Summary
affirming summary judgment for insurer because insureds failed to allege any claims independent of claim under policy
Summary of this case from Mid-Continent Casualty Company v. Eland Energy, Inc.Opinion
No. 05-01-00822-CV.
Opinion Filed June 1, 2004.
On Appeal from the County Court at Law No. 4, Dallas County, Texas, Trial Court Cause No. cc-00-8576-d.
Affirm.
Before Justices JAMES, O'NEILL, and FRANCIS.
MEMORANDUM OPINION ON REMAND
Appellants Brent and Heather Bailey appeal a summary judgment granted in favor of appellee Progressive Mutual Insurance Company. The Baileys sued Progressive asserting it wrongfully denied their claim for diminution in value to their automobile following a car collision. The trial court granted Progressive's motion for summary judgment on the ground that the policy did not cover losses for diminution in value. On original submission, we reversed the trial court's judgment concluding the policy did cover such losses. See Bailey v. Progressive County Mutual Insurance Co., 78 S.W.3d 708 (Tex. App.-Dallas 2002). Following our opinion, the Texas Supreme Court decided American Manufacturers Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154 (2003) concluding the policy language at issue here did not allow an insured to recover for diminution in value. The Texas Supreme Court subsequently reversed our judgment. See Progressive County Mut. Ins. Co. v. Bailey, No. 02-0778, 2004 WL 326707 (Tex. February 13, 2004). The supreme court remanded to this court to consider the Baileys' remaining issue.
In addition to their claim that Progressive breached the insurance policy, the Baileys also alleged Progressive's handling of the claim violated the Texas Deceptive Trade Practices Act (DTPA) and article 21.21 of the Texas Insurance Code. In its motion for summary judgment, Progressive asserted these claims necessarily failed because it had properly denied the diminished value claim. The trial court granted the motion.
According to the Baileys, material fact issues exist with respect to their extracontractual DTPA and insurance code claims. The Baileys acknowledge that a finding of no liability on a policy generally defeats such extra-contractual claims. Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex. 1995). However, they assert summary judgment was improper in this case because an insurer may in its handling of the claim, "commit some act, so extreme, that would cause injury independent of the policy claim" or violate their duty to "timely investigate" the claim. See id.
To show a fact issue exists, the Baileys direct this Court to evidence that (1) Progressive's agents "attempted" to cause a used radiator be placed in their vehicle and failed to give them notice that this attempt was prohibited by Texas law, and (2) delayed fifty days before responding to their diminished value claim. The Baileys have failed to assert how these actions support a claim independent from their claim under the policy. Nor have they shown they alleged any independent injury arising from these actions. See, e.g., Provident Am. Ins. Co. v. Castaneda, 988 S.W.2d 189, 198-99 (Tex. 1998).
Rule 38.1(h) of the rules of appellate procedure provides that a brief to this Court shall contain, among other things, a clear and concise argument for the contention made with appropriate citations to authorities and to the record. See Tex.R.App.P. 38.1(h); Sharpe v. Roman Catholic Diocese of Dallas, 97 S.W.3d 791, 797 (Tex. App.-Dallas 2003, pet. denied); Kang v. Hyundai Corp., 992 S.W.2d 499, 503 (Tex. App.-Dallas 1999, no pet.); Bowles v. Clipp, 920 S.W.2d 752, 761 (Tex. App.-Dallas 1996, writ denied.). Here, the Baileys have provided no substantive legal analysis or argument and have cited no authority to show how the complained-of acts constitute violations of the DTPA or the insurance code independent of their claim under the policy. We will not make the Baileys arguments for them. We conclude this issue is inadequately briefed and presents nothing to review. Sharpe, 97 S.W.3d at 797; Kang, 992 S.W.2d at 503; Bowles, 920 S.W.2d at 761. Because the Baileys have failed to show they alleged any claims independent of their claim under the policy, we affirm the trial court's judgment.