446 S.W.3d 14
Tex. App.2013Background
- Brannan Paving and Pavement Markings contract for highway striping; subcontract required Pavement Markings to provide certified copies of applicable insurance and to name Brannan as additional insured with waiver of subrogation.
- Pavement Markings never supplied Brannan with certified policy copies; work commenced after contract signing.
- May 16, 2004 a single-vehicle accident on the project led to claims against Brannan and Pavement Markings; Brannan later learned Pavement Markings did not add Brannan as additional insured.
- Brannan asserted a breach of contract claim for failure to obtain additional insured coverage and defended against the underlying negligence suit; Pavement Markings joined VIP and VIP joined LGA.
- Trial was bifurcated with a first phase on breach and negligence; jury answered Question 1 (breach) 'No' with an included waiver instruction; damages questions and other negligence questions followed, but the trial court entered take-nothing judgments against Brannan and Pavement Markings.
- Brannan and Pavement Markings appealed; Pavement Markings cross-appealed on attorney’s fees against VIP and DTPA-related issues; court reversed in part and remanded the breach claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver instruction error in breach question | Brannan says waiver instruction was improper and created uncertainty for the breach answer. | VIP and LGA contend preservation and form were proper or waived; rule 278 not applicable to their posture. | Waiver instruction improperly submitted; harmful ambiguity sustained. |
| Sufficiency of evidence for breach with waiver | Evidence supports breach or waiver; in any event, waiver could not be inferred from inaction. | Evidence showed Brannan waived rights by inaction; waiver is proper ground for denial. | Waiver not proven; jury’s no-breach finding cannot be sustained with waiver as ground; issues sustained to defeat breach finding. |
| Judgment on negligence against LGA/VIP | LGA/VIP owed duty to secure coverage; negligence supported by breach of professional duty to procure insurance. | No privity; broker/AG owes no duty to Brannan absent client relationship; no tort liability established. | No duty found; negligence claims against VIP/LGA are rejected. |
| Attorney’s fees under equitable exception and DTPA on cross-appeal | Pavement Markings seeks attorney’s fees under equitable exception and DTPA for VIP's conduct. | Equitable exception not applicable; DTPA fees not recoverable where no actual damages awarded. | Equitable exception inapplicable; DTPA fees denied; Pavement Markings take nothing on these claims. |
Key Cases Cited
- Jernigan v. Langley, 111 S.W.3d 153 (Tex. 2003) (waiver requires an intent to relinquish a known right)
- Tenneco Inc. v. Enter. Prod. Co., 925 S.W.2d 640 (Tex. 1996) (waiver when conduct shows intent to relinquish a right; distinguishable factual context)
- Thota v. Young, 366 S.W.3d 678 (Tex.2012) (preservation and analysis of jury-charge error; Casteel context)
- Casteel v. Baritz, 22 S.W.3d 378 (Tex.2000) (Casteel presumed-harm doctrine for broad-form questions with invalid theories)
- West Houston Airport, Inc. v. Millennium Ins. Agency, Inc., 349 S.W.3d 748 (Tex.App.-Houston [14th Dist.] 2011) (insurance-broker duty and privity; no duty to non-clients)
- Gulf States Utils. Co. v. Low, 79 S.W.3d 561 (Tex. 2002) (DTPA damages requirement; attorney’s fees not recoverable without damages)