Affirmed in Part and Reversed and Remanded in Part and an Opinion by Each
Member of the Panel filed November 27, 2013.




                                        In The

                       Fourteenth Court of Appeals

                                 NO. 14-11-01055-CV

    FELICITA DEL CARMEN CANAS AS NEXT FRIEND OF YENIFER
 ESTEFANI CANAS ESCOBAR, JAVIER ENRIQUE CANAS ESCOBAR AND
     BEATRIZ ABIGAIL DEL CARMEN CANAS, MINORS, Appellant
                                           V.

            CENTERPOINT ENERGY RESOURCES CORP., Appellee

                      On Appeal from the 157th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2011-08170

                                   OPINION


      I respectfully concur with portions of Chief Justice Frost’s opinion and with
Justice Jamison’s opinion and dissent from other portions as follows:

      I agree with Chief Justice Frost’s conclusion that the tariff limits CenterPoint’s
      liability for negligence and strict liability, but do not agree with all of her
      analysis.
      I agree with Chief Justice Frost that CenterPoint’s summary-judgment motion
      failed to address an intentional-misrepresentation issue and that this issue should
      be remanded, but I do not agree with all of her analysis. I believe that the
      summary-judgment motion covered the newly added negligent-misrepresentation
      claim and that this portion of the judgment should be affirmed; I therefore
      disagree with both Chief Justice Frost and Justice Jamison on this point.

      I disagree with Chief Justice Frost’s disposition of the gross-negligence claim and
      would remand the entire gross-negligence issue to the trial court. I agree with
      Justice Jamison on this point.

      I agree that the Canas Parties’ negligence per se claims do not survive the tariff’s
      limitations, but I disagree with Chief Justice Frost’s reasoning.

A.    Negligence and Strict Liability

      CenterPoint moved for summary judgment on both traditional and no-evidence
grounds. In its motion, CenterPoint claimed that its tariff barred the plaintiffs’ claims
for strict liability and negligence because their claims did not fall within the exceptions
of the tariff. I agree. The Texas Supreme Court concluded in Southwestern Electric
Power Co. v. Grant, 73 S.W.3d 211, 216 (Tex. 2002) that a tariff can limit liability for
personal injuries. CenterPoint’s tariff does exactly that.

      Grant also requires that the tariff be narrowly drawn and provide a remedy for
gross negligence and willful misconduct. Id. at 220. I would enforce the tariff as to the
negligence and strict liability claims because it is narrowly drawn. But as discussed
more fully below, I would conclude that limiting liability for personal injuries caused by
CenterPoint’s gross negligence or willful misconduct is against public policy and that
such a limitation is unenforceable. I disagree with Chief Justice Frost’s analysis to the
contrary.

                                             2
B.    Misrepresentation

      After CenterPoint moved for summary judgment, the Canas Parties amended their
petition to assert a claim for misrepresentation. Although the Canas Parties’ pleading
does not use the word intentional in connection with the misrepresentation claim, Chief
Justice Frost concludes that they asserted a claim for intentional misrepresentation.

      To the extent that the Canas Parties alleged intentional misrepresentation, I agree
with Chief Justice Frost and Justice Jamison that the claim should be remanded because
the tariff cannot limit liability for willful misconduct, as discussed below. For the sake
of clarity, however, I would further hold that any negligent-misrepresentation claim
encompassed by their pleading is barred by the tariff and summary judgment is
appropriate on that claim even if not specifically mentioned in the original summary-
judgment motion. See Coterill-Jenkins v. Tex. Med. Ass’n Health Care Liability Claim
Trust, 383 S.W.3d 581, 592 (Tex. App.—Houston [14th Dist.] 2012, pet. denied)
(reversal of a summary judgment on a claim not expressly addressed in the motion is not
required if a ground asserted in the motion “conclusively negates a common element of
the newly and previously asserted claims”).

C.    Gross Negligence

      In its motion for summary judgment, CenterPoint asserted that a defendant that is
not liable for ordinary negligence cannot be liable for gross negligence, and reasoned
that because the tariff limits its liability in a way that prevents the Canas Parties from
prevailing on their negligence cause of action under the facts alleged, their gross-
negligence claim necessarily fails as well. But CenterPoint did not prove that it was not
negligent; it proved that its tariff relieves it of liability for any such negligence. In this
respect, I agree with Chief Justice Frost: when liability for negligence is barred by a
limitation of liability in a utility’s tariff, that bar does not automatically defeat a claim
for gross negligence. See Grant, 73 S.W.3d at 215, 220–22. See also Van Voris v.
                                              3
Team Chop Shop, LLC, 402 S.W.3d 915, 924–26 (Tex. App.—Dallas 2013, no pet.)
(holding that a gross-negligence claim did not fail, even though the negligence claim
was barred by an enforceable pre-injury release). In my view, however, Chief Justice
Frost has unnecessarily and confusingly parsed the Canas Parties’ gross-negligence
claims in a manner not briefed by the parties. I disagree with her analysis and with any
partial affirmance of the Canas Parties’ claims of gross negligence.

      In its motion for summary judgment, CenterPoint raised the two following more
specific grounds to support its contention that it was not negligent at all, and I would
conclude that neither ground supports even partial affirmance of the judgment as it
pertains to the Canas Parties’ gross-negligence claims.

      First, CenterPoint argued that by law it had no duty to consumers to inspect for
leaks from pipes on the consumer’s side of the meter, and that the accident was caused
by a leak on that side. While this is true, no one contends that the leak was the sole
cause of the decedent’s injuries. The Canas Parties allege that another cause of the
injury was the failure to adequately odorize the gas or to adequately warn of odorant
fade, omissions that resulted in the decedent’s failure to detect the presence of gas in
time to escape. Neither of these claims is defeated by the fact that an additional cause
of the accident or injury was a leak on the consumer side of the meter.

      Second, CenterPoint argued that it was not negligent because it had no knowledge
of a dangerous condition on the property. On this point, CenterPoint moved for a no-
evidence summary judgment. But here, too, CenterPoint’s failure to warn of a danger of
which it was unaware—a leak in the consumer’s housepiping—does not relieve it of
responsibility to warn of another danger of which it was aware—odorant fade. On this
point, the Canas Parties presented some evidence that CenterPoint was aware that the
odorant that it used could fade, and that consumers therefore could not rely on the
odorant to alert them to the presence of escaped gas creating a dangerous condition.

                                            4
The Canas Parties also presented evidence that CenterPoint is aware that other
companies warn of this condition.

      Finally I disagree with footnote 7 of Chief Justice Frost’s opinion, in which she
states that the grounds for summary judgment raised in CenterPoint’s motion do not
include the argument that the tariff itself eliminates any gross-negligence claim. I think
that issue was raised by CenterPoint and should be decided by this court.

      The Texas Supreme Court first considered limitations of liability in a tariff in
Houston Lighting & Power Co. v. Auchan USA, Inc., 995 S.W.2d 668, 672–75 (Tex.
1999). However in Auchan, the plaintiff abandoned its gross-negligence claim and the
court expressed no opinion as to whether a tariff may limit liability for gross negligence
or willful misconduct. Id. at 675. In Grant, the tariff at issue expressly excepted a
cause of action for gross negligence from its limitation of liability, and the court found
the tariff reasonable. Grant, 73 S.W.3d at 220. I think the language in Grant supports a
categorical holding that a reasonable tariff cannot eliminate liability for personal injuries
caused by the utility’s gross negligence or willful misconduct. See id. (“[The utility’s]
tariff provision limiting its personal-injury liability is reasonable because the provision
is narrowly drawn and provides a remedy for [the utility’s] gross negligence or willful
misconduct.”) (emphasis added). By using the word and in that sentence, the court held
that both a narrowly drawn provision and a preservation of a remedy for gross
negligence and willful misconduct are necessary to a reasonable tariff.

      Because this tariff acts as a pre-injury release, cases dealing with such releases
also are instructive. Chief Justice Frost cites with approval a decision in which the Fifth
Court of Appeals held that a pre-injury release of personal-injury claims based on gross
negligence was void on public-policy grounds. See Van Voris, 402 S.W.3d at 924–26.
In reaching that decision, the court followed the reasoning of the Ninth Court of
Appeals in Smith v Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex. App.—

                                             5
Beaumont 1986, no writ). Significantly, this court has repeatedly reached the same
result. See Sydlik v. REEII, Inc., 195 S.W.3d 329, 336 (Tex. App.—Houston [14th
Dist.] 2006, no pet.) (“[W]hile pre-accident waivers of gross negligence are against
public policy, post-accident releases are not.” (citing Mem’l Med. Ctr. of E. Tex. v.
Keszler, 943 S.W.2d 433, 435 (Tex. 1997) (per curiam))); see also Rosen v. Nat’l Hot
Rod Ass’n, No. 14-94-00775-CV, 1995 WL 755712, at *7 (Tex. App.—Houston [14th
Dist.] Dec. 21, 1995, writ denied) (not designated for publication).1 Indeed, both Sydlik
and Rosen were cited in Van Voris. Moreover, this court’s position is not unusual. See,
e.g., Tex. Moto–Plex, Inc. v. Phelps, No. 11-03-00336-CV, 2006 WL 246520, at *2
(Tex. App.—Eastland Feb. 2, 2006, no pet.) (mem. op.) (reaching the same result). See
generally Ryan S. Holcomb, The Validity and Effectiveness of Pre-Injury Releases of Gross
Negligence in Texas, 50 BAYLOR L. REV. 233 (1998). See also Todd Shipyards Corp. v.
Turbine Serv., Inc., 674 F.2d 401, 411 (5th Cir. 1982) (“Gross negligence . . . will
invalidate an exemption from liability . . . .”); RESTATEMENT (SECOND) OF CONTRACTS
§ 195(1) (1981) (“A term exempting a party from tort liability for harm caused
intentionally or recklessly is unenforceable on grounds of public policy.”).                    And

1
  In reaching this result, we expressly rejected the contrary holding of Newman v. Tropical Visions,
Inc., 891 S.W.2d 713, 722 (Tex. App.—San Antonio 1994, writ denied). In Newman, the court held
that exemplary damages for gross negligence were unavailable where a pre-injury release barred
recovery of actual damages for simple negligence. But see Wright v. Gifford-Hill & Co., 725 S.W.2d
712, 714 (Tex. 1987) (explaining in the context of the Workers’ Compensation Act that a widow who
obtained a finding of her late husband’s employer’s gross negligence and offered evidence of actual
damages could recover exemplary damages, despite the fact that the Act barred recovery of actual
damages and no finding of actual damages was requested); Nabours v. Longview Sav. & Loan Ass’n,
700 S.W.2d 901, 903 (Tex. 1985) (explaining that even though the plaintiff recovered no actual
damages, a finding of actual damages supported the award of exemplary damages, and stating that
“[e]ven in cases where actual damages are not recoverable, it is still necessary to allege, prove and
secure jury findings on the existence and amount of actual damage sufficient to support an award of
punitive damage.”); Gilcrease v. Garlock, Inc., 211 S.W.3d 448, 459 (Tex. App.—El Paso 2006, no
pet.) (holding that appellants were entitled to recover punitive damages based on a jury finding of
actual damages, even though a settlement credit eliminated any recovery of actual damages). The First
Court of Appeals, however, has followed Newman. See Tesoro Petroleum Corp. v. Nabors Drilling
USA, Inc., 106 S.W.3d 118, 127 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).

                                                 6
although there is a split among the intermediate courts of appeals on this analogous
issue, it nevertheless is a matter on which this court has spoken, and I believe that we
should follow the same reasoning here.

      I agree, however, that the tariff’s failure to allow a private litigant to recover for
gross negligence and willful misconduct does not invalidate the entire tariff. As courts
have held in the analogous context of pre-injury releases, a release is still valid as to
ordinary negligence even where the court refuses to apply it to claims of gross
negligence. See Van Voris, 402 S.W.3d at 926; Tex. Moto-Plex, Inc., No. 11-03-00336-
CV, 2006 WL 246520, at *2; Golden Triangle Raceway, 708 S.W.2d at 576. I similarly
would conclude that the tariff is not completely invalid because of its failure to provide
a remedy for gross negligence or intentional misconduct, but would refuse to enforce a
limitation of liability for such claims.     I accordingly would reverse the summary
judgment as to all such claims and remand them to the trial court.

D.    Negligence Per Se

      As it pertains to the Canas Parties’ claim for negligence per se, CenterPoint’s
summary-judgment motion is based on its position that CenterPoint has no duty to
inspect a consumer’s housepiping before supplying gas to the consumer. While it is true
that CenterPoint has no such duty, this argument does not address the Canas Parties’
claims concerning the duty to odorize the gas or to warn of odorant fade. The Canas
Parties pleaded that CenterPoint violated a number of federal and state regulations
concerning the duty to odorize the gas, to test the strength of that odorant at the system’s
extremities, and to supply certain warnings to the consumer. In its summary-judgment
motion, CenterPoint did not establish or even argue that it complied with all of these
federal and state laws.

      In summarily disposing of the Canas Parties’ cause of action for negligence per
se, Chief Justice Frost relies on two grounds. First, she summarily concludes—without
                                             7
analysis—that the regulations cannot serve as the basis for a private cause of action for
negligence per se.2 I do not believe it is necessary to decide this question, because for
the purpose of this appeal, we can assume, without deciding, that the statutes and
regulations cited by the Canas Parties could provide the standard by which
CenterPoint’s duty is measured in a claim for negligence per se.

       Second, she assumes that the tariff’s limitation of liability is broad enough to
cover CenterPoint’s alleged failure to comply with these regulations. But this result
cannot be assumed, because if the tariff’s limitation of liability conflicts with federal or
state statutes or regulations, it is the tariff that must yield. I accordingly believe that the
question of whether the tariff’s limitation of liability eliminates the cause of action for
negligence per se is one that cannot be answered without first considering whether this
2
  There are tests that apply in making this determination. In considering whether violation of a state
statute gives rise to a claim of negligence per se, Texas courts consider
       (1)     whether the statute is the sole source of any tort duty from the defendant to the plaintiff
               or merely supplies a standard of conduct for an existing common law duty;
       (2)     whether the statute puts the public on notice by clearly defining the required conduct;
       (3)     whether the statute would impose liability without fault;
       (4)     whether negligence per se would result in ruinous damages disproportionate to the
               seriousness of the statutory violation, particularly if the liability would fall on a broad
               and wide range of collateral wrongdoers; and
       (5)     whether the plaintiff’s injury is a direct or indirect result of the violation of the statute.
Perry v. S.N., 973 S.W.2d 301, 309 (Tex. 1998). The analysis is essentially based on principles of tort
law.
        The determination of whether a duty imposed by federal law gives rise to a private cause of
action is different. “The question whether a statute creates a cause of action, either expressly or by
implication, is basically a matter of statutory construction.” Transamerica Mortg. Advisors, Inc.
(TAMA) v. Lewis, 444 U.S. 11, 15, 100 S. Ct. 242, 62 L. Ed. 2d 146 (1979); see also Touche Ross &
Co. v. Redington, 442 U.S. 560, 568, 99 S. Ct. 2479, 61 L. Ed. 2d 82 (1979) (stating that the “argument
in favor of implication of a private right of action based on tort principles . . . is entirely misplaced”).
A private right of action may be addressed by the legislature explicitly or it may be implied based upon
“the language and focus of the statute, its legislative history, and its purpose.” Touche Ross, 442 U.S.
at 575–76. An implied right of action is generally found in the federal context only where “the statute
in question at least prohibited certain conduct or created federal rights in favor of private parties.” Id.,
442 U.S. at 569.

                                                      8
limitation conflicts with federal or state law.

      The tariff may have the force and effect of state law, see Grant, 73 S.W.3d at
216–17, but federal regulations preempt contrary state law. MCI Sales & Serv., Inc. v
Hinton, 329 S.W.3d 475, 482 (Tex. 2010) (citing City of New York v. FCC, 486 U.S. 57,
63–64, 108 S. Ct. 1637, 100 L. Ed. 2d 48 (1988)). See also TEX. UTIL. CODE ANN.
§ 101.008 (West 2007) (providing that the Texas Gas Utility Regulatory Act “shall be
construed to apply so as not to conflict with any authority of the United States”). “A
state law actually conflicts with a federal law when compliance with both is impossible
or when the state law ‘stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.’” Hinton, 329 S.W.3d at 482 (quoting Hines
v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 85 L. Ed. 581 (1941)).

      Here, contrary state law also would trump contrary provisions in the tariff in
much the same way that federal law preempts state law.                   This is so because
CenterPoint’s Texas Gas Rate Book provides that “[u]nless otherwise expressly stated,
these rules apply to all Consumers . . . , except insofar as they are changed by or are in
conflict with any statute of the State of Texas . . . [or] valid final order of any court, . . .
in which case such statute, ordinance, [or] order . . . shall control . . . .” Thus, I would
not conclude that the tariff’s limitation-of-liability provision eliminates a claim for
negligence per se without first determining whether doing so would conflict with a state
or federal statute or regulation.

      Although the Canas Parties cited a number of federal and state statutes and
regulations in their summary-judgment response and on appeal, they have not identified
any that actually conflict with the tariff’s limitation of liability. See, e.g., 49 C.F.R.
§§192.16, 192.616, 192.625; see also TEX. UTIL. CODE ANN. § 104.251 (West 2007)
(“A gas utility shall furnish service, instrumentalities, and facilities that are safe,
adequate, efficient, and reasonable.”); 16 TEX. ADMIN. CODE § 8.220(a) (2004) (R.R.

                                               9
Comm’n of Tex., Master Metered Systems) (“Compliance with minimum safety
standards required. Master meter operators shall comply with the minimum safety
standards in 49 CFR Part 192.”). To the extent that any of these provisions impose a
duty on CenterPoint, CenterPoint is still required to comply with the regulations under
its tariff.

        The Railroad Commission has broad authority to ensure that utilities provide
“safe, adequate, efficient, and reasonable” service.         See TEX. UTIL. CODE ANN.
§ 104.001(a) (West 2007) (“The railroad commission is vested with all the authority and
power of this state to ensure compliance with the obligations of gas utilities in this
subtitle”).   To that end, the Commission can adopt reasonable rules, regulations,
specifications, and standards; examine and test equipment; address complaints; ask the
attorney general to apply for a court order to prohibit or enjoin violations, require
compliance with the commission’s rules or orders, or recover civil penalties for
violations; and bring an action for contempt of its lawful orders.             See, e.g., id.
§§ 104.256, 105.021–.024, 105.051, 121.201–.211, 121.301–.310 (West 2007 & Supp.
2013); 16 TEX. ADMIN. CODE ANN. § 8.215 (2004) (R.R. Comm’n of Tex., Odorization
of Gas). The tariff’s limitation of liability to private litigants does not conflict with
these statutory remedies and enforcement mechanisms, which continue to afford
protection to the public even in the absence of actual damage.

        Thus, even if a violation of the statutes constituted negligence per se, that does
not mean that the tariff limiting CenterPoint’s liability for that negligence would be
invalid. CenterPoint can still comply with both the tariff and the state and federal
regulations. Limiting CenterPoint’s liability to a private litigant is not an “obstacle” to
enforcement of the statute because there are other statutory remedies and enforcement
mechanisms. Because there is no conflict between the tariff and state and federal
regulations, the elimination of liability for any claim of negligence per se is valid. .

                                             10
      For all of the reasons expressed, I respectfully concur in part and dissent in part
from Chief Justice Frost’s opinion and concur in part and dissent in part from Justice
Jamison’s opinion.


                                      /s/    Tracy Christopher
                                             Justice



Panel consists of Chief Justice Frost and Justices Christopher and Jamison (Frost, C.J.
and Jamison, J., each writing a separate opinion).




                                            11
