                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                   §
 EDWARD GUY WALKER and
 MANUEL CONTRERAS,                                 §           No. 08-07-00113-CV

                        Appellants,                §               Appeal from

 v.                                                §        County Court at Law No. 6

 PRESIDIUM INC.,                                   §         of El Paso County, Texas
 HERTZ CORPORATION, and
 HERTZ CLAIM MANAGEMENT                            §            (TC # 2002-1262)
 COMPANY,
                                                   §
                        Appellees.


                                         OPINION

       Edward Walker and Manuel Contreras, collectively referred to as Appellants, appeal from

a summary judgment granted in favor of Hertz Corporation and Hertz Claim Management Company

(Hertz). For the reasons that follow, we affirm.

                                      FACTUAL SUMMARY

       On April 1, 2000, Edward Walker rented a car from Hertz at the El Paso International

Airport. At the same time, Walker purchased a Liability Insurance Supplement (LIS):

       Within the limits stated in this paragraph, Hertz will indemnify, hold harmless and
       defend you and any Authorized Operators FROM AND AGAINST LIABILITY TO
       THIRD PARTIES, WHICH BY DEFINITION EXCLUDES ANY OF YOUR OR
       ANY AUTHORIZED OPERATOR’S FAMILY MEMBERS RELATED BY
       BLOOD, MARRIAGE OR ADOPTION RESIDING WITH YOU OR THEM, FOR
       BODILY INJURY INCLUDING DEATH AND PROPERTY DAMAGE. THE
       LIMITS OF THIS PROTECTION, INCLUDING OWNER’S LIABILITY, ARE THE
       SAME AS THE MINIMUM LIMITS REQUIRED BY THE AUTOMOBILE
       FINANCIAL RESPONSIBILITY LAW OF THE JURISDICTION IN WHICH THE
       ACCIDENT OCCURS, UNLESS HIGHER LIMITS APPLY FOR THE CDP
       NUMBER RATE SHOWN ON THE RENTAL RECORD, IF THE ACCIDENT
       RESULTS FROM THE USE OF THE CAR AS PERMITTED BY THE
       AGREEMENT.           (THE HERTZ OPTIONAL SERVICES BROCHURE
       AVAILABLE AT ANY RENTAL LOCATION SHOWS EACH STATE’S LIMIT).
       This will conform to the basic requirements of any applicable ‘NO FAULT’ law
       BUT DOES NOT INCLUDE ‘UNINSURED MOTORIST’, ‘UNDERINSURED
       MOTORIST’, ‘SUPPLEMENTARY NO FAULT’ AND ANY OTHER OPTIONAL
       COVERAGE. TO THE EXTENT PERMITTED BY LAW, HERTZ AND YOU
       HEREBY REJECT THE INCLUSION OF ANY SUCH COVERAGE. If such
       protection is imposed by operation of law, then the limits of such protection will be
       the minimum required for primary coverage by the law of the jurisdiction in which
       the accident occurred.

       To fulfill its obligations, Hertz purchased a Texas Automobile Rental Liability Excess Policy

from Reliance Insurance Company. The policy provided insurance to Hertz and any person who

elected to purchase the LIS as part of the rental agreement. The policy stated that Reliance would

“pay damages which a ‘covered person’ is legally entitled to recover from the owner or operator of

an ‘uninsured motor vehicle’ because of bodily injury sustained by a ‘covered person’ . . . .” The

policy defined “covered person” as “the renter” and “any other person occupying the rental vehicle.”

An “uninsured motor vehicle” was defined to include a “hit and run vehicle whose operator or owner

cannot be identified and which hits (1) the renter, authorized driver, or any family member of either,

(2) a vehicle which the renter, authorized driver, or any family member of either are occupying, or

(3) the rental vehicle. This policy also provided Personal Injury Protection (PIP). Coverage was

provided regardless of fault, but only for reasonable and necessary medical expenses and 80 percent

of a covered person’s loss of income and employment.

       On April 2, 2000, Walker and his passenger, Contreras, were involved in an accident and

both men submitted claims for PIP benefits. In his claim, Walker stated that the accident occurred

when he ran into a ditch after swerving to avoid an oncoming vehicle. Contreras gave a similar

account of the accident--they swerved to avoid a car coming in their path and ran off the road into

a ditch. Hertz accepted the PIP claims, but on June 1, 2000, it denied the claims for uninsured
motorist benefits on the basis that the other vehicle did not hit the rental vehicle.

         On March 29, 2002, Appellants filed a negligence suit against Hertz and other defendants

to recover damages for their personal injuries.1 In contrast to their previous statements, both men

alleged that the accident occurred when Walker “swerved to his right to avoid a collision, collided

with the other vehicle and because of the collision ended up driving into a ditch and striking a

fence.” They alleged the other driver was uninsured under the terms of the policy because he could

not be found and identified. The petition claimed that Appellants sustained personal injuries as a

result of the accident. The only damages they sought to recover was for their personal injuries.

         In January 2005, Walker and Contreras filed separate amended petitions which made

identical factual allegations as to how the accident occurred, the negligence of the other driver, the

personal injuries they sustained, and their damages. Walker contended that Hertz breached its duty

under the rental agreement to provide him with uninsured motorist coverage and $1 million in

liability coverage. He sought actual damages, expectancy damages, consequential damages and

restitution, along with attorney’s fees. Similarly, Contreras alleged Hertz breached its obligation to

provide uninsured motorist coverage and to provide Walker with $1 million in liability insurance.

But he did not seek damages for the breach.

         On November 15, 2006, Walker and Contreras jointly filed a second amended petition raising

negligence and breach of contract causes of action. Their factual allegations were identical to those

made in their earlier petitions, including how the accident occurred and the personal injuries they

sustained in the accident. They additionally alleged that Hertz falsely represented to Walker that the

insurance he purchased “covered everything.” Based on this representation, Appellants asserted new


         1
           Appellants also filed suit against Gulf Insurance Company, Allstate Indemnity Company, and Presidium, Inc.
in addition to Hertz. Appellants non-suited their claims against Gulf and the trial court subsequently granted Allstate’s
motion for summary judgment.
claims for negligent misrepresentation, breach of express or implied warranties, and deceptive trade

practices. The trial court granted Hertz’s motion to strike the second amended petition on the ground

that it operated as a surprise and prejudiced the company.

         On February 15, 2007, Appellants filed a third amended petition making the same factual

allegations raised in their previous petitions. Once again, they alleged that Hertz falsely represented

to Walker that the insurance he purchased “covered everything.” Based on this representation,

Appellants raised claims for negligent misrepresentation, fraudulent inducement, breach of express

or implied warranties, and deceptive trade practices. They also stated claims for unfair claims

settlement practices, breach of the duty of good faith and fair dealing, and violation of the prompt

payment provisions of the Texas Insurance Code.

         In addition to their claims made against Hertz, Appellants sought to recover uninsured

motorist benefits from Allstate on the basis of a policy covering Walker’s wife’s vehicle. Allstate

filed a motion for summary judgment alleging there was no evidence that there had been physical

contact between the rental vehicle and the vehicle driven by the hit and run motorist, and no evidence

that Appellants had satisfied all conditions precedent to recover under the Allstate policy. The trial

court granted the motion for summary judgment without specifying the basis for its ruling.

Appellants filed notice of appeal but this court granted their motion to dismiss because the order was

not a final judgment.2 Edward Guy Walker and Manuel Contreras v. Presidium, Inc., Hertz

Corporation, Hertz Claim Management Company, and Allstate Indemnity Company, No.

08-06-00027-CV, 2006 WL 2517069 (Tex.App.--El Paso Aug. 31, 2006, no pet.)(memorandum

opinion). Thus, the judgment in favor of Allstate became final.


         2
           W hile the appeal and motion to dismiss were pending, the trial court entered a severance order which made
the judgment in favor of Allstate appealable, but Appellants did not advise this court a severance order has been entered
nor did they seek to withdraw their voluntary motion to dismiss.
       In a joint motion, Presidium and Hertz moved for summary judgment on both traditional and

no-evidence grounds. The trial court granted summary judgment in favor of these defendants on all

claims without specifying the basis for its ruling. Appellants timely filed notice of appeal from the

summary judgment granted in favor of Presidium, Inc. and Hertz.

                                       PRESIDIUM, INC.

       Appellants have raised four issues specifically challenging the summary judgment granted

in favor of the two Hertz defendants, but they have not raised any issues pertinent to Presidium. In

fact, their brief shows the style of the case as Edward Walker and Manuel Contreras v. Hertz

Corporation and Hertz Claim Management Company. Because they have waived any complaint

about the summary judgment granted in favor of that defendant, we affirm the summary judgment

granted in favor of Presidium.

                                             HERTZ

       Hertz based its summary judgment motion on both traditional and no-evidence grounds. See

TEX .R.CIV .P. 166a(c) and 166a(i). Because the trial court granted summary judgment without

specifying the basis for the ruling, we must affirm if any of the grounds are meritorious. Western

Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

            Breach of Contract -- Failure to Provided Uninsured Motorist Coverage

       In Issue Four, Appellants challenge the implied granting of the summary judgment on no-

evidence grounds. Hertz’s no-evidence motion included a challenge to each element of the breach

of contract cause of action. Appellants characterize the motion as an improper “shotgun” motion.

Rule 166a(i) requires that “[t]he motion must state the elements as to which there is no evidence.”

TEX .R.CIV .P. 166a(i). The moving party must specifically state the elements as to which there is no

evidence. Gray v. Woodville Health Care Center, 225 S.W.3d 613, 616 (Tex.App.--El Paso 2006,
pet. denied); see TEX .R.CIV .P. 166a(i). Rule 166a(i) does not authorize conclusory motions or

general no-evidence challenges to an opponent’s case. Hertz’s motion plainly lays out the elements

of the breach of contract cause of action and the specific elements of that cause of action challenged

by the motion. Hertz included argument and offered evidence relevant to the challenged element.

The motion thus complies with Rule 166a(i).

        When reviewing a no-evidence motion for summary judgment, we must disregard all contrary

evidence and inferences, and review the evidence in the light most favorable to the non-movants.

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Once the moving party

specifically states the elements as to which there is no evidence, the burden shifts to the non-movants

to produce summary judgment evidence raising a genuine issue of material fact regarding each

element challenged. Gray, 225 S.W.3d at 616. If the non-movants produce more than a scintilla of

evidence regarding the challenged element, a genuine issue of material fact is raised. Id. Less than

a scintilla of evidence exists if the evidence is so weak as to create no more than a mere surmise or

suspicion. King Ranch, Inc., 118 S.W.3d at 751. However, when the evidence rises to a level that

enables reasonable minds to differ in their conclusions, then more than a scintilla of evidence exists.

Id. If the non-movants do not produce more than a scintilla of evidence to raise a genuine issue of

material fact, the trial court “must” grant the motion. Larned v. Gateway East, Inc., 186 S.W.3d 597,

601 (Tex.App.--El Paso 2006, no pet.); see also TEX .R.CIV .P. 166a(i).

        Appellants sued Hertz for breach of contract based on their allegation that Hertz breached

the rental agreement and the LIS by failing to provide Walker with the coverage he purchased,

including uninsured motorist coverage.3 Hertz’s no-evidence motion challenged each element of the


        3
           Appellants’ pleadings also allege Hertz breached the contract by denying Appellants’ claims for uninsured
motorist benefits. This particular claim is not addressed in connection with Issue Four but will be resolved in our
discussion of Issue Two.
breach of contract claim. The elements of a claim for breach of contract are: (1) the existence of a

valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract

by the defendant; and (4) damages to the plaintiff resulting from that breach. Abraxas Petroleum

Corp. v. Hornburg, 20 S.W.3d 741, 758 (Tex.App.--El Paso 2000, no pet.): Prudential Securities,

Inc. v. Haugland, 973 S.W.2d 394, 396 (Tex.App.--El Paso 1998, pet. denied). Appellants did not

produce any evidence that Hertz breached the rental agreement by failing to provide the insurance

coverage that it agreed to provide. To the contrary, Hertz produced a summary judgment affidavit

by Don Bailey, custodian of records for Hertz Claims Management Company, stating that all

coverages requested by Walker were purchased by Hertz. Bailey attached to his affidavit the policy

purchased from Reliance Insurance Company on behalf of Walker. That policy included uninsured

motorist coverage. Because Appellants did not produce any evidence that Hertz failed to provide

Walker with the insurance coverage he purchased, the trial court properly granted summary judgment

on the breach of contract claim. Issue Four, as it pertains to the breach of contract cause of action,

is overruled.

                                             Limitations

       In their third amended petition, Appellants alleged the following claims in addition to the

negligence claim: breach of contract, negligent misrepresentation, fraud and fraudulent inducement,

breach of express or implied warranty, DTPA violations, unfair claims settlement practices, breach

of duty of good faith and fair dealing, and violation of the prompt payment statute. These causes

of action were based upon Hertz’s denial of their claims for uninsured motorist benefits. Hertz filed

a traditional summary judgment motion on the ground that the breach of contract and extra-

contractual claims are barred by limitations.

       The standard of review for traditional summary judgment is well established. Nixon v. Mr.
Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). The moving party carries the

burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter

of law. Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005); Duran v. Furr’s Supermarkets, Inc.,

921 S.W.2d 778, 784 (Tex.App.--El Paso 1996, writ denied). Evidence favorable to the non-movant

will be taken as true in deciding whether there is a disputed issue of material fact. Fort Worth

Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Duran, 921 S.W.2d at 784. All

reasonable inferences, including any doubts, must be resolved in favor of the non-movant. Id.;

Duran, 921 S.W.2d at 784.

        A defendant moving for summary judgment on the affirmative defense of limitations has the

burden to conclusively establish that defense. University of Houston v. Clark, 38 S.W.3d 578, 580

(Tex. 2000); KPMG Peat Marwick v. Harrison County Housing Finance Corporation, 988 S.W.2d

746, 748 (Tex. 1999). The defendant must (1) conclusively prove when the cause of action accrued,

and (2) negate the discovery rule, if it applies and has been pled or otherwise raised, by proving as

a matter of law that there is no genuine issue of material fact about when the plaintiff discovered,

or in the exercise of reasonable diligence should have discovered, the nature of its injury. KPMG

Peat Marwick, 988 S.W.2d at 748. If the movant establishes that the statute of limitations bars the

action, the non-movant must then adduce summary judgment proof raising a fact issue in avoidance

of the statute of limitations. Id.

        Ordinarily, the statute of limitations begins to run when a particular cause of action accrues.

S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996); Fraga v. Drake, ---- S.W.3d ----, 2008 WL 2966989

(Tex.App.--El Paso 2008, no pet.). A cause of action generally accrues when a wrongful act causes

a legal injury regardless of when the plaintiff discovers the injury or if all resulting damages have

not yet occurred. Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998). A breach of contract claim
accrues when the contract is breached. Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). Causes

of action under the Insurance Code and DTPA claims based on a denial of insurance coverage or

benefits accrue on the date the insurer denies coverage. See Murray v. San Jacinto Agency, Inc., 800

S.W.2d 826, 828 (Tex. 1990)(bad faith claim); Stevens v. State Farm Fire & Casualty Company, 929

S.W.2d 665, 671 (Tex.App.--Texarkana 1996, writ denied)(Insurance Code and DTPA claims). The

limitations period for Appellants’ breach of contract, fraud, and fraudulent inducement claims is four

years. TEX .CIV .PRAC.&REM .CODE ANN . § 16.004 (Vernon 2002). The other extra-contractual tort

and statutory claims asserted by Appellants must have been filed within two years after they accrued.

TEX .BUS.&COM .CODE ANN . § 17.565 (Vernon 2002)(DTPA actions are subject to two year statute

of limitations); TEX .CIV.PRAC.&REM .CODE ANN . § 16.003(a)(Vernon 2002)(tort claims are subject

to two year statute of limitations); TEX .INS.CODE ANN . § 541.162 (Vernon 2008)(two year statute

of limitations for unfair method of competition or unfair or deceptive act or practice claims under

the Insurance Code).4

         With the exception of the negligence claim pled in the original petition and the breach of

contract claim addressed in connection with Issue Four, all of Appellants’ claims are based on

Hertz’s denial of uninsured motorist benefits on June 1, 2000. Their breach of contract and extra-

contractual tort and statutory claims accrued on June 1, 2000. They did not amend their pleadings

to include the breach of contract claim until January 12, 2005, and they did not amend their pleadings

to include the extra-contractual claims until November 2006. Relying on Section 16.068 of the Civil

Practice and Remedies Code, Appellants contend that these claims are not barred by limitations


         4
            Section 541.162 provides: (a) A person must bring an action under this chapter before the second anniversary
of the following: (1) the date the unfair method of competition or unfair or deceptive act or practice occurred; or (2) the
date the person discovered or, by the exercise of reasonable diligence, should have discovered that the unfair method
of competition or unfair or deceptive act or practice occurred.
because they relate back to the claims contained in their original petition. Section 16.068 provides

that new facts or claims raised in a subsequent pleading relate back to a timely filed pleading and are

not barred unless the amendment or supplemental pleading “is wholly based on a new, distinct, or

different transaction or occurrence.” TEX .CIV .PRAC.&REM .CODE ANN . § 16.068 (Vernon 2008).5

An original pleading tolls the limitation period for claims asserted in subsequent, amended pleadings

as long as the amended pleading does not allege a wholly new, distinct, or different transaction.

Alexander v. Turtur & Associates, 146 S.W.3d 113, 121 (Tex. 2004). A transaction is defined as a

set of facts that gives rise to the cause of action premised thereon. Texas Disposal Systems Landfill,

Inc. v. Waste Management Holdings, Inc., 219 S.W.3d 563, 587 (Tex.App.--Austin 2007, pet.

denied.). Consequently, Section 16.068 will preserve the breach of contract and extra-contractual

claims only if they arose out of the same transaction as the negligence action.

         Appellants argue that all of their claims are based on the rental agreement transaction. We

disagree. The negligence cause of action asserted in the original petition relates exclusively to the

accident caused by the negligence of the unknown motorist. Appellant sought to recover damages

for their personal injuries through the insurance policy issued by Allstate. Other than alleging that

Appellants were traveling in a rental car when the accident occurred, the petition did not include any

allegations or causes of action related to the rental transaction, the purchase of insurance as part of

the rental transaction, or Hertz’s denial of their claims for uninsured motorist benefits. The accident

which forms the basis for Appellants’ negligence causes of action is separate from the rental

transaction. Further, the breach of contract and extra-contractual claims asserted in the amended


         5
           Section 16.068 provides: If a filed pleading relates to a cause of action, cross action, counterclaim, or
defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to
the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the
amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence.
pleadings are based on Hertz’s failure to pay insured motorist benefits, not on the accident or the

rental transaction. We conclude that the rental transaction and accident are separate from Hertz’s

failure to pay insured motorist benefits. Because the breach of contract and extra-contractual claims

do not arise out of the same transaction as the negligence action, those claims do not relate back to

the original petition. Hertz conclusively established that the statute of limitations applicable to each

cause of action bars the breach of contract and extra-contractual causes of action asserted in the

amended pleadings. The trial court did not err in granting summary judgment as to these causes of

action. Issue Two is overruled. Having determined that the trial court properly granted summary

judgment in favor of Hertz on the no-evidence and limitations grounds, we will not address the

remaining arguments raised in Issues One and Three. We affirm the judgment of the trial court.




April 16, 2009
                                                        ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)
Barajas, C.J. (Ret.), sitting by assignment
