Opinion
No. 05-05-00856-CV
Opinion Filed June 7, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 14th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 03-07196-A.
Affirm.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
MEMORANDUM OPINION
Appellant Billy L. Bradley appeals a summary judgment granted in favor of appellee Mid-Century Insurance Co. In a single issue, Bradley asserts the trial court erred in granting Mid-Century's motion for summary judgment because it failed to conclusively establish it had no notice of his suit. For the following reasons, we affirm the trial court's judgment.
Bradley was involved in a motor vehicle accident with a vehicle owned by Alert Electric Heating Air Conditioning, Inc. Bradley subsequently sued Alert and obtained a default judgment. Appellee Mid-Century insured Alert. Bradley subsequently sued Mid-Century seeking to recover as a third party beneficiary of Alert's insurance policy. Mid-Century filed a motion for summary judgment asserting it was not liable as a matter of law because Alert never provided it with notice of the suit as required by the insurance policy.
When an insurance policy requires the insured to give the insurer notice of suit, its failure to do so absolves the insurer of liability under the policy if the failure to give notice prejudiced the insurer. See Members Ins. Co. v. Branscum, 803 S.W.2d 462, 465-67 (Tex.App. Dallas 1991, no writ). Bradley concedes Mid-Century is not liable if Alert failed to give Mid-Century notice of his suit. Therefore, the only question presented is whether Mid-Century conclusively established the lack of notice.
To support its motion, Mid-Century relied upon the affidavit of Jim Gannon. In his affidavit, Gannon stated he was the manager of the office that handled Mid-Century's claims at the time Bradley filed his suit. Gannon explained the process with which claims representatives and supervisors were trained to handle notice of lawsuits. According to Gannon, if an adjuster received notice of a suit, he or she was to forward the notice to their supervisor, who in turn would forward the notice to Gannon. When notice of a suit was received, Gannon would register the notice in a "Litigation Log." Gannon would then ensure that an answer was filed on behalf of the insured. Gannon reviewed the Litigation Log for the applicable time period. The Litigation Log does not show a suit being filed by Bradley. Gannon concluded that pursuant to Mid-Century's records and his investigation, Mid-Century was not put on notice of Bradley's suit.
Bradley first asserts Gannon's affidavit cannot establish lack of notice because the affidavit did not show how Gannon acquired personal knowledge of the facts recited. He maintains his complaint regarding lack of personal knowledge is a defect of substance, not form, which can be raised for the first time on appeal. However, contrary to Bradley's assertion, failure of an affidavit to show the affiant had personal knowledge is a defect in form and must be preserved in the trial court. Stewart v. Sanmina Tex., L.P., 156 S.W.3d 198, 207 (Tex.App. Dallas 2005, no pet.); Thompson v. Curtis, 127 S.W.3d 446, 450 (Tex.App. Dallas 2005, no pet.). Because Bradley has not directed us to anywhere in the record where he objected and obtained a ruling on his lack of personal knowledge complaint, he cannot raise this issue on appeal. Id.
If however an affidavit on its face establishes the lack of personal knowledge, this would constitute a defect in substance. See Dailey v. Albertons, Inc., 83 S.W.3d 222, 226-27 (Tex.App. El Paso 2002, nopet.).
Bradley next contends the affidavit is insufficient because it is conclusory. A complaint that an affidavit is conclusory is a defect of substance that can be raised for the first time on appeal. See Thompson, 127 S.W.3d at 450. A conclusory statement is one that does not provide the underlying facts to support the conclusion. Id. However, logical conclusions based on stated underlying facts are proper. Id.
According to Bradley, Gannon's affidavit is conclusory because it did not provide a sufficient factual basis for Gannon's conclusion that Mid-Century did not receive notice of Bradley's suit. We disagree. Gannon explained Mid-Century's practices concerning receipt of notice, he explained why he was familiar with those practices, he explained where the notice should have gone if it were received and he explained how such a notice, if received, would have been noted in Mid-Century's Litigation Log. Based on his review of Mid-Century's documents, he concluded no such notice was ever received. To further support his conclusion, he attached the Litigation Log for the period at issue. Because Gannon's affidavit provided a factual basis for his conclusions, it was not conclusory.
Finally, Bradley asserts the Litigation Log should not be considered as evidence of the lack of personal knowledge because it constitutes hearsay. An objection that a document contains hearsay is a defect of form that must be preserved in the trial court. Freeman Fin. Inv. Co. v. Toyota Motor Corp., 109 S.W.3d 29, 33 (Tex.App. Dallas 2003, pet. denied). Because Bradley did not raise a hearsay complaint in the trial court, we will not consider that issue for the first time on appeal.
We conclude Gannon's affidavit and attached Litigation Log constituted sufficient summary judgment evidence to establish Mid-Century did not receive notice of Bradley's suit. Thus, it was Bradley's burden to present evidence to raise a fact issue showing Mid-Century did receive notice or at least had actual knowledge of the suit. Bradley suggests a fact issue exists because he showed certain documents he sent to Mid-Century during the claim process were not included in Mid-Century's claim file. According to Bradley, because these documents were not in the claim file, other documents, such as a notice of suit, might have also been lost. Bradley's evidence in no way contradicts the manner in which notice of suit was handled by Mid-Century and noted in the Litigation Log. Furthermore, all of the documents that Bradley asserts were missing from the file were not during the period that Bradley filed suit. Thus, we cannot agree Bradley raised a fact issue by showing some documents might have been missing from the file.
We note that Bradley could have easily avoided summary judgment by providing evidence that he had timely notified Mid-Century of his suit. See Members, 803 S.W.2d at 466. Alternatively, Bradley could have obtained evidence from Alert regarding whether it notified Mid-Century of its suit. He did neither. Under these circumstances, we cannot conclude the trial court erred in granting Mid-Century's motion for summary judgment.