Gary McFADDEN, Petitioner, v. AMERICAN UNITED LIFE INSURANCE COMPANY, Respondent, 658 S.W.2d 147

SPEARS, Justice. Gary McFadden brought suit against American United Life Insurance Company (American) to recover the expenses he incurred for oral surgery to repair a “retro-graphic mandible.” The trial court granted

summary judgment in favor of American. The court of appeals affirmed. 643 S.W.2d 232 (1982). We reverse the judgment of the court of appeals, and remand the cause for a trial on the merits. McFadden was an employee of Oil States Rubber Company. American was Oil States’ health and medical insurer. McFadden suffered from a condition known as “retrographic mandible,” whereby his lower jaw was shorter than his upper jaw. As a result, food could not be properly chewed because his upper and lower teeth were not properly aligned. Dr. Carroll R.

Carver, D.D.S., performed oral surgery on McFadden to correct the improper alignment. Dr. Carver’s procedure was to split the lower jaw into three pieces so that it could heal in an advanced position, thus creating a longer lower jaw. McFadden filed a claim with American to recover the expenses of the surgery. American denied the claim on the basis that the surgery was not covered under the policy. The policy provides: This insurance does not provide any benefits for charges ... incurred for dentures, dentistry or dental surgery, except as required for treatment of accidental injuries to natural teeth.

McFadden then instituted this suit for recovery under the policy. American filed a motion for

summary judgment based on the terms of the policy and the deposition of Dr. Sternberg, D.D.S. It was Dr. Stern-berg’s opinion that the procedure was dental surgery. McFadden’s answer to the motion for

summary judgment included an affidavit of Dr. Carver who felt the surgical procedure he performed was oral surgery upon the mandible, and should be covered under the policy. The trial court rendered

summary judgment for American. In order to uphold a

summary judgment the moving party must establish that as a matter of law there are no genuine issues of fact. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); Wilcox v. St. Mary’s University of San Antonio, 531 S.W.2d 589, 591 (Tex.1975). The issue here is whether the procedure performed on McFadden is excluded under the insurance policy. We hold this presents a question of fact. See Mid-Western Life Insurance Co. of Texas v. Goss, 552 S.W.2d 430, 432 (Tex.1977). American has not shown as a matter of law that the surgery on McFadden’s jaw was excluded under the policy. American’s motion for

summary judgment contained the deposition of Dr. Sternberg who testified that the purpose of the surgery was to realign the teeth so the treatment of McFadden was not covered under the policy. Dr. Carver’s affidavit in McFadden’s answer described the procedure as an operation on the mandible and had nothing to do with the teeth. These conflicting affidavits present a fact question of whether or not the procedure was excluded under the insurance policy. The trial court, therefore, erred in granting

summary judgment for American. The judgment of the court of appeals is reversed, and the cause is remanded to the trial court for a trial on the merits.