Opinion
No. 14-06-00694-CV
Opinion filed August 16, 2007.
On Appeal from the 113th District Court Harris County, Texas, Trial Court Cause No. 03-21015B.
Panel consists of Chief Justice, HEDGES and Justices HUDSON and GUZMAN.
MEMORANDUM OPINION
Yigal Bosch appeals from a summary judgment in favor of Provident American Life and Health Insurance Company. In five issues, Bosch argues that the trial court erred: (1) in finding that Provident properly cancelled his insurance policy, (2) in finding that Provident did not breach the insurance policy, (3) in finding that he did not suffer mental anguish and damage to his credit as a result of Provident's acts and omissions, (4) in finding that Provident did not recklessly and intentionally deny him coverage, and (5) by failing to make findings of fact and conclusions of law. We affirm.
I. BACKGROUND
Bosch originally filed claims against Provident, Dallas General Life Insurance Co., and Ceres Group, Inc. alleging breach of contract and intentional, negligent, and grossly negligent infliction of mental distress related to health insurance policies he obtained or attempted to obtain from them. The trial court granted summary judgment against all of Bosch's claims. On appeal, this Court reversed and remanded Bosch's breach of contract causes of action against Provident and Dallas General ("Bosch I"). Bosch v. Dallas Gen. Life Ins. Co., No. 14-04-00661-CV, 2005 WL 757254, at *9 (Tex.App.-Houston [14th Dist.] Apr. 5, 2005, no pet.) (mem. op.). We also reversed and remanded certain damages claims related to Bosch's breach of contract cause of action against Provident. The remainder of the summary judgment was affirmed. Id.
Following remand, Bosch amended his petition to include claims against Provident for (1) breach of the insurance agreement, (2) mental anguish, (3) damage to his credit, (4) reckless and intentional denial of his application for insurance in violation of 42 U.S.C. Section 300gg C, 2, A, and (5) attorney's fees. Provident moved for summary judgment on both no-evidence and traditional grounds against all of Bosch's claims in its motion and supplemental motion for summary judgment. The trial court granted summary judgment against Bosch on all claims except for his breach of contract cause of action. Provident filed a motion for reconsideration with respect to the breach of contract cause of action, upon which the trial court granted summary judgment. The record contains no response from Bosch to Provident's summary judgment motion or its motion for reconsideration. Following its dismissal of all of Bosch's claims against Provident, the trial court severed all claims against Provident and directed that such cause be final.
Bosch attached an affidavit titled "Plaintiff Yigal Bosch's Affidavit in Support of His Response to Defendant's Motion for Summary Judgment" to his brief. We cannot consider documents attached to an appellate brief that do not appear in the record. Castano v. San Felipe Agric., Mfg., Irrigation Co., 147 S.W.3d 444, 453 (Tex.App.'San Antonio 2004, no pet.); Till v. Thomas, 10 S.W.3d 730, 733 (Tex.App.'Houston [1st Dist.] 1999, no pet.). In addition, Provident claimed in its motion for summary judgment, and Bosch has not denied, that Bosch was unsuccessful in his attempt to file an untimely response, because he did not obtain leave of court to file such a response. See TEX. R. CIV. P. 166a(c).
At that point in time, the trial court had also granted summary judgment with respect to all claims against Dallas General; however, Dallas General still had a counterclaim pending against Bosch.
II. ANALYSIS
A. Breach of the Insurance Agreement
Bosch's first two issues address the trial court's dismissal of his breach of contract cause of action. In considering the trial court's grant of summary judgment, we utilize the normal standards of review. See TEX. R. CIV. P. 166a(c), (i); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003) (no-evidence standard); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985) (traditional standard). Because the record contains no response to Provident's motions for summary judgment, the only issue before us is whether the grounds expressly presented by Provident's motions at trial are insufficient as a matter of law to support the summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); accord Tello v. Bank One, N.A., 218 S.W.3d 109, 119 (Tex.App.-Houston [14th Dist.] 2007, no pet.). In other words, Bosch cannot successfully argue that there is a disputed issue of material fact because he has waived the issue by failing to present it to the trial court. See Haynes v. City of Beaumont, 35 S.W.3d 166, 174 (Tex.App.-Texarkana 2000, no pet.). Furthermore, if a trial court grants summary judgment without specifying the grounds relied on, the reviewing court must affirm if any of the summary judgment grounds is meritorious. Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). The appellant must assign error and provide argument challenging each independent ground for summary judgment, or the judgment will be affirmed on the ground not complained of on appeal. Wortham v. Dow Chem. Co., 179 S.W.3d 189, 198 (Tex.App.'Houston [14th Dist.] 2005, no pet.); see also Hagberg v. City of Pasadena, 224 S.W.3d 477, 480 (Tex.App.'Houston [1st Dist.] 2007, no pet.) ("Although we construe issues presented liberally, failure to raise an issue on appeal waives error on the issue.").
The trial court in this case did not designate which grounds it relied on in granting summary judgment; therefore, we must analyze all of the grounds and affirm on any of them that are meritorious. Knott, 128 S.W.3d at 216. Provident set forth the following grounds supporting its motions for summary judgment on the breach of contract cause of action: (1) Provident negated that a valid contract existed as of the date Bosch's alleged damages were incurred; (2) the damages Bosch seeks to recover are not a proper measure of damages for wrongful cancellation; (3) Bosch's failure to accept Provident's offer of replacement coverage bars his breach of contract claim as a matter of law; (4) Provident conclusively proved the affirmative defense of waiver of the right to recover medical expense damages by showing Bosch voluntarily relinquished a known right; (5) Provident negated any damages by showing that Bosch did not incur a loss prior to or in obtaining replacement coverage; (6) there is no evidence that Bosch incurred any recoverable damages for wrongful cancellation; (7) Provident negated the causation element; (8) Bosch produced no evidence of causation; and (9) Provident conclusively proved Bosch's failure to mitigate his damages. Bosch does not address several of these grounds here on appeal. Instead, he appears to revisit the same issues that were decided under Bosch I.
The contract provision which Bosch claims was breached (both now on appeal and in Bosch I) is a notice provision in the insurance agreement with Provident that provides:
The covered member's coverage under the policy will end at 12:01 A.M. standard time in the covered member's state of residence on the earliest of:
. . . the premium due date following the date which we terminate all Certificates under this policy in the covered member's state of residence on the covered member's effective date of coverage. We will give the covered member 90 days notice prior to the date of termination and will offer the covered member coverage under any other policy which we are currently marketing in the covered member's state; or
the premium due date following the date which we terminate all Certificates in the covered member's state of residence on the covered member's effective date of coverage. We will give the covered member 180 days notice prior to the date of termination. . . . We can only terminate the policy upon 90 days prior written notice if we offer the policy holder coverage, on a guaranteed basis, under any other policy which we are currently marketing or upon 180 days prior written notice if we terminate all of our policies in the state of delivery.
In Bosch I, we found that Provident had not conclusively proven the provision of proper notice of cancellation as required by the above-referenced provision. Bosch, 2005 WL 757254, at *3. Provident had argued, pursuant to Sudduth v. Commonwealth County Mutual Insurance Co., 454 S.W.2d 196, 196-97 (Tex. 1970), that evidence of mailing the notice of cancellation was conclusive proof of proper notice. Bosch, 2005 WL 757254, at *2. In holding that Provident had not proven sufficient notice, we found that the contract provision in the Bosch-Provident agreement differs from those in the Sudduth line of cases in that the Bosch-Provident agreement requires receipt of notice, or actual notice. Id. Thus, we held, mere evidence that the notice was mailed is insufficient under the Bosch-Provident agreement to show receipt of notice. Id. at *3.
In his first issue now on appeal, Bosch essentially restates our decision as decided in Bosch I that mailing of notice is insufficient evidence of notice under the Bosch-Provident agreement. In support of his second issue claiming that the trial court erred in finding no breach of the agreement, Bosch argues, without citation to the record or case law, that because he submitted his claims within 180 days of the alleged date he learned that his Provident policy had been cancelled, Provident wrongfully refused to pay his claims and therefore breached the insurance agreement. These are the only two issues Bosch raises here on appeal with respect to the trial court's judgment on his breach of contract cause of action.
Bosch's two issues fail to attack all of the grounds Provident relied on in moving for summary judgment on remand. Bosch's first issue clearly addresses matters already decided under Bosch I and which Provident has conceded to be the law of the case. Under his second issue, Bosch seems to be arguing that Provident violated the provision in the insurance agreement that states "[w]e can only terminate the policy . . . upon 180 days prior written notice if we terminate all of our policies in the state of delivery." In making these arguments, Bosch fails to address most of the grounds that Provident relied on for summary judgment. In a reply brief, Bosch does directly respond, without citations to the record or case law, to some of Provident's arguments; however, we find these attacks to be insufficient. See TEX. R. APP. P. 38.1; Hagberg, 224 S.W.3d at 480-81 ("[A]n issue raised for the first time in a reply brief is ordinarily waived.") (quoting N.P. v. Methodist Hosp., 190 S.W.3d 217, 225 (Tex.App.'Houston [1st Dist.] 2006, pet. denied)); Dallas County. v. Gonzales, 183 S.W.3d 94, 104 (Tex.App.'Dallas 2006, pet. denied) ("A reply brief may not be used to raise new issues.").
Several of the grounds on which Provident relies for summary judgment in this appeal appear to be similar to those relied upon in Bosch I. We note that the law of the case doctrine does not necessarily preclude these issues from being raised again by Provident. See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). Nevertheless, it appears that Provident raises at least one ground not previously addressed in Bosch I. Provident argues that under the terms of the insurance policy, Bosch's coverage automatically terminated once Bosch received replacement coverage from Dallas General (based on a provision independent of the notice provision). Therefore, Provident argues, once Bosch obtained coverage from Dallas General, the insurance policy terminated and, as a result, did not exist when Bosch subsequently underwent surgery for angioplasty. In other words, even assuming the notice provision is interpreted as Bosch interprets it (requiring 180-day notice), Provident argues there is an independent provision in the insurance agreement which terminated the insurance policy prior to the accrual of his claims. Because Bosch has failed to respond to this ground for summary judgment, we affirm the trial court's dismissal of his breach of contract cause of action on that ground. See Wortham, 179 S.W.3d at 198. We overrule issues one and two.
For instance, following remand, Provident moved for summary judgment on several grounds related to causation and mitigation of damages arguing that Bosch's damages were not foreseeable, and that Bosch could have taken certain actions to fully replace his coverage once he learned that his policy with Provident had been cancelled. These grounds appear to be similar to those relied upon by Provident in Bosch I, although Provident's discussion of foreseeability is new in this appeal. See Bosch, 2005 WL 757254, at *3 (analyzing Provident's causation and mitigation of damages grounds for summary judgment).
It is also proper under the law of the case doctrine to raise new issues on remand. See Hudson, 711 S.W.2d at 630 ("[T]he doctrine [law of the case] does not necessarily apply when either the issues or the facts presented at successive appeals are not substantially the same as those involved on the first trial.").
We make no judgment on the validity of Provident's grounds for summary judgment on Bosch's breach of contract cause of action; rather, our disposition is forced by the fact that Bosch has failed to meet his burden as an appellant in attacking all grounds of Provident's summary judgment.
B. Damages
In his third issue, Bosch contends that the trial court erred in finding he did not suffer mental anguish and damage to his credit as a result of Provident's acts and omissions. We first note that Bosch labeled these two claims as separate causes of action in his amended petition following remand. However, in Bosch I, which Bosch references as controlling the disposition of these claims in this appeal, we addressed these two claims as damages related to Bosch's breach of contract cause of action. See Bosch, 2005 WL 757254, at *4 (analyzing mental anguish and damage to credit under the "Damages Issues" section). If we construe Bosch's claims as damage issues related to his breach of contract cause of action, then those damages fall with the breach of contract cause of action which we find was properly dismissed. Assuming arguendo that Bosch intends for these claims to be separate causes of action, the trial court still did not err in dismissing those claims. With respect to Bosch's mental anguish cause of action, Bosch fails to offer any authority (at trial or on appeal) providing for a separate cause of action for mental anguish. As mentioned above, Bosch brought various claims in Bosch I for infliction of emotional distress; however, dismissal of those claims was affirmed in Bosch I and would therefore be precluded from being raised again on remand. See Hudson, 711 S.W.2d at 630. In regards to his damage to credit cause of action, Bosch again fails to cite any law providing for such a cause of action. Although damages for harm to credit reputation exist in law, such as under a violation of the DTPA or Insurance Code cause of action, see Provident American Insurance Co. v. Castaneda, 988 S.W.2d 189, 199 (Tex. 1998); St. Paul Surplus Lines Insurance Co. v. Dal-Worth Tank Co., 974 S.W.2d 51, 52-53 (Tex. 1998), Bosch has failed to offer any evidence supporting the elements of such causes of action. Consequently, the trial court did not err in dismissing Bosch's claims for mental anguish and damage to his credit. We overrule Bosch's third issue.
Bosch would not be prevented from bringing new causes of action on remand from Bosch I, assuming the new causes of action are not substantially the same as issues already decided in Bosch I. See Hudson, 711 S.W.2d at 630. Bosch, however, bases his argument in this appeal on the law of the case from Bosch I in which we analyzed his mental anguish and damage to his credit claims as damages related to his breach of contract cause of action, suggesting that he intends the two claims to be analyzed here as damage claims.
C. Violation of 42 U.S.C. ' 300gg
In his fourth issue, Bosch complains that the trial court erred "in finding that Provident did not recklessly and intentionally denied [sic] Bosch coverage." Bosch's amended petition alleged that "Provident . . . recklessly and intentionally [denied] the [his] application for insurance in violation of 42 U.S.C. ' 300gg C, 2, A." In arguing such a violation, Bosch alleged that after he applied for coverage with Central Reserve Life Insurance ("CRL"), who he claimed to be the alter-ego of Provident, CRL waited until the time period under 42 U.S.C. ' 300gg for applying as an eligible individual for health coverage expired, thus preventing him from "obtaining coverage under the eligible individual laws." Setting aside the question of whether Bosch can bring a claim against Provident for the actions of CRL, it is clear that no private right of action exists under 42 U.S.C. ' 300gg. See Univ. of Colo. Hosp. Auth. v. Denver Publ'g Co., 340 F. Supp. 2d 1142, 1145 (D. Colo. 2004); Brock v. Provident Am. Ins. Co., 144 F. Supp. 2d 652, 657 (N.D. Tex. 2001); O'Donnell v. Blue Cross Blue Shield of Wyoming, 173 F. Supp. 2d 1176, 1180 (D. Wyo. 2001). We overrule Bosch's fourth issue.
D. Failure to File Findings of Fact/Conclusions of Law
In his final issue, Bosch argues that the trial court reversibly erred by failing to make findings of fact and conclusions of law upon his request. In the context of summary judgment, it is improper for a trial court to make findings of fact and conclusions of law. IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997) (citing Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994)); Baker Hughes Oilfield Operations, Inc. v. Hennig Prod. Co., 164 S.W.3d 438, 442 (Tex.App.'Houston [14th Dist.] 2005, no pet.). Bosch's contention is therefore without merit. We overrule his final issue.
We affirm the trial court's judgment.