Daniel A. Ramirez v. First Liberty Insurance Corporation ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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DANIEL A. RAMIREZ, No. 08-12-00371-CV
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Appellant, Appeal from
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v. 327th District Court
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FIRST LIBERTY INSURANCE of El Paso County, Texas
CORPORATION, §
(TC # 2011-295)
Appellee. §
CORRECTED OPINION
Daniel A. Ramirez, pro se, appeals from a summary judgment entered in favor of First
Liberty Insurance Corporation. For the reasons that follow, we affirm.
FACTUAL SUMMARY
In February of 2009, Ramirez was stopped at an intersection in San Antonio. The vehicle
behind him was driven by Ernest Dyer. Dyer took his foot off of the brake and his vehicle struck
Ramirez’s vehicle. Ramirez’s vehicle was insured by Government Employees Insurance
Company (GEICO) and Dyer’s vehicle was insured by Liberty. Ramirez did not sue Dyer. He
instead filed suit against Liberty alleging in his fourth amended petition causes of action for
breach of contract, breach of the implied covenant of faith and fair dealing, promissory estoppel,
violations of the Texas Insurance Code, and negligent misrepresentation. Liberty filed a motion
for traditional and no evidence summary judgment. Ramirez attached to his summary judgment
response his own affidavit and correspondence from Liberty. The trial court granted Liberty’s
motion without specifying the grounds for its ruling.
SUMMARY JUDGMENT
Ramirez raises two issues challenging the summary judgment. Liberty first responds that
Ramirez has waived error with respect to the breach of contract, breach of duty of good faith and
fair dealing, and promissory estoppel causes of action because he failed to challenge each ground
on which the trial court’s ruling could be based.
Failure to Challenge Each Ground
Ramirez’s fourth-amended petition raised multiple causes of action against Liberty,
including the breach of contract and promissory estoppel causes of action. Liberty moved for
summary judgment on both traditional and no evidence grounds and the trial court granted
summary judgment without specifying the grounds upon which it relied. When a party moves
for summary judgment on multiple grounds and the trial court’s summary judgment order does
not specify the ground or grounds upon which it was based, the appealing party must negate all
possible grounds upon which the order could have been based. See Star-Telegram, Inc. v. Doe,
915 S.W.2d 471, 473 (Tex. 1995); Jarvis v. Rocanville Corporation, 298 S.W.3d 305, 313
(Tex.App.--Dallas 2009, pet. denied). This can be accomplished by asserting a separate issue
challenging each possible ground. Jarvis, 298 S.W.3d at 313. Alternatively, a party can raise an
issue which broadly asserts that the trial court erred by granting summary judgment and within
that issue provide argument negating all possible grounds upon which summary judgment could
have been granted. See Star-Telegram, 915 S.W.2d at 473; Jarvis, 298 S.W.3d at 313. This is
sometimes referred to as a Malooly issue.1 See e.g., Rangel v. Progressive County Mutual
Insurance Company, 333 S.W.3d 265, 269-70 (Tex.App.--El Paso 2010, pet. denied). It is not
1
Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).
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sufficient to merely raise a general issue as the appellant must also support the issue with
argument and authorities challenging each ground. Rangel, 333 S.W.3d at 270, citing
Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 502-03 (Tex.App.--Houston
[14th Dist.] 2004, pet. denied)(a general Malooly issue statement only preserves a complaint if
the ground challenged on appeal is supported by argument). If the appellant fails to challenge
each ground on which summary judgment could have been granted, we must uphold the
summary judgment on the unchallenged ground. Star-Telegram, Inc., 915 S.W.2d at 473; Jarvis,
298 S.W.3d at 313.
Ramirez has not raised issues challenging the separate grounds on which summary
judgment could have been granted. He has instead raised two general issues which could be
characterized as Malooly issues, but his brief does not contain any argument related to the breach
of contract and promissory estoppel causes of action or the grounds for summary judgment
asserted by Liberty with respect to these claims. We are mindful that Ramirez is a pro se litigant
and we have construed his brief liberally as required by Rule 38.9. See TEX.R.APP.P. 38.9. Even
when his brief is given the most liberal reading possible, it cannot be construed as addressing any
aspect of these two causes of action or the grounds on which the trial court could have granted
summary judgment. He instead focuses exclusively on the evidence he presented that
purportedly shows Liberty engaged in misconduct and made false representations to him about
his claim. This evidence is irrelevant to his breach of contract and promissory estoppel causes of
action. We conclude that Ramirez has waived any challenge to the summary judgment related to
these two causes of action. Accordingly, we are required to uphold the portion of the trial
court’s summary judgment order as it applies to the breach of contract and promissory estoppel
causes of action. See Jarvis, 298 S.W.3d at 313-14 (affirming summary judgment with respect
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to trespass claim because appellant failed to challenge the grounds on which summary judgment
could have been granted as to that cause of action). Ramirez has, however, sufficiently
challenged the grounds related to the breach of the duty of good faith and fair dealing, negligent
misrepresentation, and Insurance Code violation claims.
Standards of Review
The trial court’s decision to grant summary judgment is reviewed de novo. Travelers
Insurance Company v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Rule 166a(i) permits a party
to move for a no-evidence summary judgment “without presenting summary judgment
evidence,” but it requires the moving party to “state the elements as to which there is no
evidence.” TEX.R.CIV.P. 166a(i); Wade Oil & Gas, Inc. v. Telesis Operating Company, Inc., 417
S.W.3d 531, 540 (Tex.App.--El Paso 2013, no pet.); Aguilar v. Morales, 162 S.W.3d 825, 834
(Tex.App.--El Paso 2005, pet. denied). The burden then shifts to the non-movant to produce
summary judgment evidence raising a genuine issue of material fact regarding each element
challenged in the motion. Wade Oil & Gas, 417 S.W.3d at 540. Although the non-movant is not
required to marshal his proof, he must present evidence that raises a genuine issue of material
fact on each of the challenged elements. TEX.R.CIV.P. 166a(i); see Ford Motor Company v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). The trial court must grant the motion unless the
non-movant produces summary judgment evidence raising a genuine issue of material fact.
TEX.R.CIV.P. 166a(i).
A no-evidence motion for summary judgment is essentially a pretrial directed verdict,
and we apply the same legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118
S.W.3d 742, 750-51 (Tex. 2003). Under this standard, we review the evidence in the light most
favorable to the non-movant, credit evidence favorable to that party if reasonable jurors could,
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and disregard contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582 (Tex. 2006). A genuine issue of material fact is raised if the non-movant
produces more than a scintilla of evidence regarding the challenged element. King Ranch, 118
S.W.3d at 751. More than a scintilla of evidence exists when reasonable and fair-minded
individuals could differ in their conclusions. King Ranch, 118 S.W.3d at 751. There is not a
scintilla of evidence when the evidence is so weak as to do no more than create a mere surmise
or suspicion of material fact. Wade Oil & Gas, 417 S.W.3d at 540; Ianni v. Loram Maintenance
of Way, Inc., 16 S.W.3d 508, 513 (Tex.App.--El Paso 2000, pet. denied). Evidence that fails to
constitute more than a mere scintilla is, in legal effect, no evidence at all. Lozano v. Lozano, 52
S.W.3d 141, 148 (Tex. 2001); Wade Oil & Gas, 417 S.W.3d at 540.
The standard of review for traditional summary judgment under Tex.R.Civ.P. 166a(c) is
well established. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548 (Tex.
1985). The moving party carries the burden of showing there is no genuine issue of material fact
and it is entitled to judgment as a matter of law. Diversicare General Partner, Inc. v. Rubio, 185
S.W.3d 842, 846 (Tex. 2005); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005). Evidence
favorable to the non-movant will be taken as true in deciding whether there is a disputed issue of
material fact. Fort Worth Osteopathic Hospital, Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004);
Tranter v. Duemling, 129 S.W.3d 257, 260 (Tex.App.--El Paso 2004, no pet.). All reasonable
inferences, including any doubts, must be resolved in favor of the non-movant. Fort Worth
Osteopathic Hospital, 148 S.W.3d at 99. Once the movant establishes its right to summary
judgment, the burden then shifts to the non-movant to present evidence which raises a genuine
issue of material fact, thereby precluding summary judgment. See City of Houston v. Clear
Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979).
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Breach of Implied Covenant of Good Faith and Fair Dealing
Ramirez’s fourth amended petition included a claim that Liberty breached its duty of
good faith and fair dealing by making misrepresentations to him regarding his claim. Liberty
moved for traditional summary judgment based on its assertion that Ramirez cannot maintain his
suit against Liberty for breach of the duty of good faith and fair dealing.
The commercial insurance policy in question was issued by Liberty to Westat, Inc. and
Rockville Institute. Ramirez is not a party to that contract. A party injured by the insured is a
third-party beneficiary of a liability insurance policy, but he cannot enforce the policy directly
against the insurer until it has been established, by judgment or agreement, that the insured has a
legal obligation to pay damages to the injured party. See State Farm County Mutual Insurance
Company of Texas v. Ollis, 768 S.W.2d 722, 723 (Tex. 1989); Great American Insurance
Company v. Murray, 437 S.W.2d 264, 265 (Tex. 1969). Ramirez has not presented any evidence
establishing that the insured has a legal obligation by virtue of either a judgment or an agreement
to pay his damages.
Section 541.060 of the Texas Insurance Code defines unfair settlement practices to
include misrepresenting to a claimant a material fact or policy provision relating to coverage and
failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim.
TEX.INS.CODE ANN. § 541.060(a)(1), (2)(West 2009). A third-party claimant asserting claims
against the insured of a liability policy does not have standing to bring claims against the liability
insurer for violations of Section 541.060. See TEX.INS.CODE ANN. § 541.060(b)(West
2009)(providing that § 541.060(a) does not provide a cause of action to a third party asserting
one or more claims against an insured covered under a liability insurance policy). Similarly, a
third-party claimant lacks standing to sue an insurer for breach of the duty of good faith and fair
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dealing. Reule v. Colony Insurance Company, 407 S.W.3d 402, 410 (Tex.App.--Houston [14th
Dist.] 2013, pet. denied). Liberty conclusively established that Ramirez may not maintain this
cause of action.
Texas Insurance Code Violations
Ramirez alleged in his third-amended petition that Liberty violated Section
541.051(1)(A) of the Texas Insurance Code by negligently representing to Ramirez that it had
approved his claim and would pay to repair his vehicle and his medical expenses for injuries he
sustained as a result of the auto accident in question. Liberty moved for summary judgment on
the ground that there is no evidence it made a statement that misrepresented the terms of an
insurance policy or promised to pay Ramirez’s medical expenses or for repair of his vehicle.
Ramirez subsequently filed a fourth-amended petition which dropped the claim made under
Section 541.051(1)(A) and added allegations that Liberty violated Sections 541.003,
541.051(1)(B), and 541.061(1)-(4) of the Texas Insurance Code. These violations are based on
the same conduct, namely, Liberty’s alleged misrepresentation it had approved his claim and
would pay his medical expenses and for repair of his vehicle. Liberty did not file a supplemental
motion for summary judgment to specifically address these alleged violations of the Insurance
Code.
The first issue we must address is whether the trial court granted Liberty more relief than
was requested in its motion for summary judgment. As a general rule, summary judgment may
not be granted on a claim not addressed in the summary judgment proceeding. McIntyre v.
Wilson, 50 S.W.3d 674, 684-85 (Tex.App.--Dallas 2001, pet. denied). It may be granted,
however, on later pleaded causes of action if the grounds asserted in the motion show that the
plaintiff could not recover from the defendant on the later pleaded causes of action. McIntyre, 50
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S.W.3d at 685; Wilson v. Korthauer, 21 S.W.3d 573, 578 (Tex.App.--Houston [14th Dist.] 2000,
pet. denied).
Section 541.003 of the Insurance Code provides that a person may not engage in a trade
practice that is defined in Chapter 541 as an unfair method of competition or an unfair or
deceptive act or practice in the business of insurance. TEX.INS.CODE ANN. § 541.003.
Section 541.051(1) prohibits certain types of misrepresentations regarding insurance policies that
have been issued or which are to be issued. TEX.INS.CODE ANN. § 541.051(1). Subsection
(1)(A) prohibits misrepresentation of the terms of an insurance policy while Subsection (1)(B)
prohibits a statement which misrepresents the benefits or advantages promised by an insurance
policy. TEX.INS.CODE ANN. § 541.051(1). Section 541.061 provides that it is an unfair or
deceptive act or practice in the business of insurance to misrepresent an insurance policy by: (1)
making an untrue statement of material fact; (2) failing to state a material fact necessary to make
other statements made not misleading, considering the circumstances under which the statements
were made; (3) making a statement in a manner that would mislead a reasonably prudent person
to a false conclusion of a material fact; (4) making a material misstatement of law; or (5) failing
to disclose a matter required by law to be disclosed, including failing to make a disclosure in
accordance with another provision of the Insurance Code. See TEX.INS.CODE ANN. § 541.061.
The common element in each of the sections Ramirez alleges Liberty violated is the
prohibition against misrepresenting a certain aspect of an insurance policy. Ramirez relied on
the same conduct to establish a violation of each of these statutes, namely, that Liberty
misrepresented that it had approved his claim and would pay his medical expenses. Liberty
moved for summary judgment on the ground that there is no evidence it misrepresented the terms
of the insurance policy or that it made a statement that Ramirez’s medical expenses would be
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paid under the terms of the insurance policy. Given that making a misrepresentation is a
common element in the claims and Liberty moved for summary judgment on this common
element, we find that Liberty’s summary judgment motion directed at the alleged violation of
Section 541.051(1)(A) was sufficiently broad to reach the alleged violations of Sections 541.003,
541.051(1)(B), and 541.061. Consequently, the trial court did not grant more relief than was
requested in Liberty’s motion for summary judgment. See McIntyre, 50 S.W.3d at 684-85;
Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 437 (Tex.App.--Houston [14th Dist.] 1999, no
pet.).
We turn now to the merits of the issue. Ramirez’s summary judgment evidence includes
his own affidavit and correspondence from Liberty to Ramirez. In his affidavit, Ramirez stated
that Liberty’s claims manager, Alma Gomez, told him that Liberty had approved his claim and
would pay for his chiropractic treatment. Based on this representation, Ramirez asserts he began
chiropractic treatment and Liberty subsequently refused to pay his medical bills when his
chiropractor submitted them. Ramirez also attached three letters sent to him by Liberty: (1) a
letter from Gomez dated May 18, 2009 requesting him to complete a medical authorization form
and provide more information about his injuries and treatment; (2) a letter dated May 29, 2009
from Claire Russell, a senior claims representative, informing Ramirez that its appraiser had
been unsuccessful in contacting Ramirez to arrange to inspect the damages to the vehicle and
advising Ramirez that Liberty would not consider his claim for damages until the inspection had
been completed; and (3) a letter dated November 3, 2010 from Gomez addressing Ramirez’s
demand that Liberty pay the amount he was requesting on the claim and offering to instead settle
the bodily injury claim for $4,250.
Ramirez’s summary judgment evidence shows a Liberty representative made a statement
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regarding his claim, but he did not provide any evidence that the statement misrepresents the
benefits or advantages promised by the insurance policy. Consequently, the trial court properly
granted summary judgment with respect to the violation of Section 541.051(1)(B). Similarly,
Ramirez did not present any evidence that Liberty misrepresented an insurance policy by making
an untrue statement of material fact, by failing to state a material fact necessary to make other
statements not misleading, by making a statement in a manner that would mislead a reasonably
prudent person to a false conclusion of a material fact, or by making a material misstatement of
law. Thus, we conclude that the trial court did not err by granting summary judgment with
respect to the claimed violation of Section 541.061(1)-(4).
Negligent Misrepresentation
Ramirez’s suit also included a claim for negligent misrepresentation. The elements of a
cause of action for negligent misrepresentation are: (1) a representation is made by a defendant
in the course of his business, or in a transaction in which he has a pecuniary interest; (2) the
defendant supplies 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 suffers pecuniary loss by justifiably relying on the
representation. Federal Land Bank Association v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991);
Tukua Investments, LLC v. Spenst, 413 S.W.3d 786, 802 (Tex.App.--El Paso 2013, pet. denied).
Liberty moved for summary judgment on the ground there is no evidence it supplied false
information to Ramirez or that any information was supplied for the guidance of Ramirez in his
business. The evidence attached to Ramirez’s summary judgment response constitutes some
evidence that a Liberty representative discussed the claim with Ramirez, but it does not show
that any false statements were made. Further, Ramirez did not present more than a scintilla of
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evidence that Liberty provided any information for Ramirez’s guidance in his business. The trial
court did not err by granting summary judgment on the negligent misrepresentation claim. We
overrule Issues One and Two and affirm the judgment of the trial court.
December 1, 2014
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Rivera, J., not participating)
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