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Amwins Specialty Auto, Inc. v. Cabral

Court of Appeals of Texas, Eleventh District

March 29, 2019

AMWINS SPECIALTY AUTO, INC., Appellant
v.
EDUARDO CABRAL, Appellee

          On Appeal from the County Court at Law Ector County, Texas Trial Court Cause No. CC-26, 689.

          Panel consists of: Bailey, C.J., Willson, J., and Wright, S.C.J. [1]

          OPINION

          John M. Bailey, Chief Justice.

         This case involves a "hit and run" car accident between Ivan Molina and an unidentified driver who fled the scene of the accident on foot and abandoned the vehicle. The abandoned vehicle, an Infiniti, was registered to Eduardo Cabral. After the accident, AmWins Specialty Auto, Inc., as subrogee of Molina, sued Cabral for negligence, negligent entrustment, and "aiding and abetting." Cabral filed a no-evidence and a supplemental no-evidence motion for summary judgment. The trial court granted summary judgment in Cabral's favor.

         On appeal, AmWins brings two issues in which it contends that the trial court erred in the entry of summary judgment in favor of Cabral. In its first issue, AmWins argues that it produced more than a scintilla of evidence on all three of its causes of action against Cabral. In its second issue, AmWins argues that Cabral's supplemental no-evidence motion for summary judgment failed to specify the elements of AmWins's aiding-and-abetting claim for which Cabral asserted there was no evidence. We affirm.

         Background Facts

         The accident occurred in the early morning hours on March 23, 2014, in Odessa. The unidentified driver of the Infiniti ran a stop sign and collided with Molina at an intersection and then fled on foot from the accident scene. The driver was never identified. It is undisputed that record title to the Infiniti was in Cabral's name and that Cabral had been maintaining a liability insurance policy on the vehicle through State Farm Insurance Company. When the police questioned Cabral about the accident two weeks later, he denied being the driver of the Infiniti. Instead, Cabral explained that he had previously sold the car to his former roommate, Jesus Vargas, whom he had lived with in an RV in Odessa for about a year.

         Cabral testified in his deposition that the last time he saw Vargas was before the accident, on or about March 13, when Cabral left for El Paso to see his wife. Cabral said that, on the day of the accident, he was still in El Paso with his wife and that, when he returned to Odessa on March 24, Vargas had moved out of the RV they were living in and had taken the car with him. Cabral also stated that he had not seen or communicated with Vargas since and that he had no information with regard to Vargas. Additionally, AmWins was unable to locate Vargas.

         In Cabral's deposition, Cabral testified that he had never transferred the car's certificate of title to Vargas because Vargas never paid him the full asking price for the car. Cabral also testified that he had maintained liability insurance for the vehicle. When asked why he continued to insure the vehicle, Cabral said: "I don't know"; "if something happens, I'll still keep the [Infiniti] because he hasn't paid me the full amount"; and "I was waiting for Jesus Vargas to get his own insurance and . . . he never did, so that's why I kept paying for that liability insurance." Cabral testified that the first time he learned about the accident was two weeks after the accident, when the police questioned him; although later evidence showed that Cabral attempted to cancel his insurance policy on the vehicle the day after the accident. Cabral also said that he had no way of contacting Vargas, but the police report showed the opposite-that Cabral and the police attempted to contact Vargas.

         AmWins propounded interrogatories and requests for production and served them on Cabral, seeking information about the driver of the vehicle and any documentary evidence supporting the sale of the vehicle to Vargas. Cabral responded that he did not know who the driver was. Cabral also stated that he had no documentary evidence of the sale because he had entered into an "oral agreement" with Vargas for the sale of the vehicle. Cabral's discovery responses led AmWins to file a motion to compel. The premise of the motion was that Cabral failed to provide any sort of information on Vargas or any satisfactory answers as to why Cabral retained ownership over, and continued to insure, the vehicle. The trial court denied AmWins's motion to compel on the basis that it could not compel information from Cabral that Cabral did not have.

         AmWins sued Cabral, asserting causes of action for negligence and negligent entrustment. Under its theory of negligence, AmWins alleged that Cabral negligently operated the vehicle. Under its theory of negligent entrustment, AmWins alleged that Cabral negligently entrusted the vehicle to a "third party."

         AmWins later amended its petition to allege an aiding-and-abetting cause of action. Under that theory, AmWins alleged that Cabral "aided and abetted a third party by knowingly participating in a breach of duty owed by the third party to the Plaintiff's insured" and "knowingly allowed a third party to operate a motor vehicle registered to and owned by Defendant without verifying whether the third party was a licensed driver or maintained a valid insurance policy." AmWins asserted that Cabral continued to aid and abet the alleged tortfeasor by refusing to tender any information regarding the person to whom he sold the vehicle.

         Cabral's original no-evidence motion for summary judgment only addressed AmWins's negligence and negligent entrustment claims. In this regard, these were the only theories of recovery that AmWins had asserted at the time Cabral filed his no-evidence motion. AmWins subsequently amended its petition to add the aiding-and-abetting cause of action. Cabral subsequently filed a supplemental no-evidence motion to address the aiding-and-abetting claim.

         In his no-evidence motions for summary judgment, Cabral challenged all the elements of AmWins's negligence claim. With respect to AmWins's negligent entrustment claim, Cabral asserted that AmWins had no evidence that Cabral entrusted the vehicle to a third party; that the third party was an unlicensed, incompetent, or reckless driver; or that Cabral knew or should have known that the third party was an unlicensed, incompetent, or reckless driver. In his supplemental motion, Cabral challenged AmWins's aiding-and-abetting claim on the following ground:

Plaintiff has not cited any statutory or common law precedent creating a civil cause of action for Aiding and Abetting another person for negligence in the operation of a motor vehicle. Defendant was not able to identify any statute or common law precedent creating a civil cause of action for aiding and abetting another person for negligence in the operation of a motor vehicle. Defendant assumes plaintiff was attempting to allege a variation of negligent entrustment based on the allegation that defendant knowingly allowed a third party to operate his motor vehicle without verifying that person was licensed or insured. . . . [P]laintiff has not established the elements of a negligent entrustment claim for "aiding and abetting." If plaintiff instead claims the "aiding and abetting" is related to defendant allegedly refusing to provide information ...

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