Motion for Rehearing Overruled. =
Affirmed and=20
Memorandum Opinion of August 16, 2007 Withdrawn, and Memorandum =
Opinion on=20
Rehearing filed October 25,=20
2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-06-00694-CV
____________
YIGAL=20
BOSCH, =
Appellant
V.
PROVIDENT=20
AMERICAN LIFE AND HEALTH INSURANCE COMPANY, =
Appellee
On Appeal from the =
113th District Court
Harris=20
County,=20
Texas
Trial Court Cause =
No. 03-21015B
M E M O R=20
A N D U M O P I N I O N O N R =
E H E A=20
R I N G
We=20
overrule Bosch=3Ds motion=20
for rehearing. The opinion of August 16, 2007 is withdrawn =
and this=20
opinion is substituted therefor. Yigal Bosch appeals from a =
summary=20
judgment in favor of Provident American Life and Health Insurance=20
Company. In five issues, Bosch argues that the trial court =
erred:=20
(1) in finding that Provident properly cancelled his insurance =
policy, (2)=20
in finding that Provident did not breach the insurance policy, (3) =
in=20
finding that he did not suffer mental anguish and damage to his =
credit as=20
a result of Provident=3Ds acts and=20
omissions, (4) in finding that Provident did not recklessly and=20
intentionally deny him coverage, and (5) by failing to make =
findings of=20
fact and conclusions of law. We affirm.
I. =20
Background
Bosch=20
originally filed claims against Provident, Dallas General Life =
Insurance=20
Co., and Ceres Group, Inc. alleging breach of contract and =
intentional,=20
negligent, and grossly negligent infliction of mental distress =
related to=20
health insurance policies he obtained or attempted to obtain from=20
them. The trial court granted summary judgment against all =
of=20
Bosch=3Ds=20
claims. On appeal, this Court reversed and remanded=20
Bosch=3Ds breach=20
of contract causes of action against Provident and Dallas General=20
(ABosch=20
I@). =20
Bosch v. Dallas Gen. Life Ins. Co., No. 14-04-00661-CV, =
2005 WL=20
757254, at *9 (Tex. App.CHouston=20
[14th Dist.] Apr. 5, 2005, no pet.) (mem. op.). We also =
reversed and=20
remanded certain damages claims related to Bosch=3Ds breach=20
of contract cause of action against Provident. The remainder =
of the=20
summary judgment was affirmed. Id.
Following=20
remand, Bosch amended his petition in an attempt to add claims =
against=20
Provident for (1) mental anguish, (2) damage to his credit, and =
(3)=20
reckless and intentional denial of his application for insurance =
in=20
violation of 42 U.S.C. Section 300gg. Provident moved for =
summary=20
judgment on both no-evidence and traditional grounds against all =
of=20
Bosch=3Ds claims=20
in its motion and supplemental motion for summary judgment. =
The=20
trial court granted summary judgment against Bosch on all claims =
except=20
his breach of contract cause of action. Provident filed a =
motion for=20
reconsideration with respect to the breach of contract cause of =
action,=20
upon which the trial court granted summary judgment. =
Following its=20
dismissal of all of Bosch=3Ds claims=20
against Provident, the trial court severed all claims against =
Provident=20
and directed that such cause be final.=20
II. =20
Standard of Review
In=20
considering the trial court=3Ds grant of=20
summary judgment, we utilize the normal standards of review. =
See Tex. R. Civ. =
P.=20
166a(c), (i); King Ranch, Inc. v. Chapman, 118 =
S.W.3d 742,=20
750B51 (Tex.=20
2003) (no-evidence standard); Nixon v. Mr. Prop. Mgmt. Co., =
690=20
S.W.2d 546, 548B49 (Tex.=20
1985) (traditional standard). The trial court in this case =
did not=20
designate which grounds it relied on in granting summary judgment; =
therefore, we must analyze all of the grounds and affirm on any of =
them=20
that are meritorious. See Provident Life & Accident =
Ins. Co.=20
v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
III. =20
Analysis
A. =20
Breach of Contract
In his=20
first two issues, Bosch contends that the trial court erred in =
granting=20
summary judgment on his breach of contract claim. In his =
first=20
issue, the contract provision alleged to have been breached (both =
now on=20
appeal and in Bosch I) is a notice provision in the insurance =
agreement=20
with Provident providing:
The covered=20
member=3Ds coverage under =
the policy=20
will end at 12:01 A.M. standard time in the covered =
member=3Ds state of =
residence on the=20
earliest of:
. . . the premium =
due date=20
following the date which we terminate all Certificates under this =
policy=20
in the covered member=3Ds state of =
residence on the=20
covered member=3Ds effective date of =
coverage.=20
We will give the covered member 90 days notice prior to the date =
of=20
termination and will offer the covered member coverage under any =
other=20
policy which we are currently marketing in the covered =
member=3Ds state; =
or
the=20
premium due date following the date which we terminate all =
Certificates in=20
the covered member=3Ds state of=20
residence on the covered member=3Ds=20
effective date of coverage. We will give the covered member 180 =
days=20
notice prior to the date of termination . . . . We can only=20
terminate the policy upon 90 days prior written notice if we offer =
the=20
policy holder coverage, on a guaranteed basis, under any other =
policy=20
which we are currently marketing or upon 180 days prior written =
notice if=20
we terminate all of our policies in the state of=20
delivery.
In Bosch=20
I, we found that Provident had not conclusively proven the =
provision of=20
proper advance notice of cancellation as required by the =
above-referenced=20
provision. Bosch, 2005 WL 757254, at *3. In =
this=20
appeal, Provident concedes a fact issue with regard to whether =
Bosch=20
received advance notice of cancellation under the =
policy=3Ds=20
termination provision.
Provident=20
argues that it could not have breached the contract with Bosch by =
failing=20
to give notice because no valid contract with Provident existed at =
the=20
time Bosch sought coverage. To recover under a breach of =
contract=20
cause of action, a plaintiff must show: (1) the existence of a =
valid=20
contract, (2) performance or tendered performance by the =
plaintiff, (3)=20
breach of the contract by the defendant, and (4) damages sustained =
as a=20
result of the breach. Renteria v. Trevino, 79 S.W.3d =
240, 242=20
(Tex. App.CHouston=20
[14th Dist.] 2002, no pet.). Provident, as movant for =
summary=20
judgment, had the burden to establish by competent summary =
judgment=20
evidence that there was no genuine issue of material fact as to =
one or=20
more essential elements of Bosch=3Ds cause of=20
action. See Elliott-Williams Co. v. Diaz, 9 S.W.3d =
801, 803=20
(Tex. 1999).
The=20
summary judgment record reflects that Bosch admitted receiving =
actual=20
notice that his policy had been cancelled on October 17, =
2001. Bosch=20
admits that he received replacement coverage from Dallas General =
effective=20
January 1, 2002. Bosch further admits that he incurred no =
additional=20
medical expenses before the Dallas General Coverage became=20
effective. Provident argues that even if the insurance =
certificate=20
had been in force, Bosch=3Ds coverage=20
terminated automatically by its own terms once Bosch received =
actual=20
notice of termination on October 17, 2001, then obtained =
replacement=20
coverage with another carrier. In support of its argument, =
Provident=20
cites two provisions in the insurance certificate, which provide =
that any=20
continuing coverage or converted coverage is automatically =
cancelled once=20
replacement coverage is obtained.
In=20
response, Bosch argues that Provident violated the provision in =
the=20
insurance agreement that states A[w]e can=20
only terminate the policy . . . upon 180 days prior written notice =
if we=20
terminate all of our policies in the state of =
delivery.@ =20
Bosch contends that because Provident did not offer him =
replacement=20
coverage, the policy was extended to 180 days from the date of =
notice,=20
which would have covered his medical expenses. However, =
Bosch did=20
not plead this claim at trial. In his amended petition, the =
only=20
claim Bosch raised with regard to breach of contract was the lack =
of=20
notice of cancellation. He did not raise the issue of =
replacement=20
coverage. We cannot consider any ground for reversal of =
summary=20
judgment that was not expressly presented to the trial =
court. See=20
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, =
678 (Tex.=20
1979).
Even if=20
Bosch had properly pled this theory, the insurance certificate was =
automatically cancelled under its own terms when Bosch obtained =
coverage=20
from Dallas General. Because Provident established as a =
matter of=20
law that no valid contract existed at the time medical expenses =
were=20
incurred, the trial court correctly granted summary judgment on =
the breach=20
of contract action. We overrule Bosch=3Ds first=20
and second issues.
B. =20
Damages
In his=20
third issue, Bosch contends that the trial court erred in finding =
no=20
mental anguish and damage to his credit resulting from=20
Provident=3Ds acts and=20
omissions. We first note that Bosch labeled these two claims =
as=20
separate causes of action in his amended petition following =
remand. =20
However, in Bosch I, which Bosch references as controlling to the=20
disposition of the claims in this appeal, we addressed these two =
claims as=20
damages related to Bosch=3Ds breach=20
of contract cause of action. See Bosch, 2005 =
WL=20
757254, at *4 (analyzing mental anguish and damage to credit under =
the=20
ADamages=20
Issues@ =
section). If we construe Bosch=3Ds claims=20
as damage issues related to his breach of contract cause of =
action, then=20
those damages fall with the breach of contract cause of action, =
which we=20
find was properly dismissed. Assuming arguendo that Bosch =
intends=20
for these claims to be separate causes of action, the trial court =
still=20
did not err in dismissing those claims. =20
With=20
respect to Bosch=3Ds mental=20
anguish cause of action, Bosch fails to offer any authority =
permitting a=20
separate cause of action for mental anguish. As mentioned =
above,=20
Bosch brought various claims in Bosch I for infliction of =
emotional=20
distress; however, dismissal of those claims was affirmed in Bosch =
I and=20
would therefore be precluded from being raised again on =
remand. =20
See Hudson, 711 S.W.2d at 630. As to his damage to =
credit=20
cause of action, Bosch again fails to cite any law providing for a =
separate cause of action. Although damages for harm to =
credit=20
reputation exist in law, such as under a violation of the Texas =
Deceptive=20
Trade Practices Act or Insurance Code, see Provident American =
Insurance=20
Co. v. Castaneda, 988 S.W.2d 189, 199 (Tex. 1998); =
St. Paul=20
Surplus Lines Insurance Co. v. Dal-Worth Tank Co., 974 S.W.2d =
51,=20
52B53 (Tex.=20
1998), Bosch has failed to offer any evidence supporting the =
elements of=20
such causes of action. Consequently, the trial court did not =
err in=20
dismissing Bosch=3Ds claims=20
for mental anguish and damage to his credit. We overrule=20
Bosch=3Ds third=20
issue.
C. =20
Violation of 42 U.S.C. ' =
300gg
In his=20
fourth issue, Bosch complains that the trial court erred =
Ain finding=20
that Provident did not recklessly and intentionally denied [sic] =
Bosch=20
coverage.@ =20
Bosch=3Ds amended=20
petition alleged that Provident Arecklessly=20
and intentionally@ =
denied=20
his application for insurance in violation of 42 U.S.C. =
' =
300gg C,=20
2, A. In arguing such a violation, Bosch alleged that after =
he=20
applied for coverage with Central Reserve Life Insurance =
(ACRL@), which=20
he claimed to be the alter-ego of Provident, CRL waited until the =
time=20
period under 42 U.S.C. ' =
300gg for=20
applying as an eligible individual for health coverage expired, =
thus=20
preventing him from Aobtaining=20
coverage under the eligible individual laws.@ =20
Setting aside the question of whether Bosch can bring a claim =
against=20
Provident for the actions of CRL, it is clear that no private =
right of=20
action exists under 42 U.S.C. ' =
300gg. See Univ. of Colo. Hosp. Auth. v. Denver=20
Publ=3Dg=20
Co., 340 F.=20
Supp. 2d 1142, 1145 (D. Colo. 2004); Brock v. Provident Am. =
Ins. Co.,=20
144 F. Supp. 2d 652, 657 (N.D. Tex. 2001); =
O=3DDonnell v.=20
Blue Cross Blue Shield of Wyoming, 173 F.=20
Supp. 2d 1176, 1180 (D. Wyo. 2001). We overrule =
Bosch=3Ds fourth=20
issue.
D. =20
Failure to File Findings of Fact and Conclusions of =
Law
In his=20
final issue, Bosch argues that the trial court reversibly erred by =
failing=20
to make findings of fact and conclusions of law upon his =
request. In=20
the context of summary judgment, it is improper for a trial court =
to make=20
findings of fact and conclusions of law. IKB Indus. =
(Nigeria)=20
Ltd. v. Pro‑Line Corp., 938 S.W.2d 440, 441 (Tex. 1997) =
(citing=20
Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994)); =
Baker=20
Hughes Oilfield Operations, Inc. v. Hennig Prod. Co., 164 =
S.W.3d 438,=20
442 (Tex. App.CHouston=20
[14th Dist.] 2005, no pet.). Bosch=3Ds=20
contention is therefore without merit. We overrule his final =
issue.
The=20
judgment of the trial court is affirmed.
/s/ =20
Adele Hedges
Chief =
Justice
Judgment=20
rendered and Memorandum Opinion on Rehearing filed October 25,=20
2007.
Panel=20
consists of Chief Justice Hedges and Justice Guzman and Senior =
Justice=20
Hudson.
At that point in time, the trial =
court had=20
also granted summary judgment with respect to all claims against =
Dallas=20
General; however, Dallas General still had a counterclaim pending =
against=20
Bosch.
Bosch would not be prevented from =
bringing=20
new causes of action on remand from Bosch I, assuming the new =
causes of=20
action are not substantially the same as issues already decided in =
Bosch=20
I. See Hudson v. Wakefield, 711 S.W.2d =
628,630=20
(Tex. 1986). Bosch, however, bases his argument in this =
appeal on=20
the law of the case from Bosch I in which we analyzed his mental =
anguish=20
and damage to his credit claims as damages related to his breach =
of=20
contract cause of action, suggesting that he intends the two =
claims to be=20
analyzed here as damage claims.
Senior Justice J. Harvey Hudson =
sitting by=20
=
assignment. |