On Appeal from the 281st District Court

, Harris County, Texas, Trial Court Cause No. 2011–64653, Sylvia Matthews, Judge
Robert Primo, Houston, TX, pro se. Stephen Venable, Houston, TX, for Appellee.
Panel consists of Justices McCally, Busby, and Donovan

MAJORITY OPINION

J. Brett Busby Justice

Appellant Robert Primo appeals a summary judgment in favor of appellee Great American Insurance Company in his suit to recover under an insurance policy issued by Great American. Primo contends summary judgment was improper because (1) his claim does not fall within the scope of the policy's “Insured v. Insured” exclusion upon which Great American relied in the trial court; and (2) although he prevailed in seeking indemnity for some of his costs in another lawsuit against a third party, because his petition in this lawsuit alleged injuries and damages that were neither litigated in nor essential to the judgment in the lawsuit in which he prevailed, collateral estoppel and the one satisfaction rule do not preclude his seeking further damages from Great American.

We hold that Great American did not establish as a matter of law that Primo's claim fell within the exclusion from coverage. We further hold that although collateral estoppel applied to preclude relitigation of the amount of Primo's reasonable and necessary attorney's fees in the prior lawsuit, Great American has not establishedas a matter of law that Primo has been fully satisfied for the damages he seeks in the current lawsuit. We therefore reverse the summary judgment and remand for further proceedings.

Background

There are many different lawsuits that set the stage for the case before us. The principal protagonists in this series of suits include Briar Green Condominium Association, its former officer and director Primo, and Briar Green's insurance companies.

Great American issued Briar Green Condominiums a Non-Profit Organization Executive Protection and Employment Practices Liability Insurance Policy (“E & O policy”) covering “any proceeding initiated against an insured, [] including any appeals therefrom.” This policy, which is at issue here, excluded coverage for “any Claim made against any Insured ... by, or for the benefit of, or at the behest of the Organization [] or a Subsidiary or any entity which controls, is controlled by, or is under common control with the Organization or a Subsidiary or any person or entity which succeeds to the interest of the Organization or a Subsidiary.”

In 2008, disputes arose regarding checks that Primo—who was serving as a director and the Treasurer of Briar Green Condominium Association at the time—had written himself from Briar Green's account. Briar Green's board of directors filed a claim for a final total of $115,558.77 on a fidelity bond Travelers Casualty and Surety had issued it, as well as a complaint with the Houston Police Department. Travelers paid Briar Green the $115,558.77, in exchange for which Briar Green assigned Travelers all of its claims and rights against Primo.

In July 2009, Travelers filed suit against Primo. Travelers alleged in its petition that Primo “used [Briar Green's] money for personal, self-benefitting expenses by making withdrawals from the ATM card [and] writing checks to himself and his family members;” that “[p]ursuant to the terms and conditions of the Bond, TRAVELERS paid BRIAR the sum of $115,558.77 for the loss incurred by BRIAR;” and that “[a]s the bonding company for BRIAR, TRAVELERS was assigned all rights to this matter, including recovery rights of the amount paid on the Bond.” Travelers pled causes of action for fraud and fraud in the inducement, conversion, unjust enrichment, indemnity for payment on bond, theft of property, and breach of fiduciary duty in its petition. Travelers alleged as part of one of those causes of action—its indemnity for payment on bond theory—that it had “stepped into the shoes of the Association.”

Primo retained counsel for the lawsuit and filed third-party claims against Briar Green for contractual indemnity for his defense costs in the suit. Travelers nonsuited its claims against Primo and the trial court dismissed Travelers' claims on November 5, 2010. Primo eventually non-suited his third-party claims, resulting in a final judgment in March 2011.

Prior to the trial court's dismissal of Travelers' claims, in October 2010, Primo requested that Great American provide his costs of defense in the Travelers lawsuit under its E & O policy with Briar Green, contending he was covered under the policy as a former director and officer. Great American contended in a June 3, 2011 letter that there were “coverage issues pertaining to the reporting of the matter by Dr. Primo” but expressed a willingness to reimburse his reasonable and necessary costs of defense. Great American offered to reimburse Primo the full amount owed his first attorney, as reflected on submitted invoices. Great American also offered to reimburse Primo for $162,000 of the $201,631.77 reflected on the invoices from his subsequent counsel, citing a clause in the policy that precludes an insured from incurring costs of defense in connection with any claim without the insurer's prior approval. Great American asserted that it was continuing “to reserve all of its rights and defenses under the Policy.”

In June 2011, Primo filed a suit for contractual indemnity against Briar Green, alleging it had breached its bylaws by failing to indemnify him for costs incurred in defending the Travelers action. Great American assumed Briar Green's defense and, after invoking settlement procedures under Chapter 42 of the Texas Civil Practice and Remedies Code, offered Primo $300,000 to settle his claims. Primo rejected the offer and his damages were submitted to the jury for determination.

The jury in the Briar Green suit determined that a reasonable fee for the necessary services of Primo's attorneys in his suit against Briar Green was $55,124.84. The jury also determined that $102,598.97 “would compensate Robert Primo for his losses, costs, and expenses, including counsel fees, reasonably incurred by him in connection with any action, suit, or proceeding to which he was made a party by reason of his being or having been a manager or officer of Briar Green.” The trial court reduced the awards based on the rejected settlement offer and signed a final judgment awarding Primo damages in the amount of $70,853.99 and attorney's fees in the amount of $29,340.90.

During the pendency of the Briar Green suit, Primo sued Great American in the cause before us, alleging unfair settlement practices in violation of the Texas Insurance Code, breach of the duty of good faith and fair dealing, violation of the Prompt Payment of Claims Act, breach of contract, fraud, and negligent misrepresentation. Primo sought “reimbursement for the defense costs and attorney's fees in the Travelers Suit,” as well as exemplary damages and interest.

Primo alleged that as a direct result of a misrepresentation by a Great American employee, he was dissuaded to provide a written notice of claim to Great American, which caused him “to bear with his own savings the full cost of the extensive litigation expenses in the Travelers Suit.” Primo alleged that discovering the existence of the coverage that should have prevented him from bearing those costs in advance of judgment “took an extraordinary effort and expense.”

After Primo obtained a final judgment in the Briar Green suit, Great American filed a traditional motion for summary judgment in this case, presenting two alternative grounds. First, according to Great American, Primo's suit was barred by the combination of collateral estoppel and the one satisfaction rule because he had already collected his defense costs and attorney's fees incurred in the Travelers suit as determined and awarded in the Briar Green suit.

Second, Great American alternatively contended it did not owe Primo a duty to defend him in the Travelers suit because that suit fell within the E & O policy's exclusion for claims between insured parties. Great American asserted the policy “excluded claims against any Insured by Briar Green and/or any entity which succeeded to Briar Green's interest, i.e., Travelers.” In Great American's view, because Travelers alleged in its petition that it had been “assigned all rights” against Primo by Briar Green, all of Travelers' claims were brought as a successor to the interests of Briar Green.

Following a hearing held on March 28, 2013, the trial court granted Great American's motion for summary judgment and signed a take-nothing judgment on Primo's claims. The court's judgment stated that it had considered Great American's motion for summary judgment “and the supplement, response and reply thereto.” The judgment stated that it was disposing of all matters pending before the court in the case. This appeal followed.

Analysis

Great American presented two grounds for traditional summary judgment in the trial court, and Primo's eight issues on appeal attack both grounds. We examine each ground in turn.

I. Standard of review

We review a trial court's grant of summary judgment de novo. Lyda Swinerton Builders, Inc. v. Cathay Bank, 409 S.W.3d 221, 229 (Tex.App.–Houston [14th Dist.] 2013, pet. filed). Summary judgment for a defendant is proper “when the defendant negates at least one element of each of the plaintiff's theories of recovery ... or pleads and conclusively establishes each element of an affirmative defense.” Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997) (internal citation omitted).

In a traditional motion for summary judgment, the defendant has the initial burden of “demonstrat[ing] that no genuine issues of material fact exist and that he is entitled to judgment as a matter of law.” Lyda Swinerton Builders, Inc., 409 S.W.3d at 229. The burden then shifts to the non-movant plaintiff to produce evidence sufficient to raise a fact issue. Id. In reviewing a summary judgment, “we take as true all evidence favorable to the non[-]movant and we indulge every reasonable inference and resolve any doubts in the non[-]movant's favor.” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004). “Evidence is conclusive only if reasonable people could not differ in their conclusions.” Brown v. Hearthwood II Owners Ass'n Inc., 201 S.W.3d 153, 159 (Tex.App.–Houston [14th Dist.] 2006, pet. denied).

When the trial court does not specify the grounds on which it relied for its ruling, we will affirm the summary judgment if any grounds presented in the motion are meritorious. Olmstead v. Napoli, 383 S.W.3d 650, 652 (Tex.App.–Houston [14th Dist.] 2012, no pet.). As part of our review, we may not “read between the lines or infer from the pleadings or evidence any grounds for summary judgment other than those expressly set forth before the trial court.” Id. “A summary judgment must stand or fall on its own merits, and the non[-]movant's failure to except or respond cannot supply by default the grounds for summary judgment or the summary judgment proof necessary to establish the movant's right.” Brown, 201 S.W.3d at 159.

II. Great American failed to prove as a matter of law that Primo's defense costs incurred in the Travelers lawsuit were excluded from coverage under the E & O policy.

In his first issue, Primo attacks Great American's summary judgment ground that an exception to coverage applied. We conclude that Great American failed to prove as a matter of law that the E & O policy unambiguously excluded coverage for the claim brought by Briar Green's assignee, Travelers, by showing that the claim was made “by, or for the benefit of, or at the behest of .... any person or entity which succeeds to the interest” of Briar Green. Because the “Insured v. Insured” exclusion was Great American's sole ground for denying that coverage existed in its motion for summary judgment, we hold Great American failed to carry its burden to prove as a matter of law that the E & O policy did not provide coverage for Primo's costs of defense in the Travelers lawsuit.

A. The existence of coverage under the E & O policy is an essential element of each of Primo's claims against Great American.

Primo's second amended petition alleged that (1) Great American violated Texas Insurance Code sections 541.003 and 541.061 by making affirmative untrue statements of material fact relating to coverage in the Travelers suit; (2) Great American breached its duty of good faith and fair dealing; (3) Great American violated the Prompt Payment of Claims Act by delaying payment of his claim and not timely accepting or rejecting the claim; (4) Great American breached its contract, the insurance policy; and (5) Great American's employee committed fraud and made negligent misrepresentations by voluntarily producing a false and misleading document to Primo.

An essential element of each of these causes of action is that coverage existed for Primo's claim seeking defense costs in the Travelers lawsuit or that his reliance on the alleged misrepresentations caused his damages. Regardless of whether Great American violated Insurance Code provisions, the private action under the Insurance Code for misrepresentations requires that the plaintiff's alleged damages be caused by the other person engaging in the act or practice. Tex. Ins.Code Ann. § 541.151 (West 2009). But if no coverage existed for Primo's claims for the costs of his defense in the Travelers lawsuit, then Great American's alleged misrepresentations as to coverage and delays in accepting or denying coverage would not have caused Primo to incur the costs of his defense. SeeState Farm Lloyds v. Page, 315 S.W.3d 525, 532 (Tex.2010) (“When the issue of coverage is resolved in the insurer's favor, extra-contractualclaims do not survive.”). Similarly, although the Prompt Payment of Claims Act is intended to expedite rejection of a claim as well as acceptance, liability for a violation is imposed on “an insurer that is liable for a claim under an insurance policy. ” Tex. Ins.Code Ann. § 542.060(a) (West 2009) (emphasis added); see alsoProgressive Cnty. Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 922 (Tex.2005) (per curiam) (holding lack of coverage negates liability for violating requirements for prompt payment of claims). A claim for breach of contract based on Great American's denial of coverage would also require coverage for the claim. SeeAguiar v. Segal, 167 S.W.3d 443, 450 (Tex.App.–Houston [14th Dist.] 2005, pet. denied) (listing “the existence of a valid contract” as an essential element of a breach of contract claim).

For these reasons, if Great American's motion for summary judgment conclusively negated the existence of coverage for the Travelers suit, Great American negated an essential element of each of Primo's claims and summary judgment in its favor was proper. SeeSci. Spectrum, Inc., 941 S.W.2d at 911. We therefore turn to the question whether Great American conclusively negated coverage.

B. We review the pleadings in the Travelers suit to determine whether Travelers alleged facts unambiguously within the scope of the E & O policy's coverage.

Relying on the eight corners rule, Great American contended in its motion for summary judgment that it had negated the existence of coverage because Travelers filed suit as Briar Green's assignee, and the suit therefore fell within the scope of the E & O policy's “Insured v. Insured” exclusion.

In determining the scope of the policy's coverage, “[o]ur primary goal is to determine the contracting parties' intent through the policy's written language.” Page, 315 S.W.3d at 527. We examine the entire agreement and seek to harmonize and give effect to all provisions of the policy so that none are rendered meaningless, useless, or inexplicable. Gastar Exploration Ltd. v. U.S. Specialty Ins. Co., 412 S.W.3d 577, 583 (Tex.App.–Houston [14th Dist.] 2013, pet. filed). Terms are given their ordinary and generally-accepted meaning unless the policy shows the words were meant in a technical or different sense. Id.

“Only if an insurance policy remains ambiguous despite these canons of interpretation should courts construe its language against the insurer in a manner that favors coverage....” State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995). A policy provision is considered ambiguous if it is subject to two or more reasonable interpretations. Page, 315 S.W.3d at 527. In such a case, we “must adopt the construction of an exclusionary clause urged by the insured as long as that construction is not unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties' intent.” Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Hudson Energy Co., Inc., 811 S.W.2d 552, 555 (Tex.1991); Gastar Exploration Ltd., 412 S.W.3d at 583. Thus, the contracting parties' “intent to exclude coverage must be expressed in clear and unambiguous language.” Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660, 668 (Tex.2008) (internal quotation marks omitted).

Under the eight corners rule, the insurer's duties to defend the insured are “determined by the claims alleged in the [underlying suit's] petition and the coverage provided in the policy.” Pine Oak Builders, Inc. v. Great Am. Lloyds Ins. Co., 279 S.W.3d 650, 654 (Tex.2009). The insurer's duty to defend depends on the presence in the petition of factual allegations that fall within the scope of the policy's coverage. Id. We review the underlying pleadings with a “focus on the factual allegations that show the origin of the damages rather than on the legal theories alleged” to determine whether the claims fall within the scope of the policy's coverage. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997) (per curiam); Huffhines v. State Farm Lloyds, 167 S.W.3d 493, 497 (Tex.App.–Houston [14th Dist.] 2005, no pet.).

The existence of coverage under the E & O policy in a suit against an “insured person” such as Primo therefore depends upon whether the petition states claims within the exclusion for suits “made against any Insured ... by, or for the benefit of, or at the behest of ... any person or entity which succeeds to the interest of [Briar Green].” SeePine Oak Builders, Inc., 279 S.W.3d at 654 (holding insurer's duty to defend is determined by allegations in the petition).

C. Great American failed to prove as a matter of law that Travelers succeeded to the interest of Briar Green.

In its motion for summary judgment, Great American alleged that the Travelers lawsuit fell within the exclusion because “Travelers' petition only alleged facts excluded under the Policy.” Although the “Insured v. Insured” exclusion itself does not address whether the person or entity must succeed to Briar Green's entire interest, its interest under the E & O policy, or solely its interest in the initiated proceeding, Great American contended Travelers was an entity that had unambiguously “succeed[ed] to the interest of [Briar Green].”

According to Great American's summary judgment motion, because the parties do not dispute that Travelers brought suit as Briar Green's assignee, “there should be no dispute that all of Travelers' claims against Primo were brought as a successor to the interests of Briar Green's rights against Primo.” We disagree. Strictly construing the exception against the insurer, as we must, we hold that evidence of Briar Green's assignment of its claim against Primo to Travelers was insufficient to prove as a matter of law that Travelers was a successor to the interest of Briar Green.

We addressed the definition of successor in Augusta Court Co–Owners' Ass'n v. Levin, Roth & Kassner, 971 S.W.2d 119 (Tex.App.–Houston [14th Dist.] 1998, pet. denied). There, an assignee alleged it acquired rights against the surety of a performance bond by virtue of the assignment of the bond, although “the bond [did] not expressly authorize a right of action by an assignee of the named owner.” Id. at 123. Instead, the bond provided that “[n]o right of action shall accrue on this bond to or for the use of any person or corporation other than the Owner named herein or the ... successors of Owner.” Id. We determined that under the definition articulated in Thompson v. North Texas National Bank, 37 S.W.2d 735, 739 (Tex. Comm'n App.1931, holding approved), a “successor” is “one that succeeds or follows; one who takes the place which another has left, and sustains the like part or character.” Augusta Court Co–Owners' Ass'n, 971 S.W.2d at 126 (internal quotation marks omitted). Under this definition, we concluded, the assignee was not a successor because succession occurs when a party “not only takes another's place, but also maintains the character of the place taken. It contemplates an assumption of both rights and obligations or ‘stepping into the shoes' of another.” Id. (emphasis added). Other courts agree that a successor in interest to a corporate entity like Briar Green “does not ordinarily mean an assignee.” Sitaram v. Aetna U.S. Healthcare of N. Tex., Inc., 152 S.W.3d 817, 826 & n. 7 (Tex.App.–Texarkana 2004, no pet.) (citing cases).

Here, Great American has not shown as a matter of law that the assignment upon which it relies creates a successor to Briar Green's interest under the Thompson definition, because Great American has not shown that Travelers assumed Briar Green's obligations as well as its claims and rights. SeeAugusta Court Co–Owners' Ass'n, 971 S.W.2d at 126. For example, Briar Green's bylaws required it to indemnify Primo to a certain extent, but it does not appear from the record that Primo could have asserted his claim for indemnification under the bylaws against Travelers.

Great American also has failed to identify any definition of “succeeds to the interest” in the policy itself that unambiguously includes assignees. In Augusta, we concluded not only that the assignee was not a successor under the Thompson definition, but that had the original parties to the performance bond intended mere assigns of the owner to have a right of action on the bond, they would have included the term “assigns” in the right of action clause. Id. at 124–25.

Here, neither the exclusion itself nor the E & O policy's definitions section designate Briar Green's assignees as persons or entities that “succeed[ ] to the interest of the Organization or a Subsidiary.” Moreover, Briar Green's E & O policy contains a separate section addressing “Assignment,” and that section does not provide that an assignee of Briar Green “succeeds to the interest” of Briar Green. In short, the parties used the concept of assignment when they meant to do so, and they did not use it in the “Insured v. Insured” exclusion.

The dissenting opinion points to a different section of the policy that limits coverage to wrongful acts before the effective date of any “Transaction,” which occurs when “another organization acquires substantially all of the assets of the Organization [Briar Green], or the Organization merges into another organization, or the Organization ceases to qualify as a not-for-profit organization under the Internal Revenue Code.” According to our dissenting colleague, this language shows that “succeeds to the interest” means something different from these other sorts of transactions. Post, at 5–6.

But the function of the Transaction section on which the dissent relies is to determine when the nature of the insured organization changes sufficiently that the insurer should have an opportunity to reevaluate its risk. We see no reason why it would matter to the parties to this insurance policy that a new organization participating in one of these transactions with Briar Green might or might not be considered a successor to the interest of Briar Green, depending on the form of the transaction. Thus, we do not view the particular transactions described by the parties in this section as informing the meaning of the more general concept of succeeding to the interest, which is used for another purpose in a different part of the policy.

Yet even if the Transaction section provided relevant contextual clues, those clues would support the conclusion that one does not succeed to the interest of another by assignment. Here, Travelers only “acquire[d] ... assets of [Briar Green]” in the form of Briar Green's claims against Primo. Thus, by the dissent's logic that succeeding to the interest must mean something different, Travelers did not succeed to the interest of Briar Green. In any event, if the dissent were correct that the Transaction section weighs in favor of equating successor with assignee, this clue would not erase the contrary indications discussed above. Thus, it would not eliminate any ambiguity and entitle Great American to summary judgment. Great American also contends that because “Briar Green could not have brought a covered [c]laim against Primo, Briar Green could not have conveyed a covered claim against Primo to Travelers.” But this contention misses the key point that Travelers brought the claim at issue, not Briar Green. Thus, the question under the plain language of the particular policy in question is whether the assignment was sufficient to make Travelers “succe[ssor] to the interest” of Briar Green, not whether a claim brought by Briar Green itself would have been excluded.

Moreover, the cases on which Great American relies for this contention address the defenses available against an assignee and thus have no application here. Great American cites the rule that generally “an assignee or subrogee walks in the shoes of his assignor.” Burns v. Bishop, 48 S.W.3d 459, 466 (Tex.App.–Houston [14th Dist.] 2001, no pet.). But cf.Augusta Court Co–Owners' Ass'n, 971 S.W.2d at 126 (equating “stepping into the shoes of another” with “an assumption of both rights and obligations”). Under this rule, an assignee “receives the full rights of the assignor.” Jackson v. Thweatt, 883 S.W.2d 171, 174 (Tex.1994) (emphasis added). The assignee takes the rights, however, “subject to all defenses which the opposing party might be able to assert against his assignor.” Burns, 48 S.W.3d at 466 (emphasis added).

Thus, in Jackson v. Thweatt, although the state-law statute of limitations on promissory notes would have barred the lending banks' suits on the notes, the Federal Deposit Insurance Company (“FDIC”) had acquired the notes as receiver and sold them to other parties. The Supreme Court of Texas held that these successors in interest to the FDIC could take advantage of a federal statute that extended the limitations period for the FDIC. 883 S.W.2d at 173–75. The Court explained that the FDIC, as possessor of the right, could transfer the extension incident to the asset to which it relates. Id. at 175. Because the maker of the promissory note would not have been able to assert the state-law statute of limitations as a defense against the FDIC, the court held he could not assert the expiration of the limitations period against the FDIC's assignee.Id. at 173–75.

Here, in contrast, the “Insured v. Insured” exclusion is not a defense that Primo is asserting against Travelers as assignee of Briar Green. The ability to invoke the exclusion to deny coverage under the policy is a right that has always been held by Great American and has not been assigned. The cases on which Great American relies establish that an assignee (here, Travelers) takes its rights subject to all defenses the opposing party (Primo) might be able to assert against its assignor (Briar Green). E.g.Burns, 48 S.W.3d at 466. The cases do not address whether an assignment affects the defenses that a third party (Great American) could assert against the party that previously opposed the assignee (Primo) even though neither party participated in the assignment.

Moreover, the lack of coverage under the E & O policy for a claim brought by Briar Green directly against an officer like Primo does not arise from Briar Green's rights under the policy, but rather the officer's lack of rights against Great American under the policy when he is sued by certain parties. For example, it is difficult to imagine a scenario in which, absent the assignment to Travelers, Briar Green could rely on the “Insured v. Insured” exclusion to prevent Great American from assuming Primo's defense if Great American had chosen to provide one. Because Briar Green was not the possessor of the right to deny coverage, we fail to see how Briar Green could have transferred the lack of insurance coverage as a right incident to its claim against Primo. Cf.Jackson, 883 S.W.2d at 175 (holding the FDIC, as the possessor of the right to a statutorily provided extension of the limitations period, could transfer the right incident to the asset to which it relates).

Finally, Great American contends for the first time on appeal that Travelers' assignee claims “are the [e]quivalent of [c]laims [m]ade [b]y, or for the [b]enefit of, or at the [b]ehest of Briar Green, and are [t]hus [e]xcluded.” Our dissenting colleague makes Briar Green's new contention the lead argument in her opinion, concluding that “the suit Travelers filed against Primo was a suit by Briar Green.” Post, at 4. Because this ground was not presented in Great American's motion for summary judgment, however, it cannot support the trial court's ruling.SeeOlmstead, 383 S.W.3d at 652.

Moreover, the authorities on which the dissenting opinion relies confirm that the unique language of this particular “Insured v. Insured” exclusion does not unambiguously encompass assignments. As our dissenting colleague points out, a typical exclusion states simply that the insurer is not liable for claims made against an officer, director, or other insured by or on behalf of another insured or the company. Post, at 2. She notes that some courts and commentators have concluded such language reaches claims made by assignees of the company. Id. at 3 & n.2. For example, one court held that a clause excluding only claims made against a director or officer “by any Insured or the Company” applied to claims made against a director and officer by the company's assignee. Niemuller v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., No. 92 Civ. 0070(SS), 1993 WL 546678, at *3 (S.D.N.Y. Dec. 30, 1993).

But the language of the exclusion here is different. Great American's policy excludes coverage for claims “made against any Insured ... by, or for the benefit of, or at the behest of [1] [Briar Green] ... or [2] any person or entity which succeeds to the interest of [Briar Green]” (emphasis added). The second part of this exclusion, which is absent from the typical exclusion, informs how far the first part can reasonably be read to extend. In particular, if the first part were interpreted broadly enough to exclude a claim by an assignee of Briar Green's right of action against an insured, then it would necessarily also exclude claims by those succeeding to Briar Green's rights and obligations regarding that insured. In that event, the second part of the exclusion—which reaches only this latter, narrower category of claims by successors to the interest of Briar Green—would become mere surplusage. That is not a reasonable interpretation of the exclusion. For these reasons, Great American has not shown as a matter of law that the E & O policy unambiguously excluded coverage for Primo's defense in the Travelers lawsuit because Travelers was Briar Green's assignee. We therefore sustain Primo's first issue.

III. Great American did not establish as a matter of law that all of Primo's claims are barred by the joint application of the collateral estoppel doctrine and one-satisfaction rule.

Great American's remaining ground for summary judgment was that Primo's suit is barred by the combination of collateral estoppel and the one satisfaction rule because he has already collected his defense costs and attorney's fees incurred in the Travelers suit as determined and awarded in the Briar Green suit. Primo contends in his seventh and eighth issues that collateral estoppel does not bar him from litigating the amount of reasonable and necessary attorney's fees incurred in the Travelers suit, and that he has not been fully satisfied for all of the damages he seeks in the current suit. We conclude that collateral estoppel applies, but we agree with Primo that Great American has not carried its burden to show full satisfaction as a matter of law. Accordingly, this ground also cannot support the trial court's summary judgment.

A. Great American established as a matter of law that collateral estoppel bars relitigation of the costs and expenses Primo incurred in the Travelers lawsuit.

The doctrine of collateral estoppel, also known as issue preclusion, “prevents relitigation of particular issues already resolved in a prior suit.” Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex.1992). The doctrine “serve[s] the vital functions of bringing litigation to an end, maintaining stability of court decisions, avoiding inconsistent results, and promoting judicial economy.” Calabrian Corp. v. Alliance Specialty Chems., Inc., 418 S.W.3d 154, 157–58 (Tex.App.–Houston [14th Dist.] 2013, no pet.).

Collateral estoppel is an affirmative defense and the party asserting it bears the burden of pleading and proving that “(1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action.” Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex.1994); In re H.E. Butt Grocery Co., 17 S.W.3d 360, 377 (Tex.App.–Houston [14th Dist.] 2000, orig. proceeding). “Whether collateral estoppel applies is a question of law for the court to decide.” James v. City of Houston, 138 S.W.3d 433, 437 (Tex.App.–Houston [14th Dist.] 2004, no pet.).

Here, Great American contended in its motion for summary judgment that Primo sought his attorney's fees and expenses for the Travelers suit in his lawsuit against Briar Green, and that in the course of the Briar Green suit the amount of those damages were fully and fairly litigated as a question essential to the judgment. In particular, the Briar Green jury found the amount of money that would “compensate Robert Primo for his losses, costs, and expenses, including counsel fees” in the Travelers lawsuit. The trial court used this finding in calculating its judgment, which was for a reduced amount based on Primo's rejection of a settlement offer.

In his response to the motion for summary judgment, Primo challenged whether the facts relevant to the claims he raises in this case had been fully and fairly litigated in the Briar Green lawsuit. The facts Primo identified as distinct are those pertaining to his allegations that Great American “misrepresented an active liability policy as expired in order to avoid performing on its contractual obligations” and did not timely accept, reject, or pay his claim for costs of defense in the Travelers lawsuit. Primo also contended that facts pertaining to the alleged policy misrepresentation and timely settlement of his claim were not essential to the adjudication of Briar Green's contractual indemnity under its bylaws.

Even if true, however, the facts regarding Great American's alleged misrepresentations and the timing of its settlement offer are independent of the facts establishing Primo's “losses, costs, and expenses, including counsel fees” reasonably incurred in the Travelers lawsuit. Whether Primo was entitled to have Great American pay for those “losses, costs, and expenses, including counsel fees” during the lawsuit, or only after he was victorious in the lawsuit, would not alter the amount of “losses, costs, and expenses, including counsel fees” he actually incurred.

That amount was therefore fully and fairly litigated in Primo's lawsuit against Briar Green, and as explained above it was an essential part of calculating the judgment. We hold collateral estoppel bars Primo from relitigating the Briar Green jury's determination that $102,598.97 would compensate him for his “losses, costs, and expenses, including counsel fees” reasonably incurred in the Travelers lawsuit. SeeSysco Food Servs., Inc., 890 S.W.2d at 801; In re H.E. Butt Grocery Co., 17 S.W.3d at 377. We therefore turn to the question whether the award in the Briar Green lawsuit has fully compensated Primo for the damages he alleged in the present case.

B. Great American has not established as a matter of law that setoffs under the one satisfaction rule would bar all of the damages Primo seeks in this lawsuit.

Great American contended in its motion for summary judgment that Primo's claims against Great American in this suit “are based on the same damages” Primo alleged and collected in his suit against Briar Green, and therefore the one satisfaction rule precludes a second collection of those damages. Great American's position hinges upon its assertion that the only damages sought by and available to Primo in the current lawsuit are his reasonable attorney's fees and expenses incurred in the Travelers suit.

As the movant for traditional summary judgment in the trial court, Great American had the burden to prove that there were no genuine issues of material fact that Primo's damages were the same in both lawsuits. We hold Great American has failed to carry that burden because it has not established that no genuine issues of material fact exist as to (1) whether Primo's attorney's fees in the Travelers lawsuits were the only actual damages resulting from the misconduct alleged in the current lawsuit, or (2) whether punitive damages and statutory penalties are potentially available to Primo.

“Under the one satisfaction rule, a plaintiff is entitled to only one recovery for any damages suffered.” Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex.2000). The rule applies when “defendants commit technically different acts that result in a single injury.” Id. “The rationale for this doctrine is that the plaintiff should not receive a windfall by recovering an amount in court that covers the plaintiff's entire damages” when he has already received partial compensation for the injury. First Title Co. of Waco v. Garrett, 860 S.W.2d 74, 78 (Tex.1993). Otherwise, the plaintiff would “be recovering an amount greater than the trier of fact has determined would fully compensate for the injury.” Id.

1. Great American failed to establish as a matter of law that Primo incurred no actual damages other than his attorney's fees in the Travelers lawsuit.

Although nothing in our record suggests that Great American filed special exceptions to Primo's allegations of damages, Great American contends that “Primo's only loss in the Travelers Suit was his defense costs.” As summary judgment evidence, Great American submitted a transcript of portions of Primo's testimony in the Briar Green lawsuit. In that transcript, Primo testifies to the attorney's fees he incurred in various suits, admits that he was suing Briar Green for indemnity for the attorney's fees in the Travelers lawsuit, and takes the position that he is “entitled to every single penny [he's] ever spent in connection with these lawsuits.” At no point in the transcript is Primo asked, nor does he say, whether the only damages he incurred were his attorney's fees in the Travelers suit.

To the contrary, Primo contends in his response to the motion for summary judgment that the damages incurred as a result of Great American's failure to provide his defense include the costs of his ongoing prosecution of legal malpractice claims against his former attorneys. According to Primo, the indemnity he received for his counsel's fees in the Travelers lawsuit is insufficient to compensate him for Great American's failure to provide a defense because that failure “transferred to [him] all the risks attached to selection of competent and diligent counsel.” Great American's summary judgment motion did not undertake to disprove Primo's entitlement to such damages as a matter of law.

Great American also contends that “Primo's recovery under the Policy ... is subject to the Policy's various terms, conditions and exclusions” and that the judgment in the Briar Green suit “entirely satisfies the maximum amount of liability claimed by Primo for his ‘Defense Costs' under the policy.’ ” (Emphasis added). This contention is inapposite because Primo has also alleged extra-contractual claims such as fraudulent misrepresentation and breach of the duty of good faith and fair dealing, under which Great American's liability could potentially exceed or differ from its liability under the E & O policy itself. For these reasons, Great American's position that the judgment in the Briar Green suit fully compensated Primo for the fees and expenses he incurred in the Travelers suit—even if correct —is insufficient to establish that no genuine issues of material fact exist regarding Primo's entitlement to other actual damages resulting from the claims alleged in this suit.

2. Great American failed to establish as a matter of law that Primo cannot prevail on a cause of action that would support statutory penalties or exemplary damages.

Primo also alleged that he is entitled to recover statutory penalties and exemplary damages. Where insurance coverage exists, the Texas Insurance Code provides for the trebling of a plaintiff s actual damages if the trier of fact finds that the defendant knowingly committed a proscribed act or practice. Tex. Ins.Code Ann. §§ 541.151, 541.152(b) (West Supp.2014). The Code also provides for damages in the amount of eighteen-percent interest per year for violations of the Prompt Payment of Claims Act. Tex. Ins.Code Ann. § 542.060.

In addition, exemplary damages may be awarded to a plaintiff who proves by clear and convincing evidence that the alleged harm results from fraud, malice, or gross negligence. Tex. Civ. Prac. & Rem.Code § 41.003 (West Supp.2014). Exemplary damages may not be recovered for even a “malicious, intentional, or capricious” breach of contract, however, “unless a distinct tort is alleged and proved.” Amoco Prod. Co. v. Alexander, 622 S.W.2d 563, 571 (Tex.1981). The Supreme Court of Texas has not excluded the possibility that an insurer may be liable in tort when its “actions or inactions ... [are] the producing cause of any damage separate and apart from those that would have resulted from a wrongful denial of the claim.” Provident Am. Ins. Co. v. Castaneda, 988 S.W.2d 189, 198 (Tex.1998). When a plaintiff proves both a distinct tort and that he suffered damages other than the loss of the benefits under the contract, exemplary damages may be recoverable. SeeTwin City Fire Ins. Co. v. Davis, 904 S.W.2d 663, 666 (Tex.1995).

Great American contended in its reply to Primo's response to its motion for summary judgment that (1) all of Primo's claims are premised upon its purported breach of the policy and do not allege independently tortious conduct; (2) even if Primo alleged an independent tort, his only alleged actual damages are economic and benefit-of-the-bargain damages that will not support exemplary damages; and (3) Primo failed to allege or produce a scintilla of evidence supporting a separate distinct tortious injury with actual non-economic damages.

Although we agree with Great American that all of Primo's claims are contingent upon the existence of coverage under the policy, it does not necessarily follow that his claims are premised solely upon the breach of the policy. For example, Primo alleged that Great American violated various provisions of the Texas Insurance Code. Although those provisions are contingent on the existence of coverage, it is possible that Great American could expose itself to statutory penalties under those provisions without breaching any terms of the E & O policy itself. E.g.,Tex. Ins.Code Ann. § 541.060(a)(1)-(4). Primo also alleged that Great American violated its duty of good faith and fair dealing, which is “a cause of action that sounds in tort, and is distinct from the contract cause of action for the breach of the terms of an underlying insurance policy.” Twin City Fire Ins. Co., 904 S.W.2d at 666. Finally, Primo alleged that Great American became liable for fraud, or alternatively negligent misrepresentation, when one of its agents falsely represented to Primo that Briar Green had not renewed its policy with Great American. These claims also carry the potential for liability without proof that Great American breached the E & O policy itself. SeeJohnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex.1998) (listing elements of common-law fraud); Fed. Land Bank Ass'n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex.1991) (listing elements of negligent misrepresentation).

Great American's assertion that Primo's only actual damages from these alleged torts are benefit-of-the-bargain economic damages rests solely on its position that Primo's only actual damages are the attorney's fees he incurred in the Travelers lawsuit. As previously explained, however, Great American failed to establish as a matter of law that these were Primo's only actual damages, and our record does not indicate that Great American filed special exceptions requiring Primo to plead his actual damages with greater specificity. In addition, Great American failed to present conclusive evidence that its alleged actions or inactions were not “the producing cause of any damage separate and apart from those that would have resulted from the wrongful denial of the claim.” Provident Am. Ins. Co., 988 S.W.2d at 198. Great American therefore failed to establish as a matter of law that exemplary damages are unavailable because the only actual damages submitted to the jury underPrimo's claims would be benefit-of-the-bargain damages.

Instead, Great American relies on Primo's failure to allege or introduce evidence of damages separate and apart from the loss of his benefits under the contract. But Great American filed only a traditional motion for summary judgment, and therefore it had the burden to prove that no genuine issues of material fact existed regarding Primo's entitlement to exemplary damages. CompareRule 166a(c)withRule 166a(i). Only then would the burden shift to Primo to produce evidence that would raise a genuine issue of fact regarding his entitlement to exemplary damages. Lyda Swinerton Builders, Inc., 409 S.W.3d at 229. Having failed to carry its own burden, Great American cannot shift the burden to Primo to produce evidence to support a separate distinct tortious injury with distinct actual damages. See Brown, 20 S.W.3d at 159 (holding that non-movant's “failure to except or respond cannot supply by default the grounds for summary judgment or the summary judgment proof necessary to establish the movant's right”).

Because Great American failed to show that there are no genuine issues of material fact whether Primo has suffered actual damages separate from or greater than his attorney's fees in the Travelers suit, or whether those damages differ from the loss of the benefits under the E & O policy, Great American did not prove its entitlement to summary judgment on the ground that Primo has been fully satisfied for all of the damages he seeks in the current lawsuit. We therefore sustain Primo's seventh issue.

Conclusion

We hold that Great American failed to show as a matter of law that the E & O policy's “Insured v. Insured” exclusion barred coverage of Primo's costs of defense in the Travelers lawsuit given Travelers' status as Briar Green's assignee. We also hold that although collateral estoppel applies, Great American failed to establish as a matter of law that its alleged conduct caused Primo no actual damages other than his attorney's fees in the Travelers suit, or that its alleged conduct was not independently tortious and capable of causing damages distinct from Primo's loss of the benefits of the insurance policy. Because neither of the grounds raised by Great American supports the trial court's summary judgment, we reverse the judgment of the trial court and remand the case for further proceedings. McCally, J., dissenting

Sharon McCally, Justice, dissenting.

I would hold that the trial court properly granted summary judgment on Primo's claims for Great American insurance policy proceeds because those claims are excluded, for two independent reasons, by the “insured v. insured” provision. Insured Briar Green assigned and transferred its rights against Primo, also an insured, to Travelers. Travelers had no other rights against Primo. So, the underlying Travelers' suit against Primo was a suit (1) by one standing in the shoes of an insured against an insured; and (2) by one who succeeded to the interest of an insured against an insured. Because the Majority holds otherwise, I respectfully dissent.

1. The origins of “insured v. insured” exclusions.

Director and Officer (“D & O”) insurance was originally designed to “protect the personal assets of the directors and officers of a company, not the company itself. Christopher W. Martin, Director and Officer Insurance, 41 Hous. Law. 38, 39–40 (Mar./Apr. 2004). Over time, D & O insurers perceived insurance abuses; specifically, “friendly” suits brought by certain financial institutions against their own directors and officers seeking to recoup operating losses arising from business mistakes. Id. at 43; Michael Sean Quinn & Andrew D. Levin, Directors' and Officers' Liability Insurance: Probable Directions in Texas Law, 20 Rev. Litig. 381, 444 (Spring 2001). So, the insurers began including “insured v. insured” exclusions in policies. A typical “insured v. insured” exclusion states that the insurer is not liable for claims made against an officer or director or insured by or on behalf of another insured or by the company. See, e.g., Miller v. St. Paul Mercury Ins. Co., 683 F.3d 871, 874–75 (7th Cir.2012); Levy v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 889 F.2d 433 (2d Cir.1989). In other words, those insurers wanted to prevent the company from colluding with its officers to collect insurance benefits to cover business losses. See, e.g., Sphinx Int'l, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 412 F.3d 1224, 1229 (11th Cir.2005).

2. Does an insured's assignment of its claims against another insured restore coverage where the exclusion eliminates it?

No, it does not. The “insured v. insured” exclusion applies when the insured, whose claim would be excluded from coverage, assigns its claim against its co-insured to a third party. See Niemuller v. Nat'l Union Fire Ins. Co of Pittsburgh, PA., No. 92 Civ. 0070(SS), 1993 WL 546678, at *3 (S.D.N.Y.1993) (Sotomayor, J.) (rejecting the “unconvincing” argument that the explicit “by” language of the exclusion clause does not apply because the insured assigned its claim to a non-insured). The court in Niemuller reasoned that under “well-established principles of assignment law ... an assignee steps into the shoes of the assignor and gains only so much as that to which the assignor is entitled.” Id.

Such well-established principles of assignment law apply in Texas, as well. Under Texas common law, an assignee stands in the shoes of his assignor. See Sw. Bell Tele. Co. v. Mktg. on Hold, Inc., 308 S.W.3d 909, 920 (Tex.2010) (citing FDIC v. Bledsoe, 989 F.2d 805, 810 (5th Cir.1993)). An assignee can recover either in his own name or in that of the assignor. Tex. Mach. & Equip. Co. v. Gordon Knox Oil & Exp. Co., 442 S.W.2d 315, 317 (Tex.1969). The assignment “operates to transfer only such right, title or interest as is possessed by the assignor at the time of the assignment and no more.” Sw. Bell Tele. Co. v. Ace Transp., Inc., No. 14–97–00371–CV, 1998 WL 831577, at *2 (Tex.App.–Houston [14th Dist.] 1998, no pet.) (not designated for publication). Thus, Travelers had no greater legal rights against Primo than did Briar Green. See John H. Carney & Assocs. v. Tex. Prop. & Cas. Ins. Guar. Ass'n, 354 S.W.3d 843, 850 (Tex.App.–Austin 2011, pet. denied); Houchins v. Scheltz, 590 S.W.2d 745, 751 (Tex.Civ.App.–Houston [14th Dist.] 1979, no writ), overruled on other grounds by Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 n. 2 (Tex.1991). And, the face of the Travelers' pleading confirms that Travelers' sought relief for wrongs alleged by Primo against Briar Green—not Travelers.

Like the insurance policy in Niemuller, the Great American D & O policy excludes “any Claim made against any Insured .... by ... [Briar Green].” It is undisputed that the “insured vs. insured” exclusion would have applied if Briar Green had filed the employee dishonesty claim against Primo. And, it is undisputed that Travelers is an assignee. Under well-established Texas law, Travelers stepped into the shoes of Briar Green and, without regard to any other exclusionary language within the policy, the suit Travelers filed against Primo was a suit by Briar Green. The trial court correctly granted summary judgment.

3. Did the contracting parties intend for “succeeds to the interest” to mean corporate successor?

No, they unambiguously did not. The “insured v. insured” exclusion applies even when someone other than the insured, whose claim would be excluded from covered, “succeeds to the interest” of the insured.

“Succeeds to the interest” is not defined in the policy. “Succeeds to the interest” is not a phrase used elsewhere in the policy. The intent of the parties is nonetheless evident from the remaining language of the policy.

Section III of the policy defines those insureds for which coverage attaches:

1. the Organization [Briar Green Condominium Assoc.],”

2. “any Subsidiary,” defined as “any entity which qualifies as a not-for-profit organization under the Internal Revenue Code, other than a political committee organized pursuant to Section 432 of the Federal Election Campaign Act of 1971 (and amendments thereto), and for which the Organization has or controls the right to elect or appoint more than fifty percent (50%) of the Board of Directors or other governing body of such entity, or any other entity added as a Subsidiary by written endorsement to this Policy”; and

3. “all Insured Persons,” defined as “all persons who were, now are, or shall be directors, trustees, officers, employees, volunteers or staff members of the Organization or its Subsidiaries, including any executive board members and committee members whether salaried or not.”

Section IV, entitled “Exclusions,” provides a laundry list of “Claims made against any Insured” to which the policy does not apply. The subject exclusion, H, covers “[c]laims made against any Insured by, or for the benefit of, or at the behest of the Organization or a Subsidiary or any entity which controls, is controlled by, or is under common control with the Organization or a Subsidiary, or any person or entity which succeeds to the interest of the Organization or a Subsidiary.”

A provision of Section VIII, the General Conditions, is also pertinent. Paragraph D, entitled “Conversion to Run-Off Coverage,” states: “If prior to the end of the Policy Period, another organization acquires substantially all of the assets of the Organization, or the Organization merges into another organization, or the Organization ceases to qualify as a not-for-profit organization under the Internal Revenue Code,” the Organization must give the specified written notice and coverage is temporally limited.

The foregoing language reflects the parties' intent in two important ways. First, the parties distinguished between an “entity which succeeds to the interest of the Organization or a Subsidiary” and “another organization [that] acquires substantially all of the assets of the Organization.” Thus, when the parties intended a circumstance in which the Organization “transfer[red] substantially all of the assets,” they said it.

Second, the parties distinguished between “succeeds to the interest” and merger. In Texas, a merger is a corporate transaction in which the successor organization continues the operation of the prior entity and acquires both rights and liabilities in the transfer. See In re Cap Rock Elec. Coop., Inc., 35 S.W.3d 222, 227–229 (Tex.App.–Texarkana 2000, no pet.). We know that the parties said “merger” when they meant merger. Thus, the parties did not mean merger or successor organization when they used the term “succeeds to the interest.” Because the parties did not use the term “successor in interest,” we have no need to construe this unambiguous insurance policy by resort to our court's authority interpreting language that the parties did not agree upon.

Nothing in the policy at issue suggests that “successor in interest,” as applied to corporate transactions is what the parties intended by the word “succeeds.” The language of the exclusion is purposefully broad: “by, or for the benefit of, or at the behest of.” The language applies not only to an entity that succeeds to the Organization's interest, but also “any person” who succeeds to that interest. To substitute “successor in interest” for the chosen language narrows its application. The exclusion, as the Majority rewrites it, does not apply unless the claim against the insured is brought by an entity to whom the Organization or its subsidiary has fully transferred every asset and every liability. And, the rewritten exclusion virtually writes out “any person.” Under this “corporate transaction” analysis adopted by the Majority, the very purpose of an “insured v. insured” exclusion—that is, to prevent collusion—is eliminated from this insurance policy.

Instead, the plain meaning of the word “succeed” is “[t]o come next after and take the place of another, either by descent, election, or appointment in a position of rule or ownership,” or “[t]o follow (another) in ownership or in the occupation of a position or office.” The Compact Edition of the Oxford English Dictionary 3134 (1971). In particular, “succeed to” means “[t]o fall heir to, inherit, come into possession of.” Id. It is undisputed on this record that Travelers was, upon assignment, the rightful owner of Briar Green's interest in the claim filed against Primo. For this independent reason, the trial court correctly granted summary judgment.

I would affirm.