Court of Appeals of Texas, Second District, Fort Worth
THE 348TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
SUDDERTH, C.J.; MEIER and GABRIEL, JJ.
Nationwide Property & Casualty Insurance Company appeals
the trial court's summary-judgment order in favor of
Appellees Revive Mfg., LLC and Paul Taff in this subrogation
action stemming from a fire that caused damage to a property
owned by Nationwide's insured. In four issues, Nationwide
argues that the trial court erred by granting Appellees'
no-evidence motion for summary judgment and by denying
Nationwide's motions for summary judgment and for new
trial. We will affirm in part and reverse and remand in part.
Fuller d/b/a Fuller Leasing owns several properties in
Everman, including one that he leased to "Revive
Manufacturing ‒ Paul Taff" pursuant to a
commercial lease agreement that began in April
2012. The property is improved with a single
story, metal construction building and is insured through
by Taff and his wife, Revive is in the business of reclaiming
and remanufacturing wooden shipping pallets. One of
Revive's employees was Robert Valdez. Jay Suggs, an
acquaintance of Taff's but not an employee of
Revive's, owned a nearby business and used Revive's
equipment on occasion.
point during the remanufacturing process, Revive utilized a
machine called a "notcher." The record does not
reveal the precise manner in which the machine operated, but
suffice it to say that sawdust collects in its exhaust chute
when wooden boards are notched. Revive admitted that in the
past, it had "experienced smoldering fires caused when
nails in the wood became hot during the notching and settled
among the sawdust resulting from the notching process."
Taff therefore had a standing rule that the notcher had to be
cleaned out after every use. He also preferred to use the
machine only during the morning.
7, 2013, Taff left work around noon, leaving Valdez in
charge. According to Suggs, beginning sometime after 4:00
p.m., Valdez and Suggs used the notcher for about an hour and
a half. After finishing, Suggs left, and Valdez used a
forklift to take the notched runners over to Suggs's
shop. Suggs last saw Valdez driving the forklift back to
Revive, but he never saw Valdez clean out the notcher, nor
did he do so himself.
returned to work early the next morning to find Revive's
leased building on fire and damaged. Fuller Leasing made a
claim under its insurance policy, which Nationwide paid in
the amount of $281, 638.68. Nationwide then initiated this
subrogation action against Appellees, alleging negligence for
failing to clean the notcher and breach of contract for
failing to carry insurance and seeking damages in the same
amount that it paid Fuller Leasing. Appellees denied
Nationwide's claims and filed a third-party petition
against Suggs for negligence and statutory theft, averring
that Suggs had entered onto Revive's property after hours
and convinced Valdez to use the notcher but failed to clean
sides ultimately moved for summary judgment. Nationwide filed
two traditional motions on its negligence and contract
claims-one on liability and one on damages. Appellees filed a
no-evidence motion challenging each element of
Nationwide's negligence and contract claims. And Suggs
filed a no-evidence motion challenging Appellees'
negligence and theft claims.
relied on the same evidence in support of both its motion for
summary judgment on liability and its response to
Appellees' no-evidence motion. The evidence included
Taff's deposition testimony, in which Taff confirmed that
Valdez had admitted using the notcher with Suggs the night
before the fire. When asked what he thought had caused the
fire, Taff assumed that Valdez and Suggs had used the notcher
and "that that started the fire." The evidence also
included the affidavit and report of Phillip Grona, a
forensic fire investigator who opined that the "cause of
the fire was attributed to improper cleaning and disposal of
notching machine debris."
prove damages, both in its traditional motion on damages and
in response to Appellees' no-evidence motion, Nationwide
submitted the affidavit of Rich Gallion, who affirmed that
Nationwide had sustained damages in the amount of $281,
response to Nationwide's motion for summary judgment on
negligence, Appellees acknowledged that Valdez was
Revive's employee but argued that he was acting outside
the scope of his employment when he and Suggs used the
notcher the day before the fire. Appellees also lodged
objections to Grona's affidavit and report.
trial court denied Nationwide's motions, granted
Appellees' motion and several of its objections to
Grona's affidavit and report, and granted Suggs's
motion. Nationwide timely filed a motion for reconsideration
and for new trial, which was overruled by operation of law.
Only Nationwide appeals.
Summary Judgment Rulings
first three issues challenge the trial court's
summary-judgment rulings. Its first issue, Nationwide argues
that the trial court erred by granting Appellees'
no-evidence motion on Nationwide's negligence claim. In
its second issue, Nationwide argues that the trial court
erred by granting summary judgment in favor of Appellees on
Nationwide's breach-of-contract claim. And in its third
issue, Nationwide argues that the trial court erred by
denying its traditional motions for summary judgment on
liability and damages on its negligence claim.
Standard of Review
review a no-evidence motion for summary judgment under the
same legal sufficiency standard as a directed verdict.
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248
(Tex. 2013). The nonmovant has the burden to produce more
than a scintilla of evidence to support each challenged
element of its claims. Id. In a traditional motion
for summary judgment, the movant has the burden to show that
there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law.
Tex.R.Civ.P. 166a(c). A plaintiff is entitled to summary
judgment on a cause of action if it conclusively proves all
essential elements of the claim. See id.; MMP,
Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). In
reviewing either type of summary-judgment motion, we view the
evidence 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.
Merriman, 407 S.W.3d at 248; Mann Frankfort
Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009).
elements of Nationwide's negligence claim are the
existence of a legal duty, a breach of that duty, and damages
proximately caused by the breach. See Doe v. Boys Clubs
of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.
do not appear to dispute that Nationwide met its
summary-judgment burden to show that a duty existed, but
insofar as they do, Nationwide met its burden.
Notwithstanding that the 2012 lease obligated the lessee to
"maintain the premises in good and safe condition"
and to "surrender the same at termination hereof, in as
good condition as received, " as Nationwide observes,
the common law "imposes upon all persons the duty to
exercise ordinary care to avoid injury or damage to the
property of others." Elliff v. Texon Drilling
Co., 146 Tex. 575, 584, 210 S.W.2d 558, 563 (1948).
to the breach element, Nationwide sought to impose liability
upon Appellees for Valdez's negligence in failing to
clean the notcher after he and Suggs used it on May 7, 2013.
Nationwide thus invoked the common-law doctrine of respondeat
supreme court recently clarified the general framework for
addressing the common-law doctrine of respondeat superior, or
vicarious liability. See Painter v. Amerimex Drilling I,
Ltd., No. 16-0120, 2017 WL 8794796, at *3 (Tex. Dec. 6,
2017). In the employer-employee context, to prove an
employer's vicarious liability for a worker's
negligence, the plaintiff must show that at the time of the
negligent conduct, the worker (1) was an employee and (2) was
acting in the course and scope of his employment.
Id. Appellees do not dispute that Valdez was
Revive's employee. Under the course-and-scope
requirement, vicarious liability arises only if the
complained-of act was (1) within the scope of the
employee's general authority, (2) in furtherance of the
employer's business, and (3) for the accomplishment of
the object for which the employee was hired. Id. at
*4; Green v. Ransor, Inc., 175 S.W.3d 513, 516 (Tex.
App.-Fort Worth 2005, no pet.). Further, the act
"'must be of the same general nature as the conduct
authorized or incidental to the conduct authorized.
Accordingly, if an employee deviates from the performance of
his duties for his own purposes, the employer is not
responsible for what occurs during that deviation.'"
Painter, 2017 WL 8794796, at *4 (quoting
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d
754, 757 (Tex. 2007)); see Arbelaez v. Just Brakes
Corp., 149 S.W.3d 717, 720 (Tex. App.-Austin 2004, no
pet.) (observing that course and scope of employment is
generally a fact issue).
Admissions and "Judicial Admissions"
its response to Appellees' no-evidence motion and its
motion for summary judgment on liability, Nationwide relied
in part on five of Appellees' responses to requests for
admissions and several "judicial admissions"
contained in Appellees' third-party petition to establish
Appellees' negligence for Valdez's failure to clean
the notcher after using it with Suggs on May 7, 2013. The
requests for admissions were as follows:
Admission No. 1:
This defendant was a tenant of plaintiff's insured, Rick
Fuller dba Fuller Leasing under a lease for his properties
located at 304, 306 & 308 [Thomas Place, ] Everman, Texas
Admit as to Defendant Revive Mfg. Deny as to Defendant Taff.
Admission No. 2:
This defendant operated a wood product manufacturing business