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Rogers v. Car Wash Partners, Inc.

United States District Court, S.D. Texas, Houston Division

December 3, 2019

Alison S. Rogers, Plaintiff,
v.
Car Wash Partners, Inc. and CWP Asset Corp., both d/b/a. Mister Car Wash, and John Doe, Defendants.

          MEMORANDUM OPINION AND ORDER

          GRAY H. MILLER SENIOR UNITED STATES DISTRICT JUDGE.

         Pending before the court is a motion for summary judgment filed by defendants Car Wash Partners, Inc. (“CWPI”) and CWP Asset Corp. (“CWPAC”), both d/b/a Mister Car Wash (collectively, “Defendants”) (Dkt. 19), and a motion for partial summary judgment by plaintiff Alison S. Rogers (Dkt. 20). After reviewing the motions, responses, replies record evidence, and the applicable law, the court is of the opinion that Defendants' motion should be DENIED IN PART and otherwise GRANTED and Rogers's motion should be DENIED.

         I. Background

         On September 19, 2016, Rogers brought her 2016 Infiniti QX80 to be washed and detailed at a Mister Car Wash location. Dkts. 13, 19. After the wash and detail were completed, the car was parked in the Mister Car Wash parking lot. Dkt. 13. Oscar Ernesto Hernandez Molina, a CWPAC employee, struck Rogers's unoccupied vehicle while operating another customer's vehicle. Dkt. 19 ¶ 1. Rogers's vehicle sustained damage and was towed to Service King, where Rogers was provided a rental car at CWPAC's expense. Id. ¶¶ 2, 4. CWPAC's insurance company paid $13, 718.17 to repair Rogers's vehicle and paid $5, 535.77 for Rogers's use of the rental vehicle. Id. ¶ 6. Later, Rogers's vehicle was flooded during Hurricane Harvey, and she received over $70, 000 from her automobile insurance carrier for her totaled loss. Id. ¶ 7; Dkt. 23 at 6.

         On September 18, 2018, Rogers sued CWPI and John Doe in the 152nd District Court of Harris Country, Texas for negligence, negligent entrustment, and negligent hiring, supervision, training, and retention. Dkt. 1-1. John Doe was the Mister Car Wash employee who drove a vehicle into Rogers's vehicle and would later be identified as Molina.[1] Dkt. 13 at 2; Dkt. 20 at 1. CWPI removed the case to this court on November 2, 2018. Dkt. 1. On April 24, 2019, Rogers amended her complaint, adding CWPAC as a defendant and new claims for a breach of an implied warranty of good and workmanlike performance for the repair or modification of existing tangible goods and a violation of the Texas Deceptive Trade Practices Act (“DTPA”) also under the theory of an implied warranty. Dkt. 13.

         Defendants have moved for summary judgment. Dkt. 19. Defendants assert that Rogers's claims fail because (1) Defendants have previously paid for Rogers's damages and no damages remain; (2) there is no evidence or insufficient evidence to support claims of direct negligence and gross negligence relating to alleged negligent entrustment, negligent hiring, supervision, training, and retention; (3) Defendants are not liable for exemplary damages based on the conduct of Molina because Molina “was not a vice principal of either corporation, and whose specific conduct in question was not ratified or approved by” CWPAC or CWPI; and (4) Rogers's claims of breach of an implied warranty and for alleged violations of the DTPA “are inapplicable in the present circumstances.” Id. ¶ 11. Defendants also request an award of attorneys' fees for the “groundless” DTPA claim. Id.

         Regarding Defendants' assertion that no recoverable damages remain, Rogers argues that (1) recoverable money damages still exist for loss of use, loss in value, personal injury, and breach of implied warranty; (2) injunctive relief is also available; and (3) even if all money damages have been paid, Defendants are not disposed of liability. Dkt. 23 at 3. Rogers contends the surveillance video of the accidence is “summary judgment evidence” of Molina's gross negligence and recklessness and that “a reasonable fact finder may conclude from the video that Molina's actions were malicious.” Id. at 10. Rogers further asserts that there are disputed facts surrounding Defendants' negligent entrustment with and hiring of Molina. Id. at 10, 13. Rogers then counters that there was an implied warranty because she is a consumer and car washing services to “modify vehicles by increasing their value” falls within the scope of the DTPA. Id. at 14.

         Furthermore, Rogers moves for partial summary judgment on two issues, seeking a judgment of (1) negligence per se, under the negligent entrustment claim, because Defendants entrusted a vehicle to an unlicensed employee; and (2) liability for the breach of warranty and DTPA claims because Defendants destroyed Rogers's vehicle rather than cleaned it. Dkt. 20 at 1. Defendants argue that no evidence supports Rogers's negligent entrustment and negligence per se claims (Dkt. 22 ¶¶ 11, 13) and that Rogers's claim for a breach of an implied warranty and DTPA claim fail as a matter of law (Id. ¶19).

         II. Legal Standard

         A court shall grant summary judgment when a “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for the nonmoving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If the moving party meets its burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e). The court must view the evidence in the light most favorable to the non-movant and draw all justifiable inferences in favor of the non-movant. Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 524 (5th Cir. 2008).

         III. Analysis

         A. Defendants' Motion for Summary Judgment

         The court will first consider whether Defendants have demonstrated the absence of a genuine issue of material fact and whether Defendants are entitled to attorneys' fees under the DTPA.

         1. ...


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