                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-09-248-CV


GLENDA AND LARRY RICE                                             APPELLANTS

                                        V.

METROPOLITAN LIFE                                                     APPELLEE
INSURANCE COMPANY

                                    ------------

         FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                                   OPINION

                                    ------------

      In this life insurance dispute, appellants Glenda and Larry Rice raise ten

points to appeal the trial court’s order granting the traditional and no-evidence

summary judgment motion of appellee Metropolitan Life Insurance Company

(MetLife). We affirm in part and reverse and remand in part.
                                   Background

Underlying facts

      Glenda purchased group universal life (GUL) insurance for herself and a

life insurance rider for her husband Larry, as her dependant, from MetLife

through a plan offered by her employer, Avon Products, Inc.          Larry’s rider

provided $50,000 in coverage. Glenda retired from Avon in March 2003.

      MetLife sent a letter dated May 10, 2003 that was addressed to Glenda

and described her insurance options upon retirement.        The letter contained

information in its upper right corner, under the title of “Coverage Information

as of 5/10/2003,“ about the amount of Glenda’s own coverage and of Larry’s

coverage (described specifically in the letter at $50,000). It then stated in part,

            You’ve worked for many years to ensure a solid financial
      future. Now it’s time to relax and let us keep a promise that we
      made to you when you enrolled for Group Universal Life insurance.
      You trusted MetLife to provide a flexible life insurance benefit that
      would meet a lifetime of protection needs. Now, at this very
      important stage of your life, we’d like to continue to offer you a
      menu of coverage options. Most likely, your coverage needs have
      changed since you first enrolled for GUL. The enclosed brochure
      and options sheet explains the options now available to you.

             Please review these options carefully. Please note that your
      current coverage will remain effective while you assess your
      choices . . . . To choose an option, simply complete the attached
      election form, sign where indicated, and return to MetLife in the
      envelope provided. . . .




                                        2
           We look forward to continuing to serve your needs and help
      you keep your promises. Again, congratulations and our best
      wishes during your retirement!

      The election form explained Glenda’s coverage options: (1) “CONTINUE

MY GUL COVERAGE,” (2) “ELECT A PAID-UP BENEFIT,” (3) “ELECT A METLIFE

ANNUITY,” or (4) “SURRENDER YOUR COVERAGE & RECEIVE YOUR CASH

FUND BALANCE.” Glenda initially sent MetLife a fax in which she chose the

fourth option, but later on the same day that she sent the first fax, after

speaking with a MetLife employee named Summer, Glenda sent another fax

stating that she wanted to continue her coverage under the first option.

The second fax that Glenda sent stated in part, “I just discussed my decision

to retain my coverage with Summer, your customer service associate. She has

assured me my coverage will neither lapse nor be cancelled.”

      The certificate of insurance for Glenda’s group life insurance plan states

that term life insurance for dependants ends on the date of the employee’s

retirement.1 However, for about two and a half years after Glenda’s retirement,

MetLife continued to bill and accept quarterly premium payments for both

Glenda’s coverage and Larry’s rider coverage.       Glenda received a “Group




      1
      During discovery, Glenda admitted that she received the certificate; her
admission does not indicate when she received it.

                                       3
Universal Life Report” for the period of January to December 2005 that

mentioned Larry’s $50,000 in coverage. 2

      In July 2005, MetLife discovered that it had billed the Rices for Larry’s

coverage since Glenda’s retirement in 2003, so in the latter part of 2005,

MetLife stopped billing the Rices for that coverage without notice to Glenda.

When Glenda received the bill for the final quarter of 2005, she saw for the first

time that MetLife had stopped billing for Larry’s coverage. When she called

MetLife in December 2005, MetLife’s employee, Angelica Ridge, explained to

her that MetLife did not cover term life insurance for dependants under the

Avon group policy upon an employee’s retirement and that Larry’s coverage had

been canceled “effective July 2005.” 3      Glenda told Angelica that no one

notified her of Larry’s coverage cancellation. Despite this, according to Glenda,

Angelica told her that the premiums that Glenda had paid for Larry’s coverage




      2
        The Group Universal Life Report shows the values of the coverage and
details financial activity related to the coverage.
      3
       MetLife later corrected the effective date of the cancellation of Larry’s
coverage retroactively to March 2003 (the month of Glenda’s retirement).
According to MetLife, it discovered its billing mistake in a records audit.
MetLife’s representative Mark Money swore, “[T]he dependent spouse coverage
must be manually changed in the system. When Mrs. Rice retired she
continued her life insurance coverage and was billed on a quarterly basis.
Mistakenly[,] MetLife’s system was not manually changed to end the dependent
spouse coverage billing.”

                                        4
would not be refunded and that Larry’s coverage was in place through July

2005.

Procedural history

      The Rices filed claims against MetLife for bad faith, breach of contract,

violation of the Texas Deceptive Trade Practices-Consumer Protection Act

(DTPA),4 violation of chapter 541 of the insurance code, 5 money had and

received (based on the nonreturn of the Rices’ premium payments for Larry’s

coverage), promissory estoppel, breach of fiduciary duty, and fraud by

nondisclosure. MetLife filed, in one document, a traditional and no-evidence

motion for summary judgment on all of the Rices’ claims. The court granted

the motion in its entirety without specifying reasons for doing so. The Rices

filed their notice of this appeal.

   The Trial Court’s Order Granting MetLife’s Summary Judgment Motion

      In their first nine points, the Rices argue that the trial court erred by

granting MetLife’s traditional and no-evidence summary judgment motion

against their various claims.




      4
      See Tex. Bus. & Com. Code Ann. §§ 17.41–.63 (Vernon 2002 & Supp.
2009).
      5
          See Tex. Ins. Code Ann. §§ 541.001–.454 (Vernon 2009).

                                      5
Standards of review

      Traditional summary judgment motions

      A defendant who conclusively negates at least one essential element of

a cause of action is entitled to summary judgment on that claim. IHS Cedars

Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.

2004). 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 that raises a fact issue. Van v. Pena, 990

S.W.2d 751, 753 (Tex. 1999).

      We review a summary judgment de novo. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We consider the

evidence presented in the light most favorable to the nonmovant, crediting

evidence favorable to the nonmovant if reasonable factfinders could and

disregarding evidence contrary to the nonmovant unless reasonable factfinders

could not. Id. We indulge every reasonable inference and resolve any doubts

in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.

2008). We must consider whether reasonable and fair-minded factfinders could

differ in their conclusions in light of all of the evidence presented. See Wal-

Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller

v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005).

                                      6
      No-evidence summary judgment motions

      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.; Timpte

Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). 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);

Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).

      Like our review of traditional summary judgment motions, when reviewing

a no-evidence summary judgment, we examine the entire record in the light

most favorable to the nonmovant, indulging every reasonable inference and

resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291,

292 (Tex. 2006). And also like traditional motions, we review a no-evidence

summary judgment for evidence that would enable reasonable and fair-minded

factfinders to differ in their conclusions. Hamilton, 249 S.W.3d at 426 (citing

City of Keller, 168 S.W.3d at 822).       We credit evidence favorable to the

nonmovant if reasonable factfinders could, and we disregard evidence contrary

to the nonmovant unless reasonable factfinders could not. Timpte Indus., Inc.,

                                      7
286 S.W.3d at 310 (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,

582 (Tex. 2006)). 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. Smith v. O’Donnell, 288 S.W.3d

417, 424 (Tex. 2009).

Breach of contract

      In their third point, the Rices contend that the trial court erred by granting

summary judgment against their breach of contract claim. Insurance policies

are contracts. Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 665 (Tex.

1987); see Markel Ins. Co. v. Muzyka, 293 S.W.3d 380, 385–86 (Tex.

App.—Fort Worth 2009, no pet.) (describing various principles of contract

interpretation that apply to insurance policies). “The elements of a breach of

contract claim are (1) the existence of a valid contract, (2) performance or

tendered performance by the plaintiff, (3) breach of the contract by the

defendant, and (4) resulting damages to the plaintiff.” Fieldtech Avionics &

Instruments, Inc. v. Component Control.Com, Inc., 262 S.W.3d 813, 825 (Tex.

App.—Fort Worth 2008, no pet.) (citing Harris v. Am. Prot. Ins. Co., 158

S.W.3d 614, 622–23 (Tex. App.—Fort Worth 2005, no pet.)).

      MetLife has not expressly argued that the certificate of insurance does

not qualify as a valid contract or that the Rices did not perform under that

                                         8
contract. Rather, MetLife moved for summary judgment on the grounds that

(1) there was no evidence that it breached the contract because its termination

of Larry’s coverage upon Glenda’s retirement was mandated by the terms of

the certificate of insurance and (2) the Rices have not suffered damages.

      The Rices contend that MetLife waived its termination of Larry’s coverage

under the certificate of insurance when it accepted premiums for two and a half

years and represented in writing after Glenda’s retirement that Larry had

coverage.   Furthermore, they contend that the “correspondence and the

associated oral and written exchanges between MetLife and [Glenda] in May of

2003 is . . . an extension of the original policy or a new contract implying the

same terms.”      In MetLife’s motion for summary judgment, it stated,

“Mistakenly, and to the benefit of Mr. Rice, MetLife kept coverage in place and

continued to charge group premiums for the dependent coverage until July

2005 when the mistake was discovered.”

      MetLife relies on Ulico Casualty Company v. Allied Pilots Association to

contend that coverage under the policy cannot be expanded by the waiver or

estoppel doctrines. 262 S.W.3d 773, 775–87 (Tex. 2008).6 In Ulico, the



      6
       Waiver is the intentional relinquishment of a right actually known or
intentional conduct inconsistent with claiming that right; estoppel prevents one
party from misleading another to the other’s detriment or to the misleading
party’s own benefit. Id. at 778.

                                       9
Texas Supreme Court considered whether an insurer’s claims-made liability

insurance policy (requiring notification during the policy period to the insurer of

a claim against the insured) could be extended by those doctrines to cover a

suit against the insured by a third party that was filed within the policy period

but was not reported to the insurer until after the policy expired.          Id. at

775–77. In that case, although the insured had untimely reported the claim

against it, the insurer reviewed the claim and sent the insured a letter stating

that the insured’s defense costs would be paid. Id. at 775–76. Thus, the

insured pursued its defense, but when the insured’s counsel submitted a

$635,000 bill for costs incurred while defending the insured, the insurer sought

a declaratory judgment to determine that it did not owe the costs under the

policy. Id. at 776.

      At the trial of the insurer’s declaratory judgment case, the jury decided

that the insurer had agreed to pay the insured’s defense costs separately from

the insurer’s original policy with the insured, had waived its right to assert that

the policy did not cover the costs, and was estopped from asserting that the

policy did not cover the costs. Id. The trial court set aside the jury’s finding

that the insurer agreed to pay the costs apart from the policy but entered

judgment as to the jury’s waiver and estoppel findings. Id. We affirmed the

trial court’s judgment. Id. at 776–77.

                                        10
      In reversing our decision, the supreme court noted that when a policy

covers risks for a certain time period (such as the certificate of insurance does

here by ending Larry’s term insurance on the date of the Glenda’s retirement),

“the time of the event allegedly triggering coverage is a precondition to

coverage and is not considered a defensive matter to be pleaded and proved by

the insurer. The insurer has neither a ‘right’ nor a burden to assert noncoverage

of a risk or loss . . . .” 7 Id. at 778 (citation omitted). Then, the court explained

that it had

      addressed the question of whether the contractual coverage of an
      insurance policy can be expanded by waiver or estoppel over
      seventy years ago in Washington National Insurance Co. v.
      Craddock, 130 Tex. 251, 109 S.W.2d 165 (Tex. 1937). In that
      case, Craddock, the insured, was entitled to weekly indemnity
      payments if he became incapacitated from an accidental injury.
      The policy specifically excepted gunshot wound injuries from
      coverage. Craddock accidentally shot himself with a pistol,
      submitted a claim, and the insurer started paying weekly benefits.
      After making eleven payments, the insurer stopped paying because
      the injury was not covered. Craddock sued. In his pleadings
      Craddock acknowledged that the policy specifically excepted
      injuries from gunshot wounds from coverage. Craddock claimed
      that he told the company’s agent and filed his claim showing he



      7
        The Rices have asserted that MetLife’s failure to exercise its option to
terminate the policy upon Glenda’s retirement, its written affirmation of
coverage two months after Glenda’s retirement, and its acceptance of
premiums for over two years amounted to a waiver of the option. But the
certificate of insurance does not state that MetLife has an option to terminate
upon Glenda’s retirement; it states that “Dependent Term Insurance will end”
upon retirement. [Emphasis added.]

                                         11
      was injured by a gunshot, yet the insurer paid weekly benefits.
      The issue and this Court’s answer were straightforward:

            [B]ut he alleged further that the company having paid
            him 11 weeks’ indemnity for an accidental injury
            produced by a gunshot wound, had waived this
            condition of the policy, and was therefore bound and
            obligated to pay him the remaining 93 weekly
            installments, and was estopped from denying its
            liability by virtue of such waiver. He alleged also that
            he had gone to considerable expense in securing and
            preparing claims and proof of injury.

                  . . . The question presented is not whether the
            act of the insurance company in making payments
            would constitute a waiver of its right to forfeit the
            policy on account of some breach by the insured of its
            terms, but is whether a contractual liability may be
            created by a waiver. By its policy the insurance
            company did not assume any liability for the risk
            declared upon and no consideration moved to it after
            the accident for the assumption of such liability.
            The insured seeks to create that liability by invoking
            the doctrine of waiver. The doctrine cannot be made
            to serve that purpose.

Id. at 778–79 (some citations omitted).

      Thus, conforming to its Craddock decision, the supreme court in Ulico

held that waiver and estoppel cannot be used to rewrite an insurance policy and

expand coverage. Id. at 781, 787; see also Metro Allied Ins. Agency, Inc. v.

Lin, 304 S.W.3d 830, 836 (Tex. 2009) (stating that the “law is clear that

misrepresentations about insurance coverage cannot, under the doctrine of

estoppel, expand coverage provided in an insurance policy”); Tex. Farmers Ins.

                                      12
Co. v. McGuire, 744 S.W.2d 601, 603 (Tex. 1988) (op. on reh’g) (stating that

waiver and estoppel “have consistently been denied operative force to change,

re-write and enlarge the risks covered by a policy.”). And in harmony with

Ulico, Texas courts had previously held that an insurer’s acceptance of

premiums does not create coverage through the waiver or estoppel doctrines.

See, e.g., Great Am. Reserve Ins. Co. v. Mitchell, 335 S.W.2d 707, 708 (Tex.

Civ. App.—San Antonio 1960, writ ref’d) (holding that when a life insurance

policy said that coverage terminated when an employee reached the age of

sixty-five, the insurer’s acceptance of premiums after the insured reached that

age did not create coverage by waiver or estoppel).

      Accordingly, under the binding precedent of Ulico, we cannot agree with

the Rices that MetLife’s acceptance of premiums or its other actions create a

fact question as to whether the termination-upon-retirement clause of the

certificate of insurance—the original contract between the parties—was

negated or rewritten because of waiver or estoppel.8




      8
        The Rices discuss the waiver and estoppel doctrines in their first point,
in which they contend that the trial court erred by not applying those doctrines
to this case. To the extent that the Rices rely on their discussion of waiver and
estoppel in their first point to assert that their claims dependent on the parties’
contract should succeed because Larry’s original coverage was extended by an
alteration of the certificate of insurance, we overrule the Rices’ first point for
the reasons discussed above.

                                        13
      The Rices also argue that MetLife should be liable for breach of the

original insurance contract because it did not issue a personal policy to Larry or

give Larry an application for such a policy upon the termination of his rider

coverage in March 2003. The portion of the certificate of insurance relating to

riders states that MetLife would “issue a personal policy of life insurance . . .

to a Dependent if that Dependent applie[d] for it in writing during” the “31 day

period after the date the Dependent Term Insurance on that Dependent ends”

because of the employee’s retirement. Although the certificate of insurance

does not expressly state that MetLife must issue a personal policy apart from

a timely application or even that MetLife was required to inform the Rices about

their ability to apply for a personal policy, the Rices essentially contend that

MetLife’s giving them a fair opportunity to convert Larry’s rider coverage into

individual coverage is an implied term of the certificate. In a related argument,

they also assert that MetLife was required to provide notice that Larry’s rider

coverage had been canceled because notice of cancellation was an implied term

of the certificate.

      We must usually look only to the written contract to determine the

obligations of parties, and it is typically not proper for us to imply terms that

contradict a contract’s express language. See Universal Health Servs., Inc. v.

Renaissance Women’s Group, P.A., 121 S.W.3d 742, 747 (Tex. 2003).

                                       14
In   other   words,    courts   “cannot   make   contracts   for   [the]   parties.”

HECI Exploration Co. v. Neel, 982 S.W.2d 881, 888 (Tex. 1998) (quoting Gulf

Prod. Co. v. Kishi, 129 Tex. 487, 493, 103 S.W.2d 965, 968 (1937)). Thus,

      A covenant will not be implied unless it appears from the express
      terms of the contract that “it was so clearly within the
      contemplation of the parties that they deemed it unnecessary to
      express it,” and therefore they omitted to do so, or “it must appear
      that it is necessary to infer such a covenant in order to effectuate
      the full purpose of the contract as a whole as gathered from the
      written instrument.”

Neel, 982 S.W.2d at 888 (emphasis added) (quoting Danciger Oil & Ref. Co. v.

Powell, 137 Tex. 484, 490, 154 S.W.2d 632, 635 (1941)); see Fielding, 289

S.W.3d at 850.        An implied covenant “must rest entirely on the presumed

intention of the parties as gathered from the terms as actually expressed in the

written instrument itself.” Universal Health Servs., Inc., 121 S.W.3d at 748

(emphasis added).

      Under these standards, we cannot conclude that MetLife’s giving the

Rices notice of their opportunity to gain individual coverage for Larry after

Glenda’s retirement or sending them official notice of the cancellation of Larry’s

original coverage are implied terms of the certificate of insurance. As gathered

from the written instrument itself—the certificate of insurance—and not from

MetLife’s actions, Larry’s original coverage explicitly ended upon Glenda’s

retirement, and the Rices therefore had to apply for a personal policy for Larry

                                          15
within thirty-one days after her retirement.9       Because the certificate of

insurance particularly described these conditions, we conclude that MetLife’s

sending notice of the conditions after Glenda retired was neither “clearly within

the contemplation of the parties” nor “necessary . . . to effectuate the full

purpose of the contract.” See Neel, 982 S.W.2d at 888; see also Hartland v.

Progressive County Mut. Ins. Co., 290 S.W.3d 318, 324 (Tex. App.—Houston

[14th Dist.] 2009, no pet.) (“A notice of cancellation is not required when a

policy expires under its own terms.”). While it may seem reasonable to require

such additional notice as an implied term of the certificate of insurance under

the circumstances of this case, “[i]t is not enough to say that an implied

covenant is necessary in order to make the contract fair.” Neel, 982 S.W.2d

at 889; see Universal Health Servs., Inc., 121 S.W.3d at 748.

      We also cannot agree with the Rices that MetLife’s providing an

application form for a personal insurance policy for Larry is an implied term of

the original certificate of insurance. Although the Rices question how they




      9
        We recognize that MetLife has stated that it gave Larry an opportunity
to apply for a personal policy in 2005. In MetLife’s summary judgment motion,
it stated that it did so “as a courtesy.” Because the parties’ original insurance
contract could not be changed through waiver or estoppel to end Larry’s
original coverage on any date other than Glenda’s retirement, MetLife was not
contractually required to extend the personal policy conversion period that was
conditioned on Glenda’s retirement.

                                       16
were supposed to apply for a personal policy without an “application form” that

was provided by MetLife, the certificate of insurance does not require any

particular form; it places the burden on the dependant to apply for a personal

policy “in writing” during the application period. The Rices have not cited any

authority holding that an insurance company has an implied contractual duty to

supply an “application form” in a similar circumstance.

      For all of these reasons, we overrule the Rices’ third point to the extent

that their breach of contract claim rests on a breach of the original certificate

of insurance; we conclude that the Rices have not presented more than a

scintilla of evidence to support that claim.

      On the other hand, we conclude that the evidence creates a genuine fact

question regarding whether MetLife breached a new, separate agreement

regarding Larry’s coverage. As we have explained,

      Under Texas law, the requirements of a valid contract are: (1) an
      offer; (2) an acceptance in strict compliance with the terms of the
      offer; (3) a meeting of the minds; (4) each party’s consent to the
      terms; and (5) execution and delivery of the contract with the
      intent that it be mutual and binding. Consideration is also a
      fundamental element of a valid contract.

Hubbard v. Shankle, 138 S.W.3d 474, 481 (Tex. App.—Fort Worth 2004, pet.

denied) (citation omitted); see Burges v. Mosley, 304 S.W.3d 623, 629 (Tex.

App.—Tyler 2010, no pet.) (“For a contract to exist, there must be an offer,



                                       17
acceptance, and consideration.”); Domingo v. Mitchell, 257 S.W.3d 34, 39

(Tex. App.—Amarillo 2008, pet. denied).

      To determine whether an offer and acceptance and thus a “meeting of

the minds” occurred, we use an objective standard, “considering what the

parties did and said, not their subjective states of mind.”        Domingo, 257

S.W.3d at 39 (citing Komet v. Graves, 40 S.W.3d 596, 601 (Tex. App.—San

Antonio 2001, no pet.)); see Paciwest, Inc. v. Warner Alan Props., LLC, 266

S.W.3d 559, 568 (Tex. App.—Fort Worth 2008, pet. denied); Angelou v.

African Overseas Union, 33 S.W.3d 269, 278 (Tex. App.—Houston [14th Dist.]

2000, no pet.) (“Unexpressed subjective intent is irrelevant.”). ”[V]aluable and

sufficient consideration for a contract may consist of either a benefit to the

promisor or a loss or detriment to the promisee. Thus when a promisee acts to

his detriment in reliance upon a promise, there is sufficient consideration to bind

the promisor to his promise.” Jennings v. Radio Station KSCS, 708 S.W.2d 60,

61 (Tex. App.—Fort W orth 1986, no writ); see Frequent Flyer Depot, Inc. v.

Am. Airlines, Inc., 281 S.W.3d 215, 224 (Tex. App.—Fort W orth 2009, pet.

denied), cert. denied, 130 S. Ct. 2061 (2010).

      In Ulico, the supreme court upheld the trial court’s decision to disregard

the jury’s determination that the parties had entered into a separate agreement

for the payment of the insured’s defense costs. Ulico, 262 S.W.3d at 789–90.

                                        18
The supreme court reasoned that there was no consideration for such a

separate agreement; the insured did not present any evidence that the insurer

received a benefit in exchange for continuing payment of the costs or that the

insured suffered a detriment by undertaking an obligation, surrendering a legal

right, changing whether it would have paid the costs based on the insurer’s

representation that it would pay them, or otherwise acting in a different way

because the insurer agreed to pay the costs. Id.

      Unlike in Ulico, the Rices suffered a detriment because Glenda continued

to pay premiums for Larry’s coverage for more than two years while relying on

MetLife’s representations that he had coverage, and she averred in her affidavit

that because of “MetLife’s cancellation of the policy after 2½ years and the

state of [Larry’s] health,” she was unable “to now obtain coverage” for him.

Also, MetLife received the premiums and kept them for several years although

it eventually repaid them.10   Thus, reviewing the record in the light most

favorable to the Rices, we conclude that the evidence raises a genuine issue of



      10
        Craddock is likewise distinguishable because in Craddock, the insured
did not argue that a new contract had been created but only that the coverage
of his contract with the insurer had been changed by waiver, and the supreme
court stated that “no consideration moved” to the insurer after the gunshot
accident for an assumption of liability. 130 Tex. at 252–55, 109 S.W.2d at
165–67. Similarly, the insured in Mitchell relied only on waiver and estoppel
and did not contend that a new contract had been created. 335 S.W.2d at
707.

                                      19
material fact about whether the Rices gave consideration for a new agreement

with MetLife regarding Larry’s coverage.

      Similarly, we also hold that the evidence raises a genuine issue of material

fact on the remaining elements of the formation of a new contract and on a

breach of that contract. The evidence, when viewed objectively rather than

subjectively (in other words, when looking at what the parties actually said in

their 2003 exchanges and disregarding MetLife’s 2005 contention that it was

merely mistaken when it represented that Larry maintained coverage), presents

a genuine fact issue on offer, acceptance, meeting of the minds, and delivery

of the contract with the intention that it be mutual and binding. Particularly,

the evidence shows the following: (1) in May 2003, MetLife sent a letter to

Glenda that gave her the option of continuing her coverage, 11 (2) Glenda

responded to the letter by informing MetLife that she wanted to retain the

coverage, (3) MetLife’s employee, Summer, told Glenda that the coverage

“would neither lapse nor be cancelled,” (4) Glenda paid premiums for her own



      11
         MetLife relies on the fact that the option that Glenda chose in response
to MetLife’s May 2003 letter stated, “CONTINUE MY GUL COVERAGE.”
But we conclude that MetLife’s letter may reasonably be read to also give
Glenda the option of continuing Larry’s coverage because the top right-hand
corner of the letter specifically showed that his coverage was still effective, the
letter told Glenda that her “current coverage [would] remain effective,” and it
stated she would continue to pay the same premium rates (which included
Larry’s premium) as she had when she was employed with Avon.

                                        20
coverage and for Larry’s coverage multiple times after May 2003, and

(5) MetLife responded by sending a report to Glenda that confirmed Larry’s

coverage.

      Also, the evidence creates a genuine fact issue on a breach of the new,

separate contract and resulting damages because MetLife later stopped billing

for Larry’s premiums and told Glenda that Larry did not have coverage, and

Glenda could not obtain other coverage for Larry after the cancellation of the

policy. See El Paso Prod. Co. v. Valence Operating Co., 112 S.W.3d 616, 621

(Tex. App.—Houston [1st Dist.] 2003, pet. denied) (op. on reh’g) (explaining

that a repudiation of a contract comprises a breach of it); Bumb v. InterComp

Techs., L.L.C., 64 S.W.3d 123, 125 (Tex. App.—Houston [14th Dist.] 2001,

no pet.) (same).

      For these reasons, indulging every reasonable inference in the Rices’

favor, we hold that the trial court erred by granting MetLife’s no-evidence

summary judgment motion against the Rices’ breach of contract claim because

there is more than a scintilla of probative evidence to support the Rices’ theory

that MetLife breached a new agreement regarding Larry’s coverage. 12



      12
          We note that MetLife’s brief indicates its belief that the parties had the
authority to enter into a new agreement for coverage after the coverage
originally terminated upon Glenda’s retirement. Specifically, MetLife concedes
in its brief that “[a]lthough [Glenda’s] retirement date was in 2003 and [Larry’s]

                                        21
See Smith, 288 S.W.3d at 424; Sudan, 199 S.W.3d at 292. Thus, we sustain

the Rices’ third point to the extent that it rests on their argument that MetLife

breached a new contract for the coverage.

Duty of good faith and fair dealing

      In their second point, the Rices claim that the trial court erred by granting

summary judgment against their bad faith (breach of the duty of good faith and

fair dealing) claim. Texas courts have long recognized a common law duty of

good faith and fair dealing in insurance relationships. Vandeventer v. All Am.

Life & Cas. Co., 101 S.W.3d 703, 722 (Tex. App.—Fort Worth 2003, no pet.);

see Arnold v. Nat’l County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex.

1987). An insurer breaches the duty of good faith and fair dealing when it

“wrongfully cancels an insurance policy without a reasonable basis” and the

insurer “knew or should have known of that fact.” Union Bankers Ins. Co. v.

Shelton, 889 S.W.2d 278, 283 (Tex. 1994) (explaining that the “insurer’s

ability to unilaterally cancel an insurance policy and the insured’s inability to

prevent cancellation demonstrates a great disparity in bargaining power

between the two parties”); see Columbia Universal Life Ins. Co. v. Miles, 923




right to convert the group dependent life coverage to an individual policy had
expired . . ., MetLife extended the conversion option.”

                                       22
S.W.2d 803, 811 (Tex. App.—El Paso 1996, writ denied); Hopkins v. Highlands

Ins. Co., 838 S.W.2d 819, 827 (Tex. App.—El Paso 1992, no writ).

      The Rices contend that MetLife is liable for bad faith because it canceled

Larry’s coverage retroactively in 2005 when there was no reasonable basis for

the cancellation and initially refused to refund premiums. We have held that the

evidence raises a genuine fact issue about whether the parties formed a

contract in May 2003 that gave Larry new coverage. Accordingly, we conclude

that there is more than a scintilla of evidence that MetLife wrongfully canceled

Larry’s new coverage without a reasonable basis and knew or should have

known of that fact. The evidence shows that MetLife told Glenda that her

coverage would neither lapse nor be canceled, continued to accept premiums

for Larry’s coverage for over two years, confirmed to the Rices after 2003

through a Group Universal Life Report that Larry still had coverage, and then

canceled the coverage while telling her that it was in place through July 2005

(which is inconsistent with MetLife’s claim that the coverage expired in March

2003 upon Glenda’s retirement and that Larry did not obtain new coverage

through the parties’ communications).

      We conclude that a genuine issue of material fact exists to preclude the

trial court’s decision to grant summary judgment against the Rices on their bad

faith claim. We therefore sustain the Rices’ second point.

                                      23
Promissory estoppel

           In their fourth point, the Rices argue that the trial court erred by granting

summary judgment against their promissory estoppel claim.13 The Rices alleged

in their petition that by “continuing to accept premium payments . . ., [MetLife]

promised [the Rices] that [MetLife] would continue to provide insurance as long

as the premiums were paid.” They also asserted that they relied on MetLife’s

alleged promise by continuing to pay the premiums and by not seeking alternate

insurance for Larry. MetLife moved for summary judgment against the Rices’

promissory estoppel claim on the ground, among others, that it did not make

any promise that Larry’s coverage would last forever. The Rices responded by

directing the trial court to, among other documents, MetLife’s May 10, 2003

letter.

          Although estoppel based on an insurer’s misrepresentations may not be

used to expand coverage contractually, an insurer’s actions can result in it

being estopped from refusing to “make its insured whole” for “any damages

[the insured] sustains because of the insurer’s actions.” Ulico, 262 S.W.3d at

782, 787.        “If a promisee has reasonably and detrimentally relied on an



          13
        MetLife did not expressly label its summary judgment motion as to the
Rices’ promissory estoppel claim as traditional or no-evidence. We will treat the
motion as a traditional motion because a no-evidence motion must specify the
elements of a claim for which there is no evidence. See Tex. R. Civ. P. 166a(i).

                                            24
otherwise unenforceable promise, he may have a cause of action for promissory

estoppel.”   MCN Energy Enters., Inc. v. Omagro de Colombia, L.D.C., 98

S.W.3d 766, 774 (Tex. App.—Fort Worth 2003, pet. denied); see In re

Weekley Homes, L.P., 180 S.W.3d 127, 133 (Tex. 2005) (orig. proceeding)

(explaining that when “a promisor induces substantial action or forbearance by

another, promissory estoppel prevents any denial of that promise if injustice can

be avoided only by enforcement”).

      “The   elements    of   promissory    estoppel   are:   (1)   a   promise,[ 14 ]

(2) foreseeability of reliance on the promise by the promisor, and (3) substantial

detrimental reliance by the promisee.” Hubbard, 138 S.W.3d at 482; see MCN

Energy Enters., Inc., 98 S.W.3d at 774.       Although promissory estoppel is

normally a defensive theory, it may serve as a substitute for an unsuccessful

breach of contract claim. See Wheeler v. White, 398 S.W.2d 93, 97 (Tex.

1965); Medistar Corp. v. Schmidt, 267 S.W.3d 150, 163 (Tex. App.—San

Antonio 2008, pets. denied).

      We have held that the Rices’ breach of contract claim, to the extent that

it rests on MetLife’s breaching the certificate of insurance and does not rest on




      14
      A “promise” is a “manifestation of an intention to act . . . in a specified
manner, conveyed in such a way that another is justified in understanding that
a commitment has been made.” Black’s Law Dictionary 1332 (9th ed. 2009).

                                       25
MetLife’s breaching a subsequent contract between the parties, cannot succeed

as a matter of law because despite MetLife’s actions, Larry’s coverage under

the certificate of insurance was not extended past Glenda’s retirement.

Because there was no contract for Larry’s original coverage under the certificate

of insurance past March 2003, promissory estoppel may apply to MetLife’s

representation of that coverage if a factfinder determines that the parties did

not later enter into a new contract for the coverage. See Doctors Hosp. 1997,

L.P. v. Sambuca Houston, L.P., 154 S.W.3d 634, 636 (Tex. App.—Houston

[14th Dist.] 2004, pet. abated) (stating that “Texas courts have held that

promissory estoppel becomes available to a claimant only in the absence of a

valid and enforceable contract”); Secure Comm, Inc. v. Anderson, 31 S.W.3d

428, 431 n.3 (Tex. App.—Austin 2000, no pet.) (“[P]romissory estoppel and

breach of contract may be mutually exclusive causes of action.”); see also

Wheeler, 398 S.W.2d at 94, 97 (holding that a plaintiff could recover on a

promissory estoppel theory when pled as an alternative to breach of contract).

      MetLife’s letter to Glenda represented under a heading of “Coverage

Information” that as of May 10, 2003, the face amount of Glenda’s “Spouse

Term” coverage was $50,000.        The letter notified Glenda, “[Y]our current

coverage will remain effective while you assess your choices,” and it told her

that MetLife wanted to “keep a promise” that it had made to her.

                                       26
      Glenda’s affidavit says that about three weeks after the date of MetLife’s

letter, MetLife’s employee, Summer, told Glenda that her coverage on the policy

would neither lapse nor be canceled. It also explains that Glenda “regularly

received bills from MetLife entitled ‘Group Universal Life Payment Notice’ and

a ‘Group Universal Life Report’ both stating the $50,000 coverage for [Larry]

was included.” Glenda submitted the 2005 “Group Universal Life Report” as

evidence; that report, under the heading of “Beginning Values 12/31/04,”

states, “Spouse Rider Face Amount: 50,000.00.“

      We conclude that when viewed in the light most favorable to the Rices,

this evidence creates a genuine issue of material fact as to whether MetLife

made a promise to continue Larry’s coverage and whether it was foreseeable

to MetLife that the Rices would rely on that promise.      See Tex. R. Civ. P.

166a(c).   Although MetLife argues that the language related to the four

insurance options that were presented to Glenda in May 2005 on the election

form concerns only Glenda’s coverage and does not explicitly mention Larry’s

coverage, for the reasons stated above, we conclude that a genuine fact issue

exists as to whether MetLife represented that both Glenda’s and Larry’s




                                      27
coverage would be extended if she chose the first option that was labeled

“CONTINUE MY GUL COVERAGE.” 15

      MetLife argues that the Rices’ promissory estoppel claim fails because

Glenda was deemed to know the terms contained in the certificate of insurance,

including the term that Larry’s coverage ended upon her retirement. We have

noted that a named insured is presumed to have read its policy and to know the

policy’s contents. Jenkins v. State & County Mut. Fire Ins. Co., 287 S.W.3d

891, 897 (Tex. App.—Fort Worth 2009, pet. denied). However, the Texas

Supreme Court has held that this presumption may be overcome by proof that

the insured did not know the policy’s contents when it was accepted. Colonial

Sav. Ass’n v. Taylor, 544 S.W.2d 116, 119 (Tex. 1976) (quoting Fireman’s

Fund Indem. Co. v. Boyle Gen. Tire Co., 392 S.W.2d 352, 355 (Tex.1965));

see Ins. Network of Tex. v. Kloesel, 266 S.W.3d 456, 476 (Tex. App.—Corpus

Christi 2008, pet. denied); Union Nat. Bank of Little Rock v. Moriarty, 746

S.W.2d 249, 250–51 (Tex. App.—Texarkana 1987, writ denied) (explaining




      15
         MetLife does not expressly challenge the reliance element in the portion
of its brief related to the Rices’ promissory estoppel claim; we will address the
Rices’ reliance on MetLife’s representation of Larry’s coverage below when we
analyze the trial court’s decision to grant summary judgment on some of the
Rices’ other claims.

                                       28
that an ”insured is allowed to rely on the knowledge and expertise of the

insurer”).

      The evidence shows that the Rices paid premiums for Larry’s coverage

for over two years after Glenda retired and that Angelica Ridge had to explain

to Glenda in 2005 that Larry no longer had coverage because Glenda thought

that a quarterly bill’s omission of a premium charge for his coverage “was a

mistake.” Viewed in the light most favorable to the Rices, this evidence creates

a genuine fact issue as to whether the Rices had knowledge of the term of the

certificate of insurance that caused Larry’s original coverage to expire.

Therefore, we cannot agree with MetLife that for summary judgment purposes,

the Rices are deemed to know the contents of their policy or that their

promissory estoppel claim must fail on that basis.

      We also agree with the Rices’ statement that under the circumstances in

this case, it would be unreasonable to charge them with knowing and following

the terms of the certificate of insurance when MetLife, which issued the

certificate, did not even follow its own terms for over two years by

continuously accepting quarterly premiums for Larry’s coverage after Glenda’s

retirement.   Finally, even if the Rices actually knew about the term of the

certificate that ended Larry’s coverage upon Glenda’s retirement or were

charged with constructive knowledge of that term, MetLife’s acts that occurred

                                      29
after her retirement gave them a reason to believe that MetLife was either

altering or not enforcing that term and that Larry’s coverage had been extended

despite the term.16

         For these reasons, we hold that, indulging all inferences in the Rices’

favor, the trial court erred by granting MetLife’s summary judgment motion on

the Rices’ promissory estoppel claim. We sustain the Rices’ fourth point.

DTPA

         In their fifth point, the Rices argue that the trial court erred by granting

summary judgment against their DTPA claim. In the trial court, MetLife moved

for summary judgment on that claim on the ground that there was no evidence

of it.

         False, misleading, or deceptive acts or practices

         The DTPA creates a cause of action when a consumer suffers from

“[f]alse, misleading, or deceptive acts or practices in the conduct of any trade

or commerce.”        Tex. Bus. & Com. Code Ann. § 17.46(a).          Such “acts or

practices” include “representing that goods or services have . . . characteristics

. . . which they do not have” and “representing that an agreement confers or



         16
       MetLife also argues in response to some of the Rices’ other points that
they were deemed to know the contents of their policy. For the same reasons
that we decline to accept MetLife’s reasoning as to the Rices’ promissory
estoppel claim, we also decline to do so as to those points.

                                          30
involves rights, remedies, or obligations which it does not have or involve.” Id.

§ 17.46(b)(5), (12); see Commonwealth Lloyds Ins. Co. v. Downs, 853 S.W.2d

104, 116 (Tex. App.—Fort Worth 1993, writ denied).

      To prevail on a DTPA claim, a plaintiff must prove that the defendant’s

misrepresentation was the producing cause of the plaintiff’s injuries. Tex. Bus.

& Com. Code Ann. § 17.50(a); Alexander v. Turtur & Assocs., Inc., 146

S.W.3d 113, 117 (Tex. 2004); Main Place Custom Homes, Inc. v. Honaker,

192 S.W.3d 604, 616 (Tex. App.—Fort Worth 2006, pet. denied). Producing

cause requires that the defendant’s act be both a cause-in-fact and a

“substantial factor” in causing the injuries.   Honaker, 192 S.W.3d at 616.

The plaintiff must also prove that it relied on the defendant’s misrepresentation

to its detriment. Tex. Bus. & Com. Code Ann. § 17.50(a)(1)(B).

      The Rices contend that MetLife’s May 10, 2003 letter, Glenda’s phone

conversation with Summer, and MetLife’s prolonged acceptance of premiums

create a genuine fact dispute about whether MetLife engaged in false,

misleading, or deceptive acts because it misrepresented that all of the terms of

her original insurance policy, including Larry’s coverage, would be continued if

she elected to do so. We agree.

      MetLife’s letter explicitly stated that as of May 2003, Larry had $50,000

in coverage.   It then told Glenda that the “current coverage would remain

                                       31
effective” and appeared to give her the option to continue that coverage by

continuing to “pay the same rates as when [she was] an active employee.”

We hold that under the relevant no-evidence summary judgment standards, this

evidence and the other evidence detailed above creates a fact issue about

whether MetLife misrepresented the continuation of Larry’s coverage,

precluding summary judgment on that part of the Rices’ DTPA claim.17

See Tex. R. Civ. P. 166a(i); Lennar Corp. v. Great Am. Ins. Co., 200 S.W.3d

651, 700 (Tex. App.—Houston [14th Dist.] 2006, pets. denied) (op. on reh’g)

(relating that an insurer’s affirmative misrepresentation that creates an insured’s

mistaken belief about coverage may be actionable under the DTPA); State Farm

Fire & Cas. Co. v. Gros, 818 S.W.2d 908, 912–13 (Tex. App.—Austin 1991,

no writ) (holding that an insurer was liable under the DTPA for misrepresenting

the terms of an insurance policy).

      MetLife asserts, however, that if there was a misrepresentation, it cannot

be a producing cause of the Rices’ injuries and the Rices could not have

detrimentally relied on it because (1) Larry had an opportunity to purchase a



      17
       MetLife contends that the “crux of [the Rices’] claims under the DTPA
is MetLife’s alleged wrongful termination . . . as opposed to
misrepresentations.” But the Rices’ appellate brief and their summary judgment
response show that they base their DTPA claims on MetLife’s May 2003 letter,
MetLife’s conversation with Glenda, and MetLife’s acceptance of quarterly
premium payments.

                                        32
personal policy form MetLife in December 2005 but failed to do so and (2) the

Rices’ premiums for Larry’s coverage have been returned to them with interest

(after they filed their lawsuit). 18 But even if we consider MetLife’s evidence to

support its no-evidence summary judgment motion,1 9 that evidence does not

conclusively establish that MetLife gave Larry an opportunity to purchase a

personal policy in December 2005. Angelica Ridge’s affidavit does not indicate

that she expressly told Glenda that she could purchase a personal policy for

Larry. And while the affidavit states that Angelica told Glenda in December

2005 that she would “request a conversion notice” based on Glenda’s

“cancelled spouse rider” and asserts that such a notice was mailed to Glenda,

Glenda’s affidavit states that she never received any notice of the cancellation

of Larry’s coverage and that Angelica told her that an agent would contact her

about purchasing a personal policy but that she was never contacted by an

agent.




      18
       The parties agreed during oral argument that the premium payments
have now been properly refunded to the Rices.
      19
        The supreme court has held that courts may not consider evidence that
is attached to a movant’s no-evidence summary judgment motion unless the
evidence “creates a fact question.” Binur v. Jacobo, 135 S.W.3d 646, 651
(Tex. 2004); see Garcia v. State Farm Lloyds, 287 S.W.3d 809, 816 (Tex.
App.—Corpus Christi 2009, pet. denied).


                                       33
       As to MetLife’s second argument, the Rices concede that MetLife has

returned money equal to the premiums that they paid for Larry’s coverage after

Glenda’s retirement. However, we conclude that the evidence presented by the

Rices still creates a fact issue on detrimental reliance.        Glenda’s affidavit

concludes by stating, “Due to MetLife’s cancellation of the policy after 2½

years and the state of my husband[‘]s health, it is not within my family’s

financial means to now obtain coverage for my husband.”                Indulging every

inference in the Rices’ favor, we hold that this statement adequately relates

that the passage of time associated with MetLife’s allegedly wrongful acts (in

which the Rices thought that Larry had coverage when he did not) deprived the

Rices of the opportunity to obtain coverage elsewhere.            See Sudan, 199

S.W.3d at 292. Thus, we hold that the statement comprises more than a

scintilla   of   evidence   of   the   Rices’   detrimental reliance    on   MetLife’s

representation to Glenda even if, as MetLife argues, the statement does not use

the words “rely” or “reliance” but instead uses the word “cancellation.”

See Smith, 288 S.W.3d at 424.

       For these reasons, we conclude that the trial court erred by granting

MetLife’s summary judgment motion against the part of the Rices’ DTPA claim

that alleges that MetLife engaged in false, misleading, or deceptive acts or

practices, and we sustain the Rices’ fifth point to that extent.

                                           34
      Unconscionability

      Next, the Rices assert that the trial court erred by granting MetLife’s

summary judgment motion against their DTPA unconscionability claim.

To maintain a claim for unconscionability under the DTPA, a plaintiff must prove

that it suffered from an act or practice that, to the plaintiff’s detriment, took

advantage of its lack of knowledge, ability, experience, or capacity to a grossly

unfair degree.   See Tex. Bus. & Com. Code Ann. §§ 17.45(5), .50(a)(3);

Bradford v. Vento, 48 S.W.3d 749, 760 (Tex. 2001) (“Unconscionability under

the DTPA is an objective standard for which scienter is irrelevant.”). To prove

an unconscionable action or course of action, a plaintiff must show that the

resulting   unfairness   was   glaringly    noticeable,   flagrant,   complete,   and

unmitigated. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 677 (Tex. 1998).

      MetLife moved for summary judgment on the Rices’ unconscionability

claim on a no-evidence basis. The evidence that the Rices presented, viewed

in the light most favorable to them, shows that MetLife represented that Larry

had coverage when the Rices did not know that he did not have coverage under

the certificate of insurance, accepted premiums for the alleged noncoverage for

over two years and did not properly refund them until after the Rices filed their

motion for new trial, never sent the Rices written notice of the termination of

Larry’s coverage when it said that it would, told Glenda that an agent would

                                           35
contact her about purchasing a personal policy for Larry when an agent never

did so, and therefore left the Rices without an opportunity to obtain coverage

for Larry through MetLife or elsewhere (unless the parties’ exchanges created

new coverage for Larry in May 2003). We conclude that these facts comprise

more than a scintilla of evidence of unconscionability under the standard above

and therefore preclude summary judgment. See Tex. R. Civ. P. 166a(i); Smith,

288 S.W.3d at 424. Thus, we sustain the remaining portion of the Rices’ fifth

point.

Insurance code

         In their sixth point, the Rices assert that the trial court erred by granting

MetLife’s summary judgment motion against their insurance code claim.

The Rices pled that MetLife violated chapter 541 of that code because it

misrepresented “the insurance policy by making untrue statements of material

fact in regard to the policy” and by failing “to disclose material facts in regard

to coverage.”

         The insurance code creates a cause of action for damages caused by an

insurer’s misrepresenting the terms or benefits of an insurance policy or by an

insurer’s engaging in an act “specifically enumerated in Section 17.46(b),

Business & Commerce Code, as an unlawful deceptive trade practice.”

Tex. Ins. Code Ann. § 541.151; see id. § 541.051(1). We have held that the

                                          36
Rices provided more than a scintilla of evidence that MetLife misrepresented the

terms or benefits of Larry’s coverage and that the Rices’ detrimental reliance

on that misrepresentation caused them damages by precluding their opportunity

to obtain coverage elsewhere. Thus, for the same reasons that we sustained

the Rices’ fifth point, we also sustain their sixth point and hold that the trial

court erred by granting MetLife’s summary judgment motion as to the Rices’

claim under the insurance code.

Breach of fiduciary duty

      In their seventh point, the Rices contend that the trial court erred by

granting   summary    judgment     against   their   breach   of   fiduciary   duty

claim. MetLife moved for summary judgment on the basis that there is no

evidence that it had a fiduciary duty to the Rices.

      Where the underlying facts are undisputed, determination of the existence

and breach of a fiduciary duty is a question of law that is exclusively within the

province of the court. Meyer v. Cathey, 167 S.W.3d 327, 330 (Tex. 2005).

As we have explained,

      Due to its extraordinary nature, the law does not recognize a
      fiduciary relationship lightly. Therefore, whether such a duty exists
      depends on the circumstances.

             Fiduciary duties may arise from formal and informal
      relationships and may be created by contract. . . . A person is
      justified in placing confidence in the belief that another party will

                                       37
      act in his best interest only where he is accustomed to being
      guided by the judgment or advice of the other party and there
      exists a long association in a business relationship as well as
      personal friendship. Thus, the relationship must exist prior to and
      apart from the agreement that is the basis of the suit.

Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 698 (Tex.

App.—Fort Worth 2006, pet. denied) (emphasis added and footnotes omitted);

see Meyer, 167 S.W.3d at 331 (explaining that there must be a “special

relationship of trust and confidence” to create a fiduciary relationship in an

ordinary business transaction). An insurer does not generally have a fiduciary

duty toward its insured. See E.R. Dupuis Concrete Co. v. Penn Mut. Life Ins.

Co., 137 S.W.3d 311, 318 (Tex. App.—Beaumont 2004, no pet.) (citing

Wayne Duddlesten, Inc. v. Highland Ins. Co., 110 S.W.3d 85, 96 (Tex.

App.—Houston [1st Dist.] 2003, pet. denied)); Garrison Contractors, Inc. v.

Liberty Mut. Ins. Co., 927 S.W.2d 296, 301 (Tex. App.—El Paso 1996), aff’d,

966 S.W.2d 482 (1998); cf. Berry v. First Nat’l Bank of Olney, 894 S.W.2d

558, 560 (Tex. App.—Fort Worth 1995, no writ) (holding that a bank did not

automatically have a fiduciary relationship with its customers and that the

customers therefore had the burden to respond to the bank’s summary

judgment motion by providing evidence of specific facts showing a special

relationship).




                                      38
      Glenda said in her affidavit, “I have been a customer of MetLife on several

occasions throughout my life . . . .” The Rices have not directed us to any

other evidence concerning their relationship with MetLife apart from the

coverage at issue in this case. We hold that Glenda’s sole statement in her

affidavit does not constitute more a scintilla of evidence that the Rices had a

special relationship of confidence and trust with MetLife to create a fiduciary

relationship. See Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823

S.W.2d 591, 595 (Tex. 1992) (explaining that “[n]either is the fact that the

relationship has been a cordial one, of long duration, evidence of a confidential

relationship”), superseded by statute on other grounds as stated in Subaru of

Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 225–26 (Tex.2002).

Thus, we hold that the trial court properly granted summary judgment against

the Rices’ breach of fiduciary duty claim, and we overrule their seventh point.

Fraud by nondisclosure

      In their eighth point, the Rices contend that the trial court erred by

granting summary judgment against their fraud by nondisclosure claim. They

alleged in their amended petition that MetLife had a duty to disclose the

termination of Larry’s coverage but did not.

      Fraud by nondisclosure is a subcategory of fraud. Schlumberger Tech.

Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997). “As a general rule, a

                                       39
failure to disclose information does not constitute fraud unless there is a duty

to disclose the information. . . . Whether such a duty exists is a question of

law.” Bradford, 48 S.W.3d at 755.

      The Rices asserted in the trial court that MetLife had a duty to disclose

the termination of Larry’s coverage under the certificate of insurance solely

because the Rices allegedly had a confidential relationship with MetLife.20

See World Help v. Leisure Lifestyles, Inc., 977 S.W.2d 662, 670 (Tex.

App.—Fort Worth 1998, pet. denied) (explaining that a “party has an

affirmative duty to disclose where there is a confidential or fiduciary

relationship”). For the same reasons as those discussed above, we hold that

the evidence presented by the Rices is insufficient to raise a material fact

dispute about a confidential relationship between the Rices and MetLife.

Therefore, we hold that the trial court did not err by granting MetLife’s

summary judgment motion on the Rices’ fraud by nondisclosure claim, and we

overrule the Rices’ eighth point.




      20
        We have held that a duty to disclose may arise from circumstances
unrelated to a confidential or fiduciary relationship between the parties.
See Citizens Nat’l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 477 (Tex.
App.—Fort Worth 2004, no pet.) (op. on reh’g). However, issues that are not
presented to the trial court “shall not be considered on appeal as grounds for
reversal.” Tex. R. Civ. P. 166a(c); see Head v. U.S. Inspect DFW, Inc., 159
S.W.3d 731, 740 n.6 (Tex. App.—Fort Worth 2005, no pet.).

                                      40
Damages

      In their ninth point, the Rices argue that the trial court improperly granted

MetLife’s summary judgment motion on the ground that they did not present

any evidence of damages.21 The Rices pled that they were entitled to recover

the following damages: (1) “[l]oss of coverage under the policy amounting to

$50,000,” (2) “[l]oss of opportunity to obtain affordable alternative coverage,”

(3) “[l]oss of premiums paid to [MetLife],” and (4) “mental anguish damages.”

      We have held that the evidence raises a genuine fact issue about whether

the parties entered into a contract in May 2003 for Larry’s coverage.

Accordingly, we hold that there is a genuine fact issue about whether the Rices

lost the value of that coverage if MetLife wrongfully canceled it, and we sustain

the Rices’ ninth point to that extent.

      The Rices have not responded to MetLife’s contention that they presented

no evidence of mental anguish damages.          Also, the Rices admit that the

premiums paid for Larry’s coverage have been refunded. Thus, we overrule the

Rices’ ninth point to the extent that the trial court’s order precludes those

damage theories. See Haire v. Nathan Watson Co., 221 S.W.3d 293, 302




      21
       MetLife moved for summary judgment on the ground that its actions did
not cause damages generally; MetLife did not assert that the Rices had to
present evidence of a particular amount of damages.

                                         41
(Tex. App.—Fort Worth 2007, no pet.) (affirming the trial court’s decision to

grant summary judgment as to claims that were not challenged on appeal).

      However, we conclude that the final statement in Glenda’s affidavit (that

because of MetLife’s actions and the state of Larry’s health, the Rices could not

obtain alternative coverage for him) comprises some evidence of the Rices’

remaining damage theory—loss of the “opportunity to obtain affordable

alternative coverage.” Thus, we hold that the trial court could not properly

grant summary judgment on that ground.

      For these reasons, we sustain the Rices’ ninth point to the extent that it

regards damages related to the loss of their coverage and the loss of their

opportunity to obtain affordable alternative coverage. We overrule their ninth

point to the degree that it relates to damages for mental anguish or the return

of premium payments.

         The Trial Court’s Denial of The Rices’ Motion for New Trial

      In their tenth point, the Rices contend that the trial court erred by denying

their motion for new trial based on newly discovered evidence that MetLife had

deducted premiums from Glenda’s cash fund account rather than correctly

returning them. Whether to grant a new trial because of newly discovered

evidence “is within the discretion of the trial court. To determine whether a

trial court abused its discretion, we must decide whether the trial court acted

                                       42
without reference to any guiding rules or principles; in other words, whether the

act was arbitrary or unreasonable.” Hutson v. Tri-County Props., LLC, 240

S.W.3d 484, 490–91 (Tex. App.—Fort Worth 2007, pet. denied) (footnote

omitted). The party who seeks a new trial on the ground of newly discovered

evidence must show: (1) the evidence has come to light after trial, (2) it was

not owing to want of due diligence that the evidence did not come to light

sooner, (3) the new evidence is not cumulative, and (4) the evidence is so

material that it would likely produce a different result if a new trial were

granted. Id. at 491.

      In their motion for new trial, the Rices conceded that before MetLife filed

its motion for summary judgment, its counsel had given them $2,152.17 for

the apparent return of the premiums (and six percent interest) that they had

paid for Larry’s coverage since Glenda’s retirement. But the Rices alleged that

MetLife had wrongfully removed the money from Glenda’s cash fund account

instead of actually refunding it.22 MetLife filed a response to the motion for



      22
       The cash fund account—labeled by MetLife as the “Accumulation
Fund”—includes money from premium payments in excess of the cost of the
insurance. Glenda swore in an affidavit,

      The cash-fund account was funded with money [she] had paid in
      to cover future premiums, and was not at all related to prior
      premiums [she] had paid. It . . . became obvious to me that
      MetLife had taken my own money . . . and sent it to me to make

                                       43
new trial, the trial court held an evidentiary hearing, MetLife filed a

supplemental response, and the trial court denied the motion.

      MetLife’s supplemental response establishes that the premium payments

had not been properly refunded to the Rices at the time of the trial court’s

summary judgment decision. However, the response shows that as of July

2009, Glenda’s cash fund account had been fully and correctly replenished by

MetLife to its pre-withdrawal amount.

      The Rices argue that the improper refund that had occurred at the time

that MetLife’s summary judgment motion was filed “caused [the Rices] to not

defend . . . the cause of action Money Had and Received, and amounted to a

fraud on the court.” They contend that a different result would occur because

the trial court “would be able to judge the case without considering the false

affidavits” of MetLife that stated that the premiums had been properly

refunded.




      me believe that they had actually refunded the premiums . . . .

            ....

            . . . In short, I had to pay MetLife for life insurance that
      MetLife says never existed, and then I had to pay myself for the
      refund of my premiums.

                                     44
      We cannot agree with the Rices’ assertion that their newly discovered

evidence is so material that it would likely produce a different result. As to the

Rices’ money had and received claim, which is based solely on the nonreturn

of the premium payments for Larry’s coverage, the evidence established that

at the time the trial court denied the Rices’ motion for new trial, those

payments had been correctly refunded to them. Thus, the Rices would not be

able to obtain a different result on that claim. See Everett v. TK-Taito, L.L.C.,

178 S.W.3d 844, 860 (Tex. App.—Fort Worth 2005, no pet.) (“Money had and

received is an equitable action that may be maintained to prevent unjust

enrichment when one person obtains money, which in equity and good

conscience belongs to another.”).

      Similarly, as to the Rices’ other claims, if the trial court based all or part

of its decision to grant MetLife’s summary judgment motion on the fact that

MetLife had correctly refunded the premium payments, its decision was not

likely to change. By the time the trial court denied the Rices’ motion for new

trial, those payments had been correctly refunded. Finally, although the Rices

assert that MetLife perpetuated a fraud on the court, MetLife’s supplemental

response to the Rices’ motion for new trial shows that MetLife’s delay in

correctly refunding the premium payments was caused by inadvertent computer

errors.

                                        45
         For these reasons, we hold that the evidence that the Rices attached to

their motion for new trial is not so material that it would likely produce a

different result if a new trial were granted and that the trial court therefore did

not abuse its discretion by denying the motion. See Hutson, 240 S.W.3d at

490–91. We overrule the Rices’ tenth point.

                                       Conclusion

         Having overruled the Rices’ first, third (in part), seventh, eighth, ninth (in

part), and tenth points, we affirm the trial court’s summary judgment order to

the extent that it grants MetLife’s summary judgment motion as to (1) the

Rices’ breach of contract claim concerning their theories about the breach of

the certificate of insurance that created Larry’s original coverage, (2) the Rices’

claims for breach of fiduciary duty and fraud by nondisclosure, and (3) the

Rices’     damage     theories   of   loss   of   premiums   and    mental   anguish.

However, having sustained the Rices’ second, third (in part), fourth through

sixth, and ninth (in part) points, we reverse the trial court’s order to the extent

that it grants MetLife’s summary judgment motion as to (1) the Rices’ breach

of contract claim as limited to their theory about the breach of a new, separate

agreement for Larry’s coverage beginning in May 2003, (2) the Rices’ bad faith,

promissory estoppel, DTPA, and insurance code claims, and (3) the Rices’

damage theories regarding their loss of coverage and loss of opportunity to

                                             46
obtain alternate coverage. As limited to the portions of the trial court’s order

that we reverse, we remand this case for further proceedings.




                                           TERRIE LIVINGSTON
                                           CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: August 31, 2010




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