PAMELA J. CHENNAULT,FROM A DISTRICT COURT APPELLANT, v. ROYAL INSURANCE COMPANY OF AMERICA, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01213-CV
 
PAMELA J. CHENNAULT,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
ROYAL INSURANCE COMPANY OF
AMERICA,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES HOWELL, THOMAS, AND OVARD
OPINION BY JUSTICE OVARD
AUGUST 11, 1989
 
        Pamela J. Chennault, d/b/a/ Year-Round Cleaning, appeals from a summary judgment entered in favor of Royal Insurance Company of America. Chennault contends that the trial court improperly granted summary judgment for the following reasons: (1) in erroneously defining the phrase "legally obligated" under the terms of the insurance policy and in finding that Chennault was without standing to bring this lawsuit; (2) in failing to find that her claim for damages fell within the policy provisions; (3) in allowing Royal to rely on an affirmative defense, which it raised for the first time in its motion for summary judgment; (4) in granting summary judgment before discovery had been completed and before Chennault was afforded the opportunity to cure any defects in her pleadings; and (5) that the trial court erred in denying Chennault's motion for new trial. For the reasons discussed below, we reverse and remand the judgment of the trial court.
        Point of error three concerns whether the trial court erred in granting summary judgment based upon its interpretation of the insurance policy. We begin with the premise that the function of summary judgment is not to deprive a litigant of his right to a full hearing on the merits of any real issue of fact. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952).
        The standards for reviewing a motion for summary judgment are well established. As mandated by the Supreme Court of Texas, they are: (l) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). It is not the purpose of the summary judgment rule to provide either a trial by deposition or a trial by affidavit, but rather to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that there is no genuine issue of fact. Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962).
        If it is necessary for the trial court to resolve factual issues, then the summary judgment rendered is neither authorized by the summary judgment procedure nor proper. See Smith v. Bolin, 153 Tex. 486, 489, 271 S.W.2d 93, 94 (1954); TEX. R. CIV. P. 166a(c). The summary judgment procedure is designed to eliminate patently unmeritorious claims and untenable defenses when there is no genuine issue of material fact; therefore, it is unavailable for the adjudication of the merits of any material issue of fact. See In re Estate of Price v. State Nat'l Bank, 375 S.W.2d 900, 904 (Tex. 1964). The movant must establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Summary judgments are not to be granted on default of the opponent, but only on the merit of the summary judgment proof offered by the movant. Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972). We must now determine whether Royal is entitled to its summary judgment as a matter of law for the reasons asserted in its motion. See City of Houston, 589 S.W.2d at 679.
        Chennault was in the business of making final clean-ups of new homes for a builder. While performing her work, she damaged certain property. Chennault filed a claim for the damage with Royal, who had issued her liability insurance policy. When Royal refused to pay the claim, Chennault filed suit alleging breach of contract, fraud, and violations of article 21.21 of the Texas Insurance Code and sections 17.46(a), (b)(12), and (b)(23) of the Texas Deceptive Trade Practices Act (DTPA). Among Chennault's complaints was the claim that prior to the initiation of the policy, as well as after the claim was presented, Royal's selling and/or recording agent represented that the policy covered the type of damages sustained.
        Royal moved for summary judgment contending that, under the terms of the policy, its duty to defend or to indemnify only arose for sums which Chennault was "legally obligated" to pay. FN:1 This phrase, they argued, meant that a lawsuit must first be filed against Chennault. Royal's motion for summary judgment then contends as follows:
                To recover under any or all of the above
                stated causes of action, [Chennault] must
                first prove as an essential element of
                each alleged cause of action that [Chennault]
                has become legally obligated, by way of an
                adjudication, to pay damages to a third-party
                as set out under the terms of the insurance
                policy, or that a lawsuit seeking such damages
                has been filed against [Chennault].
 
Chennault failed to respond to Royal's motion for summary judgment, which was then granted by the court. It is undisputed that no lawsuit for the damages in question had been filed against Chennault.
        Royal based its motion for summary judgment solely on the ground that, because it had no duty under the insurance policy, it was entitled to judgment as a matter of law. As that was the only basis stated in the summary judgment motion, the trial court necessarily relied on that for entering the summary judgment. See TEX. R. CIV. P. 166a(c); Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983).
        We hold that Royal did not negate all material fact issues regarding Chennault's causes of action based on fraud, the DTPA, and the Insurance Code. Even if we assume, without so deciding, that the trial court's construction of the term "legally obligated" was correct, we hold that Royal was still required to negate all material fact issues regarding Chennault's other causes of action. See Torres v. Laredo Nat'l Bank, 716 S.W.2d 667, 669 (Tex. App.--Corpus Christi 1986, no writ); Whiddon v. Metni, 650 S.W.2d 904, 905-06 (Tex. App.--Dallas 1983, writ ref'd n.r.e.); see also Futerfas v. Park Towers, 707 S.W.2d 149, 163 (Tex. App.--Dallas 1986, writ ref'd n.r.e.).
        Chennault sued for her loss under several different theories. Each theory had different requirements, not only to establish Chennault's prima facie case, but also to establish any defenses Royal might raise. The requirements to establish a cause of action under common law tort differ from those necessary to establish Chennault's cause of action for breach of contract or her statutory causes of action. See RESTATEMENT (SECOND) OF TORTS § 4 comment c (1965); W. ROSSER & P. KEETON, THE LAW OF TORTS § 92 (5th ed. 1984).          An insurer has a common law duty to deal fairly and in good faith with its insured. Aranda v. Insurance Co. of N. Am., 748 S.W.2d 210, 212 (Tex. 1988). Additionally, the Texas Insurance Code grants a private right of action to any person who has sustained actual damages as a result of the following: (l) any statement that misrepresented the terms of any policy issued or to be issued or the benefits or advantages promised thereby; (2) any trade practice that misrepresented an insurance policy; or (3) a representation that an agreement conferred or involved rights, remedies, or obligations that it did not have or involve. TEX. INS. CODE ANN. art. 21.21 §§ 4(l), 16(a) (Vernon Supp. 1989); Royal Globe Ins. Co. v. Bar Consultants, Inc., 577 S.W.2d 688, 691-92 (Tex. 1979); see also Underwriters Life Ins. Co. v. Cobb, 746 S.W.2d 810, 814 (Tex. App.--Corpus Christi 1988, no writ).
        Even assuming that Royal was not liable under the provisions of the insurance policy, it may still be liable under one of the other causes of action alleged by Chennault. Therefore, we conclude that the grounds expressly presented to the trial court in Royal's motion are insufficient as a matter of law to sustain the summary judgment. Point of error three is sustained. Because of our disposition of this point, we will not address the remaining issues. The judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.
 
                                                          __________________________
                                                          JOHN OVARD
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-01213.F
 
FN:1 The policy reads in pertinent part as follows:
 
 
         The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
 
            Coverage A. bodily injury or
 
            Coverage B. property damage
 
        to which this insurance applies, caused by an occurrence and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company's liability has been exhausted by payment of judgments or settlements.
 
(Emphasis added.)
 
File Date[01-02-89]
File Name[881213F]