










 
COURT OF APPEALS
SECOND 
DISTRICT OF TEXAS
FORT WORTH
 
NO. 2-02-135-CV
 
CAROL S. COVINGTON                                                          APPELLANT
 
V.
 
THE TRAVELERS INDEMNITY 
COMPANY OF                               APPELLEE
RHODE ISLAND/CONNECTICUT
 
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FROM THE 17TH DISTRICT COURT 
OF TARRANT COUNTY
 
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OPINION
 
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        This 
is an appeal from a take-nothing summary judgment entered against appellant 
Carol S. Covington (“Covington”) in connection with her claim that 
defendant/appellee The Travelers Indemnity Company of Rhode Island/Connecticut 
(“Travelers”) breached its duty of good faith and fair dealing by failing to 
pay weekly indemnity benefits for a physical injury she suffered during the 
course and scope of her employment with American Airlines in 1990. The summary 
judgment motion was filed pursuant to Texas Rule of Civil Procedure 166a, 
although it is unclear whether Travelers intended the motion to set forth a 
“no-evidence” argument in addition to its traditional summary judgment 
argument.1  Tex. R. Civ. P. 166a. We will reverse 
the trial court’s summary judgment and remand the case for trial.
I. Factual and Procedural Background
        On 
January 25, 1990, Covington sustained an accidental injury in the course and 
scope of her employment with American Airlines. Covington filed a workers’ 
compensation claim with Travelers, her employer’s insurance carrier, who paid 
Covington total disability weekly indemnity benefits for nineteen weeks. 
Covington, denying that she sustained only nineteen weeks of total temporary 
disability and arguing that she was totally and permanently disabled, requested 
a hearing before the Texas Workers’ Compensation Commission (TWCC). On March 
9, 1995, the TWCC entered its final award, finding that Covington sustained a 
compensable injury and ordering Travelers to pay Covington for nineteen weeks 
for total temporary disability and for 300 weeks for permanent loss of wage 
earning capacity.
        Covington 
filed her first amended petition in district court on November 20, 1996, seeking 
to set aside the final award of the TWCC and alleging negligence, gross 
negligence, and bad faith on the part of Travelers, as well as violations of the 
Texas Deceptive Trade Practices Act (DTPA) and the Texas Insurance Code. On 
December 16, 1996, by agreed order, the trial court severed Covington’s 
extra-contractual claims from her appeal of the TWCC award and abated those 
claims pending resolution of the contractual claims. On November 6, 1997, the 
trial court entered its judgment in the contract suit, awarding Covington an 
additional $46,002 in benefits beyond the $4,522 in weekly indemnity benefits 
paid by Travelers. The trial court also granted Travelers’s motion for summary 
judgment on Covington’s extra-contractual claims, a decision Covington 
appealed to this court. On July 6, 2001, we reversed the trial court’s summary 
judgment order on the ground that the trial court erred in granting 
Travelers’s judgment as a matter of law on a cause of action not presented in 
Travelers’s motion; specifically, the motion for summary judgment did not 
address Covington’s claims that Travelers denied payment of weekly indemnity 
benefits in bad faith. Covington v. State, No. 2-00-025-CV (Tex. 
App.–Fort Worth July 6, 2001, no pet.) (not designated for publication). 
Following remand, Travelers presented the trial court with another summary 
judgment motion. On January 18, 2002, the trial court granted Travelers’s 
motion for summary judgment without stating a particular basis for doing so. 
Covington thereafter perfected the present appeal.
II. The Standard of Review
        The 
Texas Supreme Court first recognized an insurer’s tort duty of good faith and 
fair dealing to its insured in Arnold v. Nat’l County Mut. Fire Ins. Co., 
725 S.W.2d 165 (Tex. 1987). In Arnold, the court held that an insurer 
breaches its duty of good faith and fair dealing when (1) the insurer had no 
reasonable basis for denying or delaying payment of a claim and (2) the insurer 
knew or should have known of that fact. Id. at 167; see also Universe 
Life Ins. Co. v. Giles, 950 S.W.2d 48, 50-51 (Tex. 1997). The court noted in 
Giles that while this test appears straightforward in theory, it has 
proven difficult to apply in practice because the plaintiff in a bad-faith case 
must prove the absence of a reasonable basis to deny the claim, a negative 
proposition, while appellate courts, in the context of a no-evidence challenge 
advanced by an insurer, must resolve all conflicts in the evidence in favor of a 
bad-faith finding. 950 S.W.2d at 51. Evidence that shows only a bona fide 
dispute about the insurer’s liability on the contract does not rise to the 
level of bad faith. U.S. Fire Ins. Co. v. Williams, 955 S.W.2d 267, 268 
(Tex. 1997); Nat’l Union Fire Ins. Co. v. Dominguez, 873 S.W.2d 373, 
376-77 (Tex. 1994).
        The 
standard of review applicable in summary judgment cases is well established. The 
issue on appeal is whether the movant met his summary judgment burden by 
establishing that no genuine issue of material fact exists and that the movant 
is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); S.W. Elec. 
Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. 
Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The burden of 
proof is on the movant, and all doubts about the existence of a genuine issue of 
material fact are resolved against the movant. S.W. Elec. Power Co., 73 
S.W.3d at 215; Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 
1999); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 
S.W.2d 41, 47 (Tex. 1965). Therefore, we must view the evidence and its 
reasonable inferences in the light most favorable to the nonmovant. Great Am., 
391 S.W.2d at 47.
        In 
deciding whether there is a material fact issue precluding summary judgment, all 
conflicts in the evidence are disregarded and the evidence favorable to the 
nonmovant is accepted as true. Rhone-Poulenc, 997 S.W.2d at 223; Harwell 
v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995). Evidence 
that favors the movant's position will not be considered unless it is 
uncontroverted. Great Am., 391 S.W.2d at 47.
        The 
summary judgment will be affirmed only if the record establishes that the movant 
has conclusively proved all essential elements of the movant's cause of action 
or defense as a matter of law. Clear Creek Basin, 589 S.W.2d at 678. 
Finally, a defendant is entitled to summary judgment if the summary judgment 
evidence establishes, as a matter of law, that at least one element of a 
plaintiff’s cause of action cannot be established. Elliott-Williams Co. v. 
Diaz, 9 S.W.3d 801, 803 (Tex. 1999). The defendant as movant must present 
summary judgment evidence that negates an element of the plaintiff’s claim. Centeq 
Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). Once the defendant 
produces sufficient evidence to establish the right to summary judgment, the 
burden shifts to the plaintiff to come forward with competent controverting 
evidence raising a genuine issue of material fact with regard to the element 
challenged by the defendant. Id.
        After 
an adequate time for discovery, the party without the burden of proof may, 
without presenting evidence, move for summary judgment on the ground that there 
is no evidence to support an essential element of the nonmovant's claim or 
defense. Tex. R. Civ. P. 166a(i). 
The motion must specifically state the elements for which there is no evidence. Id.; 
Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The 
trial court must grant the motion unless the nonmovant produces summary judgment 
evidence that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i) cmt.; S.W. 
Elec. Power Co., 73 S.W.3d at 215.
        We 
review the evidence in the light most favorable to the party against whom the 
no-evidence summary judgment was rendered. Johnson, 73 S.W.3d at 197; Morgan 
v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000). If the nonmovant brings forward 
more than a scintilla of probative evidence that raises a genuine issue of 
material fact, then a no-evidence summary judgment is not proper. Moore v. K 
Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied).
III. Application
        We 
begin with the question of whether Covington produced more than a scintilla of 
probative evidence showing that liability to pay her weekly indemnity benefits 
was ever “reasonably clear.” The summary judgment evidence reflects that 
Travelers paid Covington weekly indemnity benefits totaling $4,522 for nineteen 
weeks, but that its own internal documents made shortly after the injury set 
reserves at the higher amount of $7,000 and estimated the “value range” for 
the injury to be between $5,000 and $7,500 plus two years of medical benefits, 
or $4,500 plus lifetime medical benefits.2  
Following a later injury in 1992, another internal document prepared by 
Travelers bears the somewhat cryptic notation “totally disabled from 1990 
injury.”3  In light of these documents and 
Travelers’s refusal to pay an additional amount above the original $4,522 in 
weekly indemnity benefits (until the trial court entered judgment awarding 
Covington $50,524–more than seven years after her injury), we hold there was 
more than a scintilla of evidence indicating that liability to pay weekly 
indemnity benefits above that actually paid was “reasonably clear” to 
Travelers.
        We 
reach a similar result on the issue of whether under Travelers’s traditional 
summary judgment claim this case may be decided as a matter of law on the ground 
that the controversy between the parties in the underlying claim was simply a 
good faith dispute over the extent of Covington’s injury. A court is entitled 
to decide an issue as a matter of law when there is no conflict in the evidence; 
however, when there is evidence on either side of the “bad faith” claim, the 
issue presents a fact question. Giles, 950 S.W.2d at 56.
        In 
Giles the court held that whether an insurer acted in bad faith because 
it denied or delayed payment of a claim after it became reasonably clear was a 
question for the fact-finder. Id. But in Williams, a case decided 
on the same day as Giles, the court held that where the summary judgment 
proof “conclusively established” that there was no more than a good-faith 
dispute between the parties concerning the insurer’s liability on the 
contract, bad faith is not shown, and the case may be decided as a matter of 
law. Williams, 955 S.W.2d at 268. In applying the respective rulings in Giles 
and Williams to the instant case, we interpret those cases as providing 
that unless the summary judgment evidence conclusively established that 
Travelers acted in good faith, i.e., that there was conclusive evidence of a 
bona fide dispute on the extent of Covington’s injury, the issue presents a 
question of fact requiring resolution by trial. Because no such conclusive 
evidence was presented by Travelers, we hold the trial court erred in granting 
summary judgment in its favor.4
        Travelers 
also argues that Covington’s claims under the DTPA and Insurance Code fail for 
the same reasons argued by Travelers in connection with the bad-faith claim and 
for the additional reason that the statutory “pathway was closed by the tort 
reform amendments of 1995.” Our ruling against Travelers on the bad-faith 
issue disposes of Travelers’s first argument, and by failing to address the 
issue concerning the alleged impact of the tort reform amendments in its summary 
judgment motion, the second issue presents nothing for review. See Stiles v. 
Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993) (ruling movant is not 
entitled to summary judgment on a theory of liability or defense different from 
the theory that is alleged in the motion). Point one is sustained.
        The 
trial court’s summary judgment is reversed, and the case is remanded to the 
court for further proceedings consistent with this opinion.






                                                          DAVID 
L. RICHARDS
                                                          JUSTICE
   
PANEL 
A:   LIVINGSTON and DAUPHINOT, JJ.; and DAVID L. 
RICHARDS, J.
(Sitting by Assignment).
 
DELIVERED: November 6, 2003


 
NOTES
1. 
The “Introductory Statement and Grounds for Summary Judgment” section of 
Travelers’ motion for summary judgment states that “[t]here is no 
evidence that liability to pay [Covington] such weekly indemnity benefits 
was ever ‘reasonably clear’” [emphasis added]; however, the remainder of 
the motion reads as though Travelers intended the motion to present only a 
traditional summary judgment argument. Out of an abundance of caution we will 
interpret the motion as presenting both a no-evidence and traditional summary 
judgment argument.
2. 
Travelers’s offer as of January 27, 1995, the date of the formal hearing 
before the Commission, was $2,500 with no medical benefits.
3. 
It is unclear whether this notation was intended as a conclusion by Travelers on 
the injury or whether it was merely intended to indicate Covington’s 
allegation.
4. 
We do not mean to suggest by our analysis that Travelers did, in fact, act in 
bad faith in evaluating the claim. We mean only that, under the summary judgment 
evidence presented, questions of material fact remain in dispute.
