the Methodist Hospital v. Zurich American Insurance Company, Tamera McKinney and Mary Vu

• Court: Court of Appeals of Texas
• Decided: July 7, 2009
• Docket: 14-07-00663-CV
• Status: Published

Opinion

Affirmed and Majority and Concurring Opinions filed July 7, 2009

Affirmed and Majority and Concurring Opinions filed July 7, 2009.

In The

Fourteenth Court of Appeals

_______________

NO. 14-07-00663-CV

THE METHODIST HOSPITAL, Appellant

V.

ZURICH AMERICAN INSURANCE COMPANY, TAMERA McKINNEY AND MARY VU, Appellee

On Appeal from the 280th District Court

Harris County, Texas

Trial Court Cause No. 2006-60720

C O N C U R R I N G   O P I N I O N

The majority correctly concludes that the insurer does not owe the named insured a negligence duty as a matter of law.  This conclusion, however, should be grounded on precedents from the Supreme Court of Texas rather than on section 2053.203 of the Texas Insurance Code and the decision of a sister court of appeals. 

The Contracts

Appellee Zurich American Insurance Company (AZurich@) issued two insurance policies under which Zurich is the insurer and appellant The Methodist Hospital (AMethodist@) is the named insured.  Each of these policies is entitled AWorkers= Compensation and Employers Liability Insurance Policy,@ and the portions of each relevant to this case are identical.  In pertinent part, these policies provide as follows:

!         Zurich agrees to promptly pay, when due, the benefits required of Methodist by the workers= compensation law.

!         Zurich has the duty to defend Methodist at Zurich=s expense against any claim, proceeding, or suit for workers= compensation benefits payable by this insurance. 

!         Zurich has the right to investigate and settle these claims, proceedings, or suits.

!         Terms of the workers= compensation insurance that conflict with the workers= compensation law are changed to conform to that law.

!         Workers= compensation claims for bodily injury are subject to a $1 million deductible for each accident.  Methodist agrees to reimburse Zurich for claims that Zurich handles and pays within this deductible.

Zurich and Methodist also entered into a ADeductible Agreement,@ in which they further detailed the manner in which Methodist would reimburse Zurich for claims Zurich handled and paid that are within the policies= deductibles.

Zurich=s Arguments Regarding Methodist=s Negligence Claim

In its summary-judgment motion and on appeal, Zurich has challenged Methodist=s negligence claim by asserting that Zurich owes Methodist no negligence duty.  Zurich argues that Texas law does not recognize a negligence duty from an insurer in favor of its insured, other than the Stowers^[1] duty, which is not involved in this case.  In this argument, Zurich relies heavily on our sister court=s opinion in Wayne Duddlesten, Inc. v. Highland Insurance  Company, 110 S.W.3d 85, 97 (Tex. App.CHouston [1 Dist.] 2003, pet. denied).

Methodist=s Arguments Regarding its Negligence Claim

In challenging the trial court=s summary judgment as to its negligence claim, Methodist asserts the following arguments:

!         The workers= compensation claims in question (those filed by Judith Riegert and Ana Fulton-Perez) were within the $1 million deductible.  As to these claims, Methodist is Aa self-insured entity,@ and Zurich did not act as Methodist=s insurer.  Rather, Zurich acted as Methodist=s Aagent for administering workers= compensation claims.@

!         Zurich is Methodist=s agent both under the parties= contracts and under section 2053.203 of the Texas Insurance Code.

!         Under Texas common law, agents owe general negligence duties to their principals.

!         The no-duty rule raised by Zurich does not apply in this case because Zurich acted as Methodist=s Aclaims servicing agent@ rather than its insurer.

!         The Supreme Court of Texas repeatedly has confirmed that Texas law provides a claim for negligent performance of a contract.  Therefore, Methodist has a claim for Zurich=s negligent performance of its contract.

!         Because Zurich was promptly reimbursed from an escrow account funded by Methodist for all payments Zurich made on claims within the deductibles, the payments made on the claims in question were made with Methodist=s money, not with Zurich=s money.  Because Zurich was spending Methodist=s money, the no-duty rule advocated by Zurich does not apply.

Texas Negligence Law Regarding Insurers Handling Third-Party Claims Against Insureds

For decades, Texas courts have recognized a negligence duty owed by an insurer to its insured, that being the duty recognized in Stowers Furniture Company v. American Indemnity Company, 15 S.W.2d 544 (Tex. Comm=n App.1929, holding approved).  In Ranger County Mutual Insurance Company v. Guin, the Supreme Court of Texas indicated that insurers owe their insureds a general negligence duty regarding the insurer=s handling of third-party claims against the insured.  See 723 S.W.2d 656, 659B60 (Tex. 1987).  The Ranger court rejected the insurer=s argument that an insured=s negligence duty to its insured is limited to the Stowers duty.  See id.  In doing so, the Ranger court made the following points:

!         If, under the insurance policy, the insurer has a duty to defend the insured against third-party claims as well as the right to control the defense of these claims, then the insurer is the agent of the insured.

!         In such a case, any negligence on the insurer=s part would support a negligence claim by the insured against the insurer.

!         The insurer=s negligence duty is not limited to the Stowers duty; rather, this duty Aextends to the full range of the agency relationship.@

See id. at 659B60.  In sum, the Ranger court stated that an insurer having a duty to defend and right to control the defense of third-party claims owes its insured a general negligence duty based on the agency relationship the insurer has with its insured.

Though in Ranger the Supreme Court of Texas seemed to expand an insurer=s negligence duty beyond the Stowers duty, the high court later held that this language was dicta and that Ranger did not expand the negligence duty owed by insurers beyond the duty recognized in Stowers.  See American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 849 (Tex. 1994).  In Garcia the Supreme Court of Texas also concluded that an insurer=s Stowers duty is not activated unless (1) the claim against the insured is within the scope of coverage; (2) a settlement demand is made that is within the policy limits; and (3) the terms of the demand are such that an ordinarily prudent insurer would accept it, considering the likelihood and degree of the insured=s potential exposure to an excess judgment.  See id. 

The Supreme Court of Texas later concluded that, in the context of an insurer that has a duty to defend its insured against third-party claims, ATexas law recognizes only one tort duty in this context, that being the duty stated in Stowers . . . .@ Maryland Ins. Co. v. Head Indus. Coatings & Serv., Inc., 938 S.W.2d 27, 28 (Tex. 1996) (per curiam); see also Texas Farmers Ins. Co. v. Soriano, 881 S.W.2d 312, 318 (Tex. 1994) (Cornyn, J., concurring).  Based on this line of cases, the United States Court of Appeals for the Fifth Circuit has held that, under Texas law, the only negligence duty owed by insurers in this context is the Stowers duty.  See Ford v. Cimarron Ins. Co., 230 F.3d 828, 831B32 (5th Cir. 2000).  In sum, the Supreme Court of Texas has articulated a rule that, in the context of an insurer with a duty to defend its insured against third-party claims, the insurer owes only one common-law tort duty to its insured, that being the Stowers duty.  See Maryland Ins. Co., 938 S.W.2d at 28; Garcia, 876 S.W.2d at 849

Failure of Methodist=s Arguments under Binding Precedent

Methodist is not alleging in this case that Zurich breached the Stowers duty.  Instead, Methodist alleges Zurich was negligent in handling and paying workers= compensation claims asserted against Methodist. The crux of Methodist=s main issue is that Zurich is not acting as an insurer for claims within the $1 million deductible and therefore, the no-duty rule established by the Supreme Court of Texas does not apply.  However, under the unambiguous language of the insurance policies and the Deductible Agreement, Zurich is Methodist=s insurer and has the duty to promptly pay when due workers= compensation benefits to Methodist=s employees.  In the policies, the parties describe the workers= compensation benefits as Abenefits payable by this insurance.@  Methodist promises to reimburse Zurich for claims within the $1 million deductible, and the parties established a Methodist-funded escrow account by which Zurich is to be reimbursed weekly for the amounts Methodist owes under this reimbursement obligation.  Though none of the past precedents in this area have involved this exact arrangement between the insurer and its insured, Zurich is nonetheless Methodist=s insurer, handling and defending third-party claims against Methodist.  In addition, Methodist has not cited and research has not revealed authority that would support an exception to the no-duty rule if (1) the insurance policy has a high deductible, (2) the insurer is the insured=s claims servicing agent, (3) the insured reimburses the insurer for payments within the deductible, or (4) the insured funds an escrow account that promptly reimburses the insurer for payments made on claims within the deductible.  See Wayne Duddlesten, Inc. v. Highland Ins. Co., 110 S.W.3d 85, 96B97 (Tex. App.CHouston [1st Dist.] 2003, pet. denied) (applying no-duty rule to workers= compensation insurer even though, under a premium payment plan, insured would reimburse insurer for claims paid under the insurance).^[2]  Therefore, under binding precedent from the Supreme Court of Texas, Zurich does not owe the negligence duty alleged by Methodist.^[3]  See Maryland Ins. Co., 938 S.W.2d at 28; Garcia, 876 S.W.2d at 849; see also Ford, 230 F.3d at 831B32.

Though Methodist does not cite the Ranger case in its argument, Methodist=s emphasis on a common-law or statutory agency relationship^[4] as the source of Zurich=s purported negligence duty is reminiscent of the language from Ranger that the Supreme Court of Texas later disavowed as dicta.  See Ranger County Mut. Ins. Co., 723 S.W.2d at 659B60; see also Garcia, 876 S.W.2d at 849.

 The insurers in Maryland Insurance Company and Garcia acted as the insureds= claims-handling agent, yet the Supreme Court of Texas still found the insurers owed no negligence duty other than the Stowers duty.  See Maryland Ins. Co., 938 S.W.2d at 28; Garcia, 876 S.W.2d at 849.  As an intermediate court of appeals, we are bound by this no-duty rule, and we must leave any consideration of changing that rule to our high court.^[5]  See In re K.M.S., 91 S.W.3d 331 (Tex. 2002).  

/s/        Kem Thompson Frost

Justice

Panel consists of Justices Frost, Seymore, and Guzman. (Seymore, J., majority).

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^[1]  See Stowers Furniture Co. v. American Indem. Co., 15 S.W.2d 544, 546B48 (Tex. Comm=n App. 1929, holding approved).

^[2]  Zurich relies on the Wayne Duddlesten case in its no-duty argument, and Methodist asserts that this case is distinguishable.  Nonetheless, the majority attaches undue importance to the issue of whether the Wayne Duddlesten case is on point.  See ante at pp. 8, 16 (phrasing issue in terms of whether the Wayne Duddlesten case Acontrols@ in this case), p. 13 (concluding that ATexas law negates Methodist=s contention that Zurich owed a duty to perform with care,@ without discussing applicable authority from the Supreme Court of Texas).  The facts of the Wayne Duddlesten case are not the same as the facts in this case, and even if they were, a decision of a sister court of appeals cannot control the outcome in this case.  See Chrismon v. Brown, 246 S.W.3d 102, 111 n.8 (Tex. App.CHouston [14th Dist.] 2007, no pet.).  On the other hand, this court must follow a rule established by the Supreme Court of Texas as long as the rule has not been abandoned by that high court or superseded by statute.  See In re K.M.S., 91 S.W.3d 331 (Tex. 2002).

^[3]  The majority correctly concludes that Methodist and Zurich have an insured/insurer relationship regarding claims within the deductible.  However, the only issue the majority discusses in reaching this conclusion is whether section 2053.203 of the Texas Insurance Code applies. See ante at pp. 10B13. The relationship between Methodist and Zurich would be an insured/insurer relationship regardless of whether section 2053.203 of the Texas Insurance Code applies.  In addition, Methodist cites common-law agency cases and argues that Zurich owes a negligence duty to Methodist under the common law of agency.  By limiting its analysis to section 2053.203 of the Texas Insurance Code, the majority does not address this argument. 

^[4]  The majority incorrectly indicates that Methodist argues Zurich is an agent based only on the purported applicability of section 2053.203 of the Texas Insurance Code.  See ante at pp. 10B13.  Instead, Methodist alleges that Zurich is its agent both under this statute and under the common law based on the parties= contract.  Even if Zurich were an agent under both the common law and this statute, that would not make the Supreme Court of Texas=s no-duty rule inapplicable.  This court need not and should not address whether section 2053.203 of the Texas Insurance Code applies to the policies in this case. 

^[5]  Methodist=s assertion that the negligent performance of any contract gives rise to a negligence claim is not correct.  See Southwestern Bell Tel. Co v. DeLanney, 809 S.W.2d 493, 494B95 (Tex. 1991); Janicek v. KIKK, Inc., 853 S.W.2d 780, 782 (Tex. App.CHouston [14th Dist.] 1993, writ denied).  The no-duty rule outlined above is one of the instances in which the Supreme Court of Texas has not recognized a negligence claim, even though a party alleges negligent performance of the contract by another contracting party.  See Maryland Ins. Co., 938 S.W.2d at 28; Garcia, 876 S.W.2d at 849.