Capitol Life Insurance Co. moved the Court of Appeals for the Fifth District of Texas for rehearing of the court's prior affirmance of summary judgment against Capitol in favor of MetLife Insurance Company USA, MetLife Investors Group, Inc., and American General Life Insurance Company, a decision we previously wrote about here []. The Court denied Capitol's motion but withdrew and superseded its previous opinion with a new memorandum opinion. The result for Capitol, however, was more of the same.

The Fifth District reversed the trial court's summary judgment against Capitol in favor of the policyholder, holding that fact issues related to the policyholder's intent in serving a demand letter on Capitol prevented summary judgment for either party. With regard to MetLife and American General, the court affirmed the no-evidence summary judgments against Capitol, stating Capitol had failed to provide "more than a scintilla of probative evidence" to demonstrate it had performed under the contracts, a necessary element of Capitol's claim against both parties. Capitol Life Ins. Co. v. Newman, Case No. 05-16-01476-CV (Tex. Civ. App. Sept. 13, 2018).

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