Mai v. Farmers Texas County Mutual Ins. (Tex.App.- Houston [14th Dist.] May 7, 2009)
(Hedges)(automobile insurance, UIM coverage dispute, insurance coverage litigation)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-00958-CV Y Ngoc Mai and Huong Mai-Nguyen v. Farmers Texas County Mutual Insurance
Company
Appeal from 127th District Court of Harris County
Trial Court Judge: Sharolyn P. Wood
____________
Y NGOC MAI AND HUONG MAI-NGUYEN, Appellants
V.
FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, Appellee
On Appeal from the 127th District Court
Trial Court Judge: SHAROLYN P. WOOD
Harris County, Texas
Trial Court Cause No. 2005-74300
M E M O R A N D U M O P I N I O N
Appellants, Y Ngoc Mai and Huong Mai-Nguyen, appeal from a take-nothing judgment in their lawsuit
against appellee, Farmers Texas County Mutual Insurance Company. Appellants sued Farmers for
coverage of damages stemming from an automobile accident. Appellants specifically sought coverage
under the uninsured motorist provision of the policy, which requires that there have been contact
between the insured’s vehicle and the uninsured motorist’s vehicle. Appellants additionally alleged that
Farmers acted in bad faith in investigating and refusing to promptly pay the claims. After trial before a
jury, the court below granted a directed verdict against appellants’ bad faith claim, and the jury found
that there was no contact between the vehicle containing appellants and the alleged uninsured motorist’
s vehicle. In three issues, appellants contend that: (1) the trial court erred in refusing proposed jury
questions regarding the bad faith investigation claim; (2) the trial court erred in granting a directed
verdict against the bad faith investigation claim; and (3) the jury verdict on contact was against the great
weight and preponderance of the evidence. We affirm.
I. Background
It is undisputed that at the time of the accident made the basis of this lawsuit, Y Ngoc Mai and Huong Mai-
Nguyen, husband and wife, were insured by Farmers. As stated above, appellants sued Farmers for
coverage under the uninsured motorist provision of the insurance policy. This provision covers
damages caused by, among other things, a hit-and-run driver whose identity cannot be identified, so
long as the “uninsured vehicle” made “actual physical contact” with the vehicle driven by the insured.
Farmers purported to decline coverage based on an alleged lack of contact between the vehicles.
According to the police report filed regarding the accident in question, the accident occurred on
Interstate 95 in Sussex County, Virginia. Mai was driving another person’s Ford Expedition at the time of
the accident.
Only three witnesses testified at trial: Huong Mai-Nguyen and Y Ngoc Mai testified on their own behalf,
and Linda Ennis testified for Farmers. Mai-Nguyen testified that on September 6, 2004, while traveling
through Virginia, her husband, Mai, was driving while she was sitting in the back seat. Mai-Nguyen “was
closing her eyes but . . . wasn’t asleep deeply,” when she heard something hit the vehicle in which she
was riding. She opened her eyes as the vehicle spun and ran into trees on the side of the road. The
other vehicle did not stop. Mai was rendered unconscious in the accident and had to be “cut . . . out of
the car.” He was then flown by helicopter to a hospital. Mai-Nguyen suffered more minor injuries as a
result of the accident, and she testified regarding the treatment for those injuries and associated pain
and suffering. She further testified regarding her husband’s condition and about having to take care of
him without help from anyone else.
On cross-examination, asked whether she was sleeping or “just dozing off,” at the time of the accident,
Mai-Nguyen responded that she “was dozing off.” She admitted that she never saw the other vehicle
involved in the accident and did not see any impact between the two vehicles. She again testified that
she heard the impact. She said that she never had any direct contact with Farmers regarding the claim
but relied on her attorney to communicate with Farmers.
Mai testified that he remembers that a vehicle in the lane to the right swerved into his lane while passing
and hit the right front portion of his vehicle. He remembers hearing the impact of the collision but does
not recall how hard the impact was. The vehicle Mai was driving then went to the left and struck an
object. He said that he does not remember any more about the accident. He said that he never spoke
regarding the accident to the police, Farmers, or State Farm (the insurer of the vehicle that appellants
were in at the time of the accident). In fact, no one took a statement from him regarding the accident
until his deposition. Mai further testified about the physical injuries and limitations and the pain and
suffering he has endured as a result of the accident. Mai suggested that the police report, discussed in
detail below, might be incorrect because the other vehicle “hit on the right-hand side [of] the front end of
[Mai’s] vehicle.”
Linda Ennis testified that she is the Farmers claims representative who handled appellants’ claims. She
recounted gathering information from the law firm representing appellants (appellants having obtained
legal representation before filing a claim), as well as from State Farm. She further explained what she
personally did to investigate the claim. When she requested an opportunity to interview Mai, someone
named Alice at the law firm representing appellants told Ennis that Mai “didn’t remember the accident at
all.” Ennis relied on this representation in concluding that there would be no point in taking Mai’s
statement. Ennis did take a statement from Mai-Nguyen. According to Ennis, Mai-Nguyen explained that
she was sitting in the vehicle’s middle row, “just . . . closing her eyes to sleep,” when she heard a “bang,”
and the vehicle started “losing control.” Also according to Ennis, Mai-Nguyen was not able to say
definitely whether another vehicle had been involved in the accident.
Ennis also testified regarding the police report which was admitted as an exhibit at trial. According to
Ennis, the report showed that there was no contact between the vehicle appellants were in and the
vehicle that allegedly forced them off the road. This testimony appears to be a reasonable conclusion
from the report itself. First, the report’s diagram of the damage to appellants’ vehicle shows no damage
to the passenger side as a result of the accident. The instructions on the report direct the officer to
“circle initial impact”; the circled areas in the diagram are all on the left side and roof, not the passenger’
s side. Second, the description of the accident in the report mentions contact with trees after the vehicle
left the roadway but does not indicate that any contact occurred with another vehicle. The report
specifically says that the other vehicle “cut-off” appellants’ vehicle, not that it “hit,” “contacted,” or
“forced” appellants’ vehicle from the road. Third, the diagram of the accident clearly shows contact with
first a stand of small trees and then a stand of large trees just off the roadway, but it does not show any
contact with another vehicle.[1]
Ennis further testified that she requested information from appellants’ attorney’s office for the purpose of
locating other passengers in the vehicle at the time of the accident. She was told that they would “follow
up and call back.” She eventually managed to speak with one of the front seat passengers, Truong
Phouc, and after she did so, Farmers determined to deny appellants’ claims under the uninsured
motorist provision because of a lack of contact between the vehicle appellants were in and any other
vehicle.[2] The decision was based on everything Ennis had learned during her investigation, including
information in the police report, Mai’s purported inability to recall the accident, Mai-Nguyen’s admission
that her eyes were closed at the time of the accident, the statements made by Truong, and the results of
the prior investigation performed by State Farm.
On cross-examination, Ennis acknowledged that her notes from the conversation she had with someone
at appellants’ attorney’s office actually state that A[Alice] is not certain if he [Mai] remembers facts . . . .”
On re-direct, Ennis reiterated that it was her understanding from the conversation with Alice that Mai
“had no information to provide . . . because of his memory loss.” Ennis further stated that no one ever
called her back to say that Mai was ready to give a statement. Ennis lastly commented that it was
difficult to locate eyewitnesses associated with this claims file, despite her diligent efforts to do so. The
record also contains a printout from a Farmers claims database, in which notes were entered detailing
Ennis’s investigation of appellants’ claims.
Post-accident photographs taken of the vehicle in which appellants rode are of little value. Most of the
photographs are of the driver’s side, which sustained considerable damage from the impact with the
trees. In the only photograph showing the passenger’s side (the side that was allegedly contacted by
the other vehicle) a blue tarp obscures most of the vehicle. The photograph does show a dent located
on the passenger side of the front bumper, but there is no way to tell whether the dent was caused by
contact with another vehicle. Mai acknowledged in his testimony that photographs taken at the impound
lot, such as this one, appear to show damage to the vehicle that does not appear in photographs taken
at the scene of the accident. Specifically, the driver’s side of the front bumper has considerable damage
at the impound lot and appears pristine at the scene of the accident. This discrepancy in the
photographs suggests that the front bumper was damaged in transport from the scene.
In their brief, appellants also reference a “mark” on the right front of the vehicle; however, appellants are
not specific as to where this supposed mark is to be found. The photograph of the passenger’s side
does show some white patches on the ledge below the headlight and on the flat piece in front of the
headlight. These patches appear more likely to be reflections of sun or clouds than markings from
another vehicle. Possible scuff marks also appear at the bottom of the bumper. It is impossible to tell
the cause; they may have occurred during transit.
After both sides rested, the trial court granted a directed verdict against appellants’ bad faith
investigation claims. The court also rejected proposed jury questions on these claims.
In the charge, Jury Question No. 1 was submitted as follows:
On September 6, 2004, was the occurrence in question caused by an uninsured motor vehicle?
An uninsured motor vehicle is a hit and run vehicle whose operator or owner cannot be identified and
which makes [sic] actual physical contact with the vehicle being driven by Y NGOC MAI.
The jury answered “no.” Because of this negative response, the jury did not answer any other questions
in the charge, including an inquiry as to whether the unidentified driver proximately caused the accident,
and what sum of money would compensate appellants for their injuries. The trial court entered a take-
nothing final judgment consistent with its directed verdict and the jury’s answer to Question No.1.
II. Evidence of Contact
We begin with appellants’ third issue, in which they contend that the jury’s finding of no contact between
the vehicle driven by Mai and another vehicle was against the great weight and preponderance of the
evidence. We utilize the normal standards of review in considering this challenge to the factual
sufficiency of the evidence. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998).
Appellants emphasize their own testimony in asserting that there was contact between the vehicle that
they were in and another vehicle. Mai-Nguyen testified to hearing something hit the vehicle as she was
falling asleep. Mai also testified about hearing an impact when the other vehicle swerved towards the
one he was driving. As sole judge of the credibility of the witnesses and the weight to be assigned their
testimony, the jury was free to disregard appellants’ self-serving testimony. See City of Keller v. Wilson,
168 S.W.3d 802, 819 (Tex. 2005); Rosenblatt v. Freedom Life Ins. Co. of Am., 240 S.W.3d 315, 319
(Tex. App.-Houston [1st Dist.] 2007, no pet.). The jury could have reasonably discounted Mai’s
testimony because he acknowledged he had very limited memory of the accident, and there was
evidence suggesting that he previously did not remember anything about the accident. Similarly, the
jury could have discounted Mai-Nguyen’s testimony because she was falling asleep at the time of the
accident and did not actually see another vehicle, much less see one strike the vehicle in which she was
riding. Farmers’ counsel even suggested during closing argument that Mai-Nguyen may have felt the
vehicle she was in strike the small trees noted in the police report and may have mistaken that impact for
impact with another vehicle.
Appellants further emphasize that the police report of the accident does not expressly state that there
was no impact between vehicles. On the other hand, the detailed police report also does not contain
any indication that there was contact. The damage diagram in the report shows no damage to the
passenger’s side. In his report, the investigating officer noted contact with small and large trees after
the vehicle left the roadway but did not suggest that any contact occurred with another vehicle. Further,
he stated that the other vehicle “cut-off” appellants’ vehicle, not that it “hit,” “contacted,” or “forced” the
vehicle from the road. Lastly, the officer’s diagram of the accident again clearly shows contact with the
two stands of trees but does not show any contact with another vehicle. Contrary to appellants’
argument, the jury could have determined that the absence of any indication of contact in the fairly
detailed police report supported the conclusion that there was no contact.
In his report, the officer also lists, in addition to appellants, four other occupants of the vehicle driven by
Mai. The jury could reasonably have found it significant that none of these apparent acquaintances
testified at trial in support of appellants’ version of events. Furthermore, in her testimony, Linda Ennis,
Farmers’ claims representative, testified that shortly after she interviewed one of the other passengers,
Farmers denied appellants’ claim due to a lack of contact with another vehicle.
Lastly, appellants point to the one admitted photograph of the passenger’s side of the vehicle. Although
this photograph is evidence that the vehicle was damaged on the passenger’s side at some point, it is
not particularly suggestive of contact with another vehicle. For one thing, the police report does not
indicate any damage in that location immediately after the accident. Furthermore, as discussed above,
the admitted series of photographs appears to demonstrate that the vehicle’s front bumper sustained
damage either while being transported to the impound lot or at the impound lot itself. Based on these
two facts, the jury could well have concluded that the bumper damage was not caused by impact with
another vehicle at the time of the accident. Although appellants reference a “mark” on the right front of
the vehicle, they do not specifically identify its location. The small white patches on the vehicle appear
more likely to be reflections of sun or clouds than impact markings, and it is impossible to tell what may
have made scuff marks on the bottom of the bumper near the aforementioned dent. In short, the
photographs do not necessarily demonstrate that the vehicle Mai was driving was struck by another
vehicle.
Based on the foregoing analysis, we cannot say that the jury’s verdict was against the great weight and
preponderance of the evidence. Accordingly, we find that the evidence was factually sufficient to
support the verdict and overrule appellants’ third issue.
III. Directed Verdict
We now turn to appellants’ second issue in which they contend that the trial court erred in granting a
directed verdict against their bad faith investigation claims. Section 541.060 of the Texas Insurance
Code provides as follows:
§541.060. Unfair Settlement Practices
(a) It is . . . an unfair or deceptive act or practice in the business of insurance to engage in the following
unfair settlement practices with respect to a claim by an insured or beneficiary:
. . . .
(7) refusing to pay a claim without conducting a reasonable investigation with respect to the claim . . . .
Tex. Ins. Code §541.060. Section 541.151 of the Insurance Code authorizes A[a] person who sustains
actual damages” to bring a private action “for those damages” caused by unfair or deceptive acts or
practices in the business of insurance. Id. §541.151. Thus, clearly, in order to have a viable cause of
action for unfair or deceptive acts or practices under the Code, a plaintiff must present evidence of
damages. See id.; Provident Am. Ins. Co. v. Castaneda, 988 S.W.2d 189, 198 (Tex. 1998) (explaining
that a bad faith investigation claim requires proof of damages resulting from the failure to properly
investigate).
In moving for a directed verdict on the bad faith investigation claims, Farmers listed three grounds,
including that appellants offered no evidence of damages stemming from the alleged bad faith
investigation. In their brief, appellants point to evidence that they contend establishes that Farmers
failed to properly investigate their claims, but they point to no evidence of any damages resulting from
such investigative failure. They simply do not address the element of damages. During oral argument,
when asked whether there was any evidence adduced regarding bad faith investigation damages,
appellants’ counsel suggested that all of the damages evidence at trial was relevant to the bad faith
claims because appellants’ claims had been denied. This position, that expected policy benefits can
equate to bad faith damages, has been firmly rejected by the Texas Supreme Court. See Castaneda,
988 S.W.2d at 198; Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex. 1995).
Because appellants fail to cite any evidence in the record supporting the required damages element for
their bad faith investigation claims, we cannot hold that the trial court erred in granting a directed verdict
against those claims. Accordingly, we overrule appellants’ second issue.
IV. Jury Charge Questions
In their first issue, appellants contend that the trial court erred in refusing to submit their proposed jury
questions on their bad faith investigation claims. Under this issue, appellants make practically the same
arguments that they made under their second issue, i.e., that there was plenty of evidence that Farmers
failed to properly investigate their claims. Again, appellants have failed to address the question of
whether any damages flowed from the failure to properly investigate. To be entitled to submission of a
cause of action to the jury, a plaintiff must present evidence supporting each of the elements of that
cause of action. See C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 792 (Tex. App.-Houston [1st
Dist.] 2004, no pet.); Rente Co. v. Truckers Exp., Inc., 116 S.W.3d 326, 332-34 (Tex. App.-Houston
[14th Dist.] 2003, no pet.); Nelson v. Clements, 831 S.W.2d 587, 590 (Tex. App.-Austin 1992, writ
denied). Without evidence of damages resulting specifically from the alleged failure to properly
investigate, appellants were not entitled to have the bad faith investigation claims submitted to the jury.
Appellants, however, additionally contend that the trial court’s refusal to submit bad faith related jury
questions, in effect, forced the jury to take Farmers’ due diligence as a given. Moreover, according to
appellants, taking Farmers’ due diligence as a given unduly influenced the jury to conclude that there
was no contact between the two vehicles and thus no coverage. In support of this contention, appellants
cite Rivera v. Herndon Marine Products, Inc., 895 S.W.2d 430 (Tex. App.-Corpus Christi 1995, writ
denied). In Rivera, the captain of a shrimp boat brought an action for injuries sustained on the vessel;
among other things, he claimed that the unseaworthiness of the vessel proximately caused his injuries.
895 S.W.2d at 432. Finding that there was evidence to support this claim, the court of appeals held that
the trial court erred in not submitting the seaworthiness issue to the jury. Id. at 433-35. In Rivera, the
seaworthiness issue was directly related to the captain’s damages claims; in other words, he claimed
that the unseaworthiness caused his damages. Here, any finding of failure to properly investigate would
not by itself mean that the claims were covered under the insurance policy; in other words, the alleged
failure to properly investigate did not result in the claimed damages. See Castaneda, 988 S.W.2d at
198; Stoker, 903 S.W.2d at 341. Thus, Rivera does not support appellants’ contention that the trial
court erred in refusing jury questions on bad faith.
Furthermore, the record does not support appellants’ fear that the jury interpreted the lack of a
submission on bad faith investigation as suggesting that Farmers performed a diligent and complete
investigation. The record instead reveals that the jury was told nothing about the bad faith claims after
the directed verdict was granted outside their presence. The jury charge does not reference them, the
judge did not mention them before the jury retired for deliberations, and neither counsel mentioned them
in closing argument. Moreover, the judge instructed the jury in the charge to base its answers solely on
the evidence presented. In the absence of any evidence to the contrary, we assume the jury followed
that instruction. See Phillips v. Phillips, 820 S.W.2d 785, 787 n.2 (Tex. 1991); In re K.C., 219 S.W.3d
924, 932 (Tex. App.-Dallas 2007, no pet.). Accordingly, we overrule appellants’ first issue.
We affirm the trial court’s judgment.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.
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[1] The report also shows that there were six occupants in the wrecked vehicle, including appellants and
four others. The report does not specify how the information recounted therein was obtained.
[2] Ennis was not permitted to testify regarding what Truong told her because of the evidentiary rules
barring hearsay testimony.