concurring.
I agree with the majority opinion that the only summary judgment evidence before this court is the rental contract and business records affidavit and that the only question presented is whether the contract conclusively establishes Barrios’s liability as a matter of law for the theft of the vehicle. I also agree that the provisions of the contract do not establish Barrios’s liability as a matter of law.
The operative contract provision in question simply obligates Barrios to return the vehicle in the same condition as received “ordinary wear and tear excepted.” This provision, standing alone, would not make Barrios liable against the theft of the vehicle unless the loss was due to his negligence or lack of diligence. Sanchez v. Blumberg, 176 S.W. 904, 905 (Tex.Civ.App.-San Antonio 1915, no writ) (holding that bailee’s agreement to return bailed property in as good a condition as when received, ordinary wear and tear excepted, does not make bailee insurer of vehicle).
Therefore, the only question presented by the summary judgment record is whether the subsequent provision in the contract (quoted in both the majority and dissenting opinions) conclusively enlarges Barrios’s liability as a matter of law. I agree with the majority that it does not.
Courts are generally reluctant to enlarge a bailee’s common law liability unless the parties have evidenced their clear intent to do so. McKenzie v. Hess Oil & Chem. Corp., 451 S.W.2d 230 (Tex.1970); Hanover Fire Ins. Co. v. Bock Jewelry Co., 435 S.W.2d 909, 917 (Tex.Civ.App.-Dallas 1968, writ ref. n.r.e.) (holding that agreement to be liable as an insurer must be expressly and explicitly set forth). When the parties’ intent, as gleaned from the language of the contract, is doubtful or uncertain, the courts generally have refused to enlarge a bailee’s common law liability. Sanchez, 176 S.W. at 905.
In my opinion, the language of the rental contract does not clearly advise the renter that he will be liable for the full market value of the vehicle in the event it is stolen through no fault of his own. Accordingly, I join in the majority holding that the trial court erred in rendering summary judgment.
ADELE HEDGES, Justice, dissenting.
I respectfully dissent. The contract stated that Barrios “agrees to return car to [Enterprise] in the same condition as received ... ordinary wear and tear accepted [sic].” The back of the contract stated as follows:
RENTER EXPRESSLY AGREES TO PAY TO OWNER ON DEMAND:
(I) Damage to rented ear if Damage Waiver is not purchased or does not apply.
DAMAGE TO RENTED CAR: Renter is responsible for and agrees to pay to Owner the retail value of replacing and/or repairing all losses and damages to the rented car including “loss of use” during the period it is unavailable for rental use as measured by reasonable rental value of renting a replacement car, regardless of fault or negligence by the Renter or any person, and regardless if damages are a result of an act of God. Owner offers and renter agrees to pay an additional fee for DAMAGE
*193WAIVER.... Renter’s insurance is primary. Damage Waiver does not apply if the car is stolen....
(Emphasis added.)
The majority dismisses the statute defining “Damage” in the context of a rental car agreement. At the time the contract was signed, Texas Civil Statute Article 9026, Section 3, provided as follows:
(4) “Damage” means any damage or loss to a rented vehicle, including theft or loss of use and any cost and expense incident to that damage or loss regardless of any negligence that might be involved in the damage or loss.
Tex.Rev.Civ. Stat. Ann. art. 9026, § 3(4).1 Therefore, under the contract, Barrios “expressly agrees to pay” Enterprise the “Damage to rented Car,” which is defined under the statute to include theft, regardless of any negligence.
Barrios contends that his summary judgment evidence, which included his affidavit and his personal automobile insurance policy, established that any loss was not his fault. In his affidavit, Barrios explained that he “did not intentionally damage or lose or have stolen the vehicle” and that he had a valid Texas personal automobile insurance policy during the rental period. He contends that an unnamed Enterprise employee told him that his personal automobile insurance policy would cover any loss. He argues that he relied on the employee’s verbal misrepresentations; otherwise, he would have purchased additional insurance. However, Barrios’s general denial asserted no affirmative defenses, such as estoppel, fraud, fraud in the inducement, or avoidance. Because he did not plead these affirmative defenses, Barrios has waived these issues. See Tex.R. Crv. P. 94.
The majority states that the Enterprise agent’s verbal assurance “can reasonably be interpreted as reassurance to a renter that he is insured against legal liability for unintentional loss or damage to the vehicle, including loss of the vehicle, without the necessity of buying additional insurance.” I disagree. The rental contract states, “Texas Personal Auto Policies Cover Legal Liabilities for Loss or Damage, Except Intentional, to Rented Vehicles.” There is no evidence in the record to show that Barrios’s personal automobile insurance policy contained the type of comprehensive coverage necessary to reimburse Barrios in the event the car was stolen.
The contract additionally stated, “Purchase of Optional Damage Waiver Which Is Not Insurance May Not Be Necessary or Mandatory.” For an additional fee, Enterprise offered an optional “damage waiver” which would relieve the renter of any deductible on the renter’s policy and an additional amount. However, the contract stated that the damage waiver “does not apply if the car is stolen.” Because the car was stolen, therefore, the collision damage waiver would not have given Barrios any additional protection or exclusion from the terms of the contract.
I would hold that the trial court did not err in rendering summary judgment for Enterprise. Accordingly, I would affirm the judgment of the trial court.
TERRY JENNINGS, Justice, dissenting.
I respectfully dissent. “All losses” means all losses.
. Repealed by Act of June 18, 1999, 76th Leg., R.S., ch. 1046, § 2, 1999 Tex. Gen. Laws 3859, 3861 (current version at Tex.Rev.Civ. Stat. Ann. art. 9026c, § 1(4) (Vernon Supp. 2003)). The rental agreement was signed on April 23, 1998. Since then, the statute was amended; however, the definition of "Damage” did not materially change.