Canas v. Centerpoint Energy Res. Corp.
| Citation | 418 S.W.3d 312 |
| Decision Date | 27 November 2013 |
| Docket Number | No. 14–11–01055–CV.,14–11–01055–CV. |
| Parties | Felicita DEL CARMEN CANAS, as Next Friend of Yenifer Estefani Canas Escobar, Javier Enrique Canas Escobar and Beatriz Abigail del Carmen Canas, Minors, Appellant v. CENTERPOINT ENERGY RESOURCES CORPORATION, Appellee. |
| Court | Court of Appeals of Texas |
OPINION TEXT STARTS HERE
Alan A. Winograd, Peter Michael Kelly, Houston, for Appellant.
Randy G. Donato, Macey Reasoner Stokes, Houston, for Appellee.
Panel consists of Chief Justice FROST and Justices CHRISTOPHER and JAMISON.
This is an appeal from a summary judgment in a wrongful-death action in which the decedent's children asserted claims against a natural gas provider based upon negligence, negligence per se, strict liability, gross negligence, negligent misrepresentation, and intentional misrepresentation. The trial court dismissed all claims. On appeal, the three-member panel of this court is fractured, resulting in three separate opinions, two of which are part majority (those authored by Chief Justice Frost and Justice Christopher), and all of which are part dissents. Though the panel members disagree about much of the analysis, at least two of the three panel members agree with respect to the proper judgment for each claim.
As to the claims based upon negligence, negligence per se, and strict liability, this court affirms the trial court's judgment. As to these claims, section IV.A. of this opinion is a plurality opinion, with Justice Christopher concurring in the judgment, and Justice Jamison concurring in part in the judgment and dissenting in part. As to the gross-negligence claim, this court reverses the trial court's judgment and remands for further proceedings consistent with section C. of Justice Christopher's opinion, which is a majority opinion of the court as to the gross-negligence claim. Section IV.B. of this opinion is a dissenting opinion as to the gross-negligence claim. As to the intentional-misrepresentation and negligent-misrepresentation claims, this court reverses the trial court's judgment and remands for further proceedings consistent with section IV.C. of this opinion, which is a majority opinion of the court as to these two claims. As to the intentional-misrepresentation and negligent-misrepresentation claims, Justice Christopher concurs in the judgment as to the intentional-misrepresentation claim and dissents as to the negligent-misrepresentation claim.
In section IV.A. of this opinion, Chief Justice Frost concludes that the limitation of liability in the natural gas provider's tariff is reasonable and enforceable under the applicable legal standard for the filed-rate doctrine and that the trial court did not err to the extent it granted summary judgment based upon the tariff's limitation of liability regarding the claims based upon negligence, negligence per se, and strict liability. As to part of the gross-negligence claim, Chief Justice Frost concludes that the trial court's summary judgment should be affirmed because the plaintiffs have not challenged one of the summary-judgment grounds on appeal, and Chief Justice Frost dissents to the extent that this court affirms the trial court's judgment as to this part of the gross-negligence claim. But, Chief Justice Frost concludes that it is proper for this court to reverse and remand the remainder of this claim. In section IV.C. of this opinion, the court, addressing the plaintiffs' intentional-misrepresentation and negligent-misrepresentation claims, determines that that trial court erred in granting summary judgment as to these claims, which the plaintiffs added after the defendant filed its summary-judgment motion.
Appellant/plaintiff Felicita Del Carmen Canas, as next friend of Yenifer Estefani Canas Escobar, Javier Enrique Canas Escobar and Beatriz Abigail Del Carmen Canas, Minors (hereinafter the “Canas Parties”) filed a wrongful death action against appellee/defendant CenterPoint Energy Resources Corporation (hereinafter “CenterPoint”). In their live petition the Canas Parties make the following allegations:
• On March 2, 2007, Guadalupe Del Carmen Canas (“Canas”) was in her residence, a garage apartment located behind a house in Houston. Mary Betancourt owned both the house and the garage apartment.
• CenterPoint owned and operated the natural gas entering Canas's residence.
• Natural gas leaked from an underground corroded gas line located on the exterior of Betancourt's house, migrated underground through the soil, and into Canas's garage apartment, filling the apartment with dangerous levels of gas.
• As the gas migrated underground into Canas's residence, it became odorless or insufficiently odorized. The odorant placed in the gas by CenterPoint was adsorbed by the soil.
• Rust and corrosion were visible on the pipes located next to the meter on the outside of the main residence and CenterPoint did not report this corrosion to anyone.
• At no time did CenterPoint warn Canas or Betancourt of the potential for gas to migrate into their homes when a corrosion leak or any other type of leak occurs. CenterPoint also failed to warn Canas or Betancourt that the gas, which migrates underground into structures, can become either deodorized or inadequately odorized, due to the odorant being adsorbed into the soil.
• As a result of the leak and the diminished odorant in the gas, the gas accumulated in the structure and was undetectable until so much gas filled the structure that it reached the lower explosive limit and ignited.
• CenterPoint has known for decades that corrosion in gas lines results in underground gas leaks which can and do cause gas to travel into someone's home or other structure in either an odorless or ineffectively odorized state due to the odorant being adsorbed in the soil. In addition, for at least a decade, CenterPoint's odorant suppliers have told CenterPoint to warn its customers about the dangers of odorant fade, but CenterPoint has failed to do so. CenterPoint has continued to fail to warn its customers, both before and after this incident. CenterPoint is also aware of many other gas explosions which have occurred in the same manner as the explosion in this case.
• An accumulation of gas inside Canas's residence caused an explosion which severely burned and injured Canas. The severe burns and injuries to Canas ultimately led to her death on March 20, 2007.
In their wrongful-death action, the Canas Parties assert claims for negligence, gross negligence, negligence per se, strict liability, intentional misrepresentation, and negligent misrepresentation.
CenterPoint moved for summary judgment on the following grounds:
(1) Under the filed-rate doctrine, all of the Canas Parties' claims for strict liability and negligence are barred by the gas tariff in effect on the date of the incident made the basis of this suit.
(2) There is no evidence of CenterPoint's actual knowledge of a dangerous condition on Betancourt's property that caused the fire in question and therefore the Canas Parties have not established that CenterPoint owed any duty to Canas regarding such dangerous conditions.
(3) Even absent any tariff, CenterPoint has no negligence liability to the Canas Parties because CenterPoint has no duty to inspect a customer's wiring, appliances, or the like before supplying gas to the customer and because CenterPoint is not liable for dangerous conditions on Betancourt's property due to the lack of any evidence that it had actual knowledge of any dangerous condition on Betancourt's property. Because CenterPoint has no negligence liability to the Canas Parties, it cannot be liable for gross negligence or negligence per se.
(4) CenterPoint cannot be liable for gross negligence because a claim for gross negligence does not exist independent of an underlying negligence claim, and the Canas Parties' negligence claim fails as a matter of law.
The trial court granted CenterPoint's summary-judgment motion in its entirety and dismissed with prejudice all of the Canas Parties' claims. The trial court did not specify the summary-judgment grounds upon which it relied.
On appeal, the Canas Parties present the following issues:
(1) The trial court erred in granting a final summary judgment dismissing all of the Canas Parties' claims against CenterPoint.
(2) CenterPoint's summary-judgment motion is directed at theories and claims not asserted by the Canas Parties in their petition. Because the motion does not specifically address the Canas Parties' claims, the trial court should not have granted it.
(3) The trial court erred in granting summary judgment as to the misrepresentation claims that the Canas Parties added after CenterPoint filed its summary-judgment motion.
(4) The trial court erred in applying the filed-rate doctrine to this case because the tariff in question is unreasonable as applied to these facts, and in contravention of the carefully constructed regulatory scheme governing natural gas safety.
(5) The trial court erred in granting summary judgment as to the Canas Parties' gross-negligence claim.
In a traditional motion for summary judgment, if the movant's motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000). In reviewing a no-evidence summary judgment, this court ascertains whether the nonmovant pointed out summary-judgment evidence raising a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206–08 (Tex.2002). In our de novo review of a trial court's summary judgment, this court considers all the evidence in the light most favorable to the nonmovant, crediting...
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