holding that a question in the jury charge that defined the “unfair practice in the business of insurance” as “any act or series of acts which is arbitrary, without justification, or takes advantage of a person to the extent that an unjust or inequitable result is obtained” was defective because the statute limited the actions for which the defendant could be liable and the instruction did not reflect those limitations
How later courts described this case
- holding that a question in the jury charge that defined the “unfair practice in the business of insurance” as “any act or series of acts which is arbitrary, without justification, or takes advantage of a person to the extent that an unjust or inequitable result is obtained” was defective because the statute limited the actions for which the defendant could be liable and the instruction did not reflect those limitations
- holding that trial court erred in rendering take-nothing judgment notwithstanding jury=s verdict in favor of plaintiff based on defendant=s properly preserved charge error and concluding that proper remedy was for trial court to grant new trial based on the charge error
- explaining that a jury finding may be disregarded if it is unsupported by evidence or is immaterial, and that a question is immaterial if it should not have been submitted, has been rendered immaterial by other findings, or calls for a finding beyond the jury’s province
- holding that if trial court submits defective instruction as to theory of liability, remedy is new trial as opposed to judgment notwithstanding verdict, if legally sufficient evidence supports new trial
Written by the judges who cited it.
The opinion
DOGGETT, Justice,
concurring and dissenting.
(Oct. 6, 1993. )
Here the majority consents to a new trial for small business owners, Charles and Sharon Spencer, who operate the Natural Furniture Store in Austin. This means that after waiting three and one-half years for this court to act 1 , the Spencers finally get the privilege of retrying the case on which they received a favorable jury finding in 1987. Because of errors in both the trial court and court of appeals, I agree that this cause must be reversed and remanded. I disagree completely with both the majority’s method of handling this matter and its ultimate disposition. A new trial is not mandated here because Eagle Star has waived the error of which it now complains.
The sole issue considered today is whether the jury charge properly submitted a violation of the Texas Insurance Code, which imposes liability for “unfair or deceptive acts or practices in the business of insurance.” Tex.Ins.Code, art. 21.21, § 16(a). Question 1A asked the jury to determine whether Eagle Star’s handling of the Spencers’ claim for loss of earnings was: “A. An unfair practice in the business of insurance?”
A jury charge should track the statutory language upon which it is based as closely as possible. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 937 (Tex.), cert. denied, 449 U.S. 1015 , 101 S.Ct. 575 , 66 L.Ed.2d 474 (1980). Utilizing the term “unfair practice in the business of insurance,” the text of Question 1A does just that with a near verbatim quote of the statutory language. 2 Despite the rather obvious similarity between the question submitted and the statutory language, the majority summarily dismisses the Spencers’ submission as failing “this test” of “track[ing] the language of the provision as closely as possible,” even while conceding that the question “plainly attempted to request a finding or statutory cause of action.”
The majority’s determination that the question was defective is not premised on the question at all, but is instead directed to disapproval of the accompanying definition, which provided:
“Unfair practice” means any act or series of acts which is arbitrary, without justification, or takes advantage of a person to the extent that an unjust or inequitable result is obtained.
This definition is paraphrased in the court’s conclusion that the “question” was defective by “allow[ing] the jury to find an unfair insurance practice based on any action by Eagle Star that took advantage of the Spenc-ers and resulted in an inequitable result.” Eagle Star never properly objected to the definition submitted. Rather, following its objections to the question, the insurer contended only that “we object to the instructions submitted for these [same] reasons.” Rule 274 does not permit the use of such cross-references in objections.
*160 Today’s blurring of the line between questions and definitions perpetuates the refusal to adhere to the rules governing objections to the charge so recently announced in State Dep’t of Highways v. Payne, 838 S.W.2d 235, 237 (Tex.1992), upon which the majority relies. The effect of these decisions is to absolve objecting parties from any obligation to assist the trial judge in clarifying the charge. See id. at 243 (Mauzy, J., dissenting); id. at 246 (Gonzalez, J., dissenting opinion on second motion for rehearing). Because general objections now suffice, the trial court submits “broad form” jury questions at its peril. Today’s approval of “broad form” objections has rendered Rule 278, Tex.R.Civ.P., setting forth explicit procedures for complaint concerning instructions and definitions in the charge, meaningless. If the rules are to change, it should not be by opinion, Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex.1992), but by ordered consideration and public comment.
Because Eagle Star has waived error, a new trial is not required. I would reverse the court of appeals’ judgment and remand to the trial court for rendition of judgment.
SPECTOR, J., joins in this concurring and dissenting opinion.
. "Every case deserves our prompt and careful attention whether the party seeking review in this court is a homeowner like Dutch Hines, a rape victim like Andrea Delaney, or a business, large or small.” Hines v. Hash, 843 S.W.2d 464, 470 (Tex.1992) (Doggett, J., concurring).
. Not only was this question proper under Brown , but it is also consistent with the rules governing broad-form submission. Tex.R.Civ.P. 277; Texas Dep’t of Human Services v. E.B., 802 S.W.2d 647 (Tex.1990).