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Insurance Law Click here for the full text of this decision FACTS: Live Oak Insurance Agency appeals from a judgment that awarded the appellee, Billy D. Shoemake, $34,454 on a breach of contract claim and attorney fees. William G. Shoemake lived near George West and obtained an insurance policy for his home through the Live Oak Insurance Agency. Live Oak placed the homeowner’s insurance policy with Hochheim Prairie Farm Mutual Insurance Co. Sometime in 1994, Shoemake suffered a stroke. Billy Dan then placed his father in a nursing home and set out to inform the utility companies, post office, Live Oak, and others in and around George West that he would be taking care of his father’s business affairs. He requested that all mail and bills be forwarded to his address in Tunica, Louisiana. On Dec. 13, 1996, Shoemake died. After Shoemake’s death, Billy Dan returned to George West to arrange for his father’s funeral and to wrap up his father’s personal and business affairs. One of the businesses he visited was Live Oak. There, Billy Dan spoke to Lisa Steen, Live Oak’s customer representative with whom he had spoken in 1994. Billy Dan testified that he informed Steen of his father’s death and that he wanted “everything switched to [his] name.” Billy Dan took no documents to Live Oak to verify his father’s death or to verify that he was now the owner of his late father’s home. The record does not show that any documents were requested of him or that he was asked to sign or fill out any paperwork. In October 1994, while his father was in the nursing home, Billy Dan renewed his father’s truck policy through Live Oak and gave Live Oak his address in Tunica, Louisiana, as the address where the policy was to be sent. Billy Dan also obtained a personal liability insurance policy for Shoemake. The policies were renewed the following year and sent to Billy Dan in Louisiana. When the insurance on the dwelling came up for renewal in 1994, the renewal notice was sent to Shoemake in George West, but the post office forwarded it to him at Billy Dan’s address in Louisiana. For the 1996 and 1997 renewals, Hochheim again sent the renewal notices to Shoemake at his address in George West. The notices were returned undelivered to Hochheim, which then forwarded them to Live Oak to be sent to Shoemake’s correct address. Steen testified that in 1997, she sent the renewal notice to Shoemake at the Louisiana address along with a Post-It note that read: “Mr. Shoemake, let me know if you still want the policies and what address you would like them sent to. Thanks. Lisa Steen.” In response to the Post-It note, Billy Dan’s wife called Steen and again instructed her to the send the policy to the Louisiana address. On Nov. 9, 1998, when the policy came up for renewal, Hochheim sent Live Oak a memo asking it to locate the correct address for Shoemake and to forward the renewal notice to him. Hochheim also asked for the address to update its records. A second request for Shoemake’s correct address was sent to Live Oak on Jan. 6, 1999. Along with this request was a notice that the policy had lapsed as of Dec. 29, 1998, and that the notice should be forwarded to Shoemake. Steen, however, could not recall if she complied with the request to forward the renewal notice to Billy Dan. Billy Dan said he never received the notice. As for the lapse notices, Steen testified that it was the agency’s policy not to forward such notices to its insureds. The Shoemake home was destroyed by fire in April 1999. Hochheim denied the claim because the policy had lapsed on Dec. 29, 1998. Billy Dan subsequently brought this lawsuit against Hochheim and Live Oak, alleging negligence, breach of contract, DTPA and breach of the duty of good faith and fair dealing. Hochheim was discharged on an instructed verdict at the close of the plaintiff’s case. Live Oak’s motion for instructed verdict was denied and the case was submitted to the jury only on the breach-of-contract theory. The jury returned a verdict in favor of Billy Dan Shoemake. After the denial of Live Oak’s motion for JNOV, this appeal followed. The jury first was asked to determine whether Live Oak had agreed to provide an insurance policy on the Shoemake dwelling for the period of Dec. 14, 1998 through Dec. 14, 1999. If the jury answered question one “yes,” it was then to decide if Live Oak had breached that agreement. The jury answered both questions “yes.” HOLDING: Affirmed. The Preston Farmcourt ( Preston Farm& Ranch Supply Inc. v. Bio-Zyme Enterprises, 625 S.W.2d 295 (Tex.1981)), quoting Marr-Piper Co. v. Bullis,1 S.W.2d 572 (Tex. Comm’n App. 1928, judgm’t adopted), stated: “A contract implied in fact is one in which, under the circumstances, the acts of the parties are such as to indicate according to the ordinary course of dealing and the common understanding of men a mutual intention to contract, as where one accepts the tendered service of another under circumstances justifying the inference that such other expected to be paid for such services. . . . A contract implied from the facts and circumstances in evidence is as binding as would be an expressed one.” The insurance policy on the dwelling had been placed with Hochheim by Live Oak since the early 1990′s. After Shoemake’s stroke in 1994, it was Billy Dan who informed Live Oak that he wanted the dwelling insured and the policy sent to him. Live Oak complied with his request and continued to send the renewal notices to Billy Dan at his address in Louisiana. This conduct continued even after Live Oak was aware of Shoemake’s death. Although there may not have been as many transactions in this case as in Preston Farm (an annually renewable insurance policy generally requires only one such transaction per year), there was sufficient affirmative conduct on Live Oak’s part from which the jury could conclude that Live Oak had agreed to provide an insurance policy on the dwelling in question. Live Oak also argues that the Texas Supreme Court has held that an agent who undertakes to procure insurance for a client owes that client the duty t 1. use reasonable diligence in attempting to place the requested insurance; and 2. inform the client promptly if unable to do so. In support, Live Oak cites May v. United Servs. Ass’n. of Am., 844 S.W.2d 666 (Tex. 1992), and Moore v. Whitney-Vaky Ins. Agency, 966 S.W.2d 690 (Tex. App. San Antonio 1998, no pet.). A claim under these circumstances, asserts Live Oak, sounds in tort and not in contract. As noted above, however, Billy Dan abandoned his negligence and DTPA causes of action and submitted the case to the jury on a breach-of-contract theory. The May case involved the scope of an insurance agent’s common-law duty to a customer in rendering advice about and procuring a policy of health insurance. The dispute in May was not that the agent failed to obtain a policy of insurance for the Mays, but whether the agent had made representations as to the quality, character, or type of coverage that was available under the proposed plan, and whether the Mays relied on the representations in deciding to enroll in the plan. Id. at 669-672. That is hardly the case here. Here, the policy was in effect when Billy Dan spoke to Steen. All Billy Dan wanted was to have everything placed in his name, the dwelling insured and the renewal notices sent to him in Louisiana. Under the facts of this case, the jury could well infer that Live Oak agreed to do so. Although there was testimony from Holleman that a policy different than the one in effect in 1994 was required for an unoccupied dwelling, there is simply no evidence in the record that such a requirement was the reason for not sending Billy Dan the renewal notice in 1998. The issue submitted to the jury was the following: “Do you find that LIVE OAK INSURANCE AGENCY agreed to provide an insurance policy on the dwelling in question for the term of December 14, 1998 through December 14, 1999?” Live Oak’s objection was not as to form. The sole objection was that there was no evidence to support submission of the issue or the existence of a contract. The court holds there was sufficient evidence to support a finding that Live Oak Insurance Agency agreed to provide an insurance policy on the dwelling in question. OPINION: Chavez, J.; Hinojosa, Castillo and Chavez, JJ.

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