No Opposition Fatal

No Opposition Fatal

No Insurance Policy Covers Every Possible Risk of Loss

Clark and Nancy Sadler appealed a summary judgment granted in favor of Texas Farm Bureau Mutual Insurance Companies (“Farm Bureau”) on the Sadlers’ Deceptive Trade Practices- Consumer Protection Act (DTPA) claim. The Sadlers sued Farm Bureau for breach of contract and violations of the Texas DTPA. Their suit failed when a “no evidence” summary judgment was granted by the trial court. In Sadler v. Texas Farm Bureau Mutual Insurance Texas Farm Bureau Mutual Insurance Companies, 04- 12-00789-CV (Tex.App. Dist.4 09/04/2013) a Texas appellate court was asked to resolve the dispute.

FACTS

Nancy attempted to move her vehicle into her home’s garage. She lost control of the vehicle after starting it and crashed through the garage, damaging the vehicle and the home. Before this incident, the Sadlers purchased an insurance policy from Farm Bureau.

Farm Bureau filed a motion for summary judgment on the Sadlers’ breach of contract and DTPA claims. The Sadlers filed affidavits in response to the motion, in which they stated that the Farm Bureau agent who sold them the policy represented that the policy would give them “full coverage” on their home, property, and “anything that happened on [their] property or to [their] home.” The trial court granted the second motion which the Sandlers did not oppose.

In their sole issue on appeal, the Sadlers assert that the trial court erred in granting Farm Bureau’s motion for summary judgment for two reasons.

SUMMARY JUDGMENT MOTIONS

In Texas a party may move for a no evidence summary judgment that must be granted if, after an adequate time for discovery, the moving party asserts that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial, and the nonmovant fails to produce more than a scintilla of summary judgment evidence raising a genuine issue of material fact on those elements.

DISCUSSION

A proper no-evidence motion must state there is no evidence of one or more elements of a claim or defense on which the nonmovant would have the burden of proof at trial. The purpose of this specificity requirement is to provide the nonmovant with adequate information for opposing the motion and to define the issues for the purpose of summary judgment.

The Sadlers brought their DTPA action under a Texas statute that states in relevant part: (a) A consumer may maintain an action where any of the following constitute a producing cause of economic damages or damages for mental anguish:

(1) the use or employment by any person of a false, misleading, or deceptive act or practice that is:

(A) specifically enumerated in a subdivision of Subsection (b) of Section 17.46 of this subchapter; and (B) relied on by a consumer to the consumer’s detriment; [or]…

(3) any unconscionable action or course of action by any person[.]

Thus, to prevail on their DTPA claim, the Sadlers were required to show: (1) they are consumers; (2) Farm Bureau used or employed at least one of the laundry list items of false, misleading, or deceptive acts or practices that the Sadlers relied on to their detriment, or Farm Bureau engaged in an unconscionable action or course of action; and (3) these acts constituted a producing cause of the Sadlers’ damages.

In its no-evidence motion, Farm Bureau adequately set forth the elements to which it claimed there was no evidence.

In its first and third assertions, Farm Bureau challenged the second element of the Sadlers’ claim because the motion stated the Sadlers have no proof that Farm Bureau engaged in false, misleading, or deceptive acts or that the Sadlers justifiably relied on those acts to their detriment. In its fourth and fifth assertions, Farm Bureau challenged the third element of the Sadlers’ claim because the motion stated the Sadlers have no proof that the acts caused the Sadlers’ damages or that they even suffered damages. Farm Bureau’s no-evidence summary judgment motion was found to be sufficient because it challenged at least one element of the Sadlers’ DTPA claim on which they would have the burden of proof at trial, and, as a result, the burden shifted to the Sadlers to produce more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements.

If a nonmovant wishes to defeat a no-evidence summary judgment motion, it must timely file a response to the motion. Except on leave of court, the nonmoving party must file a response not later than seven days before the day of the hearing. A court may grant no-evidence summary judgment if the nonmovant does not file a response and the motion is sufficient, but may not necessarily grant traditional summary judgment, for the same reasons. Mere existence in the court’s file of a response to an earlier summary judgment motion is not enough. A party properly places evidence before the trial court by requesting in a motion that the trial court take judicial notice of evidence already in the record or by incorporating the document or evidence in the party’s motion. Nothing in the record suggests the Sadlers filed a response to the no-evidence motion. Nor does the record indicate they requested that the trial court take judicial notice of the affidavits attached to the response to Farm Bureau’s traditional summary judgment motion. For these reasons, we must conclude the Sadlers did not respond. Therefore, they did not meet their burden of producing more than a scintilla of evidence raising a genuine issue of material fact.

The Sadlers’ second claim is that the trial court should not have granted Farm Bureau’s no-evidence summary judgment motion because “the allegations in Farm Bureau’s No-Evidence Motions for Summary Judgment are sufficient in and of themselves to raise a fact issue sufficient to preclude the summary judgment requested by Farm Bureau.” The allegations contained in Farm Bureau’s no-evidence motion are not admissions. Farm Bureau was merely describing the Sadlers’ pleadings in order to provide background for its no-evidence motion. Accordingly, Farm Bureau did not defeat its no-evidence motion by summarizing the Sadlers’ pleadings.

Conclusion

Farm Bureau’s no-evidence motion for summary judgment was sufficient to shift the burden to the Sadlers to produce more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements. By failing to respond to the motion, the Sadlers failed to meet their burden, and the trial court did not err in granting no-evidence summary judgment in favor of Farm Bureau on the Sadlers’ DTPA claim. Therefore, the Sadlers’ sole issue is overruled, and the judgment of the trial court is affirmed.

ZALMA OPINION

The key to the Sadlers’ suit was the representation made by the agent believing that his words extolling the coverages available override the wording of the policy. An agent by his sales representations cannot change the wording of an insurance policy. No policy covers everything. Every policy of insurance contains exclusions like an exclusion for damages caused by the insured to their own property or caused intentionally.

The appellate record did not deal with the specific reasons why the insurer denied the Sadlers’ claim. It is obvious that they had no defense to the motion because the presented no evidence. If they had evidence they are not without a remedy, they can always sue their attorney. The original motion for summary judgment should have been granted because a statement from an insured that the agent told her that the policy would cover everything was less than credible. The Sadlers proved the lack of defense by filing no opposition.