Cash Rent-A-Car v. Old American County Mutual Fire Ins. Co.
(Tex.App.- Houston [1st Dist.] Jan. 14, 2010)(Jennings)(conversion, trespass, fraud, negligent
misrepresentation, breach of contract and bailment agreement, violations of the Texas Theft Liability Act,
the
Texas Deceptive Trade Practices Act (“DTPA”),   and the Texas Insurance Code)
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.
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by
Justice Jennings  
Before Justices Jennings, Higley and Sharp   
01-09-00021-CV Cash Rent-A-Car, Inc. v. Old American County Mutual Fire Insurance Company, and
Affirmative Insurance Services, Inc.   
Appeal from 270th District Court of Harris County
Trial Court Judge:
Hon. Brent Gamble

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, Footnote the Texas Deceptive Trade Practices Act (“DTPA”), [Footnote] and the Texas Insurance
Code. [Footnote] 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 Footnote 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. Footnote 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.” Footnote

   Old American and Affirmative attached to their summary judgment motion Footnote 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; Footnote (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.
Footnote 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. Footnote 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. Footnote

DTPA and Insurance Code

   In its petition, RAC did not articulate the basis for its claims under the DTPA and Insurance Code.
Footnote 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. Footnote 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. Footnote 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.