Glenn Thomas v. Allstate Insurance Company

Affirmed in Part, Reversed and Remanded in Part, and Memorandum Opinion filed July 15, 2004 Affirmed in Part, Reversed and Remanded in Part, and Memorandum Opinion filed July 15, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00879-CV ____________ GLENN THOMAS, Appellant V. ALLSTATE INSURANCE COMPANY, Appellee On Appeal from the 152nd District Court Harris County, Texas Trial Court Cause No. 00-65990-A M E M O R A N D U M   O P I N I O N Appellant Glenn Thomas appeals from a summary judgment in which the trial court dismissed with prejudice Thomas=s claims against his automobile insurance carrier, appellee Allstate Insurance Company. We hold Allstate=s summary judgment proof conclusively establishes Thomas does not have a claim resting on a theory of a breach of the duty of good faith and fair dealing. Accordingly, we affirm the trial court=s take-nothing summary judgment on Thomas=s statutory claims that rest on the bad faith theory.[1] We further hold Allstate=s summary judgment motion does not establish the absence of a genuine issue of material fact in relation to Thomas=s claims for misrepresentation under the Texas Insurance Code. Accordingly, we reverse the summary judgment on those claims and remand them to the trial court for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND Thomas was involved in an automobile accident with an uninsured motorist on April 17, 2000. Thomas filed claims with Allstate for property damage to his car, past and future medical expenses, lost earnings, and pain and suffering. In support of his medical expenses, Thomas submitted medical records and bills from his treating physicians. According to the claims diary of David Marks, an Allstate claims adjuster handling Thomas=s claims, on April 28, 2000, Marks received a telephone call from a doctor=s office where Thomas was seeking treatment. The doctor asked whether Allstate would accept bills from the doctor=s office, and Marks explained they could not guarantee payment of the medical bills. In the course of the call, Marks also spoke with Thomas and told Thomas he did not see a final liability decision as having been made at that time. Marks=s notes then read, ALet insd know that his UM coverage will pay for his dmgs and reasonable medical to the extent the clmt [sic] is responsible for if found to be proximate cause. Insd was asking if we were denying claim, and I told him no we were not.@ At some point, Allstate obtained information from the Southwest Index Bureau and the National Index Claim Bureau indicating Thomas had previously filed two claims regarding injuries to his back, knee, wrist, and arms. On May 8, 2000, the claims diary reflects that Allstate had attributed fault to the other motorist and therefore had determined to handle the claim as an uninsured motorist claim, rather than under Thomas=s collision coverage. In an entry the same day, Marks recorded, AHave already explained thoroughly UMBI handling and the impact of minor damages. Send MA/WA to insd. With him receiving the alleged treatment and nature of impact we will probably need medical records and employer records if LOE is alleged.@ On May 22, 2000, the claims diary reflects Allstate was going to issue a check for the property damage. Allstate then requested Thomas to provide additional medical records.[2] On July 25, 2000, Thomas wrote Allstate, indicating he would again provide information from his treating physicians, but objecting that AAllstate=s medical authorization is much to [sic] broad and harassing in nature.@ On September 8, 2000, Allstate, over the signature of Connie Darby, wrote Thomas: We are reserving our right to later disclaim any obligation under the policy and assert a defense of no coverage under the policy because: Part E - Duties After An Accident or Loss B. A person seeking any coverage must: 1. Cooperate with us in the investigation, settlement or defense of any claim or suit 4. Authorize us to obtain: a. medical reports; and b. other pertinent records. On January 17, 2001, Thomas sued Allstate for breach of contract, violation of Texas Insurance Code articles 21.21 and 21.55, violation of the Texas Deceptive Trade Practices Act, and breach of the common law duty of good faith and fair dealing. The trial court subsequently severed the extracontractual claims from the underlying breach of contract claims. During discovery in the breach of contract action, Allstate requested production of copies of tax returns from 1990 to the present, copies of documents evidencing medical treatment and bills in connection with the automobile accident, and signed authorizations to obtain employment records and medical records. The medical authorization form was directed to Aany physician or health care practitioner who has attended to [Thomas] or any hospitals or clinics in which he has been confined or treated@ and covered Aany and all medical information, records, reports and statements which such physicians, health care practitioners, hospitals or clinics may have relative to any evaluation, examination, treatment or therapy rendered to him.@ When Thomas did not provide this information, Allstate filed a Motion to Compel. Thomas then amended his petition to delete claims for lost earnings and earning capacity. On August 22, 2001, the trial court ordered Thomas to Aprovide an unlimited medical records authorization for five years before April 17, 2000 and provide medical records for ten years before the accident relating to the parts of his body that he claims were injured in the accident.@ The trial court also ordered Thomas Ato identify prior injuries and all health care providers who have provided medical treatment to [Thomas] for five years prior to April 17, 2000.@ Finally, the court denied as moot, that part of Allstate=s motion seeking to compel work and wage information. According to Allstate, Thomas did not provide a complete list of medical providers in response to the court=s order. On September 3, 2002, the underlying breach of contract case proceeded to a two-day jury trial. On October 4, 2002, the trial court rendered judgment on the jury=s verdict and awarded Thomas $4,728.25 in past damages, $5,000.00 in future damages, and $2,144.25 in costs. On the same day, Allstate delivered checks for those amounts to Thomas=s attorney. On March 21, 2003, Allstate filed two summary judgment motions challenging Thomas=s remaining claims: a no-evidence motion under Texas Rule of Civil Procedure Rule 166a(i) and a traditional motion under Rule 166a(c). In the no-evidence motion, Allstate sought dismissal of Thomas=s Aclaims under article 21.21 of the Texas Insurance Code and all of [Thomas=s] statutory and common law claims of breach of the duty of good faith and fair dealing.@ In the traditional motion, styled AMotion for Summary Judgment,@ Allstate sought Adismissal of all [Thomas=s] claims under article 21.21 of the Texas Insurance Code@ and further alleged: AAllstate has not violated art. 21.21 as a matter of law because Allstate acted in good faith toward its insured and made a prompt, fair settlement with [Thomas], therefore all of [Thomas=s] claims should be dismissed.@[3] At the time Allstate filed the summary judgment motions, Thomas=s First Amended Original Petition was his live pleading. In that petition, Thomas alleged Allstate had violated Insurance Code article 21.21 in eleven particular regards, most of which tracked the article 21.21 language. In the paragraph containing the DTPA cause of action, Thomas cited no particular DTPA section and restated, in identical language, the eleven Insurance Code allegations. Finally, Thomas alleged breach of the duty of good faith and fair dealing, citing delayed payment of his claim and failure to reasonably investigate. On April 28, 2003, Thomas filed a Second Amended Petition. He included a paragraph on Abreach of contract,@ in which he alleged Allstate Abreached the contract by specifically failing to pay [Thomas=s] claim when it had all the necessary information to do so.@ He also included a paragraph on ADTPA and Texas Insurance Code Violations.@ In this paragraph, he quoted definitions and provisions from Texas Business and Commerce Code sections 17.45, .46, and .50, and alleged generally that Allstate Ahas violated [Thomas=s] rights as a consumer under the DTPA; Tex. Bus. Comm. Code Ann. ' 17.41 et. seq.@ He also quoted Insurance Code article 21.21 definitions and provisions and, as in the First Amended Original Petition, alleged Allstate had violated Insurance Code article 21.21 in eleven Aparticulars,@ generally tracking the article 21.21 language. Thomas did not separately allege breach of the common law duty of good faith and fair dealing. In a single document, Thomas subsequently responded to both summary judgment motions. On May 28, 2003, the trial court signed an order providing: After considering the Motions, any responses thereto, and arguments, it is the Court=s opinion that the Motion for Summary Judgment should be GRANTED. It is, therefore, ORDERED that the Motion for Summary Judgment filed by Allstate Insurance Company is granted in its entirety and that summary judgment is entered in Allstate Insurance Company=s favor on all claims brought against it by Glenn Thomas, all such claims being hereby dismissed with prejudice. Thomas then filed a Motion for New Trial. The motion was overruled by operation of law. DISCUSSION Issue Presented and Preliminary Consideration In a single issue, Thomas contends the trial court erred in granting a final summary judgment in favor of Allstate on all of Thomas=s claims. Thomas then separately challenges the trial courts rulings on (1) his common law claim for breach of the duty of good faith and fair dealing, (2) his article 21.21 claims, and (3) his DTPA claims. Before we turn to the propriety of the trial court=s summary judgment on each of appellant=s claims, however, we briefly consider the nature of the trial court=s ruling. Although Allstate filed both a no-evidence summary judgment motion and a traditional summary judgment motion, Thomas contends the trial court granted the traditional motion. Based on our review of the record, we agree. Allstate styled its traditional motion as AMotion for Summary Judgment,@ and in its order, the trial court stated it was granting Allstate=s AMotion for Summary Judgment.@ Moreover, Allstate provided the trial court with an order by which the trial court could have granted the no-evidence motion, but the court did not sign that order. Accordingly, we treat the order in this case as one granting traditional summary judgment. Summary Judgment Standards and Standard of Review The movant for summary judgment has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When deciding whether there is a disputed material fact issue precluding summary judgment, we must take as true all evidence favorable to the non‑movant. Id. at 548B49. We must indulge every reasonable inference in favor of the non‑movant and resolve any doubts in its favor. Id. at 549. We must not consider evidence favoring the movant=s position unless the evidence is uncontroverted. Weaver v. Stewart, 825 S.W.2d 183, 185 (Tex. App.CHouston [14th Dist.] 1992, writ denied) (citing Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965)). Because the propriety of summary judgment is a question of law, we review the trial court=s decision de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). A defendant moving for traditional summary judgment assumes the burden of showing as a matter of law the plaintiff has no cause of action against him. Levesque v. Wilkens, 57 S.W.3d 499, 503 (Tex. App.CHouston [14th Dist.] 2001, no pet.). Traditional summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff=s theories of recovery, or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Thomas=s Claims Breach of Duty of Good Faith and Fair Dealing Although in his First Amended Original Petition Thomas alleged breach of the duty of good faith and fair dealing, he did not renew this claim in his Second Amended Petition. A plaintiff=s timely filed amended pleading supersedes all previous pleadings and becomes the controlling petition in the case regarding theories of recovery. See Tex. R. Civ. P. 65; J.M. Huber Corp. v. Santa Fe Energy Res., Inc., 871 S.W.2d 842, 844 (Tex. App.CHouston [14th Dist.] 1994, writ denied). The amended pleading effected an abandonment of Thomas=s claim for breach of the duty of good faith and fair dealing. See Radelow‑Gittens Real Prop. Mgmt. v. Pamex Foods, 735 S.W.2d 558, 559 (Tex. App.CDallas 1987, writ ref=d n.r.e.); see also Wu v. Walnut Equip. Leasing Co., 909 S.W.2d 273, 278 (Tex. App.CHouston [14th Dist.] 1995, rev=d on other grounds, 920 S.W.2d 285 (Tex. 1996). Accordingly, we do not consider whether summary judgment was proper on this claim. See Wheeler v. Methodist Hosp., 95 S.W.3d 628, 634 n.2 (Tex. App.CHouston [1st Dist.] 2002, no pet.) (holding, by omitting from his second amended petition certain claims, plaintiff abandoned them and therefore declining to consider whether summary judgment on omitted claims was proper). The Article 21.21 Claims In the trial court, Thomas alleged eleven violations of Texas Insurance Code article 21.21, section 4(10). On appeal, he contends the trial court improperly granted summary judgment on only six: (1) unreasonable delay in payment of his claim; (2) failure to promptly provide a reasonable explanation of the basis in the policy, in relation to the facts or applicable law, for denial of the claim or for the offer of a compromised settlement of a claim; (3) failure to pay a claim without conducting a reasonable investigation with respect to the claim; (4) failure within a reasonable time to submit a reservation of rights letter; (5) making a material untrue statement of fact or law; and (6) misrepresenting terms and provisions of his policy. Although, as discussed above, Thomas subsequently abandoned his bad faith claim, that claim was live at the time Allstate filed its summary judgment motion. In its motion, Allstate integrated an argument on good faith and fair dealing with its argument addressing Thomas=s allegations under the Insurance Code and DTPA. It does so again on appeal. To the extent Allstate conclusively established Thomas did not have a bad faith claim, it conclusively disproved Thomas=s Insurance Code and DTPA claims based on the same theory underlying the bad faith claim. State Farm Fire & Cas. Co. v. Woods, 925 F. Supp. 1174, 1180 (E.D. Tex. 1996), aff=d, 129 F.3d 607 (5th Cir. 1997); see Carter v. State Farm Mut. Auto. Ins. Co., 33 S.W.3d 369, 373 (Tex. App.CFort Worth 2000, no pet.) (stating, when claims under DTPA and Insurance Code do nothing more than recharacterize a bad faith claim, defense to the bad faith claim serves to defeat statutory claims); Lane v. State Farm Mut. Auto. Ins. Co., 992 S.W.2d 545, 554 (Tex. App.CTexarkana 1999, pet. denied) (stating same, but holding recovery on Insurance Code article 21.21 claims not barred as a matter of law when latter go beyond insurer=s mere refusal to pay); Escajeda v. Cigna Ins. Co. of Texas, 934 S.W.2d 402, 408 (Tex. App.CAmarillo 1996, no writ) (stating same, but distinguishing situations in which the tortious acts underlying the DTPA/Insurance Code and bad faith claims differ). We therefore consider Allstate=s argument on Thomas=s bad faith claim in the limited context of deciding whether the trial court erred in granting summary judgment on Thomas=s claims under Insurance Code article 21.21. As the supreme court explained in Aranda v. Insurance Co. of North America, the tort of bad faith has two elements, the first objective, the second, subjective: (1) the absence of a reasonable basis for denying or delaying payment of the benefits of the policy and (2) that the carrier knew or should have known there was no reasonable basis for denying the claim or delaying payment of the claim. 748 S.W.2d 210, 213 (Tex. 1988); accord Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 18 (Tex. 1994). The supreme court subsequently clarified that the objective element is satisfied by proof that an insurer denied or delayed payment of a claim after liability was reasonably clear. See Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 55B56 (Tex. 1997). As the court explained in Moriel, AEvidence that merely shows a bona fide dispute about the insurer=s liability on the contract does not rise to the level of bad faith.@ 879 S.W.2d at 17. Bad faith is also not established if the evidence shows the insurer was merely incorrect about the factual basis for its denial of the claim, or about the proper construction of the policy. Id. at 18. Nevertheless, an insurer may breach its duty of good faith and fair dealing when it fails to reasonably investigate a claim in order to determine whether its liability is reasonably clear. See Giles, 950 S.W.2d at 56 n.5. The summary judgment proof in the present case negated the objective element of Thomas=s bad faith claim. Given the applicable law, the summary judgment proof established that the extent of Allstate=s liability for Thomas=s bodily injury claims was not reasonably clear and Allstate reasonably investigated Thomas=s bodily injury claim. Insurance Code article 5.06-1 provides in relevant part: No automobile liability insurance . . . covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state unless coverage is provided therein or supplemental thereto . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, or property damage resulting therefrom. Tex. Ins. Code Ann. art. 5.06-1(1) (Vernon Supp. 2004) (emphasis added) (footnote omitted). The Texas Supreme Court has interpreted the phrase Alegally entitled to recover@ in an uninsured motorist policy to mean Athe insured must be able to show fault on the part of the uninsured motorist and the extent of the resulting damages.@ Franco v. Allstate Ins. Co., 505 S.W.2d 789, 792 (Tex. 1974) (emphasis added). As the Austin Court of Appeals has stated, to recover under an uninsured motorist policy, the injured party must establish the amount of the damages. Sikes v. Zuloaga, 830 S.W.2d 752, 754 (Tex. App.CAustin 1992, no writ) (citing State Farm Mut. Auto. Ins. Co. v. Matlock, 462 S.W.2d 277, 278 (Tex. 1970)). The Austin court subsequently explained, AThis legal precedent establishes that in order for the claim to be one that >must be paid by the insurer,= the insured claiming uninsured motorist benefits must secure an agreement or a judgment determining the amount of damages caused by the accident.@ Mid‑Century Ins. Co. of Texas v. Barclay, 880 S.W.2d 807, 811 (Tex. App.CAustin 1994, writ denied) (emphasis added). Thus, contrary to Thomas=s suggestion, Allstate=s determination the uninsured motorist was at fault and Allstate=s decision to pay one-hundred percent of Thomas=s property damages did not end the inquiry regarding Allstate=s liability on Thomas=s claim.[4] Allstate still had to determine the extent to which Thomas=s alleged bodily injury damages were caused by the accident, and Allstate was therefore required to investigate this issue. It is undisputed Marks was contacted by at least one of Thomas=s health care providers who told Marks about prior testing that had been done there. By the time Marks transferred Thomas=s file to Darby in the special investigation unit, Allstate had received the Southwest Injury Bureau report indicating Thomas had previously been injured. The nature of the impact in relation to Thomas=s injuries was also a factor as one Allstate agent apparently explained to Thomas, with the following notation appearing in the Claims Diary for May 8, 2000: AHave already explained thoroughly UMBI handling and the impact of minor damages. Send MA/WA to insd. With him receiving the alleged treatment and nature of impact we will probably need medical records and employer records if LOE is alleged.@ Darby wrote Thomas on June 27, 2000, asking Thomas to contact her Ato schedule an in person statement to discuss the accident and obtain medical/wage authorization.@ On July 25, 2000, Thomas responded, refusing to sign the authorization because it was Amuch to [sic] broad and harassing in nature.@ On September 8, 2000, Darby sent Thomas the reservation of rights letter referring to an insured=s duty to cooperate when seeking coverage.[5] Under the relevant law, Allstate had a reasonable basis for delaying payments for bodily injury. Given Thomas=s refusal to provide additional medical information, Allstate=s investigation of his bodily injury claim was reasonable.[6] The summary judgment proof conclusively rebutted the claimed absence of a reasonable basis for delaying payment of bodily injury benefits. To the extent Thomas=s article 21.21 claims were based on a theory of unreasonable delay, Allstate conclusively disproved them. Thomas=s article 21.21 claims, however, go beyond Allstate=s mere delay in paying a claim under the policy. Instead, similar to the insured in Lane, Thomas alleged Allstate made a material untrue statement of fact or law and misrepresented terms and provisions of his policy. See Lane, 992 S.W.2d at 554. As a result, Allstate was required to present evidence in its summary judgment motion establishing that no genuine issue of material fact exists as to these claims. See id. In focusing solely on the alleged delay in payment, Allstate did not do so. Accordingly, we conclude the trial court erred in granting summary judgment on Thomas=s misrepresentation claims under the Insurance Code. The DTPA Claim Thomas argues the trial court erred by granting summary judgment on his DTPA claims because Allstate (1) did not move for summary judgment on those claims and (2) failed to disprove at least one element of the DTPA causes of action as a matter of law. Despite the citation of several DTPA provisions in his trial court petition and in his appellate brief, Thomas argues only that Allstate provided no evidence disproving that it violated the DTPA by engaging in an unconscionable action or course of action. See Tex. Bus. & Com. Code Ann. ' 17.50(a)(3) (Vernon 2002). In Thomas=s First Amended Original Petition, his DTPA allegations were identical to his Insurance Code allegations. Thomas=s Second Amended Petition, however, does not contain a list of actions by which Allstate allegedly violated the DTPA; instead, it sets out only statutory definitions and provisions. The factual section of the Second Amended Petition is virtually identical to the factual section of the First Amended Original Petition. As set forth above, Allstate filed its summary judgment motion before Thomas amended his petition. Generally, a trial court cannot grant summary judgment on a claim that is not specifically addressed in the summary judgment motion. See Chessher v. Southwestern Bell Tel., Co., 658 S.W.2d 563, 564 (Tex. 1983). However, there are exceptions to this rule when the newly asserted claims in an amended petition are based on an identical set of acts or elements alleged in the original petition. See DeWoody v. Rippley, 951 S.W.2d 935, 942 (Tex. App.CFort Worth 1997, pet. dism=d by agr.); Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 436B37 (Tex. App.CHouston [14th Dist.] 1999, no writ). As evidenced by the virtually identical statement of facts in the First Amended Original Petition and the Second Amended Petition, Thomas=s added unconscionability claim was necessarily based on the same set of facts as the claims set forth in his First Amended Original Petition. As discussed above, Allstate conclusively proved its defense to a bad faith claim. When a DTPA claim does nothing more than recharacterize a bad faith claim, defense to the bad faith claim defeats the DTPA claim. Woods, 925 F. Supp. at 1180; Carter, 33 S.W.3d at 373; Lane, 992 S.W.2d at 554; Escajeda, 934 S.W.2d at 408. On appeal, Thomas fails to explain why Allstate=s argument and summary judgment proof addressed to his previously pleaded claim of breach of the duty of good faith and fair dealing was not broad enough to encompass his DTPA unconscionability claim. See Espeche v. Ritzell, 123 S.W.3d 657, 664 (Tex. App.CHouston [14th Dist.], 2003, pet. filed) (stating, if motion for summary judgment is sufficiently broad to encompass later‑filed claims, movant need not amend motion, and citing Wilson v. Korthauer, 21 S.W.3d 573, 579 (Tex. App.CHouston [14th Dist.] 2000, pet. denied)). Given the preceding authority, the identity of facts alleged in the two petitions, the general manner in which Thomas pleaded his DTPA claims in the Second Amended Petition, and his failure in this court to differentiate his DTPA unconscionability claim from his previously pleaded bad faith claim, we cannot conclude the trial court erred in granting summary judgment against him on his DTPA claims. CONCLUSION We hold Allstate=s summary judgment proof conclusively establishes Thomas does not have a claim resting on a theory of a breach of the duty of good faith and fair dealing. We therefore affirm the trial court=s take-nothing summary judgment on Thomas=s statutory claimsCunder the Texas Insurance Code and the Deceptive Trade Practices ActCthat rest on the bad faith theory. We also hold Allstate=s summary judgment motion does not establish the absence of a genuine issue of material fact in relation to Thomas=s claims for misrepresentation under the Texas Insurance Code. We therefore reverse the judgment on those claims, and remand them to the trial court for further proceedings consistent with this opinion. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed July 15, 2004. Panel consists of Justices Yates, Anderson, and Hudson. [1] We use the shortened form, Abad faith claim,@ to refer to the claim for breach of good faith and fair dealing. [2] This request does not appear to be part of the record on appeal. The Medical Authorization attached to Allstate=s subsequent Motion to Compel is discussed below. [3] Allstate had previously filed a traditional motion addressing Thomas=s claims under Texas Insurance Code article 21.55. On appeal, Allstate represents the trial court disposed of this motion along with the other two motions. Disposition of this motion is not at issue on appeal. [4] Given the separate issues of property damage and bodily injury, Allstate=s alleged admission of liability on the property damage claim does not constitute waiver of a right to judicial determination of the bodily injury claim. Marks testified it was Anot unusual for property damage in an uninsured motorist claim to be paid without an uninsured investigation if he has the coverage, and then the investigation B it=s done for customer service reasons. The investigation is continued for bodily injury.@ [5] In Comsys Information Technology Services, Inc. v. Twin City Fire Insurance Co. and Specialty Risk Services, Inc., this court held a month-and-a-half delay between settlement and a coverage opinion was arguably unreasonable and raised a fact issue about whether the insurer breached its duty to provide a coverage opinion and/or reservation of rights letter under Article 21.21 of the Texas Insurance Code. 130 S.W.3d 181, 200 (Tex. App.CHouston [14th Dist.] 2003, no pet. h.). In Comsys, however, there was a discrete point, settlement, at which the insurer had a duty to decide coverage. See id. The present case, involving as it does an ongoing investigation, is distinguishable. [6] We do not view Thomas=s lack of cooperation as an affirmative defense, but as one factor of several establishing the reasonableness of Allstate=s delay.