DALLAS COUNTY HOSPITAL FROM A DISTRICT COURT DISTRICT, APPELLANT, v. HARTFORD LIFE & ACCIDENT INSURANCE COMPANY, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-87-00588-CV
DALLAS COUNTY HOSPITAL                        FROM A DISTRICT COURT
DISTRICT,
 
        APPELLANT,
 
v.
 
HARTFORD LIFE & ACCIDENT
INSURANCE COMPANY,
 
        APPELLEE.                                          OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES HOWELL, THOMAS, AND OVARD
OPINION BY JUSTICE THOMAS
AUGUST 25, 1989
        This is an insurance case involving a question of contract coverage under a group life insurance policy in which Dallas County Hospital District (the Hospital District) appeals from a take nothing judgment in favor of Hartford Life and Accident Insurance Co. (Hartford). In three points of error, the Hospital District complains that: (1) the judgment was improper due to an irreconcilable conflict in the jury answers; (2) the trial court erred in denying its motion for summary judgment; and (3) there is no evidence to support the jury's answer to question number three. We disagree and, accordingly, affirm the trial court's judgment.
FACTUAL BACKGROUND
        On October 1, 1983, Hartford executed and delivered to the Hospital District a group life insurance policy (the policy) on the lives of the "permanent active full-time employees" of the Hospital District. An "active full-time employee" was defined in the policy as:
 
 
        An employee who works for [the Hospital District] on a regular, permanent basis in the usual course of [the Hospital District's] business. He must work the number of hours in [the Hospital District's] normal work week. This must be at least 32 hours per week.
The effective date of the coverage was October 1, 1983; however, the policy contained a deferred coverage provision, which provided that:
 
 
        If an employee is absent from work due to sickness or injury on the date his insurance would have become effective, his effective date will be deferred. His insurance will not become effective until he returns to active full time work.
        This dispute arises from the death of Doris Nelson, an employee of the Hospital District. Nelson, a registered nurse, began working for the Hospital District in 1962 and continued to be an employee until the time of her death. In 1979, Nelson was diagnosed as having breast cancer. After a period of remission, Nelson discovered that the cancer had metastasized. By the summer of 1983, Nelson's physical condition was poor. The evidence established that the last day Nelson was physically present and working an eight-hour day was August 31, 1983. At this point, Nelson had accumulated numerous hours of available "sick time" and "vacation time." Beginning September 1, 1983, in accordance with the Hospital District's policies, Nelson's absences were being counted against available "sick time" or "vacation time." Nelson's condition deteriorated to the point that she had to be hospitalized on September 17, 1983. By this time, the physicians had resolved that Nelson's care would be limited to making her as comfortable as possible until her death. Nelson was discharged on September 20, 1983 and had to be readmitted on September 26, 1983. Nelson remained in the hospital until her death on October 3, 1983.
        Following Nelson's death, the Hospital District, as assignee of the estate, submitted a claim to Hartford under the policy. The Hospital District asserted that Nelson was "on vacation" on October 1, thus she was covered under the policy. Hartford refused to pay the claim on the basis that she was not a permanent, full-time employee on the effective date and, further, that she was not covered because of the deferred coverage provision. The Hospital District filed suit. At the conclusion of the evidence, the trial court submitted four questions to the jury. Based upon the jury's verdict, judgment was rendered in favor of Hartford.
JURY QUESTIONS
        The Hospital District complains in its first point of error that the trial court erred in granting judgment in favor of Hartford because an irreconcilable conflict exists between the jury's answers to questions one and two. The relevant questions, definitions, instructions given, and the complained-of jury answers are as follows:
 
 
    SPECIAL ISSUE NO. 1
 
                    Do you find from a preponderance of the evidence that Doris Nelson was an "active full-time employee" of Dallas County Hospital District on October 1, 1983 or at any time from October 1, 1983, until her death on October 3, 1983?
 
    ANSWER "Yes or "No."
 
    ANSWER: YES
 
                    In answering Special Issue No. 1, you are to use the definition of "active full-time employee" contained in the Hartford Policy, which reads:
 
                An employee who works for the Policyholder on a regular, permanent basis in the usual course of the Policyholders' business. He must work the number of hours in the Policyholder's normal work week. This must be at least 32 hours per week.
 
        You are instructed to use the ordinary and popular meaning of these words in the policy, rather than some technical meaning.
 
    SPECIAL ISSUE NO. 2
 
                    Do you find from a preponderance of the evidence that for the dates October 1, 1983 through October 3, 1983, Doris Nelson was an employee of Dallas County Hospital District who was "absent from work due to sickness or injury?"
 
    ANSWER "Yes" or "No."
 
    ANSWER:        Yes
 
                    You are instructed that in determining whether Doris Nelson was "absent from work due to sickness or injury," you are to apply the ordinary and generally accepted meanings of these words.
In asserting this point of error, the Hospital District contends that the jury answer meant that they found that Nelson was at work on October 1-3, 1983. Thus, the Hospital District urges that it would be entitled to the death benefits but for the answer to question two.
        The threshold question in determining whether a jury's findings are in conflict is whether the findings relate to the same material fact. Sisco v. Hereford, 694 S.W.2d 3, 6 (Tex. App.--San Antonio 1984, writ ref'd n.r.e.), citing Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453, 455 (1944). If it is reasonably possible in light of the pleadings, evidence, the manner of submission, and the other findings as a whole, the court must reconcile apparent conflicts. Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558, 562 (1949), cited in Sisco, 694 S.W.2d at 6. The test in determining whether the jury's answers to the questions submitted creates a fatal and irreconcilable conflict is whether, "taking the finding alone in the one instance, a judgment should be entered in favor of the plaintiff; and taking it alone in the other, judgment should be entered in favor of the defendant." Little Rock Mfg. Co. v. Dunn, 148 S.W.2d 197, 222 S.W.2d 985, 991 (Tex. 1949), quoted in Marshbank v. Austin Bridge Co., 669 S.W.2d 129, 134-35 (Tex. App.--Corpus Christi 1984, writ ref'd n.r.e.).
        We note that sufficiency of the evidence to support the jury's answers to these questions has not been raised. Therefore, our inquiry is limited to the question of conflict. These questions do not inquire about the same material facts. One requirement for coverage under the policy was that the insured be a regular, permanent, full-time employee of the Hospital District. Hartford attempted to maintain that because Nelson was no longer physically present, she was no longer a full-time employee. Based upon the evidence, the jury determined otherwise. A second requirement for coverage was that an employee could not be absent from work due to sickness or injury on the effective date of the policy. Based upon the evidence, the jury determined that Nelson was absent from work due to sickness or injury during the relevant period. Nelson could be a permanent, full-time employee without physically being present at work. Thus, we find no conflict in the jury's answers. The first point is overruled.
DENIAL OF THE MOTION FOR SUMMARY JUDGMENT
        In the second point of error, the Hospital District maintains that the trial court erred in denying its motion for summary judgment. It has long been established that a court of appeals cannot review a trial court's action in overruling a motion for summary judgment after judgment has been rendered following a trial on the merits. Ackerman v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966); Cornett v. Damon, No. A14-88-00013-CV (Tex. App.--Houston [14th Dist.], Jan. 12, 1989, n.w.h.) (not yet reported); Morrow-Thomas, Inc. v. Harris, 466 S.W.2d 323, 324 (Tex. Civ. App.--Eastland 1971, no writ). Therefore, we overrule the second point.
NO EVIDENCE TO SUPPORT JURY ANSWER #3
        In the third point of error, the Hospital District urges that no evidence existed to support the jury's answer to question number three. The question and answer at issue is:
 
 
    SPECIAL ISSUE NO. 3
 
            Do you find from a preponderance of the evidence that Doris Nelson was on an approved vacation on October 1, 1983?
 
    ANSWER "Yes" or "No."
 
    ANSWER        No
        We find this point to be totally without merit. Assuming, without deciding, that the Hospital District is correct and the uncontradicted evidence established that Nelson was on approved vacation, the result would be the same. We note that neither party has asserted that the policy is ambiguous. As a general rule, when a contract is unambiguous the court must construe the contract as a matter of law. Praeger v. Wilson, 721 S.W.2d 597, 600 (Tex. App.--Fort Worth 1986, writ ref'd n.r.e.); Farm & Home Sav. Ass'n v. Strauss, 671 S.W.2d 682, 683 (Tex. App.--Dallas 1984, no writ). The law is further settled that an instrument is not ambiguous simply because the parties disagree over its interpretation. Praeger, 721 S.W.2d at 600.
        In examining this contract, it is clear that because of the deferred coverage provision and the jury's factual finding in question number two, Nelson was not an insured employee under the policy. The fact that her employment and salary with the Hospital District continued due to the accumulation of employee benefits does not change the policy coverage. We therefore overrule the third point of error and affirm the trial court's judgment.
                                                
                                                          
                                                          LINDA THOMAS
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
87-00588.F
        
 
 
File Date[01-02-89]
File Name[870588F]