Yigal Bosch v. Provident American Life and Health Insurance Company--Appeal from 113th District Court of Harris County

Motion for Rehearing Overruled. Affirmed and Memorandum Opinion of August 16, 2007 Withdrawn, and Memorandum Opinion on Rehearing filed October 25, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00694-CV

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YIGAL BOSCH, Appellant

V.

PROVIDENT AMERICAN LIFE AND HEALTH INSURANCE COMPANY, Appellee

On Appeal from the 113th District Court

Harris  County, Texas

Trial Court Cause No. 03-21015B

M E M O R A N D U M O P I N I O N O N R E H E A R I N G

We overrule Bosch=s motion for rehearing. The opinion of August 16, 2007 is withdrawn and this opinion is substituted therefor. 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 (ABosch I@). Bosch v. Dallas Gen. Life Ins. Co., No. 14-04-00661-CV, 2005 WL 757254, at *9 (Tex. App.CHouston [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 in an attempt to add claims against Provident for (1) mental anguish, (2) damage to his credit, and (3) reckless and intentional denial of his application for insurance in violation of 42 U.S.C. Section 300gg. 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 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. 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.[1]

II. Standard of Review

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, 750B51 (Tex. 2003) (no-evidence standard); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548B49 (Tex. 1985) (traditional standard). 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. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

III. Analysis

A. Breach of Contract

In his first two issues, Bosch contends that the trial court erred in granting summary judgment on his breach of contract claim. In his first issue, the contract provision alleged to have been breached (both now on appeal and in Bosch I) is a notice provision in the insurance agreement with Provident providing:

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 advance notice of cancellation as required by the above-referenced provision. Bosch, 2005 WL 757254, at *3. In this appeal, Provident concedes a fact issue with regard to whether Bosch received advance notice of cancellation under the policy=s termination provision.

Provident argues that it could not have breached the contract with Bosch by failing to give notice because no valid contract with Provident existed at the time Bosch sought coverage. To recover under a breach of contract cause of action, a plaintiff must show: (1) the existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) damages sustained as a result of the breach. Renteria v. Trevino, 79 S.W.3d 240, 242 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Provident, as movant for summary judgment, had the burden to establish by competent summary judgment evidence that there was no genuine issue of material fact as to one or more essential elements of Bosch=s cause of action. See Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999).

The summary judgment record reflects that Bosch admitted receiving actual notice that his policy had been cancelled on October 17, 2001. Bosch admits that he received replacement coverage from Dallas General effective January 1, 2002. Bosch further admits that he incurred no additional medical expenses before the Dallas General Coverage became effective. Provident argues that even if the insurance certificate had been in force, Bosch=s coverage terminated automatically by its own terms once Bosch received actual notice of termination on October 17, 2001, then obtained replacement coverage with another carrier. In support of its argument, Provident cites two provisions in the insurance certificate, which provide that any continuing coverage or converted coverage is automatically cancelled once replacement coverage is obtained.

In response, Bosch argues that Provident violated the provision in the insurance agreement that states A[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.@ Bosch contends that because Provident did not offer him replacement coverage, the policy was extended to 180 days from the date of notice, which would have covered his medical expenses. However, Bosch did not plead this claim at trial. In his amended petition, the only claim Bosch raised with regard to breach of contract was the lack of notice of cancellation. He did not raise the issue of replacement coverage. We cannot consider any ground for reversal of summary judgment that was not expressly presented to the trial court. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

Even if Bosch had properly pled this theory, the insurance certificate was automatically cancelled under its own terms when Bosch obtained coverage from Dallas General. Because Provident established as a matter of law that no valid contract existed at the time medical expenses were incurred, the trial court correctly granted summary judgment on the breach of contract action. We overrule Bosch=s first and second issues.

B. Damages

In his third issue, Bosch contends that the trial court erred in finding no mental anguish and damage to his credit resulting from 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 to the disposition of the 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 ADamages 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.[2]

With respect to Bosch=s mental anguish cause of action, Bosch fails to offer any authority permitting 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. As to his damage to credit cause of action, Bosch again fails to cite any law providing for a separate cause of action. Although damages for harm to credit reputation exist in law, such as under a violation of the Texas Deceptive Trade Practices Act or Insurance Code, 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, 52B53 (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.

 C. Violation of 42 U.S.C.  ' 300gg

In his fourth issue, Bosch complains that the trial court erred Ain finding that Provident did not recklessly and intentionally denied [sic] Bosch coverage.@ Bosch=s amended petition alleged that Provident Arecklessly and intentionally@ denied 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 (ACRL@), which 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 Aobtaining 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 and 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.CHouston [14th Dist.] 2005, no pet.). Bosch=s contention is therefore without merit. We overrule his final issue.

The judgment of the trial court is affirmed.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion on Rehearing filed October 25, 2007.

Panel consists of Chief Justice Hedges and Justice Guzman and Senior Justice Hudson.*

[1] 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.

[2] 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 v. Wakefield, 711 S.W.2d 628,630 (Tex. 1986). 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.

* Senior Justice J. Harvey Hudson sitting by assignment.