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Wagley v. Neighborhood Insurance Specialists

Court of Appeals of Texas, Fourteenth District

May 10, 2018

JODI WAGLEY, Appellant
v.
NEIGHBORHOOD INSURANCE SPECIALISTS AND TERRY LYNN STANLEY D/B/A NEIGHBORHOOD INSURANCE SPECIALISTS, Appellees

          On Appeal from the 269th District Court Harris County, Texas Trial Court Cause No. 2015-70695

          Panel consists of Chief Justice Frost and Justices Jamison and Busby.

          MEMORANDUM OPINION

          KEM THOMPSON FROST CHIEF JUSTICE

         A customer who filed suit against an insurance agency asserting claims for negligence, breach of contract, and violations of the Insurance Code and Deceptive Trade Practices Act challenges the trial court's (1) granting of summary judgment in favor of the insurance agency, (2) failure to grant the customer's motion for new trial, and (3) failure to grant the customer's motion for leave to amend her pleadings after the trial court rendered judgment. We affirm.

         Factual and Procedural Background

         In June 2015, after purchasing a new car, appellant/plaintiff Jodi Wagley contacted appellee/defendant Neighborhood Insurance Specialists, an insurance agency, to discuss insurance coverage for the new car. Neighborhood Insurance Specialists quoted Wagley rates for insurance policies from several insurance companies.

         In connection with her inquiry, Wagley communicated with Neighborhood Insurance Specialists's receptionist Kathy Thorn, who was not a licensed insurance agent. Wagley asked questions about the different quotes and commented that the quoted coverage seemed expensive. Wagley had not accepted any of the quotes Neighborhood Insurance Specialists had provided when, in July 2015, about a month after she bought the new car, an individual broke the car's windshield in an attempted theft. Wagley lost the use of the car during the time the car was being repaired. After the incident, Wagley continued to communicate with Neighborhood Insurance Specialists about different quotes for insurance coverage for the car.

         Wagley submitted the loss resulting from the windshield incident to her existing insurer, but the insurer denied Wagley's claim on the stated basis that the damage to the new car was not a covered loss because Wagley had not added the new car to the policy and the policy covered a new car only for twenty days after purchase unless the car was added to the policy.

         Wagley's Lawsuit

         Wagley filed suit against Terry Lynn Stanley d/b/a Neighborhood Insurance Specialists and Neighborhood Insurance Specialists. Wagley alleged that Thorn had represented to Wagley that Thorn was a licensed insurance agent and that Thorn did not timely procure coverage for Wagley's new car. According to Wagley, Thorn assumed Wagley's new car would be covered by Wagley's existing insurance coverage. In her suit, Wagley asserted claims under the Insurance Code and Deceptive Trade Practices Act (DTPA) based on Neighborhood Insurance Specialists's alleged representation that Thorn was a licensed insurance agent when she was not a licensed insurance agent as well as claims for negligence and breach of contract.

         Summary Judgment

         Neighborhood moved for traditional and no-evidence summary judgment asserting various traditional and no-evidence summary-judgment grounds against each of Wagley's claims. Wagley filed a response to the summary-judgment motion in which she asserted that the evidence shows Thorn represented that (1) Thorn was a licensed insurance agent and (2) Wagley's new car would be covered under Wagley's existing insurance policy. Wagley asserted that she relied on those representations.

         Wagley's Summary-Judgment Evidence

         Wagley attached to her summary-judgment response her own affidavit and Thorn's affidavit. Wagley averred to the following in her affidavit:

• "I asked Kathy Thorn, an insurance agent with NEIGHBORHOOD INSURANCE SPECIALISTS, to cover the vehicle made the basis of this suit."
• "Ms. Thorn assumed that I would be covered based on the existing policy I had in place with SGA [the existing insurer]. She did not bind the new coverage I requested in time to cover the loss made the basis of this suit."
• "After the loss I discovered Ms. Thorn was not licensed."
• NEIGHBORHOOD INSURANCE SPECIALISTS and Ms. Thorn represented to me that their services had sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities which they did not and do not have, specifically that Kathy Thorn was a licensed agent." Thorn's affidavit states:
• "I was asked by [Wagley], a long-time customer, to obtain a quote on the vehicle made the basis of this suit."
• "The quotes were in process when Ms. WAGLEY incurred the property damage to her vehicle. She believed she would be covered under her prior coverage."
• "Because I was not available to bind her coverage on the date she requested (as I was out sick), the coverage was not bound by NEIGHBORHOOD INSURANCE SPECIALISTS in time to cover the loss."
• "JODI WATLEY (sic) understood during the two years that I worked with her that I was a licensed insurance agent. I was not a licensed insurance agent. She was reasonable in this belief based on my representations to her. I know she was shocked when she found out that I was not licensed."
• "NEIGHBORHOOD INSURANCE SPECIALISTS and I represented to Ms. Wagley that our services had sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities which they did not and do not have."
• "An employee of NEIGHBORHOOD INSURANCE SPECIALISTS . . . contacted SGA [the existing insurer] and did everything he could to have [Wagley's] claim denied."

         Terry Lynn Stanley d/b/a Neighborhood Insurance Specialists moved to strike certain parts of the affidavits Wagley attached to her response based on the following objections.

Affidavit Statement

Terry Lynn Stanley d/b/a Neighborhood Insurance Specialists's Objection(s)

Wagley's affidavit: “Ms. Thorn assumed that I would be covered based on the existing policy I had in place with [the existing insurer].”

Wagley lacks personal knowledge or any personal knowledge is based on hearsay.

Thorn's affidavit: “[Wagley] believed she would be covered under her prior coverage.”

Thorn lacks personal knowledge.

Thorn's affidavit: “[Wagley] understood during the two years that I worked with her that I was a licensed insurance agent.”

Thorn lacks personal knowledge.

Thorn's affidavit: “[Wagley] was reasonable in this belief based on my representations to her.”

Thorn lacks personal knowledge. The statement is an improper legal conclusion

Thorn's affidavit: “I know [Wagley] was shocked when she found out that I was not licensed.”

Thorn lacks personal knowledge.

Thorn's affidavit: “NEIGHBORHOOD INSURANCE SPECIALISTS and I represented to Ms. Wagley that our services had sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities which they did not and do not have.”

Thorn lacks personal knowledge. The statement contains an improper legal conclusion.

Thorn's affidavit: “[An employee of Neighborhood Insurance Specialists] . . . did everything he could to have [Wagley's] claim denied.”

Thorn lacks personal knowledge.

         The trial court granted Terry Lynn Stanley d/b/a Neighborhood Insurance Specialists's motion to strike and struck these parts of the affidavits.

         Wagley asserted that after learning that her existing insurer had denied her new-car claim, she discovered that Thorn was not a licensed insurance agent. According to Wagley, Thorn and Neighborhood Insurance Specialists represented to her that Thorn was a licensed insurance agent and Wagley relied on that representation. According to Terry Lynn Stanley d/b/a Neighborhood Insurance Specialists, Thorn occasionally communicated with Wagley on behalf of the agency's licensed insurance agents. The parties disagree about the ...


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