Bedford Internet Office Space, LLC v. Tex. Ins. Grp., Inc., 02-17-00009-CV

CourtCourt of Appeals of Texas
Citation537 S.W.3d 717
Docket NumberNO. 02-17-00009-CV,02-17-00009-CV
Parties BEDFORD INTERNET OFFICE SPACE, LLC, Appellant v. TEXAS INSURANCE GROUP, INC., Appellee
Decision Date21 December 2017

537 S.W.3d 717

BEDFORD INTERNET OFFICE SPACE, LLC, Appellant
v.
TEXAS INSURANCE GROUP, INC., Appellee

NO. 02-17-00009-CV

Court of Appeals of Texas, Fort Worth.

DELIVERED: December 21, 2017


ATTORNEYS FOR APPELLANT: DAVID R. GIBSON, SUSANNE K. SULLIVAN & REAGAN R. HEROD, THE GIBSON LAW GROUP, PC, IRVING, TEXAS.

ATTORNEYS FOR APPELLEE: MICHAEL A. YANOF, TOM CULPEPPER & CASSIE J. DALLAS THOMPSON, COE, COUSINS & IRONS, L.L.P., DALLAS, TEXAS.

PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.

BONNIE SUDDERTH, CHIEF JUSTICE

537 S.W.3d 718

This is an appeal from the trial court's order granting Appellee Texas Insurance Group, Inc.'s (TIG) rule 91a motion to dismiss Appellant Bedford Internet Office Space, LLC's (Bedford) claims. See Tex. R. Civ. P. 91a. Because we hold that the trial court erred by dismissing Bedford's claims on the basis of the statute of limitations, we reverse.

Background

In June 2011, Bedford leased two commercial office buildings to a local business for use as a "data center, training center, administrative office, food bank storage, and staging area for holiday food and toy outreach." The terms of the lease required Bedford to purchase insurance, so Bedford approached TIG for assistance in doing so. Bedford informed TIG of the current and intended uses of the premises, and TIG secured a custom insurance policy from Travelers Casualty Insurance Company (Travelers) for the period of June 20, 2011, to June 20, 2012.

Sometime in August or September 2011, and again in October, the buildings were damaged during two burglaries. Bedford reported both incidents to Travelers, two claims were opened, and on January 3, 2012, Travelers informed Bedford that both claims were denied on the basis of a policy provision that excluded coverage if the building was vacant for more than 60 days.

On September 5, 2012, Bedford filed suit against Travelers in state court and asserted that their claims were wrongfully denied. Bedford's suit was subsequently removed to federal court, and Travelers moved for summary judgment on all of Bedford's claims on the basis that the policy excluded coverage because the buildings had been vacant at the time of the loss. The federal district court granted Travelers' motion and dismissed the case with prejudice. Bedford Internet Office Space, LLC v. Travelers Cas. Ins. Co. , 41 F.Supp.3d 535, 539, 546–49 (N.D. Tex. 2014).

Bedford filed the instant suit against TIG on June 2, 2016, and pleaded claims for breach of contract, negligence, negligent misrepresentation, and violations of the Texas Deceptive Trade Practices Act and of the Insurance Code.

On August 25, 2016, TIG filed a motion to dismiss pursuant to rule 91a, arguing that Bedford's claims were barred by the applicable statutes of limitations as set forth in the Texas Supreme Court's decision in Johnson & Higgins of Texas, Inc. v. Kenneco Energy, 962 S.W.2d 507, 514 (Tex. 1998) (op. on reh'g) (holding that, in a suit by an insured against its agent for negligent breach of the agent's duty to obtain insurance, limitations begins to run on the date of denial of coverage by the insurance company). The trial court agreed and granted TIG's motion, and dismissed the case on October 12, 2016.1

537 S.W.3d 719

Discussion

Bedford presents four issues on appeal, three of which argue that the trial court erred in granting TIG's motion to dismiss and the last of which argues that rule 91a violates the open courts provision of the Texas Constitution. Because we hold that the trial court erred in granting the motion to dismiss, we do not reach Bedford's challenge to rule 91a's constitutionality. See Tex. R. App. P. 47.1.

We review de novo a trial court's ruling on a rule 91a motion to dismiss. Drake v. Chase Bank , No. 02-13-00340-CV, 2014 WL 6493411, *1–2 (Tex. App.—Fort Worth Nov. 20, 2014, no pet.) (mem. op.). And "we must construe the pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept as true the factual allegations in the pleadings to determine if the cause of action has a basis in law or fact." Wooley v. Schaffer , 447 S.W.3d 71, 76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) ; see also Aguilar v. Morales , No. 08-15-00098-CV, ––– S.W.3d ––––, ––––, 2017 WL 192910, at *3 (Tex. App.—El Paso Jan. 18, 2017, pet. denied) (applying de novo review to trial court's determination of rule 91a motion to dismiss); Stedman v. Paz , 511 S.W.3d 635, 637 (Tex. App.—Corpus Christi 2015, no pet.) (same).

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