AFFIRM;           Opinion        issued December 13, 2012




                                                                        In The
                                                Qtmtrt uf .ppiat
                                       .iift1i Dhtrirt ut rxzu at Oa11a
                                                            No. 05-1 1-00143-CV


                                         OSTROVITZ & GWINN, LLC, Appellant

                                                                            V.

                            FIRST SPECIALTY INSURANCE COMPANY, Appellee


                                    On Appeal from the 191st Judicial District Court
                                                 Dallas County, Texas
                                          Trial Court Cause No. 06-09925-i


                                                                  OPINION
                                    Beibre Justices O’Neill, FitzGerald, and Lang-Miers
                                              1 By Justice FitzGerald
                                              Opinion

            Appellant Ostrovitz & Gwinn. LLC (“Landlord”) owned a commercial property in Dallas,

Texas. which it leased to a tenant in 2003. The tenant obtained property insurance from appellee

First Specialty Insurance Company.
                          2 Landlord was identified in the policy as a loss payee, not as a

named or additional insured. After a fire damaged the buildings on the property in 2006, Landlord

sought compensation from First Specialty. and First Specialty took the position that Landlord was



      I
        We note that a version of this opinion was inadvertently transmitted to West and Lexis and appeared on their electronic sers ices with an
issuance date of November 29. 2012 That opinion was not officially issuedh the Court and is not the opinion of the Court. This is the opinion
of the Court.


    —  First Specialt asserted in the trial court and asserts on appeal that its correct lame is First Specialty Insurance Corporation ‘A e rvill refer to
it simply as First Spceiali\ iii this opinion
entitled to no insurance benefits. Landlord sued First Specialty and others on a variety ot theories.

Li rsl Specialt\ obtained partial summary judgment on most ol I andlord s chums against it. and

Landlord appealed after the rest of its claims were disposed of. We affirm.

                                                             I.     BACKCROUNL

A.          Factual allegations

            Landlord alleged the following in its live pleading. In 1998 ii leased some real property in

Dallas County to a company now known as Integral Texas Pallet Operations, LP(”Tenant”). In 2003

that lease was renewed for a five-year term. The 1998 lease required Tenant to insure the buildings

on the property and to have landlord named as an additional insured on the policy. On account of

a mutual mistake. Landlord alleged. the 20t)3 lease did not contain this insurance requirement.

            A First Specialty insurance policy was in effect on September 9, 2006, when a fire occurred

on the leased premises, damaging the buildings there. First Specialty advised Landlord that there

was no coverage of Landlord’s loss under the policy.

B.          Procedural history

           Landlord sued Tenant. First Specialty. and the individual who allegedly set the fire. I ancllord

later amended its pleadings and added another defendant. Keith D. Peterson & Company, Inc., which

was allegedly First Specialty’s agent.
                                3 In its live pleading, Landlord asserted claims against First

Specialty for breach of contract, violations of various provisions of the insurance code, violations

of the DTPA. negligence, negligent misrepresentation. promissory estoppel. and declaratory

judgment. First Specialty counterclaimed fir a declaratoryjudgment that Landlord was not entitled

to any recovery under the insurance policy in question.



      Landlords live plcading its third amended petition. also iiiel udes a 111th de lndant in the st\ Ic of the case. Insurance 0131cc ofAmerica Inc..
hut the body of the pleading includes no claim against that defendant.
        Landlord tiled a motion entitled “Plainti us First Amended Motion for Partial Summary

Judement for Declaratory Relief (Insurable Interest and Financial Interest).” By this motion.

I .andlord sought a partial summary judgment declaring that both Tenant and Landlord had insurable

interests in the damaged buildings. declaring that Fenant had no financial interest in those buildings.

and ordering First Specialty to deposit policy proceeds into the registry    of   the court for division

between Landlord as owner of the buildings and Tenant as owner of the damaged personal property.

The appellate record contains no written order disposing of this motion, but First Specialty avers in

its appellate brief that the trial judge orally denied that motion at a hearing on June 23, 2010.

       First Specialty filed a motion for summary judgment in which it challenged all of Landlord’s

claims on various grounds. including some no-evidence grounds under Texas Rule of Civil

Procedure I 66a(i). The judge heard First Specialty’s motion, and on July 28. 2010, the judge signed

an order granting First Specialty’s “Traditional Motion for Summary Judgment” as to all of

Landlord’s claims against First Specialty except declaratory judgment. On September 2. 2010. the

judge signed a second order additionally   granting   summary judgment for First Specialty as to some

of Landlord’s claims on no-evidence grounds. but expressly denying summary judgment as to

Landlord’s declaratory-judgment claim. Thereafter, all of the remaining claims in the case were

disposed of by other orders. As part of that process, Landlord nonsuited its declaratory-judgment

claim against First Specialty on December 13, 2010. The final order in the case was a dismissal of

Landlord’s claims against Tenant on January 11. 2011.

       Landlord timely filed its notice of appeal. Because Landlord’s appellate issues concern only

its claims against First Specialty, First Specialty is the only appellee in this appeal. See Showbiz

Multimedia. Lt(’ v. Mountain States Mortg. (‘irs., Inc.. 303 S.W.3d 769. 771 n.3 (Tex.

App—Houston [1 st Dist.j 2009, no pet.).
                          II.   MOTION TO ANIEIcD NorIE OF APPEAL

       After oral argument. Landlord filed a motion 11w leave to tile an amended notice of appeal.

We grant the motion.

A.     Pertinent facts

       The notice of appeal that appears in the clerk’s record is missing page two. Thus. some of

the text ofthe notice ofappeal is missing; an incomplete sentence cuts offat the bottom ofpage one.

and the next page in the record is page three, which contains only the signature block. Landlord filed

a copy of the notice of appeal with the clerk of this Court the same day it filed its notice of appeal

in the trial court. The copy filed with the clerk of this Court is also missing page two.

       In its appellee’s brief. First Specialty raises aditThrent complaint regarding Landlord’s notice

of appeal. First Specialty argues that the notice of appeal limits Landlord’s appeal to the partial-

summary-judgment order signed on July 28,2010, and does not invoke appellate jurisdiction over

the partial-summary-judgment order signed on September 2, 2010 or the oral denial of Landlord’s

motion for partial summary judgment in June 23, 2010. Therefore. First Specialty concludes, we

should “sever and dismiss the complaints related to those rulings.” First Specialty relies on the

opening language of the notice of appeal, which reads as follows:

       [Landlord] desires to appeal, and does appeal the adverse summaryjudgment against
       it granted to [First Specialty] on July 28, 2010. This Order Granting First
       Specialty[’s] Traditional Motion for Summary Judgment was made final by the entry
       ofthe subsequent following orderw

Following this verbiage, Landlord begins a list of subsequent orders that cuts off in the middle of

the third item because of the omission of page two noted above. The partial list on page one does

not include the partial-summary-judgment order signed on September 2, 2010. Nor does it include

the January 11.2011 order dismissing Landlord’s claims against Tenant, which was the order that




                                                -4-
resulted in a linal. appealable judgment in the case.

             We inlormed Landlord’s counsel during oral argument that page two of its notice of appeal

was missing. Several days later. Landlord tiled                            a motion for        leave to file an amended notice of

appeal. with a proposed amended notice of appeal attached as hxhihit A. Iand1ord’s proposed

amended notice of appeal not only cures the missing—page problem we pointed out but also addresses

First Specialty’s argument by changing the first sentence of the notice of appeal to recite that

Landlord desires to appeal, and does appeal the interlocutory adverse summary judgments against

it granted to I)efendant First Specialty Insurance Company on June 23. 2010. July 28. 2010. and

September 2, 2010.” First Specialty filed a response in opposition to Landlord’s motion for leave

to amend.

B.           Application of the law to the facts

             Texas Rule of Appellate Procedure 25.1(g) provides as follows:

             An amended notice of appeal correcting a defect or omission in an earlier filed notice
             may be filed in the appellate court at any time before the appellant’s brief is filed.
             The amended notice is subject to being struck for cause on the motion of any party
             affected by the amended notice. After the appellant’s brief is filed, the notice may
             be amended only on leave of the appellate court and on such terms as the court may
             prescribe

TEx. R. App. P. 25.1(g). The Texas Supreme Court has indicated that appellate courts should freely

grant leave to amend a notice of appeal when leave is sought. In one recent case. an insurance carrier

asserting subrogation rights against an alleged tortfeasor filed a notice of appeal in the name of its

insured even though its insured apparently did not desire to appeal. Warwick Towers Council ofCo

owners ex rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, LP., 244 S.W.3d 838. 838—39

(Tex. 2008) (per curiam). The court of appeals dismissed the appeal after oral argument because the


       Ihere is no June 23. 2010 order in the record hut as noted above. First Specialty avers that there as an oral denial of Landlords motion on
that dale.
carrier failed to name itself as the appellant in the notice of appeal         Id. at i’30. Ihe carrier tiled a

motion for rellcari1l and a motion to amend its notice of appcal. and the court o fappeals denied both

motions. Id. (in further appeal. the supreme court reversed, concluding that the carrier had made

a hona tide attempt to appeal by filing the notice of appeal and h listing its own interest in the

docketing statement and other appellate pleadings. Id. Accordingly. the court of appeals erred by

refusing to allow the carrier to amend its notice of appeal. Id. at 840.

          Landlord’s original notice of appeal was a hona fide attempt to invoke our jurisdiction and,

therefore, successfully did so. See Sweedv, Nyc, 323 S.W.3d 873, 875 (Tex. 2010) (per curiam)

(“[Al timely filed document, even if defective. invokes the court of appeals’ jurisdiction.”); see also

JT’arwick Towers Coujicil. 244 S.W.3d at 839. But the notice was defective because it was missing

page two and did not state the date of the final, appealable order in the case. See iix. R.            APP.   P.

25.l(d)(2) (“The notice of appeal must    .   .   .   state the date of the judgment or order appealed from

  .“).   The proposed amended notice corrects the defect and satisfies Rule 25.l(d)(2)bv identifying

the order that actually constituted the final, appealable order in the case—the January 11 2011 order
                                                                                                  .




dismissing Landlord’s claims against Tenant. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200

(Tex. 2001) (“[ljf a court has dismissed all of the claims in a case but one, an order determining the

last claim is final.”) (footnote omitted): see also Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008)

(per curiam) (noting that Rule 25.1(d)(2) required appellants to state in their notice only the date

their suit was dismissed, not that they were challenging an earlier interlocutory order sustaining

special exceptions).

         First Specialty’s opposition to Landlord’s motion for leave is directed to Landlord’s request

to modify the first sentence of its notice of appeal. In its original notice of appeal. Landlord stated

that it was appealing from the July 28. 2010 partial summary judgment. but in its proposed amended
notice of appeal I andlord states that it is appealing partial—summary—judgment orders dated June    23.


20 I 0. and September   2
                            201 0. as   eli. First Specialty argues that Landlord should not he allowed

to make this amendment because I .andiord did not timely file a notice ot appeal 1mm the newly

added partial-summary-judgment orders, and thus we did not acquire appellate jurisdiction over

those orders. We disagree. In our view, the change in the opening sentence of the notice of appeal

is immaterial because the rules do not require an appellant to list in the notice of’ appeal every

interlocutory ruling that appellant may wish to challenge on appeal. See (Junnerman v. Basic Capital

;gint., Inc.,   106 S.W.3d 821. $24 ( l’ex. App.—Dailas 2003. pet. denied) (holding that notice of

appeal from final judgment hrought forward the entire case, including earlier interlocutory’ orders

that were not independently appealable”): see also Vuzquez v. Vazque;. 292 S.W.3d 80, 82—83 (Tex.

App.—Houston [14th Dist.] 2007, no pet.) (holding that appellant did not limit his issues on appeal

by gratuitously listing only some of those issues in his notice of appeal”): Anderson v. Long. 118

S.W.3d 806, 809-1 0 (Tex. App.--—Fort Worth 2003. no pet.) (holding that appellant could challenge

interlocutory partial summary judgment even though notice of appeal stated that appeal was from

order sustaining subsequent plea to the jurisdiction): Tex. Sling, Ld. v. J?.B. Foods. Inc., 82 S.W.3d

644,647—48 (Tex. App.—San Antonio 2002, pet. denied) (holding that notice of appeal from default

judgment that was the final order in the case also allowed appellant to raise appellate issues

challenging prior interlocutory order dismissing part of case for want of prosecution). Thus, the fact

that Landlord specifically mentioned its intention to appeal the July 28. 2010 partial summary

judgment in its original notice of appeal did not preclude it from raising appellate challenges to other

interlocutory rulings as well. Allowing Landlord to file the amended notice of appeal will not

change the scope of our jurisdiction or broaden the range of appellate issues Landlord may raise.

        We grant landlord’s motion for leave to file an amended notice of appeal.




                                                    -   7--
                                  III.    Si    4J L)I{L) OF   RFvIEw

        \Ve review a summary judgment de novo. SniiI, v. i)cnei’e. 28         S.W.3d 904. 90’) ( lex.

App.——--Dallas 2009. no pet.). When we review a traditional summary judgment in             ftivor   ol a

defendant, we determine whether the delèndant conclusivel disproved an clement of the plainti fis

claim or conci usivelv proved every element o Ian aflirmative defense. Am. lohacLo ( o. v.   (Irinnell.


95 1 S.W.2d 420. 425 (Tex. 1997); Smith, 285 S.W.3d at 909. We must take evidence favorable to

the nonmovant as true. and we must indulge every reasonable inference and resolve every doubt in

favor of the nonmovant. Sysco Food Servs,, Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994);

Smith. 285 S.W.3d at 909.

       When we review a no-evidence summary judgment, we inquire whether the nonmovant

adduced sufficient evidence to raise a genuine issue of fact on the challenged elements. Smith, 285

S.W.3d at 909. ‘[Wje review the evidence in the light most favorable to the respondent against

whom the summary judgment was rendered. If the respondent brings forth more than a scintilla of

probative evidence to raise a genuine issue ofmaterial fact, a no-evidence summary judgment cannot

properly be granted.” Smith v. O’Donnell. 288 S.W.3d 417, 424 (Tex. 2009) (citations omitted).

That is, a no-evidence summary judgment should be reversed if the evidence is sufficient for

reasonable and fair-minded jurors to differ in their conclusions. See Hamilton v. Wilson, 249 S .W.3d

425, 426 (Tex. 2008) (per curiam).

                                          IV.      ANAixsis

       Landlord raises ten issues on appeal. its first five issues concern its breach-of-contract claim

and its declaratory-judgment claim. Its remaining issues concern its tort claims.




                                                   —8—
A.      Breach of contract

        1.      Introduction

        In issues one. three. four. and five. Landlord attacks the summaryjudgment on its breach-of.

contract claim against First Specialty. but it presents a single argument under those issues. In its first

issue. Landlord complains generally that the trial judge erred by granting First Specialty’s motion

for summaryjudgment. This issue is sufficiently broad to encompass all of Landlord’s arguments.

See Malooly Bros., Inc v. Napler, 461 S.W.2d 119, 121 (Ta. 1970).

        The elements ofa claim for breach ofcontract are: (1) a valid contract between the plaintiff

and the defendant, (2) perfonnance or tender of perfonnance by the plaintiff, (3) breach by the

defendant, and (4) damage to the plaintiff as a result of the breach. In re SIaley. 320 S.W.3d 490.

499 (Ta. App.—Dallas 2010. no pet.). First Specialty raised two grounds for summary judgment

on Landlord’s claim for breach of the insurance policy. First it argued that Landlord had no

standing to sue on the policy because Landlord was not a party to the policy. Second, it argued that

it had not breached the policy in any event because Landlord’s rights were derivative of Tenant’s,

and Tenant had no financial interest in the damaged real property.

        2.      Prlvity under the insurance policy

        Insurance policies are contracts, so the rights and duties they create and the rules governing

their interpretation are those generally pertaining to contracts. (Rico Cat Co. v. AlliedpilotsAss ‘n,

262 S.W.3d 773, 778 (Tex. 2008). Under the general law of contracts, a party must show either

privity orthird-party-beneflciaiy status in order to have standing to sue for breach ofcontract OAJC

CommercialAssets, LLC v. Stonegate Vilt, LP., 234 S.W.3d 726,738 (Tex. App.—Dallas 2007,

pet. denied). Privity exists if the defendant was a party to an enforceable contract with either the

plaintiff or someone who assigned his or her cause of action to the plaintiff. Id.



                                                  -9-
           Considering for the moment only the four corners of the policy itself. we conclude that

Landlord was not a party to the policy and therefore was not in privily with First Specialty?

Generally, a property-insurance policy is a personal contact between the insured and the insurer.

See Trawlers Fire Ins. Ca v. Steinmann, 276 S.W.2d 849,851 (rex. Civ. App.—Dallas 1955, writ

ref’d n.r.c.). Landlord is neither a named insured nor an additional insured under the policy.

Landlord does not allege that it was assigned a breach-of-contract claim by someone in privity.

Accordingly, we conclude that, considering only the language of the policy itself, privity between

Landlord and First Specialty is lacking.

           We proceed to consider whether Landlord raised a genuine fact issue as to its standing,

whether as a third-party beneficiary or otherwise.

          3.         Standing as a third-party beneficIary

                     a.         General legal prhielples

          Toqualifyasathird-partybeneflciaçy,athirdpartymustshowthatftiseitheradoneeor

creditor beneficiary of the contract, and not one who is benefited only incidentally by its

performance. MCI Telecomms. Corp. v. Ta. Utik Elec. Ca. 995 S.W.2d 647,651 (Tex. 1999).

The intention of the contracting parties is controlling. Id. “The intention to contract or confer a

direct benefit to a third party must be clearly and fully spelled out or enforcement by the third party

must be denied.” Id.; accordBasic Capital MgmL, Inc. it Dynex Commercial, Inc., 348 S.W.3d 894,

900 (Ta 2011). We Wean the parties’ intention from the words oftheir contract, and not from what

they allegedlymeant Alvarado v. Lexington Ins. Ca, No. Ol-l0-00740-CV, 2012 WL 5194057, at

 6 (rex. App.—Houston [1st Dist] Oct 18, 2012, no pet). “All doubts must be resolved against



    Landlord apes that asepa docamiess adedEvidenceo(Propenylnsuratcc’ anotmied to an independent contract between landlord
    5
and First Specialty or modified the insurance policy so an to make landlord a panty thereto. We address this aguntent later in the opinion.




                                                                 -10-
conlerring third-party beneficiary status.” iiwt’s v. Barnes, 340 S.W 3d 419. 425 (Tex. 2011):            see


a/vu First Ifinon Vu! ‘1 Bunk v. Richmun! ( a/n/al Partners I. L P.. 1 6X S.W.3d 917. 929 ([cx.

App.—1)allas 2005. no pet.) (“If there is any reasonable doubt as to the intent of the            contracting


parties to conflra direct benefit on the third party. then the third—party beneficiary claim must fail.’).

Texas courts have occasionally     recognized     third—party beneficiaries   in   the insurance context when

the policy language so requires. See, e.g..       Paraçon   Sales Co. v. iVfi Ins. Co., 774 S.W.2d 659.

660—61 (Tex. 1989) (per curiarn).

        Landlord argues that the foregoing rules are modified in the insurance context because of the

rule that any ambiguities in an insurance policy are to be resolved in favor of coverage. See, e.g.,

Progressive Cnty. tint. Ins. Co.   i   Sink, 107 S.W.3d 547. 551 (Tex. 2003). But as First Specialty

points out. a third person who is not a party to a contract of insurance usually is not entitled to a

strict construction in his favor in determining whether the contract was made for his benefit.”

McBroome—Benne!tPlunthing. Inc.        v.   Villa France, Inc.. 515 S.W.2d 32.37 (Te. Civ. App.—Dallas

1974. writ refd n.r.c.). Thus. the rule that ambiguities in an insurance policy: are resolved in favor

of coverage does not apply to our inquiry into whether Landlord is a third-party beneficiary of

Tenant’s insurance policy. To the contrary, if there is any reasonable doubt, Landlord’s claim to

third-party-beneficiary status must fail. See First Union Nat ‘1 Bank, 168 S.W.3d at 929.

                b.      Policy language

        We begin with the language of the policy. Cf. MCI Telecomnis. Corp.. 995 S.W.2d at 650

(“Our analysis of the third-party beneficiary issue requires us to interpret the contract between CI

and MoPac.”). According to the declarations page. the policy affords commercial property coverage

and commercial inland marine coverage. The schedule of named insureds includes Tenant and did

not include Landlord. The policy’s ‘Schedule of Locations” includes the leased premises and, next




                                                    —Il—
to the leased premises. listed an amount of $1 .838,668 for “l3ldgs. l3ppi. Stock & Mobile

hquipment.’          ‘I he main property—coverage part of the policy is entitled “lluilcling and Personal

Property Coverage 1 orm.” This 14—page coverage form defines “we” as First Specialty and “von”

as the named insureds. Section A ol the coverage form, entitled “Coverage, provides that First

Specialty “will pay Ir direct physical loss of or damage to Covered Property at the premises

described in the Declarations caused by or resulting from any Covered Cause of Loss.” But section

A does not say who is entitled to enforce First Specialty’s obligation to pay in the event of a covered

loss to covered property.

           The payment of claims is addressed in section E of the coverage Ibrm, entitled “Loss

Conditions.” Section E.4. entitled “Loss Payment.” contains the following terms:

           d.         We will not pay’ you more than your financial interest in the Covered
                      P rope rt.

           e.         We may adjust losses with the owners of lost or damaged property if other
                      than you. If we pay the owners, such payments will satisfy your claims
                      against us for the owners’ property. We will not pay the owners more than
                      their linancial interest in the Covered Property.

On our reading of section E.4.e, First Specialty reserves the right—but assumes no obligation—to

adjust losses with and pay an owner of covered property who is not a named insured. The provision

further establishes that such payments will count towards satisfaction of any claim by the named

insured. But section E.4.e does not clearly show an intent by Tenant and First Specialty to confer

a direct benefit on Landlord. Rather, section E.4.e seems to confer a right on First Specialty by

giving First Specialty the option of paying the owners of covered property, even if the owners are

not named insureds. and providing that such payments will satisfy the named insured’s claim for the




   6
       Tins parteul ar form is an SO lOrm and hears the legend UP 00 1 0 04 02’




                                                                  —12—
owner s property.

            Finally, the loss—payment terms ol section E.4 arc supplemented by a separate. two—page

policy endorsement entitled “Loss Payable Provisions.’ The                                        endorsement          identilies I andlord by

name as a “Loss Payee” in an attached schedule.
                                      8 The endorsement also adds some additional terms

to the loss-payment provi sions found in section F of the coverage form. The parties focus on section

B of the endorsement. entitled “LOSS PAYABLE.” which provides:

            For Covered Property in which both you and a Loss Payee shown in the Schedule or
            in the I)cc larations have an insurable interest, we will:

                                   Adjust losses with you: and

                        2.         Pay any claim for loss or damage jointly to you and the Loss Payee,
                                   as interests may appear.

On our reading, section B of the endorsement, like section F of the coverage form, is not a clear

promise by First Specialty to pay a loss payee for covered damage to covered property, even in the

absence of a claim by the named insured. To the contrary. in section B. First Specialty assumes the

duty of adjusting losses only with the named insured. If First Specialty ever pays a claim that fits

the description in section B, it promises to pay the claim jointly to [the named insuredi and the Loss

Payee, as interests may appear,” but section B contains no clear promise by First Specialty to pay a

claim by a loss payee in the absence of a claim by the named insured.

            Thus, considering only the language of the policy, and before considering any other evidence

or judicial decisions on point, we are inclined to conclude that the policy does not clearly and fully

demonstrate an intention by ‘I’enant and First Specialty to contract for the direct benefit of Landlord.



        The endorsement is an ISO tbrm and bears the legend “CP 12 18 06 95”

    8
      To be precise, the schedule of loss payees includes “Gwinn & Ostrovitz,” not Ostrovitz & Gwinn. L IC. In its appellate brieF First Specialty
avers that “Ostrovitz& Gssinn is listed as a loss payee in the Policy” and cites the schedule of loss payecs in support. so despite the discrepancy there
is no dispute that Landlord is a loss payee under the policy.




                                                                        —l 3
Under such a    conclusion,   Landlord would lack standing to sue as a third—party beneficiary of the

policy.

                 c.      Judicial interpretations of loss-payee provisions

          The parties cite numerous authorities from Texas and other jurisdictions in support of their

respective policy interpretations. But few if any of their authorities address loss-payee standing, and

none closely analyze that issue under the same policy language involved in this case, so the

precedents are of little use.

          Several Texas decisions have turned on the interpretation of loss-payee provisions, but we

have not found a Texas case specifically addressing the standing or third-party-beneficiary status of

a loss payee under these particular policy provisions. In the auto-insurance context, there are a few

cases in which a court has entertained a loss payee’s suit for coverage directly against the insurance

carrier. See, e.g.. Progressive Cniy. Mitt. Ins. Co. v. Budget Motors, Inc., No. 05-02-01763-CV,

2003 WL 2154451 1 (Tex. App.Dallas July 10, 2003, no pet.) (mem. op.); Fire & (‘as. Ins. Co. of

Conn, v. BusLease, Inc., No. 08-0l-00277-CV, 2002 WL 1301570 (Tex. App.-—El Paso June 13,

2002, pet. denied) (not designated for publication); Old Am. Mitt. Fire Ins,    Co. v. GulfStates Fin.
Co., 73 S.W.3d 394 (Tex. App.—Houston [1 st Dist.] 2002, pet. denied); Don Chapman Motor Sales,

Inc. v. Nat’lSav. Ins. Co., 626 S.W.2d 592 (Tex. App.—Austin 1981, writ ref d n.r.c.). Landlord

argues that this means the courts implicitly recognized loss-payee standing. We need not decide

whether Landlord is correct because the cases are distinguishable. The question of third-party-

beneficiary standing depends on the language used in the contract. Some of the opinions cited above

do not quote or describe in any detail the relevant loss-payee provisions, so they are not instructive

precedents in the instant case. See Progressive Cnty. Mut. Ins. Co., 2003 WL 21544511. at *1....5;

Fire & Cas. Ins. Co., 2002 WI. 1301570, at *5            The others involve policy provisions that are




                                                 —14--
distinctly more protective of the loss payee’s interest than the language in the First Specialty policy.

See U/cl Am 73 S.W.Sd at 395: Don ( huj,mcen. 626 S.W.2d
             .                                                    at   594. In short. we have lound no

Texas case authority that weighs against our preliminary conclusion that I .andlord is not a third—party

beneficiary of this policy.

        Similar!, cases from other jurisdictions are of little help. Only a few ol them specifically

address a loss payee’s third-party-beneficiary status, and even those generally do not carefully

analyze the policy language in question. For example, First Specialty relies heavily on Northwestern

National (‘asualty Co. v. Khosa, Inc., 520 N. W.2d 771 (Minn. Ct. App. 1994). Khosa supports First

Specialty’s position because the policy language involved in that case closely tracks the loss-payable

endorsement involved in this case, the named insured made no claim on the policy, and the court

held that the loss payee had no rights under the policy because its rights were derivative of the rights

of the named insured. Id. at 774—75. But the court did not explain why or how the policy language

supported its holding, so its opinion is not particularly persuasive.

       Somewhat more persuasive is May v. ,lIid-Ceniurv Insurance Co.. 1 5 1 P.3d 132 (OkIa.

2006). In that case. a condominium owner suffered some fire damage to her unit. Id. at 134. She

sued Mid-Century, which was the insurer for her homeowner’s association, for bad faith in refusing

to pay her claim under the association’s policy. Id. The Oklahoma Supreme Court concluded that

the carrier owed the plaintiff no legal duty under the policy, based largely on a loss-payment clause

in the policy that provided. We may adjust losses with the owners of lost or damaged property if

other than you [the named insured].” id.      at   137 n.18. 140—41. The court concluded that this

clause—which also appears in the policy involved in the instant case—gave the insurance carrier the

exclusive choice to settle covered claims with the association or with the unit owners, thereby

negating any contractual right running directly to the unit owners. Id.   at   140—4 1 May supports our
                                                                                     .




                                                   —15—
viev that the above—quoted clause shows an intention to contèr an option on the insurance carrier.

and not   a direct   benefit on a loss payee.

          Authorities from a few other junsdictions         support   Landlord, but they   are   unpersuasive

because the liil to explain why the particular policy language involved justified treating a loss

payee as a third-party beneficiary. See, e.g., DeMay v. Dependable Ins, Co.. 638 So. 2d 96, 97 (Fla.

Dist. Ct. App. 1994); C’anal ins. Co. v. Savannah Bank & Trust Co., 352 S.E.2d 835, 839 (Ga. Ct.

App. 1987): Itinschel v. iransconlinen/al Ins. Co.. 839 P.2d 64. 70 ( Kan. Ct. App. 1992): see also

Waic’rfleldMorig.        Buckete State AIut. Ins. Co.. No. 93—CA—53. 1994 WE 527594, at *4 (Ohio. Ct.

App. Sept. 30. 1 994) (holding that there was a genuine fact issue as to whether loss-payee was third-

party beneficiary of insurance policy). Some secondary authorities also support Landlord’s position.

hut they likewise offer no justification grounded in policy language. See 2DB JoHN A. APPLEMAN

&   JEAN APPLEMAN, INSURANCE LAw AND PRAc11CE                § 11749 (1980); 17 LEE R. Russ & TH0M,\s
F. SEGALLA, COUCH ON INSURANCE 3D               § 242:69 (2005). Thus, Landlord’s authorities are not
particularly persuasive.

                   d.      Extrinsic evidence

          Finally, the parties refer us to some extrinsic evidence. Of course, extrinsic evidence may

be considered only if the policy is ambiguous. See Carhona v. CHMed., Inc., 266 S.W.3d 675, 681

(Tex. App.—-Dallas 2008, no pet.) (1f the agreement is not ambiguous                then the courts do not

consider extrinsic evidence in interpreting the agreement.”). Although neither party argues that the

policy is ambiguous, we will assume arguendo that it is because, as shown below, the extrinsic

evidence does not affect the outcome.

       Landlord argues that we should interpret the policy in light of revised loss-payable provisions

that appear   in   a subsequent ISO form. According to Landlord, a 2007 ISO form provides that the




                                                    —16--
insurer will adjust a building owners damages or losses with it as loss payee. The argument thils.

First, Landlord provides no record citation for this alleged form, and we cannot find it in the

appellate record. Thus, we cannot rely on it. Moreover, even assuming the revised form exists and

says what Landlord claims it says. it would not support Landlord’s position. Regardless of the

contents ofthe revised policy, the policy language pertinent to this case still would not clearly show

an intention to make a loss payee like Landlord a third-party beneficiary. In addition,, when a drafter

changes the language of a text. it often signifies a change in meaning. See Friedrich Air

(]ondiiioning & Rçfrig. Ca v. Bexar Appraisal Din, 762 S.W.2d 763. 767 (Tex. App.—San

Antonio 1988, no writ) (stating that legislative change in the law tends to show an intention to

change the law): çf PopCap Games, Inc. v. MwnboJumbo, LLC, 350 S.W.3d 699, 708 (Tex.

App.—Dallas 2011, pet. denied) (“The use of different language in different parts of a contract

generally means that the parties intended different things.”). Thus, the existence of a revised form

that clearly makes a loss payee a third-party beneficiary would not tend to show that a prior version

of the form using difkrent verbiage had the same meaning.

        Other extrinsic evidence tends to support First Specialty’sposition. One witness testified by

deposition that he interpreted section B ofthe loss-payable endorsement to mean that First Specialty

had no obligation to pay the loss payee unless the named insured asked First Specialty to do so.

Mother witness testified by deposition that looking at the policy “in isolation of all other facts,”

there was nothing in the policy that provided for the loss payee to have a direct claim or cause of

action against First Specialty.

        Thus, assuming for the sake of argument that we can properly consider extrinsic evidence

in this case, we conclude that the extrinsic evidence does not support Landlord’s position in this

case.



                                                —17—
                      e.         Conclusion


           Ihe legal lest is          hether the insurance policy clearly and tullv spells                         out an     intention 1w

lenant and First Specially to confir a direct benelit on Landlord. See M( 7 Telecoinn,s. Corp.. 997

S.W.2d at 65 I             In ease of an reasonable doubt, we must rule against Landlord on the issue.                                    See


Firs! Limon Aii ‘1 Iia,ik. 168 S.W.3d at 929. We conclude that the insurance policy does not clearly

and fully spell out the necessary intention. Accordingly, the trial judge properly granted summary

judgment on Landlord’s breach-of-contract claim to the extent Landlord relies on third-party-

beneficiary status under the policy.

           4.         Standing under the “Evidence of Property Insurance”

           Landlord argues that it also had standing to sue First Specialty Ibr breach of contract based

on a one-page certificate entitled “Evidence of Property Insurance” (EPI) dated September 11.2006

(two days after the fire).
                    5 According to Landlord, this document gave rise to an independent contract

and “functions as a contract of insurance” between it and First Specialty.

           The EPI certificate states at the top. “This is evidence that insurance as identified below has

been issued, is in ibrce. and conveys all the rights and privileges afforded under the policy.” The

certificate has several blanks that have been filled in with typewritten information. For example, the

policy involved in this case is identified by policy number and policy period, and the policy period

includes the date of the fire involved in this case. “Ostrovits [sicj & Gwinn, LLC” is listed in a box

labeled “Additional Interest.” There are three small boxes labeled “mortgagee,” “loss payee,” and

“additional insured” respectively; only the loss-payee box is marked with an “X.” A box labeled

“REMARKS (Including Special Conditions)” contains the following typewritten language:



      [he document hears the legend ACOR[) 27 (3193 f at the bottom landlord also hied two otherEl’l cert,tieates but thes recite policvperiods
that do not encompass the date of the flrc involved in this case. Thus, those documents are not relevant to our breach—of-contract analysis




                                                                   —-1 8—
       ‘$lO..OOO.OOO I.oss Limit per Occurrence / Certificate Holder is Loss Payee with
       respect to their interest as Landlord/Owner in the above locations /30 day notice of
       cancellation except 10 days for nonpayment of premium

Another box labeled CANCELLATlON” contains the sentence.                         policy is   subject to the

premiums. forms. and rules in effect for each policy period.”

       We reject Landlord’s position and hold that the EPI certificate did not create or amount to

a contract of insurance directly between Landlord and First Specialty. The first sentence of the

document recites that the document is “evidence” that the insurance described below exists; there

is no indication in the document that it constitutes an insurance contract in and of itself. Moreover,

that sentence states only that the insurance policy bbjjffifl below.      . .   conveys all the rights and

privileges afforded under the policy”; it does not indicate that the EPI certificate is intended to

change those rights and privileges. The description of the insurance found in the remainder of the

document also does not improve Landlord’s status beyond its status as provided in the policy itself.

The document contains a recitation that Landlord is “Loss Payee with respect to their interest as

Landlord/Owner in the above locations.” and the box labeled “loss payee” is marked. These

statements accurately state Landlord’s status under the policy, but we have already concluded that

a loss payee under the policy does not enjoy the right to sue First Specialty on the policy directly.

We conclude the EN certificate did not constitute a contract between Landlord and First Specialty

or change Landlord’s status under the policy. See TIG Ins. Ca v. Sedgwick James of Wash., 276

F.3d 754, 761 (5th Cir. 2002) (stating that policy terms control   over   the terms of a certificate of

insurance when the certificate expressly incorporates the policy’s terms).

       Landlord’s authorities do not support     its   position, it relies on Asousa Pannersh4p v.

ManzqfacturersAlliance Insurance Co (InreAsousaPannership),No. 03-1005.2005 WL2857983

(Bankr. E.D. Pa Sept. 232005), qff’d, No. 05-57192006 WL 2828890 (E.D. Pa Sept. 29.2006),



                                               -19-
br the proposition that the LPI form involved in this case can be used to make a landlord an

additional insured or loss pa\ee under an insurance policy. In that case. an insurance agent issued

an EP1 cerli licate that erroneously listed the recipient as an additional insured on the poi icy, and the

court concluded that this obliged the insurance carrier to treat the recipient an additional insured.

2005 WL 2857983. at     *   I 6. In the instant case. by contrast, the EPI certificate did not indicate that
                             .




Landlord was anything hut a loss payee, which is also what the policy itsell’provided. Landlord cites

two other cases for the proposition that a loss payee may rely on representations made in an EPI

certificate. See Corndisco Ventures, Inc. v, Fed. Ins. Co. (in re Comdisco Ventures,        mc,), No. 04 C
2007, 2005 WL 1377856 (N.D. III. June 8, 2005 )       Brown   & Brown of Tex., Inc. v. Omni Metals, Inc.,

317 S.W.3d 361 (Tex.App.—i-iouston list Dist.I 2010. pet. denied). The cases stand                  for   the

proposition that an EPI certificate can support a claim for misrepresentation. Coindisco, inc.. 2005

WE 1377856. at *8. Brown & Brown, 317 S.W.3d at 383—96, but they say nothing about whether

the EPI certificate involved in this case can support a breach-of-contract claim by Landlord directly

against First Specialty.

        We conclude that the EPI certificate was not a contract between Landlord and First Specialty

and did not make Landlord a party to the insurance policy.

        5.      Conclusion

        First Specialty demonstrated as a matter of law that Landlord was not in privity with First

Specialty on Tenant’s insurance policy, that Landlord was not a third-party beneficiary ofthe policy,

and that the EPI certificate did not confer on Landlord any additional contractual rights against First

Specialty. Accordingly. the trial judge correctly granted summary judgment in favor of First

Specialty on Landlord’s breach-of-contract claim. We need not address the parties’ other arguments

over whether Tenant had a financial interest in the damaged buildings.




                                                    2 0—
B.      I)eclaratory judgment

        In its second issue on appeal, Landlord asserts that the trial judge erred by denying its First

Amended Motion for Partial Summary Judgment for Declaratory Relief We conclude the issue is

moot because Landlord later nonsuited its claim for declaratory judgment. Thus, there is no live

claim on which we could grant judgment even if we were to agree with Landlord’s position, and

there is no live controversy for us to consider, See MeNeill v. Hubert, 23 S.W.2d 33 1, 332—33 (Tex.

1930) (holding that appeal of interlocutory order was mooted when plaintiffnonsuited the only claim

in the case).

C.      Other claims

        In issues six through ten, Landlord contends that the trial judge erred by granting summary

judgment against Landlord on its claims for 1)TPA violations, insurance-code violations,

misrepresentation, negligence, and promissory estoppel. Landlord presents a single argument in

support of all five of these issues, without clearly delineating which part of its argument relates to

each claim. We address the claims in turn.

        1.      DTPA and insurance-code claims

        Landlord aFleged that First Specialty violated the DTPA by violating sections 17.46(5) and

17.46(12) of the business and commerce code and by violating sections 54 1.060 and 541.061 of the

insurance code. See TEX. Bus. & C0M. CODE ANN.       § 17.50(a) (West 2011). Landlord also asserted
claims directly under section 541.060 and 541.061 of the insurance code. See TEx. INS. CODE ANN.

§ 541.060—.061, 541.15 1 (West 2009). First Specialty raised the following summary-judgment
grounds against these claims: (1) First Specialty established that it was not liable to Landlord for

breach of contract, so it could not be liable to Landlord under the DTPA, (2) First Specialty

established that the parties’ dispute was nothing more than a non-actionable bona fide coverage




                                                —21—
dispute. (3) there is no claim under rexas law for bad faith in underwriting, (4) Landlord could

produce no evidence that First Specialty violated the relevant sections ofthe DTPA or the insurance

code, (5) Landlord could produce no evidence of detrimental reliance as required by sections

1 7.46(bX5) and 1 7.46(bXl 2) ofthe DTPA. and (6) Landlord could produce no evidence ofdamages

independent from its breach-of-contract damages.

        First Specialty’s no-evidence grounds are dispositive. In response to those arguments.

Landlord relies on the EPL certificates it received and on an affidavit by one of Landlord’s owners,

Ed Ostrovitz. Ostrovitz testified that he requested the EPI certificates to confirm for Landlord’s

creditor that the property. including Landlord’s interest therein, was insured by Tenant. He also

testified that Landlord did not seek its own property insurance because each year it relied on the

representations contained in the certificates. As for the EPI certificates themselves, it appears to us

that the certificate relating to the policy in effect at the time ofthe fire is irrelevant because it is dated

two days after the fire and so could not have influenced Landlord’s pre-loss decisions about insuring

its own property. The two earliercertificates concerned policies in effect from March2003 to March

2004 and March 2004 to March 2005, respectively. We will assume arguendo that these earlier

certificates could have influenced Landlord’s insurance decisions with respect to the property

relevant to the time of the fire.

        With respect to section 1 7.46(b)(5) ofthe DTPA. we examine whether Landlord adduced any

evidence that First Specialty represented that any services had “sponsorship, approval,

characteristics, ingredients, uses, benefits, or quantities” that they did not have, or that a person had

“a sponsorship, approval, status, affiliation, or connection” that he, she, or it did not have. See Thx.

Bus. & COM. CODE ANN.           §   17.45(3) Cperson” includes business entities and groups); Id.

§ I 7.46(bX5).   Landlord argues that its evidence shows that First Specialty falsely assured Landlord



                                                   —22—
that its interest in its huildinrs was covered by lenani’s policies. Vvc disaree. Both of the pre—tire

EPI certi ticates show that Landlord was a loss payee and not an additional insured. Both cerli ticates

state. ‘Certificate Holder is Loss Payee with respect to their interest as Landlord / Owner of the

locations listed above. $10,000,000 Loss Limit / $1 00.000 Deductible.’ Landlord adduced no

evidence that the policies evidenced 1w these certificates did not make Landlord a loss payee.

Landlord adduced no evidence that First Specialty represented its policies to have characteristics or

benefits that they did not, or that Landlord enjoyed a status that it did not. Landlord has not shown

error with respect to the disposition of this DTPA theory.

        \Vith respect to section 1 7.46(h)( 1 2) of the DTPA. we consider whether Landlord adduced

any evidence that First Specialty represented that an agreement conferred or involved rights.

remedies, or obligations that it did not have or involve. See id.   § I 7.46(b)( 12). For the same reasons
stated above, we conclude Landlord adduced no evidence that First Specialty made any such false

representations.

        Landlord asserted claims against First Specialty both under the DTPA and directly under the

insurance code lbr violating the insurance code in the following respects:

        1.      by making an untrue statement of material fact, see TEx. INS. CODE ANN.
                § 541.061(1);
       2.       by failing state a material fact that is necessary to make other statements
                made not misleading, see Id. § 541.061(2):

       3.      by making a statement in such a manner as to mislead a reasonably prudent
               person to a false conclusion of material lhct. see Id. § 541.061(3);

       4.      by misrepresenting material facts or policy provisions relating to the coverage
               at issue in connection with settlement, see id. § 541 .060(a)( 1);

       5.      by failing to attempt in good faith to effectuate a prompt, fair, and equitable
               settlement of a claim as to which liability has become reasonably clear, see
               Id. § 541.060(a)(2)(A):
        6.      by failing to provide promptly a reasonable explanation of the bases for
                denial of a claim, see Id, § 541 .060(a)(3):

        7.      by ihiling to affirm or deny coverage or submit a reservation of rights letter
                within a reasonable time, see Id. § 541.060(4);

        g.      by refusing to pay a claim without a reasonable investigation, see Id.
                § 541 .060(a)f7);
        9.      by compelling Landlord to file suit to recover the amount due under a policy:

        10.     by making a material misstatement of the law.

The EPI certificates and Ostrovitz affidavit have nothing to do with most of these theories, and we

conclude that theories one and four through ten are supported by no evidence. Theories two and

three present a closer question, requiring us to consider whether the EPI certificates were misleading

rather than simply false. We conclude that they were not misleading. Although the certificates

plainly stated that Landlord was a loss payee and not an additional insured, they did not explain what

rights Landlord enjoyed as a loss payee. Thus, the certificates were somewhat unclear. This lack

of clarity, however, does not rise to the level of being misleading, because the certificates pointed

beyond themselves to the underlying insurance policies for the specific terms of those policies. The

certificates stated that the insurance identified therein “conveys all the rights and privileges afforded

under the policy.” The certificates also provided that “the policy is subject to the premiums, forms,

and rules in effect for each policy period.” Because the EPI certificates plainly referred the reader

to the identified insurance policies for the actual rights, privileges, and terms of those policies, we

conclude that they were not misleading. Our conclusion is supported by a recent decision of the

Fifth Circuit in which it held that a policy description was not misleading because it plainly stated

that the terms of the actual insurance policy governed whenever the description was silent or

conflicted with the policy. See Tolhert ex rd. Tolbert v. Nat ‘1 Union Fire Ins. Co. ofPittsburgh, Pa.,
657 F.3d 262. 267—70 0th (jr. 2011) (applying Texas law).

        Landlord relies heavily on the case of Brou’n & Brmvn o/ 1 evu. Inc.      i’   (hnni Ucla/v. Inc..

3 1 7 S.W.Sd 36 1 ( lex App.—- I louston i st Dist. I 201 0. pet. denied). 1 hat case is distinguishable.

Omni Metals stored over $2 million worth of steel in a warehouse operated b a company called Port

Metals. Sec /d. at 370. Port Metals insured the premises through an insurance agency, and an agent

incorrectly told Port Metals that the insurance policy covered stored materials like Omni Metals’.

Jd. at 371. The agent later realized his mistake hut did not correct it. Id. art 371—72. Omni Metals

requested and received certificates of insurance from the agency three times. Id. at 372. One

certificate recited that the policy’s coverage “INCLUDES PROPERTY OF OTI-IERS IN CUSTODY

OF INSURED.” while the other two recited that the insurance covered “All Risk.” Id. The

certificates also contained a disclaimer that they were informational only and did not amend the

coverage afforded by the policies described therein. Id. There was a fire that destroyed $2.6 million

worth of Omni Metals’ steel, and the insurer denied coverage. Id. at 370. At trial on Omni Metals’

claims for negligent misrepresentation and L)TPA violations, the insurance agent admitted that the

first certificate of insurance was “untrue,” and the insurance agency’s expert testified that the

certificates were “misleading.” Id. at 372. The jury found in favor of Omni Metals, and the court

of appeals held that the evidence was sufficient to support the misrepresentation and DTPA findings.

Despite the disclaimers in the certificates of insurance, the court of appeals held that the evidence

ofaffirmative misrepresentations by the insurance agent was sufficient to support the jury’s findings.

Id. at 384—87. In the instant case. by contrast. Landlord has not adduced any evidence of false

representations or misleading statements by First Specialty. At most. Landlord adduced evidence

that First Specialty furnished FPI certificates that were unclear as to what rights Landlord enjoyed

under the policies but were clear that Landlord was a loss payee and not an additional insured. This
vas not enough   to delat F1rst Specialtvs no—evidence motion br summary judgment.


        The trial judge correcti granted suinmar\ judgment as to Landlord’s [) FPA and insurance—

code claims.

        2.      NeIigent misrepresentation

        Landlord alleged that First Specialty committed negligent misrepresentation when its agent.

Keith D. Peterson &   Company,    issued the EPI certificate to Landlord. The elements of’ negligent

misrepresentation are (1) the defendant made a representation in the course of its business or in a

transaction in which it had an interest. (2) the defendant supplied false intbrrnation for the guidance

of others in their business, (3) the defindani did not exercise reasonable care or competence in

obtaining or communicating the infarmation, and (4) the plaintiff suffered pecuniary loss by

justifiably relying on the representation. Cunningham v, Tarski, 365 S.W.3d 179, 186-87 (Tex.

App.—Dallas 2012. pet. denied). First Specialty moved for summary judgment on this claim on

both traditional and no—evidence grounds. First Specialty argued that the evidence conclusively

refuted the first two elements of negligent misrepresentation. and additionally that Landlord could

not produce any evidence that First Specialty made any representations or that First Specialty

provided any false information.

        We uphold the summary judgment on both no-evidence grounds. As to the first ground,

Landlord assumes without demonstrating that the representations in the EPI certificates are

imputable to First Specialty. Each certificate. however. recites that the ‘producer” of the certificate

is Keith D. Peterson & Co., Inc., not First Specialty. Landlord asserts in its brief that First Specialty

issued the EPI certificates “by and through K.D. Peterson & Company, Inc.,” but Landlord cites no

evidence that would raise a fact issue as to the existence of an agency relationship between Keith D.

Peterson & Co., Inc. and First Specialty. Thus, the EP1 certificates, standing alone, are no evidence
ola statement by First Specialty, and no evidence ofthe trst element ot negligent misrepresentation.

        Moreover. we conclude that Landlord has adduced no evidence that the EPI ccrtilicates

conveyed ‘false information.” The EPI certiflcates that related to the policy periods from 2003 to

2005 recite that Landlord had an “additional interest” and was a loss payee on those two policies,

hut they also indicate that Landlord was   not   an additional insured. ‘l’hev also recite that there was

a $10,000,000 loss limit on those policies.          Landlord has adduced      no   evidence that those

representations were false. I .andlord argues that because the certificates did not explain the limited

rights of loss payees, these statements were partial disclosures that created a false impression that

it and its property were covered by the policies. But the certitcates make clear that l.andlord was

not an additional insured, and that the rights and privileges conveyed by each policy were those

“afforded under the policy.” Unlike Browii & Brown, this case does not involve any aftirnmtive

misrepresentations by First Specialty that Landlord enjoyed coverage that the policies did not

actually confer. See 317 S.W.3d at 384—87. Thus. Landlord adduced no evidence that First

Specialty conveyed false infbrmation to Landlord.

        The trial judge correctly granted summary judgment as to Landlord’s negligent-

misrepresentation claim.

       3.       Promissory estoppel

        Landlord alleged that First Specialty is liable for promissory estoppel based on the EPI

certiflcates. “The requisites of promissory’ estoppel are: (1) a promise. (2) foreseeability of reliance

thereon by the promisor, and (3) substantial reliance by the prornisee to his detriment.” English v.

Fischer, 660 S.W.2d 521, 524 (Tex. 1983). First Specialty attacked the first and third elements of

the claim on both traditional and no-evidence grounds.

        In its appellants briet Landlord devotes only one short paragraph to its promissory-estoppel




                                                  —27—
claim. Landlord concludes. without citation to the record, that it “)ustiliahlv relied on the declaration

of $10 million in Property coverage to       its detriment”   We will not “search a voluminous record

without suflicient guidance from an appellant to     determine   ‘   hether an assertion of reversible error

is valid.” I3arneti v. Coppell N. Tex, Court, Lid., 123 SW.3d 804. 817 (Tex. AppJ)allas 2003,

pet. denied). Landlord’s attack on the summary judgment with respect to its prornissory-estoppel

claim is waived.

         Even if we were to address Landlord’s argument, we would conclude it is without merit,

based on First Specialty’s no-evidence challenge to the element of detrimental and substantial

reliance. Two of the three EPI certificates concern insurance policies that had expired long before

the September 9, 2006 fire took place, so they are no evidence that Landlord incurred substantial and

detrimental reliance on them with respect to the fire. The EPI certificate evidencing the insurance

policy in effect at the time of the fire is dated two days after the tire. so it is logically impossible for

Landlord to have incurred detrimental reliance on that post-loss certificate with respect to the fire.

The Ostrovitz affidavit mentioned above contains the following testimony:

        As I [sic J result of receiving the evidence of property insurance each year and the
        representations contained therein, neither myself nor Ostrovitz & Gwinn sought to
        obtain separate or additional property insurance on the buildings, rather I relied on
        the representations contained in the evidence of property insurance that I received
        each year that the buildings leased by [FCC) were continuously insured for $lOrn and
        that Ostrovitz & Gwinn’s interest as landlord and owner was also insured for $lOm.

This testimony is conclusory and does not demonstrate that Landlord received and relied on any EPI

certificate that evidenced insurance coverage in effect at the time of the fire and was received by

Landlord before the fire occurred. Thus. the Ostrovitz affidavit, even in conjunction with the EPI

certificates, is   no evidence of substantial and detrimental reliance by Landlord.

        The trial judge correctly granted summary judgment as to Landlord’s promissory-estoppel




                                                  2 8—
claim.

         4.     Negligence

         landlord asserted a claim against First Spccialt and Keith I). Peterson & Company lr

general negligence. Landlord alleged that Tenant requested them to insure Landlords interest “as

owner and landlord.” and that they negligently failed to do as requested. The elements of negligence

are a duty, a breach of that duty. and damages proximately caused by the breach. Kruger (o. v.

Hwood. 1 97 S.W.3d 793. 794 (Tex. 2006) (per curiarn). In its summary-judgment motion. First

Specially asserted that the evidence proved that it owed no duty to Landlord and that, to the extent

it did owe a duty to Landlord, it did   not   breach that duty. The gist of’ First Specialty’s argument was

that Tenant’s agent asked for Landlord to be added to Tenant’s insurance policy as a loss payee, and

that is what Keith I). Peterson & Company did. First Specialty also raised a no-evidence attack on

the element of duty.

         The existence of a legal duty is a question of law for the court to decide based on the

particular facts surrounding the occurrence in question. ;l!cou, Inc. v. Behringer. 235 S.W.3cl 456.

459—60 (i’ex. App.—Dallas 2007. pet. denied). We consider several related factors, including the

risk, foreseeability, and likelihood ofinjury. weighed against the social utility of the actor’s conduct,

the magnitude of the burden of guarding against the          injury,   and the consequences of placing the

burden on the dclendant. Id. at 460. First Specialty points out that the supreme court has already

adopted a clear no-duty rule in this area: an insurance agent owes his customer no duty to extend the

customer’s insurance coverage merely because the agent knows that the customer has a need for

additional coverage. McCall v. Marshall. 398 S.W.2d 106, 109 (Tex. 1965). This rule applies

especially when there is no evidence of prior dealings in which the agent has taken care of his

customer’s needs without consulting him. Id. The supreme court has also held that an insurance
agent who undertakes to procure insurance for a client owes that client a duty ofreasonable diligence

in attempting to place the requested insurance and to inlbrm the client promptly if unable to do so.

May v. United Sen’s. Ass n ofAm., 844 S.W.2d 666,669 (Tex. 1992).

        We review the evidence in the light most favorable to Landlord. The evidence showed that

Tenant’s retail insurance agent was a company called Insurance Office of America (bA). David

Keith Thompson ofbOA serviced Tenant’s account on a day-to-day basis. IfTenant wanted a policy

or wanted to change a policy. bOA would go througb Keith D. Peterson to accomplish that result.

Thompson testified in deposition that he sent a fax to Erin Hanson at Keith D. Peterson & Company.

Inc. stating that Landlord “needs evidence of property coverage including their [sic] interest as

owner” of two locations, one of which was the property involved in this case. The fax was dated

November II. 2003. Thompson testified that by his fax. he was attempting to convey a request that

Landlord be added to Tenant’s insurance policy as a loss payee. He assumed that this is what would

happen. The EPI certificates indicate that Landlord was in fact added to the insurance policies as

a loss payee. and the actual policy involved in this case included Landlord as a loss payee.

        The summary-judgment evidence thus shows that Tenant’s agent made a single request for

insurance coverage—that Landlord be added to Tenant’s property insurance as loss payee with

respect to two locations. We hold, consistent with McCall v. Marshal4 that First Specialty owed

Landlord no legal duty to extend insurance coverage for Landlord’s benefit beyond the coverage

requested by Tenant. See Leigh v. Kuenstier, No. 14-08-00245-CV. 2009 WL 3126538. at 3 (Tex.

App.—Houston [14th Dist] Oct 1, 2009, no pet.) (mem. op.) (holding that insurance agent who

procured insurance as requested by his client “had no duty to do more”). Alternatively, to the extent

First Specialty did owe a duty to Landlord, we hold that First Specialty conclusively established that

it satisfied that duty by providing the coverage requested and expected by Tenant Thus, the trial



                                                —30--
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                                         JUDGMENT
OSTROVfl7. & G\VINN. LLC. Appellant                    Appeal from the 1 91st .Judicial I)istrict
                                                       Court of Dallas Counts. Texas, (Tr.Ct.No.
No. 05-l1-OO]43-CV             V.                      O6.O9925-J).
                                                       Opinion delivered by Justice FitzGerald,
FIRST SPECIALTY INSURANCE                              Justices O’Neill and Lang-Miers
COMPANY. Appel lee                                     participating.


        In accordance with this Court’s opinion of’ this date, the judgment of the trial court is
AFFIRMED. It is ORDERED that appellee First Specialty Insurance Company recover its
costs of this appeal from appellant Ostrovitz & Gwinn. LLC.


Judgment entered I)ccember 13. 2012.




                                                       KFRRY P. F El/GERAlD         —




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