SUZANNE WANVIG, Appellant v. REPUBLIC BANKERS LIFE INSURANCE COMPANY, Appellee

AFFIRM, and Opinion Filed December 16, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-95-00255-CV
............................
SUZANNE WANVIG, Appellant
V.
REPUBLIC BANKERS LIFE INSURANCE COMPANY, Appellee
..............................................................
On Appeal from the 116th District Court
Dallas County, Texas
Trial Court Cause No. 92-02995-F
..............................................................
O P I N I O N
Before Justices Morris, James, and Wolfe
Opinion By Justice Wolfe
        Suzanne Wanvig appeals from a take-nothing judgment entered against her and in favor of Republic Bankers Life Insurance Company in a suit for breach of an accident and health insurance contract. As set forth below, we affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
        
        In August 1990, Wanvig contacted an agent for Republic to apply for an accident and health insurance policy. She completed an insurance application form which required her to provide information about her current health as well as her health history. In response, Wanvig disclosed that in 1967 she had a gall bladder operation and in 1987 she was diagnosed with high blood pressure. The application also inquired about medications Wanvig was taking. In response, Wanvig disclosed that she was taking Moduretic for treatment of high blood pressure.
        The application concluded with an "agreement" that provided, among other things, the following:
 
(1) The insurance applied for will not be considered in force unless . . . it is delivered during the continuing good health of the persons to be covered . . . .
 
(4) A false answer or statement herein which materially affects the acceptance, risk, or hazard assumed by the company may result in the loss of coverage under the policy of which this application is a part.
Wanvig signed the "agreement" and submitted the application to Republic for consideration.
        After the application was submitted but prior to the issuance of the policy, Republic conducted a telephone interview with Wanvig to verify the information contained in the application. During this interview Wanvig stated that she was in excellent health and understood that false or misstated answers on the application could result in the loss of coverage.
        Thereafter Republic sent the policy to Wanvig. Wanvig's application was attached to and made part of the policy. The policy contained a cover form where Wanvig acknowledged that: (1) she reviewed the policy and found it to be as represented and (2) she reviewed the application and found the answers to be correct and complete. The policy was effective as of October 1, 1990.
        The policy contained an exclusionary endorsement that provided:
Suzanne Wanvig shall not be covered for, nor shall the Company in any way be liable for, any loss or disability due to any disease or disorder of the cardiovascular system, and/or any complications or operations therefrom.
The endorsement was referenced at the top of the first page of the policy by a stamp that read "SEE ENDORSEMENT." According to Republic, the endorsement was included in Wanvig's policy because she had revealed on her application that she was suffering from high blood pressure and it was being controlled by medication. After the application issued, Republic received medical records from Wanvig's family physician covering her previous five years of medical history. The records, according to Republic, indicated that Wanvig's application contained material misrepresentations, and she was not in good health as of the issue date of the policy. Republic sought to cancel the policy. Republic sent notice of cancellation and a premium refund to Wanvig at the address listed in her application. Wanvig, however, had moved from that address and did not receive the written notice.
        Around this same time, Wanvig suffered the first of two cerebral aneurysms. She was hospitalized for twenty days and incurred medical expenses in excess of $85,000. During Wanvig's hospitalization, Republic gave oral notice to someone representing herself to be Wanvig's daughter that the policy had been canceled. Wanvig submitted a claim for the hospitalization expenses related to the cerebral aneurysms. Republic denied the claim and again advised Wanvig that the policy had been rescinded. Thereafter Wanvig brought suit against Republic alleging breach of contract and violations of the Texas Deceptive Trade Practices Act and the Texas Insurance Code. Republic answered and asserted, among other things, three principle defenses: (1) that Wanvig made material misrepresentations on her application justifying rescission of the policy; (2) the aneurysms were not covered under the policy because they are a disease or disorder of the cardiovascular system; and (3) Wanvig
was not in good health as of the issue date as required by the policy. Republic also brought a counterclaim pursuant to the Uniform Declaratory Judgments Act seeking a declaration that no policy of insurance between Republic and Wanvig exists.
        The trial court severed Wanvig's contract cause of action from her statutory causes of action and ordered the contract action to be tried first. Following an eight-day trial, the jury returned a verdict in favor of Republic. In response to a single global question, the jury found that Republic did not breach its contract with Wanvig. In response to more particularized special questions the jury found that: (1) Wanvig made material misrepresentations on her insurance application form; (2) her aneurysms were a disease or disorder of her cardiovascular system; and (3) she was not in good health as of the issue date as required by the policy. In accordance with the jury's verdict, the trial court entered a take-nothing judgment.
        On appeal, Wanvig asserts 20 points of error. Her first 18 points can be broadly categorized into three groups with each group relating to one of Republic's three principle defenses. More specifically, points 1 through 5 concern the jury question and findings regarding misrepresentation; points 6 through 11 concern the jury question and findings regarding the cardiovascular exclusionary endorsement; and points 12 through 18 concern the jury question and findings regarding the "good health" defense. Point 19 alleges that the trial court erred in excluding evidence that the agent who was present when Wanvig filled out her original application subsequently had his license revoked. Point 20 concerns the jury findings regarding attorney's fees awarded to Republic on its declaratory judgment action.
 
CARDIOVASCULAR ENDORSEMENT
        In point 6, Wanvig complains that the evidence was legally and factually insufficient to support the jury finding that Wanvig's aneurysms were a disease or disorder of the cardiovascular system. In addressing a legal sufficiency or no-evidence challenge, we consider only the evidence and inferences, viewed in their most favorable light, that support the jury's finding, and we disregard all evidence and inferences to the contrary. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987); Motsenbocker v. Potts, 863 S.W.2d 126, 132 (Tex. App.--Dallas 1993, no writ). If there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails. Stafford, 726 S.W.2d at 16. When reviewing a challenge to the factual sufficiency of the evidence, we must consider all of the evidence. Plas-tex Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). The verdict should be set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Dyson v. Olin Corp, 692 S.W.2d 456, 457 (Tex. 1985).
        The parties presented the testimony of three doctors on this issue. Dr. Thomas H. Rockel, a neurologist, testified as follows:
Question: In addition, Doctor, do you have an opinion as to whether the aneurysm that Mrs. Wanvig suffered from was a disease or a disorder of the cardiovascular system?
 
Answer: Well, by definition, it has to be. The cardiovascular system includes the heart and all of the blood vessels that are supplied by the heart and by the circulation.
        Dr. Richard Olson, Wanvig's family physician, gave conflicting evidence. In response to questioning by Wanvig's counsel, Dr. Olson testified as follows:
Question: Doctor, would you consider a brain aneurysm to be a condition of the cardiovascular system?
 
Answer: I think that the cardiovascular system includes the brain arteries, certainly, but it is actually considered to be more of a neurological problem because of what it causes and the fact that a stroke, even though it is a vascular problem, causes brain damage. And, therefore, it is certainly more of a neurological problem in that respect because it produces increased intercranial pressure on the brain.
However, in response to questions from counsel for Republic, Dr. Olson testified as follows:
Question: Then although Mrs. Wanvig may have had a problem with her cerebral vascular system, if we use cardiovascular as the inquiry, given that it's a much broader term, it is your opinion that Mrs. Wanvig did in fact have a problem with her cardiovascular system related to this aneurysm. Correct?
 
Answer: Yes, sir.
Dr. Worthy Warnack, the neurologist who treated Wanvig at the emergency room, also gave conflicting testimony. In response to questioning from Wanvig's counsel, he testified as follows:
Question: In your opinion, referring specifically to Suzanne's case, was..were her aneurysms a disease or disorder of the cardiovascular system?
 
Answer: In my opinion that's a separate type of problem. I don't..I don't..in my mind, I don't group cerebral aneurysms with cardiovascular disorders.
Then, in response to questioning from Republic's counsel, Dr. Warnack testified as follows:
 
Question: Doctor, recognizing what your opinion is, all I'm asking you is if we take the medical dictionary definition of cardiovascular, Mrs. Wanvig's aneurysms fall within that definition, do they not?
 
Answer: It's an..it's something that affected blood vessels, that's true.
Considering only the evidence and inferences, viewed in the light most favorable to the verdict, and disregarding all evidence and inferences to the contrary, we find that the unequivocal testimony of Dr. Rockel constitutes more than a scintilla of evidence to support the jury finding that Wanvig's aneurysms were a disease or disorder of the cardiovascular system. In considering all the evidence, we note there is conflicting testimony. The jury is responsible for resolving conflicts in testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. We do not find that the jury's verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, we overrule point 6 insofar as it asserts that the evidence was legally and factually insufficient to support the jury finding that Wanvig's aneurysms were a disease or disorder of the cardiovascular system.
        Also under point 6, Wanvig argues that the exclusionary endorsement for the cardiovascular system failed to comply with article 3.70-2(A)(5) of the Texas Insurance Code, which provides as follows:
 
(a) No policy of accident and sickness insurance shall be delivered or issued for delivery to any person in this state unless:
* * *
(5) Exceptions and reductions of indemnity are set forth in the policy and . . . either included with the benefit provision to which they apply, or under an appropriate caption such as "exceptions" or "exceptions and reductions;" provided that if an exception or reduction specifically applies only to a particular benefit of the policy, a statement of such exception or reduction shall be included with the benefit provision to which it applies . . . .
Tex. Ins. Code Ann. art. 3.70-2(a)(5) (West Supp. 1997). Wanvig argues that the endorsement was not appropriately captioned "exceptions" or "reductions" and was not included with the benefit provisions to which it applied. We do not find Wanvig's argument persuasive.
        Article 3.70-2(A)(5) does not require use of the word "exceptions" or "reductions" but instead requires that an "appropriate caption such as exceptions or reductions" be used. (Emphasis added). Insurance policies are routinely amplified, modified, or extended by endorsements attached to or made part of the policy. Dunn v. Traders Gen. Ins. Co., 287 S.W.2d 682, 687 (Tex. Civ. App.--Dallas 1956, writ ref'd n.r.e.); see also, Couch on Insurance, 2d (Rev. ed.) § 4:32 (1984). Courts generally recognize the validity of endorsements. See, e.g., U.S. Fire Ins. Co. v. Aetna Cas. & Sur. Co., 781 S.W.2d 394, 399 (Tex. App.--Houston [1st Dist.] 1989, no writ). Accordingly, we conclude that "endorsement " is an "appropriate caption" as that term is used in Article 3.70-2(A)(5), particularly where, as here, the inclusion of the endorsement is brought to the insured's attention by the words "SEE ENDORSEMENT" stamped at the top of the first page of the policy.
        We also reject Wanvig's argument that the endorsement is invalid because it was not contained with the benefit provision to which it applied. The endorsement was clearly referenced at the top of the first page of the policy. The text of the endorsement was set forth on a separate page, plainly visible, following the page containing the insuring clause and the definitions. Wanvig, in her brief, does not suggest a more appropriate location.
        Moreover, the State Board of Insurance rules and regulations regarding interpretation of article 3.70-2(a)(5) provide that waivers designed to exclude coverage for a specifically described pre-existing disease, physical condition, or hazardous activity are acceptable if, on initial issuance and on the first page of the policy, notice of the waiver appears. See 28 Tex. Admin. Code § 3.3057 (West 1996). The cardiovascular endorsement provided an exclusion for a specific physical condition, that being any disease of the cardiovascular system. The cardiovascular exclusion was attached by separate waiver and, on the first page of Wanvig's policy, at the very top, the stamp "SEE ENDORSEMENT" appears. Thus, Republic complied with the notice requirements of article 3.70-2(a)(5), as set forth in 28 Tex. Admin. Code § 3.3057.
        Our conclusion as to effectiveness of the manner in which Wanvig was notified of the cardiovascular exclusion is also supported by appellant's testimony that upon her receipt and review of the policy she understood, from the endorsement, that no coverage was afforded for diseases or disorders of the cardiovascular system. Wanvig also testified she understood that she could return the policy within ten days of receipt and receive a full premium refund if the policy did not comport with her expectations.
        Accordingly, Wanvig's point 6 is overruled insofar it asserts that the cardiovascular exclusion was not in compliance with article 3.70-2(a)(5).
        In points 7, 9, 10, and 11, Wanvig argues generally about the form of the jury question and the sufficiency of the evidence to support the jury finding regarding the global issue that Republic did not breach its contract with Wanvig. To the extent these points relate to the cardiovascular exclusion or argue that Wanvig's breach of contract cause of action was established as a matter of law, they are overruled for the reasons outlined above.
        In point 8, Wanvig complains that the trial court improperly instructed the jury regarding the burden of proof applicable to the exclusions and limitations in the insurance policy. The trial court instructed the jury that "Wanvig has the burden of proving her contention by a preponderance of the evidence that none of the exclusions, limitations, or provisions of the policy are applicable to limit the claims for policy benefits made in this case." Wanvig's sole objection to this instruction was that "we would prefer our instruction." A failure to raise a proper objection to the burden of proof institutes a waiver of that objection. Daniel v. Esmali 761 S.W.2d 827, 829 (Tex. App.--Dallas 1988, no writ). A party's complaint with respect to an instruction must be pointed out by a specific objection and cannot be cured by simply stating that the party would prefer its own instruction. Texas Employers Ins. Ass'n. v. Jones, 393 S.W.2d 305, 306 (Tex. 1965). Requests for instructions which are commingled with objections are waived. Templeton v. Unigard Security Ins. Co., 550 S.W.2d 267, 269 (Tex. 1976). We hold that Wanvig's "objection" was insufficient to preserve error and therefore overrule point 8.
REMAINING POINTS OF ERROR
        Because we uphold the validity of the exclusionary endorsement for diseases or disorders of the cardiovascular system, and because we uphold the jury finding that Wanvig's aneurysms were a disease or disorder of the cardiovascular system, coverage under the insurance policy in question is precluded. Therefore, we need not address Wanvig's points of error regarding material misrepresentation (points 1 through 5) and whether she was in good health as of the issue date of the policy (points 12 through 18) as those are alternative reasons for denial of coverage. See Tex. R. App. P. 90(a).
        In point 19, Wanvig complains that the court erred in excluding evidence that the agent with whom she met when she filled out the insurance application subsequently had his license revoked. Wanvig asserts that this evidence was relevant and necessary to challenge Wanvig's misrepresentation defense. Wanvig argues that Republic had to show reliance on the health history in the application and the intent to deceive on the part of Wanvig. She asserts that evidence that the agent was untrustworthy would tend to show that Republic did not rely on Wanvig's application. We have already determined that coverage was precluded under the exclusionary endorsement for diseases or disorders of the cardiovascular system. Because the evidence regarding the agent's license revocation does not go to that issue, any error in excluding such evidence is harmless. See Tex. R. App. P. 81(b)(1). Point 19 is overruled.
        In point 20, Wanvig argues that Republic is not entitled to recover attorney's fees on its declaratory judgment action because Wanvig is entitled to recover her contract claim as a matter of law. We have already held that Wanvig is not entitled to recover on her contract claim as a matter of law; accordingly, point 20 is overruled.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH W. WOLFE
                                                          JUSTICE
 
 
 
Do Not Publish
Tex. R. App. P. 90
950255F.U05
 
 
 
File Date[12-16-96]
File Name[950255F]