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Hansen v. Roach

Court of Appeals of Texas, Third District, Austin

May 31, 2017

James Hansen, Appellant
v.
Lonnie Roach and Bemis, Roach & Reed, Appellees

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. D-1-GN-14-001213, HONORABLE KARIN CRUMP, JUDGE PRESIDING

          Before Justices Puryear, Goodwin, and Bourland

          MEMORANDUM OPINION

          Cindy Olson Bourland, Justice

         Appellant James Hansen sued appellees Lonnie Roach and Bemis, Roach & Reed (collectively, "Roach") for legal malpractice, alleging that Roach failed to timely file an appeal from a trial court's ruling in Hansen's suit against an insurance company. After a bench trial, the trial court ruled in Roach's favor and ordered that Hansen take nothing. Hansen appeals from the trial court's judgment. We will affirm.

         BACKGROUND

          Hansen is a former neurosurgeon.[1] On June 5, 2010, he suffered a severe injury while mountain biking that rendered him disabled and unable to return to work. Before June 5, 2010, Hansen practiced neurosurgery through his professional association, Austin Neurosurgical & Spine Institute, P.A. ("Austin Neurosurgical"). Hansen was the only member and director of Austin Neurosurgical.

         Before Hansen's injury, he had obtained two types of disability-insurance policies issued by The Northwestern Mutual Life Insurance Company. One type of policy was a disability-income policy, which replaces lost income resulting from disability. The other type was an overhead-expense policy that provides coverage for overhead expenses to allow the continuing operation of the insured's business if the insured person becomes disabled.[2] After his injury, Hansen submitted claims for benefits under both types of policies. Northwestern Mutual began paying Hansen monthly benefits under his disability-income policies but denied his claim for benefits under the overhead-expense policy. In November 2010, Northwestern Mutual informed Hansen in a letter that it was denying benefits under this policy because it had determined that "the operation of the business has ended." The letter stated:

The business or professional practice that Dr. Hansen was engaged in at the time his disability started was that of neurosurgery. Dr. Hansen admits that he was the practice. Because he was a solo practitioner and he cannot perform the duties of his practice, there is no practice. Without a practice, the operation of the business (as that term is defined by the policy) has ended.

          Hansen retained Roach as his attorney and filed suit against Northwestern Mutual in December 2010, seeking to recover benefits under the overhead-expense policy. The case was tried to the bench on stipulated facts, which included the following, among others:

• Northwestern Mutual determined that Hansen "met the definition of Total Disability under both the Disability Income and Overhead Expense Policies from June 5, 2010" through the time of the stipulation.
• Hansen had not returned to his practice, treated patients, or performed surgeries after his injury on June 5, 2010.
• Austin Neurosurgical had not provided any medical services to patients after Hansen's injury on June 5, 2010.
• Hansen and Austin Neurosurgical had not employed any other neurosurgeons after the date of Hansen's injury to continue the operation of his business.
• No other neurosurgeons were practicing with Austin Neurosurgical before or after the date of Hansen's injury.
• Hansen terminated his medical-malpractice insurance coverage in October 2010.
• Hansen surrendered his Texas medical license on April 8, 2011.
• In answer to a question about when he "closed [his] practice" in a March 2011 deposition, Hansen testified, "[k]ind of officially about a month after my injury, so it would have been early July last year."
• Hansen testified in a June 2011 deposition that he had closed his office, that he did not have any employees, and that he had sent letters to all of his patients advising ...

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