Full opinion text
REYNOLDS, Chief Justice. Complaining of the existence of a Mary Carter agreement, lack of or insufficient evidence to support the judgment rendered against it, and errors in the award of damages, St. Paul Surplus Lines Insurance Co., Inc. (St. Paul) presents fifty-six points of error to appeal from the judgment in favor of Dai-Worth Tank Co., Inc. (Dai-Worth) and Mission Butane Gas Co. (Mission Butane). Dai-Worth counters with a cross-point, asserting its entitlement to exemplary damages and attorney’s fees. Based upon the authorities cited and the rationale expressed, we will reverse the judgment only to the extent that it permits recovery of future lost profits as well as treble damages and, because the change in the amount of recovery necessitates a recomputation of prejudgment interest and attorney’s fees, remand the cause to the trial court in order that the damages, interest and fees may be computed in conformity with the applicable principles. Because of the number of points and the cross-point, and St. Paul’s contentions of evidential insufficiency, our address is necessarily lengthy. At the outset, we will outline the facts and circumstances leading to this appeal, and notice other pertinent facts in our discussion of specific contentions of error. EVENTS LEADING TO THE LITIGATION Fifty years ago, Dai-Worth began operations in Grand Prairie as a designer and fabricator of propane tanks and vessels. For a time, it was the only business in Texas designing and fabricating a liquid propane (LP) gas pressure vessel, and it also fabricated a custom-design line of tanks throughout the country and overseas. During the years 1983 and 1984, Mission Butane purchased three vehicles from Dal-Worth’s LP line. These vehicles were assembled by Dai-Worth from a Chevrolet truck chassis purchased from General Motors Corporation, together with valves, meters and other accessories purchased from various suppliers, and a liquid propane tank fabricated by Dai-Worth. In 1987, Ed Talbot, acting in his capacity as secretary and treasurer of Dai-Worth, requested James Lawrence of the Lawrence & Wright Agency (collectively referred to as Lawrence unless otherwise indicated), to obtain bids for product liability and completed operations insurance. Lawrence contacted Surry George Shaffer, III of the Shaffer Insurance Agency, Inc. (collectively referred to as Shaffer unless otherwise indicated), to assist him since Shaffer was more experienced in such matters. On 10 May 1987, Dai-Worth purchased an insurance policy from St. Paul through the efforts of Lawrence, Shaffer, and Skeels, Mullens & Associates, Inc. d/b/a Felts, Mullens & Fuos (collectively, Skeels), as the surplus lines broker for St. Paul, because St. Paul was not authorized to do business in Texas. The policy provided comprehensive coverage for products and completed work liability, with an aggregate limit of $1,000,-000.00. The following month, one of the trucks purchased by Mission Butane rolled over in a single vehicle accident. In March of 1988, Dai-Worth purchased a three-year extended reporting endorsement on its initial policy, and a second liability policy (collectively, the policies). All of Dal-Worth’s transactions were conducted through Lawrence and Shaffer, who delivered the policies to Talbot. Dining this same time frame, another truck purchased by Mission Butane rolled over and, on 27 June 1988, a third truck rolled over in San Antonio, injuring the driver, Bobby Flores. In September of 1988, Dai-Worth received notice from Mission Butane’s insurer, Ranger Insurance Company, that it intended to pursue a subrogation claim for property damage arising out of the Flores accident, and requesting Dai-Worth notify its insurance carrier of a possible design defect claim. Talbot testified that he followed the same procedure he followed in past lawsuits of giving the letter to Lawrence, who gave it to Shaffer, who gave it to Skeels, who forwarded it to St. Paul. Skeels forwarded the letter to St. Paul with a notation that the correspondence was provided by “our agent,” and asked St. Paul to set up a claim file. On 19 October 1988, John M. Killian, acting as Mission Butane’s attorney, sent a thirty-day demand letter pursuant to the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA), to Dai-Worth, General Motors Corporation, and Mission Chevrolet, the San Antonio Chevrolet dealership which serviced the truck since its purchase from Dai-Worth until the time of the accident. Upon receipt of this letter on 22 October 1988, Talbot followed his customary practice, and gave it to Lawrence. It is undisputed that Lawrence forwarded the letter through the channels outlined above, and it was received on 25 October 1988 by St. Paul’s Specialty Underwriting department in its corporate headquarters in Minnesota. St. Paul’s San Antonio office, which had responsibility for the claim because the Flores accident happened in San Antonio, received the demand letter twenty-two days after it was originally received by St. Paul, but still six days prior to the deadline for responding to the demand. St. Paul opened a claim file, assigned Beatrice Asfeld as the claim representative, and set reserves of $10,000 on the claim. Asfeld had exclusive responsibility for handling the claim, originally under the supervision of W.D. “Scotty” Scott, and later his replacement, Jack Larsen. It is undisputed that no action was taken to respond to the demand letter, nor to contact Killian for an extension of time in which to respond. An 8 December 1988 telephone call was the only conversation Asfeld had with Killian concerning the claim or lawsuit. Killian offered to arrange an inspection of the trucks, but Asfeld declined. Killian informed Asfeld he would be filing suit in the near future because the statute of limitations was about to expire. Immediately following her conversation with Killian, Asfeld spoke with Talbot, but admittedly failed to tell him of Killian’s stated intent to file suit in the near future. Her memorandum memorializing the conversation recites that Talbot forwarded the Mission demand letter to his insurance agent “through proper channels” to St. Paul. Talbot testified that Asfeld told him to keep sending material and correspondence related to the claim through the agents, and did not give him any special instructions for forwarding papers in the event a lawsuit was filed. On 2 February 1989, Mission Butane filed suit in San Antonio against Dai-Worth, General Motors Corporation, and Mission Chevrolet, alleging violations of the DTPA, breach of warranty, unconseionability, and misrepresentation, and seeking an unspecified amount of damages. Mission Butane’s DTPA cause of action alleged knowing violations by Dal-Worth, but did not specifically allege its intentional conduct. The Mission Butane suit was not connected to the injuries sustained by Flores, who filed a separate cause of action for that recovery. Dai-Worth was served with notice of the Mission Butane suit on 22 February 1989, and Talbot delivered the suit papers to Lawrence either that same day, or the following day. It is undisputed that Lawrence sent the papers to Shaffer, but there is disagreement between the parties as to what happened once Shaffer received the papers. Amy Spross, a former employee of Shaffer responsible for handling claim and lawsuit papers, testified that she mailed the papers directly to St. Paul, as she had done on previous occasions, without going through Skeels. No documentation of the mailing of the papers was presented, and St. Paul denied receiving them. On 2 March 1989, Asfeld memorialized her conversation with Dora Sarcozy of Ranger Insurance, recording that Sarcozy stated she believed suit had been filed against Dal-Worth in connection with the Mission Butane claim. Asfeld did not investigate the verity of Sarcozy’s statement. Rather, on 9 March 1989, she spoke to another Ranger Employee, Barbara Bayer, who stated she “doubted” Ranger would have filed suit because of a probable arbitration agreement with St. Paul. Despite Killian’s letter notification and telephone confirmation that suit would be filed, Asfeld chose to believe no suit had been filed by Ranger or anyone else; she assumed that because its insurance company agreed not to file suit, Mission Butane would not file suit in its own right and Flores would not file suit. Talbot received information from Shaffer that St. Paul intended to answer the Mission lawsuit. Several days later, Talbot spoke to Asfeld and specifically asked about the status of the “suit,” to which Asfeld replied that St. Paul was investigating it. Dal-Worth’s answer in the Mission Butane lawsuit was due on 20 March 1989. No answer was filed by, or on behalf of, Dal-Worth. On 27 September 1989, Mission Butane took a default judgment against Dal-Worth, by which Mission Butane was awarded $794,100 in damages, plus an award for attorney’s fees. The default judgment recited findings of knowing violations of the DTPA, but no intentional conduct. Notice of the default judgment, albeit perhaps deficient under the rules of civil procedure, was sent to Dai-Worth. Talbot was not aware of the notice for some time. In a matter unrelated to the Mission Butane suit, Dal-Worth’s corporate counsel, Frank Hagle, pursuant to notice of Mission Chevrolet’s cross-action against Dai-Worth in Flores’s personal injury suit, wrote Asfeld on 14 December 1989, stating he was forwarding the cross-action to her because he was unaware of any counsel hired by St. Paul to represent Dai-Worth in the Flores lawsuit. Upon receipt of Hagle’s letter, Asfeld, unaware of any lawsuit filed against Dal-Worth, asked Ann Megee, an attorney with the San Antonio law firm of Thornton, Summers, Biechlin, Dunham & Brown, to cheek the files at the county courthouse for any lawsuits filed in connection with the Mission Butane truck rollover. Megee’s search uncovered the default judgment taken by Mission Butane against Dai-Worth. Then, Asfeld discussed with attorneys at Thornton, Summers the possibility of having the default judgment set aside, but no action was taken to do so. Larsen instructed Asfeld to send her complete file on the Mission Butane claim to Terry Topham, an attorney with the San Antonio office of Davidson, Troilo & Booth, so the firm could provide an opinion regarding whether the claims in the default judgment were covered by the policies. St. Paul decided no action would be taken to set aside the default judgment until the question of coverage was determined, and no attorney was contacted in connection with Dal-Worth’s interests. The following day, Asfeld informed Talbot of the default judgment, but did not tell him that there were any concerns or questions regarding coverage, or that an attorney’s opinion had been requested, or that St. Paul had decided to defer action on the default judgment until the question of coverage was determined, or that no attorney was contacted in relation to Dal-Worth’s interests. The coverage opinion was not completed until 3 January 1990. Even after St. Paul received the attorney’s opinion, Larsen determined not to inform Dai-Worth until 10 January 1990 that St. Paul would deny coverage. St. Paul offered a courtesy defense to Dal-Worth in the Flores case, provided terms and conditions could be agreed upon by Dal-Worth and St. Paul, but St. Paul advised Dal-Worth to consult with its own attorneys concerning the setting aside of the default judgment. Dal-Worth hired attorneys and began the process to appeal the default judgment by writ of error in the San Antonio Court of Appeals. On 28 February 1990, deputy sheriffs attempted to execute the writ from the default judgment on Dal-Worth’s property. When St. Paul refused to post a supersedeas bond to prevent the execution, Dal-Worth filed a petition for bankruptcy. Later, due to a lack of cash flow sufficient to pay worker’s compensation insurance premiums, Dal-Worth made a decision to discontinue its LP line and, eventually, Dal-Worth ceased operations completely. THE LITIGATION To determine whether there was coverage for the Mission Butane claim and subsequent lawsuit, St. Paul filed a declaratory judgment action against Dai-Worth in Bexar County. However, St. Paul dismissed that action and intervened for the same purpose in the instant lawsuit filed in Dallas County by Dal-Worth. As originally cast by Dai-Worth, its lawsuit was against only Skeels and Shaffer, who were alleged to have failed to exercise ordinary care in forwarding the Mission Butane lawsuit papers to St. Paul. By its live trial pleadings, its twelfth amended petition, Dai-Worth complained only of St. Paul and Shaffer as defendants, effectively dismissing its action against Skeels. Ridley v. McCollum, 139 Tex. 540, 163 S.W.2d 833, 836 (1942). Although the record is not clear as to how or when Lawrence was brought into the action, it is clear from the recorded dismissals that Lawrence’s interests were sufficiently disposed of, and Lawrence it is not a party to the judgment or this appeal. On 12 November 1990, Dal-Worth and Mission Butane agreed Dal-Worth would dismiss its appeal of the default judgment and Mission Butane would accept, in satisfaction of its judgment, $500,000 in cash, a $25,000 credit of merchandise if used within one year, and a partial assignment of Dal-Worth’s cause of action against St. Paul. Mission Butane and Dal-Worth agreed that any recovery on the good faith and fair dealing claim would be divided with Mission Butane receiving 90% and Dal-Worth 10% of any recovery up to $2,000,000, and any remaining recovery would be allocated evenly between the two companies. On 27 August 1991, Shaffer entered into an agreement to settle its controversy with Dal-Worth and Mission Butane for $498,895.50, which was to be reimbursed if the action against St. Paul was successful (the Mary Carter agreement). Shaffer was dismissed from the lawsuit as agreed in the settlement; but, St. Paul, believing Shaffer to be the “true wrongdoer,” brought Shaffer back into the suit through a third party action, ostensibly for the purpose of indemnity, and Shaffer participated in that capacity at trial. JURY’S VERDICT The trial began on 14 October 1992, and ended four weeks later. After receiving the voluminous evidence presented, the jury found, in response to the numbered questions and as pertinent to this appeal, that St. Paul, in essence, Q. 3^1 was estopped from denying coverage, and waived its right to assert there was no coverage under the policies of insurance; Q. 4.1 had actual knowledge of the existence of Mission Butane’s lawsuit prior to the date of the default judgment; Q. 4.2-4.3 was negligent and breached its duty of good faith and fair dealing in failing to investigate whether suit had been filed, which negligence was the proximate cause of the entry of the default judgment; Q. 5 was negligent in handling the Mission Butane lawsuit which was the proximate cause of damages to Dai-Worth; Q. 6 breached its duty of good faith and fair dealing; Q. 7, 9-10 engaged in unfair or deceptive acts or practices and an unconscionable action or course of action, which proximately caused damages to Dai-Worth; Q. 8 engaged in an unconscionable action or course of action which was a producing cause of damages to Dai-Worth; Q. 11 could have settled the default judgment for $17,000 before 27 December 1989; Q. 18 had an agency relationship with Shaffer; Q. 19 was not prejudiced by Dal-Worth’s failure to send the lawsuit papers; and Q. 20-21 received the lawsuit papers prior to the default judgment. The jury failed to find, in essence, that Q. 1-2 the statutorily required language was on the policies delivered to Dal-Worth; Q. 22-23 Shaffer failed to forward the Mission Butane lawsuit papers to St. Paul, or that any such failure was a proximate cause of damages to Dai-Worth; and Q. 24-25 Dal-Worth’s failure to followup with St. Paul concerning the receipt of the papers or its failure to notify St. Paul of the default judgment was negligent. The jury, answering question 26, allotted 100% of the negligence which caused Dal-Worth’s damages to St. Paul and none to Shaffer and Dal-Worth. Based upon their findings, the jury awarded Dal-Worth (Q. 12) $331,750 for past lost business profits; $2,160,000 for loss of future business profits; $25,000 for attorney’s fees related to the bankruptcy and the San Antonio lawsuit; $507,000 for increased business costs; and $500,000 for damage to its credit reputation. Finding St. Paul’s conduct to be (Q. 13) committed knowingly, the jury awarded Dal-Worth (Q. 14) $2,000,000 in additional damages. Because St. Paul’s actions were found to be (Q. 15) grossly negligent, the jury awarded Dai-Worth (Q. 16) $11,500,000 in exemplary damages. They further awarded Dal-Worth’s counsel (Q. 17) 40% of Dal-Worth’s recovery as a reasonable fee for his services. JUDGMENT Faced with the election of recovery under the DTP A, the Texas Insurance Code, or the common law, Mission Butane and Dai-Worth elected to recover under the Insurance Code. The trial court rendered judgment decreeing recovery of $3,523,750 as actual damages; $1,117,219.30 under the default judgment with interest; $607,921.49 as pre-judgment interest on the actual damages; $10,497,781 as additional damages under the Insurance Code; and $10,497,781 as attorney’s fees. By virtue of the election, exemplary damages were not awarded. THE APPEALS Appealing from the judgment, St. Paul alleges errors in (1) the existence of a Mary Carter agreement between Shaffer and Dal-Worth; (2-4) the trial court’s rulings con-ceming coverage and St. Paul’s duty to defend; the lack of or insufficient evidence to support (5-41) the jury’s findings on elements of Dal-Worth’s causes of action, and (42-49, 51-52) the awards of damages and attorney’s fees; (50) the submission of an improper definition of net profits; (58) the trial court’s award of pre-judgment interest; and (54) the trial court’s failure to grant St. Paul a credit for the settlement with Shaffer. Dai-Worth presents a single cross-point, asserting it is entitled to both exemplary damages and attorney’s fees as cumulative remedies. With a few exceptions, all contentions of error are discussed in the order presented. MARY CARTER AGREEMENT Initially contending the trial court erred in overruling its motion for new trial because the Mary Carter agreement resulted in a materially unfair trial, St. Paul submits that under the holding of Elbaor v. Smith, 845 S.W.2d 240 (Tex.1992), the agreement should have been declared void as a matter of law. Dai-Worth and Shaffer respond that Elbaor does not control in this instance because the agreement was not the type contemplated by the Court’s definition, St. Paul has failed to preserve the error complained of, and St. Paul invited the error, if any. In general, a Mary Carter agreement is a means by which one of a multiplicity of defendants can settle its portion of liability, and limit exposure to an agreed upon amount of damages with a promise of reimbursement if the plaintiffs action against the remaining defendant(s) is successful. In Elbaor, our Supreme Court was called upon to determine whether such agreements are “void as contrary to public policy.” Id. at 241. At common law, such agreements were prohibited as maintenance and champerty, Lum v. Stinnett, 87 Nev. 402, 488 P.2d 347, 350 (1971), because “they are inimical to the adversary system, and do not promote settlement.” Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 8 (Tex.1986) (Spears, J. concurring). Nevertheless, in the early 1970’s, Mary Carter agreements became prevalent with the advent of Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla.App.1967), overruled by, Ward v. Ochoa, 284 So.2d 385 (Fla.1973), the case from which such agreements acquired their name. As Mary Carter agreements became more common, their impact upon the fairness of trial outcomes created a quagmire of admissibility and harm analysis questions. Determining Mary Carter agreements create a “tremendous incentive for the settling defendant to ensure that the plaintiff succeeds in obtaining a sizable recovery, and thus motivates the defendant to assist greatly in the plaintiffs presentation of the case,” the Elbaor Court declared such agreements “void as violative of sound public policy.” 845 S.W.2d at 247, 250. St. Paul contends Elbaor requires the reversal of the trial court’s decision and a remand for a new trial as a matter of law. Our consideration of St. Paul’s contention is by a triadic analysis. First, we must determine whether the Elbaor holding is applicable to the present situation; if so, whether the complaint of error was preserved; and if so, whether the error was harmful to St. Paul in that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.App.P. 81(b). The first two determinations require affirmative answers, but the third determination results in a negative answer. The threshold determination to be made is whether the settlement agreement between Dal-Worth and Shaffer was in fact a Mary Carter agreement. En route to its decision, the Elbaor Court clarified that, for purposes of that opinion, a Mary Carter agreement existed “when the settling defendant retains a financial stake in the plaintiffs recovery and remains a party at the trial of the case.” 845 S.W.2d at 247 (emphasis in original). Dal-Worth and Shaffer contend that since Shaffer, the settling defendant, was required to be, and was, dismissed as a party under the agreement, and was brought back only as an unwilling third-party defendant, the requirement of remaining a party was not met and, thus, the agreement was not a Mary Carter agreement as defined in Elbaor. They further contend that Shaffer was not a necessary party and, therefore, St. Paul invited any error by forcing Shaffer back into the litigation. However, the parties point to, and our search has revealed, nothing in the record to reflect an objection that Shaffer was not a necessary party was made at trial; hence, that objection is waived. Tex.R.App.P. 62(a) and 74(d). We recognize Shaffer’s and Dal-Worth’s concerns are similar to those expressed by the dissent in Elbaor, i.e., that the ruling locks the door to participation, and inhibits the ability of those called into court to be allowed to answer. 845 S.W.2d at 253. However, in defining a Mary Carter agreement to include participation at trial by the settling defendant, the majority determined the participation requirement is satisfied by the mere presence of the settling defendant as a party in the case, id. at 247 n. 14, without qualification as to how or why he remains a party at the time of trial. We are bound by the opinion of the majority. Swiley v. McCain, 374 S.W.2d 871, 875 (Tex.1964). Regardless of how or why Shaffer remained at the time of trial, his mere presence as a party brought the agreement within the Elbaor definition of a Mary Carter agreement. This determination is supported by the dicta in Elbaor, and Justice Spears’s concurrence in Scurlock, that the true danger of Mary Carter agreements is the possibility that the parties’ alignment will somehow be skewed, 845 S.W.2d at 246, and the non-settling defendant’s due process right to a fair trial will be threatened, 724 S.W.2d at 9 (Spears, J. concurring), and the trial court’s efforts in the present instance to ensure a fair trial. Shaffer’s counsel was allotted a substantially shorter amount of time to conduct voir dire and cross-examination of witnesses, and all parties made full disclosure to the jury of the existence, and terms, of the agreement. St. Paul’s counsel explained to the jury that “Shaffer is in it to help and assist the plaintiff in proving its claim against St. Paul,” thereby overcoming the likelihood that the plaintiff and settling defendant would unfairly “gang up” on the non-settling defendant without the jury’s knowledge. Accord Scurlock Oil Co. v. Smithwick, 724 S.W.2d at 7. There was no objection made that the agreement was not a Mary Carter agreement until this appeal; resultantly, it is an untimely objection. Tex.R.App.P. 52(a). Moreover, the terms of the agreement are consistent with other established Mary Carter agreements, clothing it with the indicia of a true Mary Carter agreement. General Motors Corp. v. Simmons, 558 S.W.2d 855, 857-58 (Tex.1977), overruled on other grounds, Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 427 (Tex.1984); Mi-Jack Products, Inc. v. Braneff, 827 S.W.2d 493, 497 (Tex.App.-Houston [1st Dist.] 1992, no writ). Beyond that, throughout the trial the parties and the court consistently referred to, and treated, the agreement as a Mary Carter agreement. If there is any doubt as to the meaning of a document, the courts may consider the interpretation placed upon it by the parties themselves. Lone Star Gas Co. v. X-Ray Gas Co., 139 Tex. 546, 164 S.W.2d 504, 508 (Tex.1942). The settlement agreement was indeed a Mary Carter agreement. The next determination is the applicability of the Elbaor holding, rendered on 2 December 1992, to this cause, which was tried on 14 October 1992, and in which the jury rendered its verdict on 12 November 1992, but judgment was not signed until 31 March 1993. St. Paul contends that because Elbaor was decided prior to judgment, the holding should be retroactively applied. Dai-Worth contends the entry of the jury’s verdict brought the matter to completion prior to the Elbaor decision. The guiding principle in precluding full retroactivity turns on whether the decision establishes a new principle of law that either overrules clear, past precedent on which the litigants have relied, or decides a new issue of first impression that was not clearly foreseeable. Reagan v. Vaughn, 804 S.W.2d 463, 467-68 (Tex.1990). However, exceptions are recognized when considerations of fairness and policy dictate prospective effect only, a notable one of which is where a retroactive application could be unfair because litigants and trial courts have justifiably relied upon the prior state of the law. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 434 (Tex.1984). After some discussion, the Elbaor Court concluded that the factors weighing in favor of a prospective application of its holding outweighed that in favor of retroactive application, and declared as a matter of sound administration and fairness, that this holding shall be applicable only in the present case, to those cases in the judicial pipeline where error has been preserved, and to those actions tried on or after December 2,1992. Elbaor v. Smith, 845 S.W.2d at 251. Clearly, the only possible route through which St. Paul contends for applicability is that the case was “in the judicial pipeline where error has been preserved.” The Elbaor Court did not define the term “judicial pipeline,” and the parties disagree as to its meaning when applied to this cause. Dai-Worth contends the present case was not in the judicial pipeline because it was brought to conclusion with the jury’s verdict, and the judicial pipeline refers only to cases already on appeal at the time of the decision. St. Paul contends it was in the judicial pipeline because judgment was not signed until 31 March 1993, a time after the Elbaor decision was handed down, leaving the trial court a window of opportunity to grant a motion for new trial based upon the decision. We note that the judgment was not final with the jury’s verdict since judgment is not final until it is rendered and entered of record. See Kostura v. Kostura, 469 S.W.2d 196, 198 (Tex.Civ.App.-Dallas 1971, writ ref'd n.r.e.). An action remains pending in the trial court until all issues have been determined by the court, a final judgment has been rendered, and all post-trial motions have been disposed of. Tuthill v. Southwestern Public Service Co., 614 S.W.2d 205, 211 (Tex.Civ.App.- Amarillo 1981, writ ref'd n.r.e.). The phrase, “still in the judicial process” has been defined to include cases which are filed, Sample v. Freeman, 873 S.W.2d 470, 476 (Tex.App.-Beaumont 1994, writ denied), and those which have been tried to conclusion and are on appeal on the date of the decision in question. Taggart v. Taggart, 552 S.W.2d 422, 423 (Tex.1977). Thus, a case is “still in the judicial process” from the time it is filed until the time mandate issues. We conclude that “judicial process” and “judicial pipeline” are synonymous; therefore, Elbaor impacts our consideration of St. Paul’s contention of error. Given that this cause was within the time frame contemplated by Elbaor, we must decide whether St. Paul preserved its complaint of error. Dai-Worth and Shaffer contend it has not, because no complaint was made against the Mary Carter agreement until after the verdict, as opposed to the situation in Elbaor, and because St. Paul introduced the agreement into evidence at trial and cannot be allowed to invite error. However, St. Paul objected to the Mary Carter agreement as being void during the hearing on Dal-Worth’s motion for judgment. This was St. Paul’s first opportunity to present such an objection since Elbaor was decided only after the jury’s verdict. At every subsequent opportunity, St. Paul urged its contention of error. Insofar as St. Paul’s failure to object to the agreement’s existence and introduction at trial, the parties were operating under a different state of the law. Although Justice Spears was prepared to hold Mary Carter agreements void as against public policy in 1986, Scurlock Oil Co. v. Smithwick, 724 S.W.2d at 8, it was another six years before the Supreme Court did so hold. Elbaor v. Smith, 845 S.W.2d at 250. The present cause was tried in those intervening years when such agreements were not void, but precautions to minimize their dangers were encouraged to be taken, and it was encouraged to disclose such agreements to the jury. Although Dal-Worth faults St. Paul for failing to preserve error as did the defendant in Elbaor, we do not believe this is the contemplation of the holding. Because St. Paul was operating under the state of law as it existed prior to Elbaor, it cannot be faulted with a failure to object during trial that the agreement was void. St. Paul did all it was expected to do under Scurlock, and was entitled to proceed with the only explanations then available. Accord Duncan v. Cessna Aircraft Co., 665 S.W.2d at 434. Notwithstanding having prevailed on the determinations that Elbaor is applicable to this cause and that it properly preserved its complaint against the Mary Carter agreement, St. Paul is not relieved of the appellate requirement of establishing that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Elbaor v. Smith, 845 S.W.2d at 251 n. 23. We must determine whether the error complained of was harmful. Tex.R.App.P. 81(b). St. Paul contends the Mary Carter agreement is, in and of itself, harmful because of the inherent ill presented by it that those who were at first adversaries, i.e., Shaffer and Dai-Worth, became aligned against St. Paul, and that Shaffer provided Dai-Worth “valuable assistance” at trial due to an incentive for Dai-Worth to recover pursuant to the Mary Carter agreement. Under this record, we are not inclined to hold that the mere existence of a Mary Carter agreement constitutes harmful error. Once the existence and terms of the agreement were presented to the jury, it was within their province to weigh the credibility of the evidence presented to them. Flamm v. Ball, 476 S.W.2d 710, 713 (Tex.Civ.App.-Amarillo 1972, no writ). To hold that the mere existence of a Mary Carter agreement was harmful error, would take from the province of the jury the right to weigh the evidence, to observe each witness and decide what credence should be given to the whole or any part of the testimony, to judge the facts proved, and to then determine the ultimate questions presented for consideration. See Wilson v. Mathis, 459 S.W.2d 952, 954 (Tex.Civ.App.-Waco 1970, no writ). The tainted “favorable” testimony St. Paul points to as so skewing the trial and poisoning the jury so as to result in harmful error, was testimony characterized by St. Paul as tending to show it was the “bad guy.” We disagree with this characterization. The testimony complained of was adduced from Spross, called as a witness by Dal-Worth, who stated that to the best of her knowledge, she thought she forwarded the suit papers to St. Paul. This is not equivalent to a settling defendant vigorously assisting in pointing the finger of culpability. Cf. Elbaor v. Smith, 845 S.W.2d at 246. St. Paul’s argument that Spross had an incentive to perjure herself falls far short. The agreement was between Shaffer and Dai-Worth; Spross was not a party to the agreement and was not shown to have an incentive to ensure a favorable outcome for Dal-Worth. Accord Scurlock Oil Co. v. Smithwick, 724 S.W.2d at 4. Indeed, at the time of her testimony, she was no longer an employee of Shaffer and, thus, arguably did not even have an incentive to secure her job. As noted earlier, St. Paul followed the precautionary measures espoused in Scur-lock, thereby mitigating the harm presented by the agreement. The facts presented in the present case are not so skewed as to establish distortion of the entire trial, nor did Shaffer argue for higher damages, present witnesses, or otherwise vigorously point the finger of liability at St. Paul. Cf. Scurlock Oil Co. v. Smithwick, 724 S.W.2d at 7 (noting that the obvious prejudicial effects on a non-settling defendant in a “Mary Carter” situation are that the plaintiff and settling defendant gang up on the non-settling defendant, jointly point the finger of liability, and the settling defendant argues for higher damages). On balance, the introduction and treatment of the Mary Carter agreement was not harmful to St. Paul and, as a result, the trial court did not err in overruling its motion for new trial. St. Paul’s first point of error is overruled. COVERAGE Contending by its second point of error that the polices did not afford coverage for Mission Butane’s claims, St. Paul proposes the trial court erred in ruling it had a duty to defend the lawsuit against Dai-Worth. St. Paul’s failure to preserve this complaint for our review permeates its third- and fourth-point contentions that the trial court erred in denying its motions for mistrial and new trial because comments referring to the ruling were erroneous. Prior to voir dire proceedings, the trial court, recognizing the need for a ruling on St. Paul’s duty to defend the lawsuit against Dai-Worth so the parties could present their positions accordingly, heard testimony from Talbot that upon receipt of the lawsuit papers, they were forwarded to Lawrence, and it was believed that St. Paul was “handling” the matter. The trial judge told the parties if they would be present at 8:15, he would make his ruling then. Shortly thereafter, court was recessed. Whether the parties appeared and the court made a ruling is not recorded in the appellate record. Although we glean from statements in the record that the court ruled St. Paul had a duty to defend subject to a finding that it received notice of the lawsuit, neither the ruling itself nor an objection, if any was made, is recorded. Nevertheless, throughout the remainder of the proceedings, and at times during the trial, the court and the parties, including counsel for St. Paul, referred to the ruling without objection. Still, St. Paul has not directed us to any portion of the record where preservation of the error can be found, and we have found none in our independent search. Miller v. Kendall, 804 S.W.2d 933, 938 (Tex.App.-Houston [1st Dist.] 1990, no writ). The burden was on St. Paul to provide a sufficient record to establish the error of which it complains. Tex.R.App.P. 50(d). We cannot pass on matters outside the appellate record. Exocet Inc. v. Cordes, 815 S.W.2d 350, 356 (Tex.App.-Austin 1991, no writ); and Morris v. Porter, 393 S.W.2d 385, 391 (Tex.Civ.App.-Houston [1st Dist.] 1965, writ ref'd n.r.e.). Though without a duty to do so, we have searched the copious record, a statement of facts consisting of over 3,000 pages in 15 volumes, to determine whether St. Paul preserved its complaint of error. Cf. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197, 201 (1956) (holding it is not the duty of the appellate court to make an independent search of the statement of facts). We note that St. Paul states in its motions for mistrial and new trial that after the trial court’s ruling on the duty to defend, it “requested” the jury not be informed of the ruling, which request was denied. Such a request does not constitute a stated objection specifying the grounds for the court’s ruling as required by rule 52(a). PGP Gas Products, Inc. v. Fariss, 620 S.W.2d 559, 560 (Tex.1981). St. Paul’s objections in the forms of motions for mistrial and new trial were untimely and insufficient to preserve any error for our review. Accord Prade v. Helm, 725 S.W.2d 525, 527 (Tex.App.-Dallas 1987, no writ). Objections made after the case has been submitted to the jury are untimely. McKinney v. National Union Fire Ins. Co., 747 S.W.2d 907, 910 (Tex.App.-Fort Worth 1988), aff'd, 772 S.W.2d 72 (Tex.1989). Any objection in the motion for mistrial was untimely because all parties referred to the ruling without objection throughout voir dire proceedings and the trial, New Hampshire F. Ins. v. Plainsman Elevators, Inc., 371 S.W.2d 68, 72 (Tex.Civ.App.-Amarillo 1963, writ ref'd n.r.e.), full testimony on the subject had been heard, Farmland Mut. Ins. Co. v. Alvarez, 803 S.W.2d 841, 846-47 (Tex.App.-Corpus Christi 1991, no writ), and closing arguments had been made. Rodriguez v. Universal Fastenings Carp., 777 S.W.2d 513, 519-20 (Tex.App.-Corpus Christi 1989, no writ). Objections raised for the first time in a motion for new trial are insufficient to preserve any error. Pierson v. Noon, 814 S.W.2d 506, 508 (Tex.App.-Houston [14th Dist.] 1991, writ denied). St. Paul proposes by its third- and fourth-point contentions that the trial court and opposing counsel improperly commented on the ruling. We do not entertain the proposal. To preserve the matter for appellate review, St. Paul was obligated to distinctly specify that objection to the trial court. Tex.R.App.P. 52(a); State v. Lemon, 603 S.W.2d 313, 320 (Tex.Civ.App.-Amarillo 1980, no writ). Objections to the comments complained of are not shown in the record at the places referenced in St. Paul’s brief, and we have found no objections voiced elsewhere in the record which would be considered timely. St. Paul has, therefore, waived any complaint on this ground. Davis v. Campbell 572 S.W.2d 660, 663 (Tex.1978). To the extent St. Paul contends the trial court improperly commented on the weight of the evidence, we cannot entertain the contention. Any objection to an improper comment by the trial court must be made at the time of its occurrence if the error is to be preserved for appellate review unless the comment is of a character which cannot be rendered harmless by proper instruction. Tex.R.App.P. 52(a). Some of the comments referenced by St. Paul as objectionable were made outside the presence of the jury and, therefore, it is axiomatic they could not have impacted the jury’s findings. The remainder of the comments were made either to state the ruling as it was made, or to clarify the ruling in response to a mischaracterization. Since the original ruling is not in the record, we cannot say whether the restatement of it was proper, but there being no recorded objection made to it, we must presume that it was restated correctly. St. Paul’s contention that the trial court erroneously “instructed” the jury concerning the duty to defend is specious. As conceded by St. Paul, there was no written instruction to the jury concerning this issue. Moreover, the stated references to which St. Paul directs our attention were not made by the judge, but by counsel for the parties. Consequently, St. Paul’s second, third and fourth points of error are overruled in their entirety. SUFFICIENCY OF THE EVIDENCE Utilizing its fifth through sixteenth points of error, St. Paul contends there was no, or factually insufficient, evidence to support the jury’s findings that (9-10) Dai-Worth sent and (5-6) St. Paul received the lawsuit papers; (7-8) St. Paul had actual knowledge of the lawsuit; (15-16) Shaffer was St. Paul’s agent and (11-12) Shaffer did not fail to send the lawsuit papers to St. Paul; and (13-14) St. Paul was not prejudiced by any failure to send the lawsuit papers. These contentions will be discussed concurrently. Standards of Review In our examination of the contentions of a lack of evidence, we must review the entire record to determine whether there is more than a scintilla of evidence to support the findings, Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), and if so, the findings will be upheld. Stedman v. Georgetown S. & L. Ass’n, 595 S.W.2d 486, 488 (Tex.1979). Evidence is merely a scintilla when it is so weak as to do nothing more than create a mere surmise or suspicion of a fact. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex.1970). We must consider only the evidence and the reasonable inferences which can be drawn therefrom in their most favorable light to support the jury’s findings while disregarding all contrary evidence and inferences. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993). If there is some evidence to support the findings, we must then determine its factual sufficiency. In so doing, we must consider and weigh all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985). All evidentiary complaints herein will be evaluated utilizing these standards of review. Notice of Lawsuit Asfeld testified that although Killian told her in December of 1988 he would be filing the lawsuit “soon” because of a statute of limitations problem, she felt he was merely threatening suit and probably would not file one. In March of 1989, Sarcozy, an employee of Ranger, told Asfeld she thought the lawsuit had been filed. Despite this information, St. Paul admittedly did nothing to verify whether suit had been filed. Asfeld telephoned Talbot immediately after speaking with Killian, but she did not tell him of Killian’s threat of an imminent suit. Neither did she convey to Talbot the later statement of Sarcozy that she believed suit had been filed, because she had called Bayer, from whom she got a different answer, and chose to believe Bayer. Asfeld further assumed that since Ranger would not file suit, neither would its insured nor anyone else, including Flores. Charles Shaddox, an attorney specializing in insurance cases, Kenneth Shumaker, and Dwayne Spiess, expert witnesses testifying on behalf of Dai-Worth, were critical of St. Paul’s, and specifically Asfeld’s, handling of the investigation of the claim and of the failure to tell Talbot what to do in case of a suit. The inaction was especially egregious in the face of the statement by Killian that suit would be filed “soon” and Sarcozy’s statement that she believed suit had been filed. Talbot testified that on at least two occasions after he gave the suit papers to Lawrence, he specifically asked Asfeld the status of the “Mission suit,” and was told St. Paul was “investigating” it. Further, Shaffer told him that St. Paul intended to answer the suit, and Talbot believed St. Paul was handling the matter. In addition to Asfeld’s failure to tell Talbot about the possibility of the imminent suit, neither she, nor anyone associated with St. Paul, told Talbot that the procedures followed in forwarding information to St. Paul could affect coverage of the claim. In spite of these events, St. Paul now asserts a good faith denial of coverage based upon Dal-Worth’s failure to send the papers directly to St. Paul without routing through the agents. It was uncontroverted that St. Paul placed no significance in the channels through which papers pertaining to claims and lawsuits were sent, and Talbot was not told he should route lawsuit papers though any specified agency. Conformably, he forwarded the lawsuit papers through the same channels he had sent the claim, the DTPA notice letter, and other claims, lawsuits and information, the channels Asfeld approved. Spross testified that Dal-Worth’s claim information was usually sent to Skeels as the “managing general agent” for St. Paul. However, upon receiving the lawsuit papers, she was “pretty sure” she forwarded them by mail directly to St. Paul at its San Antonio office, particularly because St. Paul already had a working claim file on the subject of the lawsuit. Despite that the record, and Shaffer’s files, are devoid of any documentation of this mailing, the testimony is some evidence that Shaffer sent the papers to St. Paul. St. Paul maintains that the lack of supporting evidence to show Spross’s mailing substantiates its contention that the evidence was insufficient to establish the papers were in fact mailed, and strengthens the testimony of Asfeld and Larsen that St. Paul unequivocally did not receive the lawsuit papers. Dai-Worth combated this inference with evidence that St. Paul’s San Antonio office was disorganized and things were frequently out of place and misfiled, and insureds suffered delays as a result of the disorganization, leading Dai-Worth to infer that the papers may have been received by St. Paul but misfiled or misplaced. According due deference to the jury’s role to believe or disbelieve any portion of a witness’s testimony and the evidence presented, City of Amarillo v. Reid, 510 S.W.2d 624, 628 (Tex.Civ.App.-Amarillo 1974, writ refd n.r.e.), there is some evidence in the record from which the jury could have found that Dal-Worth sent the lawsuit papers to St. Paul, and there is other evidence from which the jury could have found that St. Paul received the papers. Scott, acting as Asfeld’s supervisor, was handling her files while she was vacationing over Spring Break. On 1 March 1989, telephone records show, and Scott testified, that he had a four minute conversation with Spross at Shaffer’s office. Though the specifics of the conversation are not detailed, Scott hand-wrote and then faxed a claim memo to Spross setting reserves on the claim at $10,000. Scott did not file the memo or cover letter in the proper file. David Mullens, a partner with Skeels, testified that St. Paul seemed to be disorganized or in disarray with respect to the claims handling department, and further, that St. Paul’s claims office didn’t always know who was assigned to a certain claim, did not always appear to respond on a timely basis. And on one specific occasion ... [Mullens] had to call two or three different St. Paul offices before [he] and The St. Paul could even figure out who it was out in California that was handling this particular claim. And it was just a real unorganized tedious mess. [Mullens] wasn’t happy with it. Asfeld agreed that from time to time, things can be misfiled in an organization as complicated as St. Paul. In response to queries regarding whether he could recall any specific instance of documents lost by St. Paul, Mullens testified as follows: ANSWER: You know, there’s — I think that probably has to do with the Mission thing, though where the San Antonio office said they didn’t have the documents, although they had apparently been sent. QUESTION: Are you talking about the suit papers in this particular Mission Gas Company lawsuit? ANSWER: Yes. That’s probably what I’m thinking about, yes. Though he testified that he did not believe St. Paul had notice of the lawsuit prior to the default judgment, Mullens’s file notes indicated that he held a belief that St. Paul might have had actual notice of the lawsuit prior to the default judgment. Applying the standards of evidential review, we deem the evidence was both legally and factually sufficient for the jury to find that Dai-Worth sent, and St. Paul received, the lawsuit papers, and that St. Paul had actual knowledge of the lawsuit. St. Paul’s fifth through tenth points of error are overruled. Agency Still, apparently because the just recounted testimony did not contain testimony of its actual receipt of the lawsuit papers, St. Paul maintains evidence is absent or insufficient to support the jury’s finding that Shaffer was its agent. It seems undisputed that if Shaffer was St. Paul’s agent, any evidence of Shaffer’s failure to send the papers to St. Paul, or to Skeels, works against St. Paul, not Dai-Worth. When asked if she investigated whether Shaffer was St. Paul’s agent, the following colloquy took place between Asfeld and Shaffer’s counsel: Q. Well, in this case, you did go after you found out that one of the issues you-all were focusing on was whether or not St. Paul got notice of this claim or this lawsuit paper. You went to the home office directly to find out if Surry Shaffer was appointed as an agent for St. Paul, didn’t you? A. Yes. Q. You wanted to find that out because you knew at that time Shaffer was your agent and he got the papers, you couldn’t claim that they were out of coverage? A. If he was an agent of St. Paul and he had failed to forward them to St. Paul, St. Paul would be responsible for his error, that is correct. St. Paul disputes that Shaffer was its agent. The question of agency is one of fact, and circumstantial evidence may be used to establish the agency and the extent of the agent’s authority. Foundation Reserve Insurance Co. v. Wesson, 447 S.W.2d 436, 438 (Tex.Civ.App.-Dallas 1969, writ refd). For there to be an agency relationship, there must be some act constituting an appointment of a person as an agent; it is a consensual relationship. Carr v. Hunt, 651 S.W.2d 875, 879 (Tex.App.-Dallas 1983, writ ref'd n.r.e.). Consent may be implied rather than express. Id. Apparent authority is based upon the doctrine of estoppel, and one seeking to charge the principal through apparent authority of the agent must establish conduct by the principal which would lead a reasonable prudent person to believe the agent has the authority he purports to exercise. Biggs v. United States Fire Ins. Co., 611 S.W.2d 624, 629 (Tex.1981). Only the conduct of the principal, leading one to suppose that the agent has the authority he purports to exercise, may charge the principal through the apparent authority of an agent. Southwest Title Ins. Co. v. Northland Bldg. Corp., 552 S.W.2d 425, 428 (Tex.1977). And the principal may be charged with an unauthorized act of an agent, or one purporting to be an agent, provided the principal, with full knowledge of all material facts surrounding the unauthorized act, ratifies the act, even by implication. Bankers Protective Life Ins. Co. v. Addison, 237 S.W.2d 694, 697 (Tex.Civ.App.-Amarillo 1951, no writ). A broker who bills for and collects premiums on behalf of an insurer not admits ted to do business in Texas is an agent for the insurer. Foundation Reserve Insurance Co. v. Wesson, 447 S.W.2d at 438. There was undisputed evidence presented to establish that Shaffer collected premiums from Dai-Worth and sent them on to St. Paul, either directly or through Skeels. Furthermore, Spiess opined that Lawrence, Shaffer and Skeels were all agents of St. Paul as far as receiving the lawsuit papers. He further testified that he was led to believe when he read the memos in Asfeld’s files that there was no objection on the part of St. Paul for the way claims were coming to the company. Surry Shaffer testified that he was authorized to receive claims and lawsuit information and send it to Skeels, though he often dealt directly with St. Paul without objection. Talbot said Asfeld told him to “keep sending anything that came in the same way it had always been sent.” Asfeld acquiesced that the DTPA letter from Killian was forwarded through “proper channels,” and it did not matter how the information got there, as long as she received it. There is other evidence of Shaffer’s actual and apparent authority to act as St. Paul’s agent. Asfeld’s files revealed that Talbot’s method of reporting through Shaffer rather than Skeels was condoned. Mullens was under the impression Shaffer and St. Paul were dealing directly with each other, even though that was not the standard procedure. And Mullens considered Shaffer to be a “retail agent in relation to [his] agency, which was the surplus lines agent for St. Paul,” albeit he did not understand Shaffer to be the agent of St. Paul. This evidence establishes, at a minimum, that Shaffer was a subagent of St. Paul. A subagent is a person appointed by an agent to perform some duty, or the whole of the business relating to his agency. He may be the agent of the agent, or he may be the agent of the principal depending upon the agreement creating the primary agency, or upon the circumstances. Janes v. CPR Corp., 623 S.W.2d 733, 740 (Tex.Civ.App.-Houston [1st Dist.] 1981, writ ref'd n.r.e.). One may be a subagent and yet sustain no contractual relation to the principal. Again applying the evidential standards of review, the evidence outlined above was sufficient to support the jury’s findings that Shaffer was St. Paul’s agent, and its refusal to find that Shaffer failed to forward the lawsuit papers to St. Paul. Those determinations by the jury moot St. Paul’s contentions that the evidence was lacking or insufficient to show it was not prejudiced by any failure to forward the papers. St. Paul’s eleventh through sixteenth points of error are overruled. Deceptive Acts, Unconscionable Actions, and Proximate or Producing Cause St. Paul utilizes its seventeenth and eighteenth points of error to contend there was no, or insufficient, evidence to support the jury’s findings that it engaged in unfair or deceptive acts, which were the proximate cause of damages to Dai-Worth. St. Paul advances, in its nineteenth and twentieth points, the same evidential deficiency to support the jury’s findings that it engaged in an unconscionable action or course of action, which was a producing cause of damages to Dai-Worth. The findings attacked were made by the jury in answering question seven, which inquired about deceptive acts; question eight, which inquired about any unconscionable action; and questions nine and ten, which inquired, whether the deceptive acts or unconscionable action proximately caused, respectively, the entry of the default judgment, and damage to Dai-Worth. DTPA Violations Question number 7 and the jury’s answer thereto, the foundation for St. Paul’s eviden-tiary complaints against the finding of unfair or deceptive acts, read: QUESTION NO. 7 Did St. Paul Insurance Company engage in any unfair or deceptive act or practice? Unfair or deceptive act or practice means any of the following: 1. A deceptive act or practice means an act or series of acts that have the tendency to deceive an average ordinary person, even though that person may have been ignorant, unthinking, or gullible. or 2. Making or causing to be made any statement misrepresenting the terms, benefits, or advantages of an insurance policy, or 3. Making or directly or indirectly causing to be made, any assertion, representation, or statement with respect to insurance that was untrue, deceptive or misleading, or 4. Omitting any information or making any false implication or impression that was either misleading or deceptive or had the capacity to be misleading or deceptive, or 5. Making any misrepresentation relating to insurance. Misrepresentation means any failure to state a material fact that is necessary to prevent the statements made from being misleading, when these statements are considered in the light of the circumstances under which they are made, or 6. Not attempting in good faith to effectuate a prompt, fair, and equitable settlement of a claim when liability has become reasonably clear, or 7. Refused to pay a claim without conducting a reasonable investigation based upon available information. Answer ‘Yes” or “No” ANSWER: Yes If there was sufficient evidence to support any of the alternative issues within the question', the finding will be affirmed. Jeep Eagle Sales v. Mack Massey Motors, 814 S.W.2d 167, 171 (Tex.App.-El Paso 1991, writ denied). Spiess and Shaddox were critical of St. Paul’s failure to attempt to settle the matter, and its failure to hire an attorney for Dal-Worth as soon as it learned of the default judgment. They felt that St. Paul’s handling of the matter was well below the industry standard for a good faith, proper handling of the claim. Spiess testified “it was outrageous claims handling and you can see what is going to happen when a claim is not properly investigated or defended that the insured now is going to suffer serious consequences.” Both Shaddox and Spiess testified that St. Paul’s statements about the coverage were false and misleading and that St. Paul made an improper evaluation of the coverage, and Spiess noted that St. Paul’s files indicated it knew it was wrong. Both men felt that St. Paul failed to implement proper standards to provide adequate investigation of the claims. The record reveals that although St. Paul received Killian’s DTPA letter before the time for response had elapsed, it took no action. Further, in the face of Killian’s statement that he would be filing suit soon, and Sareozy’s statement that suit had been filed, St. Paul admittedly did not investigate the veracity of the statements. Evidence in the present instance was sufficient to show Dai-Worth forwarded the lawsuit papers through channels approved by St. Paul, and agents of St. Paul actually received them. Furthermore, Asfeld was told the lawsuit had been filed, yet did nothing to verify the statement though she spoke with Talbot seven or eight times in the months between the filing of the lawsuit and the taking of the default judgment. St. Paul’s claim file does not reflect, and Talbot does not recall, that Asfeld, or anyone from St. Paul, ever told Talbot there could be a problem with coverage. Spiess and Shad-dox testified that the information before St. Paul was that there was coverage for the claims and that St. Paul’s denial of coverage was a misrepresentation of coverage and its actions fell below acceptable industry standards. Misrepresentation as to coverage and benefits are precisely the sort of conduct which gives rise to a DTPA cause of action. Aetna Cas. and Sur. Co. v. Marshall, 724 S.W.2d 770, 772 (Tex.1987). Notwithstanding this evidence, St. Paul, selecting other evidence and relying upon the holdings of three cited decisions, contends it had no duty to investigate whether a lawsuit had been filed, because it was Dal-Worth’s responsibility to notify it of the lawsuit by forwarding the lawsuit papers, which Dai-Worth failed to do. This is true, St. Paul submits, because failure by the insured to notify the insurer of a suit against the insured as required by the policies precludes suit against the insurer if it is prejudiced by the lack of notice. Dairyland County Mutual Ins. Co. of Texas v. Roman, 498 S.W.2d 154, 157 n. 2 (Tex.1973). The contention is sufficiently answered by reference to our earlier sustainment of the jury’s findings that Dai-Worth forwarded the lawsuit papers to St. Paul, and that St. Paul had notice of the lawsuit prior to the default judgment. We further observe that in regard to the evidence selected by St. Paul as contrary to the evidence upon which the jury made its finding, we cannot set aside the jury’s verdict merely because the jury could have drawn co