




lifeins                                                             



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 


NO. 3-93-040-CV



COMMERCIAL LIFE INSURANCE COMPANY,

	APPELLANT

vs.



TEXAS STATE BOARD OF INSURANCE AND
 BANKERS COMMERCIAL LIFE INSURANCE COMPANY,

	APPELLEES



 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 377,085, HONORABLE HUME COFER, JUDGE PRESIDING

 


	In three points of error, Appellant Commercial Life Insurance Company appeals
from the trial court's take-nothing judgment based on a jury verdict that the name
"Commercial Life Insurance Company" was so similar to those of other insurance companies
as to likely mislead the public.  We will affirm the trial court's judgment.


The Controversy

	This lawsuit arose from the protest of a name reservation before the State Board
of Insurance (the "Board").  In 1983, the Commissioner of the Board granted Appellant's statutory
request to reserve the name "Commercial Life Insurance Company."  Three insurance companies,
Commercial Life & Accident Company, Bankers Commercial Life Insurance Company, and
Commercial National Life Insurance Company, appealed the Commissioner's decision to the
Board.  The Board overruled the decision of the Commissioner and retracted Appellant's name
reservation.  Appellant sought judicial review in the Travis County district court.
	The trial court determined that the scope for review of the Board's decision was
substantial evidence.  Based on this standard, the trial court conducted a hearing and found against
Appellant.  On appeal, this Court reversed the decision of the trial court, holding that de novo was
the proper scope of review.  Commercial Life Ins. Co. v. Texas State Bd. of Ins., 808 S.W.2d 552
(Tex. App.--Austin 1991, writ denied).
	On remand, a jury trial was held in September 1992, (1) in which testimony was heard
from Dr. Isabelle Cunningham, an expert witness; Mr. Anthony Battiloro, Appellant's Vice
President; and Mr. Abdnor, Chairman of the Board of Banker's Commercial Life Insurance
Company.  The jury found that the name "Commercial Life Insurance Company" was so similar
to other names as to likely mislead the public. (2)  The trial court rendered a judgment on the jury
verdict against Appellant on October 1, 1992.


Sufficiency of the Evidence

Standard of Review
	Appellant contends in its first point of error that the trial court erred in rendering
judgment on the jury verdict because there is no evidence to support the jury's finding.  Appellant
contends in its second point of error that the evidence is factually insufficient to support the jury
verdict.
	In deciding a no-evidence point, we must consider only the evidence and inferences
tending to support the finding of the trier of fact and disregard all evidence and inferences to the
contrary.  Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex. 1986), cert. denied, 111 S.
Ct. 135 (1990); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).  See generally William
Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex.
L. Rev. 515 (1991); Michol O'Connor, Appealing Jury Findings, 12 Hous. L. Rev. 65 (1974). 
If there is more than a scintilla of probative evidence supporting the finding, we must overrule
the point and uphold the finding.
	When reviewing a jury verdict to determine the factual sufficiency of the evidence,
we must consider and weigh all the evidence and should set aside the judgment only if it is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Cain v.
Bain, 709 S.W.2d 175, 176 (1986); In re Estate of King, 244 S.W.2d 660, 661 (Tex. 1951); see
also Pool v. Ford. Motor Co., 715 S.W.2d 629 (Tex. 1986).
Review of the Evidence
	Appellant relies on the testimony of Dr. Cunningham, who conducted a study and
found that the name "Commercial Life Insurance Company" was not likely to mislead the public. 
However, Appellees proved on cross-examination that almost thirty percent of the people surveyed
by Dr. Cunningham were confused by various companies with the word "Commercial" in their
names.  Appellees further demonstrated on cross-examination that there were inconsistencies in
Dr. Cunningham's testimony.  
	Appellant also relied on Appellant's Senior Vice President, Mr. Battiloro, who
testified that he had no reason to believe that his company's name would be misleading to the
public.  However, he admitted on cross-examination that policyholders frequently made mistakes
when issuing checks to the company.  Mr. Battiloro also admitted that Appellant is authorized to
offer the same type of insurance that is offered by Bankers Commercial in Texas.
	Appellees called the President of Bankers Commercial Life Insurance, Mr. Abdnor,
who testified that his company had received numerous documents confusing the name of his
company with those of others.  Mr. Abdnor identified documents prepared by Appellant's own
counsel which confused Appellant's name.
	Based on this review of the evidence, we conclude that there is more than a scintilla
of evidence to support the jury's verdict.  Accordingly, Appellant's first point of error is
overruled.  When we review the record as a whole, we conclude that the evidence is factually
sufficient to support the jury's verdict.  Accordingly, Appellant's second point of error is also
overruled.


Appellant's Requested Instruction
Standard of Review
	In its third point of error, Appellant argues that the trial court erred in failing to
submit an instruction regarding the Board's standards for approval of insurance company names.
	Rule 277 of the Texas Rules of Civil Procedure requires that a court submit such
instructions that are proper in enabling the jury to make a just decision.  A trial court is only
required to submit explanatory instructions and definitions for legal and technical terms.  Ortiz
v. O.J. Beck & Sons, Inc., 611 S.W.2d 860, 868 (Tex. Civ. App.--Corpus Christi 1980, no writ). 
Otherwise, special instructions should be submitted when, in the sole discretion of the judge, they
will help the jury in making its determination.  Southern Pac. Transp. Co. v. Garrett, 611 S.W.2d
670, 674 (Tex. Civ. App.--Corpus Christi 1980, no writ).
	The trial court has considerable discretion in determining what jury instructions are
necessary and proper.  Eoff v. Hal & Charlie Peterson Found., 811 S.W.2d 187, 192 (Tex.
App.--San Antonio 1991, no writ);  Ortiz, 611 S.W.2d at 868.  In deciding whether the trial court
has abused its discretion, we may not substitute our judgment for the trial court's, and must
determine only whether the trial court's action was arbitrary or unreasonable.  Multi-Moto v. ITT
Commercial Fin., 806 S.W.2d 560, 567-68 (Tex. App.--Dallas 1990, writ denied).


Review of the Administrative Hearing
	Under Texas law, the original administrative order that is the subject of appeal is
nullified in a de novo proceeding.  State Bd. of Ins. v. Republic Nat'l Ins. Co., 384 S.W.2d 369,
372 (Tex. Civ. App.--Austin 1964, writ ref'd n.r.e.).  The purpose of a de novo trial is to retry
the issues on which a previous judgment was founded.  Southern Canal Co. v. State Bd. of Water
Eng'rs, 318 S.W.2d 619, 622 (Tex. 1958).  Review of an administrative decision by trial de novo
functions not as a suit for judicial review, but as a new and independent action.  Key Western Life
Ins. Co. v. State Bd. of Ins., 350 S.W.2d 839, 846 (Tex. 1961).  
	Using this rationale, this Court in USLIFE Life Insurance Co. v. State Board of
Insurance, 527 S.W.2d 204 (Tex. Civ. App.--Austin 1975, writ ref'd n.r.e.), determined that
nullification of all of the Insurance Board's administrative proceedings, not merely the judgment,
is appropriate in a de novo review.  Id. at 207.  The appearance of administrative guidelines in
a jury charge would be relevant only if they would help the jury to make a determination.
	Appellant requested that Title 28, Section 7.701 of the Texas Administrative Code
be included in the jury instructions.  However, Appellant did not object to the trial court's
instruction that the words "similar," "likely," "mislead," and "public" had the same meanings in
this instance that they had in common usage.  The jury members were to answer the question
submitted to them based on the evidence presented at trial.  Section 7.701 merely provides
guidelines for an administrative proceeding, and is of little assistance in determining the common
usage of the terms "similar," "likely," "mislead," and "public."
	In rejecting Appellant's request, the trial court implicitly determined that Section
7.701 would not assist the jury in its determination.  It is not an abuse of discretion upon a de
novo review for the court to allow the jury to consider the question submitted without regard to
administrative guidelines.  Accordingly, Appellant's third point of error is overruled.


Conclusion
	For the reasons stated above, we affirm the judgment of the trial court.


  
					Mack Kidd, Justice
[Before Justices Powers, Kidd and B. A. Smith]
Affirmed
Filed:   July 7, 1993
[Do Not Publish] Released for Publication March 29, 1995.  Tex. R. App. P. 90(h).
1.        Before trial, defendant Commercial Life & Accident Insurance Company settled
with Appellant. The trial court granted Appellant summary judgment against Defendant
Commercial National Life Insurance Company; therefore, the only Defendants at trial
were Bankers Commercial Life Insurance Company and the Board.
2.        The issue submitted to the jury was the following:  "Is the name Commercial Life
Insurance Company so similar to that of any other insurance company as to be likely to
mislead the public?"  The jury responded affirmatively.

