under Article 21.21, we reverse the judgment of the court of appeals, 861 S.W.2d 268, and render judgment that the plaintiff take nothing.

I

In 1982, Terri and David Beaston bought life insurance policies from Ted Heaton, a State Farm Life Insurance Company agent. The Beastons failed to pay the premium on David’s policy due on December 28, 1988. His policy lapsed as of December 28, 1988, and the thirty-one day grace period expired on January 28, 1984. Three days after the expiration of the grace period, David died in an automobile accident. State Farm refused to pay the benefits under his life insurance policy, claiming that coverage had expired before his death.

As the sole beneficiary of her husband’s graded premium whole life policy, Terri brought suit against both State Farm and Heaton, asserting, among other claims, that they had violated Article 21.21. She also contended that the terms of the policy guaranteed payment of a dividend at death which should have been used to pay a part of the premium that was in arrears and thereby “cure” the policy’s lapse.

The case was tried to a jury. At the close of the evidence, the trial court granted an instructed verdict in Terri’s favor on the issue of coverage, finding that the policy was ambiguous and construing it to provide for dividends that “would have been sufficient to avoid the asserted lapse.” (The basis of the trial court’s ruling is set forth in its judgment.)

Issues were submitted to the jury on Terri Beaston’s other claims. The jury found that the defendants had engaged in unfair or deceptive acts and that such conduct was a producing cause of damages to Terri Bea-ston. The jury failed to find, however, that State Farm or Heaton (1) had engaged in any false, misleading, or deceptive act or practice, (2) had engaged in any unconscionable action or course of action, (3) was negligent, or (4) was grossly negligent. There was a finding that State Farm had not waived any lapse under the policy. An issue as to whether State Farm or Heaton had knowingly engaged in any unconscionable conduct was conditioned on an affirmative response to the question that asked whether either defendant had engaged “in any unconscionable action or course of action that was a producing cause of damages to Terri Bea-ston.” Because the jury responded negatively, it did not reach the question asking whether the defendants had engaged in knowing conduct. No objection was made to the conditional submission.

In response to the damage issue, the jury awarded no policy benefits, but awarded $200,000 for mental anguish in the past. The jury was asked to and did award attorney’s fees as a percentage of Terri Beaston’s recovery, finding that forty percent was a reasonable fee, with increased percentages if the case were appealed to the court of appeals and to this Court.

The trial court rendered judgment in Terri Beaston’s favor, awarding the face amount of the policy benefits ($250,000), and prejudgment interest ($147,171). A statutory delay penalty in the amount of twelve percent ($30,000) was added pursuant to Article 3.62 of the Texas Insurance Code, for a total of $427,171, and forty percent of that total ($170,868.40) was included in the judgment as attorney’s fees. The trial court stated in its judgment that it “finds no cases that would allow the award of mental anguish damages absent a finding that the conduct of the Defendants was committed knowingly, and therefore ... mental anguish damages will not be awarded, and the jury’s answer to Question 8(b) [concerning mental anguish damages] will be disregarded.” The trial court additionally refused to treble the actual damages and refused to award attorney’s fees based on a calculation that Terri Bea-ston contended was equal to forty percent of the “recovery” (which would result in attorney’s fees of $284,780.87 as calculated by Beaston) as opposed to only forty percent of the damages, including penalty and interest.

The court of appeals reversed the judgment of the trial court, holding that Terri Beaston was not required to obtain a jury finding that State Farm or its agent had knowingly violated Article 21.21 as a prerequisite for the recovery of mental anguish damages. 861 S.W.2d at 275. The court of appeals reinstated the jury’s award of $200,-000 in mental anguish damages and concluded that the trebling of those damages was mandatory under former Article 21.21, which governed this case.¹ The court affirmed the award of policy benefits, prejudgment interest, and a twelve-percent delay penalty,² but increased the amount of the judgment to include prejudgment interest and attorney’s fees based on Terri Beaston’s increased recovery. The court of appeals also modified the manner in which attorney’s fees were calculated, rejecting the trial court’s method in favor of the method proffered by Beaston. The court of appeals held that “the contingency fee percentage should be calculated on the total recovery and not on the total damages.” 861 S.W.2d at 279 (emphasis in original).

State Farm brings forth several points of error, including challenges to the finding of coverage under the policy, the award of mental anguish damages, and the calculation of attorney’s fees.

II

Although it is undisputed that her husband’s policy would have otherwise lapsed on December 28, 1983, Terri claims that the policy remained in force because of its dividend-at-death provision. The policy provides, in relevant part:

Nonpayment of Premium. If a premium has not been paid by the end of its grace period, the Accumulations to Avoid Lapse and, if chosen, the Automatic Premium Loan provisions will apply. If neither of these provisions apply, this policy will lapse as of the due date of any amount of unpaid premium. With such lapse, all coverage ceases....

Accumulations to Avoid Lapse. If a premium has not been paid by the end of its grace period, any available dividend accumulations will be used to pay all or part of that premium....

Premium Adjustment When Insured Dies. If the Insured dies during a grace period, any part of a premium due will be paid from the proceeds....

Annual Dividends. State Farm Life may apportion and pay dividends each year. Any such dividends will be paid at the end of the policy year if all premiums due have been paid....

Dividend Options. The Owner may choose one of the options listed below....

3. Dividend Accumulation. Left to accumulate- Accumulations plus interest to the Insured’s death will be part of the proceeds.

Dividend at Death. A dividend for the period from the start of the policy year to the Insured’s death will be part of the proceeds.

It is undisputed that David had not accumulated any dividend following the first year of the policy or that he died before its second anniversary. State Farm argues that the terms of David’s policy make clear that the payment of any dividend is contingent on the insured’s payment of all premiums due. Since David had not paid the last premium on his policy prior to the expiration of its grace period, he was entitled to no dividend that could be used to cure his unpaid premium. The trial court held, however, that the terms of the policy were ambiguous because they could reasonably be taken to mean that State Farm would pay David a dividend at his death, regardless of his arrearages. The court of appeals affirmed. 861 S.W.2d at 276-77.

We disagree. As we explained in Forbau v. Aetna Life Insurance Co., 876 S.W.2d 132 (Tex.1994), the interpretation of insurance contracts is governed by the same rules of construction applicable to other contracts. Id. at 133 (citations omitted). When construing a contract, courts must strive to give effect to the written expression of the parties’ intent. Id. (citations omitted). To do so, they must read all parts of a contract together. Id. (citations omitted). Indeed, courts must be particularly wary of isolating from its surroundings or considering apart from other provisions a single phrase, sentence, or section of a contract. See id. at 133-34 (citations omitted). Only if an insurance policy remains ambiguous despite these canons of interpretation should courts construe its language against the insurer in a manner that favors coverage. See, e.g., National Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991); Blaylock v. American Guar. Bank Liab. Ins. Co., 632 S.W.2d 719, 721 (Tex.1982); Ramsay v. Maryland Am. Gen. Ins. Co., 533 S.W.2d 344, 349 (Tex.1976).

Terri Beaston interprets David’s policy to mean that State Farm would pay a pro-rated dividend at his death, regardless of how many premium payments had been missed or whether the policy was inside or outside its grace period following the nonpayment of a premium. However, as we recognized in Forbau:

[ N]ot every difference in the interpretation of a contract or an insurance policy amounts to an ambiguity. Both the insured and the insurer are likely to take conflicting views of coverage, but neither conflicting expectations nor disputation is sufficient to create an ambiguity.

Forbau, 876 S.W.2d at 134 (citations omitted) (emphasis in original).

Despite Terri’s contrary interpretation, the policy, viewed in its entirety, unambiguously provides that David would not receive any dividend that could be used to cure his policy’s lapse under the circumstances presented here. The policy states that if, as in this ease, a premium has not been paid by the end of its grace period, the accumulations-to-avoid-lapse provision will apply. Under that provision, State Farm agrees to use “any available dividend accumulations” to pay all or part of the unpaid premium. Dividend accumulations are those dividends, if any, paid to the insured on the anniversary of the policy and “left to accumulate,” as allowed by one of the policy’s “dividend options.” ³ The annual-dividends provision confirms this. Terri acknowledges that her husband’s policy had not accumulated any dividends on its first anniversary ⁴ and that the policy lapsed before its second anniversary. Because the policy lapsed before its second anniversary, any dividends that might have been paid on that date had not yet “accumulated.” As a result, there simply were no dividend accumulations available to cure the lapse.

The policy’s dividend-at-death provision is irrelevant under these circumstances. Contrary to Terri Beaston’s assertion that the policy’s dividend-at-death clause states unconditionally that State Farm will pay a prorated dividend to David upon his demise, the provision states only that “[a] dividend for the period from the start of the policy year to the Insured’s death will be part of the proceeds.” (Emphasis added). But the payment of proceeds under the policy is contingent upon the insured’s timely payment of premiums. Under the policy’s nonpayment-of-premium provision, if a premium has not been paid by the end of the grace period, the “policy will lapse as of the due date of any amount of unpaid premium,” unless the accumulations-to-avoid-lapse provision or the automatic premium loan provision applies. (Emphasis added). Neither of those provisions applies here.⁵ When the policy lapses due to nonpayment, “all coverage ceases,” and consequently there are no proceeds with which the dividend could be included. Construed together, the dividend-at-death and nonpayment-of-premium provisions leave no doubt that the insured is not entitled to a dividend at death unless the policy is in force when the insured dies. Under this policy, therefore, a dividend at death is not available to cure an unpaid premium.⁶ The grace period for the payment of David’s December 28, 1988 premium expired on January 28, 1984, three days before David’s death. Since coverage ceased before David’s death, he was not entitled to a pro-rated dividend upon his death that could revive his coverage under the lapsed policy. Thus, we reverse the judgment of the court of appeals in awarding Terri Beaston the benefits of her husband’s life insurance policy.

Ill

State Farm also complains that the court of appeals erred in awarding Terri Beaston damages for mental anguish under Article 21.21. State Farm argues in the alternative that (1) there is no evidence to support the jury’s finding that it violated Article 21.21; (2) there is no evidence to support the jury’s finding regarding mental anguish damages; or (3) damages for emotional distress are not recoverable because Terri failed to secure a jury finding that State Farm acted knowingly.

Article 21.21 provides a remedy for those injured by (1) any “unfair methods of competition and unfair and deceptive acts or practices in the business of insurance” specifically defined in Section 4 of Article 21.21, (2) practices declared in the rules or regulations of the Board of Insurance to be unfair methods of competition and unfair and deceptive acts or practices in the business of insurance, or (3) violations of Section 17.46 of the Texas Business and Commerce Code, otherwise known as the Deceptive Trade Practices— Consumer Protection Act (“DTPA”).⁷ See Tex.Ins.Code art. 21.21, § 16(a). The jury found that one or both of the defendants engaged in an unfair or deceptive act or practice.

State Farm contends that there is no evidence to support this finding. Because the only damages found by the jury were for mental anguish, we turn first to State Farm’s argument that Terri cannot recover mental anguish damages in the absence of a finding that it acted knowingly. Whether such a finding is a prerequisite for recovering mental anguish damages under Article 21.21 is a question of first impression for this Court.

Like the DTPA, Article 21.21 provides that parties may recover their actual damages against a defendant who has violated the statute’s provisions. Tex.Ins.Code art. 21.21, § 16(b)(1). Neither the DTPA nor Article 21.21defines “actual damages.” In construing this term, our courts have concluded that the “actual damages” available under Article 21.21or the DTPA are those damages recoverable at common law. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 939 (Tex.), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980); see also Frank B. Hall & Co. v. Beach, Inc., 733 S.W.2d 251, 265 (Tex.App.—Corpus Christi 1987, writ ref'd n.r.e.); St. Paul Ins. Co. v. McPeak, 641 S.W.2d 284, 287 (Tex.App.—Houston [14th Dist.] 1982, writ ref'd n.r.e.).

Courts traditionally have been reluctant to allow recovery of damages for emotional distress without some additional threshold showing, for example, that the mental anguish was accompanied by a physical injury “resulting from a physical impact or was produced by a particularly upsetting or disturbing event.” The Parkway Co. v. Woodruff, 901 S.W.2d 434, 442 (Tex.1995). See generally, Laycock, Modern American Remedies 189-90 (2d ed. 1994) (discussing restrictions on recovery for emotional distress).

We have held in a DTPA case that mental anguish damages are not recoverable where there was no willful conduct and no resulting physical injury. Brown, 601 S.W.2d at 939. We similarly held in Duncan v. Luke Johnson Ford, Inc., 603 S.W.2d 777, 779 (Tex.1980), that damages cannot be recovered for mental anguish alone and that there must be proof of a willful tort, gross negligence, or willful disregard. See also Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115, 117-18 (Tex.1984), where we held that a finding that the unconscionable actions were committed “knowingly” would support mental anguish damages, but we remanded for a determination of the factual sufficiency of the evidence to support the mental anguish award, and Boyles v. Kerr, 855 S.W.2d 593, 598 (Tex.1993), where we observed in dicta that mental anguish damages may not be recovered under the DTPA absent proof of a willful or grossly negligent violation.

We see no reason that a culpable mental state should not also be required to recover mental anguish damages under Article 21.21. As the court of appeals recognized, the DTPA and Article 21.21 are interrelated. 861 S.W.2d at 274. The Legislature enacted both remedies in 1973 as “part of a reform package of consumer legislation.” State Farm Fire & Cos. Co. v. Gros, 818 S.W.2d 908, 916 (Tex.App.—Austin 1991, no writ); see also Frank B. Hall, 733 S.W.2d at 265 (noting that the purposes of the statutes are similar). The DTPA was designed to protect consumers against “false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty....” Tex. Bus. & Com.Code § 17.44. Similarly, Article 21.21was enacted to regulate practices in the insurance industry by prohibiting “unfair methods of competition or unfair or deceptive acts or practices.” Tex.Ins.Code art. 21.21, § 1(a). Section 17.50(a)(4) of the DTPA incorporates Section 16 of Article 21.21, and Section 16 of Article 21.21 prohibits an insurer from engaging in any practice proscribed by Section 17.46 of the DTPA. Tex.Bus. & Com.Code § 17.50(a)(4); Tex.INS.Code art. 21.21, § 16(a); see also Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 273 (Tex.1995).

In DTPA eases that do not involve personal injury, we have required a threshold finding of a culpable mental state as one of the prerequisites for mental anguish damages. See, e.g., Luna, 667 S.W.2d at 117-18; Duncan, 603 S.W.2d at 779; Brown, 601 S.W.2d at 939. It is logical to require a similar culpable mental state under Article 21.21.

Having decided that some culpability is required, we must determine the appropriate standard. We conclude that a finding of knowing conduct is a prerequisite to the recovery of mental anguish damages under Article 21.21. “Knowingly” is the only culpable mental state to which the statute currently refers. See Tex.Ins.Code art. 21.21, § 16(b)(1).⁸ We therefore hold that mental anguish damages are not recoverable under Article 21.21 as an element of actual damages without an express finding of knowing conduct. The other prerequisites for recovery of mental anguish damages under the common law must also be present. As there was no finding here of knowing conduct, the judgment of the court of appeals is reversed to the extent that it awards any damages for mental anguish. Accordingly, we do not address State Farm’s further argument that the record contains no evidence that State Farm or Heaton committed a violation of Article 21.21 of the Insurance Code or the argument that the record contains no evidence of Terri’s mental anguish. Nor are we called upon to consider whether Terri has satisfied any other requirements for a recovery of mental anguish damages in this case.

IV

Terri Beaston counters that even if a finding of knowing conduct is required to recover mental anguish damages under Article 21.21 in this case, she nevertheless is entitled to prevail because State Farm failed to preserve its complaint regarding this issue. We hold that State Farm did not waive error on this point.

Tracking the language of Article 21.21, question one to the jury asked whether “State Farm or Ted Heaton engage[d] in any unfair or deceptive act or practice that was a producing cause of damages to Terri Bea-ston.” The jury responded affirmatively. The jury further found in response to question eight that $200,000 would fairly and reasonably compensate Terri for her mental anguish. The jury charge did not condition question eight on an affirmative response to any issue concerning knowing conduct. State Farm objected to question eight on the grounds that there was no evidence to support a finding of mental anguish damages, but it never objected that the charge failed to condition question eight on a finding that State Farm had acted knowingly.

Terri contends that because State Farm did not point out to the trial court that question eight regarding mental anguish damages should have been conditioned on a finding of knowing conduct, State Farm cannot now complain that the court of appeals erred in awarding mental anguish damages without such a finding. She argues that if a party makes no objection to a defective submission of a controlling issue constituting an element of a ground of recovery and a judgment is rendered thereon, the party’s failure to object waives the defective submission of that issue. See, e.g., Allen v. American Nat’l Ins. Co., 380 S.W.2d 604, 609 (Tex.1964).⁹

Had the trial court rendered judgment in favor of Terri for mental anguish damages, her argument would be correct. Where, as here, a jury awards damages based on a charge that omits an element necessary to sustain a ground of recovery, the trial court can either file a written finding regarding the missing element or render judgment without one. See Tex.R.Civ.P. 279.¹⁰ If the trial court does not file a written finding, the omitted element is deemed found in support of the judgment as long as no objection was made and the evidence supports such a finding. See id.; Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex.1990).

But in this ease, the trial court did not file a written finding as to whether State Farm or Heaton acted knowingly. To the contrary, the judgment that the trial court rendered expressly excluded mental anguish damages. By denying Terri any damages for emotional distress, the trial court cannot be deemed to have found that either defendant acted knowingly. See Tex.R.Civ.P. 279. Accordingly, State Farm’s failure to object to the form of question eight did not waive error regarding this issue.¹¹

y

Having rendered judgment that Terri Beaston take nothing with respect to her claim under Article 21.21, we also reverse her award of attorney’s fees. Section 16 of the applicable version of Article 21.21 provides that “any plaintiff who prevails may obtain ... actual damages plus ... attorneys’ fees reasonable in relation to the amount of work expended....”¹² Act of May 21,1973, 63rd Leg., R.S.,. eh. 143, § 2(c), 1973 Tex.Gen.Laws 322, 338, amended by Act of April 4, 1985, 69th Leg., R.S., ch. 22, § 3, 1985 Tex.Gen.Laws 395, 395.

To obtain an award of attorney’s fees under the DTPA or Section 38.001 of the Civil Practice and Remedies Code,¹³ a party must (1) prevail on a cause of a cause of action for which attorney’s fees are recoverable, and (2) recover damages. See McKinley v. Drozd, 685 S.W.2d 7, 9 (Tex.1985) (construing the DTPA); Rodgers v. RAB Investments, Ltd., 816 S.W.2d 543, 551 (Tex.App.—Dallas 1991, no writ) (construing the Civil Practice and Remedies Code). Since the fee-shifting provision of Article 21.21 echoes the words of the DTPA and Section 38.001 which provide for awarding attorney’s fees, we hold that a party must satisfy the same two requirements to recover attorney’s fees under Article 21.21. While we assume without deciding that Terri prevailed under Article 21.21, she cannot recover attorney’s fees because she has recovered no damages. We therefore reverse the judgment of the court of appeals concerning the award of attorney’s fees under Article 21.21.

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For the foregoing reasons, we reverse the judgment of the court of appeals and render judgment that Terri Beaston take nothing.¹⁴

1 . Section 16 of the former Article 21.21 provided that “any plaintiff who prevails may obtain ... three times the amount of actual damages....” Act of May 21, 1973, 63rd Leg., R.S., ch. 143, § 2(c), 1973 Tex.Gen.Laws 322, 338, amended by Act of April 4, 1985, 69th Leg., R.S., ch. 22, § 3, 1985 Tex.Gen.Laws 395, 395. Article 21.21 presendy provides, however, that a prevailing plaintiff can recover treble damages only if the “trier of fact finds that the defendant knowingly committed the acts" of which the plaintiff complains. Tex.Ins.Code art. 21.21, § 16(b)(1).

2 . Prior to September 1, 1991, Article 3.62 of the Texas Insurance Code provided in relevant part:

In all cases where a loss occurs and the life insurance company ... liable therefor shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve percent damages on the amount of such loss....

Act of April 27, 1931, 42nd Leg., R.S., ch. 91, § 1, 1931 Tex.Gen.Laws 135, 135, repealed by Act of June 6, 1991, 72nd Leg., R.S., ch. 242, § 12.01(2), 1991 Tex.Gen.Laws 939, 1133.

3 . When State Farm pays a dividend at the end of a policy year, the policy provides the insured with four options. He or she can (1) use the dividend toward the payment of a premium; (2) use the dividend to purchase a paid-up life insurance addition; (3) leave the dividend to accumulate (in which case, the dividend accumulations earn interest at the minimum rate of 4½% each year); or (4) be paid the dividend in cash.

4 . The terms of the policy do not guarantee payment of dividends, as evidenced by the annual-dividends provision which provided that State Farm “may apportion and pay dividends each year." (Emphasis added.) Because no dividend was paid during the first year of David’s policy, there was no dividend left to accumulate.

5 . As discussed above, the accumulations-to-avoid-lapse provision does not apply because there were no dividend accumulations. The automatic premium loan provision does not apply because David’s policy had not yet built up any cash value, and thus the policy did not have adequate "loan value,” as required by that provision.

6 . If the insured dies while the policy is within the thirty-one day grace period following the nonpayment of a premium, any premium due is paid from the proceeds.

7 . Tex.Bus. & Com.Code §§ 17.41-17.63.

8 . The Insurance Code defines "knowingly” as "actual awareness of the falsity, unfairness, or deception of the act or practice made the basis for a claim for. damages under Section 16 of this Article. 'Actual awareness’ may be inferred where objective manifestations indicate that a person acted with actual awareness.” TexJns. Code § 21.21(2)(c).

9 . In Allen, we wrote:

It seems well settled in this State that where no objection is made to a defective submission of a controlling issue constituting a component element of a ground of recovery or a defense and a judgment is rendered thereon, such judgment will not be reversed because the failure to object is considered a waiver of the defective submission of such issue.

Allen, 380 S.W.2d at 609 (citations omitted).

10 . Rule 279 governs omissions from the jury charge and provides in relevant part:

When a ground of recovery or defense consists of more than one element, if one or more of such elements necessary to sustain such ground of recovery or defense, and necessarily referable thereto, are submitted to and found by the jury, and one or more of such elements are omitted from the charge, without request or objection_ the trial court ... may ... make and file written findings on such omitted element or elements in support of the judgment. If no such written findings are made, such omitted element or elements shall be deemed found by the court in such manner as to support the judgment.

Tex.R.Civ.P. 279 (emphasis added).

11 . We do not necessarily disagree with the principles of law articulated by the dissent, but they are inapplicable under these circumstances since the trial court did not render judgment for Terri with respect to damages for emotional distress.

12 . The fee-shifting language of the current version of Article 21.21 is essentially the same. It provides that “any plaintiff who prevails may obtain ... the amount of actual damages plus court costs and reasonable and necessary attorneys’ fees.” Tex.Ins.Code art. 21.21, § 16(b)(1).

13 . Section 38.001 provides:

A person may recover reasonable attorney’s fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for: (1) rendered services; (2) performed labor; (3) furnished material; (4) freight or express overcharges; (5) lost or damaged freight or express; (6) killed or injured stock; (7) a sworn account; or (8) an oral or written contract.

TexCiv.Prac. & Rem.Code § 38.001.

14 . Consequendy, we do not reach the question of whether the attorney's fees were properly calculated, but note that in Great American Insurance Company v. North Austin Municipal Utility District No. 1, - S.W.2d - (Tex.1995), we expressly disapproved of the method of calculation used by the court of appeals in this case. Nor do we reach Terri’s point of error regarding the court of appeals’ refusal to treble the award of policy benefits or State Farm’s point of error regarding the court of appeals' trebling of prejudgment interest.