Opinion
No. 04-05-00334-CV
Delivered and Filed: April 19, 2006.
Appeal from the 38th Judicial District Court, Medina County, Texas, Trial Court No. 05-04-16915-CV, Honorable Mickey R. Pennington, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice Sandee Bryan MARION, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
This is an appeal from the trial court's summary judgment in favor of appellees. We affirm.
BACKGROUND
Geneva Caraway Hunt died on May 24, 2000 as a result of a head-on collision while driving a tractor-trailer for her employer, Reynolds Nationwide, Inc. Ms. Hunt collided with a truck owned by Jenkins Poultry Farm, which was allegedly underinsured. Ms. Hunt's family sued Jenkins Poultry in California. After the California suit settled, Ms. Hunt's estate, Troy Fisher, and Teresa Fisher Garza (collectively "appellants") sued Reynolds's insurance companies, St. Paul Fire and Marine and St. Paul Guardian (collectively "St. Paul"), for breach of contract, breach of duty of good faith and fair dealing, negligence, negligent misrepresentation, DTPA violations, and unfair settlement practices. Additionally, appellants sued Reynolds's insurance broker, Marsh USA, Inc., and Marsh's agent, Cheri Dinnin, for breach of contract, negligence, and negligent procurement. St. Paul filed a traditional and no-evidence motion for summary judgment, and Marsh and Ms. Dinnin filed only a traditional motion for summary judgment. Shortly after defendants filed their motions for summary judgment, appellants filed a motion for continuance and a motion to compel discovery responses. The trial court conducted a hearing on all motions, denied appellants' motion for continuance, and rendered summary judgment on April 21, 2005 in favor of St. Paul, Marsh, and Ms. Dinnin, without stating its grounds.
MOTION FOR CONTINUANCE
In their first issue, appellants complain the trial court erred in denying their motion for a continuance. On appeal, St. Paul argues the trial court did not abuse its discretion in denying appellants' motion for continuance because appellants had adequate time to conduct discovery. Marsh and Ms. Dinnin argue that appellants did not diligently pursue discovery and the requested discovery was not material to the present case. Appellants counter that defendants "refused to produce, in good faith, all properly requested information," and therefore appellants did not have adequate time for discovery. Appellants also claim the trial court erred in denying their motion for continuance because the discovery period for this Level 2 case had not expired when the trial court granted appellees' motions for summary judgment.
The denial of a motion for continuance is reviewed under an abuse of discretion standard. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). The denial will be reversed if the trial court acted without regard to guiding principles or was arbitrary or unreasonable. Id. We consider the following nonexclusive factors when deciding whether a trial court abused its discretion in denying a motion for continuance seeking additional time to conduct discovery: the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).
Appellants filed their original petition on May 24, 2004, and served their discovery requests on November 8, 2004. St. Paul, Marsh, and Ms. Dinnin filed special exceptions alleging appellants failed to state a claim recognized by Texas law. At the conclusion of the hearing on the defendants' special exceptions, the trial judge stated to appellants' counsel: "I will give you forty-five days to replead. I will also give you the opportunity to do some discovery, meaningful discovery, and I underline meaningful, and then come back . . . with a petition alleging a cause of action that is within the state law." Thereafter, on February 3, 2005, the trial court memorialized its oral pronouncement by signing an order that granted appellees' special exceptions and ordered appellants to conduct discovery within forty-five days and replead their claim with specificity. During this forty-five day period, St. Paul, Marsh, and Ms. Dinnin responded to appellants' initial discovery requests. However, during the forty-five day period appellants did not attempt to obtain any other discovery from Marsh or Ms. Dinnin, and they sent only a single disclosure request to St. Paul. Appellants contend St. Paul failed to produce: 1) complete copies of all four insurance policies; 2) the original applications for coverage for the St. Paul policies; 3) manuals for use in providing insurance services; 4) the claims handling manual; 5) insurance services bulletins or memos to sales agents relevant to uninsured/underinsured (UM/UIM) motorist coverage; and 6) the underwriting file for Reynolds. Appellants claim they needed these documents to determine whether the policies covered Ms. Hunt and to determine whether St. Paul breached any duties. However, appellants stated at the hearing on the motion for continuance that St. Paul had recently produced copies of the policies.
A litigant's failure to diligently use the rules of civil procedure for discovery purposes will not justify the granting of a continuance. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1998) (holding that litigant's inability to review depositions or depose other witnesses was "a predicament of its own making"). A motion for continuance seeking time for discovery must be verified or supported by an affidavit that shows that the party requesting the continuance has used due diligence to obtain the evidence. See Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); Tex. R. Civ. P. 251, 252. Additionally, conclusory allegations in the affidavit or verified motion about diligence are not sufficient, a party must state with particularity the diligence used. Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex.App.-Austin 2002, no pet.). In their verified motion for continuance, appellants merely state, "Plaintiffs have diligently pursued the information in the custody and control of Defendants through properly served discovery requests . . . that were sent to all four parties on November 8, 2004." However, the record reflects the trial court's forty-five day discovery period expired without appellants conducting any further discovery. Only after the forty-five day discovery period had elapsed and the defendants had filed their motions for summary judgment did the appellants file a motion for continuance complaining of the defendants' failure to produce documents.
Finally, appellants complain that the trial court erred in failing to grant the continuance because the discovery period under Level 2 had not expired; however, a trial court may modify a discovery control plan at any time. Tex. R. Civ. P. 190.5. Here, the trial court's order directing the specific time limitations on discovery modified the Level 2 discovery control plan and ordered appellants to state a cause of action. See id. 191.1 (stating that discovery rules "may be modified in any suit . . . by court order for good cause").
Based on the record before us, we conclude the trial court did not abuse its discretion in denying appellants' motion for continuance.
ST PAUL'S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
Appellants' third issue asserts the trial court erred in granting St. Paul's no-evidence motion for summary judgment. Appellants sued St. Paul for breach of contract, breach of duty of good faith and fair dealing, negligence, unfair claim settlement practices, and negligent misrepresentation. In its motion for a no-evidence summary judgment, St. Paul claims appellants presented no evidence on at least one element of each of their causes of action and each of appellants' claims fail as a matter of law.
On appeal, appellants challenge St. Paul's no-evidence summary judgment on a single ground: that they did not have an adequate time for discovery. A party may move for a no-evidence summary judgment after "adequate time for discovery." Tex. R. Civ. P. 166a(i). This rule does not require that the discovery period be completed, only that there was "adequate time for discovery." Restaurant Teams Int'l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex.App.-Dallas 2002, no pet.). The question of whether a respondent has had an adequate time for discovery under rule 166a(i) is case specific and is reviewed under an abuse of discretion standard. Id.
In determining whether adequate time for discovery has passed, we consider: 1) the nature of the case; 2) the nature of the evidence necessary to controvert the no-evidence motion; 3) the length of time the case was active; 4) the amount of time the no-evidence motion had been on file; 5) whether the movant had requested stricter deadlines for discovery; 6) the amount of discovery already taken place; and 7) whether the discovery deadlines in place were specific or vague. Martinez v. City of San Antonio, 40 S.W.3d 587, 591 (Tex.App.-San Antonio 2001, pet. denied).
1. Nature of the Case and Evidence Necessary to Defeat the Motion
This is an insurance coverage dispute in which appellants seek more coverage than Reynolds's UM/UIM coverage provided. Appellants allege claims of breach of contract, breach of duty of good faith and fair dealing, negligence, negligent misrepresentation, DTPA violations, and unfair settlement practices. Appellants had in their possession the insurance policies, which would likely be enough information for appellants to bring more than a scintilla of evidence for a breach of contract, breach of duty of good faith and fair dealing, and unfair settlement practices claims. See Restaurant Teams Int' l, 95 S.W.3d at 339 (holding a breach of contract claim would only require minimal discovery, if any discovery at all). Evidence of St. Paul's alleged negligent misrepresentation and DTPA violations could have been provided by an affidavit claiming any misrepresentation made by St. Paul. See id. at 339-40 (noting that evidence that appellant's relied to their detriment on misrepresentations is the type of information that should be immediately available to appellant). As for appellants' negligence claim, appellants assert St. Paul had a duty "to properly procure coverage sufficient to cover risks. . . ." However, St. Paul had no duty to maintain coverage in excess of the statutory minimum. Pickens v. Texas Farm Bureau Ins. Co., 836 S.W.2d 803, 805 (Tex.App.-Amarillo 1992, no writ). Appellants do not dispute that St. Paul's UM/UIM coverage satisfies the statutory minimum.
2. Length of Time the Case and Motion were on File
This case was pending for approximately ten months prior to the summary judgment hearing, and St. Paul's no-evidence motion had been on file twenty-one days before the hearing. SeeRestaurant Teams Int' l, 95 S.W.3d at 340 (holding the trial court did not abuse its discretion in determining that adequate time for discovery had passed when the case had been on file approximately seven months before the motion for summary judgment was filed and the motion for summary judgment was on file twenty-six days before it was granted).
3. Status of Discovery and Discovery Deadlines
The record shows appellants sent St. Paul discovery requests, to which it responded, albeit after the trial court ordered St. Paul to respond. Appellants only filed their motion to compel and motion for continuance after St. Paul filed its motion for summary judgment. Additionally, the trial court imposed a specific forty-five day deadline for appellants to conduct discovery and replead their claim with specificity. Except for a request for disclosure sent to St. Paul, the record is silent as to any discovery appellants conducted after the trial court imposed this deadline.
4. Conclusion
We conclude appellants had adequate time to conduct discovery during the eleven months the case was pending. Further, appellants are presumed to have duly investigated their case before filing suit. Martinez, 40 S.W.3d at 591. Therefore, the trial court did not err in granting St. Paul's no-evidence motion for summary judgment.
Because we affirm the no-evidence summary judgment granted in favor of St. Paul, we do not address appellants' issues as they relate to St. Paul's motion for traditional summary judgment.
A broadly worded point of error complaining that the trial court erred in granting summary judgment is sufficient to preserve error. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). However, when an appellant raises a specific challenge to attack a summary judgment and fails to attack one of the possible grounds on which the judgment was granted, the summary judgment must be affirmed. Id.; Willowbrook Foods, Inc. v. Grinnell Corp., 147 S.W.3d 492, 500 (Tex.App.-San Antonio 2004, pet. filed). Here, the trial court did not specify whether it was granting summary judgment based upon the grounds raised in St. Paul's no-evidence motion for summary judgment, upon the grounds raised in St. Paul's motion for traditional summary judgment, or both. On appeal, appellants raised only a single issue challenging the judgment: that they did not have an adequate time for discovery. Because appellants do not challenge the no-evidence summary judgment or traditional summary judgment on other grounds, we must affirm the judgment in favor of St. Paul.
MARSH AND DINNIN'S TRADITIONAL SUMMARY JUDGMENT Standard of Review
In a traditional summary judgment proceeding, the movant has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In determining whether there is a disputed material fact issue that precludes summary judgment, evidence favorable to the respondent will be taken as true. Id. at 548-49. Every reasonable inference must be indulged in favor of the respondent, and any doubts must be resolved in its favor. Id. at 549. One may not be granted judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding. Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983). Furthermore, Texas summary judgment practice is such that the burden of proof is never shifted to the respondent unless and until the movant has established its entitlement to a summary judgment on the issues "expressly presented to the trial court by conclusively proving all essential elements of [its] cause of action or defense as a matter of law." Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989) (citing City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979)).
Discussion of Summary Judgment in favor of Marsh and Dinnin
In their fourth issue, appellants complain the trial court erred in granting Marsh and Ms. Dinnin's motion for summary judgment. Appellants sued Marsh and Ms. Dinnin for breach of contract, negligence, and negligent procurement. Marsh and Ms. Dinnin filed a traditional motion for summary judgment, asserting, among other grounds, that no contractual relationship existed between the parties; Marsh and Ms. Dinnin owed no duty to appellants; and appellants failed to state a cause of action.
In their second amended petition, appellants frame their breach of contract claim by stating, Marsh and Ms. Dinnin "maintained contractual responsibilities to place sufficient coverage for risks" and "breached contractual duties to properly procure insurance." As to their negligence and negligent procurement claims, appellants allege "the undisputed levels of underinsured motorist coverage are grossly deficient for the risks at issue." Appellants assert Marsh and Ms. Dinnin "owed duties of care to properly procure coverage sufficient to cover risks, such as the risk that befell Ms. Hunt. . . ." Therefore, Marsh and Ms. Dinnin's alleged failure to procure sufficient coverage forms the basis of appellants' claims against them.
An insurance agent in Texas "who undertakes to procure insurance for another owes a duty to a client to use reasonable diligence in attempting to place the requested insurance and to inform the client promptly if unable to do so." May v. United Services Ass' n of America, 844 S.W.2d 666, 669 (Tex. 1992). "No legal duty exists on the part of an insurance agent to extend the insurance protection of [her] customer merely because the agent has knowledge of the need for additional insurance of that customer, especially in the absence of evidence of prior dealings where the agent customarily has taken care of [her] customer's needs without consulting [the customer]." Critchfield v. Smith, 151 S.W.3d 225, 230 (Tex.App.-Tyler 2004, pet. denied). In her affidavit, Ms. Dinnin stated that "the amount of coverage provided by St. Paul . . . was exactly the amount of coverage Reynolds directed me to procure for them for that policy period." Appellants did not file a response to Marsh and Ms. Dinnin's motion for summary judgment. Accordingly, appellants did not dispute Ms. Dinnin's affidavit.
Additionally, an insurance company has no duty to offer an insured benefits in excess of the statutory minimum. Pickens, 836 S.W.2d at 805. Here, Reynolds's UM/UIM coverage was $55,000. Appellants do not dispute Marsh and Ms. Dinnin's contention that this amount satisfies the statutory minimum.
Because March and Ms. Dinnin conclusively negated an element of each of appellants' claims, the trial court did not err in granting summary judgment in favor of Marsh and Ms. Dinnin.
CONCLUSION
We affirm the trial court's judgment.