




CV3-093, Texas Able                                                 



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-93-093-CV



TEXAS ABLE ONES INC. D/B/A INDUSTRIAL LABOR SERVICE,


	APPELLANT

vs.



EUGENE A. BRODHEAD, AS RECEIVER FOR AMERICAN PACER INSURANCE CO.,

	APPELLEE


 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. 92-09822, HONORABLE JERRY DELLANA, JUDGE PRESIDING

 


	Appellant Texas Able Ones, Inc., doing business as "Industrial Labor Service,"
prays that we reverse a summary judgment that it take nothing by its suit against appellee Georgia
D. Flint, receiver for American Pacer Insurance Company. (1)  We will affirm the judgment.

 
THE CONTROVERSY
	In May, 1990, a collision occurred between an automobile owned by appellant and
another driven by Todd Paugh, an insured under a liability policy issued by American Pacer
Insurance Company.  In August 1990, American Pacer was placed in receivership.  Thereafter,
appellant filed with the receiver a proof of claim, in the amount of $45,391, for losses allegedly
sustained in the collision.
	By letter dated January 14, 1992, the receiver notified appellant as follows:


The . . . claim you filed with the Receiver has been approved as a covered claim
in the amount of $250.00 under the provision of TEX. INS. CODE ANN. art.
21.28 and 21.28-C.  The balance of your claim is hereby rejected for all purposes
as a covered claim and as a claim against the assets of the estate.  A check in the
amount of $250.00 will be forwarded to you when we receive a properly executed
release.

Enclosed is our standard release.  In order to make payment on this claim, we ask
that the enclosed release be dated and signed before a notary, and returned to us
within ninety days of the date of this letter.  If you fail to return the release within
the specified time period, your claim is hereby rejected.

Under TEX. INS. CODE ANN. art. 21.28, § 3(h), action upon a claim rejected
in whole or in part must be brought in the court in which the delinquency
proceedings are pending within three (3) months after service of notice; otherwise,
the action of the Receiver shall be final and not subject to review.


(italicized emphasis added).  Appellant received the letter on January 16, 1992, and filed its
original petition in the present cause on July 7, 1992.
	The receiver moved for summary judgment on the ground that appellant's cause
of action was time-barred by the terms of article 21.28, section 3(h) of the Texas Insurance Code. 
The statute declares:


(h) Action on Claims.  The receiver shall have the discretion to approve or reject
any claim filed against the insurer. . . . Upon the rejection of each claim either in
whole or in part, the receiver shall notify the claimant of such rejection by written
notice.  Action upon a claim so rejected must be brought in the court in which the
delinquency proceeding is pending within three (3) months after service
of notice; otherwise, the action of the receiver shall be final and not subject to
review.


Tex. Ins. Code Ann. art. 21.28, § 3(h) (West Supp. 1993) (emphasis added).
	The trial court sustained the receiver's motion for summary judgment and appellant
appeals on two points of error: the judgment was erroneous because appellant filed his original
petition within the time allowed by article 21.28, section 3(h) of the Texas Insurance Code, and
the judgment denies appellant due process of law.
DISCUSSION AND HOLDINGS
	Appellant, as indicated below, advances several reasons in support of its points of
error.  Because appellant fails to offer any authority for its arguments, his contentions are subject
to waiver.  See Tex. R. App. P. 74(f); McPherson Enters., Inc., v. Producers Coop. Marketing
Ass'n, 827 S.W.2d 94, 96 (Tex. App.--Austin 1992, no writ).  We will, however, review
appellant's points of error.
	Appellant argues in his first point of error that the letter of January 14, 1992, was
not a notice of rejection because: (1) the word "covered" appears in the letter twice and is
underlined each time, while the word "rejected" appears only once and is not underlined for
emphasis, implying that no other part was in fact rejected; (2) the letter implies that any rejection
was contingent only because it states that if appellant should "fail to return the release within the
specified time period, [its] claim is hereby rejected;" and (3) the receiver's motion for summary
judgment did not explicitly "argue" that the language of the letter in fact rejected appellant's
claim.
	We reject the argument.  The sense of the first paragraph of the letter, quoted
above, is a plain rejection of appellant's claim, on its merits, to the extent of $45,141.00, and an
approval of the claim, on its merits, to the extent of $250.00.  The second paragraph of the letter
pertains to the payment of the approved claim on receiving the executed release within ninety
days; it may not reasonably be interpreted as referring to a future rejection of all claims based on
the merits of these claims, as opposed to a rejection for failing to supply the release demanded. 
Finally, paragraphs five through eight of the receiver's motion for summary judgment set out
explicitly the theory that appellant's cause of action was time-barred, by section 3(h) of article
21.28, because the receiver's letter, a sworn copy of which was attached to the motion, was
received by appellant on January 16, 1992.  We overrule the first point of error.
	Appellant argues in a second point of error that it was deprived of due process of
law because the notice of rejection was vague and ambiguous, in the particulars mentioned above,
as to whether it was in fact a rejection of appellant's claim.  We hold the letter was not ambiguous
for the reasons given previously.  Moreover, appellant did not raise his constitutional argument
in the trial court, and we may not, therefore, consider it on appeal.  Boyd v. Fuel Distribs., Inc.,
795 S.W.2d 266, 271 (Tex. App.--Austin 1990, writ denied).  We overrule the second point of
error.
	Finding no error, we affirm the trial-court judgment.


  
					John Powers, Justice
Before Justices Powers, Kidd and B. A. Smith
Affirmed
Filed:   August 11, 1993
Publish
1.        The case is styled to show Eugene A. Brodhead as appellee, because he was the
original receiver against whom the suit was filed.  Since then, evidently, the receiver
handling this suit has changed--first to Sandra A. Autry and again to Georgia D. Flint. 
The parties never requested a change in the style of the suit; we have maintained the
original style.
