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Insurance Law SMU Law Review Volume 47 Issue 4 Annual Survey of Texas Law Article 18 1994 Insurance Law Philip K. Maxwell Tim Labadie Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Philip K. Maxwell & Tim Labadie, Insurance Law, 47 SMU L. REV. 1227 (1994) https://scholar.smu.edu/smulr/vol47/iss4/18 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. INSURANCE LAW Philip K. Maxwell* Tim Labadie* I. UNFAIR OR DECEPTIVE ACTS (ARTICLE 21.21 & THE DTPA) A. WHO CAN SUE AND WHO CAN BE SUED 1. Standing to Sue OME of the cases discussed in this section deny "standing" to sue under article 21.21 to so-called "third parties," i.e. those not a party to an insurance contract. Use of the words "standing" and "third party," however, are of doubtful application to a statutory cause of action. The San Antonio Court of Appeals had the following to say about "stand- ing" in a DTPA suit: In order for any person to maintain a suit it is necessary that they have standing to litigate the matters in issue. Standing consists of some inter- est peculiar to the person individually and not as a member of the gen- eral public. This general rule of standing applies in all cases absent a statutory exception to the contrary. The DTPA provides us with just an exception. 1 The San Antonio court then noted that "[i]n Riverside National Bank v. Lewis, 603 S.W.2d 169, 173 (Tex. 1980), the court ruled that it is the statu- tory definition of consumer that delineates the class of persons that may maintain a private cause of action." 2 Since both the DTPA and article 21.21's private damage remedies were passed as part of the same legislation in 1973, since the two statutes are clearly in pari materia by virtue of their express cross references to each other, since article 21.21 expressly provides that "any person" who is dam- aged may sue and article 21.21 defines "person" to include any person or entity and which, unlike the definition of "consumer," does not require the actual or prospective purchase of anything, you would think it pretty clear that anyone and everyone injured by another's engaging in unfair practices in the business of insurance can sue under the statute. But as some of the article 21.21 cases discussed below show, plaintiffs damaged by unfair claims settlement practices have been pitched out of * B.A., University of Texas at Austin; J.D., University of Texas at Austin, School of Law. Partner, Longley & Maxwell, L.L.P., Austin, Texas. ** B.A., Wheaton College, Wheaton, Illinois; J.D., University of Texas at Austin, School of Law. Associate, Longley & Maxwell, L.L.P., Austin, Texas. 1. Government Employees Credit Union v. Fuji Photo Film, 712 S.W.2d 208, 213 (Tex. App.-San Antonio 1986, writ ref d n.r.e.). 2. Id. at 213. 1227 1228 SMU LAW REVIEW [Vol. 47 court even though they are within the statutory definition of "the class of person that may maintain a private cause of action" and even though they have suffered damage distinct from that suffered by the general public. Clearly, these decisions are not explained by traditional "standing" analysis. The term "third party" is also suspect. The question is "third party" to what? Obviously, some of the cases discussed below testify that it is good advocacy to distance the plaintiff as far as possible from whatever agreement the wrongful acts or practices are being performed under, and "third party" is a good start. From there it won't be long before the plaintiff becomes a total "stranger" to the whole transaction and should be run out of town on a rail. The question is not whether use of the term "third party" makes good advocacy, but whether its use is intellectually defensible when dealing with a statutory cause of action that does not require that the plaintiff have a con- tract with the defendant. The source of the plaintiff's rights in an article 21.21 case derive from the statute itself, not from the law of contract. In- deed, it was the inadequacies of the common law of contract and fraud that 3 led to the passage of article 21.21 and the DTPA in the first place. Section 16 of article 21.21 grants a cause of action to "any person who has sustained actual damages as a result of another's engaging in" conduct pro- hibited in section 4 of article 21.21, the rules and regulations adopted by the State Board of Insurance, or section 17.46 of the DTPA. 4 Section 2, in turn, defines "person" as any 5 individual, corporation, association, partnership, reciprocal exchange, inter-insurer, Lloyds insurer, fraternal benefit society, and any other legal entity engaged in the business of insurance, including agent, brokers, adjusters, and life insurance counselors. 6 Inexplicably, even though the only statutory limitation placed on a person's standing to sue under article 21.21 is that such person must have sustained actual damages as a result of the other person's illegal conduct, some courts, as will be seen below, have required that the "person" also be an insured or beneficiary. Not all courts, however, engage in such judicial legislation, but instead apply the statute as written. For example, in Maccabees Mutual Life Insurance Co. v. McNiel,7 the court allowed a person to maintain an action under arti- cle 21.21 even though he was neither an insured nor a beneficiary of an in- surance policy. In Maccabees the Dallas County Hospital District (DCHD) sought to ob- tain group life insurance coverage for its employees through Maccabees. Whyburn, a Maccabees group sales representative, told DCHD that he had authority to bind coverage as a representative of Maccabees, and that cover- 3. See Smith v. Baldwin, 611 S.W.2d 611 (Tex. 1981). 4. TEX. INS. CODE ANN. art. 21.21, § 16(a) (Vernon Supp. 1993). 5. Texas courts have always interpreted the term "any" found in statutes as "equivalent to and ha[ving] the force of 'every' and 'all'." Hime v. City of Galveston, 268 S.W.2d 543, 545 (Tex. Civ. App.-Waco 1954, writ ref'd n.r.e); accord Branham v. Minear, 199 S.W.2d 841, 846 (Tex. Civ. App.-Eastland 1947, writ refd n.r.e.); Doherty v. King, 183 S.W.2d 1004, 1007 (Tex. Civ. App.-Amarillo 1944, writ dism'd). 6. TEX. INS. CODE ANN. art. 21.21, § 2(a) (Vernon Supp. 1993) (emphasis added). 7. 836 S.W.2d 229 (Tex. App.-Dallas 1992, no writ). 1994] INSURANCE LAW 1229 age would be in force upon payment of $15,000. DCHD paid the $15,000 and Whyburn completed an application for DCHD on which he wrote: "All actively not at work will be insured and the non-active waiver clause will be waived." About a month and a half after DCHD paid the $15,000, Maccabees sent a letter to DCHD declining the application because lists of inactive employ- ees were incomplete and did not indicate the reasons for inactive status. Prior to this, Vivien McNiel, an active employee of the hospital gift shop, died. Her beneficiary, Tom McNiel, presented DCHD with a claim for $37,900. Maccabees did not pay because no policy had been issued by Mac- cabees. McNiel then demanded payment from DCHD and Maccabees. Af- ter a bench trial, a judgment was rendered against Maccabees and in favor of McNiel under article 21.21. Maccabees argued to the court of appeals that McNiel could not recover under article 21.21 because there was no privity between the parties as no insurance policy had ever been issued. The court disagreed, holding that "article 21.21, § 16 allows recovery by 'any person who has sustained actual damages' without imposing a requirement that the claimant be a policyholder." 8 The court in Benefit Trust Life Insurance Co. v. Littles9 also refused to require that the plaintiff be an insured or beneficiary before maintaining suit under article 21.21. Leslie Littles sued Benefit Trust, the administrator of his employer's health plan, for its failure to pay medical bills incurred for treatment of second and third-degree burns he suffered. After a jury trial, Littles obtained a judgment against Benefit Trust. Benefit Trust argued on appeal that Littles had no standing to sue under article 21.21 of the Insurance Code because he was not an intended third- party beneficiary of the administration contract between Benefit Trust and the City of Victoria, Littles' employer. The court held that there is a pre- sumption against contracts creating the status of an intended third-party beneficiary. Before such status could be established, Littles had to prove that the contracting parties intended to create a third-party beneficiary and that such intent was clearly spelled out in the contract.' 0 Upon reviewing the administration contract, the court concluded that Littles was the in- tended third-party beneficiary of the contract. I" Benefit Trust was given the responsibility of evaluating and paying claims under the City's health plan. The City did not participate in the handling of claims. The court concluded that the contract was entered into for the benefit of the plan participants, including Littles.
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