Affirmed and Majority and Concurring =
Opinions=20
filed January 15, 2008.
In The
Fourteenth=20
Court of Appeals
_______________
NO. 14-06-00248-CV
_______________
LARRY JUSTICE, BETH =
JUSTICE,
and KAREN JUSTICE, =
Appellants
V.
STATE FARM LLOYDS =
INSURANCE
COMPANY. and FTI/SEA CONSULTING, =
Appellees
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
&=
nbsp; &n=
bsp; &nb=
sp; =20
=
&=
nbsp;
On Appeal from the 127th District=20
Court
Harris County, Texas
Trial Court Cause No. =
02-22646
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =20
M A J O R=20
I T Y O P I N I O N
In this insurance =
coverage=20
dispute, Larry Justice, Beth Justice, and Karen Justice =
(Athe =
Justices@) appeal a =
take-nothing summary=20
judgment entered in favor of State Farm Lloyds Insurance Company=20
(AState =
Farm@) and FTI/SEA =
Consulting=20
(AFTI@) on the grounds that =
their=20
summary judgment evidence raised fact issues on their claims =
against State=20
Farm and FTI. We affirm.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =20
Background
A tree fell on the=20
Justices=3D house in 2000, the =
Justices=20
made a claim under their State Farm homeowner=3Ds insurance policy =
(the=20
Apolicy@), and State Farm =
paid the=20
claim. In 2001, the Justices discovered mold in the walls of =
their=20
house and reported the claim to State Farm. State Farm sent =
the=20
Justices a reservation of rights letter, hired FTI to conduct an=20
industrial hygiene evaluation, and paid the Justices over $137,000 =
for=20
remediation of their home, alternative living expenses, and =
cleaning costs=20
on this claim. Thereafter, the Justices filed suit against =
State=20
Farm and FTI for additional mold damage. State Farm =
and FTI=20
each filed a motion for summary judgment, which the trial court =
granted.=20
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =20
Standard of Review
A traditional summary =
judgment=20
may be granted if the motion and summary judgment evidence show =
that there=20
is no genuine issue of material fact and the moving party is =
entitled to=20
judgment as a matter of law. Tex. R. Civ. P. 166a(c). A =
no-evidence=20
motion for summary judgment must be granted unless the nonmovant =
produces=20
summary judgment evidence raising a genuine issue of material fact =
on each=20
essential element of the claim for which the motion states there =
is no=20
evidence. Id. 166a(I).
In reviewing a =
summary=20
judgment, we review the entire record in the light most favorable =
to the=20
nonmovant, indulging every reasonable inference and resolving any =
doubts=20
against the motion. Yancy v. United Surgical Partners=20
Int=3Dl, =
Inc., 236 S.W.3d 778, 782 =
(Tex.=20
2007). Where, as here, the trial court does not specify on =
which=20
grounds the summary judgment is based, the appealing party must =
show that=20
it is error to base it on any ground asserted in the motion. =
Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.=20
1996).
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =20
State Farm
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =20
Breach of Contract Claim
State Farm moved for =
summary=20
judgment against the Justices=3D claim for breach of =
contract=20
on the ground, among others, that this claim was barred by the =
mold=20
exclusion in the policy (the Amold =
exclusion@). See, =
e.g., Fiess v.=20
State Farm Lloyds, 202 S.W.3d 744 (Tex. 2006). The =
Justices=20
contend that the mold exclusion is somehow overcome by a provision =
of the=20
State Farm Adjuster=3Ds Guide, purportedly =
stating=20
that if the original claim is covered, such as the damage from a =
wind=20
blown tree, then any loss that proximately results is therefore =
covered. =20
However, the Justices=3D brief provides no =
legal=20
authority =
suggesting that a provision of the Adjusters Guide could be =
controlling,=20
relevant, or even admissible concerning the meaning or scope of =
coverage=20
of the policy. Nor=20
does it indicate how such a provision, even if applicable, could =
overcome=20
an express exclusion in the policy. Therefore, this =
contention=20
affords no basis for relief, and the Justices=3D challenge to the =
summary=20
judgment against their breach of contract claim is =
overruled.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =20
Extra-Contractual Claims
State Farm moved for =
summary=20
judgment against the Justices=3D extracontractual =
claims on the=20
ground, among others, that the absence of policy coverage over a =
claim (as=20
we concluded in the preceding section) generally precludes =
liability for=20
common law and statutory bad faith claims. See, e.g., =
Progressive=20
County Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 922 (Tex. =
2005). =20
Because the Justices=3D brief fails to =
address this=20
ground, we have no basis to conclude that the trial court erred in =
sustaining it, and the Justices=3D challenge to the =
summary=20
judgment against their extracontractual claims is =
overruled.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =20
Negligence
The Justices alleged =
that: (1)=20
State Farm was negligent in failing to identify a part of their =
house that=20
had been damaged by the tree; and (2) water from subsequent heavy =
rains=20
entered the house through this damaged area, causing additional =
mold=20
damage. State Farm moved for summary judgment against this=20
negligence claim on the ground that Texas law does not recognize a =
cause=20
of action for negligent claim handling. See, e.g., =
Higganbotham=20
v. State Farm Mut. Auto. Ins. Co., 103 F.2d 456, 460 =
(5th=20
Cir. 1997). The Justices=3D brief asserts that =
the holding=20
in Higganbotham does not apply to their claim because the =
adjuster=20
assumed a duty to determine water leaks and the origin of water=20
entry. However, their brief cites no legal authority or =
evidence=20
supporting the existence of such a duty or explaining how any such =
negligence would fall outside the scope of claim handling for =
which Texas=20
recognizes no negligence duty. Accordingly, this contention =
is=20
without merit, and we overrule the Justices=3D first issue, =
challenging the=20
summary judgment in favor of State Farm.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
=20
FTI
FTI was hired by =
State Farm to=20
perform an industrial hygiene test of the Justices=3D house to determine =
the extent=20
of any mold growth. As relevant to this appeal, the=20
Justices=3D sued FTI for =
negligence in=20
failing to initially detect some of the areas containing mold, =
causing=20
them to: (1) be without the use of their home and personal items =
stored=20
there; and (2) incur additional expense. FTI=20
moved for summary judgment on the grounds, among others, that =
there was no=20
evidence that FTI breached any duty it owed to the Justices or =
that any=20
breach by FTI proximately caused any of the damages claimed by the =
Justices.
The =
Justices=3D brief does not =
address what=20
legal basis establishes that FTI owed a negligence duty to them, =
and=20
agents of insurance companies generally have no duty to insureds =
for=20
negligence in investigating claims. In=20
addition, to the extent that FTI was hired by State Farm to =
identify mold=20
damage that could be covered by the policy, the Justices =
summary=20
judgment response and brief on appeal do not explain how any =
negligence by=20
FTI in failing to initially locate the full extent of the mold in =
their=20
house could have caused them damage if the mold was not covered by =
the=20
policy in any event, as we have concluded in the preceding =
section. =20
Because the Justices=3D second issue thus =
affords no=20
basis for relief, it is overruled, and the judgment of the trial =
court is=20
affirmed.
/s/ =20
Richard H. Edelman
Senior Justice
Judgment rendered and =
Majority=20
and Concurring Opinions filed January 15, 2008.
Panel consists of =
Justices=20
Yates, Frost, and Edelman. =
(Frost,=20
J., concurring).
=20
The Justices do not assert coverage under any Aensuing loss@ clause of the policy.
=20
See Tex. R. App. P. 38.1 (h) (requiring =
appellant=3Ds brief to contain citations to legal =
authority in=20
support of arguments).
=20
The Justices=3D challenges to the summary judgment =
based on State=20
Farm=3Ds failure to specifically deny coverage =
and=20
estoppel arising from State Farm=3Ds payments of some of their claims are =
also=20
unsupported by authority.
=20
Because the Justices do not assign error to the summary judgment =
against=20
their deceptive trade practice claims against FTI, we do not =
address those=20
claims.
=20
See Nitzsche v. Teams of Texas, No. 14-07-00876-CV, 2007 WL =
925803=20
at *2 (Tex. App.CHouston [14th Dist.] March =
19, 2007, no=20
pet.); Dagley v. Haag Engineering Co., 18 S.W.3d 787, 791 =
(Tex.=20
App.CHouston [14th Dist. 2000, no =
pet.);=20
see also Natividad v. Alexsis, Inc., 875 S.W.2d 695, 698 =
(Tex.=20
1994).
=20
Senior Justice Richard H. Edelman, sitting by=20
=
assignment. |