author: FRANK F. DROWOTA, III, C.J.,

text:
    Frederick J. LANG v. NISSAN NORTH AMERICA, INC.
    Supreme Court of Tennessee, at Nashville.
    June 8, 2005 Session.
    Aug. 16, 2005.

      Andrée Sophia Blumstein, Nashville, Tennessee (on appeal to the Supreme Court), and Van French and Larry G. Trail, Murfreesboro, Tennessee (at trial and on appeal to the Special Workers’ Compensation Appeals Panel), for the appellant Nissan North America, Inc.
    Branch H. Henard, III, Nashville, Tennessee (on appeal to the Supreme Court), and Mark A. Baugh, Nashville, Tennessee (at trial and on appeal to the Special Workers’ Compensation Appeals Panel), for the appellee Frederick J. Lang.
    Terry L. Hill, Nashville, Tennessee (on appeal to the Supreme Court), for amicus curiae the National Federation of Independent Business Legal Foundation.
   OPINION

FRANK F. DROWOTA, III, C.J.,

delivered the opinion of the court,

in which E. RILEY ANDERSON, JANICE M. HOLDER, and WILLIAM M. BARKER, J.J., joined. ADOLPHO A. BIRCH, JR., J., did not participate.

In this case, an employee suffered work-related binaural hearing loss which has resulted in a 22% to 26% permanent medical impairment rating. The employee has missed no work as a result of this impairment. Focusing on the employee’s continued ability to work, the trial court awarded the employee 9% of 150 weeks for loss of hearing as a scheduled member. On appeal, the Special Workers’ Compensation Appeals Panel increased the employee’s award to 45% of 150 weeks. Based on our independent review of the preponderance of the evidence, see Tenn.Code Ann. § 50-6 — 225(e)(2) (1999), we conclude that the trial court improperly discounted the extent of both the anatomical impairment and the vocational disability suffered by the employee. In our view, the evidence preponderates against the trial court’s award of 9% disability benefits for loss of hearing and in favor of the Panel’s 45% award; we therefore adopt the Panel’s modification of the trial court’s award and affirm the trial court’s award of benefits to the employee as so modified. However, in the course of explaining its decision, the Panel referred to the employee’s “loss of his ability to enjoy normal, everyday activities.” We vacate the Panel’s decision insofar as the Panel may have recognized the loss of enjoyment of life, or hedonic damages, as a basis for the recovery of workers’ compensation benefits. For the purpose of establishing anatomical or vocational disability in workers’ compensation cases, it is appropriate to consider how a work-related injury affects an employee’s capacity to engage in normal, everyday activities; however, we hold that Tennessee workers’ compensation law does not recognize hedonic damages- — damages for the loss of enjoyment of life — as a basis for the recovery of benefits.

I. Factual and Procedural Background

The plaintiff, Frederick J. Lang, was an employee of the defendant, Nissan North America, Inc., a company which manufactures automobiles. Mr. Lang began working at Nissan’s Rutherford County facility in 1985 as an assembly-line technician in the trim and chassis plant. Eventually he was promoted to line leader in trim and chassis, a position which reduced somewhat the amount of time he spent working directly on the assembly line. Over the course of Mr. Lang’s lengthy employment with Nissan, his work environment has been characterized by the sound of various machinery and power tools, as well as music emanating from personal radios used by other employees.

In 1999, Mr. Lang first complained to Nissan of hearing loss, noting specifically that he could no longer hear the alarm which indicates that the assembly line has been paused. Nissan accommodated him by installing a tier light which visually indicates the assembly line’s status. In 2001, at Nissan’s request Mr. Lang underwent a hearing test which showed significant hearing loss. After being examined in 2002 by Wesley Moore, M.D., Nissan’s plant physician, and William L. Downey, M.D., a specialist in otolaryngology , Mr. Lang filed this action seeking workers’ compensation benefits from Nissan for permanent loss of hearing in both ears.

Two medical experts testifying via deposition rated Mr. Lang’s permanent hearing loss based on audiograms and the American Medical Association Guides to the Evaluation of Pemanent Impavnnent. Dr. Downey, whom Mr. Lang had selected from a panel of physicians offered to him by Nissan, assigned Mr. Lang a permanent binaural hearing loss rating of 26.6%. The defendant’s expert, otolaryngologist Mitchell Schwaber, M.D., examined Mr. Lang in 2003 and assigned him a permanent binaural hearing loss of 22.5%. Although there is evidence in the record that Mr. Lang had some level of pre-employment hearing loss, Nissan does not contest causation in this appeal.

At trial, various testimony was introduced regarding the effects of Mr. Lang’s hearing loss. According to Mr. Lang and his wife, Cheryl D. Lang, Mr. Lang cannot hear high-pitched sounds such as alarms and ringing telephones. He has trouble understanding another person speaking when he cannot see that person face-to-face. According to Mrs. Lang, he also tends to speak too loudly. However, Mr. Lang’s area manager at Nissan, Joe Shelton, testified that he has not had trouble communicating with Mr. Lang at work. Dr. Downey testified that Mr. Lang’s hearing loss not only increases the need for him to face a person who is speaking but also causes him to miss about 25% of ordinary conversation. Dr. Downey and Dr. Schwaber each determined that Mr. Lang needs hearing aids to correct his hearing loss, but they also each determined that he should not wear them while working at Nissan because doing so could further damage his hearing by amplifying industrial noise.

Mr. Lang, who was forty-three years old at the time of trial, has missed no time at work as a result of his hearing loss and has continued in his position as line leader. In fact, Mr. Lang has received excellent job-performance evaluations during his longstanding employment with Nissan. He has not sought work outside of Nissan.

Mr. Lang has a high-school education, and in 1985 he received a certificate for industrial training in trim and chassis work from the Tennessee State Board for Vocational Education. His employment history prior to working for Nissan is brief. During high school, Mr. Lang worked part-time at a restaurant as a dishwasher and at a grocery store as a bagger and meat-department assistant. After graduating from high school, he spent about six years in Nashville working in various capacities for the Noland Company, holding positions as receiving clerk, counter salesperson, and assistant purchasing manager; as evidenced by his employment application to Nissan, the latter two positions required a significant amount of telephone use.

The trial court held that Mr. Lang’s hearing loss was related to his work at Nissan. Having so held, the trial court awarded Mr. Lang disability benefits of 9% of 150 weeks for loss of hearing, or 13.5 weeks of benefits at his compensation rate. In making this award which fell below Mr. Lang’s level of anatomical impairment, the trial court focused almost exclusively on vocational disability and the fact that Mr. Lang was able to continue working at his pre-injury position without interruption. “We find the most significant factor ... in our determination of the percentage of vocational disability to be the Plaintiffs ability to work despite his injury.” The trial court further explained: “[Djespite very high anatomical impairment ratings, which, for a trained musician or another worker largely dependent upon the skill of hearing and deciphering sounds with precision would be crucial, the Plaintiffs loss affects him more minimally.” In sum, the trial court determined Mr. Lang’s hearing loss “to be only a minor factor in his employability.”

Mr. Lang appealed as of right to the Special Workers’ Compensation Appeals Panel, contending that the evidence preponderates in favor of a larger disability award. Agreeing with Mr. Lang, the Panel increased his disability award to 45% of 150 weeks for loss of hearing, or 67.5 weeks of benefits at his compensation rate. The Panel correctly explained that Mr. Lang’s “employability in the open labor market has been impacted.” The Panel’s opinion also included the following statement: “Even though the employee lost no time off work due to the injury and continues to work in the same or similar position, there has been a loss of his ability to enjoy normal, everyday activities generally taken for granted because hearing is required for virtually every human function.”

Nissan sought discretionary review by the Supreme Court en banc, seeking reinstatement of the trial court’s award and arguing that the Panel had inappropriately considered hedonic damages — the loss of enjoyment of life — as a basis for a workers’ compensation award. We granted Nissan’s motion for full-Court review.

II. Analysis

We granted this appeal to resolve two issues: first, whether the evidence preponderates against the trial court’s award of 9% disability benefits for loss of hearing; and second, whether the Panel improperly considered hedonic damages — damages for the loss of enjoyment of life — as a basis for a workers’ compensation award.

A. Preponderance of the Evidence

This is a scheduled-member compensation case. The employee seeks workers’ compensation benefits for the permanent, partial loss of hearing in both ears, an injury which is governed by the statutory schedule for hearing loss provided in Tennessee Code Annotated section 50-6-207(3)(A)(ii)(r) (1999 & Supp.2004) (“For the complete permanent loss of hearing in both ears, sixty-six and two-third percent (66⅜%) of average weekly wages during one hundred fifty (150) weeks[.]”). The schedule compensates an employee for the “ ‘loss of use of the power or sense of hearing, rather than for an injury to the physical structure of the ear.’ ” H.K. Ferguson Co. v. Kirk, 208 Tenn. 87, 343 S.W.2d 900, 903 (1960) (quoting Jackson v. Diamond Coal Co., 156 Tenn. 179, 299 S.W. 802, 803 (1927)). The extent of an injured worker’s permanent disability is a question of fact. Jaske v. Murray Ohio Mfg. Co., 750 S.W.2d 150, 151 (Tenn.1988).

Appellate review of the trial court’s findings of fact is “de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise.” Tenn.Code Ann. § 50-6-225(e)(2) (1999). No deference to the trial court is warranted in reviewing documentary proof, such as expert medical testimony presented by deposition, because the appellate court stands in as good a position as the trial court. See McIlvain v. Russell Stover Candies, Inc., 996 S.W.2d 179, 183 (Tenn.1999). Although we must extend considerable deference to the trial court’s factual findings where the trial court has seen and heard witnesses and issues of the credibility or weight of oral testimony are involved, Gray v. Cullom Mach., Tool & Die, Inc., 152 S.W.3d 439, 442 (Tenn.2004); Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731, 734 (Tenn.2000), in workers’ compensation cases we ultimately conduct an independent review to determine where the preponderance of the evidence lies, see TenmCode Ann. § 50-6-225(e)(2); Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 773-74 (Tenn.2000).

In determining the preponderance of the evidence as to the extent of disability, the trial court determined that “despite very high anatomical impairment ratings,” Mr. Lang’s hearing loss was “only a minor factor in his employability.” We must bear in mind the distinct roles which anatomical impairment and vocational disability play in scheduled-member cases. Significantly, vocational disability is “not an essential ingredient to recovery for the loss of use of a scheduled member.” Duncan v. Boeing Tenn., Inc., 825 S.W.2d 416, 417 (Tenn.1992) (citing Oliver v. State, 762 S.W.2d 562, 566 (Tenn.1988)). It is well settled that an employee may recover for injury to a scheduled member without regard to loss of earning capacity. “[A] worker does not have to show vocational disability or loss of earning capacity to be entitled to the benefits for the loss of use of a scheduled member.” Id.; see Oliver, 762 S.W.2d at 565-66; Aerosol Corp. of the South v. Johnson, 222 Tenn. 339, 435 S.W.2d 832, 834 (1968).

Consequently, we conclude that the trial court improperly discounted Mr. Lang’s significant hearing loss. Dr. Downey and Dr. Schwaber, both qualified medical experts, respectively rated Mr. Lang’s permanent binaural hearing loss at 26.6% and 22.5%, ratings which reflect close agreement as to the level of anatomical impairment. Dr. Downey explained that this hearing loss causes Mr. Lang to miss about 25% of ordinary conversation. There was also lay testimony from Mr. Lang and his wife as to Mr. Lang’s inability to hear high-pitched sounds such as alarms and ringing telephones and the trouble he has understanding another person speaking when he cannot see that person face-to-face. In sum, the evidence shows significant loss of hearing as a scheduled member.

In fashioning Mr. Lang’s scheduled-member award, we may also consider the extent of his vocational disability. Although vocational disability is not an essential ingredient to recovery for loss of use of a scheduled member, evidence of vocational disability is admissible in determining the amount of scheduled-member compensation. See Duncan, 825 S.W.2d at 417-18. Once causation and permanence have been established by expert medical testimony, in determining the extent of vocational disability a trial court must consider all the relevant evidence, including both expert and lay testimony. See Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 629 (Tenn.1999). Factors include the employee’s age, education, job skills and training, the extent and duration of anatomical impairment, local job opportunities, and the employee’s capacity to work at the kinds of employment available to one in the employee’s disabled condition. McIlvain, 996 S.W.2d at 183.

The trial court stressed as “most significant” the fact that Mr. Lang was able to continue working at his pre-injury position without interruption. The fact that an employee has not missed work or has returned to work is relevant to determining vocational disability. See George v. Bldg. Materials Corp. of Am., 44 S.W.3d 481, 488 (Tenn.2001); Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 459 (Tenn.1988). The trial court thus properly considered the facts that Mr. Lang missed no work as a result of his hearing loss and performed well in his position as fine leader. However, missing no work and returning to work are merely single factors among the total circumstances and are not themselves dispositive. See Corcoran, 746 S.W.2d at 459. Vocational disability is “measured- not by whether the employee can return to her former job, but whether she has suffered a decrease in her ability to earn a living.” Walker v. Saturn Corp., 986 S.W.2d 204, 208 (Tenn.1998). Vocational disability results when “the employee’s ability to earn wages in any form of employment that would have been available to him in an uninjured condition is diminished by an injury.” Corcoran, 746 S.W.2d at 459.

Mr. Lang testified that he has trouble understanding another person speaking when he cannot see that person face-to-face, testimony which was corroborated by Dr. Downey. Mr. Lang misses about 25% of normal conversation and cannot hear high-pitched sounds such as ringing telephones. Further, both Dr. Downey and Dr. Schwaber determined that Mr. Lang needs hearing aids to correct his hearing loss, but they also determined that he should not wear them while working at Nissan because doing so could further damage his hearing by harmfully amplifying industrial noise. Consequently, Mr. Lang requires accommodation at work for his reduced hearing capacity, and for this reason Nissan commendably installed a tier light along the trim and chassis assembly line. During the vast majority of Mr. Lang’s employment history, he has specialized in auto assembly line work in trim and chassis. His only education beyond high school is represented by a certificate for short-term industrial training in trim and chassis work from the Tennessee State Board for Vocational Education. His primary acquired job skills and training thus focus on a particular kind of assembly-line manufacturing.

Although Mr. Lang does not make his living as a trained musician, it is reasonable to conclude that the combination of his hearing loss with the restriction against wearing hearing aids in industrial settings would detract from his employa-bility in the jobs for which he is most qualified. Further, his prior short-term experience in positions as counter salesperson and assistant purchasing manager included a significant amount of telephone use. In our view, the trial court under-emphasized the obvious negative effects of Mr. Lang’s hearing loss on his ability to compete in the open labor market. See Downs v. CNA Ins. Co., 765 S.W.2d 738, 742 (Tenn.1989). The workers’ compensation laws are remedial in nature and must be construed liberally to accomplish their intended purpose. Mackie v. Young Sales Corp., 51 S.W.3d 554, 556 (Tenn.2001).

In sum, we conclude that the evidence preponderates against the trial court’s 9% award of disability benefits for loss of hearing as a scheduled member and in favor of the Panel’s 45% award. Therefore, we adopt the Panel’s disability award to Mr. Lang of 45% of 150 weeks for loss of hearing, or 67.5 weeks of benefits at his compensation rate, and affirm the trial court’s award of disability benefits to Mr. Lang as so modified.

B. Loss of Enjoyment of Life as a Basis for Workers’ Compensation Recovery

In the course of deciding this case, the Panel made the following statement: “Even though the employee lost no time off work due to the injury and continues to work in the same or similar position, there has been a loss of his ability to enjoy normal, everyday activities generally taken for granted because hearing is required for virtually every human function.” The second issue which we must address is whether the Panel improperly considered the loss of enjoyment of life as a basis for workers’ compensation recovery. This is a question of law which we review de novo with no presumption of correctness. Dotson v. Rice-Chrysler-Plymouth-Dodge, Inc., 160 S.W.3d 495, 500 (Tenn.2005).

Even without taking into account Mr. Lang’s loss of enjoyment of life as a measure of recovery, as discussed above we have determined that a 45% disability award is correct. Therefore, the extent to which the Panel may have relied on loss of enjoyment as a measure of recovery does not affect our review of how the evidence preponderates in this case. Nevertheless, at Nissan’s urging we address this issue in order to prevent confusion which might result from the Panel’s statement that Mr. Lang has suffered a “loss of his ability to enjoy normal, everyday activities.”

The loss of enjoyment of life, also referred to as hedonic damages, Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 595 (Tenn.1999), is a noneco-nomic element of compensatory damages typically associated with personal injury tort claims. Loss of enjoyment compensates an injured person for impairment of the capacity to enjoy the normal pleasures of living. See Martin v. Southern Ry. Co., 225 Tenn. 77, 468 S.W.2d 690, 691 (1971); Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 715-16 (Tenn.Ct.App.1999).

In workers’ compensation cases, it is appropriate to consider how a work-related injury affects an employee’s capacity to engage in normal, everyday activities insofar as that inquiry is oriented toward establishing anatomical or vocational disability. For example, in Mcllvain this Court considered an injured employee’s inability to do household chores and the difficulty and pain she encountered in performing other routine activities such as driving a car, writing, buttoning her clothes, and tightening jar lids. 996 S.W.2d at 183. However, we considered these facts merely to determine the employee’s proper levels of anatomical and vocational disability and not in order to compensate her for her loss of enjoyment of these features of life. See id. at 183-84.

Simply put, Tennessee workers’ compensation law does not recognize the loss of enjoyment of life as a basis for the recovery of benefits. Cf. Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 81 (Tenn.1996) (Tennessee’s workers’ compensation laws “ ‘restrict the amount of damages by excluding pain and suffering.’ ” (quoting Rupe v. Durbin Durco, Inc., 557 S.W.2d 742, 749 (Tenn.Ct.App.1976)); Newman v. Nat’l Union Fire Ins. Co., 786 S.W.2d 932, 935 (Tenn.1990) (explaining necessary limitations on workers’ compensation recovery)). Even the plaintiff, Mr. Lang, does not dispute this conclusion. Therefore, we vacate the Panel’s decision insofar as the Panel may have recognized hedonic damages as a basis for the recovery of workers’ compensation benefits. The workers’ compensation statutes do not provide for such common-law tort recovery, and it would be improper for us to judicially mandate it.

Further, recognizing hedonic damages as a basis for recovering benefits would run counter to the exclusive-remedy principle which reinforces the policy balance of workers’ compensation law. One of the fundamental purposes of workers’ compensation law is to compensate employees for work-related injuries irrespective of fault. See Tenn.Code Ann. § 50-6-103(a) (1999). However, in exchange for no-fault recovery, employees have limited recovery and relinquish certain common-law rights of action against their employers which they might otherwise have had. A delicate compromise between the interests of employers and employees thus lies at the heart of workers’ compensation law. See Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 443 (Tenn.1984). In order to preserve this balance, workers’ compensation law “constitutes a complete substitute for previous remedies in tort on the part of an employee.” Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 762 (1963). Consequently, with few exceptions workers’ compensation law is the exclusive remedy for the work-related injuries which fall under its scope. See Tenn.Code Ann. § 50-6-108(a) (1999); Liberty Mut. Ins. Co., 368 S.W.2d at 762. “The delicately balanced quid pro quo imposing no-fault liability in exchange for immunity from tort claims and limits on the amount of workers’ compensation liability becomes illusory without a viable exclusive remedy rule.” Joseph H. King, Jr., The Exclusiveness of an Employee’s Workers’ Compensation Remedy Against His Employer, 55 Term. L.Rev. 405, 411-12 (1988).

III. Conclusion

In this scheduled-member compensation case, Mr. Lang has suffered permanent work-related binaural hearing loss which has also resulted in some degree of vocational disability. Based on our independent review of where the preponderance of the evidence lies, see Tenn.Code Ann. § 50-6-225(e)(2), we conclude that the evidence preponderates against the trial court’s award of 9% disability benefits for loss of hearing as a scheduled member and in favor of the Panel’s 45% award. Therefore, we adopt the Panel’s disability award to Mr. Lang of 45% of 150 weeks for loss of hearing, or 67.5 weeks of benefits at his compensation rate, and affirm the trial court’s award of benefits to Mr. Lang as so modified.

However, we vacate the Panel’s decision insofar as the Panel may have recognized hedonic damages as a basis for the recovery of workers’ compensation benefits. For the purpose of establishing anatomical or vocational disability in workers’ compensation cases, it is appropriate to consider how a work-related injury affects an employee’s capacity to engage in normal, everyday activities; however, we hold that Tennessee workers’ compensation law does not recognize hedonic damages — damages for the loss of enjoyment of life — as a basis for the recovery of benefits.

Costs of this appeal are taxed to the defendant, Nissan, for which execution may issue if necessary.

ADOLPHO A. BIRCH, JR., J., did not participate.

      . "Otolaryngology” is defined as "[t]he combined specialties of diseases of the ear and larynx, often including upper respiratory tract and many diseases of the head and neck....” PDR Medical Dictionary 1272 (Marjorie Spraycar ed.1995).

      . Both at trial and on appeal before the Special Workers' Compensation Appeals Panel, the parties focused much of their debate on whether Mr. Lang's hearing loss was caused by his employment at Nissan. The trial court and Panel resolved this issue in favor of Mr. Lang. Because Nissan does not appeal causation here and we find no reason to disturb the trial court's or the Panel's judgment on this issue, we need not address the evidence concerning causation.

      . Although the trial court expressed some doubt as to the credibility and weight of various testimony concerning the issue of causation (which was resolved in Mr. Lang’s favor), the trial court found the testimony concerning the effects of Mr. Lang’s hearing loss to be fully credible.

      . For example, an employee is not precluded from recovering in tort for an employer’s intentional harm. See Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 46 (Tenn.Ct.App.1993).


source: Caselaw Access Project

author: HOLLY M. KIRBY, J.,

license: Public Domain

text:
    Cynthia Lynn Alston Houston JOHNSTON v. Walter Rex HOUSTON.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Sept. 2004 Session.
    Dec. 30, 2004.
    Permission to Appeal Denied by Supreme Court June 27, 2005.

      William T. Winchester, Memphis, for the appellant Walter Rex Houston.
    Joy T. Bomar, Memphis, for the appel-lee Cynthia Lynn Alston Houston Johnston.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which W. FRANK CRAWFORD, P.J., W.S. and DAVID R. FARMER, J., joined.

This is a child support case. The parties divorced in 1991 and were awarded joint custody of their three minor children. Since the divorce, the parties have been engaged in an ongoing legal battle over child support issues. In May 2002, the trial court confirmed the findings of a special master, resolving all disputes except for child support for years 2001, 2002, and 2003. In September 2003, the parties agreed to use the findings of the special master to calculate the remaining child support issues. The mother filed a proposed consent order. After she received no response, she filed a motion for summary judgment, which was granted. The grant of summary judgment to the mother resolved the remaining issues. The father appealed the grant of summary judgment arguing, inter alia, that the report of the special master was “clearly erroneous.” We affirm the findings of the trial court with modifications, and grant the mother’s request for attorney’s fees.

This appeal is the culmination of years of contentious litigation over child custody and child support. Defendant/Appellant Walter Rex Houston (“Father”) and Plaintiff/Appellee Cynthia Lynn Alston Houston Johnston (“Mother”) were divorced on May 16, 1991. They had three minor children, ages 10, 8 and 6 years old. The divorce decree awarded physical custody of the children to Mother, joint legal custody to both parties, with Mother to make the final decision in case of impasse. In the ensuing years, numerous pleadings, motions and other documents were filed. In this Opinion, we summarize only those proceedings necessary to determine the issues on appeal.

On October 13, 1999, Mother filed a Motion for Order Appointing Special Master in order to resolve the ongoing custody and financial disputes between the parties. In an effort to facilitate a settlement of the financial issues, the Motion requested that the special master investigate and render an accounting for all sums owed to the parties, with costs to be equally divided by the parties. Father objected, claiming that the appointment of a special master was an unnecessary expense. On June 21, 2000, the trial court judge ordered that the matter be referred to the Divorce Referee, with the stipulation that if the Referee determined that the issues were too complex, the matter would be referred to a special master.

A year later, in an order dated April 12, 2001, the trial court judge appointed attorney William Zoccola as Special Master, to “investigate and render an opinion as to outstanding child support, medical arrear-age, child support interest, income tax deduction/exemption allowance for the children) and any other outstanding children’s financial issues in this cause.” The order stated that the parties agreed to the appointment of a Special Master, agreed to evenly divide the fees of the Special Master, and agreed that the findings “shall be binding upon both parties.”

The Special Master filed a report detailing his findings on February 12, 2002. The Special Master’s report includes a very detailed explanation of the Special Master’s calculations and the documents on which he relied.

On May 30, 2002, Father filed an objection to the report of the Special Master, alleging that the Special Master made numerous errors in computing the amount of child support owed and the amount of interest owed. The next day, the trial judge heard arguments on the issues. The appellate record does not include a transcript of this hearing. The hearing resulted in an Order Confirming Report of Special Master; Order on Outstanding Issues; and Order of Support Pursuant to the Special Master (the “2002 Order”), dated December 12, 2002.

The trial court’s relevant findings, as stated in the 2002 Order, were that (1) Father owed Mother $38,556.00 in child support; (2) Father owed Mother interest on his child support arrearages in the amount of $1,328.62; (3) fees owed to the Special Master totaled $6,000.00; (4) Mother had paid her share of the Special Master’s fees; and (5) Father owed the Special Master $2,500. The order then reduced to judgment the award of child support and arrearage ($38,556.00 and $1,328.62 respectively). Father’s $2,500 obligation to the Special Master was also reduced to judgment and characterized as child support. Finally, the order referred the only outstanding issue — determination of child support incurred after December 31, 2000 — to the Divorce Referee.

Dissatisfied with the result of this hearing, Father filed a Motion to Alter, Amend or Reconsider [the 2002 Order] on January 13, 2003, again alleging that the report of the Special Master was “clearly erroneous,” that the calculations were incorrect, and that fees awarded to the Special Master could not, under Tennessee law, be characterized as child support. This motion was denied on April 4, 2003.

After additional disputes between the parties, the trial court judge entered an order on September 4, 2003 (the “September 2003 Order”) that rescinded the portion of the 2002 Order referring the outstanding issue of child support to a Divorce Referee. The September 2003 order stated that it was based

upon argument by [Mother’s] counsel; upon [Father’s] counsel’s representation to [Mother’s] counsel and then to the Court that [Father] had authorized his counsel to settle the case; upon announcing the terms of the settlement to the Court; and upon the entire record in this cause.
[B]oth parties agree that any child support arrearage due and owing to either party pursuant to the Order of Reference [the 2002 Order] should be calculated pursuant to the 2000 calendar-year income as set forth in the Special Master, Will Zoccola’s Report.

Thus, the September 2003 Order stated that Father agreed that the outstanding child support would be calculated in accordance with the Special Master’s Report. The appellate record contains no indication that Father objected to this order.

On October 14, 2003, Mother filed a motion for summary judgment, in an attempt to conclude the remaining issue between the parties — the determination of child support incurred after December 31, 2000. The motion included a proposed consent order with a proposed final agreement, and a certificate of service stating that it was mailed to Father’s counsel on September 11, 2003.

The proposed consent order stated that Mother owed Father $11,702.07 for child support for 2001 through 2002. The proposed consent order also summarized that Father owed Mother the following: (1) $38,556.00, which represented the child support arrearage from the 2002 Order; (2) $1,478 in child support for 2001; (3) $1,328.62, which represented the interest on the arrearage from the 2002 Order; and (4) $488.00, which represented interest for 2001, 2002, and 2003 on the arrearage from the 2002 Order. These amounts total $41,850.68. The record contains no indication that Father responded to this proposed consent order, or to Mother’s motion for summary judgment. In an order dated November 21, 2003, the trial court granted Mother’s motion for summary judgment. The trial court adopted the calculations from Mother’s proposed consent order and held that Father owed Mother $30,148.61, which was the net amount of $41,850.68 (amount Father owed to Mother) less $11,702.07 (amount Mother owed to Father). The Order on Mother’s motion for summary judgment stated expressly that it superceded the $38,556.00 judgment against Father from the 2002 Order, and stated once again that the $2,500.00 fee to the Special Master would be designated as child support. From this order, Father now appeals.

A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993), our Supreme Court stated:

Once it is shown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05 [now Rule 56.06] provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact for trial.

Id. at 211 (citations omitted) (emphasis in original).

Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Since only questions of law are involved, there is no presumption of correctness regarding a trial court’s grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our review of the trial court’s grant of summary judgment is de novo on the record before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

On appeal, Father asserts that the Special Master failed to file a transcript with his report and, as a result, the trial court had no way to determine whether it agreed with the Special Master’s finding. Father further asserts that the Special Master’s conclusions were not supported by material evidence due to this failure to file a transcript.

The September 2003 Order clearly reflects an express agreement between the parties to rely on the report of the Special Master to calculate child support arrearag-es. The record contains no indication that Father objected to the terms of the September 2003 Order or to its characterization of the “agreement between the parties.” Father cannot represent to the trial court his agreement, solemnized in the court’s September 2003 Order, and then take a contrary position on appeal to this Court. It is well settled that a party will not be permitted to take a position on appeal that is contrary to a position in a lower court proceeding. In re B.G.J., 2004 WL 1906446, at * 6 (Tenn.Ct.App. August 26, 2004) (citing Clement v. Nichols, 186 Tenn. 235, 209 S.W.2d 23, 24 (1948); Estate of Schultz v. Munford, Inc., 650 S.W.2d 37, 40 (Tenn.Ct.App.1982)). As a result, Father’s argument, that the Special Master’s Report is invalid, is rejected.

Father also argues on appeal that the trial court erred when it ordered Father to pay interest on child support arrearages for 2001, 2002, and 2003, but did not order Mother to pay interest on her arrearages for the same three-year period. Father filed no response to Mother’s motion for summary judgment and the record contains nothing to suggest that Father raised this objection to the trial court. Tennessee law is clear that an issue not raised in the trial court may not be raised for the first time on appeal. In re B.G.J., 2004 WL 1906446, at *6 (Tenn.Ct.App. August 26, 2004) (citing Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn.1991)). As such, Father has waived this argument.

Father’s final argument on appeal is that the fees of the Special Master cannot be assessed as child support. Although there is no Tennessee case law on point, in Brown v. Brown, No. 02A01-9709-CV-00228, 1998 WL 760935, at *9 (Tenn.Ct.App. Nov.2, 1998) this Court held that an award of child support is statutory and, in the absence of statutory authority, fees such as the fee of a guardian ad litem are properly assessed as costs. The Order on Motion for Rule 11 Sanctions and Order on Motion to Alter or Amend, et al., dated April 4, 2003, cites Graham v. Graham, 140 Tenn. 328, 204 S.W. 987 (1918) in support of the trial court’s characterization of the of the Special Master as child support. In Graham, the court stated that “children are entitled to their reasonable counsel fees incurred on their behalf, otherwise they would be helpless to enforce their right of support and maintenance against a reluctant father.” Id. at 989. The facts in Graham are quite different from those in the case at bar and the Graham court simply does not say that the fees of a Special Master, even one retained to calculate child support, can be characterized as child support. Mother cites no other authority to support the designation of the Special Master’s fee as child support, and therefore we must conclude that the trial court erred in doing so. Under Brown, we must conclude that the Special Master’s fee is properly designated as costs. Therefore, the trial court’s order is hereby modified to assess the fees of the Special Master as costs. In all other respects, the trial court’s order is affirmed.

On appeal, both Mother and Father request an award of costs and attorney’s fees. Mother has also requested that any award of fees be designated in the nature of child support. Father’s request is denied, and Mother’s request is granted. Accordingly, we remand the cause to the trial court for a determination of the amount of legal fees incurred by Mother in defending this appeal. On remand, the trial court may consider Mother’s request to characterize the award of attorney’s fees as child support.

The decision of the trial court is affirmed as modified. Costs of this appeal are taxed to Father, Walter Rex Houston, for which execution may issue if necessary.

      . The parties were also represented by several attorneys in the course of the proceedings.

      . Father’s outstanding arrearage was offset by Mother’s outstanding arrearage, and it was determined that Father owed a net arrearage to Mother. Appropriately, Father was ordered. to pay interest on this net arrearage.


author: TIM TAFT, Justice.

text:
    Barry BOYD, Appellant, v. PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY, Appellee.
    Nos. 01-00-00785-CV, 01-03-01146-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 13, 2003.

      Keith T. Gilbert, Gilbert & Maxwell, Houston, TX, for Appellant.
    Diane M. Guariglia, Allyson L. Mihalick, Beirne, Maynard & Parsons, L.L.P., Mark R. Lapidus, Burck, Lapidus, & Lanza, P.C., Maurice Joseph Meynier, IV, Law Offices of M. Joseph Meynier, TV, Houston, TX, for Appellee.
    Panel consists of Justices TAFT, NUCHIA, and ALCALA.

       The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, who was originally assigned to the panel in this appeal, did not participate in this opinion and was replaced by the Honorable Sam Nuchia, Justice, Court of Appeals, First District of Texas at Houston. Justice Nuchia has reviewed the briefs and the record. See, e.g., F.D.I.C. v. F & A Equip. Leasing, 854 S.W.2d 681, 683 n. 1 (Tex.App.Dallas 1993, no writ) (replacing appellate justices during appeal); K.B. v. N.B., 811 S.W.2d 634, 636 n. 1 (Tex.App.-San Antonio 1991, writ denied) (same).

       The Honorable Margaret G. Mirabal, former Justice, Court of Appeals, First District of Texas at Houston, who was originally assigned to the panel in this appeal, did not participate in this opinion and was replaced by the Honorable Elsa R. Alcala, Justice, Court of Appeals, First District of Texas at Houston. Justice Alcala has reviewed the briefs and the record. See, e.g., F & A Equip. Leasing, 854 S.W.2d at 683 n. 1 (replacing appellate justices during appeal); K.B., 811 S.W.2d at 636 n. 1 (same).

   MEMORANDUM OPINION

TIM TAFT, Justice.

The primary issue in these appeals is whether the trial court erred when it granted a take-nothing summary judgment on the plaintiffs extracontractual causes of action, either because the defendant’s summary judgment motion failed to address all of the extracontractual causes of action or because the plaintiff raised material issues of fact on them. Before reaching this primary issue, we set forth the factual and legal background of the dispute and address several related matters. In trial court cause number 689,760 and appellate cause number 01-03-01146-CV,

we affirm the judgment based on the jury verdict. In trial court cause number 689,760-101 and appellate cause number 01-00-00785-CV, we reverse the summary judgment and remand the cause.

Factual Background

Defendant/appellee, Progressive County Mutual Insurance Company (Progressive), issued a standard Texas personal auto policy to plaintiff/appellant, Barry Boyd, which policy included uninsured/underin-sured-motorists (UIM) coverage. There was no collision coverage for Boyd’s car. Among other things, the UIM coverage paid for damages that the insured was legally entitled to recover from the owner or operator of an “uninsured motor vehicle,” the policy definition of which included a “hit-and-run” vehicle, that struck the insured’s vehicle and whose owner or operator could not be identified.

Boyd maintained that, at about 5:20 a.m. on March 20, 1997, while driving on a Houston freeway, he was rear-ended by a hit-and-run motorist and his car was pushed into the guardrail. The car was totaled. Boyd made a claim with Progressive for bodily injury and damage to his car under the UIM coverage of his auto policy.

Progressive investigated Boyd’s claim. The investigation consisted of two telephone statements and an in-person statement between Boyd and Progressive representatives; a Progressive adjustor’s looking at the car; and an examination, by Beryl Gamse, an accident-reconstruction specialist, of the car, the accident site, the police report, and Boyd’s in-person statement. Gamse’s report concluded that Boyd was not involved in a hit-and-run accident, but, instead, had been involved in a single-vehicle accident.

By letter dated April 23, 1997, after Boyd’s statements had been taken and Gamse’s report had been received, Progressive denied Boyd’s claim for UIM-coverage benefits. The letter stated that Progressive’s investigation had revealed that Boyd’s claim did not fall within the UIM coverage of his policy. No other reasons or explanation was provided. The letter also said that Boyd would be responsible for his damages, which were his responsibility to mitigate. Gregory Alan Castleman, Progressive’s regional claims manager for the area in which the accident occurred, made the final decision to deny Boyd’s claim.

After the accident, Boyd’s car was taken to a storage lot, where it incurred storage fees of $700. To pay the storage fees, Boyd tendered to the storage lot his car title plus $100.

The Litigation

In October 1997, seven months after the accident, Boyd filed a lawsuit against Progressive, alleging breach of contract for failure to pay benefits under the insurance policy. About 18 months later, Boyd amended his petition to include extracon-tractual causes of action for breach of the duty of good faith and fair dealing under the common law and the Uniform Commercial Code, conversion, violation of articles 21.21 and 21.55 (later adding section 21.58) of the Texas Insurance Code, and violation of the Texas Deceptive Trade Practices — Consumer Protection Act (DTPA). See Tex. InsCode Ann. arts. 21.21, 21.55, 21.58 (Vernon 1981 & Supp. 2004); Tex. Bus. & ComCode Ann. §§ 17.46-.63 (Vernon 2002); Tex. Bus. & Com.Code Ann. §§ 1.101-.208 (Vernon 1994 & Supp. 2004).

Progressive moved to sever the contractual from the extracontractual causes of action and to abate the extracontractual ones. On June 15, 1999, after a response from Boyd and a hearing, the trial court granted Progressive’s motion, severing the extracontractual claims, assigning them trial court cause number 689,760-101, and abating the severed cause until the breach-of-contract claim was concluded. The breach-of-contract claim remained as trial court cause number 689,760. On January 18, 2000, without reference to the June 15, 1999 order, the trial court signed another order ruling that a separate trial would be conducted, after the conclusion of the trial on the breach-of-contract action, on all other extracontractual claims, including conversion. However, discovery would not be abated on the extracontractual causes of action; discovery would continue concurrently in both cases.

In March 2000, Progressive filed a second motion for summary judgment on the extracontractual causes of action and subsequently supplemented that motion. Boyd filed a response, two supplemental responses, special exceptions, objections, amended special exceptions, and amended objections. After a hearing, the trial court granted the motion and signed a judgment on June 13, 2000, notwithstanding its previous order that the extracontractual claims would be tried after the trial on the breach-of-contract claim. The judgment expressly stated that all causes of action were decided in favor of Progressive, except for the breach-of-contract claim. Also on June 13, 2000, the trial court signed two separate orders: one order sustaining one of Boyd’s special exceptions and denying the remainder of them, and the other order sustaining two of Boyd’s objections and part of a third objection and overruling the remainder of his objections.

Trial on the breach-of-contract claim was held in September 2000. The jury answered “no” to the following question (question one): “Do you find that there was an accident between an uninsured motor vehicle and Barry Boyd?” On October 12, 2000, the trial court signed a take-nothing judgment in the breach-of-contract case in favor of Progressive, which judgment incorporated the jury’s answers to all questions.

Appeal

Boyd timely filed a notice of appeal after the June 13, 2000 summary judgment and a timely notice of appeal after the October 12, 2000 judgment on the jury verdict. Boyd presents five issues in his appeals: (1) whether the trial court abused its discretion in severing the extracontractual issues from the breach-of-contract issues (his fifth issue); (2) whether the trial court erred in disregarding jury questions six and seven in connection with the judgment in the breach-of-contract case (his fourth issue); and (3) whether the trial court erred in overruling Boyd’s amended special exceptions (his first issue) and his objections (his second issue) to Progressive’s second motion for summary judgment and in granting summary judgment for Progressive in the case involving his extracontractual claims (his third issue).

Severance

In his fifth issue, Boyd claims that the trial court abused its discretion in severing the extracontractual issues from the contract issues. Boyd argues that the “pretextual (hence ‘bad faith’) investigation conducted by Progressive is the centerpiece of both the breach of contract and bad faith claims”; therefore, his causes of action are inextricably interwoven. He also asserts, relying on Liberty National Fire Insurance Co. v. Akin, 927 S.W.2d 627 (Tex.1996) (orig.proceeding), that when a bad-faith claim, such as his, is not limited to claim denial, severance is improper; therefore, severance of his claims is equivalent to an abuse of discretion. Finally, he asserts that he was prejudiced in presenting only his breach-of-contract case to the jury because he was denied the opportunity to present Progressive’s bad-faith actions.

Rule of Civil Procedure 41 grants the trial court discretion in the matter of severing causes. Tex.R. Civ. P. 41; Akin, 927 S.W.2d at 629; Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 662, 658 (Tex.1990). A trial court’s order granting a severance will not be reversed except for an abuse of discretion. Guar. Fed. Sav. Bank, 793 S.W.2d at 658. A claim is properly severable if (1) the controversy involves more than one cause of action, (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues. Id.

The controversy between Boyd and Progressive involves more than one cause of action. Insurance-coverage claims and bad-faith claims are, by their nature, independent. See Akin, 927 S.W.2d at 629. Although Boyd’s breach-of-contract and bad-faith claims may be interwoven, Akin indicates that a severance is required in those bad-faith cases in which the insurer has made a settlement offer on the disputed contract claim. 927 S.W.2d at 630. In his response to Progressive’s motion to sever, Boyd conceded that Progressive had tendered settlement offers to him.

In summary, there is nothing in the record before us that suggests that the trial court abused its discretion in severing the extracontractual causes of action from the breach-of-contract cause of action. Accordingly, we overrule Boyd’s fifth issue.

Disregarding Jury’s Answers to Render Take-nothing Judgment on Breach-of-Contract Claim

In his fourth issue, Boyd raises his only complaint about the take-nothing judgment rendered against him on his breach-of-contract claim. He contends that the trial court erred in disregarding the jury’s answers to questions six and seven in entering the take-nothing judgment.

Question six asked what sum of money, if paid then in cash, would fairly and reasonably compensate Boyd for the reasonable steps that he took after loss to protect his damaged property from farther loss. The jury answered “$700.00.” Question seven asked the jury to state in dollars and cents the amount, if any, of attorney’s fees reasonably and necessarily incurred or to be incurred by Boyd in the lawsuit. The question also enumerated some of the factors that the jury could consider in determining the reasonable value of attorney’s fees. The jury answered as follows: (1) for preparation and trial, $20,000.00; (2) for an appeal to the court of appeals, if Progressive appealed the judgment, $15,000.00; and (3) for an appeal to the Supreme Court of Texas, if Progressive appealed the judgment, $10,000.00.

Question one asked the jury whether there had been an accident between an uninsured motorist and Boyd. As stated above, the jury answered that question in the negative. Question two asked whether the negligence of any of the listed parties caused the accident, but the question was predicated upon an affirmative finding to question one. Because the jury answered “no” to question one, the jury did not answer question two. Question three asked for an apportionment of negligence, but was predicated upon an affirmative finding to question two. Because the jury did not answer question two, the jury did not answer question three. Boyd raises no challenge concerning questions one through three or the answers (or lack of answers) thereto.

Questions four through seven were damage issues. None of those questions was predicated on an affirmative finding to question one or two, and the jury answered all of the damage questions. The jury found $0 for past physical pain and mental anguish (question four), $5,000 as the difference in the value of the vehicle immediately before and immediately after the accident (question five), and the dollar amounts quoted above in response to questions six and seven.

Boyd’s brief assumes that the trial court disregarded the jury’s answers to questions six and seven and entered a judg- ' ment notwithstanding the verdict on them. According to Boyd, he specifically pleaded that Progressive had breached Part E of the insurance contract; his unchallenged pleadings supported his claim for the car-storage fees that he asserted; and, he implies, the jury’s answer to question six constituted a finding of breach, not only a finding of damage amount. In a similar vein, concerning attorney’s fees, Boyd argues that his pleadings supported a claim for attorney’s fees and that the jury’s answer to question seven constituted a finding of breach, not only a finding of damage amount.

Progressive contends that, based on the jury’s negative answer to question one, the trial court correctly disregarded the jury’s damage findings as an immaterial issue. Progressive is correct. When the jury has found no liability, a finding of damages is immaterial. See Turner v. Lone Star Indus., Inc., 733 S.W.2d 242, 246 (Tex.App.Houston [1st Dist.] 1987, writ ref'd n.r.e.); Zak v. Parks, 729 S.W.2d 875, 882 (Tex.App.-Houston [14th Dist.] 1987, no writ); see also Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334, 335 (1939) (concluding that, when jury found contributory negligence on part of plaintiff, whether jury found plaintiff suffered substantial damages or failed to answer the issue on damages, issue of damages was immaterial). Either the jury’s negative finding under question one defeated Progressive’s obligation under Part E of the insurance contract to pay for reasonable expenses to protect the covered car or Boyd’s failure to submit a jury question on the breach of Part E constitutes a waiver of this ground of recovery under Tex.R. Civ. P. 279.

Accordingly, we overrule Boyd’s fourth issue.

Issues Relating to the Summary Judgment on the Extracon-tractual Claims

In his first three issues, Boyd asserts that the trial court erred in overruling his special exceptions and objections to, and in granting, Progressive’s second motion for summary judgment on his extracontractual claims. We follow the usual standards for reviewing an order granting a motion for summary judgment. See Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Flameowt Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

Objection to Supplementation of Clerk’s Record

As a preliminary matter, we must rule on Boyd’s objection, filed in this Court, to the supplementation of the clerk’s record with the deposition of Cas-tleman. Boyd’s principal objection is that Castleman’s deposition was untimely filed as summary judgment evidence in the trial court, without leave of court, on the day that Progressive’s motion for summary judgment was heard.

First, there is no evidence in the record that Boyd objected to the trial court’s consideration of Castleman’s deposition. Second, Boyd relied on Castleman’s deposition in his supplemental and second supplemental responses to Progressive’s second motion for summary judgment, and Boyd incorporated the deposition into his second supplemental response. Accordingly, Boyd’s objection to supplementing the clerk’s record in this appeal with Castle-man’s deposition is overruled.

Special Exceptions or Objections to Progressive’s Summary Judgment Evidence

In support of its motion for summary judgment, Progressive presented Castle-man’s affidavit and the deposition of its expert, Gamse. Progressive supplemented this evidence with Castleman’s deposition, to which were attached, as exhibits, copies of Gamse’s report and the telephone and in-person statements that Boyd had given to Progressive representatives. Boyd supported his summary judgment response with copies of the Houston Police Department accident report, his telephone statements, Progressive’s supplemental answers to his second set of interrogatories, Progressive’s “internal memos,” Boyd’s affidavit, Progressive’s objections and answers to Boyd’s interrogatories, Gamse’s report, excerpts from Gamse’s deposition, and Progressive’s letter of April 23, 1997. As we noted above, Boyd’s supplemental and second supplemental responses to the summary judgment motion incorporated Castleman’s deposition.

Boyd attacks the summary judgment evidence on the following grounds:

• Various documents were not attached to Progressive’s second motion for summary judgment (other than those referenced as Exhibit B in Progressive’s second motion for summary judgment).
• Although Progressive’s summary judgment motion referred to the insurance policy, no copy of that policy was attached to the motion.
• Castleman’s affidavit was vague, con-clusory, not readily controvertible, and self-serving and relied on hearsay and documents containing specific provisions that were not readily identified.
• The deposition testimony of Gamse was not competent summary judgment evidence and was unreliable and not scientifically well founded under E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557-58 (Tex.1995), and its progeny and contained hearsay; additionally, Progressive did not specify on which pages of the deposition Progressive was relying in support of its summary judgment motion.

We first consider the various documents that Boyd maintains were not attached to Progressive’s second motion for summary judgment. We have examined the record, and all of the documents that we have indicated above were presented by the parties in support of their respective summary judgment motion or response. It is also clear from the record that the documents were submitted to the trial court before the summary judgment order was signed and that there was sufficient time for a party to respond to the documents. Accordingly, we cannot conclude that the trial court erred when it denied Boyd’s special exceptions on this ground.

We next consider the insurance policy. We agree that Puga v. Donna Fruit Co., 684 S.W.2d 677, 680 (Tex.1982), states that, when provisions of an insurance policy are material to a movant’s theory, the policy must be attached to the affidavit that asserts the policy’s existence or otherwise placed of record to provide a basis for rendition for summary judgment. In Puga, the insurance policy was material to the issue of the scope of the earlier Industrial Accident Board award. Id. Here, there was no issue that Progressive was the insurer of Boyd, and the insurance policy was not material to Progressive’s summary judgment theory on the extra-contractual causes of action. Accordingly, we cannot conclude that the trial court erred when it denied Boyd’s special exceptions on this ground.

We next consider Boyd’s objections to Castleman’s affidavit. Castleman’s affidavit, based on his “personal knowledge of the facts and statements contained in this affidavit,” was one-and-a-half pages long. After the filing of Progressive’s summary judgment motion (which included Castle-man’s affidavit) and Boyd’s response, Cas-tleman’s deposition was taken. Both parties relied on Castleman’s deposition in the summary judgment proceeding. In this appeal, Boyd has made no objection to Castleman’s deposition, other than that we should not allow supplementation of the clerk’s record with the deposition, which objection we have already overruled. Cas-tleman’s deposition contains substantially the same information as set forth in Cas-tleman’s affidavit. Therefore, any error by the trial court in considering the affidavit, when the deposition was also before it, was harmless.

Finally, we consider Gamse’s deposition testimony. Boyd made a global objection to Gamse’s 1998 deposition as hearsay. Although Boyd recites in his brief those pages of the deposition containing his hearsay objections, there is no indication in the record that he requested the trial court to rule on each objection, like the rulings that were made on the objections to Castleman’s deposition. Accordingly, Boyd has failed to preserve the hearsay objections on Gamse’s deposition for review. See Tex.R.App. P. 33.1(a)(2)(A).

Boyd also contends that Gamse’s opinion testimony was formed without any significant measurements, scientific analysis, or scientific testing and that the testimony was completely subjective and not founded on scientific method. Boyd characterizes Gamse’s conclusions as farcical and nonsensical. Boyd argues that Gamse’s testimony should be excluded under Robinson and its progeny. According to Boyd, these alleged defects preclude Progressive’s reliance on Gamse’s opinions.

Progressive disputes Boyd’s contention about the scientific reliability of Gamse’s work, but also points out that Progressive was entitled to rely on the opinion of an independent, objective expert to deny a claim, even if that opinion was later determined to be wrong. See Lyons v. Millers Cas. Ins. Co., 866 S.W.2d 597, 601 (Tex.1993) (holding that issue of bad faith focuses on reasonableness of insurer’s conduct in rejecting claim and holding that there was no evidence that expert reports were not objectively prepared or that insurer’s reliance thereon was unreasonable). Compare State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 448 (Tex.1997) (holding that insurer’s reliance on expert’s report, standing alone, will not necessarily shield carrier if there is evidence that report was not objectively prepared or insurer’s reliance on report was unreasonable).

Boyd’s argument seems to be that, in order for Progressive to act in good faith in denying insurance coverage, Gamse’s report and his testimony in support of the report must have been reliable and admissible evidence under Rule of Evidence 702 and Robinson. See Tex.R. Evid. 702; Robinson, 923 S.W.2d at 557-58. We know of no case so holding. Lyons and Nicolau instruct that an insurer’s conduct in rejecting an insurance claim based on an expert’s report may be reasonable, unless the report was not objectively prepared or if the insurer’s reliance was unreasonable. See Nicolau, 951 S.W.2d at 448; Lyons, 866 S.W.2d at 601.

The issue is not the admissibility of Gamse’s report and deposition testimony under Rule of Evidence 702, as asserted by Boyd. In fact, the report and supporting deposition testimony had to be considered during the summary judgment proceedings because Progressive’s summary judgment motion was based on its reliance on Gamse’s report in making its decision to deny coverage. The real issue is whether there were material issues of fact about the report’s having been objectively prepared and the reasonableness of Progressive’s reliance on the report.

Although Boyd claims that Gamse’s conclusions about Boyd’s falling asleep at the wheel were “subjective,” that does not mean that Gamse’s report was not “objective.” “Objectivity” implies that the expert is independent of the party for whom the report is being prepared, has experience in the area in which he is investigating, and has no predisposition to a specific conclusion. See, e.g., Nicolau, 951 S.W.2d at 448-49; Lyons, 866 S.W.2d at 599, 601; Packer v. Travelers Indem. Co., 881 S.W.2d 172, 177 (Tex.App.-Houston [1st Dist.] 1994, no writ). There was no evidence that Gamse was not independent. Gamse had worked for McDowell Owens Engineering as a consultant since 1987. Although McDowell and Gamse had worked for Progressive before, they had also worked for other insurance companies, corporations, and attorneys. Gamse stated that, at the time that he was hired, Progressive representatives did not tell him their opinion of how the accident was caused. Gamse examined Boyd’s damaged car, the accident site, the police accident report, Boyd’s statements, and the vehicle repair estimate. Gamse had substantial experience- in accident reconstruction. Gamse’s-background did not indicate that he had any predisposition to a particular conclusion about how Boyd’s accident was caused.

Boyd did not argue before the trial court, and does not assert in his brief, that there was a material issue of fact about whether Progressive’s action in relying on Gamse’s report when it denied Boyd’s insurance coverage was reasonable. Rather, he expects us to hold that an insurer must first determine if an expert’s report is rehable and admissible under Robinson before the insurer can reasonably rely on the report in making a coverage decision. This we decline to do.

Having reviewed the record and the law, we conclude that the trial court did not err in failing to exclude Gamse’s report and testimony.

The Merits of the Summary Judgment for Progressive

1. Progressive’s summary judgment grounds

Progressive’s summary judgment motion was brief, consisting of five pages. The grounds for summary judgment can be summarized as follows:

• For Boyd to recover benefits under the UIM coverage of his insurance policy, he had to prove that he was struck by a hit-and-run driver. For Boyd to recover on his bad-faith claim, he had to prove that Progressive knew or should have known that it was reasonably clear that Boyd’s claim was covered under the policy. See Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 49 (Tex.1997). Put another way, Boyd had to prove that there were no facts before Progressive that, if believed, would have justified denial of his claim. See State Farm Lloyds v. Polasek, 847 S.W.2d 279, 284 (Tex.App.-San Antonio 1992, writ denied); Higginbotham v. State Farm Mut. Auto. Ins. Co., 103 F.3d 456, 459 (5th Cir.1997).
• Progressive maintained that it denied Boyd’s insurance claim based on “various suspect facts” that it discovered during its investigation and based on the report and investigation of Gamse, an independent, objective expert. See Lyons, 866 S.W.2d at 601 (holding that no evidence was offered that expert reports were not objectively prepared or insurer’s reliance on them was unreasonable). Compare Nicolau, 951 S.W.2d at 448 (holding that mere fact that insurer relies on expert report to deny claim does not automatically foreclose bad-faith recovery and that evidence was presented from which fact finder could have inferred that reports were not objective and that insurer’s reliance on reports was merely pretextual). To support its summary judgment motion, Progressive attached Castleman’s affidavit and Gamse’s deposition.
• Progressive contended that its summary judgment evidence established that it did not deny Boyd’s insurance claim until after his statements had been taken, after his car had been inspected, after an independent accident reconstructionist had been retained, after the scene of the accident had been visited, and after Gamse had made his report.
• Progressive acknowledged that Boyd had asserted extracontractual claims of Texas Insurance Code violations, DTPA violations, breach of the duty of good faith and fair dealing, and “various other common-law tort causes of action.” However, Progressive argued that, when extracontractual causes of action did nothing more than recharacterize a plaintiffs bad-faith claim, a defense to the bad-faith claim served to defeat the extracontractual causes of action. See Escajeda v. Cigna Ins. Co., 934 S.W.2d 402 (Tex.App.Amarillo 1996, no writ); Emmert v. Progressive County Mut. Ins. Co., 882 S.W.2d 32 (Tex.App.-Tyler 1994, writ denied); Polasek, 847 S.W.2d 279.

It is important to note that, except as indicated above, Progressive’s summary judgment motion did not expressly address the elements of Boyd’s causes of action under the Texas Insurance Code, under the DTPA, or for conversion. On appeal, Progressive responds to Boyd’s issues relating to summary judgment with the same arguments that Progressive presented below in support of its summary judgment motion, with the exception of the alternative arguments discussed below.

2. Boyd’s summary judgment response

Boyd answered Progressive’s summary judgment motion by simultaneously filing a response, special exceptions, and objections. He subsequently filed two supplemental responses, amended special exceptions, and amended objections. We consider all of these documents to comprise Boyd’s response to the summary judgment motion. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993) (holding that issues that nonmovant contends avoid movant’s entitlement to summary judgment must be expressly presented by written answer or other written response to motion).

Boyd repeats on appeal the innumerable exceptions, objections, and arguments that he raised in the trial court. The two most significant attacks that Boyd makes on the summary judgment motion, and the judgment granted thereon, are that Progressive failed to address all of his causes of action and that he raised material issues of fact.

3. Progressive’s failure to address all of Boyd’s causes of action

The general rule is that a court reversibly errs when it grants a motion for summary judgment on a cause of action not addressed in the motion. Howell v. Hilton Hotels Corp., 84 S.W.3d 708, 716 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). Boyd alleged causes of action for breach of the duty of good faith and fair dealing under the common law, violations of article 21.21 of the Texas Insurance Code, violations of the DTPA, violations of articles 21.55 and 21.58 of the Texas Insurance Code, and conversion.

Under the duty of good faith and fair dealing, an insurer has a duty to deal fairly and in good faith with its insured in the processing and payment of claims. Arnold v. Nat'l County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex.1987). A party states a cause of action for breach of the duty of good faith and fair dealing by alleging that there is no reasonable basis for an insurer’s denial of a claim, delay in payment, or failure to determine whether there is any reasonable basis for denial or delay. Id.

Section three of article 21.21 of the Texas Insurance Code prohibits any person from engaging in any trade practices that are defined as unfair or deceptive acts or practices in the business of insurance. See Tex. Ins.Code Ann. art. 21.21, § 3. Section 4(10)(a) defines unfair and deceptive acts in the business of insurance to include the following: (1) failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim with respect to which an insurer’s liability has become reasonably clear; (2) failing to provide a policyholder promptly with a reasonable explanation of the basis in the policy in relation to the facts or applicable law for the insurer’s denial of a claim; and (3) refusing to pay a claim without conducting a reasonable investigation with respect to the claim. Id., art. 21.21, § 4(10)(a)(ii), (iv), (viii).

Section 17.46 of the DTPA contains a laundry list of 26 unlawful deceptive trade practices. See Tex. Bus. & Com.Code Ann. § 17.46(b). Section 17.50(a)(4) of the DTPA provides that a consumer may bring an action when an act or practice in violation of article 21.21 of the Texas Insurance Code is a producing cause of economic damage. Id. § 17.50(a)(4).

Section 3(a) of article 21.55 of the Texas Insurance Code provides, with exceptions that do not appear applicable here, that an insurer must notify a claimant in writing of the acceptance or rejection of a claim not later than the fifteenth business day after the date that the insurer receives all items, statements, and forms required by the insurer in order to secure final proof of loss. Tex. Ins.Code Ann. art. 21.55, § 3(a). Section 3(c) provides that, if an insurer rejects the claim, the notice required by section 3(a) must state the reasons for the rejection. Id. § 3(c).

Conversion is the unauthorized and wrongful assumption and exercise of control over the personal property of another, to the exclusion of the owner’s rights. Automek, Inc. v. Orandy, 105 S.W.3d 60, 63 (Tex.App.-Houston [1st Dist.] 2003, no pet.). A claim for conversion requires a plaintiff to show that (1) he owned, had legal possession of, or was entitled to possession of the property; (2) the defendant assumed and exercised dominion and control over the property in an unlawful and unauthorized manner, to the exclusion of and inconsistent with the plaintiffs rights; and (3) the defendant refused the plaintiffs demand for return of the property. Id.

Did Progressive address all of Boyd’s extracontractual causes of action? Certainly not expressly or element by element for each cause of action. Although Progressive acknowledged that Boyd had asserted extracontractual causes of action besides bad faith, Progressive argued that all such causes of action were defeated, as a matter of law, because they only rechar-acterized the bad-faith claim and that a defense to the bad-faith claim defeated all of the extracontractual causes of action.

Assuming that Progressive’s argument is generally a correct statement of the law, that argument cannot apply to the extra-contractual causes of action for conversion or for violation of sections 3(a) and 3(c) of article 21.55 of the Texas Insurance Code, which claims are not recharacterizations of the bad-faith claim. The elements of conversion — unlawful and unauthorized control over the property of another to his exclusion and a refusal to return the other’s property in response to a demand — as they apply to the storage of Boyd’s ear, do not include a bad-faith element. The requirements of sections 3(a) and 3(c) of article 21.55 — that an insurer notify the insured of a claim denial within 15 days after receipt of the documentation of proof of loss and that a claim denial must state the reasons for the denial — -are not rechar-acterizations of the bad-faith claim.

We conclude that, to be entitled to summary judgment on all of Boyd’s extracon-tractual claims, Progressive was obligated to address all of Boyd’s extracontractual claims in its second motion for summary judgment and that it did not do so with respect to conversion and violation of article 21.55 of the Texas Insurance Code. Accordingly, the trial court erred when it granted summary judgment in favor of Progressive on Boyd’s causes of action for conversion and violation of article 21.55 of the Texas Insurance Code. To this extent, we sustain, in part, Boyd’s first through third issues.

For the reasons discussed below, it is unnecessary for us to decide whether or not Progressive successfully addressed Boyd’s causes of action for violations of the DTPA and article 21.21 of the Texas Insurance Code as recharacterizations of his bad-faith claim under the common law or whether such causes of action were defeated as a matter of law under Escajeda v. Cigna Insurance Co., Emmert v. Progressive County Mutual Insurance Co., and State Farm Lloyds v. Polasek

4. Genuine issues of material fact on the remaining extracontractual claims

A bona fide coverage dispute between insurer and insured does not, standing alone, demonstrate bad faith. See State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 44 (Tex.1998); Nicolau, 951 S.W.2d at 448; Transp. Ins. Co. v. Monel, 879 S.W.2d 10, 17 (Tex.1994); see also Giles, 950 S.W.2d at 54 (stating that standard for recovery must balance remedial purposes of bad-faith tort against insurer’s right to deny invalid or questionable claims); Lyons, 866 S.W.2d at 600 (holding that, as long as insurer has reasonable basis to deny or to delay payment of claim, there is no bad-faith tort liability). Evidence of the insurer’s investigation, including the preparation of an objective, expert report, may demonstrate the existence of a reasonable basis for denying a claim. See Lyons, 866 S.W.2d at 601. However, the mere fact that an insurer relies on an expert’s report will not shield the insurer if there is evidence that the insurer’s reliance was “merely pretextual.” See Nicolau, 951 S.W.2d at 448.

Boyd argues that whether an insurer has breached its duty of good faith and fair dealing is a question of fact for the jury, not a matter of law for the court. See Simmons, 963 S.W.2d at 44; Giles, 950 S.W.2d at 49. This is true, provided that the evidence is legally sufficient to raise a fact issue for the jury or is legally sufficient to support the jury’s finding. See Simmons, 963 S.W.2d at 44.

Boyd alleged the following facts to support his causes of action:

• Progressive admitted or confessed that it anticipated litigation on March 20, 1997, the date of the accident.
• Progressive failed to conduct any meaningful investigation before it anticipated litigation, and its subsequent investigation was not conducted in good faith.
• Progressive did not have an adjustor look at the car until March 25, 1997, five days after Progressive decided to deny Boyd’s claim.
• Progressive did not consider employing an accident reconstructionist until April 10, 1997, 20 days after it had determined to deny Boyd’s claim.
• Progressive did not send Boyd a letter denying his claim until April 23, 1997, more than 30 days after Progressive had decided to deny his claim, and the letter violated article 21.21 of the Texas Insurance Code.
• The tone of the recorded statements between Boyd and Progressive’s representatives was accusatory, leading, and not reasonably conducted and thus demonstrated the prosecutorial practice of Progressive to search for any pretext to deny his claim, rather than to conduct a good-faith investigation of that claim.

With the exception of the last fact alleged, all of Boyd’s facts in support of his bad-faith causes of action are based on the statement in Progressive’s supplemental answers to Boyd’s second set of interrogatories that March 20, 1997 (the date of Boyd’s accident) was the exact date that Progressive determined that the investigation made the basis of the lawsuit was conducted in anticipation of litigation. Boyd contends that Progressive could not have conducted its investigation or relied on Gamse’s report in good faith if Progressive had determined on March 20 that its investigation was being done in anticipation of litigation.

In his deposition, Castleman testified that, before he had reviewed the file in the case or authorized the denial of Boyd’s claim, Gamse was hired to do an accident reconstruction. Progressive had used Gamse in previous cases, and Castleman stated that he had talked to his litigation department about the use of Gamse in the past. Castleman stated that the Progressive claims representatives had not drawn a conclusion about whether Boyd’s claim should be denied at the time that Gamse was hired. However, Castleman did not listen to the statements that Boyd gave or read the transcriptions before he authorized the denial of Boyd’s claim. Castle-man spoke with the representative of Progressive who took the in-person statement and relied on that person’s conclusion that Boyd had contradicted himself.

Boyd’s contradictions were said to include the following:

• Boyd stated in his telephone statements the day of the accident, shortly after it happened, that the accident had happened at the intersection of highways 45 and 288. These highways do not intersect, and the police report indicated that the accident had occurred in the 4500 block of 288.
• Boyd stated in his telephone statements that he had no idea who the other driver was and did not even know if it was a male driver. He said that the other car just kept on going. In his in-person statement on April 7, 1997, he said that the other driver was a “fella” and that the other driver stopped, got out of his car, got back in his car, and then left.
• During the in-person statement, Boyd said that he couldn’t tell what kind of car was being driven by the other driver because he was dazed. However, toward the end of the interview, he stated that his recollection was that the other car was dark colored, but then said that it was dark outside and that he couldn’t remember.

Castleman agreed in his deposition that the April 23, 1997 denial letter never advised Boyd that there were contradictions in his claim information or that the physical evidence of damage to his car was contrary to his statements. Castleman stated that he did not know why Progressive representatives anticipated litigation on March 20,1997.

Because Progressive’s interrogatory answer indicated that Progressive anticipated litigation on the date of Boyd’s accident, because Castleman testified that he did not listen to or read Boyd’s statements before he authorized denying Boyd’s claim, and because apparent inconsistencies between Boyd’s telephone statements and in-person statement may have been the result of a dazed or disoriented state at the time of the accident, shortly after which the telephone statements were made, we conclude that there were material issues of fact concerning whether Progressive conducted its investigation in good faith and relied on Gamse’s report in denying Boyd’s claim. Therefore, the trial court erred when it granted summary judgment in favor of Progressive on Boyd’s causes of action for breach of the duty of good faith and fair dealing under the common law and violations of the DTPA and article 21.21 of the Texas Insurance Code. To this extent, we sustain, in part, Boyd’s first through third issues.

5. Progressive’s alternative grounds for affirmance of the summary judgment

Progressive has raised on appeal two alternative grounds for affirming the summary judgment. The first ground is that the summary judgment rendered on the extracontractual claims may be affirmed because Boyd did not appeal the judgment on the breach-of-contract claim. According to Progressive, if there has been no breach of the insurance contract based on the allegedly wrongful denial of a claim, there can be no bad-faith or extracontractual liability based upon the same denial as a matter of law. The second ground is that the conversion claim may be affirmed because Boyd reasserted conversion in his trial pleadings and put on evidence in support, but failed to submit conversion to the jury, thereby abandoning the claim.

We are unable to affirm the summary judgment on the extracontractual claims based on the subsequent take-nothing judgment in the breach-of-contract case because this ground was not before the trial court. See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993) (holding that appellate court cannot affirm summary judgment on grounds not raised in trial court). Nor does “no breach of contract” necessarily mandate a conclusion of “no bad faith.” See Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 804 (Tex.2001); Akin, 927 S.W.2d at 629; Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex.1995).

Neither can we conclude that the judgment in the contract case disposed of the conversion claim. Before the trial began, the conversion claim had already been disposed of by the June 13, 2000 summary judgment, which was final, the trial court’s plenary jurisdiction over the June 13 judgment having expired before the trial began.

Accordingly, we reject Progressive’s alternative grounds for affirmance.

Conclusion

We overrule Boyd’s objection to the supplementation of the clerk’s record with Castleman’s deposition.

Because we have concluded that the trial court did not abuse its discretion in severing the extracontractual causes of action from those for breach of contract and that the court did not err in disregarding the jury’s answers to questions six and seven, we affirm the take-nothing judgment on the contract cause of action in favor of Progressive in trial court cause number 689,760, which judgment was signed on October 12, 2000 (appellate cause number 01-03-01146-CV).

However, we conclude that Progressive’s summary judgment motion did not address all of Boyd’s remaining causes of action and that there existed genuine issues of material fact with respect to some of the extracontractual causes of action at the time that the summary judgment was granted. Therefore, we reverse the summary judgment signed on June 13, 2000 in favor of Progressive on all extracontractual causes of action in trial court cause number 689,760-101 (appellate cause number 01-00-00785-CV) and remand this cause for further proceedings.

      . The term “bad faith” literally refers to breach of the common-law duty of good faith and fair dealing, but is customarily used more broadly by counsel, commentators, and courts. However, in this opinion, we use the term "extracontractual” for all causes of action other than those for breach of contract, including not only the alleged breach of the common-law duty of good faith and fair deal-tag, but also all alleged violations of the Texas Insurance Code, all alleged violations of the Texas Deceptive Trade Practices — Consumer Protection Act, and Boyd’s claim for conversion.

      . No reporter’s record of this or of any other hearing on the severance issue has been filed in this Court.

      . According to a docket notation, the trial court denied Progressive’s first motion for summary judgment.

      . The trial court sustained Boyd's special exception described in paragraph one. Paragraph one provided: "Plaintiff specially excepts to Progressive's Second Motion for Summary Judgment paragraph IV which refers to a document(s) not contained in Exhibit 'B' attached to Defendant’s Second Motion for Summary Judgment.” Because this special exception was sustained, there is no reason for the Court to discuss it further. Boyd made the identical complaint in his objections to Progressive’s Second Motion for Summary Judgment, and that objection was also sustained.

      . The question contained the following instruction: "You are instructed that an 'uninsured motor vehicle,’ means, in this case, a motor vehicle which is a hit and run vehicle whose operator or owner cannot be identified and which hits a covered auto.”

      .Although initially this Court ruled that it would consolidate both appeals under a single appellate cause number (01-00-00785-CV), it has become clear from an administrative standpoint that it is necessary to have a separate appellate cause number for each trial court cause number. Therefore, trial court cause number 689,760 has been assigned appellate cause number 01-03-01146-CV. To this extent, we modify the Court’s order of May 17, 2001. The assignment of separate appellate cause numbers does not impact our consideration and disposition of both appeals in a single opinion. Separate judgments, one for each appeal, will issue.

      . Nor is it mandatory that damage questions contain language predicating them on affirmative findings to liability questions. See Tex.R. Civ. P. 277 (indicating that court may predicate damage question upon affirmative findings of liability).

      . Part E was entitled, "DUTIES AFTER AN ACCIDENT OR LOSS” and stated in relevant part, under "Additional Duties for Uninsured/Underinsured Motorists Coverage,” that the insured should "3. Take reasonable steps after loss, at our expense, to protect damaged property from further loss.” (Emphasis added.)

      . By order dated January 25, 2001, this Court ordered Boyd’s objection and Progressive’s response carried with the case.

      . Article 21.58(a) of the Texas Insurance Code provides that, in any suit to recover under a contract of insurance, the insurer has the burden of proof as to any avoidance or affirmative defense that must be affirmatively pleaded under the Texas Rules of Civil Procedure. The article allocates the burden of proof; it does not provide a cause of action. See, e.g., Hartrick v. Great Am. Lloyds Ins. Co., 62 S.W.3d 270, 274 n. 6 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (holding that insurer who relies on exclusion carries burden of proof).

      . As noted above, Progressive relied on Escajeda v. Cigna Ins. Co., 934 S.W.2d 402 (Tex.App.-Amarillo 1996, no writ), Emmert v. Progressive County Mut. Ins. Co., 882 S.W.2d 32 (Tex.App.-Tyler 1994, writ denied), and State Farm Lloyds v. Polasek, 847 S.W.2d 279 (Tex.App.-San Antonio 1992, writ denied), to support this proposition.

        . This date is taken from Progressive's supplemental answers to Boyd's second set of interrogatories. Progressive’s corporate representative was asked to state the exact date that Progressive determined that the investigation made the basis of the suit was conducted in anticipation of litigation. She responded, “March 20, 1997,” which was the date of Boyd's accident.

      . Boyd sought reversal on appeal of the judgment on the breach-of-contract claim based on issues four and five, which this Court has overruled.