Affirmed and Memorandum Opinion filed December 30, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00352-CV
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UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY NOS. MDJ03/L075 AND MDJ03/Z0165 AND MARKEL INTERNATIONAL INSURANCE COMPANY LIMITED SUBSCRIBING TO POLICY NO. MDJ03/A0165, Appellants
V.
EDMOND, DEATON & STEPHENS INSURANCE AGENCY, INC., Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Cause No. 05-34919
M E M O R A N D U M O P I N I O N
In this case, underwriters paid an insured under insurance policies based on damages arising from a fire. The underwriters sued the insurance agency that submitted the insured=s application, asserting claims for breach of fiduciary duty, negligence, negligent misrepresentation, and indemnity. Based on a jury=s verdict, the trial court rendered judgment that the underwriters take nothing against the agency. On appeal, the underwriters assert that the trial court erred in rejecting various arguments asserted in their post-trial motions. We affirm the trial court=s judgment.
I. Factual and Procedural Background
Appellants are various Lloyd=s of London underwriters subscribing to certain insurance policies (hereinafter AUnderwriters@). Appellee Edmond, Deaton & Stephens Insurance Agency, Inc. (hereinafter AInsurance Agency@) entered into an agreement, referred to by the parties as a AProducer=s Agreement,@ with M.D. Jensvold & Co., Inc. (AJensvold@), a managing general agent for the Underwriters.[1] The Producer=s Agreement was valid and enforceable at all times relevant to the disputed issues. Under the Producer=s Agreement, the Insurance Agency had the authority to solicit applications for insurance, present Jensvold quotations, and collect premiums and service policies of insurance placed through Jensvold. Under the Producer=s Agreement, the Insurance Agency is given no authority to bind or modify insurance contracts on behalf of Jensvold or the companies that Jensvold represents.
Mike Stephens was an insurance agent for the Insurance Agency. In April 2003, Stephens prepared, signed, and submitted a request to the Underwriters for an insurance quote on behalf of Pioneer General Contractors and Pioneer Millworks (hereinafter collectively APioneer@) for insurance coverage. The application stated in pertinent part as follows:
! One of Pioneer=s buildings has an address of 3850 Mack Road and is inside the Amarillo city limits, and another building has an address of 3850-B Mack Road but is outside the Amarillo city limits.
! The protection class of the buildings is A4.@
! The buildings are within the Amarillo Fire District.
Only Stephens signed this application. The Underwriters reviewed the application and assigned a hazard rating of A5@ or Ahigh hazard@ to Pioneer. The Underwriters, based on the information in the application, quoted premiums for the requested insurance. The Insurance Agency accepted the offers in the quotes, and the Underwriters issued binders indicating the effective dates of coverage. The Underwriters also requested an inspection of the premises. According to the Underwriters, they rely on the information submitted in the application by an insurance agent and do not require such information to be confirmed in a separate inspection report. Approximately two weeks later, the Insurance Agency submitted applications, dated May 23, 2003. These applications were on the same form as the earlier applications; however, they were signed by a representative of Pioneer and were not signed by Stephens. These applications stated that both of Pioneer=s buildings were within the Amarillo city limits. In fact, both buildings were located outside the Amarillo city limits and were not located within the Amarillo Fire District.
A fire damaged Pioneer=s property, and the Underwriters paid Pioneer $1,488,955.26 for the damage under the policies. The Underwriters sued the Insurance Agency, asserting claims for breach of fiduciary duty, negligence, negligent misrepresentation, and indemnity. The Underwriters alleged that the Insurance Agency prepared and submitted Pioneer=s applications for coverage and that these applications contained misrepresentations.
The case proceeded to trial, and the jury found as follows:
! The Insurance Agency had actual or apparent authority from the Underwriters to solicit insurance applications.
! The Insurance Agency made a negligent, material misrepresentation upon which the Underwriters justifiably relied.
! The Insurance Agency did not make the negligent misrepresentation with an intent to deceive the Underwriters.
! In addition to the Insurance Agency=s negligence, the negligence of the Underwriters also proximately caused the injury in question.
! A relationship of trust and confidence did not exist between the Insurance Agency and the Underwriters.
! The Underwriters= percentage of fault that caused the injury was 65%.
! The sum of money that would fairly and reasonably compensate the Underwriters for their damages is $700,000.[2]
The Underwriters moved for entry of judgment in their favor, to disregard certain jury findings, and for judgment notwithstanding the verdict. The trial court denied this motion, and, based on the jury=s verdict, the trial court rendered judgment that the Underwriters take nothing. The Underwriters also filed a motion for new trial, which was overruled by operation of law.
II. Issues Presented
On appeal, the Underwriters assert the following issues for review:
(1) The trial court erred in denying the Underwriters= motion for judgment based on the jury=s findings of agency and a material, negligent misrepresentation.
(2) The evidence is legally and factually insufficient to support the jury=s finding that the Underwriters were 65% comparatively responsible.
(3) The Underwriters are entitled to a new trial because the Insurance Agency owed the Underwriters a fiduciary duty as a matter of law and because the jury=s finding of no duty is not supported by legally or factually sufficient evidence.
(4) The evidence is legally and factually insufficient to support the jury=s damages finding.
III. Standards of Review
When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. See id. at 827. We must determine whether the evidence at trial would enable reasonable and fair-minded people to find the facts at issue. See id. The factfinder is the only judge of witness credibility and the weight to give to testimony. See id. at 819. When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615B16 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). We may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Pascouet, 61 S.W.3d at 616.
We review a trial court=s determination that an expert witness is qualified under an abuse-of-discretion standard. See Broders v. Heise, 924 S.W.2d 148, 151-52 (Tex. 1996). The trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules or principles. See id.; Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241B42 (Tex.1985). An abuse of discretion does not occur merely because the appellate court may have decided a discretionary matter in a different way than the trial court. Downer, 701 S.W.2d at 242.
IV. Analysis
A. Did the trial court err by applying the comparative responsibility statute?
In their first issue, the Underwriters assert that the comparative responsibility statute does not apply to a claim by an underwriter against an insurance agent who has made a material, negligent misrepresentation on an insurance application, upon which the underwriter relies in binding coverage. Once the foregoing elements are established, the Underwriters assert that the agent is estopped under Texas law from denying responsibility to the insurer.
If Chapter 33 of the Texas Civil Practice and Remedies Code applies to a claim, the claimant may not recover if its percentage of responsibility is greater than fifty percent. See Tex. Civ. Prac. & Rem. Code Ann. ' 33.001 (Vernon 2008). Chapter 33 does not apply to certain, specific claims. See id., ' 33.002(b) (Vernon 2008). However, the record reflects that the Underwriters have not asserted any of these claims, and the Underwriters do not argue otherwise. Chapter 33 applies to Aany cause of action based on tort in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought. . . .@ Id., ' 33.002(a)(1). The Underwriters sought monetary damages based on three common-law tort claimsCnegligent misrepresentation, negligence, and breach of fiduciary duty. The jury answered questions regarding these tort claims. The jury found that a defendant, the Insurance Agency, was responsible for a percentage of the harm for which relief was sought. Unless the claims fall within an express statutory exemption from the scope of Chapter 33, Chapter 33 applies generally to all common-law tort claims and to statutory tort claims that do not include a separate and conflicting legislative fault-allocation scheme. See JCW Elec., Inc. v. Garza, 257 S.W.3d 701, 704B7 (Tex. 2008); Southwest Bank v. Info. Support Concepts, Inc., 149 S.W.3d 104, 111 (Tex. 2004); Werner v. KPMG, L.L.P., 415 F. Supp. 2d 688, 703 (S.D. Tex. 2006). Under the unambiguous language of section 33.002, Chapter 33 applies to the Underwriters= common-law tort claims, and they may not recover on these claims if their percentage of responsibility is greater than fifty percent. See id., ' 33.001, 33.002; JCW Elec., Inc., 257 S.W.3d at 704B7; Southwest Bank, 149 S.W.3d at 111; Galle, Inc. v. Pool, 262 S.W.3d 564, 571 (Tex. App.CAustin 2008, pet. filed) (applying Chapter 33 to negligent-misrepresentation claim); Isaacs v. Bishop, 249 S.W.3d 100, 116B17 (Tex. App.CTexarkana 2008, pet. denied); (applying Chapter 33 to common-law fraud claim).
The cases cited by the Underwriters do not support the proposition that the comparative responsibility statute does not apply to a claim by an underwriter against an insurance agent who has made a material, negligent misrepresentation on an insurance application, upon which the underwriter relies in binding coverage.[3] Therefore, the Underwriters= argument for this proposition lacks merit, and we overrule their first issue.
B. Is the evidence legally and factually sufficient to support the jury=s finding regarding the Underwriters= comparative responsibility?
In their second issue, the Underwriters assert that the evidence is legally and factually insufficient to support the jury=s finding that the Underwriters= comparative responsibility is 65%. In their argument under this issue, the Underwriters begin by stating, without explanation or record citation, that this jury finding was Abased exclusively on the testimony of [Insurance Agency=s] purported >expert,= Russ Taylor.@ Proceeding on this premise, the Underwriters then present arguments that Taylor=s testimony amounts to no evidence. Construing the Underwriters= points under their second issue reasonably and liberally,[4] the Underwriters assert the following arguments: (1) Taylor=s testimony was speculative on the face of the record and therefore no evidence; (2) Taylor repeatedly admitted he was testifying as to what he would have done and not whether the Underwriters violated any standard of care; (3) Taylor was not qualified to testify as an expert on the issues in this case; and (4) Taylor=s opinions are not relevant and not reliable because his methodology is based purely on speculation and without regard to, or understanding of, industry standards and Lloyd=s underwriting practices.
(1.) Was Taylor=s testimony speculative on the face of the record?
No objection in the trial court is required to argue on appeal that an expert=s testimony is speculative on the face of the record and therefore legally insufficient. See Arkoma Basin Exploration Co. v. FMF Assoc. 1990-A, 249 S.W.3d 380, 388 (Tex. 2008). Taylor testified on direct examination as follows:
! Based on his experience and background the role of an underwriter in the issuance of an insurance policy is, among other things, to accept applications from agents and insureds and then make a judgment as to whether that risk is something that he wants to place.
! It is not unusual to find mistakes on insurance applications, but it is part of an underwriter=s job to find these mistakes and clear them up.
! It is important to clear up these mistakes so as to have accurate facts for the underwriter to make a judgment.
! Based on his experience as an underwriter, when an underwriter finds discrepancies on an insurance application, it is the role of the underwriter to resolve the discrepancies.
! An underwriter finds answers regarding questions about such discrepancies by contacting the insurance agent and asking questions.
! It is not acceptable for an underwriter who sees a discrepancy on an application to simply rely on another part of the application to clear up the discrepancy, unless there is something very specific on the application that explains the discrepancy.
! It is extremely important for an underwriter to be very thorough in evaluating an insurance application to see if the information in it is consistent and fits within the insurer=s guidelines.
! The April 2003 application submitted by Pioneer contains a discrepancy because it states that one of Pioneer=s buildings is inside the city limits but that the other building is outside the city limits. This discrepancy is important in terms of the fire protection rating.
! Because it is unlikely that the city limits would fall between the two buildings, it was important to investigate this discrepancy.
! Based on Taylor=s experience, the most important aspect of determining the protection classification is whether the building is inside or outside of the city limits.
! Generally, the lower rated classifications (indicating lower risk) are inside the city limits, and the higher rated classifications (indicating higher risk) are outside the city limits.
! It is possible that a building could be outside the city limits and still have a protective class of four (as stated on the application), but it does not happen very often. This usually would occur in a highly developed area which has its own independent fire protection system, but it is not likely that there would be a low protection code for a building outside the city limits.
! To clear up the discrepancy in Pioneer=s application, a reasonable and prudent underwriter should either (1) send the application back to the agent saying the application is rejected until the underwriter gets answers or (2) contact the agent to obtain clarification regarding the discrepancy.
! Taylor has not seen any evidence that would indicate that Mike Stephens of the Insurance Agency would not have responded immediately and accurately.
! Both of Pioneer=s buildings were outside the Amarillo city limits.
! If the underwriter does his job right, sees this discrepancy, calls the agent, and learns that the buildings are outside the city limits, then the underwriter would ask why the application states that the buildings are within the Amarillo Fire District and probably would ask the agent if he was sure the protection code is four for buildings outside the city limits. If the agent stated that the buildings are actually in the Randall County Fire District, then that would indicate that the buildings probably have a different protection code.
The Underwriters assert that Taylor=s testimony is purely speculative as to what would have been discussed had the Underwriters contacted the Insurance Agency regarding the discrepancy to which Taylor testified.[5] Though Taylor=s testimony could have been clearer, we conclude that it was not speculative on the face of the record.[6]
(2.) Was Taylor testifying as to what he would have done rather than whether the Underwriters violated any standard of care?
On direct examination, Taylor testified, among other things, regarding the role of an underwriter, the importance of clearing up mistakes and resolving discrepancies in insurance applications, what a reasonable and prudent underwriter should do to clear up discrepancies in applications, and what a reasonable and prudent underwriter would do if the inspection report reflects that the buildings were within 500 feet of a water well rather than within 500 feet of a fire hydrant. Under its second issue, the Underwriters also assert that Taylor repeatedly admitted he was testifying as to what he would have done and not whether the Underwriters violated any standard of care. The Underwriters rely on part of Taylor=s testimony during cross-examination. However, during this testimony Taylor did not state that all his testimony was based on what he would have done rather than the standard of care. When asked a question in this regard, Taylor gave a nonresponsive answer. When asked a follow-up question, Taylor stated that he was talking about what he would expect any underwriter or agent to do. Taylor then stated that he was relating his testimony to the standard of care of the industry as a whole but that he could not speak to the legal requirements. When asked if he would say whether the insurance agent (Stephens of the Insurance Agency) violated the standard of care, Taylor stated AI expressed that the agent C or the underwriter violated or didn=t violate, but that he also made errors but I don=t think the standard of care is the issue.@ Taylor also testified that he could talk about errors that the Underwriters and the Insurance Agency made and what he Athink[s] is right@ and Awhat=s wrong.@ We disagree with the Underwriters= characterization of Taylor=s testimony on cross-examination. In any event, to the extent that a few of Taylor=s statements indicate that he was not testifying as to what a person of ordinary prudence would do or not do under the same or similar circumstances as existed with respect to the Underwriters, the jury, as factfinder, was free to disregard these statements. See Pascouet, 61 S.W.3d at 615B16.
(3.) To what extent did the Underwriters preserve error as to their other two arguments?
As to the Underwriters= other two arguments, we first examine the extent to which they preserved error in the trial court. Prior to the jury=s verdict, the only objection to Taylor=s testimony that the Underwriters made known to the trial court was an objection to Taylor being qualified as an expert Ato the extent that [Taylor] has no experience in underwriting under any of the C under Lloyd=s manuals and Lloyd=s contracts.@[7] Therefore, except for this objection, which is addressed below, the Underwriters failed to preserve error as to their remaining arguments under the second issue. See Tex. R. App. P. 33.1(a); Arkoma Basin Exploration Co., 249 S.W.3d at 388 (stating that no trial court objection is required to argue on appeal that an expert=s testimony is conclusory or speculative on the face of the record but that an objection is necessary before or during trial if the objection requires the court to evaluate the underlying methodology, technique, or foundational data); Coastal Transport Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 231B33 (Tex. 2004) (holding that party need not preserve error in trial court to argue on appeal that expert testimony was conclusory and therefore legally insufficient, while stating that party needs to preserve error in trial court to assert on appeal that expert testimony is unreliable and therefore legally insufficient); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 408B11 (Tex. 1998) (holding that party could not assert on appeal that expert testimony was unreliable and therefore no evidence, because party failed to preserve error in the trial court prior to jury=s verdict); Melendez v. Exxon Corp., 998 S.W.2d 266, 282B83 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (holding that party could not argue on appeal that expert=s testimony was legally insufficient evidence based on expert=s lack of qualifications because party did not preserve error on lack of qualifications in the trial court). Therefore, these complaints have been waived.
(4.) Did the trial court err in overruling the Underwriters= objection at trial that Taylor was unqualified due to his lack of experience in underwriting Lloyd=s contracts and under Lloyd=s manuals?
Regarding the complaint as to which the Underwriters preserved error, we note that the jury was asked to determine whether the Underwriters= negligence proximately caused the injury in question and to assess the Underwriters= percentage of comparative responsibility. ANegligence@ is defined in the jury charge as Afailure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done in the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.@ AOrdinary care@ is defined as Athat degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.@ If technical or other specialized knowledge will assist the jury in understanding the evidence or determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto. Tex. R. Evid. 702. By their trial objection, the Underwriters asserted that a person cannot be qualified to give expert testimony regarding the Underwriters= alleged negligence in this case unless the witness had experience in underwriting under Lloyd=s manuals and Lloyd=s contracts. We conclude that such experience is not mandatory for Taylor to be qualified as an expert regarding the Underwriters= alleged negligence in this case. See Broders, 924 S.W.2d at 152-54 (holding trial court did not abuse its discretion by determining that emergency-room doctor was not qualified to testify as to whether doctors= alleged negligence in failing to diagnose a patient=s head injury caused her death but stating that, to be qualified, expert need not be in the same specialization as the defendant doctor, rather the issue is whether the witness has Aknowledge, skill, experience, training, or education@ regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject); Ponder v. Texarkana Memorial Hosp., 840 S.W.2d 476, 477B78 (Tex. App.CHouston [14th Dist.] 1991, writ denied) (holding that non-physician with a doctorate in neuroscience, who conducts research on the causes of neurological injuries and teaches neurophysiology, neuroanatomy and neurochemistry to M.D.s and Ph.D.s, may qualify as a medical expert on the cause of brain damage), superseded by statute on other grounds by, Tex. Civ. Prac. & Rem. Code Ann. ' 74.351 (r)(5)(C) (Vernon Supp. 2008). On this basis alone, the trial court did not abuse its discretion in overruling the Underwriters= objection at trial to Taylor=s qualifications.
In addition, Taylor testified as follows:
! Taylor started in the insurance industry about 45 years ago as an underwriting trainee with Hartford Insurance Group.
! Taylor Aworked with Hartford after a nine-month training program in an underwriting program handling property and casualty type accounts.@
! After about two years, Taylor left Hartford and went to work for another insurance company, at which he worked for four and a half years underwriting foreign risks.
! Taylor then returned to Hartford Insurance Group and worked as a field underwriter for a couple of years, after which he was promoted to Hartford=s education department, in which he spent two years teaching Hartford agents about coverage and underwriting issues. Taylor trained people as to how to be an underwriter.
! Taylor later worked at an insurance agency in Houston in an underwriting capacity.
In light of this testimony, even if the Underwriters had objected generally that the Insurance Agency had failed to prove that Taylor was qualified to give expert testimony regarding the Underwriters= alleged negligence, the trial court would not have abused its discretion in overruling this objection.
The jury has wide latitude in allocating the percentages of responsibility under Chapter 33. See Axelrad v. Jackson, No. 14-02-00518-CV, CS.W.3dC,C, 2008 WL 2065897, at *5 (Tex. App.CHouston [14th Dist.] May 15, 2008, no pet.). Even if the evidence would support a different allocation of the percentages of comparative responsibility, this court may not substitute its judgment for that of the jury. See id. We have addressed all of the Underwriters= arguments under their second issue. Under the applicable standards of review, the evidence is legally and factually sufficient to support the jury=s finding regarding the Underwriters= percentage of responsibility. Accordingly, we overrule the Underwiters= second issue.
C. Did the trial court err by failing to grant a new trial to determine whether the Insurance Agency breached a fiduciary duty to the Underwriters, which the Underwriters assert the Insurance Agency owed as a matter of law?
In question 7 of the charge, the jury was asked to determine whether a relationship of trust and confidence existed between the Insurance Agency and the Underwriters. This question inquired into the existence of an informal fiduciary relationship between the Insurance Agency and the Underwriters.[8] See Lundy v. Mason, 260 S.W.3d 482, 501B2 (Tex. App.CHouston [14th Dist.] 2008, pet. denied). The trial court instructed the jury that such a relationship of trust and confidence would mean that the Insurance Agency owed the Underwriters a fiduciary duty. The trial court instructed the jury not to answer Question 8 (as to whether the Insurance Agency breached a fiduciary duty) unless the jury found that a relationship of trust and confidence existed between the Insurance Agency and the Underwriters. The jury found that such a relationship did not exist; therefore, the jury did not answer question 8 and did not make any finding as to whether the Insurance Agency breached a fiduciary duty.
Under their third issue, the Underwriters complain that the Insurance Agency owed the Underwriters a fiduciary duty as a matter of law and therefore the trial court erred in failing to grant a new trial to determine whether the Insurance Agency breached this fiduciary duty.[9] Presuming that the Underwriters requested a new trial on this ground in their motion for new trial, the trial court did not abuse its discretion in denying this request. Because the Underwriters did not object at all to question 7 and did not object to the conditioning of question 8 on a positive answer to question 7, the Underwriters failed to preserve error as to a complaint that the Insurance Agency owed a fiduciary duty as a matter of law and that the jury should answer question 8 regardless of its answer to question 7. See Tex. R. App. P. 33.1(a); Little Rock Furniture Mfg. Co. v. Dunn, 222 S.W.2d 985, 989B90 (Tex. 1949) (holding party that failed to object to instruction that jury not answer a question based on its answer to prior question waived that party=s right to have the jury make findings as to the subsequent question), modified on other grounds by Bradford v. Arhelger, 340 S.W.2d 772 (Tex. 1960); Texas Employers= Ins. Ass=n v. Ray, 68 S.W.2d 290, 295 (Tex. Civ. App.CFort Worth 1933, writ ref=d) (holding appellant could not complain of jury=s failure to answer question because the charge instructed the jury not to do so based on its answer to a prior question and because appellant did not object to this instruction); Hunter v. Carter, 475 S.W.2d 41, 46 (Tex. Civ. App.CHouston [14th Dist.] 1972, writ ref=d n.r.e.) (concluding that, in case in which jury followed instructions not to answer certain questions based on its answer to a prior question, party waived jury findings as to unanswered questions by not objecting to the conditional submission of those questions). Because the Underwriters failed to preserve error, we overrule their third issue.
Having overruled the first three issues, we need not address the Underwriters= fourth issue regarding the sufficiency of the evidence to support the jury=s damages finding. Accordingly, we affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Frost, Brown, and Boyce.
[1] The parties dispute the nature of the Insurance Agency=s status under the Producer=s Agreement. The Producer=s Agreement states in pertinent part, AProducer [Insurance Agency] is an independent contractor and not an employee of MDJ [Jensvold].@ At trial, the jury found that the Insurance Agency had authority from the Underwriters or Jensvold to solicit applications for insurance. As to Jensvold, the parties stipulated that any acts or omissions of Jensvold should be considered acts or omissions of the Underwriters.
[2] The jury also found against the Insurance Agency on its defenses of waiver and estoppel.
[3] See Banner Life Ins. Co. v. Pacheco, 154 S.W.3d 822, 825B32 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (analyzing the sufficiency of the evidence supporting jury=s findings regarding insurance company=s claims against its agent but not addressing applicability of Chapter 33); American Indem. Co. v. Baumgart, 840 S.W.2d 634, 639B40 (Tex. App.CCorpus Christi 1992, no writ) (reversing summary judgment and remanding breach-of-contract, negligence, and fraud claims by insurance company against agent, but not addressing applicability of Chapter 33); Hartford Cas. Ins. Co. v. Walker County Agency, Inc., 808 S.W.2d 681, 688 (Tex. App.CCorpus Christi 1991, no writ) (reversing summary judgment and remanding breach-of-contract, breach-of-fiduciary-duty, negligence, and fraud claims by insurance company against agent, but not addressing applicability of Chapter 33); Certain Underwriters at Lloyd=s of London v. A & D Interests, Inc., 197 F. Supp. 2d 741, 747B48 (S.D. Tex. 2002) (denying motion to dismiss for failure to state a claim as to underwriters= negligence and negligent-misrepresentation claims against insurance agent, but not addressing applicability of Chapter 33). The Underwriters also cited Mayes v. Stewart at oral argument for the proposition that a person committing fraud cannot defeat the fraud claim by asserting that the defrauded party might have discovered the truth by exercising proper care. See 11 S.W.3d 440, 451 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). However, this case deals with common-law principles regarding fraud liability, and it does not address Chapter 33 of the Texas Civil Practice and Remedies Code. See id.; see also Isaacs, 249 S.W.3d at 116B17 (holding that unavailability of negligence as a defense to common-law fraud did not preclude reduction in damages based on plaintiff=s percentage of proportionate responsibility under Chapter 33).
[4] See San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.CHouston [14 Dist.] 2005, no pet.) (stating that courts interpret appellate briefing requirements reasonably and liberally but that parties asserting error on appeal still must put forth some specific argument and analysis citing the record and authorities in support of their argument).
[5] On cross-examination, Taylor would not agree with the Underwriters= counsel that his testimony in this regard was speculation. The Underwriters= counsel then stated that Taylor had testified differently at his deposition and presented Taylor with his deposition testimony that it is speculative as to whether the Insurance Agency would have told the Underwriters that, though the first application wrongly stated that one building was inside the city limits when both were outside the city limits, everything else in the application was correct. Taylor then said that he perhaps misunderstood the deposition question. When asked again whether his testimony in this regard was Apure speculation,@ Taylor stated, AOh, yeah. The competence of the underwriter, I can=t speak to. . .@ The jury, as factfinder, was free to disregard Taylor=s testimony on cross-examination. See Pascouet, 61 S.W.3d at 615B16. We do not interpret these statements as an admission by Taylor at trial that his testimony was speculative, but even if he had so testified, that would not require this court to hold that his testimony was speculative on the face of the record.
[6] See Arkoma Basin Exploration Co., 249 S.W.3d at 388B89.
[7] Before trial, the Underwriters filed a motion in limine upon which the trial court ruled; however, that motion was not based on Texas Rule of Evidence 702. In any event, a trial court=s ruling on a motion in limine does not preserve error. See, e.g., Racciato v. Davies, 2006 WL 2254402, at *2 (Tex. App.CHouston [14th Dist.] Aug. 8, 2006, no pet.) (AA ruling on a motion in limine is not a ruling on admissibility and does not preserve error for appellate review@) (mem. op.). The Underwriters also filed a motion to exclude certain testimony by Taylor under Rule 702. However, the Underwriters do not mention this motion in their appellate briefing. The record does not reflect that the motion to exclude was ever set for hearing or that the trial court expressly ruled on it. The Underwriters have not shown that the trial court was aware of the complaints in this motion, which is required to preserve error. See Nip v. Checkpoint Sys., Inc., 154 S.W.3d 767, 771, n.1. (Tex. App.CHouston [14th Dist.] 2004, no pet.).
[8] We need not and do not address whether the jury was correctly instructed regarding this question.
[9] The Underwriters also state, without supporting authority, that, because the Insurance Agency allegedly owed the Underwriters a formal fiduciary duty as a matter of law, the evidence is legally and factually insufficient to support the jury=s finding that no informal fiduciary duty existed. However, even presuming that a fiduciary duty arose as a matter of law based on an agency relationship between the Insurance Agency and the Underwriters, this would not mean that the trial evidence is legally or factually insufficient to support a finding that a relationship of trust and confidence did not exist that would give rise to an informal fiduciary duty.