Aрpellant Benson Scott Wyly appeals an order granting summary judgment in favor of Integrity Insurance Solutions (“Integrity”). We reverse and remand.
I. Background
Appellant purchased a Glassair III aircraft in Bristol, Tennessee, that was to be transported to League City, Texas. Appellant contacted Gamer Geisler, an insurance agent for Integrity, to obtain insurance for the plane in transit. Geisler contacted Heather Camp, a broker for U.S. Risk, Inc., and a policy was obtained from Essex Insurance Co. After the plane arrived in League City, appellant discovered the plane had been dаmaged in transit. Essex denied coverage and appellant sued Integrity, U.S. Risk and Essex. All three defendants filed motions for summary judgment. On October 13, 2014, the trial court granted summary judgment in favor of Integrity. On October 22, 2014, the trial court entered a final judgment dismissing all of appellant’s claims against all three defendants. Appellant only appeals the trial court’s judgment as to Integrity.
The record reflects appellant sued Integrity for negligent representation, breach of fiduciary duty, deceptive trade practices, violations of section 541.061 of the Texas Insurance Code, and the negligent training, hiring, and supervision of Integrity’s agent, Geisler. On October 8, 2014, appellant filed a Notice of Partial Non-Suit of his causes of action against U.S. Risk, and his claims against Essex and Integrity for the negligent training, hiring, and supervision of Geisler. In its final judgment, the trial court granted appellant’s Notice of Partial Non-Suit and Integrity’s traditional and no-evidence motion for summary judgment. See Tex. R. Civ. P. 166a (b), (i). In his brief, appellant only contends the trial court erred in granting summary judgment in favor of Integrity on his claims under the DTPA and the Insurance Code.
II. Standard op Review
We review de novo a trial court’s decision to grant a summary judgment. Ferguson v. Bldg. Materials Corp. of Am.,
When a trial court grants a summary judgment on both no-evidence and traditional grounds, we first review the trial court’s summary judgment under the no-evidence standard of Tex. R. Civ. P. 166a(i). PAS, Inc. v. Engel,
The movant for a traditional summary judgment must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort,
III. Summary Judgment Evidence
According to appellant, the fuselage was damaged during transit by a tie strap securing the plane to the trailer. Because the tail of the aircraft was not properly supported, it rocked up and down and collided against the tie straps.
Appellant only dealt with Geisler in procuring the insurancе. Appellant averred he sought to obtain a comprehensive policy to protect “from all foreseeable loss to the aircraft, beginning when the aircraft was being loaded until the time the aircraft wa,s unloaded off the truck.” According to appellant, he described to Geisler the scope of insurance sought as “from Á to Z,” from loading to unloading, and provided examples as follows:
Is the plane covered
a. from A to Z. from loading to unloading;
b. if the plane fell off the trailer;
c. if the plane fell off forklift when loading or unloading;
d. if the plane fell off at my house;
e. is [sic] plane fell off crane;
f. if plane hit by debris;
g. it [sic] the ties broke:
h. if plane is hit against the vehicle: or
i. if another vehicle crashes into the vehicle and causes damage to my plane.
Geisler assured appellant he could procure the insurance requested.
Camp was contacted by Geisler to obtain a motor truck cargo policy for appellant. Camp stated “Essex chose the form.” Camp had" never seen a truck cargo or trip transit policy that provided coverage from “A to Z,” i.e., with no'conditions, limitations, or exclusions. Based on the information received from Geisler, Camp believed she provided the proper product as an option and it was appellant’s" decision whether to accept the policy.
Although appellant swore that he did not receive “the actual policy” until after the plane was damaged, he admitted that he received “Exhibit 5a-g” before the incident occurred. The record reflects Exhibit 5g, attached to appellant’s response to Integrity’s motion for summary judgment, contains the exclusion for “[ijmproper packing, preparation for shipment or loading by you or the shipper” and. has a fax date of July 18, 2012, six days before coverage began on July 24, 2012. After receipt of Exhibit 5g, appellant again asked Geis-ler if he was covered “from A to Z” and Geisler said, “[Y]es.” Appellant said Geis-ler told him the insurance coverage was “from A to Z,” “100 percent,” and “full coverage.” Appellant did not read the policy until after the plane was delivered.
According to Geisler, he relied upon Gamp to provide the correct policy. When appellant reported the damages to the plane, Geisler believed it was covered because, damage caused by the straps was consistent with the coverage appellant had requested. Geisler told appellant, “I got you ,the right coverage. You know, I asked for the right coverage. I reassured him that I did everything I was supposed to do.” Geisler informed appellant, “if I screwed up, it’s—it’s the insurance agency’s fault ... we have insurance to cover my screw-ups.”
Appellant averred that he relied on Geisler’s statements “because he was a professional in the insurance business, he was my long- standing [sic] friend, and it appeared he had read the agreement.” Appellant subsequently learned - Geisler did not read the policy before making the representations to him regarding coverage. Appellant believed Geisler had read the agreement “because he affirmatively responded ‘yes’ to my examples of coverage,” Appellant further averred;
Had Mr. Geisler represented that he did not read the policy, I would have waited to transport the plane until the scope of insurance was conclusively determined. Because Mr. Geisler represented the plane had the coverages I requested, I gave the ok to transport the plane. Mr. Geisler failed to state that the policy did not cover the plane’s collision with the vehicle or roadway, improper packing, preparation for shipment оr loading by you or your shipper, or any other exclusions. Mr. Geisler did not state that collision with the tie straps were excluded. Almost all the exclusions are contrary-to the specific coverages I requested. Had Mr. Geisler disclosed that the plane did not have [sic] the above exclusions, I would have not shipped the plane until the plane was covered, or I would have sought another company that had assets to protect my loss, or I would not have bought the plane.
However, when appellant was asked, “Do you feel that Garner mislead [sic] you in any way?” he replied, “No.”
IV. No-Evidence Motion for Summary Judgment
By his third and fourth issues, appellant challenges the trial court’s grant of
A no-evidence motion for summary judgment “must state the elements as to which there is no evidence.” Tex. R. Civ. P. 166a(i). A motion filed pursuant to 166a(i) “must be specific in challenging the evi-dentiary support for an element of a claim” and “conclusory motions or general no-evidence challenges to an opponent’s case” are insufficient. Tex. R. Civ. P. 166a(i) cmt. Although the motion in this case purports to be both a traditional and no-evidence motion, no effort was made to designate those claims which are submitted under (c) and those which are submitted under (i). See Tex. R. Civ. P. 166a(c), (i). As to appellant’s claims under the DTPA and the Insurance Code, the motion does not single out the elements as to which there is no evidence. See Tex. R. Civ. P. 166a(i). Therefore, the motion does not meet the requirements of the rule and granting it under the no-evidence standard on appellant’s DTPA and Insurance Code claims was improper. See Cuyler v. Minns,
The record reflects that on the date set for submission of Integrity’s motion, it filed a reply asserting for the first time there was no evidence appellant relied on Geisler’s representations to his detriment and that there was no evidence of a policy that would have afforded the coverage appellant sought. Although entitled to file its reply as late as the date set for the summary judgment hearing, the movant is not entitled to use its reрly to amend its motion for summary judgment or to raise new and independent summary judgment grounds. Guest v. Cochran,
Accordingly, we sustain appellant’s third and fourth issues. For these reasons, we will consider only those arguments advanced pursuant to Rule 166a(c).
V. Traditional Motion for Summary Judgment
In his first two issues, appellant challenges the trial court’s grant of the traditional motion. Issue one argues Integrity’s acts and omissions are actionable under the DTPA and section 641.061 of the Insurance Code, Appellant’s second issue аsserts common law defenses are not applicable to claims under the DTPA or the Insurance Code. We address each in turn.
A. Was there an actionable misrepresentation?
Appellant contends Geisler’s representation that the policy-met his expectations, without informing appellant that he had not read the policy, was a misrepresentation of insurance coverage. See Tex. Bus. & Com. Code Ann. §§ 17.46(b)(5), (12), (24), 15.50(a)(3) (West 2011); Tex. Ins. Code Ann. § 541.061(a)(1), (2), (3) (West 2009). Integrity does not dispute that an affirmative misrepresentation of insurance coverage may give rise to claims under the DTPA or the Texas Insurance Code. See Brown & Brown of Texas, Inc. v. Omni
In its motion for summary judgment, Integrity argued that absent an affirmative misrepresentation, appellant’s mistaken belief about the scope of coverage is not actionable under the DTPA or the Texas Insurance Code. We agree. See Moore v. Whitney-Vaky,
Integrity further contended that appellant’s mistaken belief that it is obtaining coverage under certain contingencies, which are not in fact covered by the policy, cannot establish liability. We agree that “[g]eneral claims by the insurer of the adequacy or sufficiency of coverage, for instance, are not generally actionable under the DTPA.” State Farm, Cnty. Mut. Ins. Co. v. Moran,
In this case, Geisler did more than represent the policy provided “full ‘coverage” and there is no evidence that appellant was aware of the exclusion. Appellant’s uncontested affidavit avers that he did not read the policy before aсcepting it because he relied upon Geisler’s assurances the policy provided coverage from “loading to unloading,” as well as all of the scenarios appellant posited. (Emphasis added.) Also uncontested is the evidence reflecting the policy contained an express exclusion of coverage for improper loading. Geisler’s assurances to appellant’s questions amounted to more than “vague representations.” See Bank One, Tex., N.A. v. Little,
Accordingly, we hold that, indulging all inferences in appellant’s favor,- the trial court erred in granting summary judgment on the basis there was no affirmative misrepresentation of insurance coverage. See generally First Title Co. of Waco v. Garrett,
B. Does appellant’s failure to read the policy preclude his claims?
Integrity denies raising a common-law defense and states “it asserted [appellant’s] failure to read the policy negated the misrepresentation element of his claims as a matter of law.” Integrity’s motion for summary judgment maintained “under Texas law, [appellant] is charged with the duty to read the policy and with the knowledge of its terms (whether he has read them or not).” Integrity contends the rule that an insured is charged with knowledge of the contents of his policy (the “deemed to know” rule) is not an affirmative defense.
We see nо distinction between “failure to read” and “deemed to know.” Integrity’s motion for summary judgment asserted to the trial court that appellant was charged with the duty to read the policy. Integrity further asserted appellant was charged with knowledge of the policy’s terms. Such knowledge could only have been gained by reading the policy. Regardless of Integrity’s characterization, the trial court was asked to grant summary judgment for the reason that appellant failed to read the policy, thereby failing to discover the exclusion which was contrary to Geisler’s representations of coverage. Thus we address appellant’s argument that “failure to read” is a common-law defense that cannot be raised to defeat a claim under the DTPA or the Insurance Code.
In Smith v. Baldwin,
Appellant refers this court to Frank B. Hall & Co. v. Beach, Inc.,
However, in Celestino v. Mid-Am. Indem. Ins. Co.,
None of these claims endured [the insured’s agent] failure to read the relevant exclusions in the policy of insurance he purchased. But see Frank B. Hall & Co. v. Beach, Inc.,733 S.W.2d 251 , 264 (Tex. App.-Corpus Christi 1987, writ ref'd n.r.e.) (in factually similar case ' holding insurance agent liable, no common-law defense of contributory negligence in failure to read policy under Insurance Code or DTPA).
Thus the court declined to hold, as it had in Hall, that “failure to read” could’ not be raised. However, it did so only after determining “Mid-America neither misrepresented the coverage nor owed [the insured] a duty to disсlose the exclusion of exemplary damages more expressly than it did in the plain wording of the policy.” Id.
We see a distinction between Hall and Celestino. In Celestino, the court declined to impose a duty to explain policy provisions and there was no misrepresentation, thus there was no claim under the DTPA.
Based upon the authorities discussed above, we decline to hold the defense of “failure to read” is applicable to alleged violations under the DTPA or the Insurance Code for an affirmative misrepresentatiоn of coverage. We now turn to Integrity’s argument that “a legion of opinions [have] applied the [“deemed to know”] rule to preclude misrepresentation claims under both the DTPA and Insurance Code.”
Integrity relies upon Shindler v. Mid-Continent Life Ins. Co.,
In Shindler, the policies at issue terminated by their own terms on June 27, 1981. Id. In March 1983, the insurance agent provided an analysis of coverage which included those policies. Id. We noted the necessity of paying premiums to avoid termination was stated in the policies and an insured is deemed to know the contents of the contract he makes. Id. We held the insured was charged as a matter of law with knowledge that premiums were to be paid to prevent the policies from expiring under their own terms.’ Id. We further held the insured could not assert a claim for misrepresentatiоn based on conduct that occurred after the policies had terminated due to non-payment. Id. at 335 (emphasis added). Thus in Shindler the alleged affirmative misrepresentation occurred after the policies expired, not before- they were accepted by the insured.
■Integrity’s reliance upon Pankow v. Colonial Life Ins. Co. of Tex.,
Manion,
The court went on to state, “Manion’s claim also fails because she was deemed to know the contents of the policy, which specifically excludеd flood coverage.... An insured has a duty to read the policy and, failing to do so, is charged with knowledge of the policy terms and conditions.” Id. at *3. The Manion court’s application of the “deemed to know” rule in the absence of an affirmative misrepresentation is not inconsistent with our determination above that “failure to read” is not a defense to a claim for an affirmative misrepresentation that violates the DTPA or the Insurance Code.
Also cited by Integrity are Jeffries v. Pat A. Madison, Inc.,
Integrity refers to Brown & Brown of Tex.,
Subsequently, the Brown court rejected a request to extend due diligence obligations to parties such as Omni. Brown & Brown of Tex.,
More akin to the instant case are Garrison Contractors, Inc. v. Liberty Mut. Ins. Co.,
In this case, appellant’s uncontested affidavit avers that he relied upon Geisler to provide the coverage he requested and believed, from Geisler’s answers to his questions about coverage, that Geisler had read the policy. As the evidence set forth above demonstrates, even though he never read the policy, Geisler also believed that he had given appellant a policy with the requested amount of coverage. Appellant’s failure to read the policy does not preclude his claims under the DTPA or the Insurance Code. Because appellant’s claims are for alleged violations under the DTPA and the Insurancе Code based upon an affirmative misrepresentation of coverage, the trial court could not have properly granted summary judgment on the basis that appellant was deemed to know the contents of the policy. Appellant’s second issue is sustained.
VI. Conclusion
Accordingly, we reverse the trial court’s judgment in favor of Integrity and remand for further proceedings.
Notes
. There was no evidence to the contrary.
. Alternatively, appellant claims his affidavit provided some evidence of each element.
. In Baldwin, the court rejected imposing a requirement of proof of intent for a claim brought under the DTPA for misrepresentatiоn where the DTPA had no such requirement. Id. at 617. See also Diversified, Inc. v. Gibraltar Sav. Ass’n,
. A violation of certain contract for deed provisions also is actionable under the DTPA,
. Appellant further notes this court cited Hall in Morton v. Hung Nguyen, 369 S.W,3d 659, 673 (Tex. App.-Houston [14th Dist.] 2012), rev'd in part sub nom. 412 S.W,3d 506 (Tex. 2013), when we stated, "Common-law defenses may not be used to defeat claims brought under a statute that was not designed to be a codification of the common law.” As noted above, in its opinion the Texas Supreme Court held the statutory remedy incorporated the common law element of mutual restitution. Morton v. Nguyen, 412 S.W,3d at 511, Our opinion did not determine that issue, but ' held it had been waived, Morton v. Hung Nguyen,
. Specifically, article 21,21 which was repealed by Act of June 21, 2003, 78th Leg. R.S., ch. 1274, § 26(a)(1), Tex. Gen. Laws 4138,