* Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-20298

Summary Calendar

ROBERTO MARINELLI PEREZ and

JOAQUINA MARIA SALCEDO P. DE MARINELLI,

Plaintiffs-Appellants,

VERSUS

PAN AMERICAN LIFE INSURANCE COMPANY and 

SEGUROS PANAMERICANA, S.A.,

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Texas

(CA H 94 3096)

(October 20, 1995)

Before GARWOOD, WIENER and PARKER, Circuit Judges.

PER CURIAM:*

Plaintiffs-appellants Roberto Marinelli Perez and Joaquina

Maria Salcedo P. De Marinelli ("Marinelli") brought a diversity

action against defendants-appellees Pan American Life Insurance
Company ("Pan American") and Seguros Panamericana, S.A. ("Seguros")

in the United States District Court for the Southern District of

Texas alleging violations of the Texas Deceptive Trade Practices

Act and the Texas Insurance Code, breach of the duty of good faith

and fair dealing, breach of contract, and intentional infliction of

emotional distress. The district court dismissed the claims

against Pan American for failure to state a claim. The district

court also dismissed the claims against Seguros on the basis of

improper venue. Seguros, although named in the original complaint,

was never properly served, did not enter an appearance in the

district court and is not a party to the appeal. Marinelli

nevertheless appeals the district court's rulings as to both

defendants. 

We affirm in part, reverse in part and remand for further

proceedings.

FACTS

Roberto Marinelli Perez, a Guatemalan citizen and resident,

purchased a medical insurance policy from Seguros in June 1992.

Seguros, a subsidiary of Pan American, is a Guatemalan corporation

licensed to sell insurance in Guatemala. Marinelli purchased the

policy based, in part, on the representation that Seguros would

reimburse expenses incurred for medical treatments provided

anywhere in the world. Marinelli claims that Seguros specifically

represented that he and his family could come to the Houston, Texas

Medical Center for treatment if the need arose. All premiums due

under the policy were paid. 

On May 3, 1993, Marinelli's son Andres was born and Marinelli
3

submitted an application to add him to the policy, which was

initially approved. On July 7, 1993, Andres was diagnosed with a

congenital liver dysfunction and began receiving medical treatment

in Houston, Texas, the cost of which eventually exceeded $300,000.

Andres' Texas medical treatments were pre-approved by Seguros.

Later, Seguros denied Marinelli's claim for benefits, stating that

Andres' treatment was not covered because it fell within the

policy's pre-existing condition exclusion. 

On July 4, 1994, Seguros sued Marinelli in Guatemala on a

declaratory judgment action alleging fraud in the procurement of

the policy endorsement for Andres, asserting that Marinelli

intentionally omitted from the insurance application certain

information regarding his newborn child's congenital condition.

DISMISSAL OF PAN AMERICAN

a. Standard of review

In reviewing the district court's judgment of dismissal for

failure to state a claim against Pan American upon which relief may

be granted, we must determine whether there is any set of facts on

which Marinelli would be entitled to recover that could be proven

consistent with the allegations contained in the complaint. Baton

Rouge Bldg. & Constr. Trades Council, AFL-CIO v. Jacobs

Constructors, Inc., 804 F.2d 879, 881 (5th Cir. 1986).

b. Was Pan American an alter ego of Seguros?

Pan American did not have a contract of insurance with

Marinelli. The insurance contract was entered into by Marinelli

and Seguros, a foreign corporation and a subsidiary of Pan
4

American. The alter ego doctrine is a narrow exception to the

general rule which forbids disregarding the separate corporate

existence of defendants. First Nat'l Bank v. Gamble, 132 S.W.2d

100, 103 (Tex. 1939). Alter ego is not a separate cause of action,

but rather a means of expanding the potential source of recovery.

See Farr v. Sun World Sav. Ass'n, 810 S.W.2d 294, 297 (Tex. App.--

El Paso 1991, no writ). Only in exceptional circumstances should

a court disregard the corporate identity, and then only to prevent

an inequitable result. Torregrossa v. Szelc, 603 S.W.2d 803, 804

(Tex. 1980). 

In deciding whether a parent corporation can be held liable

for the acts of its subsidiary, the court must determine if the

parent corporation participated in wrongful conduct. Marinelli

must allege that Pan American committed a legally sufficient wrong

to avoid dismissal on its alter ego theory. See Kern v. Gleason,

840 S.W.2d 730, 736 (Tex.App.--Amarillo 1992, no writ). The

complaint essentially alleges that Pan American used its corporate

structure to evade legal responsibility under Texas law.

Plaintiffs will further show that Defendant, PanAmerican Life Insurance Company is liable for the torts

of Seguros [] for the reason that said corporation serves

merely as a tool or conduit by which defendant does

business in Texas while insulating itself from risk and

possible liability and that Seguros [] is a mere cloak to

conceal wrongs and injustice. Furthermore, Plaintiffs

will show that Defendant seeks to circumvent application

of those statutes which this Complaint specifically

asserts violations of[.]

Assuming that Guatemalan law is more favorable to an insurance

company than Texas law, and that Pan American sought to structure

its relationship with its Guatemalan subsidiary so that the
5

subsidiary is governed by Guatemalan law, we find no authority for

holding that such conduct is wrongful in any way that gives rise to

liability under the alter ego theory. 

Further, Marinelli judicially admitted that Seguros is

adequately capitalized and able to satisfy any potential judgment

in this action. Even though a parent and its subsidiary may have

some or all of the same directors, file consolidated income tax

returns and conduct inter-corporate business, absent an allegation

or evidence that the subsidiary is undercapitalized, incapable of

paying the judgment or used its corporate structure to achieve an

inequitable result, the parent is entitled to a judgment as a

matter of law. Lucas v. Texas Indus., Inc., 696 S.W.2d 372, 376

(Tex. 1984).

For the foregoing reasons, we affirm the district court's

dismissal of Pan American.

DISMISSAL OF SEGUROS

Pan American moved to dismiss the case for improper venue

pursuant to Federal Rule of Civil Procedure 12(b)(3). Once Pan

American raised its venue objection, Marinelli was required to come

forward with evidence showing venue is proper in the Southern

District of Texas. Advanced Dynamics Corp. v. Mitech Corp., 729 F.

Supp. 519 (N.D. Tex. 1990). 

The district court's memorandum opinion states that it is

undisputed that Seguros does no business in Texas, that 28 U.S.C.

§ 1391(a) controls, and that venue is improper as to Seguros alone.

In fact, the record reveals that Marinelli contended that venue was
 

1 "An alien may be sued in any district." 28 U.S.C. 1391(d)

6

proper as to Seguros because Seguros could be sued in any district

as an alien under 28 U.S.C.§ 1391(d)1, and that Seguros's status as

an alien corporation was undisputed. As long as Pan American was

joined as a defendant, venue was proper only in those districts

where venue is proper as to the non-alien defendant, that is, Pan

American. Once Pan American was dismissed, there was no bar to

venue in the Southern District of Texas as to Seguros. 

Pan American, arguing on behalf of Seguros, suggests that we

affirm Seguros's dismissal on the basis of lack of personal

jurisdiction. However, the question of personal jurisdiction has

nothing to do with venue. James Talcott, Inc. v. Allahabad Bank,

Ltd., 444 F.2d 451 (5th Cir.), cert. denied, 404 U.S. 940, 92 S.

Ct. 280, 30 L. Ed. 2d 253 (1971). We decline to make a

determination concerning personal jurisdiction, since neither the

pleadings and evidence below, the district court's opinion, nor the

parties affected have developed that issue. 

CONCLUSION

We affirm the district court's dismissal of Pan American,

reverse the dismissal of Seguros for improper venue, and remand for

further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.