Guajardo v. Liberty Mutual Insurance Co.

OPINION ON MOTION FOR REHEARING

On rehearing, appellee, Liberty Mutual Insurance Company, complains that we erred in reversing the summary judgment granted in its favor. We address Liberty Mutual’s argument that a claims decision which reflects an expert medical opinion is reasonable as a matter of law, without regard to contrary medical opinions made known to the insurer. When an insurance carrier relies on one expert opinion to deny coverage, we would be reluctant to say that it did not have a reasonable basis upon which to deny the claim. See Fuentes v. Texas Employers Ins. Ass’n, 757 S.W.2d 31, 33 (Tex.App.—San Antonio 1988, no writ). The carrier must rely on expert opinion in order to make coverage decisions in cases when the question of coverage is dependent upon analysis of technical mat*365ters outside of ordinary experience and within the expert’s field of knowledge. An expert’s opinion should not be discounted without some reasonable basis to challenge that opinion.

When contrary expert opinion which suggests that coverage should not be denied is placed before the carrier, the carrier must determine which opinion to follow. If the carrier still chooses to deny coverage, it should generally be able to rely on its own expert’s opinion as a reasonable basis for the denial, even though that opinion may not prevail against contrary opinion on the ultimate question of coverage. However, situations may arise in which contrary medical opinion casts sufficient doubt on the reliability of the carrier’s expert’s opinion, that the carrier no longer has a reasonable basis to deny coverage. We believe that the weight of contrary expert opinion necessary to destroy the carrier’s reasonable basis is a question of fact for the jury under the standard established in Aranda v. Insurance Co. of N. Am., 748 S.W.2d 210, 212-13 (Tex.1988) and Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex.1987).

Other experts may challenge the credentials or the reliability of the carrier’s expert or his professional reputation for sound and impartial opinions. Further, the circumstances under which an expert’s opinion is brought to the carrier’s attention are also important in determining whether the carrier reasonably relied upon its expert’s opinion. For instance, a party may cast doubt on the expert’s opinion if it shows that the same expert has consistently rendered opinions favorable to the carrier or other interested parties in the past and that those opinions were later shown to be false or questionable.

A conflict between the carrier’s expert and other experts may or may not, standing alone, be sufficient to allow a “bad-faith” suit to go to a jury. In addition to the conflicting expert opinion, the party alleging bad faith must also bring direct or circumstantial evidence showing that the carrier’s expert’s opinion was questionable and that the carrier knew or should have known that the opinion was questionable.

In the present case, Dr. Johnson’s letter to Liberty, dated October 2, 1987, characterized the matter involving Mr. Gu-ajardo as a “comedy of errors” and stated that Mr. Guajardo should have been granted his compensation. Dr. Johnson’s letter casts doubt upon the medical opinions of Drs. Isensee and Berastain who stated that Mr. Guajardo could have returned to work as a truck driver. Dr. Berastain described his examination of Mr. Guajardo in a letter dated October 27, 1987.1 In that letter, he stated that Mr. Guajardo should not have engaged in repetitive bending, stooping, heavy lifting (not more than 20-30 pounds), and climbing. He also stated that these activities would have been detrimental to Mr. Guajardo’s back condition.

If Dr. Johnson’s letter and Dr. Beras-tain’s letter can be read consistently with Dr. Isensee’s opinion to show that Mr. Gua-jardo had certain physical limitations, but that a disagreement existed on whether those limitations would have prevented Mr. Guajardo from returning to work, then Liberty was under a duty to investigate whether the limitations would have prevented Mr. Guajardo from returning to work as a truck driver.

We OVERRULE the Motion for Rehearing.

. This letter was addressed to attorney Shannon Salyer and copied to Liberty Mutual Insurance. The letter is attached to Mr. Guajardo’s "RESPONSE TO MOTION FOR SUMMARY JUDGMENT."