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Guillory v. Service Life and Casualty Insurance Company

As a party to the credit life application, appellant has capacity to institute a lawsuit against the other party to the contract because capacity to sue involves the legal authority to act, regardless of whether said party has a justiciable interest in the controversy.

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OPINION

This is an appeal from an order granting summary judgment in favor of appellee, Service Life and Casualty Insurance Company, (defendant below). Appellant initially brought suit raising causes of action under the Deceptive Trade Practices Act, negligence, breach of contract, and violation of the Texas Insurance Code. Appellant sought not only actual and exemplary damages, but also “the face amount of the credit life insurance policy, $21,430.80.” The gist of appellant’s factual allegations contained in her petition was that she and her father, Paul Isaac Colligan, *fn1 executed an application for credit life insurance in the course of the purchase of a vehicle; that Mr. Colligan listed various physical infirmities from which he was suffering at the time; that about six months later, Mr. Colligan died of pancreatic cancer which was diagnosed only three weeks before his death; that when appellant filed to collect the insurance proceeds on the vehicle so as to pay the balance owed, she was informed by appellee that the credit life application had been rejected because Mr. Colligan was not truthful on said application regarding his health status.

By verified amended answer, appellee raised the affirmative defense that appellant was not entitled to recover in the capacity in which she sued. Tex. R. Civ. P. 93(2). Thereafter, appellee filed a motion for summary judgment again contending appellant was not entitled to recover in the capacity in which she grounded her lawsuit. The entirety of the substance of appellee’s motion for summary judgment is reproduced as follows:

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