dissenting.
Finding myself in disagreement with the majority members of the panel, I respectfully file my dissent.
A dispute about whether there is no reasonable basis to support the denial of a claim is a fact issue for the jury. See Lyons v. Millers Casualty Ins. Co., 866 S.W.2d 597, 603 (Tex.1993) (Justice Doggett dissenting); Nationwide Mut. Ins. v. Crowe, 857 S.W.2d 644, 648 (Tex.App.—Houston [14th Dist.] 1993), judgm’t set aside pursuant to settl’t agr., 863 S.W.2d 462 (Tex.1993); Commonwealth Lloyds Ins. Co. v. Thomas, 825 S.W.2d 135, 144 (Tex.App.—Dallas 1992), judgm’t set aside pursuant to settl’t agr., 843 S.W.2d 486 (Tex.1993).
In this summary judgment case, TIC has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In addition, the proof favorable to the non-movant, Ramirez, is taken as true, the court indulging every reasonable inference and resolving any doubts in favor of Ramirez. See id.
In the instant case, Dr. Phillips’ opinion that Ramirez’s TMJ syndrome was aggravated by an injury in the course and scope of his employment and the circumstances under which that opinion was brought to TIC’s attention is sufficient to raise a fact issue as to whether TIC’s reliance on Dr. Rejaie was a reasonable basis for denying Ramirez’s claim. See Guajardo v. Liberty Mut. Ins. Co., 831 S.W.2d 358, 365 (Tex.App.—Corpus Christi 1992, writ denied) (opinion on motion for rehearing).
TIC’s adjustor, Paula Powell, testified at her deposition that she was uncertain about when TIC received the first medical information from Dr. Phillips. However, a copy of Dr. Phillips’ initial report, stating that Ramirez “should avoid work situations,” reflects that it was sent to TIC on September 15, 1989. Thus, it is reasonable to infer that TIC received medical information from Dr. *830Phillips shortly after it was sent in September. Yet, the October 27, 1889, entry in TIC’s claim file curiously notes that TIC told Ramirez’s attorney that it did not have medical information to support Ramirez’s “non-work status.”1 At that time, TIC had nothing more than a verbal report from Dr. Ré-jate. That verbal report, as documented in TIC’s claim file, states in pertinent part:
Dr. Réjate called back and advised in his opinion [sic] clmt’s [sic] condition [sic] not related to work incident and he’s [sic] not disabled from work due to his condition— he doubts you can “aggravate” a [sic] TMJ [sic] as it already exists — he will provide a report stating his opinion [sic] however [sic] he is not an expert and that is why he referred clmt [sic] to Dr Morgan who will tell it as he sees it. [emphasis added]
Clearly, TIC thought that Dr. Rejaie’s opinion regarding the cause of Ramirez’s TMJ syndrome was qualified by his limited expertise concerning TMJ syndrome. This fact is supported by Dr. Rejaie’s own deposition testimony that he did not ordinarily treat TMJ syndrome. The fact that Dr. Réjate possessed the ability to diagnose the problem does not, as the majority suggests, conclusively establish that TIC’s reliance on Dr. Rejaie’s opinion as to the cause of Ramirez’s condition was a reasonable basis. TIC also knew as reflected by the October 9, 1989, entry in it’s claim file, that Dr. Morgan’s office (Dr. Phillips was with Dr. Morgan) wanted to perform surgery on Ramirez. Thus, the summary judgment proof establishes that TIC was aware of Dr. Rejaie’s limited expertise and that it knew that a doctor with the expertise to treat TMJ syndrome had concluded that Ramirez’s TMJ syndrome was work-related and that Ramirez would require surgery which would disable him. Because TIC was aware of these facts, it focused it’s investigation on Ramirez’s candor in relaying his history to Dr. Phillips, rather than on the substance of Dr. Phillips’ conclusion or his clinical findings. After conducting that investigation, TIC never issued a formal denial explaining to Ramirez why his claim was denied.
Therefore, I would hold that the conflicting medical opinion, the circumstances surrounding the receipt of medical information, and the manner of the resulting investigation and refusal to pay benefits in this case is sufficient to raise a fact issue as to whether TIC’s reliance on the information before it did not constitute a reasonable basis for denying Ramirez’s claim and whether TIC knew or should of known that it did not have a reasonable basis. See Guajardo, 831 S.W.2d at 365. Accordingly, I would reverse the summary judgment in favor of TIC and remand this case for further proceedings consistent with this opinion.
. Further, Ronald Kormanik's affidavit adds suspicion to TIC’s conduct. That affidavit states in pertinent part:
The insurance company repeatedly told me prior to [the] pre hearing conference that they did not have medical to support Mr. Ramirez being in an off-work status, however the file shows that Dr. Phillips sent records to the insurance company explaining the off-work status, and furthermore that I sent the same information by fax to the insurance company. The pre-hearing conference was not until February 1990. Mr. Kormanik's statement about what TIC told him up to that time is inadmissible hearsay, but is a "defect in form” requiring an objection. Tex.R.Civ.P. 166a(f); See Dolenz v. A.B., 742 S.W.2d 82, 83-84, n. 2 (Tex.App.—Dallas 1987, writ denied). TIC did not make such a hearsay objection and therefore, the statement does not lose its probative value for purposes of summary judgment. See id. (citing Tex. R.Civ.Evid 802).