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Insurance Law Click here for the full text of this decision The statute of limitations was tolled in this case by the discovery rule. FACTS:The appellant, Joe Torrez, executor of the estate of Samuel S. Torrez, appeals the trial court’s granting of Appellee Winn-Dixie Stores’s, motion for summary judgment. In two points, the appellant claims that: 1. the trial court erred in granting the appellee’s motion for summary judgment; and 2. the trial court abused its discretion by denying the appellant’s motion for a continuance. HOLDING:Reversed. In the appellant’s first issue, he claims that the trial court erred in granting the appellee’s traditional summary judgment motion based on the statute of limitations. The appellant asserts that the statute of limitations on his claims was tolled by the discovery rule. The appellant states that because he neither knew nor should have known of the insurance policy in this case, the statute of limitations did not begin to run until he discovered the existence of the policy in December 2001. Traditionally, Texas courts have prohibited a person from purchasing an insurance policy on the life of another if that person does not have an insurable interest on the life of the insured. This theory of law is based on two public policy concerns. First, Texas courts have repeatedly ruled that it is against public policy to promote a practice that would encourage one person to take the life of another. The second public policy concern is that no one should be permitted to wager on the life of another. It is the second policy concern that is controlling in this case. Clearly a company may insure the lives of essential personnel, specifically those whose death would cause a financial hardship on the company. However, a company may not insure employees whose termination through sickness, death, or other manners of employment cessation would cause no financial hardship on the company whatsoever. This has occurred in this case, where Torrez retired nearly two years before he died, and the appellee can point to no financial hardship which came from his retirement or death. As such, the appellee was merely gambling on Torrez’s life in hopes that his death would soon follow the inception of the life insurance policy. When, as in this case, the necessary insurable interest is lacking, the designated beneficiary holds the policy benefits in a constructive trust for the insured’s estate. Sever v. Massachusetts Mut. Life Ins. Co.,944 S.W.2d 486 (Tex. App. � Amarillo 1997, writ denied). The appellee claims that the appellant had four years from the time of Torrez’s death to file suit in order to recover under the constructive trust. The appellant responds by stating that the statute of limitations was tolled until he discovered the existence of the insurance policy. Under the appellant’s argument, he filed his claim within two years from the date he discovered the injury; therefore, the statute of limitations would not bar his claims. The Texas Supreme Court has condoned the use of the discovery rule only when the nature of the plaintiff’s injury is inherently undiscoverable and objectively verifiable. An injury is inherently undiscoverable if it is, by its nature, unlikely to be discovered within the prescribed limitations period despite due diligence. However, inherently undiscoverable does not mean that a particular plaintiff did not discover his or her particular injury within the applicable limitations period. Instead, this court is to determine whether an injury is inherently undiscoverable on a categorical basis because such an approach “brings predictability and consistency to the jurisprudence.” The appellee alleges that the appellant’s injuries were discoverable on a categorical basis. The appellee claims that an executor would only be required to ask a deceased’s former employer whether the deceased had acquired any employment benefits through working for the company in order to discover whether a COLI policy existed. The appellee claims that the executor merely has to make a discovery request from the deceased’s former employer and that this minor burden would force the employer to disclose the existence of these types of policies. The court disagrees. First, COLI policies are formed for the benefit of the company and cannot be defined as an employee benefit. Winn-Dixie Stores Inc. v. Commissioner, 254 F.3d 1313 (11th Cir. 2001). This means that even had the appellant requested a list of all of Torrez’s employment benefits from the appellee, the appellee would not have been required to mention the COLI policy, and the policy could thus have remained undiscovered. Further, a company owning COLI insurance policies would not have to disclose their existence because a company is not required to disclose a cause of action against itself. In most instances, an employee who no longer works for an employer has no contract with the employer, and no other fiduciary or contractual relationship exists. Therefore, the company owning the COLI policies would not have a duty to disclose their existence to former employees who were still alive or to the executors of the estates of deceased employees. Further, any company that the deceased had ever worked for could have held a COLI policy on him or her. The appellee’s theory would require an executor of an estate to determine every employer that the deceased ever worked for, contact them, and determine whether they had an outstanding life insurance policy on the deceased. Even assuming that the employers cooperated, such a rule would impose an incredible burden on the estate. The court holds that the COLI insurance policy on Torrez, and his estate’s corresponding injury, were inherently undiscoverable and that the discovery rule applies to this case. The evidence shows that the appellant discovered the existence of the COLI policy in December 2001. Even assuming that a two-year statute of limitations applied to the appellant’s claims, the appellant had until December 2003 to file his claims. The evidence shows that the appellant filed his claims on March 28, 2002, well within the statute of limitations for the claims. OPINION:Day, J; Day, Livingston and Walker, JJ.

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