WHITE LION HOLDINGS, L.L.C. AND BERNARD J. MORELLO, Appellants
INSGROUP, INC. D/B/A AGIA AGRICULTURAL INS. AGENCY, Appellee
Appeal from the 268th District Court Fort Bend County, Texas
Trial Court Case No. 06-DCV-148721
consists of Chief Justice Radack and Justices Landau and
Beth Landau Justice.
Lion Holdings, L.L.C. purchased an insurance policy from
Scottsdale Insurance Company. There were two intermediaries
involved in the transaction: U.S. Risk and Insgroup,
White Lion did not receive the coverage it believed was
contractually due, and it, along with its sole member and
manager, Bernard J. Morello, (collectively referred to as
White Lion) sued all three entities. U.S. Risk settled with
White Lion. Scottsdale also settled with White Lion.
Scottsdale and White Lion executed a settlement release in
2008. White Lion went to trial against the only remaining
defendant, Insgroup, in 2018.
White Lion rested, Insgroup moved for a directed verdict,
arguing that it was included in the release White Lion
executed 10 years earlier. The trial court granted the
motion, dismissed the jury, and entered judgment in
Insgroup's favor. White Lion appeals, arguing that the
trial court erred in concluding that the release with
Scottsdale also released White Lion's claims against
court may direct a verdict for a defendant when a plaintiff
fails to present evidence raising a fact issue essential to
its right of recovery or when the evidence conclusively
proves a fact that establishes the defendant-movant's
right to judgment as a matter of law. Prudential Ins. Co.
of Am. v. Fin. Review Servs., Inc., 29 S.W.3d
74, 77 (Tex. 2000). In reviewing the grant of a directed
verdict, we follow the standard of review for assessing legal
sufficiency of the evidence. S.V. v. R.V., 933
S.W.2d 1, 8 (Tex. 1996); see generally City of Keller v.
Wilson, 168 S.W.3d 802 (Tex. 2005). We consider the
evidence in the light most favorable to the non-movant.
Tex. Emp'rs Ins. Ass'n v. Page, 553 S.W.2d
98, 102 (Tex. 1977); Mikob Props., Inc. v. Joachim,
468 S.W.3d 587, 594 (Tex. App.-Dallas 2015, pet. denied). We
can consider any reason why the directed verdict should have
been granted, even if not stated in the party's motion.
Gomer v. Davis, 419 S.W.3d 470, 476 (Tex.
App.-Houston [1st Dist.] 2013, no pet.).
Release and Directed Verdict
White Lion presented its evidence and rested, Insgroup orally
moved for a directed verdict, relying on the release White
Lion executed in connection with its settlement with
Scottsdale a decade earlier. The Scottsdale release states
that, in consideration of the settlement amount, White Lion
releases, acquits and forever discharges
Scottsdale Insurance Company, its officers, directors,
shareholders, agents, attorneys, and employees, heirs,
assigns, and members; their affiliated, related, successor,
subsidiary and parent companies and corporations, and their
officers, directors, shareholders, agents, attorneys and
employees; and all their insurers, hereinafter known
collectively as the Released Parties, from
any and all claims, demands and causes of action of
whatsoever nature, whether in contract or in tort, and for
all other losses and damages of every kind or character which
have accrued, or may ever accrue, by reason of the matters or
transactions made the basis of this litigation, including,
but not limited to, any and all claims or causes of action
arising out of, or in any way related to, the damages
allegedly sustained by Plaintiffs, White Lion Holdings,
L.L.C. and Bernard Morello, as the result of contractors
removing equipment pursuant to the bankruptcy sale of the
former Vision Metals steel plant . . . .
more succinctly, White Lion released Scottsdale and its
"agents" from all claims related to damage caused
by contractors removing equipment from White Lion's Fort
made three arguments in support of its motion for directed
verdict. First, it argued that the broad language of the
release resulted in the release of all claims White Lion may
have in connection with the Scottsdale insurance policy.
Second, it argued that, by statute, and as a matter of law,
Insgroup is an agent of Scottsdale, citing to Section
4001.051 of the Texas Insurance Code and, therefore, Insgroup
was one of the "Released Parties," which was
defined in the release to include Scottsdale and its
"agents." Third, it argued that the directed
verdict was mandatory in that Insgroup had pleaded release as
an affirmative defense and White Lion had not amended its
pleading to assert a defense to that affirmative defense,
relying on Ellis v. Woods, 453 S.W.2d 509 (Tex.
App.-El Paso 1970, no writ).
Lion made two arguments in response. First, it argued that
Insgroup waived its affirmative defense by litigating the
case for 10 years without arguing the release insulated it
from liability, not providing any context or argument in its
pleadings that raised release as an affirmative defense, and
seeking relief, including attorney's fees, although the
release-if Insgroup actually was a party to it-would have