2018 WL 3322746
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Supreme Court of Utah.
ESPENSCHIED TRANSPORT CORP., Appellant,
v.
FLEETWOOD SERVICES, INC. and Wilshire Insurance Company, Appellees.
No. 20160873
|
Filed July 5, 2018
Synopsis
Background: Insured brought action against agent an insurer for failure to procure insurance for vehicle involved in fatal accident. The Third District Court, Salt Lake, No. 070913289 Paige Petersen, J., granted summary judgment to agent and insurer. Insured appealed.

Holdings: The Supreme Court, Himonas, J., held that:

[1] insured’s settlement agreement in wrongful death suit and corresponding consent judgment did not constitute actual damages, and

[2] insurer had no vicarious liability for insurance agent’s alleged failure to procure insurance.

Affirmed.

West Headnotes (11)

[1]
Judgment

On summary judgment, a court views the facts and all reasonable inferences in the light most favorable to the nonmoving party.
Cases that cite this headnote

[2]
Appeal and Error

An appellate court reviews summary judgment decision de novo. Utah R. Civ. P. 56(a).
Cases that cite this headnote

[3]
Insurance

An insurance agent may be obligated to procure insurance by contract or by duty.
Cases that cite this headnote

[4]
Insurance

An insurance agent who fails to procure insurance may be liable for breach of contract or negligence.
Cases that cite this headnote

[5]
Fraud

Damages are an essential element of a claim for breach of fiduciary duty.
Cases that cite this headnote

[6]
Appeal and Error

Insured failed to adequately brief for appeal its argument that collateral source rule did not bar insured from obtaining damages from insurance agent, where insured never mentioned rule in its brief and may have been attempting to invoke rule through one citation.
Cases that cite this headnote

[7]
Insurance

Insured’s settlement agreement in wrongful death suit and corresponding consent judgment did not constitute actual damages, and thus insured could not maintain action against insurance agent based on agent’s failure to procure insurance for vehicle involved in fatal accident, where at time of settlement agreement, insured was a defunct corporation with no assets except for potential claims against third parties, insured had never paid any money in wrongful death suit, and insured conceded that it could not hypothesize a scenario in which it would ever make a payment in wrongful death suit.
Cases that cite this headnote

[8]
Contracts

A contract breacher is required to compensate the nonbreaching party for actual injury sustained.
Cases that cite this headnote

[9]
Insurance

Insurer had no vicarious liability for insurance agent’s alleged failure to procure insurance for insured’s vehicle, where agent itself had been found not liable.
Cases that cite this headnote

[10]
Insurance

An insurance company may be vicariously liable for the tortious conduct of its agent, or it may directly incur tort liability by imputation of the agent’s knowledge.
Cases that cite this headnote

[11]
Principal and Agent

A principal’s vicarious liability for one of its agent’s acts and a principal’s direct liability for its own acts, which were committed with the agent’s imputed knowledge, are separate legal questions.
Cases that cite this headnote

Third District, Salt Lake, The Honorable Paige Petersen, No. 070913289
Attorneys and Law Firms
L. Rich Humpherys, Karra J. Porter, Salt Lake City, for appellant
Ben T. Welch, Amber M. Mettler, Michael A. Gehret, Salt Lake City, for appellee Fleetwood Services, Inc.
Nelson Abbot, Provo, Robert D. Moseley, Jr., Greenville, South Carolina, for appellee Wilshire Insurance Company
Justice Himonas authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Pearce, and Associate Presiding Judge Christiansen joined.
Having recused herself, Justice Petersen does not participate herein; Court of Appeals Associate Presiding Judge Michele M. Christiansen sat.

On Direct Appeal
Justice Himonas, opinion of the Court:

INTRODUCTION
*1 ¶1 Espenschied Transport Corp. has used Fleetwood Services, Inc. to procure insurance since 1982. In 2003, Fleetwood obtained an insurance policy from Wilshire Insurance Company meant to cover all of Espenschied’s vehicles and trailers; the list of insured vehicles was based on a list of equipment provided by Espenschied. However, Fleetwood gave Wilshire an incorrect list not containing all the equipment Espenschied had listed, resulting in Espenschied’s believing that certain equipment was covered by the insurance policy when, in reality, it was not. One of the trailers that Espenschied believed to be covered, but that was not on the policy schedule, was involved in a deadly accident, resulting in litigation. Wilshire refused to defend Espenschied in the litigation, causing Espenschied to incur attorney fees and a consent judgment; Espenschied sued Fleetwood and Wilshire under various theories of liability.

¶2 The district court concluded that Espenschied had suffered no damages and granted summary judgment to Fleetwood. Additionally, the district court granted summary judgment to Wilshire, finding that the trailer was not on Wilshire’s insurance policy and Fleetwood was not Wilshire’s agent. Additionally, the district court ruled that Wilshire could have no vicarious liability because Fleetwood had no liability. We affirm.

BACKGROUND
[1]¶3 Espenschied was an interstate trucking company established in 1982.1 For a majority of its existence, Espenschied used Fleetwood to procure insurance from a variety of insurers. In December 2003, Fleetwood procured a commercial lines insurance policy from Wilshire to cover Espenschied’s vehicles. The policy was a scheduled vehicle policy, meaning that a vehicle must be listed on the policy to be covered. Espenschied intended to have all of its vehicles covered by the policy. Wilshire listed the insured vehicles on the policy based on a list provided by Fleetwood.

¶4 On January 1, 2005, Espenschied sold or leased almost all of its assets to DATS Trucking, Inc. The leased assets consisted of ninety-three trailers. As part of the lease agreement, DATS agreed to indemnify Espenschied from and against all claims, liability, or expenses (including attorney fees) relating to the trailers. Espenschied did not cancel its insurance on the trailers.

¶5 On January 30, 2005, one of the trailers Espenschied leased to DATS killed Kimball Herrod in an accident. Mr. Herrod’s family brought a wrongful death action against Espenschied and DATS. Espenschied submitted a claim to Wilshire for coverage. Although the trailer was on the list of equipment that needed to be insured that Espenschied had provided to Fleetwood, the trailer was not listed on the schedule for the policy Wilshire issued. After determining that the trailer involved in the accident was not covered by the policy, Wilshire denied the claim. Espenschied then made a claim for coverage to Fleetwood for failing to procure insurance, which Fleetwood also denied.

*2 ¶6 Espenschied defended itself in the wrongful death suit. Ultimately, Espenschied entered into a settlement agreement with the Herrods for $1.1 million; that settlement was reduced to a judgment. By the time Espenschied entered into the settlement agreement, it was no longer doing business, had formally dissolved, and had no assets other than potential claims against third parties. As part of the settlement agreement, Espenschied assigned the Herrods any claim it had against DATS (except for indemnification for attorney fees) and agreed to pursue claims against Fleetwood and Wilshire. Espenschied was not required to pay any attorney fees up front for its lawsuit against Fleetwood and Wilshire. Instead, any recovery from claims against Fleetwood and Wilshire would first be used to pay the attorney fees and costs, then the settlement amount, and any remainder would go to Espenschied. In return, the Herrods agreed that they would not pursue claims against the principles of Espenschied and would withhold collection against Espenschied’s assets until the claims against Fleetwood and Wilshire were fully resolved. Additionally, Espenschied agreed to “fully pursue and prosecute all claims it may have” against Fleetwood or Wilshire and to hire the Herrods’ attorney from the wrongful death suit to pursue those claims.

¶7 In defending the wrongful death suit, Espenschied incurred approximately $93,500 in attorney fees and costs. Based on the indemnity agreement, DATS paid Espenschied $90,000 for the attorney fees. Espenschied has not paid any money toward the settlement agreement. Additionally, at oral argument in this matter, Espenschied’s attorney conceded that the Herrods will never be able to collect against Espenschied unless Espenschied recovers in this case because Espenschied is a defunct corporation with no assets.

¶8 Fleetwood and Wilshire moved for summary judgment. The district court concluded that Fleetwood was, “at most, … a contract breacher [and] …. would only be obligated to pay what [Espenschied] actually had to pay. … [which was] zero dollars.” Because the district court determined that Espenschied had suffered no actual damages, it granted Fleetwood’s motion for summary judgment.

¶9 The district court also granted Wilshire’s motion for summary judgment. Relevant to this appeal, the district court concluded that Fleetwood was not acting as Wilshire’s agent, and therefore Wilshire would not be liable for Fleetwood failing to procure insurance for the trailer. Alternatively, the district court concluded that because Fleetwood had no liability, Wilshire could have no vicarious liability for Fleetwood.

¶10 Espenschied appealed these decisions. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).

STANDARD OF REVIEW
[2]¶11 A party is entitled to “summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” UTAH R. CIV. P. 56(a). “We review the summary judgment decision de novo.” Salo v. Tyler, 2018 UT 7, ¶ 19, 417 P.3d 581 (citation omitted).

ANALYSIS
¶12 Fleetwood and Wilshire separately moved the district court for summary judgment, and the district court granted both motions. The district court granted Fleetwood’s motion for summary judgment on the grounds that Espenschied was unable to raise a dispute of material fact regarding damages. We agree with the district court and affirm.

¶13 The district court granted summary judgment to Wilshire on the four claims against Wilshire and on the theory of vicarious liability. On appeal, Espenschied only challenges the vicarious liability determination, which was based on two alternative grounds: 1) there was no material dispute of fact that Fleetwood was Wilshire’s agent and 2) Fleetwood had no liability, and therefore Wilshire could have no vicarious liability. We conclude that Espenschied failed to adequately attack the district court’s decision on the vicarious liability ground and therefore affirm the district court.

I. SUMMARY JUDGMENT FOR FLEETWOOD IS APPROPRIATE BECAUSE ESPENSCHIED DID NOT ASSERT ANY DISPUTED MATERIAL FACTS TO SUPPORT COMPENSABLE HARM
[3] [4]¶14 Espenschied brought claims against Fleetwood alleging both breach of contract and “breach of fiduciary and other tort duties.” These claims stem from Fleetwood’s failure to procure insurance on the trailer involved in the accident. An insurance agent may be obligated to procure insurance by contract or by duty. Harris v. Albrecht, 2004 UT 13, ¶ 30, 86 P.3d 728. An insurance agent who fails to procure insurance may be liable for breach of contract or negligence. Id.

*3 [5]¶15 In order to succeed on its claims, Espenschied must prove that it suffered damages. See Am. W. Bank Members, L.C. v. State, 2014 UT 49, ¶ 15, 342 P.3d 224 (“The elements of a prima facie case for breach of contract are (1) a contract, (2) performance by the party seeking recovery, (3) breach of the contract by the other party, and (4) damages.” (emphasis added) (citation omitted) ); B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 5 n.2, 275 P.3d 228 (“To assert a successful negligence claim, a plaintiff must establish that (1) defendant owed plaintiff a duty of care, (2) defendant breached that duty, and that (3) the breach was the proximate cause of (4) plaintiff’s injuries or damages.” (emphasis added) (citation omitted) ).2 The district court granted summary judgment on all of Espenschied’s claims against Fleetwood because Espenschied could not “establish that it has suffered damages.”

¶16 Espenschied makes two main arguments that it has suffered damages: 1) it incurred attorney fees and costs from the wrongful death suit and 2) the settlement agreement and judgment from the wrongful death suit caused compensable harm.3 Although we agree with Espenschied’s first point, and conclude that Espenschied had raised a dispute of material fact in that it had suffered $3,400 in attorney fees and costs, we disagree with Espenschied’s second contention. Because Espenschied stated at oral arguments that it would be uninterested in pursuing this case for $3,400, we affirm the district court.

A. Espenschied’s Attorney Fees and Costs for the Underlying Action Constitute Actual Damages to the Extent that Espenschied Did Not Receive Indemnification from DATS
¶17 When Fleetwood and Wilshire refused to defend Espenschied in the wrongful death suit, Espenschied had to hire an attorney at its own expense. Espenschied ultimately incurred around $93,500 in attorney fees and costs for the wrongful death suit. Based on the indemnification agreement Espenschied had with DATS, DATS indemnified Espenschied for $90,000 in attorney fees and costs.

[6]¶18 Espenschied cites Wilson v. IHC Hospitals, Inc., 2012 UT 43, 289 P.3d 369, to support its proposition that the indemnification from DATS “does not reduce or eliminate Fleetwood’s liability for costs and attorney fees that Espenschied incurred in defending the [wrongful death suit].” Although Espenschied never mentions the collateral source rule, it seems that Espenschied may be attempting to invoke this rule through this one citation in its brief.

¶19 As Fleetwood points out, any argument about the collateral source rule is indeed inadequately briefed. “Appellants have the burden to clearly set forth the issues … and to provide reasoned argument and [valid] legal authority.” See ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 2013 UT 24, ¶ 16, 309 P.3d 201 (citation omitted). “[I]t is not the size of an argument that matters. Some parties adequately brief an argument in a well-crafted paragraph. Others manage to inadequately brief an argument in fifty pages.” 2010-1 RADC/CADC Venture, LLC v. Dos Lagos, LLC, 2017 UT 29, ¶ 30, 408 P.3d 313. Yet, “[a]s we have repeatedly noted, we are not ‘a depository in which [a party] may dump the burden of argument and research.’ ” Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 46, 70 P.3d 904 (second alteration in original) (citation omitted). “Arguments, like gardens, take work, and a party who hopes to prevail on appeal should be willing to dig in the dirt and not expect that opposing counsel or the court will do that work for them.” A.S. v. R.S., 2017 UT 77, ¶ 16, 416 P.3d 465.

*4 ¶20 Because we do not consider the collateral source rule, Espenschied’s damages of the attorney fees and costs from the wrongful death suit must be offset by the $90,000 indemnification from DATS. This would leave Espenschied with approximately $3,400 in damages from the attorney fees. Ordinarily, this would cause us to reverse summary judgment as Espenschied has raised a dispute of material fact to show that it has suffered compensable harm. However, at oral arguments in this matter, Espenschied’s counsel stated that Espenschied would be uninterested in pursuing the case against Fleetwood for $3,400. Because, as we discuss below, Espenschied has not raised another dispute of material fact that would show any other compensable harm, we affirm the district court’s grant of summary judgment to Fleetwood.

B. The Settlement Agreement and Consent Judgment Do Not Constitute Actual Damages in This Case
[7]¶21 Espenschied contends that the settlement agreement with the Herrods and the corresponding consent judgment constitute actual harm in this case even though Espenschied has no assets and has never had to pay any money to the Herrods. In support of its position, Espenschied makes two arguments. First, Espenschied argues that the policy considerations we announced in Ammerman v. Farmers Insurance Exchange, 22 Utah 2d 187, 450 P.2d 460 (Utah 1969) (Ammerman II), should be extended to insurance agents and brokers. Second, Espenschied claims that it suffered damages because it lost part of its claims against Fleetwood and Wilshire as part of the settlement agreement. We disagree and affirm the district court’s grant of summary judgment.

¶22 By the time Espenschied entered into the settlement agreement with the Herrods, Espenschied was a defunct corporation with no assets except for potential claims against third parties. Espenschied has never paid any money to the Herrods. And, at oral arguments, Espenschied’s counsel conceded that he could not hypothesize a scenario where the Herrods would ever be able to collect against Espenschied. However, Espenschied argues that this should not matter because the policy considerations in Ammerman II should extend to this case.

¶23 In Ammerman II, we held that collection from an insured by a “judgment creditor was not a prerequisite to a cause of action against the insurer for the excess judgment.” 450 P.2d at 462. We found three sound reasons to justify the adoption of this view: 1) it “prevents an insurer from benefiting from the impecuniousness of an insured who has a meritorious claim;” 2) it “negates the possibility that the insurer would be … less responsive to its trust duties where the insured is [un]able to pay the excess judgment” because “at worst, it would only be liable for the amount specified by the policy,” which would “impair the usefulness of insurance for the poor [person];” and 3) it “recognizes that the fact of entry of the judgment itself against the insured constitutes a real damage to him because of the potential harm to his credit rating.” Id. (first alteration in original) (citations omitted) (internal quotation marks omitted).

¶24 These policy considerations make sense in the context of the cause of action at issue: breach of the insurer’s fiduciary duty to defend the insured in the third-party context. See Ammerman v. Farmers Ins. Exch., 19 Utah 2d 261, 430 P.2d 576, 578 (1967) (Ammerman I). In Ammerman I, we recognized that an insurer has a fiduciary duty to “act in good faith and be as zealous in protecting the interests of its insured as it would in looking after its own.” Id. at 579 (citation omitted).

¶25 Espenschied argues that an insurance agent or broker should be treated like an insured. But we have declined to extend an insurer’s fiduciary duty to first-party insurance claims. See Beck v. Farmers Ins. Exch., 701 P.2d 795, 800 (Utah 1985). And Espenschied has not convinced us that the policy considerations behind recovery for breach of an insurer’s fiduciary duty to defend should extend to a breach of contract or duty to procure insurance.

*5 [8]¶26 These policy considerations do not all translate to insurance agents and brokers. A contract breacher is required “to compensate the nonbreaching party for actual injury sustained.”4 Trans-Western Petroleum, Inc. v. U.S. Gypsum Co., 2016 UT 27, ¶ 15, 379 P.3d 1200 (citation omitted) (internal quotation marks omitted). Although this may mean that a contract breacher benefits from the impecuniousness of the nonbreaching party, the other methods of monetizing a judgment, see infra ¶29, allay any of these concerns. And if the nonbreaching party has not sustained any actual injury because they have not and will never pay the judgment, there should be no contractual liability. See TruGreen Cos., L.L.C. v. Mower Bros., 2008 UT 81, ¶ 19, 199 P.3d 929 (recognizing the value of efficient breach).

¶27 Moreover, an insurer’s trust duties become most relevant when an insured has a claim under the insurance because “a conflict of interests may exist.” Ammerman I, 430 P.2d at 578. Our holding in Ammerman II removed the insurer’s perverse incentive to breach its trust duties at the time a claim is filed because there would otherwise be no financial downside to the insurer who “would only be liable for the amount specified by the policy” even if it breached its duties and there would be a potential financial upside. 450 P.2d at 462. An insurance agent or broker does not have the same perverse incentive to breach its contract or duty to procure insurance. The agent’s breach would occur when there is significant financial downside (a claim for breach of contract or negligence) with little to no financial upside (the agent must only find an insurer willing to cover the risks).

¶28 However, entry of the judgment itself may constitute real harm for which an insurance agent or broker may be held liable. See Steele v. Hartford Fire Ins. Co., 788 F.2d 441, 450 (7th Cir. 1986) (“[E]ven an unexecuted judgment can cause an injury, present or future, that can be monetized.”). But this real damage does not exist in a vacuum, and we will not presume it exists. Instead, it is up to the plaintiff to establish that it has suffered harm that can be monetized, such as harm to its credit rating or reputation, loss of business opportunities, or even being forced into bankruptcy.

¶29 An insurance agent or broker is not an insurer who has breached its fiduciary duty to defend. And we do not believe that the policy considerations that apply to an insurer’s breach of its duty also apply wholesale to an insurance agent or broker. Therefore, we refuse to extend Ammerman II outside of the context of an insurer’s breach of its fiduciary duty to defend. However, we do not believe that it is impossible to monetize an unexecuted judgment, and if Espenschied is able to show a dispute of material fact of such harm, summary judgment would be inappropriate.

¶30 Because Espenschied has never and will never pay money to the Herrods, the only theory of harm Espenschied puts before us (aside from the attorney fees and costs from the wrongful death suit, discussed above) is that it lost part of its claims against Fleetwood and Wilshire because it would be required to use any judgment against Fleetwood or Wilshire to pay the Herrods.

*6 ¶31 Espenschied has failed to convince us that its partial loss of claims against Fleetwood or Wilshire would constitute actual injury. To this day, Espenschied has not paid any money to the Herrods. If Espenschied does not recover against Fleetwood or Wilshire based on the settlement agreement and consent judgment, Espenschied will not suffer any actual injury because it will never have any assets to pay the Herrods. However, if Espenschied does recover against Fleetwood or Wilshire based on the settlement agreement and consent judgment, Espenschied would then be obligated to pay the money to the Herrods and would suffer an actual injury. We decline to conclude that a party has suffered an actual injury if their injury would only exist if they were successful in the lawsuit to recover for that injury.5

¶32 Because Espenschied has failed to show a material dispute of fact of damages, other than the potential $3,400 in attorney fees and costs it stipulated was not worth pursuing alone, we affirm summary judgment for Fleetwood.

II. WILSHIRE WAS ENTITLED TO SUMMARY JUDGMENT BECAUSE ESPENSCHIED HAS NOT SHOWN IT CAN RECOVER UNDER VICARIOUS LIABILITY
¶33 The district court granted summary judgment for Wilshire on Espenschied’s four causes of action and separately on the theory of vicarious liability. On appeal, Espenschied only attacks the district court’s decision to grant summary judgment to Wilshire based on vicarious liability. The district court granted summary judgment on this theory for two alternative reasons: 1) there was no dispute of material facts that could show Fleetwood was Wilshire’s agent and 2) because Fleetwood has no liability, Wilshire cannot have vicarious liability.

¶34 In its brief, Espenschied recognizes that these were alternative grounds for the district court’s decision. Before us, Espenschied makes three arguments for why the district court erred: 1) there was a dispute of material fact of agency, 2) Wilshire should be held vicariously liable for Fleetwood’s breach of its duty to procure insurance, and 3) Wilshire is bound by Espenschied’s reasonable reliance on Fleetwood’s representations that the policy would cover the trailer.6

[9]¶35 We do not need to reach whether there was a dispute of material fact of agency because we find Espenschied’s two other arguments insufficient. As set forth above, see supra ¶32, we affirm the district court’s grant of summary judgment to Fleetwood. Espenschied has not provided any argument that Wilshire should be vicariously liable for Fleetwood’s breach of contract or duty to procure insurance if Fleetwood itself is not liable. Nor has Espenschied argued that a different damages analysis should apply to Wilshire than the one that applies to Fleetwood. Therefore, we conclude that Espenschied cannot be successful under a theory of vicarious liability.

[10] [11]¶36 Espenschied is similarly unable to prevail on its reasonable reliance argument. “An insurance company may be vicariously liable for the tortious conduct of its agent, or it may directly incur tort liability by imputation of the agent’s knowledge.” Allen v. Prudential Prop. & Cas. Ins. Co., 839 P.2d 798, 806 n.16 (Utah 1992) (citation omitted). It is unclear whether Espenschied’s argument sounds in vicarious liability or direct liability. To the extent that Espenschied’s reasonable reliance argument is grounded in vicarious liability, it must fail because Espenschied loses on the vicarious liability ground. See supra ¶35. If, instead, the reasonable reliance argument sounds in direct liability, it must fail because Espenschied has not attacked this ground. See Kendall v. Olsen, 2017 UT 38, ¶ 9, –––P.3d –––– (holding that a party’s failure to challenge an independent basis for dismissal “leaves us with no basis for reversal and thus no choice except to affirm”). A principal’s vicarious liability for one of its agent’s acts and a principal’s direct liability for its own acts, which were committed with the agent’s imputed knowledge, “are separate legal questions.” Wardley Better Homes & Gardens v. Cannon, 2002 UT 99, ¶ 19, 61 P.3d 1009. Espenschied has not argued that the district court’s independent determination that Wilshire could not be held vicariously liable for Fleetwood’s actions was erroneous because it only considered one of the two routes of liability agency creates. Espenschied’s failure to attack this independent ground “leaves us with … no choice except to affirm.” Kendall, 2017 UT 38, ¶ 9, ––– P.3d ––––.

*7 ¶37 We therefore affirm the district court’s grant of summary judgment to Wilshire.

CONCLUSION
¶38 We affirm the district court’s grant of summary judgment to Fleetwood because Espenschied was unable to raise a dispute of material fact of damages. Similarly, we affirm the district court’s grant of summary judgment to Wilshire because Espenschied failed to argue why Wilshire should have vicarious liability when Fleetwood has no liability.

All Citations
— P.3d —-, 2018 WL 3322746, 868 Utah Adv. Rep. 22, 2018 UT 32

Footnotes

1
On summary judgment, we view “the facts and all reasonable inferences … in the light most favorable to the nonmoving party.” Heslop v. Bear River Mut. Ins. Co., 2017 UT 5, ¶ 24, 390 P.3d 314 (citation omitted).

2
Although Espenschied brought a claim alleging both fiduciary and other tort duties, Espenschied presented no argument to us that the duty to procure insurance is in fact a fiduciary duty. We need not consider that issue because damages are an essential element of a claim for breach of fiduciary duty as well. See Gables at Sterling Vill. Homeowners Ass’n, Inc. v. Castlewood-Sterling Vill. I, LLC, 2018 UT 04, ¶ 52, 417 P.3d 95.

3
In its brief, Fleetwood argued that Espenschied’s claim was moot because the consent judgment had lapsed. However, Espenschied argued that the consent judgment had been renewed, and Fleetwood conceded at oral arguments that the claim was not moot.

4
In its ruling, the district court found that “Fleetwood’s status is, at most, that of a contract breacher.” We recognize that Espenschied may have a claim against Fleetwood for either breach of contract or for negligence. However, Espenschied has not challenged the district court’s conclusion or argued to us that the damages available for breach of a duty to procure insurance should be different than the damages available for breach of a contract to procure insurance. We therefore do not opine in this case whether an unexecuted judgment that cannot be recovered under can be considered damages for a breach of a duty to procure insurance.

5
Importantly, we affirm the district court’s grant of summary judgment to Wilshire. See infra ¶37. Therefore, Espenschied’s potential loss of some recovery under its claim against Wilshire creates no harm for which Fleetwood must compensate Espenschied.

6
In its statement of issues presented for review, Espenschied included the following issue: “Did the trial court err by ruling as a matter of law that there could only be coverage under the Wilshire insurance policy if the trailer in question was specifically named in the policy?” Espenschied provided no other briefing on this issue so we do not consider it. See supra ¶19 (refusing to consider inadequately briefed argument).

2018 WL 3249708

United States District Court, E.D. Texas, Marshall Division.
MEDALLION TRANSPORT & LOGISTICS, LLC, Plaintiff,
v.
AIG CLAIMS, INC., Granite State Insurance Co., and Jay Carman, Defendants.
No. 2:16-CV-01016-JRG-RSP
|
Signed 06/27/2018
Attorneys and Law Firms
Glenn Allen Perry, Sloan Bagley Hatcher & Perry, Longview, TX, Amanda Aline Abraham, Carl R. Roth, The Roth Law Firm, P.C., Marshall, TX, for Plaintiff.
Christopher Weldon Martin, Paul Wayne Pickering, Martin Disiere Jefferson & Wisdom, LLP, Houston, TX, Andy Tindel, Mann, Tindel & Thompson—Attorneys at Law, Tyler, TX, for Defendants.

REPORT AND RECOMMENDATION
ROY S. PAYNE, UNITED STATES MAGISTRATE JUDGE
*1 In this insurance case, Medallion Transport & Logistics, LLC asserts three causes of action: (1) breach by Granite State of its duty under Stowers to settle a third party claim; (2) a violation of the Texas Insurance Code by all Defendants; and (3) breach of an insurance contract against Granite State. Second Am. Compl [Dkt. # 62] at 10–14. Defendants move the Court for summary judgment on all of Medallion’s claims. Defs.’ Mot. for Summ. J. [Dkt. # 47]. For the reasons that follow, the motion should be GRANTED IN PART.

I. BACKGROUND

A. The Parties
Medallion is a North Carolina limited liability company with its principal place of business in Mooresville, North Carolina. Joint Pre-Trial Order [Dkt. # 75] at 7. Defendant AIG Claims, Inc. is a subsidiary and the claims servicing company of American International Group, Inc.’s property casualty insurance product lines. Id. Defendant Granite State Insurance Company is a fire and casualty company, organized under the laws of the State of Illinois, with its principal place of business in New York. Id. at 8. Defendant Jay Carman was an AIG Claims employee with the title “Complex Director.” Id. at 8, 9. At all times material to this case, AIG Claims and Carman were acting on behalf of Granite State. Id. at 8.

B. The Williams Litigation
In April 2011, Brandi Williams was driving when her vehicle was struck by a longdistance tractor-trailer carrying cargo for Medallion. Id. That same day, Medallion provided notice of the accident to Granite State. Id. At the time of the accident, Granite State insured Medallion for up to $2 million of liability. Id. Granite State accepted coverage for the accident two days later. Id.

AIG Claims quickly concluded Medallion was likely to be found liable. By August 2011, AIG Claims had determined that Medallion’s driver was primarily at fault for causing the accident and paid 90% of Williams’s property damage. Id. at 10. AIG Claims later entered activity notes commenting: “Liability: 90% against the insured for failing to yield the ROW and for making an illegal U-turn.” Id.

In February 2012, Williams sued Medallion to recover for personal injuries sustained in the accident. Id. at 9. Williams alleged that Medallion was negligent in the supervision and training of the driver. Id. Williams also alleged the accident caused severe injuries to her spine, which led to numerous medical procedures, hospitalizations, and a spinal surgery. Id. Williams claimed she could never return to nursing, her chosen profession. Id. at 9–10.

Medallion reported the suit to Granite State, which hired legal counsel to defend Medallion. Id. at 9. By reason of an arrangement between Granite State and AIG Claims, AIG Claims and Carman had authority to act as Granite State’s agents in managing the Williams litigation on Granite State’s behalf. Id. This included authority to adjust the Williams claim, including with respect to the investigation, evaluation, hiring counsel, and managing the defense, and potential resolution and settlement of the Williams claim. Id. By reason of this arrangement between Granite State and AIG Claims, all duties and obligations of Granite State to Medallion were to be performed by AIG Claims. Id.

*2 In the three months before trial, it became clearer that Medallion was likely to lose. On September 24, 2013, AIG Claims’s adjuster acknowledged the “case has a potential for serious exposure.” Id. at 10. On October 2, 2013, AIG Claims informed Medallion that Williams had submitted $122,231.75 in medical bills, had not worked since the accident, and showed very well in her deposition in that she was articulate and, as a registered nurse, able to describe her injuries well. Id. at 10.

On October 17, 2013, AIG Claims received a first Stowers demand from Williams’s counsel. Id. The demand included an offer to settle for $2 million, an amount within the liability limits of Medallion’s insurance policy with Granite State. Id. at 10–11.

On October 21, 2013, Medallion’s defense counsel (hired by AIG Claims) prepared an evaluation of the case at AIG Claims’s request. Id. at 11. That evaluation noted the collision was a severe impact, this was a serious case, there was no chance of a directed verdict or defense verdict, and the jury verdict could be $1.75 million to $3.3 million. Id. Defense counsel recommended that AIG Claims try to settle the case. Id.

After receiving the evaluation, Medallion hired counsel of its own, and at its own expense, to monitor the Williams litigation and the settlement discussions. Id. That attorney also encouraged AIG to accept the offer to protect Medallion from an excess verdict. Id. But AIG Claims rejected the first Stowers demand and made a counteroffer of $250,000. Id.

In early December 2013, AIG Claims and Carman received a second Stowers demand. Id. at 12. Two days later, AIG Claims and Carman rejected that demand on behalf of Granite State and made a counteroffer of $350,000, despite that by then Medallion was precluded from retaining any experts to testify at trial. Id.

The case was tried later that month. Id. After Williams’s treating physician testified, AIG Claims and Carman offered $500,000 to settle the case. Id. Williams rejected the offer but advised Carman that the previous offer to settle all claims—i.e., the second Stowers demand—was still available. Id.

On December 19, 2013, the jury rendered a verdict of $3,865,101 against Medallion and its co-defendants. Id. Two months later, the trial court found Medallion and its co-defendants jointly and severally liable to Williams and entered a judgment of $3,865,101 plus pre-judgment interest and taxable costs. Id. at 13.

In April 2014, AIG Claims and Carman offered to settle Williams’s claim for $1.975 million, the amount remaining under the policy, which Williams rejected. Id. The next month, Medallion appealed the Williams verdict. A year later, the appellate court reversed the trial court’s judgment and ordered a new trial. Id.

Before the case could be retried, the parties settled Williams’s claims for $3 million. Id. AIG paid $2.8 million towards the settlement. Medallion paid $200,000. Id.

C. Defendants’ Motion for Summary Judgment
First, Medallion contends Granite State violated its Stowers obligation to settle a third-party claim after receiving a proper demand to do so. Second, Defendants allegedly breached Tex. Ins. Code § 541.060(a)(2)(A) by “failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of … a claim with respect to which the insurer’s liability has become reasonably clear,” and § 541.060(a)(7) by “refusing to pay a claim without conducting a reasonable investigation with respect to the claim.” Third, Medallion alleges Granite State breached its contractual obligations under the insurance policy.

*3 Defendants’ motion challenges all three claims. First, Defendants contend Medallion never had a mature Stowers claim because there was never a final judgment in the Williams litigation. As for the alleged statutory violations, Defendants argue Medallion has not and cannot present any evidence that Defendants engaged in unfair or deceptive acts or practices, which Defendants contend is necessary for this cause of action. As for Medallion’s breach-of-contract claim, Defendants contend the evidence shows that Granite State complied with its obligations under the policy.

II. APPLICABLE LAW
“A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In resolving the motion, the court should construe all facts and inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

III. DISCUSSION

A. Medallion’s Stowers Claim
In Texas, “[t]he common law imposes a duty on liability insurers to settle third-party claims against their insureds when reasonably prudent to do so.” Phillips v. Bramlett, 288 S.W. 876, 879 (Tex. 2009) (citing G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544 (Tex. 1929) ). “For the duty to arise, there must be coverage for the third-party’s claim, a settlement demand within policy limits, and reasonable terms ‘such that an ordinarily prudent insurer would accept it, considering the likelihood and degree of the insured’s potential exposure to an excess judgment.’ ” Id. (quoting Am. Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 849 (Tex. 1994) ). “When these conditions coincide and the insurer’s negligent failure to settle results in an excess judgment against the insured, the insurer is liable under the Stowers Doctrine for the entire amount of the judgment, including that part exceeding the insured’s policy limits.” Id. (citing Stowers, 15 S.W.2d at 548).

Here, the parties dispute whether Medallion had a ripe Stowers claim. Relying on Street v. Honorable Second Court of Appeals, 756 S.W.2d 299 (Tex. 1988), Defendants contend that a Stowers claim only accrues when a judgment is final. Thus, because there was never a final judgment in the Williams litigation, no Stowers claim ever accrued. Medallion, however, asserts a Stowers claim accrues as soon as the trial court disposes of all the issues and the trial court’s power to alter the judgment has ended. Pl.’s Resp. [Dkt. # 53] at 9 (citing Street, 756 S.W.2d at 301).

For a Stowers claim, “[t]he injury producing event is the underlying judgment in excess of policy limits.” Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 829 (Tex. 1991); see also Linkenhoger v. Am. Fidelity & Cas. Co., 260 S.W.2d 884, 887 (Tex. 1953) (concluding the insured “could not have maintained this present suit until such time as his liability and the extent thereof had been determined by a final judgment in the former case. Until then … the tort was not complete.”). Thus, “[a] Stowers cause of action does not accrue until judgment in the underlying case becomes final.” Street, 756 S.W.2d at 301; see also, e.g., In re Davis, 253 F.3d 807, 809 (5th Cir. 2001) (concluding a debtor’s bankruptcy estate did not include a Stowers claim because judgment in the underlying case never became final and no such claim ever accrued); One Beacon Ins. Co. v. T. Wade Welch & Assocs., No. H-11-3061, 2012 WL 2403500, at *5 (S.D. Tex. June 25, 2012) (concluding the Stowers claim was not ripe because there was no final judgment).

*4 In Street, the Texas Supreme Court held “a judgment is final for the purposes of bringing a Stowers action if it disposes of all issues and parties in the case, the trial court’s power to alter the judgment has ended, and execution on the judgment, if appealed, has not been superseded.” Street, 756 S.W.2d at 301 (emphasis added). Thus, the question is not just disposition of issues in the underlying litigation, but the ability of the third party to execute on the judgment. Execution was never an issue here, as Defendants filed both a supersedeas bond and a timely notice of appeal. Accordingly, Medallion’s Stowers claim was never ripe and Defendants are entitled to judgment in their favor.

B. Defendants’ Alleged Violation of Texas Insurance Code § 541.060(a)
In its second count, Medallion alleges all three defendants violated Tex. Ins. Code § 541.060(a)(2)(A) by failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim for which the insurer’s liability had become reasonably clear—here, Medallion’s liability to Williams. Medallion also alleges Defendants violated § 541.060(a)(7) by refusing to pay a claim without conducting a reasonable investigation of the claim.

In Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 77 S.W. 253 (2002), the Texas Supreme Court held statutory liability under the language of § 541.060(a)(2)(A) requires the insured to show “that (1) the policy covers the claim, (2) the insured’s liability is reasonably clear, (3) the claimant has made a proper settlement demand within policy limits, and (4) the demand’s terms are such that an ordinarily prudent insurer would accept it.” Rocor, 77 S.W.3d at 262 (interpreting Tex. Ins. Code art. 21.21, which was the predecessor to § 541.060). Unlike a Stowers claim, the statute requires a bad-faith component. See Tex. Ins. Code § 541.060(a)(2)(A) (defining “failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of … a claim with respect to which the insurer’s liability has become reasonably clear” as “an unfair or deceptive act or practice” subject to liability (emphasis added) ). There is no separate requirement of an unfair or deceptive act, as Defendants contend. The statute defines the foregoing failure to act in good faith as an unfair or deceptive act. That means, in the context of resisting a “no evidence” motion for summary judgment, the plaintiff must show some evidence that the insurer had no reasonable basis for denying or delaying payment or settlement of a claim. See Universal Life Ins. Co. v. Giles, 950 S.W.2d 48, 50–51 (Tex. 1997) (“An insurer breaches its duty of good faith and fair dealing when ‘the insurer had no reasonable basis for denying or delaying payment of [a] claim, and [the insurer] knew or should have known that fact.’ ”) (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 18 (1994) ); Texas Farmers Ins. Co. v. Soriano, 881 S.W.2d 312, 317 (Tex. 1994) (“In this regard, the evidence presented, viewed in the light most favorable to the insured, must be such as to permit at least the logical inference that the insurer had no reasonable basis to delay or deny payment of the claim.”).1

*5 Defendants argue Medallion has no evidence of any such bad faith. Defs.’ Mot. [Dkt. # 47] at 13–14 (citing Am. Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 847 (Tex. 1994) ). Medallion responds the record provides “ample basis” for a jury to conclude that Medallion’s liability was reasonably clear, and that a reasonable insurance carrier would have accepted a settlement offer to protect its insured from the possibility of an excess judgment. Pl.’s Resp. [Dkt. # 53] at 13–15.

Here, a reasonable jury could conclude Defendants had no reasonable basis for delaying settlement of the claim. Even before the first Stowers demand, AIG Claims’s adjuster acknowledged the “case has a potential for serious exposure.” Joint Pre-Trial Order [Dkt. # 75] at 10. Williams had not worked since the accident and showed well in her deposition. Id. After the first Stowers demand, Medallion’s defense counsel noted the seriousness of the case, that there was no chance of a defense verdict, and that the jury verdict could be $1.75 million to $3.3 million. Id. at 11. Defense counsel also recommended to AIG Claims that it try to settle the case. Id. Medallion’s independently retained attorney also encouraged AIG to accept the demand to protect Medallion from an excess verdict. Id. Still, AIG Claims and Carman rejected the second Stowers demand, even though Medallion was at that time precluded from proffering experts at trial. Id. at 12.

Notably, Defendants’ motion offers no explanation as to why their approach was reasonable. Rather, Defendants recount the steps they took during the Williams litigation in fulfilling their contractual duty to defend. Medallion’s statutory cause of action, however, is based on Defendants’ unreasonably delaying settlement. Given the stipulated facts—especially in light of no explanation by Defendants as to why their behavior was reasonable—a jury could conclude Defendants unreasonably delayed in settling the claim. Accordingly, this part of Defendants’ motion should be denied.

C. Granite State’s Alleged Breach of the Insurance Contract
In its third count, Medallion alleges Granite State breached its contractual obligations under the insurance policy in four ways. First, Medallion claims Granite State failed to adequately manage Medallion’s defense. Second Am. Compl. [Dkt. # 62] ¶ 50. Second, Medallion claims Granite State failed to perform a reasonable assessment of Medallion’s potential liability. Id. Third, Medallion claims Granite State failed to obtain expert testimony to rebut the evidence offered by Williams at trial, both as to liability and damages. Id. Finally, Medallion claims Granite State failed to accept a settlement demand within policy limits which was reasonable and should have been accepted to protect the insured from potential liability. Id.

According to Defendants, however, the policy simply requires the insurer to “pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto’.” Policy No. TP9880498 01 Truckers Coverage Form [Dkt. # 47-2] at PageID 1063. Further, the policy gives Granite State
the right and duty to defend any “insured” against a “suit” asking for such damages…. We may investigate and settle any claim or “suit” as we consider appropriate. Our duty to defend or settle ends when the Liability Coverage Limit of Insurance has been exhausted by payment of judgments or settlements.
*6 Id. at PageID 1063–64. Medallion does not contest that these paragraphs provide the basis for Granite State’s contractual obligations, but claims the policy
implicitly requires the insurer to investigate and evaluate claims made against the insured as to both liability and damages, employ counsel to defend the insured in the event of a law suit, manage the litigation, and negotiate a fair and reasonable resolution where appropriate.
Pl.’s Resp. [Dkt. # 53] at 15–16.

Under Texas insurance law, “a breach of the duty of good faith and fair dealing will give rise to a cause of action in tort that is separate from any cause of action for breach of the underlying insurance contract.” Viles v. Security Nat’l Ins. Co., 788 S.W.2d 566, 567 (Tex. 1990). Thus, “[a]n insured’s claim for breach of an insurance contract is ‘distinct’ and ‘independent’ from claims that the insurer violated its extra-contractual common-law and statutory duties.” USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479, 489 (Tex. 2018).

“Insurance policies are contracts and therefore are controlled by rules of construction applicable to contracts generally.” Columbia Cas. Co. v. CP Nat’l, Inc., 175 S.W.3d 339, 343 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Therefore, a court must construe the policy language at issue before determining whether summary judgment is appropriate.

“The construction of an unambiguous contract is a question of law for the court.” Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011). “A contract is not ambiguous simply because the parties disagree over its meaning.” Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009). Rather, a contract is ambiguous only when “its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation.” Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). “If only one party’s construction is reasonable, the policy is unambiguous and [a court] will adopt that party’s construction.” RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 118 (Tex. 2015). “But if both constructions present reasonable interpretations of the policy’s language, [the court] must conclude that the policy is ambiguous.” Id.

Here, the policy language concerning Granite State’s rights and obligations is not ambiguous. Medallion urges the policy “implicitly requires the insurer to investigate and evaluate claims made against the insured as to both liability and damages,” but the policy language clearly gives Granite State the right to investigate any claim as it considers appropriate. Similarly, Medallion urges the policy “implicitly requires” Granite State to “negotiate a fair and reasonable resolution,” but the policy expressly gives Granite State the right to settle any claim as it considers appropriate. Medallion offers no good reason why the Court should change the plain and ordinary meaning of either provision or imply additional obligations. See Wayne Duddlesten, Inc. v. Highland Ins. Co., 110 S.W.3d 85, 90 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (holding “that, because the policy gives appellees the ‘right to … settle these claims, proceedings or suits,’ [the insured’s] discretion in investigating and settling claims is not contractually limited”); see also Dear v. Scottsdale Ins. Co., 947 S.W.2d 908, 911, 913–14 (Tex. App.—Dallas 1997, writ denied) (concluding similar contract language “expressly and unambiguously permitted [the insurer] to investigate and settle any covered claims against [the insured] as [the insurer] deemed expedient”). Moreover, nothing in the policy suggests an “implicit requirement” for Granite State to manage the litigation. See Univ. Health Servs., Inc. v. Renaissance Women’s Group, P.A., 121 S.W.3d 742, 748 (Tex. 2003) (noting “a covenant will not be implied simply to make a contract fair, wise, or just”).

*7 That leaves only Granite State’s “right and duty to defend” against Williams’s claims. So far as Granite State’s “duty” is concerned, without additional language in the policy as to a particular standard of care, Granite State was only required to retain counsel for Medallion. As far as the “right” to defend, that includes the authority to make decisions normally vested in the insured as the named party in the case. See Northern County Mut. Ins. Co. v. Davalos, 140 S.W.3d 685, 688 (Tex. 2004). But to the extent Medallion or its defense counsel disagreed with any such decision by Granite State—e.g., a decision not to retain a testifying expert for trial—Medallion’s defense counsel could have urged Medallion to hire an expert notwithstanding Granite State’s position and then sue Granite State to attempt to recoup the associated costs as necessary legal expenses. That Medallion did not elect that option does not lie at the feet of Granite State—at least not under Medallion’s breach-of-contract claim concerning an insurance contract that gave Granite State the right to make the decision in the first place. See State Farm Mut. Auto. Ins. Co. v. Traver, 980 S.W.2d 625, 628 (Tex. 1998) (“[B]ecause the lawyer owes unqualified loyalty to the insured, the lawyer must at all times protect the interests of the insured if those interests would be compromised by the insurer’s instructions. Under these circumstances, the insurer cannot be vicariously responsible for the lawyer’s conduct.” (citation omitted) ). The Supreme Court in Traver made this particularly clear by expressly rejecting its previous dicta from Ranger County Mutual Ins. Co. v. Guin, 723 S.W.2d 656, 659 (Tex. 1987), where it had stated that an insurer’s duty to defend “includes investigation, preparation for defense of the lawsuit, trial of the case and reasonable attempts to settle.” See also Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 558 (5th Cir. 2004) (“A breach of the duty to defend entitles the insured to the expenses it incurred in defending the suit, including reasonable attorney’s fees and court costs.”). Here, the stipulated facts show Granite State performed its contractual obligations by retaining counsel through the successful appeal of the case. Accordingly, Defendants’ motion should be granted as to Medallion’s breach-of-contract claim.

IV. RECOMMENDATION
Defendants’ Motion for Summary Judgment [Dkt. # 47] should be GRANTED IN PART. Specifically, the Court should GRANT summary judgment in Defendants’ favor as to Medallion’s Stowers and breach-of-contract claims, but DENY summary judgment as to Medallion’s claims under Tex. Ins. Code § 541.060.

Note: A party’s failure to file written objections to the findings, conclusions, and recommendations contained in this report by July 2, 2018 bars that party from de novo review by the district judge of those findings, conclusions, and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Fed. R. Civ. P. 72(b)(2); see Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc ).

All Citations
Slip Copy, 2018 WL 3249708

Footnotes

1
Although Soriano concerned an alleged breach of the duty of good faith in failing to settle a third-party claim, the Court noted it had never held that the duty of good faith applies to the handling of third-party claims. Soriano, 881 S.W.2d at 317. Farmers, however, did not challenge the legal viability of Soriano’s position, but simply claimed there was no evidence of bad faith. Id.