Opinion issued January 14, 2010
In The
Court of Appeals
For The
First District of Texas
NO. 01-09-00021-CV
__________
CASH RENT-A-CAR, INC., Appellant
V.
OLD AMERICAN COUNTY MUTUAL FIRE INSURANCE COMPANY AND AFFIRMATIVE INSURANCE SERVICES, INC., Appellees
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2007-40839
MEMORANDUM OPINION
Appellant, Cash Rent-A-Car (“RAC”), challenges the trial court’s rendition of summary judgment in favor of appellees, Old American County Mutual Insurance Company (“Old American”) and Affirmative Insurance Services, Inc. (“Affirmative”), in RAC’s suit against appellees for conversion, trespass, fraud, negligent misrepresentation, breach of contract and bailment agreement, and violations of the Texas Theft Liability Act, the Texas Deceptive Trade Practices Act (“DTPA”), and the Texas Insurance Code. In two issues, RAC contends that the trial court erred in granting summary judgment in favor of appellees because the summary judgment evidence presented a genuine issue of material fact on all of RAC’s claims and because appellees did not file a summary judgment motion addressing all of RAC’s claims.
We affirm in part, reverse in part, and remand for proceedings consistent with our opinion.
Factual and Procedural Background
In its third amended petition, the live petition at the time the trial court granted summary judgment in favor of appellees, RAC alleged that Joseph Dominick IV rented a car from RAC and, at the time of renting the car, he presented a Texas insurance identification card “indicating that the rented vehicle would be insured” by Old American. RAC further alleged that “[c]overage was confirmed through [Old American and Affirmative’s] agents” at the time that Joseph Dominick IV rented the car. Joseph Dominick IV was subsequently involved in an automobile accident while driving the car.
RAC further alleged that Old American, through its agent, Affirmative, “acknowledged receipt of” RAC’s claim following the accident and took “possession of the rented vehicle, which was a total loss.” However, after Old American and Affirmative settled the claims of multiple passengers who were riding in the car at the time of the accident, Old American and Affirmative asserted that Joseph Dominick IV was not insured under the policy. Based on this contention, Old American and Affirmative refused to pay for damages to the car; they also failed to return the car to RAC, allegedly because they had already “released the vehicle for sale at auction.” RAC asserted a breach of contract claim against Joseph Dominick IV, alleging that he had breached the rental agreement by representing that he had coverage with Old American and, in renting the car, he had agreed to be responsible for any damages and any loss of use. RAC asserted claims of conversion, violation of the Texas Theft Liability Act, trespass to personal property, and breach of a bailment agreement against Old American and Affirmative, alleging that they took possession and maintained control of the car and failed to return it. RAC also asserted that Old American was responsible for any loss of use and repairs to the car as well as any statutory damages under the Theft Liability Act. In support of its breach of bailment agreement claim, RAC alleged that it had permitted Old American and Affirmative to transport the car to a storage facility so that they could appraise the damage and Old American and Affirmative destroyed or sold the car without RAC’s consent.
RAC also alleged that Old American and Affirmative had committed fraud and negligent misrepresentations by confirming “that there was coverage before the vehicle was rented” and then taking the position, after the accident and after towing the car to its storage yard, “that there was no coverage.” RAC asserted that “the only driver for which a premium could have been paid was” Joseph Dominick IV because the alleged insured, Joseph Dominick, “was disabled and unable to drive.” RAC also asserted that Old American and Affirmative failed to exercise reasonable care in making representations regarding insurance coverage. In conjunction with its misrepresentation and other claims, RAC, making non-specific references to violations of the Texas Deceptive Trade Practices Act and the Insurance Code, contended that “[t]he conduct of Defendants is not only an unfair and/or deceptive act or practice under the Texas Insurance Code and the Texas Deceptive Trade Practices Act, but is also fraudulent.”
In a section of its petition entitled “agency,” RAC alleged that Affirmative and Brooke Agency Services (“Brooke”) or Gallery Insurance were acting as agents as Old American and, thus, Old American was responsible for their conduct. RAC sought as its damages for all of its claims the loss of rental income, repair costs, and “substantial exemplary damages.”
RAC attached to its petition a copy of the rental agreement executed by “Joseph Dominick” and a copy of the insurance identification card, which identifies the insurer as Old American, the agent as Brooke, the named insured as “Joseph Dominick,” and the “Drivers” as “Joseph Dominick-Included.”
Old American and Affirmative attached to their summary judgment motion the affidavit of Reginald Bibb, an Affirmative representative. Bibb testified that RAC had rented a car to “Joseph Dominick IV,” who “presented an insurance card with the name Joseph Dominick,” was “an insured” under an Affirmative policy, and was involved in an automobile accident with the rented car. Bibb noted that the car was “totally destroyed,” Joseph Dominick IV reported the accident to Affirmative, Affirmative began investigating the claim, the car “was towed to a storage yard,” and Affirmative settled the claims of the car’s passengers. Bibb explained that during the investigation, Affirmative learned that Joseph Dominick IV and Joseph Dominick “were different people” and that Joseph Dominick IV “was possibly not insured by Affirmative.” (Emphasis added). Bibb further testified,
Affirmative began investigating whether the driver of [RAC’s] vehicle was insured by Affirmative. Affirmative did not initially dispose of the totaled vehicle because the investigation was not complete. [RAC] did not ask for the vehicle and did not request the vehicle be returned. Before affirmative finished its investigation, [RAC] filed this lawsuit . . . .
. . . .
Affirmative took control of the vehicle and [RAC] never demanded the return of the vehicle. Affirmative never refused to return the vehicle. Affirmative did not unlawfully take the vehicle. Affirmative simply possessed the vehicle while it investigated the insurance coverage of Joseph Dominick IV. [RAC] never filed any criminal charges against Affirmative and [RAC] knew where the vehicle was the entire time.
There is no contract between [RAC] and Affirmative.
Affirmative did not make false representations to [RAC] regarding coverage. The only possible representations made by Affirmative to [RAC] . . . was to confirm that “Joseph Dominick was insured by Affirmative.” Joseph Dominick was an insured by Affirmative.
(Emphasis added).
Based primarily upon Bibb’s testimony, Old American and Affirmative argued that RAC could not recover for conversion, trespass, or theft because Old American and Affirmative did not unlawfully take the car, RAC knew where the car was, RAC never demanded return of the car, and Old American and Affirmative never refused to return the car. Old American and Affirmative further argued that (1) RAC’s fraud and misrepresentation claims failed because Joseph Dominick was in fact an insured and Affirmative did not make false representations to RAC; (2) RAC could not recover for breach of contract because RAC did not have a contract with Old American and Affirmative; (3) RAC’s DTPA claim failed as a matter of law because RAC was not a consumer that had sought or acquired goods or services from them; (4) RAC’s Insurance Code claims under Chapter 542 of the code failed because RAC was not an insured and did not have a first-party claim under the policy; (5) RAC could not recover its loss of use damages because the car had been totally destroyed; and (6) RAC’s direct claims against them failed as a matter of law.
In its response to the summary judgment motion, RAC attached the affidavit of Joseph Edmond, RAC’s owner. Edmond testified that “Joseph Dominick” came to RAC to rent a car and filled out an application and he presented an insurance card that identified him as an insured with Old American. Edmond contacted Brooke and confirmed that Joseph Dominick was an insured, but Brooke further told Edmond that Joseph Dominick did not have “UM/UIM” coverage. RAC then asked Joseph Dominick to go purchase “UM/UIM” coverage and return with proof of such coverage, and Joseph Dominick left RAC and returned shortly thereafter with proof that he had paid a premium for “UM/UIM” coverage with Old American. Edmond again contacted Brooke, who confirmed that Old American would insure Joseph Dominick. Edmond further testified that after the accident, he spoke with Affirmative, an agent of Old American, and gave Affirmative permission to move the car to a storage lot. However, Affirmative never advised him of the location of the car, he did not know the location of the car despite his repeated inquiries, he had requested the location numerous times, he had requested the return of the car or payment for the total loss of the car, and Old American and Affirmative had not told him the location of the car or paid for the car. Finally, Edmond testified that he had sustained lost profits as a result of not having the car in his possession, Old American and Affirmative had sent him letters advising him that they had paid out bodily injury claims to individuals who were passengers in the car, Old American and Affirmative subsequently claimed that there was no insurance coverage for the car, and he had believed that Affirmative would have either returned the car to RAC or paid the claim.
RAC also contended in its response that it was entitled to recover for its loss of use damages, it had agreements with Affirmative such as a “an oral contract to insure” and bailment agreement that allowed it to pursue a breach of contract claim, and it had standing to pursue DTPA and Insurance Code claims.
In its original order granting Old American and Affirmative’s summary judgment, the trial court stated that Old American and Affirmative were not liable for “breach of contract, conversion, theft, trespass to personal property, misrepresentation of insurance policy, DTPA violations, Insurance Code violations, fraud, or negligent misrepresentation.” However, after determining that RAC was not entitled to recover on any of its claims, the trial court further stated that RAC was “entitled to recover the value of the totaled vehicle,” although it was not entitled to “recover the loss of use.” The trial court subsequently entered an amended order granting Old American and Affirmative’s summary judgment, in which it stated that Old American and Affirmative were “not liable in this case on any of [RAC’s] causes of action” and that RAC was not entitled to recover any damages.
Standard of Review
To prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). When a defendant moves for summary judgment, it must either (1) disprove at least one essential element of the plaintiff's cause of action or (2) plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiff's cause of action. Cathey, 900 S.W.2d at 341; Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). When deciding whether there is a disputed, material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). Every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in its favor. Id. at 549. Moreover, a summary judgment must stand or fall on the grounds expressly presented in the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339–41 (Tex. 1993).
Summary Judgment
In two issues, RAC argues that the trial court erred in granting summary judgment in favor of appellees because the summary judgment evidence presented a genuine issue of material fact on RAC’s claims and because appellees did not file a summary judgment motion addressing all of RAC’s claims.
Breach of Bailment Agreement or Oral Contract
After Old American and Affirmative filed their summary judgment motion, RAC filed an amended petition and included a claim for breach of bailment agreement or an oral contract based upon new factual allegations. In the amended petition, RAC alleged that there was an oral agreement to allow Old American and Affirmative to tow and store the car at a storage yard based upon RAC’s expectation of coverage and payment for damages or the return of the car pending an investigation. Old American and Affirmative did not file an amended summary judgment motion to address this claim, but instead attempted to address it solely in a reply. Claims pleaded after a summary judgment is filed must be addressed by an amended or supplemental motion, not by reply brief. McConnell, 858 S.W.2d at 339–41 (providing that summary judgment grounds must appear in motion, not in briefs or evidence); Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d 584, 592 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Elliott v. Methodist Hosp., 54 S.W.3d 789, 794 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).
However, even if we were to determine that we could consider the propriety of the summary judgment on RAC’s breach of bailment agreement or breach of contract claim, we conclude that, in light of the additional factual allegations, fact issues remain as to whether Old American and Affirmative breached the alleged agreement regarding the towing and storing of the car. Indulging all reasonable inferences in favor of RAC, Edmond’s testimony provides some evidence of an agreement formed between the parties over the right to control the car after the accident. Old American and Affirmative did not dispute that after taking control of the car they disposed of the car, and they did not present any evidence that they were entitled to dispose of the car. Instead, through Bibb’s affidavit, Affirmative presented evidence only that it did not “initially” dispose of the car. In sum, Old American and Affirmative did not present evidence defeating RAC’s breach of contract or bailment agreement claim as a matter of law, and they did not present any evidence regarding what happened to the car after denying coverage for RAC’s property claim. Accordingly, we hold that the trial court erred in granting summary judgment on RAC’s claim for breach of a bailment agreement and contract.
Conversion, Theft, and Trespass
The elements of a conversion claim are (1) the plaintiff owned or had possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, the plaintiff’s rights as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property. Khorshid, Inc. v. Christian, 257 S.W.3d 748, 758–59 (Tex. App.—Dallas 2008, no pet.).
Under the Theft Liability Act, a person who commits theft by unlawfully appropriating property with intent to deprive the owner of property is liable for the resulting damages. Tex. Civ. Prac. & Rem. Code Ann. §§ 134.002(2), 134.003(a) (Vernon 2005); Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2009). Appropriation of property is unlawful if it is without the owner’s effective consent. Id. § 31.03(b)(1).
“Trespass to personalty is an injury to, or interference with, possession of the property, unlawfully, with or without the exercise of physical force.” Russell v. Am. Real Estate Corp., 89 S.W.3d 204, 210 (Tex. App.—Corpus Christi 2002, no pet.) (citing Jamison v. Nat’l Loan Investors, L.P., 4 S.W.3d 465, 469 n.2 (Tex. App.—Houston [1st Dist.] 1999, pet. denied)). Destruction of, or injury to, personal property, regardless of negligence, may be a trespass. Id.
The summary judgment record reveals the existence of material issues of fact regarding each of these claims that the trial court could not have properly resolved by summary judgment. First, the record establishes a fact issue as to whether Joseph Dominick IV was an insured under the Old American policy. RAC argued in its summary judgment response that there was in fact coverage, and Edmond testified to this in his affidavit. Affirmative presented evidence only that it had discovered that the driver of RAC’s rental car “was possibly not insured by Affirmative.” Bibb, Affirmative’s representative, also testified in his affidavit that the investigation was not concluded at the time that the suit was filed, and he never testified as to whether the investigation was ever concluded or whether Affirmative ever made a final coverage determination. Moreover, there are documents from the insurance file, which are attached to Edmond’s affidavit, indicating that after Affirmative notified “Joseph Dominick” or “Joseph Dominick IV” of the lack of coverage, the Dominicks challenged this determination, asserting that they had a declaration page showing coverage for both of them. There is nothing in the record to resolve this question. We also note that the policy is not contained in the record, so we cannot review it ourselves to determine if coverage, or the lack of coverage, is established by the policy language.
Second, the record establishes a fact issue as to whether Old American and Affirmative unlawfully retained or refused to disclose to RAC the location of its car. The record also does not establish, as a matter of law, that the car was a total loss or that, even if the car could be classified as a total loss, that Old American and Affirmative could lawfully refuse to disclose to RAC the location of its property. Old American and Affirmative’s summary judgment motion on these claims is based upon the false assertion that it was “undisputed” that RAC knew the location of its car.
In sum, the record before us reveals a fact issue as to whether there was coverage for Joseph Dominick IV, the driver of the rental car, and whether Old American and Affirmative unlawfully obtained control or refused to disclose the location of the car to RAC or unlawfully disposed of RAC’s car. Accordingly, we hold that the trial court erred in granting summary judgment on RAC’s claims for conversion, violations of the Theft Liability Act, and trespass.
Fraud and Negligent Misrepresentations
In order to prove fraud, a party must show that (1) a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001). Fraud by nondisclosure is a subcategory of fraud. See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997).
In order to prove negligent misrepresentation, a plaintiff must show that (1) the defendant made a representation in the course of its business, or in a transaction in which it has a pecuniary interest, (2) the defendant supplied “false information” for the guidance of others in their business, (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information, and (4) the plaintiff suffered a pecuniary loss by justifiably relying on the representation. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686 n. 24 (Tex. 2002) (citing Fed. Land Bank Ass’n v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991)).
Here, Old American and Affirmative sought summary judgment on these claims solely on the basis that the summary judgment evidence established as a matter of law that they “did not make false representations.” However, RAC presented evidence that it engaged in phone conversations with Affirmative representatives, during these conversations RAC permitted Affirmative to move the car to a storage facility based upon an expectation of coverage or return of the car, Affirmative took “control” of the car and moved it to an undisclosed location, Affirmative refused to inform RAC of the location of the car even after RAC made numerous requests, and Affirmative failed to pay RAC for the car or return it, apparently contending that the car was a total loss and that RAC was not entitled to its return. RAC alleged in its petition that Old American and Affirmative had since sold the car at auction, and Old American and Affirmative only presented evidence that they did not “initially” dispose of the car. Old American and Affirmative cite their conflicting evidence that RAC knew the location of the car and that they had not refused to return it. They also argue on appeal that the car was a total loss.
However, we have determined that the record does not establish that RAC’s car was a total loss or that, even if it could have been classified that it was a total loss, RAC was not entitled to a return of its property. Moreover, Old American and Affirmative sought summary judgment on these claims solely on the basis that they did not make false representations. Indulging every reasonable inference in favor of RAC and resolving any doubts in its favor, we conclude that RAC has presented a fact issue on whether Old American and Affirmative made any misrepresentations. Accordingly, we hold that the trial court erred in granting Old American and Affirmative’s summary judgment motion on RAC’s fraud and negligent misrepresentation claims.
DTPA and Insurance Code
In its petition, RAC did not articulate the basis for its claims under the DTPA and Insurance Code. Instead, it made only general references to these statutes in the sections of its petition related to other claims. Without citation to any specific provisions or conduct of Old American and Affirmative, RAC generally stated that “[t]he conduct of Defendants was an unfair and/or deceptive act or practice under the Texas Insurance Code and the Texas Deceptive Trade Practices Act.” Old American and Affirmative did not file special exceptions to RAC’s petition and did not seek a no-evidence summary judgment. See Tex. R. Civ. P. 91; 166a(i). Instead, Old American and Affirmative sought summary judgment on RAC’s DTPA and Insurance Code claims on specific grounds. First, Old American and Affirmative argued that RAC’s DTPA claims failed as a matter of law because RAC did not qualify as a consumer. Second, Old American and Affirmative argued that RAC’s Insurance Code claims failed as a matter of law because “[t]o pursue a cause of action under Chapter 542 of the Texas Insurance Code, [RAC] must establish it had a [first-party] claim under an insurance policy.”
Consumer status is an essential element of a DTPA claim. Rivera v. S. Green Ltd. P’ship, 208 S.W.3d 12, 21 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (citing Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995)). A consumer is an individual who seeks or acquires goods or services by purchase or lease. Id.; Tex. Bus. & Com. Code Ann. § 17.45(4) (Vernon Supp. 2009) (“‘Consumer’ means an individual, partnership, corporation, this state, or a subdivision or agency of this state who seeks or acquires by purchase or lease, any goods or services, except that the term does not include a business consumer that has assets of $25 million or more, or that is owned or controlled by a corporation or entity with assets of $25 million or more.”). Whether a plaintiff is a consumer under the DTPA is a question of law for the court to decide. Rivera, 208 S.W.3d at 21.
On appeal, RAC suggests that it “sought or acquired insurance coverage” from Old American and Affirmative, and, based upon this theory, it argues that it was a consumer of insurance and it should be allowed to pursue its DTPA claims. RAC also argued in its summary judgment response that “the unique facts of this matter strongly suggest that [RAC] sought or acquired insurance coverage.” But there is no summary judgment evidence to support the assertion that RAC acquired insurance from Old American and Affirmative. In fact, Edmond’s affidavit clearly established that RAC considered Joseph Dominick IV as the party acquiring the insurance. RAC’s own rental agreement also recognizes that Old American was the insurer for “Joseph Dominick,” not for RAC. Moreover, RAC is now seeking, at least in part, to recover insurance proceeds based upon the allegation that Joseph Dominick IV was an insured of Old American and Affirmative. “Texas law recognizes that a party whose only relation to an insurance policy is to seek policy proceeds is not a ‘consumer.’” Rotating Servs. Indus., Inc. v. Harris, 245 S.W.3d 476, 486 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269, 274 (Tex. 1995)).
RAC argues that even if it was not a consumer of insurance, section 17.46(b)(12) of the DTPA allows RAC to pursue its DTPA claims because they were “brought in connection” with RAC’s Insurance Code claims. In support of its argument, RAC cites Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 387 (Tex. 2000). However, neither Casteel, nor any of the other authorities relied upon by RAC, permit RAC to proceed on its DTPA claims without consumer status. Accordingly, we hold that the trial court did not err in granting summary judgment on RAC’s DTPA claims.
In regard to RAC’s Insurance Code claims, we construe Old American and Affirmative’s summary judgment motion as specifically attacking these claims only to the extent that RAC pleaded such claims under Chapter 542 of the Insurance Code. Chapter 542 addresses claims related to unfair claims settlement practices and prompt payment requirements. See Tex. Ins. Code Ann. §§ 542.001– 542.061 (Vernon 2009). We agree that, with respect to any claims pleaded under Chapter 542 related to claims handling practices or statutory prompt payment violations, RAC was not entitled to pursue those claims. See id. § 542.051(2) (defining “claim” under that subchapter as “first party claim that: (A) is made by an insured or policyholder under an insurance policy or contract or by a beneficiary named in the policy or contract; and (B) must be paid by the insurer directly to the insured or beneficiary”); Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660, 674–75 (Tex. 2008); Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269, 273–74 (Tex. 1995); Allstate Ins. Co. v. Watson, 876 S.W.2d 145, 149–50 (Tex. 1994); Caplinger v. Allstate Ins. Co., 140 S.W.3d 927, 931 (Tex. App.—Dallas 2004, pet. denied). However, Old American and Affirmative did not seek summary judgment on any Insurance Code claims arising under Chapter 541, which addresses unfair or deceptive acts or practices. Accordingly, we hold that the trial court erred to the extent that it granted summary judgment on any such claims.
Conclusion
In sum, we overrule the portion of RAC’s two issues challenging the trial court’s summary judgment on its DTPA claims and Insurance Code claims to the extent that those claims were based upon Chapter 542 of the Insurance Code. We sustain the remaining portion of RAC’s two issues challenging the trial court’s summary judgment on RAC’s claims for breach of bailment agreement or contract, conversion, theft, trespass, fraud, negligent misrepresentation, and for violations of the Insurance Code to the extent those claims are based upon provisions outside of Chapter 542.
We affirm the portion of the trial court’s judgment on RAC’s DTPA and Insurance Code claims arising under Chapter 542, we reverse the remaining portions of the judgment, and we remand for further proceedings consistent with our opinion.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Sharp.