Opinion
04-21-00338-CV
10-26-2022
Silvia MORALES, Appellant v. WILSON COUNTY, Appellee
From the 218th Judicial District Court, Wilson County, Texas Trial Court No. CVW2000874 Honorable Lynn Ellison, Judge Presiding
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice
MEMORANDUM OPINION
Patricia O. Alvarez, Justice
REVERSED AND REMANDED
This is an appeal from an order granting Appellee Wilson County's plea to the jurisdiction in a vehicle accident case. The trial court found that Wilson County did not timely receive formal notice or timely acquire actual notice of Appellant Silvia Morales's claim. It granted the County's plea, and it dismissed Morales's claims with prejudice.
Because the record evidence conclusively establishes actual notice, we reverse the trial court's order and remand the cause.
Background
On January 31, 2019, Morales's vehicle was rear-ended by a Wilson County Sheriff's department vehicle that was being driven by a Wilson County employee.
A. Investigation, Crash Report
The employee immediately reported the incident to the Wilson County Sheriff's Office, and it asked the Texas Department of Public Safety to investigate. A DPS officer investigated and produced a Texas Peace Officer's Crash Report. The Crash Report identified the date, time, and location of the incident; it identified the parties; it noted that neither the employee nor Morales was injured; and it found the employee at fault. It also noted that the employee's financially responsible party was the Texas Association of Counties, Risk Management.
B. Notice of Claim
Morales asserts that she sent a notice of claim letter to the Wilson County Sheriff's Office on April 22, 2019. The same day, she sent a letter to the Texas Association of Counties.
On April 26, 2019, the Texas Association of Counties acknowledged receipt of her letter. It confirmed "that Wilson County is a member participant in the Texas Association of Counties Risk Management Pool (TAC RMP)," and it assigned Morales's claim a TAC RMP claim number.
On April 27, 2019, a Wilson County employee signed a USPS Form 3811, Domestic Return Receipt (green card), which was returned to Morales's attorneys.
On July 17, 2019, Morales sent a second demand letter to TAC RMP. The demand letter stated, inter alia, the date of the incident, the insured, the claimant (Morales), and the TAC RMP claim number. It also asserted that Morales "has sustained severe personal injuries."
C. Lawsuit, Plea to the Jurisdiction
Morales sued Wilson County, and the County filed a plea to the jurisdiction. The County's plea argued Morales had not given the County the notice required by the Texas Tort Claims Act (TTCA), and Morales did not allege the County had actual notice.
In Morales's third amended petition, her then-live pleading, she alleges she gave the County formal notice of her claim and the County had actual notice of her claim. In her Second Amended Response to Defendant Wilson County's Plea to the Jurisdiction, Morales provided evidence to show (1) she gave the County formal notice and (2) it had actual notice.
The trial court found the County did not receive formal or actual notice. It granted the County's plea, and it dismissed Morales's claims with prejudice.
Morales appeals.
Parties' Arguments
A. Morales's Arguments
Morales argues the trial court's order must be reversed because she provided Wilson County with formal notice, or at least raised a fact issue that prevented the trial court from granting the County's plea. She contends the trial court was required, for purposes of the plea contest, to take as true the evidence pertaining to her April 22, 2019 letter to the County, and to credit it as evidence of formal notice.
In the alternative, she insists the County received actual notice of her claim. For example, she points to her July 17, 2019 demand letter to TAC RMP that identified the insured and the date of the incident; asserted her severe personal injuries from the insured's negligence; included the crash report; and included medical bills for her alleged injuries.
B. County's Arguments
The County argues it did not receive either formal or actual notice. It contends the signed green card Morales offered as proof of service was no evidence of formal notice. It notes that Morales's April 22, 2019 letter did not include a certified mail receipt number, and it insists there was no way to tell what document the County signed for. The County also contends that Morales's pleadings and evidence do not demonstrate that the County had actual notice. Moreover, the County argues that any notice to TAC RMP did not meet the TTCA notice requirements because the Texas Association of Counties is not the County's agent.
Notably, the County "concedes that if [Morales] had sent [the July 17, 2019 demand letter] to Wilson County or the Wilson County Sheriff's Department in a timely manner, it would have satisfied the notice requirements under the Texas Tort Claims Act."
We begin by reviewing the law pertaining to waiver of immunity under the TTCA and the applicable standard of review.
Governmental Immunity
"Generally, governmental entities are immune from suits seeking to impose tort liability on them." City of San Antonio v. Tenorio, 543 S.W.3d 772, 775 (Tex. 2018) (citing Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 926 (Tex. 2015) (per curiam)). To impose liability, the plaintiff must first plead facts showing the governmental entity's immunity has been waived. Dohlen v. City of San Antonio, 643 S.W.3d 387, 396 (Tex. 2022); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
Where injury or property damage is caused by the operation of a motor-driven vehicle, see Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1), a county's immunity from suit may be waived if the county receives timely formal notice of the incident, see Tenorio, 543 S.W.3d at 775-76 (citing Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a) (six-month notice period)).
If the plaintiff's formal notice is defective or absent, the county's immunity may still be waived if the county had actual notice within the notice deadline. See id. at 776 (citing Tex. Civ. Prac. & Rem. Code Ann. § 101.101(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam)); see also Worsdale v. City of Killeen, 578 S.W.3d 57, 66-67 (Tex. 2019).
Actual Notice
"A governmental unit has actual notice under the TTCA if it has subjective knowledge of (1) a death, injury, or property damage; (2) the governmental unit's fault that produced or contributed to the death, injury, or property damage; and (3) the identity of the parties involved." Tenorio, 543 S.W.3d at 776; accord Worsdale, 578 S.W.3d at 63; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.101(c) (actual notice).
"Whether a governmental unit has actual notice . . . is a question of law when the evidence is undisputed." Tenorio, 543 S.W.3d at 776; accord Worsdale, 578 S.W.3d at 66.
"If an agent or representative receives notice of the incident and had a duty to gather facts and report, actual notice can be imputed to the governmental entity." Guadalupe Blanco River Auth. v. Schneider, 392 S.W.3d 321, 325 (Tex. App.-San Antonio 2012, no pet.) (citing Univ. of Tex. Health Sci. Ctr. at San Antonio v. Stevens, 330 S.W.3d 335, 341 (Tex. App.-San Antonio 2010, no pet.)).
"Notice is a prerequisite to subject-matter jurisdiction under the TTCA, and as such, presents a question of law we review de novo." Reyes v. Jefferson Cty., 601 S.W.3d 795, 798 (Tex. 2020); accord Worsdale, 578 S.W.3d at 66.
Evidence to Consider
To determine whether the County had actual notice, we must first determine whether Morales's July 17, 2019 demand letter was properly before the trial court.
A. County's Argument
In its appellate brief, the County argues Morales's Second Amended Response to Defendant Wilson County's Plea to the Jurisdiction was not filed with the court before the July 13, 2016 hearing on its plea to the jurisdiction. The County insists, and we agree, that we must not consider any evidence that was not before the trial court when it made its ruling. See Fryday v. Michaelski, 541 S.W.3d 345, 352 (Tex. App.-Houston [14th Dist.] 2017, pet. denied) ("We do not consider evidence that was not before the trial court at the time it made its ruling in the case.").
B. Record Evidence
Here, the clerk's record shows Morales's Second Amended Response was not filed until September 1, 2021. But the record conclusively establishes that her Second Amended Response and its exhibits were served on the County and were considered by the trial court before it made its ruling. Morales served her "Plaintiff's Response to Defendant Wilson County's Plea to the Jurisdiction" on July 1, 2021. Morales asserts that, thereafter, she served her (First and) Second Amended Response on the County through the e-filing service.
On July 12, 2021, the County filed its "Objections and Reply to Plaintiff's Second Amended Response to the Plea to the Jurisdiction." In its reply, the County objected to some of Morales's evidence in her Second Amended Response.
The next day, in the July 13, 2021 hearing on the plea to the jurisdiction, Morales gave the trial court a copy of her response to the County's motion. She identified it as her "response to [the County's] motion," and "it would be easier to flip through the exhibit tabs so you [the trial court] can see the notice that we provided." Later in the hearing, the County expressly referred to "an exhibit that [Morales] had attached to [her] response, which is the July 17th, 2019, demand letter."
Neither Morales's original response nor her first amended response to the County's plea to the jurisdiction contain the July 17, 2019 demand letter, but the record shows her Second Amended Response does.
C. Second Amended Response
The record shows, and the County does not dispute, that it filed written objections to Morales's Second Amended Response, and the County's objections were filed before the hearing on the County's plea. Further, in the hearing, the County expressly referred the trial court to an exhibit that was included only in Morales's Second Amended Response.
The record conclusively establishes that the County received Morales's Second Amended Response before the hearing, and the trial court considered it before it made its ruling. Cf. Miranda, 133 S.W.3d at 226; In re A.W.P., 200 S.W.3d 242, 245 (Tex. App.-Dallas 2006, no pet.). Thus, we will consider it in our review of the evidence of actual notice.
Imputed Actual Notice
A. Elements of Actual Notice
The County "concedes that if [Morales] had sent [the July 17, 2019 demand letter] to Wilson County or the Wilson County Sheriff's Department in a timely manner, it would have satisfied the notice requirements under the Texas Tort Claims Act." We agree.
Morales's July 17, 2019 demand letter stated she had been injured. See Tenorio, 543 S.W.3d at 776 (requiring subjective knowledge of an injury). The demand letter also included, inter alia, alleged medical expenses and the Crash Report. The Crash Report established the County's fault in the incident, and it identified Morales and the County employee as the parties involved. See id. (requiring subjective knowledge of "the governmental unit's fault that produced . . . [the] injury . . . and . . . the identity of the parties involved").
Morales's demand letter provides the information required for actual notice, see id., but we must determine whether that information can be imputed to Wilson County's subjective awareness.
B. Imputing Actual Notice
Morales's demand letter was served on the Texas Association of Counties Risk Management Pool (TAC RMP). See Tex. Loc. Gov't Code Ann. § 119.002 ("[T]he County Government Risk Management Pool is created to insure each county in this state that purchases coverage in the pool against liability for the acts or omissions of that county and the officials and employees of that county under the law."); Tex. Ass'n of Ctys. Cty. Gov't Risk Mgmt. Pool v. Matagorda Cty., 52 S.W.3d 128, 129 n.1 (Tex. 2000). TAC [RMP] provides law-enforcement-liability insurance to participating counties. Matagorda Cty., 52 S.W.3d at 129.
We recognize that TAC RMP is not governed by the State Board of Insurance. See Tex. Loc. Gov't Code Ann. § 119.008; Matagorda Cty., 52 S.W.3d at 129 n.3. But like Matagorda County, "because TAC [RMP] is acting in a capacity virtually identical to that of an insurer in this case, we treat TAC [RMP] as an insurer for the limited purpose of determining whether [notice to it can be imputed to Wilson County]." See Matagorda Cty., 52 S.W.3d at 129 n.3.
TAC RMP acknowledged in its response to Morales's demand letter "that Wilson County is a member participant in the Texas Association of Counties Risk Management Pool." And an insurer has a duty to investigate a claim against its insured. State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 47 (Tex. 1998) (noting that as part of its duty of good faith and fair dealing, an "insurer . . . has the duty to reasonably investigate a claim"); Viles v. Sec. Nat'l Ins. Co., 788 S.W.2d 566, 568 (Tex. 1990) (same). Thus, TAC RMP had a duty to investigate the incident. See Simmons, 963 S.W.2d at 47; Viles, 788 S.W.2d at 568.
Given TAC RMP had a duty to investigate the incident, and it received actual notice of Morales's claim, we conclude that Morales's July 17, 2019 demand letter to TAC RMP was imputed actual notice to Wilson County. See Schneider, 392 S.W.3d at 325; Stevens, 330 S.W.3d at 339; cf. Reyes, 601 S.W.3d at 798 (noting that the plaintiff's "communications with [the insurance carrier] coupled with its acknowledgment, investigation, and denial of [the plaintiff's] claim establish the County's subjective awareness that [the plaintiff] was claiming the County was at fault in the manner ultimately alleged in [the] lawsuit"). We sustain Morales's third issue.
Because the record conclusively establishes actual notice, we need not address Morales's other issues. See Tex. R. App. P. 47.1; Segundo Navarro Drilling, Ltd. v. San Roman Ranch Mineral Partners, Ltd., 612 S.W.3d 489, 496 (Tex. App.-San Antonio 2020, pet. denied).
Conclusion
Wilson County argues the trial court properly granted its plea to the jurisdiction and dismissed Morales's claims with prejudice because the County did not timely receive formal notice or timely acquire actual notice of the incident. But the record conclusively establishes that Morales's July 17, 2019 demand letter sent to Wilson County's insurer, TAC RMP, included all the information required for actual notice. Because Morales's timely actual notice to TAC RMP is imputed to Wilson County's subjective awareness, we reverse the trial court's order and remand the cause.