NO. 07-03-0068-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B FEBRUARY 6, 2004

______________________________

JEREMY H AWA, Appellant
v. METROPOL ITAN LIFE INSURAN CE COMPA NY, Appellee

_________________________________ FROM THE 136 TH DISTRICT COURT OF JEFFERSON COUNTY ; NO. D-167,221; HON. MILTON SHUFFIELD, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ. Jeremy Hawa (H awa) app eals from a summary judgment denying him relief against Metropolitan Life Insurance Company (Metropol itan). Hawa had s ued to recover unearned premiumson a lif

e insurance policy he purchased. Through two issues, he contends that the trial court erre d in gran ting Metro politan’ s motion for summary judgment. We affirm

. Background Hawa commenced this lawsuit to recover damages resulting from his purchase of
a yearly renewable life insurance policy. He contended that Metropolitan either breached1 The annual premium was $255. However, pe r the t erms of t he insu rance pol icy, Hawa was allowed

to pa y the a mo unt in m onth ly or qu arterly in stallm ents . He s elec ted th e latter m etho d.

2 His cl aim approx imated $1 1. 2 its contract with him or unjust ly enri ched itse lf. It allegedly did so by charging hi m for coveragewhen no ne was i n effect. According to the insurance agreement before us, Metropolitan issued the poli cy to Hawa on March 18, 2002. The pol icy date of the in surance a greement differed, however

. Itwas March 21, 2002 . The la tter repre se nted the date on which the first premium was due. It also established the date from which “[p]olicy years, months and anniversaries [were] all mea sured.” Th us, the policy would “be renewed automatically for successive periods of one year” from March 21 st . Also included in the contract was aprovision upon which the claims of breached contract and unjust enrichment were founded. It stated that “[t]he Pol icy will not be i n force un til the fi rst full p remium ispaid.” Here, the undisputed evidence of record illustrates that though the initial premium
was due on Ma rch 21, 2002, Hawa did not pay it until April 2, 2002. 1 So, he had no coverage for the 11-day period between March 21st and April 2nd. And, because he did notand because t hose 11 day s did not extend the anniversary or renewal date of the policy, he sued under the theories men tioned a bove to recover an amount equal to the purported ly unear ned premi um. 2 Metropolitan moved for summary judgment contending that it could disprove, as a matter of law, at least one element of the breached co ntract claim. So too did it aver that Hawa could not recover under the theory of unjust enrichment because the terms of the3

contract itself a ddressed the situ ation. T he tr ial cou rt undoubtedly agreed with Metropolitan since it granted the motion. Argument Authority Th e standard of review applicable when consi dering orders granting s ummar y judgmentis well known and need not be repeated. We find it sufficient to merely refer the litigan ts to Science Spectrum, Inc. v. Martinez , 941 S.W.2d 910 (Tex. 1997) and Nixon v. Mr. Property Management Co. Inc. , 690 S.W.2d 546 (Tex. 1985) for its explanatio n. Additionally, since resolution of the dispute before us concerns the interpretation of
a contract, it is importantto recall several applicable rules regarding the subject. The first mandates that construing an unambiguous contract involve s a questi on of law

. Cross Timb ers Oil Co. v. Exxon Corp. , 22 S.W.3 d 24, 26 (Tex. Ap p.--Amaril lo 2000, no pet.); Borders v. KRLB , Inc ., 7 27 S.W.2d 357, 359(Tex. Ap p.--Amaril lo 1987, writ ref’ d n.r.e.). Thus, we need not defer to any interpretation afforded by the tri al court. Cross Timbers Oil Co. v. Exxon Corp. , 22 S.W.3d at 26. Second, when interpreting the document, westrive to give effect to the intent of its parties. Id . Furthermore, that intent is garnered from the lan guage of the c ontract i tself, wh ich lang uage is consider ed in its entirety

. Id . In other words, we peruse the complete document to understand, harmoniz e, and ef fectuateall its provisions. Id.; Questa Energy Corp. v. Vantage Point Energy, Inc. , 887 S.W.2d 217, 221 (Tex. App.--Amarillo 1994, writ denied). So too must we afford the words contained in the agreementth eir p lain, ordinary, and generally accepted meaning, unl ess the instrument requires otherwis e. Sun Operating Ltd. Partnership v. Holt , 984 S.W.2d 2 77, 2 85 (Tex.4

App.--Amarillo 1998, p et. denied) ; Phillips Petroleum Co. v. Gill man , 593 S.W.2d 152, 154 (Tex. Ci v. App.--A marillo 1980, wri t ref’d n. r.e.). Next, and mostimportantly, we may not rewrite the agreement to mean something itdoes not

. Cross Timbers Oil Co. v. Exxon Corp. , 22 S.W.3 d at 26; Borders v. KRLB, Inc ., 727 S.W.2d at 359. Authority prohibits us from altering the accord merely because we or one of the parties dislikes its provisionsor thinks th at somethi ng else is neede d in it. HECI Explor. Co. v. Neel , 982 S.W.2d 881, 888-89 ( Tex. 199 8); Cross Timbers Oil Co. v. Exxon Corp. , 22 S.W.3d at 26. F or a court to chang e the par

ties’ ag re ement mer ely because it did not like the accord, or because one of the pa rties subsequently found it distasteful, would be to undermine not only the san cti ty afforded contracts but also the expectations of those who crea ted and r elied up on it. Cross Timbers Oil Co. v. Exxon Corp. , 22 S.W.3d at 26-27. Finally, that the contract is one of insurance does notallow us to deviate from the foregoing rules. Policies of insurance are contracts. Hernandez v. Gulf Group Lloyds , 875 S.W.2d 691, 692 (Tex. 19 94). So, the terms contained in them, like tho se in eve ry contrac t, notonlyrepresen t the agre ement bet ween itsparties, see Ruiz v. Government Empl. Ins. Co. , 4 S.W.3d 838, 841 (Tex. App.--El Paso 1999, no pet.) (stating that an insurance policy is a contrac

t entered into between the parties whereby each party becomes bound by the terms of the agreemen t), but al so shoul d be enfo rced as w ritten. Appl ication of Aut

horit y Here, the terms of the policy to which the parties agreed were that: 1) Hawa would paya specific premium for the insurance coverage; 2) the first premium was due on March 21, 2002; 3) until the first payment in the specified amount was paid, the policy would not be in force; and 4) the policy would renew on the anniversary date or one year from March5

21, 2003. Nothing is or wasexpressly said about providing 365 days of coverage during the first term of the policy. Nothing was said about starting the annual renewal period from the day on w hich thefi rst premium was paid; indeed, the parties expressly agreed otherwise given the provision stating that the policy w ould renew one year from March 21, 2002. Nor did the parti es in an y way agr ee to pro rate the f

irst premi um due if

it werepaid late. Rather, Hawa ex pressly a greed no t only th at he would pay a specific premium by March 21, 2002, for a policy of insurance that would automatically renew on March 21, 2003, but also that he would have no cove rag e until the first premium was paid. Given these terms, affording them their plain m eaning , and constr uing them in t he context pr ovi ded for in the policy, we cannot but read them as evincing an intent to allow Metropolitan to receive the same specified premium for the first year of coverage irrespective of when coverage actually becomes effective. In other words, the insured (or Hawa in this case) expressly agreed that for the first year of the policy he would pay the full premium to secure coverage despite the possibility that the a ctual period of coverage could shrinkdue to his delay in paying the same premium . T hus, it did not matter whether the entire pr emium was

earned s ince theinsured nonethe less agre ed to pay it. Moreover, wheth er Hawa encountered the supposed injustice about w hich he complains ( i.e. having to pay the full premium though he may receive less than a full year’s coverage) was actually dependent upon his own conduct. If he paid the premium when it
was due, i.e. March 21, 2002, hewould h ave recei ved a ful l year’scoverage . If he di d not, then he would receive less than a full year’s coverage. S o, his own delay, if any, in timely complying with theterms of th e contrac t dete rmi ned the extent of coverage he would receive in e xchange for the unalterable premium he agreed to p ay. Moreover, had he6

thoughtthis outcome unacceptable, the policy itself afforded him relief. Included in it was another provision granting him “10 days after [he] received [the] Poli cy . . . to r eview it .” And, within “those 10 days,” he was entitled to “return the P olicy . . . for an y reason
. . . .” And, if he did s o, “any pr

emiums [he] paid [would have] then [been] refunded . . . and the Policy. . . can celled from the start.” Yet, this means of relief was not pursued by Hawa despite the clear meaning of the policy’s terms. Furthermore, the outcome d erived here comp orts with Supreme Court pre cedent. For instance, in Life Ins. Co v. Overstreet , 603 S.W.2d 780 (Tex. 1980), the court held that
an insuran ce contract is enforceable as written notwithstanding the fact that the first premium may be paid late, that is, after it is "’due’ and ‘payable.’" Id. at 783. Additionally, when the policy designates an annual renewal o r anniversa ry date, delay in paying the premium will not ext end thatdate, even if it results in “the insured obtain[ing] l ess than a full year' s cov erage for the first year's p remium.” Id. That is not only what the contract provided for but also what occurred here. So, as a matter of law, there was no breached contract. Finally, because the contract addressed the disp ute at bar, Hawa could not invoke the equitab le theory

of quant um meruit to obtain recovery
. See Iron Mountain Bison Ranch, Inc. v. Easley Trailer M anufactur

ing, Inc. , 42 S.W.3d 149, 160 (Tex. App.--Amarillo 2000, no pet.)(holding that when a contract governs the question, on e cannot invoke the equitable theory of quantum meruit). So, as contended by Metropolitan below, it proved, as a matte r of law, its entit lement to summary ju dgment. We overru le both i ssues ass erted by H awa and affirm thesummary ju dgment.7 Brian Quinn Justice