CONTINENTAL CASUALTY COMPANY, Petitioner, v. Jesus HUIZAR et al., Respondents, 740 S.W.2d 429

WALLACE, Justice. The issue in this case is whether an insurance carrier has the right to conduct further litigation of a suit brought by third parties against its insured, after the insured has entered into a covenant not to execute with the third parties and successfully moved for the dismissal of its appeal from a judgment in excess of policy limits. In an unpublished opinion, the court of appeals dismissed the appeal of the insured and thereby denied the purported right of the insurer to further pursue the appeal.

On the facts of this case, we hold that the right, if any, of the insurance carrier was waived by the voluntary payment of policy limits to the third parties. Accordingly, we dismiss the cause as moot. Seferina Huizar died as a result of a collision with a gate or barrier at Edinburg High School, and her heirs brought a wrongful death action against the school district and SHWC, Inc., an architectural firm. After a jury trial, the trial court rendered judgment in the amount of $5,063,141.75 in favor of the Huizars, and SHWC appealed.

SHWC and the Huizars subsequently filed a joint motion in the court of appeals, requesting that the court dismiss SHWC’s appeal “with prejudice”. Continental Casualty, Company (Continental), SHWC’s liability insurance carrier, filed an opposition to this motion. The court of appeals granted the joint motion of SHWC and the Huizars, and dismissed the appeal. Continental is not a formal party to this suit. Generally, only parties of record may exercise a right of appeal. Gunn v. Cavanaugh, 391 S.W.2d 723, 724 (Tex.1965).

However, Continental alleges that as the liability insurance carrier of SHWC, Inc., it should be permitted to pursue the appeal because it is the real party in interest to the extent that it may ultimately become liable to pay under the policy. It argues that as a practical matter, the judgment rendered against SHWC, Inc. was a judgment rendered against Continental to the extent of policy limits, and that it is adversely affected by the judgment to that extent.

We need not decide whether, on this record, Continental has demonstrated a sufficient justiciable interest to entitle it to appellate review of the judgment. Continental’s only claim is that it was adversely affected by the judgment to the extent of the policy limits. However, Continental has conceded that on September 20,1985, it paid the Huizars the sum of $953,399.15, an amount equal to the policy limits plus interest at 10% from the date of the judgment to the date of payment.

Continental attempts to downplay the importance of this fact by adding that the payment was made “under protest.” Even if we accepted Continental’s premise that the judgment was in effect a judgment against it for policy limits, under these facts we must hold that dismissal of the appeal was appropriate. In Highland Church of Christ v. Powell, 640 S.W.2d 235 (Tex.1982), we stated as follows: It is a settled rule of law that when a judgment debtor voluntarily pays and satisfies a judgment rendered against him, the cause becomes moot. Employees Finance Co. v. Lathram, 369 S.W.2d 927, 930 (Tex.1963).

He thereby waives his right to appeal and the case must be dismissed, [citations omitted]. Id. at 236. The mere fact that a judgment is paid “under protest” will not prevent the ease from becoming moot upon payment. Id. In Highland Church, we did recognize that a payment under duress during the pendency of an appeal would not render the appeal moot. Id. at 237. There is no evidence of duress here. The only indication that Continental was under pressure to pay is the fact that the Huizars had instituted a direct action against it for the amount of policy limits.

A threat to institute a civil suit or even the actual institution of suit does not, as a matter of law, constitute duress. Eggleston v. Humble Pipe Line Co., 482 S.W.2d 909, 916 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n.r.e.); Kunkel v. Red River Nat’l Bank in Clarksville, 202 S.W.2d 962, 963 (Tex.Civ.App.—Texarkana 1947, writ ref’d). On these facts, we are unable to conclude that the payment of policy limits to the Huizars was anything but voluntary. The cause is dismissed as moot. KILGARLIN, J., files a concurring opinion. GONZALEZ, J., files a dissenting opinion joined by HILL, C.J.