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Memorial Medical Center of East Texas v. Howard7/30/1998
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. 93-15520, HONORABLE DON B. MORGAN, JUDGE PRESIDING
Appellant, Memorial Medical Center of East Texas ("Memorial"), appeals the summary judgment in favor of appellees, James A. Howard, Special Deputy Receiver of Texas Employers' Insurance Association ("the Receiver"), and Texas Property and Casualty Insurance Guaranty Association ("the Association"). Memorial sued appellees seeking a declaration that they owed Memorial reimbursement for the costs it incurred defending a suit brought against it by past and present employees. All parties filed motions for summary judgment. Without specifying the grounds, the trial court granted the motions filed by appellees. Memorial now appeals the granting of the motions. We will affirm.
STATEMENT OF FACTS
Texas Employers Insurance Association ("Employers") provided workers' compensation insurance to Memorial during the 1970s and 1980s. As part of the coverage, Employers agreed to defend Memorial against any claim, proceeding, or suit brought for benefits payable under the insurance policy. In 1989, former and present employees of Memorial filed suit against the hospital styled Allen v. Memorial Medical Center of East Texas. In their original petition, the Allen plaintiffs claimed that, as a result of Memorial's negligence, gross negligence, and intentional acts, they suffered personal injuries from exposure to ethylene oxide gas, which Memorial's surgical department used to sterilize surgical instruments. Since Employers insured Memorial during part of the time the Allen plaintiffs claimed to have been exposed to the gas, Memorial requested that Employers defend it against the suit. According to the facts alleged in Memorial's pleadings in the present case, Employers assumed the defense of Memorial until Employers became an impaired insurer and the subject of receivership proceedings.
On February 1, 1991, Employers was placed in temporary receivership, and a temporary receiver was appointed. The trial court appointed a permanent receiver on March 28, 1994, and James A. Howard was appointed Special Deputy Receiver. On April 8, 1994, the Association elected to assume the Receiver's responsibilities to process and pay covered claims in the Employers' receivership proceeding.
On December 21, 1993, Memorial filed suit seeking a declaration that appellees were obligated both "to provide a defense for Memorial" in the Allen suit and "to indemnify Memorial for its past expenses in defending" the Allen suit. On August 29, 1996, Memorial filed its Third Amended Petition in which it claims that, as of the date of filing, it has spent $147,985.98 defending the Allen suit. Memorial continues to assert that the Receiver and the Association are obligated to pay Memorial's past and future expenses incurred in defending the Allen suit and continues to seek a declaration to that effect. All parties filed motions for summary judgment. The trial court, without specifying the reasons, granted appellees' motions. In two points of error, Memorial now appeals, contending the trial court erred in granting the appellees' motions for summary judgment.
STANDARD OF REVIEW
A summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a. In deciding whether a disputed material fact issue precluding summary judgment exists, evidence favorable to the non-movant will be taken as true. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference must be indulged in favor of the non-movant
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