                                  <sfc*i*8j^&^fes!S^^^




                               (Gnurt of Appeals
                    mtttj Etstrtrt at Qkxas at Dallas


                                  No. 05-95-01259-CV


LEMKE       CONCRETE                                     Appeal from the 298th District Court of
CONSTRUCTION, Appellant                                  Dallas County, Texas. (Tr.Ct.No. 93-7343-
                                                         M).
      V.


EMPLOYERS MUTUAL CASUALTY                                Opinion delivered by Justice Lagarde,
COMPANY, UNION MUTUAL                                    Justices Wright and Bridges participating.
INSURANCE COMPANY OF
PROVIDENCE,         AND      EMCASCO
INSURANCE COMPANY, Appellees

                                           JUDGMENT


      In accordance with this Court's opinion of this date, the judgment of the trial court
is AFFD}MED It is ORDERED that appellees Employers Mutual Casualty Company,
Union Mutual Insurance Company of Providence, and Emcasco Insurance Company recover
their costs of this appeal from appellant Lemke Concrete Construction and from Universal
Surety of America as surety on appellant's cost bond.

Judgment entered February 26, 1997.


                                                                                     ^2jy^
                                                          SUE^AGARDE
                                                          JUSTICE
AFFIRMED and Opinion Filed February 26, 1997




                                                         In The

                                             tour! of Appeals
                              ¥xftlj Ststrtrt of Qkxas at lallas
                                                No. 05-95-01259-CV


                         LEMKE CONCRETE CONSTRUCTION, Appellant

                                                             V.


   EMPLOYERS MUTUAL CASUALTY COMPANY, UNION MUTUAL INSURANCE
     COMPANY OF PROVIDENCE, AND EMCASCO INSURANCE COMPANY

                            On Appeal from the 298th Judicial District Court
                                             Dallas County, Texas
                                       Trial Court Cause No. 93-7343-M


                                                   OPINION

                               Before Justices Lagarde, Wright, and Bridges1
                                            Opinion By Justice Lagarde

          Lemke Concrete Construction Company appeals from the trial court's grant of
 summary judgment in favor of Employers Mutual Casualty Company, Union Mutual
 Insurance Company of Providence, and Emcasco Insurance Company (collectively, the

    1The Honorable Joseph W., Wolfe, Justice, was amember of the original panel and participated in the submission of this case.
 The Honorable David L. Bridges, Justice, succeeding the Honorable Joseph W. Wolfe effective January 1,1997, has reviewed the
 record before the Court in this appeal.
                                                            mmmkmmm0mm'^^'-




carriers). In seven points of error, Lemke contends that the trial court erred in granting

summary judgment in favor of the carriers because material questions of fact existed as to
whether the carriers a) breached their contracts with Lemke; b) breached their duty to deal
fairly and in good faith with Lemke; c) were negligent in (i) failing to reasonably attempt
to settle, (ii) failing to reasonably attempt to obtain a general release of Lemke, (iii) failing
to defend Lemke, and (iv) failing to take other reasonable steps necessary to protect

Lemke's interest; d) violated provisions of the Texas Deceptive Trade Practices-Consumer
Protection Act and article 21.21 of the Texas Insurance Code and the rules and regulations
issued by the Texas State Board of Insurance; and e) are vicariously liable to Lemke for the
actionable conduct of defendants Robinson and Patterson, Lamberty, Stanford, Walls, &
Dwyer, P.C. We affirm the trial court's judgment.
                          FACTUAL AND PROCEDURAL BACKGROUND

        The carriers insured Lemke under the Texas Workers' Compensation Act. See Tex.
Lab. Code Ann. §415.002(a)(8) (Vernon 1996). Jesus Gonzalez, Lemke's employee, filed
 a workers' compensation claim. Subsequently, Gonzalez notified Lemke that he would
 assert aclaim against Lemke for retaliatory discharge.2 The carriers defended the workers'

     2 Lemke's brief states:

         On July 24 1991, [a]ppellees notified Lemke of their receipt of Gonzalez's wrongful termination claims [Tr
         311 In that letter [a]ppellees acknowledged to Lemke that "Employers Mutual Casualty Company is
         representing Lemke Concrete Construction in that compensation matter." [Tr 31-32]. Appellees further stated
         that "the workers compensation carrier would not be responsible for any judgment that Mr. Gonzalez should
         recover as aresult of this alleged dismissal." However, such letter did not state that [a]ppellees would not
         defend against such claims, nor did [a]PPellees indicate it would not consider Lemke's interests and take
         reasonable steps to protect Lemke's interests on that claim while handling the Workers Compensation Lawsuit



                                                             •2-
                                                                       -jfcjljS^jgjjSg!*^^




compensation claim and reached a settlement with Gonzalez. The settlement did not
address Gonzalez's retaliatory discharge claim. The carriers did not notify Lemke of the
settlement. On August 5, 1992, the trial court entered an agreed judgment in accord with
the settlement agreement.

        On August 7,1992, Gonzalez sued Lemke, alleging that Lemke wrongfully discharged
him on August 22, 1990 in retaliation for filing the workers' compensation claim. On
October 28, 1992, the carriers sent Lemke a letter denying coverage of the wrongful
discharge claim. Lemke incurred attorneys' fees of $6,988.30 in providing its own defense
on the wrongful discharge suit, which it ultimately settled with Gonzalez for $7,500.
         Thereafter, Lemke brought this suit against the carriers, alleging breach of contract,
negUgence, intentional tort, breach of warranty, breach of fiduciary duty, breach of duty of
good faith and fair dealing, violation of the DTPA, and violation of the Texas Insurance
Code. Lemke also alleged that the carriers were vicariously liable for the actions of their
 attorney in settling only the worker's compensation claim. All of Lemke's claims were
 predicated on the carriers' failure to defend Lemke in the wrongful discharge suit and failure
 to notify Lemke of the negotiations and settlement of the workers' compensation claim.
          The carriers answered with general denials to all allegations and with special


          [Tr. 32]. In fact, the statement that [a]ppellees were representing Lemke clearly and unambiguously implied
          the contrary.

 Lemke's record references are to that portion of the transcript containing Lemke's first original amended petition. Lemke did not
 attach acopy of the letter to its petition, and the record on appeal does not contain acopy of the letter.
exceptions to Lemke's allegations of breach of contract, violation of the DTPA, and
violation ofthe Texas Insurance Code. The carriers moved for summary judgment, claiming

that the policies in question covered only workers' compensation, not wrongful discharge;
consequently, they owed no duty to Lemke in the wrongful discharge suit. The carriers
argued that their duty of good faith and fair dealing to Gonzalez in the workers'
compensation case prevented them from securing a release of any other claims Gonzalez
might have against Lemke. The carriers offered as summary judgment evidence Lemke's
responses to their requests for admissions, the policies, Gonzalez's petitions against the
carriers and against Lemke, and all pleadings and discovery on file.
       Lemke responded, contending: there was coverage; a lack of coverage would not
negate the carriers' duty of good faith and fair dealing; the carriers' duty of good faith and
fair dealing to Gonzalez in no way negated their general duty of good faith owed to Lemke
 as their insured; and the carriers' motion for summary judgment did not address their
 vicarious liability claim for breach of fiduciary duty against the settlement attorney. Lemke
 offered no evidence in support of its response, relying instead on its first amended petition.
        The trial court granted the carriers summary judgment on all of Lemke's claims and
 severed Lemke's cause of action against the settlement attorney and his firm. This appeal
 followed.

                                   SUMMARY JUDGMENT

        In its first point of error, Lemke argues that the carriers did not meet the standard
of proof necessary to support summary judgment. Lemke contends that the carriers' failure
to produce evidence to support their motion for summary judgment renders all
uncontroverted facts in Lemke's first amended original petition admitted as true. Lemke

further asserts that summary judgment may be affirmed only on the argument presented in

the motion for summary judgment.

       The carriers argue that the narrow exception to the summary judgment burden of
proof rules upon which Lemke relies is inapplicable to this case because the carriers did not
move for summary judgment based on Lemke's failure to state a cause of action. Instead,
the carriers assert, they submitted evidence that negated afact essential to Lemke's theories
of recovery; therefore, the general rule that pleadings are not competent summary judgment
evidence applies. The carriers contend that Lemke, as the nonmovant, failed in its burden
to raise a genuine issue of material fact.

                                     Standard of Review


       The standards for reviewing a summary judgment are:

       1.     The movant for summary judgment has the burden of showing that there is
              no genuine issue of material fact and that it is entitled to judgment as a
              matter of law.

       2.      In deciding whether there is a disputed material fact issue precluding summary
               judgment, evidence favorable to the non-movant will be taken as true.
        3.     Every reasonable inference must be indulged in favor of the non-movant and
               any doubts resolved in its favor.

 Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Montgomery


                                              -5-
                          >«'^'^^»S»^ES::~^




v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984); Wilcox v. St. Mary's Univ. of San Antonio,
Inc., 531 S.W.2d 589, 592-93 (Tex. 1975).

          Asummary judgment cannot be affirmed on a ground not specifically presented in
the motion for summary judgment. Travis v. City ofMesquite, 830 S.W.2d 94, 100 (Tex.
1992). The motion must state with specificity the grounds upon which the movant is relying.
Tex. R. Civ. P. 166a(c). Stating grounds with specificity defines the issues and gives the
nonmovant adequate notice for opposing the motion. Westchester Fire Ins. Co. v. Alvarez,
576 S.W.2d 771, 772 (Tex. 1978). To prevail on a motion for summary judgment, a
defendant-movant is required to meet the plaintiffs causes of action as they are pleaded,
and to demonstrate that the plaintiff cannot prevail. Cook v. Brundidge, Fountain, Elliot &
Churchill, 533 S.W.2d 751, 759 (Tex. 1976). If the nonmovant does not allege a theory of
recovery in its live pleading, mentions anew theory for the first time in its response to the
 motion for summary judgment, and does not amend its pleadings to include this additional
 theory of recovery, the new and additional theory of recovery is not properly at issue before
 the trial court when the trial court rules on the motion for summary judgment. See Jones
 v. Wal-Mart Stores, Inc., 893 S.W.2d 144, 147 (Tex. App.-Houston [1st Dist.] 1995, no
 writ).

           When the defendant is the movant, summary judgment is proper only if the plaintiff
 cannot, as a matter of law, succeed upon any theory pleaded. See Peirce v. Sheldon
 Petroleum Co., 589 S.W.2d 849, 852 (Tex. Civ. App.-Amarillo 1979, no writ). Adefendant


                                               -6-
                                          e-^^0m&^m?*m




who moves for summary judgment must show as a matter of law that the plaintiff has no

cause of action against it. Citizens First Nat'l Bank of Tyler v. Cinco Exploration Co., 540

S.W.2d 292, 294 (Tex. 1976); Jones v. Texas Pac. Indem. Co., 853 S.W.2d 791, 794 (Tex.

App.-Dallas 1993, no writ).

       Once the defendant establishes that a plaintiff cannot prevail as a matter of law, the

burden shifts to the plaintiff to respond to the defendant's motion. Jones, 853 S.W.2d at

794. The plaintiff can defeat the motion by conceding that the material facts are
undisputed, but convincing the court that the defendant's legal position is unsound. See
Estate ofDevitt, 758 S.W.2d 601, 602 (Tex. App.-Amarillo 1988, writ denied). Pleadings,
however, are not considered in determining whether fact issues are expressly presented in
summary judgment motions. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,
678 (Tex. 1979)

                                       Applicable Law

       Pleadings themselves, even if verified, do not constitute summary judgment evidence.
Id.; Hidalgo v. Surety Sav. &LoanAss'n, 462 S.W.2d 540, 545 (Tex. 1971). However, atrial
 court may properly grant summary judgment based on the pleadings alone, without
 supporting or negating evidence, when the plaintiff's allegations cannot constitute a cause
 of action as a matter of law. See Hidalgo, 462 S.W.2d at 543 n.l; see, e.g., Perser v. City of
 Arlington, 738 S.W.2d 783, 784 (Tex. App.-Fort Worth 1987, writ denied) (suit based on
 gambling debt). In such cases, summary judgment does not rest on proof supplied by


                                               -7-
pleading, but on deficiencies in the opposing pleading. Hidalgo, 462 S.W.2d at 543 n.l. A
review of the pleadings in such a case is de novo, with the reviewing court taking all
allegations, facts, and inferences in the pleadings as true and viewing them in the light most
favorable to the pleader. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).
                                           Application of Law to Facts

         Lemke contends that the carriers failed to produce evidence to support their motion

for summary judgment, rendering all uncontroverted facts in Lemke's first amended original
petition admitted as true.3 Lemke's contention fails because the carriers did offer evidence
to support their motion for summary judgment. The evidence consisted of Lemke's
responses to their requests for admissions, the policies, Gonzalez's petitions against both the
carriers and Lemke, and all pleadings and discovery on file. Therefore, all uncontroverted
facts in Lemke's first amended original petition are not admitted as true. Instead, we review
the motion for summary judgment under the Nixon criteria earlier set out in this opinion.


        Lemke's brief contains the following discussion:

          Summary judgment may be based upon the pleadings alone when the petmon fads to ^*~'a^
          Professional Ass'n of College Educators v. El Paso County Community College Dist678£W.2d 94 6 Tx.
          App -El Paso 1984). In such acase, supporting proof is not necessary. Id.; Chandler v. Gilhs, 589 S.W.2d 552 (Tex.
          Civ App -El Paso 1979, writ ref'd n.r.e.). In such acase, the court takes as true every allegation of the pleading
          Igaini'which the motion is directed. Professional Ass'n of College Educators v. El Paso County Community
          College Dist 678 S.W.2d 94, 96 (Tex. App.-El Paso 1984); Wood Truck Leasing, Inc. v. American Automobile
          Insurance Co 526 S.W.2d 223 (Tex. Civ. App.-San Antonio 1975, no writ). When amotion for summary judgmen
          is directed solely to the nonmovant's petition and is not supported by affidavits, depositions or other summary judgment
          evidence, the factual allegations of the petition are admitted as true. See Abbott v. City of Ka»fman'™*™-2*™'
          929 (Tex. App.-Tyler 1986); Garcia v. Fabela, 673 S.W.2d 933, 934-35 (Tex. App.-San Antonio 1984); Labbe v.
          Carr, 369 S.W.2d 952 (Tex. Civ. App.-San Antonio 1963, writ ref'd n.r.e.).
 Because these cases all discuss summary judgments based on legally insufficient pleadings, Lemke's reliance on them in this case
 ofsummary judgment based on evidence ismisplaced.



                                                               -8-
              "K,^.^^^^^




See Nixon, 690 S.W.2d at 548-49.

       Lemke correctly asserts that summary judgment may be affirmed only on the grounds

presented in the motion for summary judgment. Lemke pleaded a cause of action for
liability based only on coverage. The carriers moved for summary judgment based on
noncoverage and, thus, no liability. Lemke's response in opposition to the motion for
summary judgment contended, for the first time, that the carriers could be liable despite
noncoverage. Lemke did not amend or supplement its pleadings to address this new and
separate noncoverage claim. Consequently, the issue of noncoverage liability was not
properly at issue before the trial court when the trial court granted the carriers' motion for
summary judgment. See Jones, 893 S.W.2d at 147.
          As the defendants and movants for summary judgment, the carriers could prevail by
showing that Lemke had no cause of action as amatter of law or by conclusively negating
 coverage, arequired element of plaintiffs case. As evidence, the carriers offered Lemke's
 responses to their requests for admissions, the policies, Gonzalez's petitions against both the
 carriers and against Lemke, and all pleadings and discovery on file. The burden then shifted
 to Lemke to present evidence to create a fact question on the issue of coverage or to
 convince the court that the carriers' legal position was unsound. We conclude that Lemke
 neither presented evidence that created afact issue on the issue of coverage nor convinced
 the court that the carrier's legal position was unsound. We overrule Lemke's first point of
 error.




                                               -9-
                                  BREACH OF CONTRACT


         In its second point of error, Lemke argues that the trial court erred in granting the

carriers summary judgment because material questions of fact exist about whether the

carriers breached their contracts with Lemke.

         The appellant has the burden on appeal of presenting "such discussion of facts and
the authorities relied upon as may be requisite to maintain the point atissue." Tex. R. App.
P. 74(f). Otherwise, the appellant has waived the point of error. See New York Underwriters
Ins. v. State Farm Mut. Auto. Ins., 856 S.W.2d 194, 204 (Tex. App.-Dallas 1993, no writ);

D/FW Commercial Roofing v. Mehra, 854 S.W.2d 182, 189 (Tex. App.-Dallas 1993, no

writ).

         Lemke provides no arguments or authorities for its second point of error. Because
of this omission, Lemke has waived this point of error. Moreover, Lemke conceded at oral
argument that the wrongful discharge claim was not covered by the policies. See Missouri-
Kansas-Texas R.R. v. Heritage Cablevision, 783 S.W.2d 273, 277 (Tex. App.-Dallas 1989,
no writ) (when aparty concedes apoint of error at oral argument, the court of appeals may
refuse to consider the point). We overrule Lemke's second point of error.
                BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING

          In its third point of error, Lemke argues that the trial court erred in granting the
 carriers summary judgment because material questions of fact existed about whether the
 carriers breached their duty to deal fairly and in good faith with Lemke. Lemke argues that


                                               •10-
an insured can recover for negligence, unfair insurance practices, and breach ofthe duty of

good faith and fair dealing even when there is no coverage because the policies do not bar
liability for unfair claims denial. Lemke argues that the carriers had a duty of good faith
and fair dealing not from the policies, but from a special trust relationship. Lemke further
asserts that a carrier has a good faith duty to obtain general releases when settling claims
rather than special releases linked to coverage. Lemke argues that the carriers had a duty
to notify Lemke of any offer to compromise or settle. Lemke admits, however, that the law
on which he relies was not in effect when this claim arose. See Tex. Ins. Code Ann. art.

21.56 historical note (Vernon Supp. 1997) [Act of 1991, 72nd Leg., R.S., ch. 242, §
11.03(a), eff. Sept. 1, 1991]. Lemke asserts, however, that the carriers had aduty to seek
the broadest release possible, not just a release of the carriers. Lemke contends that the
carriers were negligent and acted in bad faith because they did not protect Lemke's
interests. Lemke argues that because abad faith claim is independent of apolicy claim, an
insured may recover for bad faith denial of aclaim even if the claim is not covered by the
 policy. Lemke further asserts that the carriers are estopped from denying their duty to
 defend Lemke.

        The carriers argue that bad faith exists only when there is no reasonable basis to deny
 or delay payment of aclaim; that noncoverage is areasonable basis to deny aclaim; that
 an insurance company does not act in bad faith when it properly denies aclaim that is not
 covered; and that Lemke did not plead estoppel, did not present any summary judgment


                                              -11-
                                                             ^V^^^^r*-'lte**?




evidence to raise estoppel, and coverage cannot be created by estoppel.

                                                  Applicable Law

        An insurer has a duty to deal fairly and in good faith with its insured in the processing

and payment of claims. Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165, 167
(Tex. 1987). Abreach of the duty of good faith and fair dealing is established when there
is an absence of a reasonable basis for denying or delaying payment of benefits under the

policy and the carrier knew or should have known that there was not areasonable basis for
denying the claim or delaying payment of the claim. Aranda v. Insurance Co. ofN. Am., 748
S.W.2d 210, 213 (Tex. 1988). Whether there is a reasonable basis for denial of a claim
must be judged by the facts before the insurer at the time the claim was denied. Republic
Ins. Co. v. Stoker, 903 S.W.2d 338, 340 (Tex. 1995). Abad faith claim is independent of
a policy claim. Transportation Ins. Co. v. Model, 879 S.W.2d 10, 17 (Tex. 1994). As a
general rule, there can be no claim for bad faith when an insurer has promptly denied a
 claim that is not covered. Republic, 903 S.W.2d at 341.4
         The doctrine of estoppel cannot be used to create insurance coverage when none




      4 In Republic, however, the supreme court left open the possibility that lack of coverage may not necessarily preclude a
 cause of action independent of the policy claim, stating, "[w]e do not exclude however, the possibility that ir> denying^^im
 the insurer may commit some act, so extreme, that would cause injury independentof the policy claim. See ^'^".W-2d
 at 341 (citing Aranda, 748 S.W.2d at 213). Because Lemke does not argue that the insurance companies commUesom extreme
 .* ,hi «.„Liniurv independent of the policy claim, this exception does not apply in this case. Tec. R. App. P. 74(f).


                                                             -12-
                                                         5^f^-^^^^B^;fe-»i«~w;^*s-J':'''5'




exists by the terms of the policy.5 Texas Farmers Ins. v. McGuire, 744 S.W.2d 601, 602-603
(Tex. 1988). Waiver and estoppel may operate to avoid a forfeiture of a policy, but they
have consistently been denied operative force to change, re-write, and enlarge the risks
covered by a policy. Id. at 603. Waiver and estoppel cannot create a new and different
contract with respect to risks covered by the policy. Id.
                                        Application of Law to the Facts

        Lemke argues that because a bad faith claim is independent of a policy claim, that
an insured may recover for bad faith denial of a claim even if the claim is not covered by
the policy. Lemke correctly argues that abad faith claim is independent of apolicy claim.
However, Lemke's conclusion that an insured may recover for bad faith denial of a claim
that is not covered by the policy does not necessarily follow. The carriers properly denied
coverage of Gonzalez's wrongful discharge claim against Lemke. Without coverage,
Lemke's claim that the carriers acted in bad faith is meritless.
         Lemke's claim of estoppel also fails. This case does not involve forfeiture; instead,
 it involves aquestion of risk coverage under the contract. The doctrine of estoppel will not
 broaden the terms of the policy. Because the carriers properly relied on the limitations of
 risk coverage set forth in the contract, they are not responsible for Gonzalez's wrongful

      5 This general rule has one exception. If an insurer, with knowledge of facts indicating noncoverage, assumes or continues
 the defense of its insured without obtaining anonwaiver agreement or areservation of ^>*"™?fcf^f™2
 including those of noncoverage, or it may be estopped from raising them. See Farmers Tex. County Mut. Ins Co v. Wllk*nson'
 mi^2^^2\rl Civ. App -Austin 1980, writ ref'd n.r.e.). Because the insurance companies in tins case *d not
 assume or continue the defense of Lemke, this exception does not apply.



                                                                 -13-
                                    &&%tfMgsi£**t%&&$%;&&%




discharge judgment against Lemke. The trial court correctly denied Lemke's claim that the

carriers are estopped from denying coverage. We overrule Lemke's third point of error.

         NEGLIGENT FAILURE TO SETTLE, OBTAIN RELEASE, DEFEND

      In its fourth point of error, Lemke argues that the trial court erred in granting

summary judgment in favor of the carriers because material questions of fact exist about

whether the carriers were negligent in failing to (i) reasonably attempt to settle, (ii)

reasonably attempt to obtain a general release from Gonzalez, (iii) defend Lemke, and (iv)
take other reasonable steps necessary to protect Lemke's interest. Lemke further contends

that the carriers negligently misrepresented that Robinson represented Lemke.

       The carriers argue that Lemke is not responsible for workers' compensation benefits

and is not a proper party in a suit seeking these benefits. The carriers contend that because
of noncoverage, they had no duty to settle Gonzalez's retaliatory discharge claim against
Lemke; they only had a duty to settle the workers' compensation claim; and they owed a
duty of good faith and fair dealing in the settlement of the workers' compensation claim only
to Gonzalez, not to Lemke. They argue that their duty to Gonzalez neither requires nor
allows a negotiated release of uncovered claims when settling covered claims.
                                           Applicable Law

       In this case, as in many cases, the interests of the injured worker and the interests

of the employer are not the same. In 1992, when Gonzalez sued Lemke for wrongful
 discharge, it was deemed unethical or fraudulent conduct for an insurance carrier to allow


                                                             -14-
                                     %;^t^t;^^>^^&;$£&$!^^




an employer to dictate the methods by which and the terms on which a claim was handled
and settled. 28 Tex. Admin. Code § 65.10(1)(I) (West 1996) (Tex. Workers' Compensation

Comm'n).6

        When confronted with a defendant's motion for summary judgment that the plaintiff

take nothing, the plaintiff can defeat summary judgment by presenting evidence that creates
a fact question on those elements of the plaintiffs case that the defendant attacks.
American Med. Elecs., Inc. v. Kom, 819 S.W.2d 573, 576 (Tex. App.-Dallas 1991, writ

denied). However, pleadings themselves, even verified, do not constitute summary
judgment evidence. Clear Creek, 589 S.W.2d at 678. ,
                                           Application of Law to Facts

         The carriers deny that they offered to defend Lemke in the wrongful discharge claim
because they were prohibited by rule from doing so. Lemke relies on a letter from
Robinson, contending that the letter "represented to Lemke that Robinson was representing
Lemke as to Gonzalez's claims against Lemke." This letter is not in the summary judgment
 evidence before us. Lemke had the burden to present evidence to create a fact issue about
whether any additional duties existed. Lemke did not meet this burden. Lemke contends
 that because the pleadings contain statements about the letter, we must accept the pleadings
 as facts. However, Lemke's pleadings are not summary judgment evidence. We overrule

       6 The legislature subsequently enacted this regulation into statutory law, making acarrier guilty of an administrative
 violation if it allows an employer, other than aself-insured employer, to dictate the methods by which and the terms on which
 a claim is handled. Tex. Labor Code Ann. § 415.002(a)(8) (Vernon 1996).




                                                             -15-
                               •h**;*^^,^^^&&mU?^^*?*^^          *'*'••' ^S ~'*h••^^,*




Lemke's fourth point of error.

      DTPA, INSURANCE CODE VIOLATIONS, AND VICARIOUS LIABILITY

       In its fifth, sixth, and seventh points of error, Lemke argues that the trial court erred

in granting the carriers summary judgment because material questions offact existed about

whether the carriers violated provisions of the DTPA and the insurance code and about

whether the carriers are vicariously liable to Lemke for the actionable conduct of defendants

Robinson and his law firm. Lemke argues that the carriers' motion for summary judgment

was based only on noncoverage and did not address violations of the DTPA, violations of
the Texas Insurance Code, or vicarious liability, thus, summary judgment on these claims

was improper. The carriers argue that all ofLemke's claims depend on coverage.

                                             Applicable Law

       Aparty may not be granted relief in the absence of pleadings to support that relief.
Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983). Ajudgment must be
supported by the pleadings and, if not so supported, it is erroneous. City of Fort Worth v.
Gause, 129 Tex. 25, 29, 101 S.W.2d 221, 223 (1937). The judgment shall conform to the
pleadings. Tex. R. Civ. P. 301. Issues not expressly presented to the trial court by written
motion, answer, or other response shall not be considered on appeal as grounds for reversal.
Tex. R. Civ. P. 166a.

                                   Application of Law to Facts

        Lemke pleaded claims based only on coverage. Thus, neither the carriers' motion


                                                          •16-
                                             -•"n^NNlM




for summary judgment nor the trial court's grant of summary judgment addressed violations
of the DTPA, violations of the Texas Insurance Code, or vicarious liability. Summary

judgment was predicated only on noncoverage because Lemke's pleadings were predicated
only on coverage. Lemke conceded the issue of coverage at oral argument. We overrule
Lemke's fifth, sixth, and seventh points of error.

                                      CONCLUSION

       We hold that the trial court properly granted summary judgment in favor of
Employers Mutual Casualty Company, Union Mutual Insurance Company of Providence,
and Emcasco Insurance Company. We affirm the trial court's judgment.




 Do Not Publish
 Tex. R. App. P. 901
 951259F.U05




                                              -17-
