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Morrison v. Campbell

Court of Appeals of Texas, Second District, Fort Worth

January 16, 2014








In this agreed interlocutory appeal, James Bradley Morrison appeals from the trial court's denial of his motion for summary judgment on the claim for loss of use damages brought against him by James Campbell.[1] Morrison's vehicle struck

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Campbell's motorcycle in an accident, and the motorcycle was damaged. Morrison argues that loss of use damages are not available to Campbell because his motorcycle was declared a total loss. Because we hold that damages for loss of use are available in total loss cases when the insurer unreasonably delays payment of a claim, we affirm the trial court's denial of the motion for summary judgment.

Facts and Procedural History

The accident that gave rise to this suit occurred on October 23, 2009. On June 22, 2010, Morrison's insurance carrier (Insurer) sent a letter to Campbell's attorney denying Campbell's claim based on its determination that Campbell was at fault for the accident because of " faulty evasive action & following too closely." The record does not contain any more communications between Insurer and Campbell's attorney in 2010. On January 19, 2011, Insurer sent the attorney a letter offering $100,000.00 to settle Campbell's personal injury claims arising out of the accident. That same month, Insurer sent Campbell a check for that amount.

The next month, Campbell's attorney sent Insurer a letter regarding Campbell's claims for damages to his motorcycle and other personal property. He stated that the damage to the motorcycle " rendered it inoperable. In addition to the property damage to his motorcycle, [Campbell] has lost the use of his motorcycle from the date of the collision to the present." He asserted that the proper measure of loss of use damages is the reasonable rental value of a substitute vehicle and that " [t]he cost of renting a replacement motorcycle during this time is $125.00 per day."

As for the repair and replacement costs, the attorney stated that he was authorized to accept the amounts listed in the letter " in full settlement of [Cambpell's] property damage claim." He listed the following items and amounts:


helmet, leather chaps[,] and pants, see attached receipt


accessories, see attached receipt


cost of repair, see attached receipt


loss of use from October 23, 2009 through February

28, 2011, 493 days x $125.00 per day


The record does not, however, include any receipts that may have been attached to this letter.

On April 20, 2011, Insurer sent Campbell's attorney an offer of $53,125.00 for the motorcycle, clear title, and salvage, plus $1,884.70 for the clothing damaged in the accident. Alternatively, it offered that if Campbell wanted to keep the salvage, Insurer would pay $42,825.00 for the motorcycle.

The attorney responded the next day with a letter accepting the offer of $42,825.00 plus the salvage. He also accepted the offer of $1,884.70 for the clothing items and demanded additional damages for Campbell's damaged GPS system. He agreed to accept a total of $3,383.70 for the GPS and clothing items. He confirmed his understanding that as to Campbell's

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loss of use claim, " [Insurer] rejected this claim, [and] that it is not included as part of this settlement." A check from Insurer dated May 3, 2011 was made out to Campbell in the amount of $46,208.70.

On June 13, 2011, Campbell filed suit against Morrison for loss of use damages. In response to requests for admissions, Campbell admitted that the motorcycle was a total loss following the collision and that he accepted $42,825.00 as fair compensation for the fair market value of the motorcycle, " excluding [Campbell's] claim for loss of use damages."

Morrison filed a motion for summary judgment on the ground that as a matter of law, loss of use damages are available only for property that is repairable and are not available for property that has been declared a total loss. Campbell responded that the rule relied on by Morrison does not apply when the insurer delays paying a claim. He attached to his response his own affidavit in which he stated that because of the collision, his motorcycle had been damaged to the point that it could not be driven, that he was financially unable to replace the motorcycle until he had been paid the fair market value, and that Insurer " delayed paying [him] the fair market value of this motorcycle for a period exceeding eighteen months." He also attached the police report of the accident, Insurer's letter denying the claim, Insurer's January 2011 letter offering to settle the personal injury claim, the February 2011 letter from his attorney demanding damages for the motorcycle and other personal property, the April 2011 offer from Insurer; the April 2011 letter from Campbell's attorney accepting the offer and asking for damages for the GPS, and a copy of the May 2011 check from Insurer.

The trial court denied the summary judgment motion without specifying the basis of the ruling. The trial court approved Morrison's application for an agreed interlocutory appeal on this question of law: " whether [Campbell] can recover loss of use damages where [Campbell's] motorcycle was determined to be a total loss and where [Morrison] (through his insurer) substantially delayed compensating [Campbell] for its fair market value." The court noted that it had denied the summary judgment motion on the merits, and it stated that " if the appellate court determines [Campbell] can recover loss of use damages under these circumstances, the case would likely resolve at mediation. Similarly, if the appellate court determines [Campbell] cannot recover loss of use damages under these circumstances, the case would likely be resolved."

Standard of Review

We review a summary judgment de novo.[2] We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not.[3] We indulge every reasonable inference and resolve any doubts in the nonmovant's favor.[4] A defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim.[5]

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We must accept as true the uncontroverted evidence of the nonmovant.[6] If the uncontroverted evidence is from an interested witness, it does nothing more than raise a fact issue unless it is clear, positive and direct, otherwise credible and free from ...

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