Parkins v. Texas Farmers Insurance Co.

ROBERTSON, Justice.

Dennis Parkins sued Texas Farmers Insurance Company under the Texas Deceptive Trade Practices — Consumer Protection Act, Tex.Bus. & Com.Code Ann. §§ 17.41 et seq. He alleged that Farmers represented to him that they would insure a dwelling he owned in the event of fire and that this was a deceptive act or practice because they issued a homeowner’s policy which carried an exclusion that the premises covered must be owner-occupied. Consequently, when the house burned, coverage was denied because it was rented. The questions before this Court are whether Parkins proved that Farmers misrepresented his policy coverage and whether he was adversely affected thereby.

After the jury answered all special issues for Parkins, the trial court granted Farmers a judgment non obstante veredicto. The court of appeals, 641 S.W.2d 254, affirmed the judgment N.O.V. on the ground that Parkins, in order to show that he had been adversely affected under the DTPA, was required to prove that his loss would have been covered under a standard fire policy then available from Farmers and failed to do so. While we find that the court of appeals applied the wrong rule of law on this point, we nevertheless affirm the judgments of the courts below on the ground that Parkins failed to adduce any evidence *776that Farmers misrepresented the terms of his insurance coverage.

As a prerequisite to obtaining financing for a real estate purchase in 1976, Parkins, a licensed real estate broker, had to secure insurance for the building. Parkins testified that he contacted Dick Upham, Farmers’ authorized agent, and asked him for “the cheapest insurance I can get.” Following this conversation, Parkins received a payment plan agreement. In a column headed “Farmers Insurance Group Company” was the notation “Tex. Farmers Fire.” He soon thereafter received a Memorandum of Policy which referred to the policy as a standard “Homeowners Form B” and contained the following language as part of the printed form:

The above premises of the described dwelling are the only premises where the named insured or spouse maintains a residence, other than business property or farms.

Parkins did not receive a copy of the policy itself as it was held by the mortgagee. His coverage was renewed thereafter annually.

Whether Parkins lived in the house himself when the original policy was issued was disputed. At trial he testified that he received mail at the address but never made it his residence. On cross-examination, however, Farmers introduced Parkins’ deposition testimony wherein he stated that he maintained it as his home, keeping furniture and personal belongings there and spending the night there. Parkins also testified in the deposition, when asked where his other residence was at this time, that he didn’t remember.

Eventually Parkins rented the house as a residence to several tenants. While it was thus occupied on March 9, 1979, it burned. In his proof of loss statement Parkins stated that Upham had originally written him an “HOB” policy. When he filed this proof of loss, Parkins received a letter denying his claim on the ground that he had a homeowners policy designed to cover the building in the event of fire only so long as it was owner occupied.

Parkins argues here that the court of appeals erred in affirming the trial court’s judgment N.O.V. because he was not required to plead and prove the terms of any policy to maintain a cause of action under the DTPA. That is, Parkins asserts that he is not seeking to recover on the homeowners policy, which admittedly does not apply here, or a breach thereof; rather, he bases his claim on an alleged misrepresentation that constituted a deceptive act.

We agree with Parkins’ contention that he need not prove a specific policy in order to show that he was adversely affected by Farmers’ conduct.1 In Royal Globe Ins. Co. v. Bar Consultants, Inc., 577 S.W.2d 688 (Tex.1979), a DTPA case wherein the defendant insurance company also asserted that the insured had failed to prove that it was injured as a result of the company’s representation that the building in question was covered, this Court held:

[TJhere is evidence that Bar Consultants was “adversely affected” and “injured” when it relied on the misrepresentations of coverage each time the policy was renewed. The injury to Bar Consultants was that it believed it was covered by a policy of insurance from any loss caused by vandalism when it was not so covered.

Id. at 694. Thus in determining whether the insured was adversely affected, the Court speaks only to reliance on a misrepresentation rather than to specific terms under a policy. We therefore hold that Par-kins was not required to offer any policy, that he either held or believed he held, into evidence in order to prove that he was injured under the DTPA.

Although we disagree with the court of appeals holding regarding proof of causation in this suit, we nevertheless must affirm the judgment of the court of appeals on the ground that Parkins failed to prove that Farmers did in fact misrepresent the *777terms of his insurance coverage. Parkins contends that Farmers led him to believe that his house was protected against fire loss when it was not. The record reveals, however, that Parkins only proved that he was required to obtain “some” insurance on the house by his mortgage company, that he requested the “cheapest insurance I can get,” and that Farmers did in fact issue a policy providing fire coverage so long as the house was owner occupied.

Parkins nowhere shows that Farmers ever assured him of coverage against fire loss under the circumstances present here or that they would issue a particular kind of policy. This case is therefore clearly distinguishable from Royal Globe Ins. Co. v. Bar Consultants, Inc., supra, where it was undisputed that the agent had expressly told the insured at the time the policy was written that he was “totally covered” against any losses from vandalism.

Rather than proving a misrepresentation on the part of Farmers, Parkins has instead shown only that he fell within an exclusion of his policy. Because there is no evidence that Farmers misrepresented the terms of Parkins’ insurance coverage, we affirm the judgment of the court of appeals.

. This language was amended in 1979 (after this cause of action arose) to read: “a consumer may maintain an action where any of the following constitute a producing cause of actual damages .... ” § 17.50(a).