# Aetna Casualty & Surety Co. v. Marshall

> Texas Court of Appeals, 1st District (Houston) · September 26, 1985 · 699 S.W.2d 896

URL: https://www.frixlaw.com/law-library/cases/9766477

## Case

- **Full name:** AETNA CASUALTY & SURETY CO., Appellant, v. Robert W. MARSHALL, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** September 26, 1985
- **Citations:** 699 S.W.2d 896; 1985 Tex. App. LEXIS 7291
- **Precedential status:** Published
- **Opinion:** Dissent by Hoyt
- **Judges:** Duggan, Warren, Hoyt
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9766477

## How later opinions describe it (automated extraction)

- recognizing obligation of good faith of insurer under agreed judgment between insured and insurer

## Opinion text

*906 HOYT, Justice,
dissenting.
I respectfully dissent. Robert W. Marshall, appellee, is not entitled to relief under the Texas Insurance Code, art. 21.21 (Vernon 1981), or under an implied covenant of “good faith and fair dealing.”
The facts of this case indicate that Marshall was a third-party beneficiary of a Workers’ Compensation policy issued by Aetna. Following an on-the-job injury, Marshall entered into an agreed judgment which was approved by the court. A dispute over the terms of that judgment led to this lawsuit.
The majority cites three cases for the proposition that article 21.21(16) is applicable in this case: Allstate Insurance Co. v. Kelly, 680 S.W.2d 595 (Tex.App.—Tyler 1984, writ ref’d n.r.e.); St. Paul Insurance Co. v. McPeak, 641 S.W.2d 284, 288 (Tex.App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.) (op, on reh’g); and Aetna Casualty & Surety Co. v. Martin Surgical Supply Co., 689 S.W.2d 263 (Tex.App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). Except for Aetna Casualty v. Martin, these case are distinguishable from this case and do not stand for the proposition that a third-party beneficiary, standing alone, may recover under art. 21.21 of the Insurance Code.
The facts in Kelly indicate that Kelly was a passenger in a vehicle driven by Veevers. Veevers collided with Alves who was insured .by Allstate Insurance Company. Kelly sued Alves for damages and eventually recovered a judgment that exceeded Alves’ policy limits. After receiving a demand letter, presumably under the Deceptive Trade Practice Act (DTPA) from Alves, Allstate sued for declaratory judgment naming Alves and Kelly as defendants. Each defendant filed counterclaims alleging negligence on the part of Allstate. Alves assigned a portion of his cause of action against Allstate to Kelly. One of the questions raised involved the applicability of art. 21.21 and sec. 17.46 of the DTPA to a policy of insurance. Relying on Dairyland County Mutual Insurance Co. v. Harrison, 578 S.W.2d 186 (Tex.Civ.App.—Houston [14th Dist.] 1979, no writ), the court held that the purchase of a policy of insurance constituted purchase of a service within the meaning of sec. 17.45(2) of the DTPA. Furthermore, the assignment of the cause of action was sufficient for Kelly to proceed against Allstate in conjunction with the policy owner.
In McPeak the court interpreted sec. 16 of art. 21.21 to permit a suit for unfair or deceptive acts and practices in the business of insurance. Although the question of the applicability of art. 21.21 was raised, it was not addressed or resolved. McPeak, 641 S.W.2d at 286 . On rehearing, the court followed Tex.R.Civ.P. 174(b) and severed the unfair practice claim from the workers’ compensation claim. This severance was not a judicial decree that a cause of action existed under art. 21.21, but allowed (1) the parties to pursue such a claim and (2) the judgment to become final regarding the workers’ compensation claim. Id. at 289 .
Neither of these cases stands for the proposition that a person who claims that he has been treated unfairly may recover on an action under art. 21.21(16) or sec. 17.46(b)(5) of the DTPA. These statutes were enacted principally to regulate conduct among insurance companies and between the companies and the policy holders, not those who are simply beneficiaries of the policy. Tex.Ins.Code Ann. art. 21.21 (4) (Vernon 1981).
Claims for deceptive practices that arise under art. 21.21(16) (read with sec. 17.46 of the DTPA) must comply with the requirements of the DTPA. In order to maintain a cause of action under the DTPA, a plaintiff must be a “consumer,” defined in sec. 17.45(4) of the Act as “an individual who seeks or acquires by purchase or lease, any goods or services.” Riverside National Bank v. Lewis, 603 S.W.2d 169, 172 (Tex.1980). A person who is a third-party beneficiary may become a consumer provided that he purchases goods or services which are the basis of his complaint. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 541 (Tex.1981). He may also acquire consumer status for purposes of art. 21.21 *907 through an assignment of the cause of action of one who is a policyholder, Allstate, 680 S.W.2d at 595 , or through the assignment of a note resulting from the purchase or sale of real estate. Flenniken v. Longview Bank & Trust Co., 661 S.W.2d 705, 707 (Tex.1983).
Except for Aetna Casualty v. Martin, no case has been cited for the premise that a third-party beneficiary of an insurance policy may maintain a cause of action under art. 21.21 or the DTPA. I disagree with the holding in Aetna. Although no contractual relationship is required with the carrier, the plaintiff must be a “consumer.” Cameron, 618 S.W.2d at 539 . And, although a consumer is not required to show that he sought to acquire goods or services from the defendant he sues, the evidence must show that he was a party to a transaction in which he sought to acquire goods or services. Flenniken, 661 S.W.2d at 707 .
Marshall was a third-party beneficiary under the terms of the agreed judgment. He had not purchased an insurance policy from Aetna and could recover only under the terms of the judgment. The judgment is the basis of Marshall’s complaint and no goods or services were purchased in connection with it. Therefore, under Riverside National Bank and Cameron , Marshall remained a third-party beneficiary and did not acquire consumer status.
Because Marshall’s employer owned the policy, Marshall could only acquire consumer status through an assignment. No such assignment was made; therefore, Allstate v. Kelly is inapplicable.
Similarly, no cause of action exists under an implied covenant of “good faith and fair dealing.” An original proceeding which alleges this duty necessarily implies that a contract exists between the parties. See Restatement Second of Contracts sec. 205 (1979); English v. Fischer, 660 S.W.2d 521, 525 (Tex.1983) (Spears, J., concurring). Here we have more than a contractual agreement, we have a judgment. Marshall’s remedy was not another original proceeding but one to execute on the judgment. Tex.R.Civ.Pro. 308. In addition to simply executing on the judgment, relief through motions for “attachment fine and imprisonment” is available. Id. This relief is still available.
The judgment of the trial court should be reversed and the cause dismissed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9766477. Public record. Not legal advice.