text:
    Katherine MILLS, et al., Petitioners, v. WARNER LAMBERT CO., et al., Respondents.
    No. 03-1052.
    Supreme Court of Texas.
    Feb. 11, 2005.

      Troy S. Martin III, Curtis L. Cukjati, Martin & Cukjati, San Antonio, Christa Brown, Austin, for petitioners.
    Deborah A. Newman, Forman, Perry, Watkins, Krutz & Tardy, LLP, Houston, for respondent Bayer Corporation.
    Richard H. Caldwell, Andrews & Kurth LLP, Houston, for respondents Del Pharmaceutical, Inc., and Del Laboratories.
    M.C. Carrington, Mehaffy & Weber, Beaumont, for respondent Care Technologies, Inc.
    Jack E. Urquhart, Joseph S. Cohen, N. Terry Adams, Beirne Maynard & Parsons, L.L.P., Houston, Richard A. Desevo, David Klingsberg, Thomas A. Smart, Kaye Scho-ler LLP, New York, NY, Wayne Peveto, The Peveto Law Firm, Orange, for respondents Warner-Lambert Company and Pfizer Inc.
   PER CURIAM.

This case involves an interlocutory appeal of a class-certification order. The primary issue is whether the portions of the Federal Food, Drug, and Cosmetic Act (FDCA) regulating nonprescription drugs deprived the trial court of subject matter jurisdiction to hear claims regarding the efficacy of certain head-lice remedies. The court of appeals concluded that the FDCA preempted the class’s state-law claims and deprived the trial court of jurisdiction to enter its class-certification order. We disagree with the court of appeals’ conclusion that the trial court lacked subject matter jurisdiction. Ordinary preemption operates as an affirmative defense to a plaintiffs state-law claims but does not deprive state courts of jurisdiction over those claims. State-court jurisdiction is affected only when Congress requires that claims be addressed exclusively in a federal forum. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 242-45, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).

In this case, we conclude that the FDCA provision at issue is not one of the few statutes that require claims to be resolved exclusively in a federal forum. The relevant section of the FDCA contains no forum-preempting language and indicates no intent to vest exclusive jurisdiction in a federal forum. We therefore conclude that the FDCA did not deprive the trial court of subject matter jurisdiction. Because this is an interlocutory appeal, only the question of subject matter jurisdiction is before us at this time; consequently, we do not decide whether the FDCA would, through ordinary preemption, provide a full defense to the plaintiffs’ claims. We reverse the court of appeals’ judgment and remand the case to that court for consideration of the other issues raised on appeal. See Tex.R.App. P. 59.1.

The petitioners in this case are plaintiffs suing six pharmaceutical companies for breach of the implied warranty of merchantability of certain over-the-counter head-lice remedies. The plaintiffs argue that, as lice strains have developed resistance to the active ingredient in the companies’ products, those products are no longer capable of effectively treating head-lice infestations and are therefore unfit for their ordinary purpose. See Tex. Bus. & Com.Code § 2.314(b)(3). The plaintiffs sought breach-of-warranty damages under the Deceptive Trade Practices Act. See Tex. Bus. & Com.Code §§ 17.46(b), 17.50(a)(1). The defendants moved for summary judgment in the trial court, arguing that the FDCA preempted the plaintiffs’ claims. The plaintiffs filed a cross-motion, asking the trial court to rule as a matter of law that the claims were not preempted. The court granted the plaintiffs’ motion and struck the defendants’ affirmative defense of federal preemption. The trial court subsequently certified a class of Texas consumers and adopted a trial plan. The pharmaceutical companies then brought this interlocutory appeal challenging the class-certification order. See Tex. Civ. Prac. & Rem.Code § 51.014(3).

Before examining whether the trial court’s certification order complied with Texas Rule of Civil Procedure 42, the court of appeals first considered whether the trial court had jurisdiction to enter the certification order at all. 117 S.W.3d 488, 490; see McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 231 (Tex.2001) (stating that “the interlocutory appeal statute does not supplant the constitutional requirement that the court of appeals have subject-matter jurisdiction”); Pearson v. State, 159 Tex. 66, 315 S.W.2d 935, 938 (1958) (“[T]he jurisdiction of the appellate court as to the merits of a case extends no further than that of the court from which the appeal is taken.”).

The court of appeals concluded that federal law preempted the plaintiffs’ claims and deprived the trial court of subject matter jurisdiction. 117 S.W.3d at 494. The court noted that the FDCA provides that no state “may establish or continue in effect” any “requirement” that “relates to the regulation” of an over-the-counter drug and that is “different from or in addition to, or that is otherwise not identical with, a requirement” under the FDCA. Id. at 493 (quoting 21 U.S.C. § 379r). The court also noted that “[ajppellees do not contest the fact that the products in question do indeed comply with the FDA-approved formula for nonprescription [head-lice remedies], and that the products were marketed in compliance with the appropriate approval process mandated by the FDA.” Id. The court concluded that because “[i]n practical effect, the state law-; suit would make unlawful the sale of a' product formulated to comply with a federal requirement,” the lawsuit would impose a state requirement “different from or in addition to” a requirement under the Act. Id. at 494. After the court concluded that the lawsuit was preempted under federal law, it then concluded, without further analysis, that the preemption deprived the trial court of subject matter jurisdiction. Id. We disagree.

Under the Supremacy Clause of the United States Constitution, the laws of the United States are “the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. If a state law conflicts with federal law, it is preempted and has no effect. Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981); Am. Cyanamid Co. v. Geye, 79 S.W.3d 21, 23 (Tex.2002). There are three ways that a state law may conflict with federal law and thus be preempted. See Great Dane Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737, 743 (Tex.2001). First, “[a] federal law may expressly preempt state law.” Id. (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992)). Second, “federal law or regulations may impliedly preempt state law or regulations if the statute’s scope indicates that Congress intended federal law or regulations to occupy the field exclusively.” Id. (citing Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995)). Finally, state law is also impliedly preempted if it “actually conflicts with federal law or regulations,” because “(1) it is impossible for a private party to comply with both state and federal requirements; or (2) state law obstructs accomplishing and executing Congress’ full purposes and objectives.” Id. In this case, defendants assert that the FDCA fits into the first category of express preemption as it expressly provides that no state “may establish or continue in effect” “any requirement” that “relates to the regulation” of an over-the-counter drug and that is “different from or in addition to, or that is otherwise not identical with, a requirement” under the FDCA. 21 U.S.C. § 379r.

Even if the defendants are correct that the FDCA preempts this state-law claim, however, it does not mean that the trial court lacked jurisdiction over the claim. Federal preemption “is ordinarily a federal defense to the plaintiffs suit” but does not ordinarily deprive a state court of jurisdiction. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). As a result, “[tjhere are thus some cases in which a state law cause of action is preempted, but only a state court has jurisdiction to so rule.” Romney v. Lin, 105 F.3d 806, 813 (2d Cir.1997) (denying rehearing). Consequently, we disagree with the court of appeals’ conclusion that federal preemption, without more, would necessarily deprive the trial court of jurisdiction.

In support of their argument that preemption divests state courts of jurisdiction, the respondents cite several cases holding that federal law may “pre-empt conflicting state-court jurisdiction.” Int’l Longshoremen’s Assoc. v. Davis, 476 U.S. 380, 388, 106 S.Ct. 1904, 90 L.Ed.2d 389 (1986); see also Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 547 (Tex.1991). When the courts in these cases spoke of “preemption of jurisdiction,” however, they were not referring to the applicability of federal law; rather, they referred to Congress’s ability to require resolution of certain claims exclusively in a federal forum. See Chappell v. SCA Servs., Inc., 540 F.Supp. 1087, 1095 (D.Ill.1982) (suggesting that “[fjederal preemption ... should be distinguished from exclusive federal jurisdiction,” because “[i]n the former, federal substantive law supplants state law but absent other provisions both state and federal courts have concurrent jurisdiction of actions arising under that law; in the latter, only the specified federal instrumentalities have jurisdiction of the matter, irrespective of the law to be applied.”) (quoting 1A Moore’s Federal Practice, & 0.160 at 189 (2d ed.1981)). Thus, in Davis, the United States Supreme Court held that the National Labor Relations Board had exclusive jurisdiction to hear certain labor claims, and that neither state courts nor federal courts had jurisdiction to hear a claim “which could have been, but was not, presented to the Labor Board.” Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 197, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978); Davis, 476 U.S. at 393, 106 S.Ct. 1904. Similarly, this Court held in Gorman that state courts had no jurisdiction over certain ERISA claims. Gorman, 811 S.W.2d at 547-49; see also Southland Life Ins. Co. v. Estate of Small, 806 S.W.2d 800, 801 (Tex.1991). Again, however, this decision rested on the creation of an exclusive federal forum rather than the existence of a preemption defense; Section 502 of ERISA provides that, with the exception of certain exempted actions, “the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter-” 29 U.S.C. § 1132(e)(1). The FDCA, by contrast, does not contain any express forum-preemption language. See 21 U.S.C. § 379r.

The lack of explicit forum-preempting language is not controlling when there is other evidence that Congress intended to establish an exclusive federal forum; “the presumption of concurrent jurisdiction can be rebutted by an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests.” Tafflin v. Levitt, 493 U.S. 455, 459-60, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990); see also Davis, 476 U.S. at 388, 106 S.Ct. 1904 (“It is clearly within Congress’ powers to establish an exclusive federal forum to adjudicate issues of federal law in a particular area that Congress has the authority to regulate under the Constitution. Whether it has done so in a specific case is the question that must be answered when a party claims that a state court’s jurisdiction is pre-empted.”) (citation omitted). For example, Congress demonstrated such intent in the National Labor Relations Act, where “Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules.... A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.” Garmon, 359 U.S. at 242-44, 79 S.Ct. 773 (citation omitted). In Garmon, the United States Supreme Court held that because Congress had enacted such a “complex and interrelated federal scheme of law, remedy, and administration” in the NLRA, “due regard for the federal enactment requires that state jurisdiction must yield.” Id. at 243-44, 79 S.Ct. 773 (citation omitted).

In this case, we conclude that the FDCA contains no such “complex and interrelated federal scheme of law, remedy, and administration” that would divest the state courts of jurisdiction. Id. The statute neither includes a private civil enforcement provision nor specifies a forum where claims may be heard. 21 U.S.C. § 379r. Nor is there indication in the legislative history of the FDCA that Congress intended it to divest state courts of jurisdiction to hear claims relating to nonprescription drugs, or that state-court jurisdiction would be incompatible with federal interests. The Act itself provides that “[njothing in this section shall be construed to modify or otherwise affect any action or the liability of any person under the product liability law of any State.” 21 U.S.C. § 379r(e). The Senate Committee Report for the bill enacting that provision similarly noted that “the legislation explicitly provides that it shall not be construed to modify or otherwise affect the traditional product liability law of any State. Tort liability rules and requirements would remain unchanged and unaffected.” S.Rep. No. 105-43, at 66 (1997). Congress’s decision to exclude such a broad category of claims from the reach of the statute is inconsistent with an intent to vest “exclusive jurisdiction ... in another body.” Davis, 476 U.S. at 388, 106 S.Ct. 1904.

We therefore conclude that the FDCA does not deprive state courts of subject matter jurisdiction to hear claims relating to such products. We do not decide whether the FDCA would, through ordinary preemption, provide a full defense to the plaintiffs’ claims; in this interlocutory appeal, only the question of subject matter jurisdiction is currently before us.

Pursuant to Rule 59.1 of the Texas Rules of Appellate Procedure, we grant the class’s Petition for Review, and, without oral argument, we reverse the court of appeals’ judgment and remand the case to that court for consideration of the other issues raised on appeal. See Tex.R.App. P. 59.1.


source: Caselaw Access Project

author: Justice O’NEILL

license: Public Domain

text:
    Mary R. DILLARD, Individually, and as Community Survivor of the Estate of Kenneth Lewis Dillard, Deceased, and Mary R. Dillard a/n/f For Kimberly Dillard, a Minor, Petitioners, v. TEXAS ELECTRIC COOPERATIVE and Stephen Paul Bumstead, Respondents.
    No. 03-0655.
    Supreme Court of Texas.
    Argued April 7, 2004.
    Decided Feb. 11, 2005.
    R. Matt Dawson, Dawson & Sodd, P.C., Corsicana, Roland G. Brown, Law Offices of Roland G. Brown, Jacksonville, Glenn Sodd, Richard Neal Green, Dawson & Sodd, P.C., Corsicana, Anatole Robert Barnstone, Law Office of Anatole Barn-stone, Austin, for petitioners.
    Michael V. Winchester, Winchester & Associates, P.C., Plano, Stephen Paul Bumstead.D. Bradley Dickinson, Dickinson & Associates, P.C., Dallas, for respondents.
   Justice O’NEILL

delivered the opinion of the Court.

In this personal injury and wrongful death case, we must decide whether the trial court abused its discretion in refusing to submit one of two different instructions on the defendants’ inferential rebuttal defenses. An inferential rebuttal defense operates to rebut an essential element of the plaintiffs case by proof of other facts. For example, the defendants in this case contended at trial that the fatal auto accident in issue was not caused by their negligence, but rather by the presence of cattle on the roadway or by the conduct of the cattle’s owner who allowed them to be there. The jury rejected these defenses and returned a verdict for the plaintiffs, upon which the trial court rendered judgment. The court of appeals, however, reversed and remanded the case for a new trial, concluding that the jury needed more than one inferential rebuttal instruction for a full consideration of the case. - S.W.3d-, 2003 WL 1884296. Because we conclude that the trial court’s instruction sufficiently informed the jury about the defendants’ inferential rebuttal defenses, we reverse the court of appeals’ judgment and remand the case for that court to consider other issues that the defendants raised but the court did not address.

I

Texas Electric Cooperative (TEC) of Jasper, Texas, manufactures and sells utility poles. On the evening of May 27, 1996, TEC dispatched Stephen Bumstead to deliver a load of poles to Muenster, Texas, 304 miles away. About 120 miles out, traveling west on U.S. Highway 175 at about ten o’clock at night, Bumstead crested a hill and saw several dark cows on the road. Unable to stop his loaded tractor-trailer rig quickly enough without jeopardizing control, Bumstead collided with one or more of the cows, leaving one dead in the eastbound lane about 250 feet from a bridge crossing the Neches River. Maintaining control, Bumstead proceeded over the bridge and parked his truck on the shoulder about 1,500 feet beyond the dead cow. Bumstead immediately radioed an approaching trucker to warn him of the hazard ahead. Learning that the trucker had a cell phone, Bumstead requested that he call 911 to report the accident. Bum-stead turned off his headlights and waited in his truck for help to arrive.

A few minutes later, Mae Joyce Brown drove past Bumstead’s rig on to the bridge heading east on Highway 175. At the same time, the Dillards were approaching the bridge from the east in the unobstructed westbound lane. Crossing the bridge, Brown saw the approaching headlights of the Dillards’ vehicle but did not see the dead cow in her lane of traffic. When she hit the cow, her car was thrown into the westbound lane and into the Dillards’ vehicle, killing Kenneth Dillard and injuring his wife and daughter. Brown, too, was injured in the accident.

The Dillards sued TEC and Bumstead for negligence, seeking damages for their personal injuries and for Kenneth’s death. Brown intervened in the suit. The Dil-lards and Brown subsequently joined a number of surrounding landowners as defendants, but these claims were dismissed or abandoned before trial because the cattle involved in the accident could not be traced to any of these defendants. Also before trial, Brown settled her claims against TEC and Bumstead, leaving only the Dillards’ claims for the jury.

At trial, the Dillards contended that TEC and Bumstead were negligent in operating an overloaded and top-heavy truck that could not be safely stopped when it encountered obstacles in the road, and in failing to warn approaching motorists, like Brown, of the hazard that the first accident created. TEC responded that its driver had insufficient time to take evasive action and thus could not have avoided hitting the cows despite the exercise of ordinary care. TEC also claimed that its driver was not responsible for the second accident that killed Kenneth Dillard and injured his wife and daughter because that accident was solely caused by the conduct of whatever unknown person allowed the cows to be on the roadway in the first instance.

At the charge conference, TEC requested that its defensive theories be presented to the jury in two inferential rebuttal instructions, one on unavoidable accident and the other on sole proximate cause. On sole proximate cause, TEC asked that the definition of proximate cause include the following sentence:

There may be more than one proximate cause of an event, but if an act or omission of any person not a party to the suit was the ‘sole proximate cause’ of an occurrence, then no act or omission of any other persons could have been a proximate cause.

See Comm, on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges — General Negligence & Intentional Personal Torts PJC 3.2 (2003) (Sole Proximate Cause). The trial court refused to include this instruction, but agreed to instruct the jury on unavoidable accident, which it did in the following definition of proximate cause:

PROXIMATE CAUSE means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
An occurrence may be an “unavoidable accident,” that is, an event not proximately caused by the negligence of any party to it.

See id. PJC 2.4 (Proximate Cause) & PJC 3.4 (Unavoidable Accident). The charge also included an instruction on spoliation based upon TEC’s failure to produce Bum-stead’s trip logbook and any evidence of time and speed that it might contain. Guided by the court’s charge, the jury returned a verdict upon which the trial court rendered judgment in the Dillards’ favor.

In the court of appeals, TEC complained of four errors: (1) the trial court’s refusal to submit a sole cause instruction, (2) the trial court’s submission of a spoliation instruction, (3) the trial court’s refusal to admit certain opinion testimony concerning causation, and (4) the factual insufficiency of the evidence to support the jury’s finding of negligence and causation. Examining only the first issue, the court of appeals concluded that the trial court erred in refusing TEC’s sole-cause instruction because a jury could have reasonably inferred from the cows’ presence on the roadway that whoever owned them was the sole cause of both accidents. - S.W.3d at-& n. 2, 2003 WL 1884296, at *3-4 & n. 2. The court of appeals reversed the trial court’s judgment and remanded the case for a new trial. Id. at -, 2003 WL 1884296, at *4. We granted the Dillards’ petition for review to consider the propriety of the trial court’s charge in light of the instructions that were given.

II

When defendants blame an occurrence on someone or something other than themselves, the Texas Pattern Jury Charges provide multiple alternatives. There is a sole-proximate-cause instruction if the occurrence is- caused by a “person not a party to the suit.” There is an unavoidable-accident instruction if the occurrence is not caused by “the negligence of any party to it.” There is a new-and-independent-cause instruction if the occurrence is caused by someone else later. There is a sudden-emergency instruction if the occurrence is caused by something other than the defendant’s negligence and arises suddenly. And finally, there is an act-of-God instruction if the occurrence is caused by “the violence of nature.” The purpose of these instructions is to advise the jurors, in the appropriate case, that they do not have to place blame on a party to the suit if the evidence shows that conditions beyond the party’s control caused the accident in question or that the conduct of some person not a party to the litigation caused it. Reinhart v. Young, 906 S.W.2d 471, 472 (Tex.1995).

TEC urges that it was entitled to two separate inferential rebuttal instructions here because there is evidence that the accidents may have been caused by a condition beyond its control-the cattle on the roadway — or by someone not a party to the litigation — either the unknown cattle owner or Brown. The Dillards contend, however, that there is no evidence that an unknown cattle owner did or failed to do anything to cause these accidents. They further maintain that TEC abandoned its claim that Brown caused the second accident by arguing at trial that no one involved in the accident was to blame — -they were just “all in the wrong place at the wrong time.” But rather than focus on whether or not there was evidence to support each of TEC’s proposed inferential rebuttal defenses, we think it more appropriate to examine the adequacy of the charge that was given.

The trial court’s charge included the following instruction: “An occurrence may be an ‘unavoidable accident,’ that is, an event not proximately caused by the negligence of any party to it.” That instruction is a verbatim recitation from the Texas Pattern Jury Charges. Comm, on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges — General Negligence & Intentional Personal Torts PJC 3.4 (2003); see also Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 385 (1952) (approving this language). Although we have previously said that this instruction ordinarily applies to causes such as “fog, snow, sleet, wet or slick pavement, or obstruction of view,” or to resolve a case involving “a very young child [who is] legally incapable of negligence,” Hill v. Winn Dixie Tex., Inc., 849 S.W.2d 802, 803 (Tex.1992) (citing Yarborough v. Berner, 467 S.W.2d 188, 191 (Tex.1971)), the instruction’s language is not so limiting. The instruction merely informs the jury that it may consider causes of the occurrence other than the negligence of the parties. See Galveston, H. & S.A. Ry. v. Washington, 94 Tex. 510, 63 S.W. 534, 538 (1901) (“We must look at the court’s charge as practical experience teaches that a jury, untrained in the law, would view it[J”).

Under the unavoidable-accident instruction that the trial court submitted, TEC was free to argue to the jury that no one’s conduct — including Brown’s — caused the accident, a far easier burden than showing that others were negligent. And that’s what TEC chose to do. Although TEC pled in the alternative that Brown’s negligence was the sole proximate cause of the second accident, TEC did not contend during trial that Brown was to blame for the accident. This perhaps explains why the court of appeals’ opinion does not mention her conduct. The defense that TEC presented at trial focused solely on the cattle obstructing the road, impheating only the conduct of their unknown owner. Accordingly, the court of appeals relied solely on this conduct as the basis for its holding that a separate sole-proximate-cause instruction should have been submitted. Whatever the conduct of an unknown cattle owner might have been, it did not justify two separate inferential rebuttal instructions on what essentially was one defense. Because the instruction the trial court gave was sufficiently broad to include all shades of TEC’s inferential rebuttal theories concerning the cattle, the trial court did not err in rejecting TEC’s additional request on this same issue.

Although, as we have said, the traditional instructions do not always further the jury’s understanding of the defense or conform to current broad-form practices, we believe that they do serve a legitimate purpose. But see Reinhart, 906 S.W.2d at 477 (Enoch, J., concurring) (opining that the unavoidable-accident instruction should be discarded); (Hightower, J., dissenting) (same). The standard broad-form question is structured such that the jury is not asked whether any particular person was negligent, but whether “the negligence, if any,” of particular persons proximately caused an occurrence. There is at least a potential implication in this phraseology that the occurrence was caused by someone’s negligence. See Hill, 849 S.W.2d at 805 (Hecht, J., dissenting) (noting the unavoidable-accident instruction simply tells the jury “what the law recognizes — that some accidents occur without anyone’s negligence”). We see no harm in explaining to the jury through an inferential rebuttal instruction that no such implication is intended. But giving multiple instructions on every possible rebuttal inference has the potential to skew the jury’s analysis in the other direction.

As we have noted, the Texas Pattern Jury Charges presently parse inferential rebuttal defenses into five separate instructions. Comm. On Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges — General Negligence & Intentional Personal Torts PJC 3.1-3.5 (2003). Many of these instructions overlap to create redundancies that encourage parties to request several so that the point can be repeatedly emphasized. See Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951, 953 (1944) (holding defendant was entitled to both unavoidable-accident and sole-proximate-cause instructions, despite objection that this allowed defendant to “slice two defenses from precisely the same facts”). For example, an occurrence caused by severe weather could justify either an unavoidable-accident or an act-of-God instruction. See Reinhart, 906 S.W.2d at 474 (noting that the sudden-emergency instruction “reiterates much of the unavoidable accident instruction”). Similarly, the instructions on new and independent cause and sole proximate cause can cover much of the same territory. Such redundancy is contrary to the spirit of broad-form submission. See Lemos v. Montez, 680 S.W.2d 798, 801 (Tex.1984).

More important, these instructions often draw distinctions among outside causes that are irrelevant to what jurors must decide. Under broad-form submission rules, jurors need not agree on every detail of what occurred so long as they agree on the legally relevant result. Thus, jurors may agree that a defendant failed to follow approved safety practices without deciding each reason that the defendant may have failed to do so. Burk Royalty Co. v. Walls, 616 S.W.2d 911, 924 (Tex.1981). Similarly, the jurors here could have unanimously found Bumstead negligent, even if half believed the negligent act was overloading his truck and half believed it was failing to warn oncoming traffic— acts that preceded two different collisions.

With respect to inferential rebuttal issues, jurors need not agree on what person or thing caused an occurrence, so long as they agree it was not’ the defendant. If some jurors here blamed the cattle (unavoidable accident or sudden emergency) and the rest blamed the unknown cow owner (sole proximate cause), their differences would be irrelevant — they would properly return a unanimous defense verdict. Just as jurors may find against a defendant without agreeing on which precise acts were negligent, they should be able to find the opposite without agreeing on the precise reason. The trial court’s instruction presented that alternative to the jury, and TEC was entitled to nothing more.

Ill

Because the trial court’s charge adequately informed the jury about TEC’s inferential rebuttal defenses, the court of appeals erred in holding that the case should be retried under a more elaborate and granulated charge. Accordingly, we reverse the judgment of the court of appeals and remand the case to that court for consideration of the other issues that TEC raised.

      . Comm, on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges — General Negligence & Intentional Personal Torts PJC 3.2 (2003) (“There may be more than one proximate cause of an event, but if an act or omission of any person not a party to the suit was the 'sole proximate cause' of an occurrence, then no act or omission of any other person could have been a proximate cause.”).

      . Id. PJC 3.4 (“An occurrence may be an 'unavoidable accident,’ that is, an event not proximately caused by the negligence of any party to it.").

      . Id. PJC 3.1 (" 'New and independent cause’ means the act or omission of a separate and independent agency, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question and thereby becomes the immediate cause of the occurrence.”).

      . Id. PJC 3.3 ("If a person is confronted by an 'emergency' arising suddenly and unexpectedly, which was not proximately caused by any negligence on his part and which, to a reasonable person, requires immediate action without time for deliberation, his conduct in such an emergency is not negligence or failure to use ordinary care if, after such emergency arises, he acts as a person of ordinary prudence would have acted under the same or similar circumstances.”).

      . Id. PJC 3.5 ("An occurrence is caused by an act of God if it is caused directly and exclusively by the violence of nature, without human intervention or cause, arid could not have been prevented by reasonable foresight or care.”).


author: PER CURIAM.

text:
    In re U.S. SILICA CO. et al. In re Badger Mining Corp. In re Norton Co., et al. In re Norton Co. (n/k/a/ Saint Gordon Abrasives) Siebe North Inc. and Textron Inc. In re Bacou-Dalloz Safety, Inc.
    Nos. 04-0270, 04-0271, 04-0297, 04-0308, 04-0309.
    Supreme Court of Texas.
    Feb. 11, 2005.

      Henry S. Platts, David E. Sharp, Beirne Maynard & Parsons, L.L.P., Chester J. Makowski, Keith N. Uhles, Royston Ray-zor Vickery & Williams, L.L.P., Houston, and David C. Garza, Garza & Garza, L.L.P., Brownsville, for Relator.
    Cynthia Hardy Smith, Adam Tyler Fox, Cynthia Hardy Smith, Angela Clanton, Strasburger & Price, L.L.P., and William C. Dowdy III, Dallas, Hubert Oxford III, Benckenstein & Oxford, L.L.P., Beaumont, Kenneth E. McKay, Locke, Lidell & Sapp, L.L.P., Eva D. Geer, Mayer Knight & Williams, LLP, Gregory Michael Sullivan, John Duff Cleland, Jeffery Keith Gordon, Andrews & Kurth, L.L.P., Houston, Chris C. Pappas, Alan H. Marks, Amy Dunn Taylor, James Vincent Hewitt, Godwin Gruber, LLP, George J. Kacal, Kacal Adams & Law, P.C., Jeffrey Boyd Lucas, Dunn Kaeal Adams Pappas & Law, Houston, Thomas B. Taylor, Taylor & Warren, L.L.P., and Jack B. Manning, Douglas T. Gosda, and William J. Cozort Jr., Manning Gosda & Arredondo, LLP, Houston, and Jeffrey D. Roerig, Roerig Oliveira & Fisher, Brownsville, W. Bruce Williams, Cotton Bledsoe Tighe & Dawson, P.C., Midland, Lynne Miller Ford, Phillips & Akers, Houston, Paul J. Holmes, Paul J. Holmes, P.C., Beaumont, Pamela Jean Neale Williams, Irving, William B. Coffey Jr., Adams & Coffey, P.C., Beaumont, Shawn Robert Redman, Mark C. Clemer, Brown Sims, P.C., Houston, Edward J. Hennessy, Hennessy Gardner & Barth, Houston, Willard M. Tinsley, Funderburk & Funder-burk, LLP, Houston, and Rex N. Leach, Atlas & Hall, McAllen, David Brill, Brill & Associates, P.C., Curt Webb, Beck Redden & Secrest, L.L.P., Houston, and Norton A. Colvin Jr., Robert Patrick Rodriguez, Teri L. Danish, Rodriguez, Colvin & Chaney & Saenz, LLP, Brownsville, Dale Marett Holidy, Houston, Boyd Wells, Wells Pey-ton Beard Greenberg Hunt, L.L.P., Beaumont, Sharia J. Frost, James H. Powers, Karen M. Alvarado, Powers & Frost, L.L.P., Houston, Terence M. Murphy, and Charles Christopher Groves, Jones Day, Dallas, Richard P. Hogan Jr., and Jennifer Bruch Hogan, Hogan & Hogan, L.L.P., Houston, Jerry C. Parker, Sammons & Parker, P.C., Tyler, Kent M. Adams, Adams & Coffey, P.C., and Ellen G. Rey-nard, Adams Coffee & Duesler, Beaumont, Ewing Edben Sikes III, Royston, Rayzor, Vickery & Williams, L.L.P., Brownsville, Andrew S. Oretsky, Davis Oretsky & Guil-foyle, Houston, Thomas B. Taylor, Taylor & Warren, L.L.P., Houston, David Craig Landin, Lori Elliott Jarvis, Paul Oliver Wickes, and Clinton David Howie, Hunton & Williams, LLP, Richmond, VA, Hubert A. Crouch III, Crouch & Ramey, L.L.P., Dallas, Ryan A. Beason, Beason Willing-ham, LLP, Houston, Dulcie Green Wink, Haynes & Boone, LLP, Houston, John R. Robinson, Johnson & Sylvan, P.C., Dallas, Michael Scott Pyle, John Philip Parsons, Forman, Perry, Watkins, Krutz & Tardy, L.L.P., Dallas, Thomas W. Tardy III, Jackson, MS, Anthony E. Pletcher, Huse-man & Pletcher, Corpus Christi, Erin Patterson, Adams & Reese, L.L.P., Houston, R. Stephen Ferrell, Giessel Barker & Lyman, P.C., Houston, Deborah A. Newman and Roger Henry Nebel, Forman, Perry, Watkins, Krutz & Tardy, LLP, Houston, Clinton Eugene Phillips, Johnson Ferguson Pipkin & Phillips, Houston, Charles A. Green and Timothy Dewayne Ammons, Cowles & Thompson, P.C., Dallas, Robert G. Newman, Fulbright & Jaworski L.L.P., San Antonio, Patrick M. Martinez, Her-mansen McKibben Woosley & Villarreal, L.L.P., Corpus Christi, Jeff Shaver, Sam-mons & Parker, Houston, Jeffrey D. Roberts, Roberts Markel, Guerry, P.C., Houston, Frank N. Luccia, and Cathryn Ann Adams, Luccia & Evans, L.L.P., Houston, Robert E. Thackston and Stephanie L. Spardone, Hawkins, Parnell & Thackston, L.L.P., Dallas, Barbara Jane Barron, Me-hafiy & Weber, Beaumont, Richard Reyna, Brock & Person, P.C., San Antonio, Robert J. Rose, Timaeus & Rose, L.L.P., Beaumont, Carl Dawson, Ryan & Dawson, Houston, Juan A. Magallanes, Gilberto Hi-nojosa, Magallanas & Hinojosa, P.C., and Armando Roberto Villalobos, Brownsville, Alan G. Sampson, Benckenstein & Oxford, Beaumont, Clarence Thomas Valentine Jr., James Odis Blackwell III, Daw & Ray, P.C., Houston, and Michael Ray Walzel, Stevens, Baldo & Freeman, Beaumont, Cortlan Howard Maddux, Houston, Gerry Lowery, Robert G. Newman, Fulbright & Jaworski L.L.P., San Antonio, Joe Michael Dodson, Dodson Law Offices, P.C., Beaumont, Harold Hudson Henley and Geoffrey Justin Henley, Henley & Henley, P.C., Dallas, Steve A. Bryant, Steve A. Bryant & Associates, P.C., Houston, for Real Parties.
   PER CURIAM.

Ten silicosis cases involving hundreds of plaintiffs were filed in Cameron County and randomly assigned to six different courts. At the behest of different parties, three judges issued conflicting orders asserting jurisdiction over cases in their own courts or others. Because the Cameron County local rales permit a unilateral transfer only by the court where the first case was filed, we conditionally grant a writ of mandamus directing the others to vacate orders forbidding that transfer.

On May 30, 2003, a single attorney filed ten silicosis lawsuits in Cameron County. The allegations in each were identical, as were the 82 defendants. Only the plaintiffs varied — each suit included about 70, for a total of almost 700.

The cases were randomly assigned among the six district courts in Cameron County. Though all were file-stamped with the same time, consecutive cause numbers indicate the first case filed was assigned to the 197th District Court (Judge Migdalia Lopez presiding).

Thereafter ensued a scramble for possession. First on the field were the plaintiffs, who kicked things off by moving to transfer and consolidate all ten cases in the 404th District Court (Judge Abel Li-mas presiding). That motion was granted on January 6th.

Close behind came some of the defendants, who countered by moving to consolidate all ten cases in the 197th District Court, where the first case was filed. That motion, too, was granted on January 7th.

The reaction of the remaining courts varied. The 103rd District Court (Judge Menton Murray, Jr. presiding) took the second option, lateraling cases to the 197th District Court. The 138th District Court (Judge Robert Garza presiding) blocked, entering an anti-transfer order because no one had requested his consent. The 357th District Court (Judge Leonel Alejandro presiding) punted, signing a recusal order and transferring cases to the local administrative judge. That court, the 107th District Court (Judge Benjamin Euresti presiding), remained on the sidelines, taking neither offensive nor defensive action in the proceedings.

At this point, some of the contestants reversed field. Judge Limas rescinded his original consolidation order, but also signed an order blocking any transfer of the case originally filed in his court. Eventually, the plaintiffs followed suit, seeking to return all cases to the courts where originally filed, except for those transferred by recusal from the 357th.

Unable to determine the winner of these jurisdictional contests, the relators sought mandamus relief from the Thirteenth Court of Appeals. That court declined to referee, holding the proper umpire was the local administrative judge. 129 S.W.3d 810, 814. The court of appeals relied on a provision of the Texas Government Code that assigns to local administrative judges the statutory duty (among others) to “implement and execute the local rales of administration, including the assignment, docketing, transfer, and hearing of eases.” Tex. Gov’t Code § 74.092(1).

We disagree that this statute gives local administrative judges authority to review and reverse conflicting rulings of coordinate courts like those issued here. While the local administrative judge may transfer cases pursuant to local rules, enforcing or overruling competing orders is the duty of a higher court.

In this case, the Cameron County rules allow transfer of related cases to the court in which filing was first made without the consent of any other judge:

Whenever any pending case is so related to another case previously filed in or disposed of by another District Court of Cameron County that a transfer of the later ease to such other court would facilitate orderly and efficient disposition of the litigation, the Judge of the court in which the earlier case is or was pending may, on notice and hearing, transfer the later case to such court.

Cameron County Civ.Ct. R. 1.1(f)(2). The local rules permit the first-filed case to be transferred to a court with a later-filed case, but only with the first judge’s consent:

In the event that an assigned case is subject to the provisions of paragraphs 1.1(f)(2) and (3) and the earlier case is still pending, the judge of the court wherein the later case is pending may on notice and hearing order the earlier case transferred to the later court provided that the judge of the court wherein the earlier case is assigned consents.

Id. at 1.1(f)(5). Under these rules, only the 197th court could transfer cases unilaterally.

As the relators challenge only the conflicting transfer orders, the propriety of consolidating such a large number of claims is not before us. See In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 207-10 (Tex.2004) (holding consolidation was abuse of discretion based on “Maryland factors”); see also In re Bennett, 960 S.W.2d 35, 40 (Tex.1997) (holding that a scheme designed to subvert random case assignment “breeds disrespect for and threatens the integrity of our judicial system.”).

While we have encouraged consolidation for pretrial purposes (most recently pursuant to legislative mandate), we have avoided placing such decisions in the hands of one of the players. See generally Tex. Gov’t Code § 74.161-63; Tex.R. Jud. Admin. 11.4(h) (appointment by regional administrative judge), 13.3 (appointment by multidistrict litigation panel). Local consolidation rules have made similar arrangements to avoid the awkward problem of one court taking a case from another. See, e.g., CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996) (noting adoption by Harris County courts of rules for and appointment of presiding judge in asbestos cases).

But the only issue before us is which court, if any, could unilaterally transfer to itself related Cameron County cases. Accordingly, we do not address whether the transfers here would (as the local rules also require) “facilitate orderly and efficient disposition of the litigation.” Cameron County Civ.Ct. R. 1.1(f)(2).

We have long held that mandamus relief is appropriate to resolve conflicting orders from two or more courts asserting jurisdiction over the same case. See Bigham v. Dempster, 901 S.W.2d 424, 428 (Tex.1995) (granting mandamus relief from “conflicting orders issued from different district courts”); see also Abor v. Black, 695 S.W.2d 564, 567 (Tex.1985); Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974). Accordingly, mandamus is appropriate here.

The relators also challenge certain interim orders signed by the 404th and 138th District Courts that set trial dates, ordered mediation, and set aside a number of default judgments. Relators argue that any orders signed after the consolidation in the 197th District Court are void.

We disagree that all orders signed by a transferring court after transfer are void; many are not. See, e.g., Tex. Fam.Code § 155.005(a) (providing transferring court retains jurisdiction to render temporary orders); Tex.R. Jud. Admin. 13.5(b) (providing transferring court in multidistrict litigation may make further orders on certain conditions); In re Bennett, 960 S.W.2d 35, 40 (Tex.1997) (holding trial court retained power to sanction litigant after removal to federal court). This is especially true here because the transfers involved district courts in a single county.

Trial courts have broad discretion to exchange benches and enter orders on other cases in the same county, even without a formal order or transfer. Tex. Const, art. V, § 11 (“[T]he District Judges may exchange districts, or hold courts for each other when they may deem it expedient”); Tex. Gov’t Code § 74.094(a); Tex.R. Civ. P. 330(h) (providing that in multi-court counties “any judge may hear and determine motions, ... and all preliminary matters, questions and proceedings and may enter judgment or order thereon in the court in which the case is pending without having the case transferred to the court of the judge acting”); In re Houston Lighting & Power Co., 976 S.W.2d 671, 673 (Tex.1998). Given the broad powers district courts have to act for one another, we do not agree that these orders were entered without jurisdiction.

We need not decide whether some post-transfer orders in cases transferred intra-county may qualify among the “rare circumstances” that render an order void rather than merely voidable. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990). Here, the relators do not argue that the 197th District Court would be hampered by or unable to rescind any of the orders. Thus, we decline to grant mandamus relief ordering that they be vacated. See Abor, 695 S.W.2d at 567 (declining to grant mandamus relief when courts were not actively interfering with each other).

Accordingly, pursuant to Texas Rule of Appellate Procedure 52.8 and without hearing oral argument, we direct the 138th and 404th District Courts to vacate their orders of January 13, 2004, so that the 197th District Court may conduct further proceedings consistent with this opinion. We are confident that the trial courts will promptly comply, and our writ will issue only if they do not.


text:
    Sandra F. WHEELER, Petitioner, v. Darrin Edward GREEN, Respondent.
    No. 04-0043.
    Supreme Court of Texas.
    Feb. 11, 2005.

      William C. Odeneal, Logan Odeneal, Odeneal and Odeneal, Dallas, Scott E. Kurth, De Soto, for Petitioner.
    Patrick Thomas Mulry, Jones & Davis, L.L.P., Addison, for Respondent.
   PER CURIAM.

Based on sixty-four deemed requests for admissions, the trial court granted summary judgment terminating Sandra Wheeler as joint managing conservator of her daughter, appointing Darrin Green as sole managing conservator (with exclusive rights to determine the child’s residence, education, and medical care), and finding Sandra liable for maliciously prosecuting Darrin. Darrin’s attorney neglected to point out in his summary judgment motion that Sandra — appearing pro se — actually had filed responses six months before the motion was heard, but two days after they were due. Sandra asserts the summary judgment was error, and under the facts presented here we agree.

Sandra gave birth to a daughter in December 1998. She sued to establish Darrin’s paternity in February 1999. By final order in January 2000, Darrin agreed to pay child support and both parents were appointed joint managing conservators.

A succession of disputes regarding visitation and allegations of neglect followed, with Darrin eventually seeking modification to appoint him as sole managing conservator. On January 11, 2002, Darrin’s attorney mailed sixty-four requests for admissions, which in his own words “requested admissions on every element of each claim set forth in Movant’s live petition.”

A certified receipt shows Sandra received them on January 19. The instructions informed her to respond “within 30 days after service of this request.” See Tex.R. Civ. P. 198.2(a).

Sandra sent her responses to Darrin’s attorney by mail on February 15, twenty-seven days after she received the requests. But this was actually thirty-five days after the “mailbox rule” deems they were served on her, thus making them two days late. See Tex.R. Civ. P. 21a (providing service occurs upon mailing and extending response time by three days).

Darrin’s attorney moved for summary judgment, attaching the requests for admission but saying nothing about the responses he had in his file. Sandra — still pro se — filed no response but attended the summary judgment hearing. In fact, she did so twice, as the visiting judge announced at the first setting that the docket was too full and ordered them to return the next morning. When they did, he granted Darrin’s motion.

Sandra thereafter obtained an attorney, who filed a motion for new trial, attached her responses, and argued they were timely. The motion asserted the requests should not have been deemed admitted, the summary judgment should, be set aside, and that Sandra would pay Darrin’s costs if it was. This motion, too, was denied.

Sandra appealed, asserting that summary judgment based on nothing but the deemed admissions was erroneous. The court of appeals affirmed, pointing out that Sandra never responded to the summary judgment and never moved to withdraw her deemed admissions, and that “even in custody cases, a complete failure to follow the rules of pleading and practice cannot be ignored.” 119 S.W.3d 887, 891. While we agree that no one can ignore the rules, we disagree that the rules here require judgment against Sandra by default.

First, Sandra was not required to file a summary judgment response, and the trial court could not grant Darrin’s motion because she failed to do so. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex.1999).

Second, although Sandra never filed a motion to withdraw deemed admissions or a motion to allow a late response to the summary judgment, the arguments and requests in her motion for new trial were sufficient to put the trial court on notice of exactly that complaint. See Tex.R.App. P. 33.1(a).

Third, Sandra did not waive these arguments by presenting them for the first time in her motion for new trial. We recently held in Carpenter v. Cimarron Hydrocarbons Corp. that the equitable principles allowing these arguments to be raised in a motion for new trial do not apply if a party realizes its mistake before judgment and has other avenues of relief available. 98 S.W.3d 682, 686 (Tex.2002) (distinguishing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939)). But nothing in this record suggests that before summary judgment was granted, Sandra realized that her responses were late, that she needed to move to withdraw deemed admissions, or that she needed to file a response to the summary judgment raising either argument. Accordingly, we hold she was entitled to raise them in her motion for new trial.

We also held in Carpenter that the standards for withdrawing deemed admissions and for allowing a late summary-judgment response are the same. Id. at 687-88. Either is proper upon a showing of (1) good cause, and (2) no undue prejudice. Id.; see Tex.R. Civ. P. 166a(c), 198.3. Good cause is established by showing the failure involved was an accident or mistake, not intentional or the result of conscious indifference. Carpenter, 98 S.W.3d at 687-88; Stelly v. Papania,, 927 S.W.2d 620, 622 (Tex.1996) (per curiam). While Sandra argued only that her responses were timely, the trial court could not have concluded otherwise without noting that she was mistaken as to when “service” occurs. And while Sandra did not move to file a late response to the summary judgment motion, she came to argue her case at both hearings only because she was again mistaken as to what a summary judgment “hearing” was. On this record, the lower courts could have concluded that Sandra was wrong on her dates and wrong on how to correct them, but not that either was the result of intent or conscious indifference.[]

Undue prejudice depends on whether withdrawing an admission or filing a late response will delay trial or significantly hamper the opposing party’s ability to prepare for it. Carpenter, 98 S.W.3d at 687; Stelly, 927 S.W.2d at 622; see also Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 357 (Tex.1998) (per curiam) (finding no undue prejudice from withdrawing store manager’s deemed admissions as plaintiff had already deposed him). As Sandra’s proof attached to her motion for new trial showed, Darrin’s attorney received her responses two days late but six months before the summary judgment motion was heard. The lower courts could not have concluded on this record that Darrin would suffer any undue prejudice if the admissions were withdrawn.[]

We recognize that trial courts have broad discretion to permit or deny withdrawal of deemed admissions, but they cannot do so arbitrarily, unreasonably, or without reference to guiding rules or principles. Stelly, 927 S.W.2d at 622. While requests for admissions were at one time unique in including an automatic sanction for untimely responses, failure to comply with any discovery requests now bears similar consequences. See Tex.R. Civ. P. 193.6(a). Nevertheless, we have held for all other forms of discovery that absent flagrant bad faith or callous disregard for the rules, due process bars merits-preelu-sive sanctions, and have applied this rule to:

• depositions, see TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918-19 (Tex.1991);
• interrogatories, see Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 846, 850 (Tex.1992);
• requests for production, see id. at 849-50; GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 729-30 (Tex.1993); and
• requests for disclosure, see Spohn Hosp. v. Mayer, 104 S.W.3d 878, 883 (Tex.2003) (per curiam).

When requests for admissions are used as intended — addressing uncontroverted matters or evidentiary ones like the authenticity or admissibility of documents—deeming admissions by default is unlikely to compromise presentation of the merits. See Stelly, 927 S.W.2d at 622 (stating requests for admissions were intended to “eliminat[e] matters about which there is no real controversy” and were “never intended to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of defense”) (quoting Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 208 (1950)). But when a party uses deemed admissions to try to preclude presentation of the merits of a case, the same due-process concerns arise. See TransAmerican Natural Gas Corp., 811 S.W.2d at 917-18.

Of the sixty-four admissions deemed here, none sought to discover information: nine deemed circumstances changed so modification was proper, twenty-five deemed modification in the child’s best interest, twenty-seven deemed Sandra liable for malicious prosecution, and three deemed her liable for child support, attorney’s fees, and exemplary damages.

This record contains no evidence of flagrant bad faith or callous disregard for the rules, nothing to justify a presumption that Sandra’s case lacks merit, and nothing to suggest Darrin was unable to prepare for trial without the admissions. See id. at 918; cf. Cire v. Cummings, 134 S.W.3d 835, 843 (Tex.2004) (affirming dismissal based on destruction of tapes at heart of case). Further, Sandra offered to pay for any expenses Darrin incurred because her responses were late. See Tex.R. Civ. P. 215.4. We hold under the facts presented here that the trial court should have granted a new trial and allowed the deemed admissions to be withdrawn upon learning that the summary judgment was solely because Sandra’s responses were two days late. See Spohn Hosp., 104 S.W.3d at 883 (holding late production of witness statements insufficient to justify deeming facts on merits).

We certainly agree that pro se litigants are not exempt from the rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.1978). Having two sets of rules — a strict set for attorneys and a lenient set for pro se parties — might encourage litigants to discard their valuable right to the advice and assistance of counsel. But when a rule itself turns on an actor’s state of mind (as these do here), application may require a different result when the actor is not a lawyer. Recognizing that Sandra did not know what any lawyer would does not create a separate rule, but recognizes the differences the rule itself contains.

Accordingly, without hearing oral argument, we reverse the court of appeals’ judgment, and remand to the trial court for further proceedings consistent with this opinion. Tex.R.App. P. 59.1.

      . By contrast, if the same elementary mistakes had been made by a lawyer, such a conclusion might well be warranted.

      . The rule governing admissions includes as part of the undue-prejudice inquiry that the "presentation of the merits [must] be sub-served” by permitting withdrawal. Tex.R. Civ. P. 198.3(b). The two are different sides of the same coin, as presentation of the merits will suffer (1) if the requesting party cannot prepare for trial, and also (2) if the requestor can prepare but the case is decided on deemed (but perhaps untrue) facts anyway.


author: SHERRY RADACK, Chief Justice. TERRY JENNINGS, Justice,

text:
    GREENWOOD INSURANCE GROUP, INC., Appellant, v. UNITED STATES LIABILITY INSURANCE COMPANY, Appellee.
    No. 01-03-00112-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 17, 2004.

      Timothy M. McCloskey, McCloskey & Herberger, Houston, TX, Vincent L. Mar-able, III, Paul Webb. P.C., Wharton, TX, for Appellant.
    Lisa Gaye Mann, Neal David Kieval, Phillips & Akers, P.C., Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices JENNINGS and HIGLEY.
   OPINION

SHERRY RADACK, Chief Justice.

The issue before the Court is whether an insurance broker’s professional liability policy provides coverage to the broker for two suits brought against the broker by its client, based on the broker’s procurement of coverage for the client from an insurer that subsequently became insolvent. To decide this issue, we must examine an insolvency exclusion in the professional liability policy. The trial court, after reviewing the policy, concluded that it provided no coverage to the broker and granted summary judgment in favor of the broker’s insurer. We affirm.

BACKGROUND

1.The relationship between Greenwood and All-Tex

Appellant, Greenwood Insurance Company (“Greenwood”) is an insurance broker, and All-Tex Roofing, Inc. (“All-Tex”) is its client. On behalf of All-Tex, Greenwood secured a $2 million per occurrence comprehensive general liability insurance policy. Greenwood placed the first $1 million of primary coverage with Resure, Inc., a surplus lines carrier with a “B” rating. Greenwood also obtained an excess policy from United National Insurance Company (“United National”).

2. The Guillen Case

While the Resure policy was in place, Braulio Guillen filed a personal injury suit against All-Tex. The Guillen case resulted in a judgment against All-Tex for $1.3 million dollars. The excess insurer, United National, paid a portion of the damages against All-Tex, but Resure had been declared insolvent two years earlier and provided no primary coverage for All-Tex.

3. All-Tex sues Greenwood

All-Tex, in turn, sued its broker, Greenwood, in two separate suits because the risk that Greenwood had placed with Re-sure did not provide any primary coverage as a result of Resure’s insolvency. In the first suit, All-Tex alleged that Greenwood was negligent for failing to: (1) ascertain the financial condition of Resure before placing coverage, (2) stay apprised of Re-sure’s solvency, (3) notify the Commission of Insurance regarding reasonable doubt about Resure’s stability, (4) place All-Tex’s insurance coverage through an admitted carrier, (5) obtain an excess policy that would have “dropped down” in the event that Resure became insolvent, and (6) disclose that Greenwood did not possess sufficient knowledge and expertise to determine the eligibility of a surplus lines insurer. All-Tex also alleged that Greenwood had violated the DTPA by representing that (1) the policy issued by Resure would provide $1 million in primary coverage for covered claims, (2) the Resure policy had characteristics, uses and benefits that it did not, (3) the policy was of a particular standard or grade when it was of another, (4) the policy conferred rights, remedies or obligations which it did not have, and (5) the Illinois Guaranty Fund would pay claims against Resure of up to $300,000 per occurrence. Finally, All-Tex alleged that Greenwood had failed to (6) disclose information concerning Resure, in an attempt to induce All-Tex into a transaction that it would not have entered into had it known about the information, (7) properly advise All-Tex about the types of coverage that were needed to ensure that All-Tex was at all times properly insured, and (8) to obtain excess insurance that would “drop down” if a primary insurer became insolvent.

All-Tex also filed a second suit against Greenwood, in which it also alleged that Greenwood had failed to provide “drop down” coverage in the event of a primary insurer’s insolvency and had failed to advise Greenwood about the types of insurance coverage needed to ensure that it was properly insured.

4. Greenwood defended by USLIC

Greenwood called upon its own insurer, United States Liability Insurance Company (USLIC), to defend it in the All-Tex lawsuits. USLIC defended Greenwood, under a reservation of rights, and obtained a summary judgment in favor of Greenwood by arguing that (1) the case was barred by limitations and (2) the Guillen claim was not covered by the Resure policy because of an employee exclusion in the policy.

5. USLIC brings a declaratory judgment action

However, after this Court found that the summary judgment had been granted erroneously and remanded the case to the trial court, USLIC filed a declaratory judgment action contending that it owed no duty to defend or indemnify Greenwood for losses arising out of the All-Tex lawsuits.

PROPRIETY OF SUMMARY JUDGMENT

USLIC filed a motion for summary judgment in the declaratory judgment action, contending that it had no duty to defend or indemnify Greenwood because the professional liability policy issued to Greenwood contained an “insolvency exclusion,” which USLIC argued applied to prevent coverage because Greenwood had obtained coverage for All-Tex with a company that did not meet certain standards set forth in the policy.

1. Standard of review and burden of proof

We review the appeal under the usual standards of review applicable to traditional motions for summary judgment. Tex.R. Civ. P. 166a(c); see Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995) (all evidence favorable to nonmovant taken as true and reasonable inferences indulged in nonmovant’s favor); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985) (defendant-movant bears burden to show no genuine issue of material fact and entitlement to judgment as matter of law).

2. Law applicable to interpretation of insurance policies

Insurance policies are controlled by rules of interpretation and construction applicable to contracts generally. Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). The primary concern of a court in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument. Id. Terms in contracts are given their plain, ordinary, and generally accepted meaning unless the contract itself shows that particular definitions are used to replace that meaning. W. Reserve Life Ins. v. Meadows, 152 Tex. 559, 261 S.W.2d 554, 557 (1953). If a written contract is so worded that it can be given a definite or certain legal meaning, it is not ambiguous. Nat’l Union Fire, 907 S.W.2d at 520. The interpretation of an unambiguous contract is a question of law for the court. Perry v. Houston Indep. Sch. Dist., 902 S.W.2d 544, 547 (Tex.App.-Houston [1st Dist.] 1995, writ dism’d w.o.j.). If an insurance policy is ambiguous, however, it will be interpreted in favor of the insured. Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex.1997).

3. Duty to defend

An insurer’s duty to defend is determined under the “eight-corners” rule by looking to the allegations in the pleadings and the language of the insurance policy. Nat’l Union Fire Ins. v. Merchs. Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997). In applying the eight-corners rule, a court must give the allegations in the petition a liberal interpretation. Id. Generally, an insurer has a duty to defend if the petition potentially states a cause of action that falls within the policy coverage. Id.

With the above principles in mind, we turn to the issue of whether USLIC had a duty to defend Greenwood in the All-Tex litigation. The professional liability policy issued to Greenwood provided the following coverage:

[USLIC] will pay on behalf of [Greenwood] any Loss excess of the Deductible not exceeding the Limit of Liability to which this coverage applies that [Greenwood] shall become legally obligated to pay because of Claims first made against [Greenwood] during the Policy Period or if applicable, during any Extension Period, for Wrongful Acts of [Greenwood] or because of Personal Injury arising out of Wrongful Acts of [Greenwood].

The policy also contained the following insolvency exclusion:

This policy does not apply to, and [USLIC] will not defend or pay Loss for, any Claim arising out of, directly or indirectly resultiny from, based upon or in any way involviny any actual or alleged:
Placement of a risk or an insurance or reinsurance contract, policy or other risk transfer mechanism, device or funding vehicle with any insurance company, reinsurer, self-insured trust, group insurance trust, risk retention group, joint underwriting association or other risk assuming entity that is not rated B+ or hiyher by A.M. Best Company at the time of placement and
1. becomes insolvent or bankrupt
2. is undergoing receivership, rehabilitation, or liquidation proceedings; or
3. fails to meet all or part of any legal or financial obligation.
Such Claim is not covered by this Policy regardless of whether the placement is alleged to have occurred alone, in combination with, or in a sequence with any Wrongful Act or legal obligation which is covered by the Policy.

USLIC presented summary judgment proof that, at the time Greenwood procured the Resure policy for All-Tex, Re-sure was rated “B” by A.M. Best Company, not “B + ” as required by the terms of the insolvency exclusion. USLIC presented further summary judgment proof that, while the Resure policy was in place, and while the Guillen case was pending against All-Tex, Resure was placed into receivership. Greenwood did not submit any controverting evidence on the issues of Re-sure’s rating or insolvency.

Although never decided in Texas, numerous other courts have upheld insolvency exclusions in professional liability policies, such as the one in this case. In Barron v. Scaife, 535 So.2d 830 (La.App. 2nd Cir.1988), the victim of a car accident sued her insurance broker after discovering that her insurance earner was insolvent. Id. at 831. The broker, in turn, filed a claim with its professional liability insurer, seeking indemnification for any amounts it should be adjudged liable in the underlying suit. Id. The professional liability insurer denied coverage based on an exclusion for any claims “arising from or related to ... the insolvency, receivership, bankruptcy or liquidation of any insurance company.” Id. at 832. The Louisiana court of appeals held that the clear and unambiguous language of the policy excluded coverage, even for claims that the broker intentionally failed to inform its client of the insurer’s insolvency. Id. at 832-33.

In St. Paul Fire Ins. Co. v. Cohen-Walker, Inc., 171 Ga.App. 542, 320 S.E.2d 385 (1984), an insurance broker’s client sued the broker, alleging that the broker had procured medical insurance for the client with an insurer that became insolvent. Id. at 386. The broker then turned to its own professional liability insurer for coverage. See id. at 387. The professional liability policy provided coverage to the broker for “loss caused by negligence in your insurance business,” but excluded coverage for “claims resulting from the inability of an insurance company to pay its debts. This includes claims related to an insurance company involved in receivership or liquidation proceedings.” Id. The Georgia court of appeals held that the language of the policy was clear and unambiguous and excluded coverage when the injury giving rise to the claim was the recommended insurance company’s inability to pay a claim due to insolvency. Id. at 388.

In Kleneic v. White Lake Marine Corp., 144 A.D.2d 341, 533 N.Y.S.2d 909, 910 (1988), the court held that the terms of an insolvency exclusion, such as that present in this case, “are clear and broad, and extend to any claim which arises out of or in connection with the financial insolvency of any insurer.” Id. at 910. Nevertheless, the court found that the errors and omissions insurer could not rely on the clause because of an unreasonable delay in providing notice of the disclaimer. Id.

In Transamerica Ins. Co. v. Snell, 627 So.2d 1275 (Fla.App. 1st Dist.1993), the plaintiff, Snell, sued an insurance agency, Tison and Associates, that had procured health insurance for Snell’s employer with an insurer that later became insolvent and was unable to pay Snell’s claims. Id. at 1276. Snell then sought a declaratory judgment that Tison’s error and omissions insurer, Transamerica, was liable for Ti-son’s errors. Id. Transamerica denied coverage to Tison based on a policy exclusion for “any claim arising out of insolvency, receivership, or bankruptcy of any organization (directly or indirectly) in which [Tison] has placed or obtained coverage ... ”. Id. The Florida court of appeals held that “Snell’s action against Tison and Associates is within the clear and unambiguous insolvency exclusion of the Trans-america policy, and Tison and Associates is thus not covered for this risk under the Transamerica policy.” Id.

In its response to USLIC’s motion for summary judgment, Greenwood does not argue or distinguish the cases cited above. Instead, Greenwood argues that because some of the allegations of the All-Tex petitions are unrelated to, and independent of, Resure’s insolvency, USLIC should have to defend the entire case, despite the existence of the insolvency exclusion. Specifically, Greenwood claims that the Guillen lawsuit would never have been covered by the Resure policy because of an exclusion in the Resure policy for bodily injury claims by employees. Greenwood argues, therefore, that any claims by All-Tex arising out of an alleged failure to procure the appropriate coverage is a separate and independent loss from any loss caused by Resure’s insolvency. Greenwood also alleges that All-Tex’s DTPA claims based on Greenwood’s failure to accurately represent the coverage that it would procure would require a defense of the entire case by USLIC, even if All-Tex’s claims relating directly to the Re-sure insolvency, standing alone, would not. Essentially, Greenwood argues that, because several of the claims against it do not “arise out of’ Resure’s insolvency, All-Tex’s petitions state a cause that potentially falls within coverage and thus triggers USLIC’s duty to defend under Greenwood’s professional liability policy. We disagree.

The professional liability policy excludes all claims “arising out of, directly or indirectly resulting from, based upon or in any way involving” placement of a risk with an entity that is not rated B+ or higher, and which becomes insolvent or bankrupt. This broadly-worded language excludes, not only claims “arising out of’ Resure’s bankruptcy, but also claims “in any way involving” Resure’s bankruptcy. Resure’s bankruptcy set into motion a chain of events that caused All-Tex to sue Greenwood, and, in turn, led Greenwood to call on USLIC, its professional liability carrier, for defense and indemnity. Furthermore, there is no evidence that Resure denied All-Tex coverage based on the employee exclusion. Thus, Greenwood’s argument that the Resure policy might not have covered the loss is mere speculation. It is undisputed that Resure did not deny coverage to All-Tex based on the employee exclusion-it became insolvent and could not cover any loss caused by the Guillen suit. Thus, all causes of action alleged in both of All-Tex’s petitions arise from or relate to Resure’s insolvency. All-Tex’s claims relating to the employee exclusion of the Resure policy are not, as Greenwood argues, an independent cause of its loss. As such, all claims asserted by All-Tex against Greenwood are expressly excluded from Greenwood’s professional liability coverage through the insolvency exclusion in the policy.

4. Ripeness of Indemnity Issue

Greenwood contends that the trial court erred by granting summary judgment on USLIC’s duty to indemnify Greenwood because the issue was not yet ripe. An insurer’s duty to defend and duty to indemnify are distinct and separate duties. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 821-22 (Tex.1997). Thus, an insurer may have a duty to defend but, eventually, no duty to indemnify. Farmers Texas County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 82 (Tex.1997). For example, a plaintiff pleading causes of action based on both negligent and intentional conduct may trigger an insurer’s duty to defend, but a finding that the insured acted intentionally and not negligently may negate the insurer’s duty to indemnify. Id. Such a fact would not be known until after a trial, thus the duty to indemnify would not be ripe until the trial was completed. However, the duty to indemnify may be justiciable before the insured’s liability is determined in the liability lawsuit when the insurer has no duty to defend and the same reasons that negate the duty to defend likewise negate any possibility that the insurer will ever have a duty to indemnify. Id.

Greenwood argues that USLIC’s duty to indemnify was not ripe because there was a fact issue yet to be determined. Specifically, Greenwood argues that there is a question of fact about whether Guillen was an employee of All-Tex. Greenwood contends that if Guillen was an employee of All-Tex, there is a provision of the Resure policy that would exclude coverage, and that, as a result, All-Tex’s damages would have been caused by Greenwood’s failure to obtain a policy that provided the necessary coverage, not by its placement of the risk with an insurer that became insolvent.

As we stated earlier, it is undisputed that Resure did not deny coverage to All-Tex based on any policy provision. Instead, Resure did not pay because it became insolvent. Thus, any question of fact based upon whether Resure may have eventually paid or denied coverage is irrelevant. All-Tex’s losses were not caused by Resure’s denial of coverage.

In this case, there is no fact issue to be determined and the same reasons that negate the duty to defend likewise negate any possibility that the insurer will ever have a duty to indemnify. See Griffin, 955 S.W.2d at 82. Accordingly, we hold that the trial court did not err by granting summary judgment on USLIC’s duty to indemnify.

5. Waiver and Estoppel

Greenwood argues that the trial court erred by granting summary judgment to USLIC even though Greenwood had pleaded the affirmative defenses of waiver and estoppel. Specifically, Greenwood claims that USLIC never reserved its rights under the “dishonest act exclusion,” and that because it defended for two years before withdrawing, it should be es-topped from denying coverage under that clause. We have held that coverage for all of All-Tex’s claims against Greenwood were excluded by the insolvency exclusion of the professional liability policy, not the dishonest act exclusion. Thus, the issue of whether USLIC properly reserved its rights under the dishonest act exclusion is irrelevant.

CONCLUSION

We affirm the summary judgment.

Justice JENNINGS, concurring.

TERRY JENNINGS, Justice,

concurring.

I write separately to emphasize that this declaratory judgment action over insurance coverage boils down to the construction of an unambiguous contract.

Appellant, Greenwood Insurance Group, Inc. (Greenwood), challenges the trial court’s rendition of summary judgment in favor of appellee, United States Liability Insurance Company (USLIC), which declared that USLIC is under no duty to “defend ... or indemnify” or “defend and/or indemnify” Greenwood, under an insurance agents’ and brokers’ professional liability insurance policy, in two lawsuits brought against Greenwood by All-Tex Roofing, Inc. (All-Tex). In three issues, Greenwood contends that the trial court erred in declaring that USLIC owed no duty of defense and no duty of indemnification to Greenwood for all claims asserted against Greenwood by All-Tex and in granting summary judgment with respect to Greenwood’s affirmative defenses of waiver and estoppel.

Background

Greenwood, an insurance agent and broker, purchased an insurance agents’ and brokers’ professional liability policy from USLIC that provided Greenwood with coverage for its alleged negligent acts or omissions arising from the services it rendered for others as an insurance agent or broker. The policy contained the following exclusion of coverage:

This policy does not apply to, and [USL-IC] will not defend or pay Loss for, any Claim arising out of, directly or indirectly resulting from, based upon or in any way involving any actual or alleged:
L. Placement of a risk or an insurance or reinsurance contract, policy or other risk transfer mechanism, device or funding vehicle with any insurance company, reinsurer, self-insured trust, group insurance trust, risk retention group, joint underwriting association or other risk assuming entity that is not rated B + or higher by A.M. Best Company at the time of placement and
1. becomes insolvent or bankrupt
2. is undergoing receivership, rehabilitation, or liquidation proceedings; or
3. fails to meet all or part of any legal or financial obligation.
Such claim is not covered by this Policy regardless of whether the placement is alleged to have occurred alone, in combination with, or in a sequence with any Wrongful Act or legal obligation which is covered by this Policy.

(Emphasis added.)

Greenwood subsequently obtained a $1,000,000 primary layer of comprehensive general liability insurance for All-Tex, one of its clients, from Resure, Inc. (Resure), a surplus lines carrier with a “B” rating, which was a member of the Illinois Insurance Exchange. During the Resure policy period, Braulio Guillen sued All-Tex and obtained a judgment for $1,500,000. However, while Guillen’s lawsuit was pending, an Illinois court declared that Resure was insolvent and placed it in liquidation.

All-Tex then sued Greenwood, who turned to USLIC to provide a defense and to indemnify it against All-Tex’s claims. USLIC, subject to a reservation of its rights based in part on the above exclusion, assigned counsel to defend Greenwood against All-Tex’s claims. While this first All-Tex suit was on appeal to this Court, All-Tex filed a second lawsuit against Greenwood, alleging a cause of action for breach of contract. After defending Greenwood for almost two years, USLIC filed the instant case seeking a declaration that it did not owe Greenwood a duty to defend or indemnify it against All-Tex’s claims.

Analysis

In its first two issues, Greenwood argues that the trial court erred in declaring that USLIC owed no duty to defend and no duty to indemnify Greenwood because All-Tex “has asserted claims against Greenwood which are not dependent upon or related to the insolvency of Resure, Inc.” (Emphasis added.) Greenwood contends that, because “such claims asserted against Greenwood have nothing to do with the insolvency of Resure, Inc., the ‘insolvency exclusion’ does not apply to bar USLIC’s defense and indemnity obligations to Greenwood.”

Specifically, Greenwood argues that All-Tex has not been damaged by Greenwood’s conduct because the judgment in Guillen’s lawsuit was never covered under the Resure policy. Greenwood asserts that the Resure policy contained an exclusion for bodily injury claims asserted by any employee of All-Tex and that there is a fact issue as to whether Guillen was an employee of All-Tex. Greenwood thus concludes that “the insolvency and financial condition of Resure, Inc. is absolutely irrelevant and unrelated to any conduct of Greenwood since there would be no coverage under the Resure, Inc. policy in any event.” Greenwood contends, moreover, that the “professional negligence claims” asserted by All-Tex are “clearly covered by the USLIC policy and are unrelated to the insolvency or financial condition of Re-sure, Inc.”

Insurance contracts are subject to the same rules of construction as ordinary contracts. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 823 (Tex.1997); Hanson v. Republic Ins. Co., 5 S.W.3d 324, 328 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). Accordingly, when a contract permits only one interpretation, we construe it as a matter of law and enforce it as written. Upshaw v. Trinity Cos., 842 S.W.2d 631, 633 (Tex.1992); Hanson, 5 S.W.3d at 328. We must strive to effectuate the contract as the written expression of the parties’ intent, and we must attempt to give effect to all contract provisions, so that none will be rendered meaningless. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998); State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995).

The insurance agents’ and brokers’ professional liability policy in question expressly provided that it did not apply to, and USLIC would not defend or pay loss for, “any Claim arising out of, directly or indirectly resulting from, based upon or in any way involving any actual or alleged” placement of an insurance policy “with any insurance company ... that is not rated B + or higher by A.M. Best Company at the time of placement and ... becomes insolvent or bankrupt.” The bottom fine is that USLIC did not want and did not assume the risk of defending and indemnifying Greenwood for professional liability claims made against it “involving ... any insurance company ... that is not rated B + or higher ... and ... becomes insolvent.” By obtaining insurance for All-Tex from Resure, a “B” rated company, Greenwood assumed the risk that Resure would become insolvent and that Greenwood would not be covered for any claims brought against it “in any way involving” Resure.

Here, it is undisputed that Resure had a “B” rating at the time of placement and that it, in fact, became insolvent. Greenwood’s arguments that All-Tex’s claims “are not dependent upon or related to the insolvency of Resure” matter not. All of the claims asserted by All-Tex against Greenwood, at the very least, involved, Re-sure, an insurance company that was not rated “B + ” or higher and that became insolvent. Thus, I agree that USLIC had no duty to defend or indemnify Greenwood against the claims made by All-Tex, and I would overrule Greenwood’s first two issues.

Moreover, I would overrule Greenwood’s third issue, i.e., that the trial court erred in rendering summary judgment with respect to Greenwood’s affirmative defenses of waiver and estoppel, because it is premised on the inapplicability of the above exclusion, upon which USLIC based, in part, its reservation of rights.

Conclusion

For these reasons, I would affirm the judgment of the trial court. Accordingly, I concur in the judgment of this Court.

      . All-Tex Roofing, Inc. v. Greenwood Ins. Group, et al., Cause No. 99-28656, in the 152nd District Court of Harris County, Texas.

        . See All-Tex Roofing, Inc. v. Greenwood Ins. Group, Inc., 73 S.W.3d 412 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).

      . All emphasis in the quoted text is that of this Court. Emphasis appearing in the original has been removed.

      . The professional liability policy defines a "Claim” as "any written notice received by [Greenwood] that any person or entity intends to hold [Greenwood] responsible for a Wrongful Act,” or "any judicial or administrative proceeding initiated against [Greenwood] seeking to hold [Greenwood] responsible for a Wrongful Act, including any appeal therefrom.”

      . All-Tex Roofing Inc. v. Greenwood Ins. Group, Inc., M.V. Jensvold & Co., Inc., and Exch. Broker Servs., Cause No. 99-28656, 152nd District Court Harris County, Texas; All—Tex Roofing Inc. v. Greenwood Ins. Group, Inc. and M.V. Jensvold & Co., Inc., Cause No. 2002-05736, 129th District Court, Harris County, Texas.

      . Braulio Guillen v. All-Tex. Roofing Inc. et al., Cause No. 97-09452, 61st District Court Harris County, Texas.

      . See All-Tex Roofing v. Greenwood Ins. Group, Inc., 73 S.W.3d 412, 414 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).


author: ADELE HEDGES, Chief Justice. KEM THOMPSON FROST, Justice,

text:
    Joseph DIXON d/b/a Dixon Concrete Contractors, Appellant, v. Shelton R. MODELIST, Appellee.
    No. 14-03-01111-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 10, 2004.
    Rehearing Overruled Sept. 23, 2004.

      Freddie Jackson, Houston, for appellant.
    Stephan L. Honoré, Houston, for appel-lee.
    Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
   MAJORITY OPINION

ADELE HEDGES, Chief Justice.

Joseph Dixon, d/b/a Dixon Concrete Contractors, appeals from a judgment favoring Shelton Modelist on Modelist’s breach of contract cause of action. In one issue, Dixon contends that the trial court erred in awarding actual damages and attorney’s fees because the jury did not award any past damages. We affirm.

Background

Dixon and Modelist entered into a written agreement in which Dixon agreed to lay a concrete driveway on Modelist’s property. The contract specified that Dixon would “strip and level site for proper drainage.” After the driveway was completed, water allegedly drained toward a building on the property as opposed to toward the roadway.

Modelist sued Dixon for, among other things, breach of contract. At a jury trial, Modelist presented evidence that the drainage problem was caused by improper leveling of the driveway and that, to fix the problem, the driveway would need to be either partially or completely removed and replaced. The jury found that Dixon breached the contract and the breach was not excused. The jury also found that Modelist had sustained no past damages but would, in reasonable probability, sustain future damages in the amount of $9,700. The jury further found Modelist incurred reasonable and necessary attorney’s fees in the amount of $9,870.

Discussion

In his sole issue, Dixon contends that the trial court erred in overruling his motion for judgment notwithstanding the verdict. Specifically, he argues that the verdict does not support the award of contract damages or attorney’s fees in the judgment because the jury did not find any past damages. He suggests that the award of future damages was speculative in nature.

Dixon’s complaints are based on a faulty premise. While Texas law does require damages as an element of proof in breach of contract actions, Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 593 (Tex.App.—Houston [14th Dist.] 2000, no pet.), it defines contract damages to include “future damages,” provided that the amount of such damages is proven by a reasonable certainty. Helena Chem. v. Wilkins, 47 S.W.3d 486, 505 (Tex.2001); see also Geo Viking, Inc. v. Tex.-Lee Operating Co., 817 S.W.2d 357, 360-61 (Tex.App.—Texarkana 1991) (holding evidence was sufficient to support award of future damages for improperly drilled well), writ dism’d, improvidently granted, 839 S.W.2d 797 (Tex.1992). This principle recognizes that a party to a contract who properly claims future damages has been harmed in a current, real sense, in that his or her expectations regarding the contract have been diminished. See Kiewit Tex. Min. Co. v. Inglish, 865 S.W.2d 240, 245-46 (Tex.App.—Waco 1993, writ denied). Dixon does not cite any authority, nor are we aware of any, that requires the recovery of past damages as a prerequisite of future damages. Neither does Dixon propose any basis for such a rule. Although these situations are rare in typical breach of contract actions, plaintiffs in anticipatory breach cases usually seek future damages as opposed to past damages. See, e.g., Kiewit Tex. Min. Co., 865 S.W.2d at 245-46; Marshall v. Telecomm. Specialists, Inc., 806 S.W.2d 904, 907 (Tex.App.—Houston [1st Dist.] 1991, no writ). We have found no authority barring an award of future damages absent an award of past damages. The trial court did not err in awarding contract damages in the judgment.

Dixon also attacks the award of attorney’s fees. When a party proves a breach of contract and resulting damages, he or she is entitled to attorney’s fees. TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (Vernon 1997); Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex.1997) (“To recover attorney’s fees under Section 38.001, a party must (1) prevail on a cause of action for which attorney’s fees are recoverable, and (2) recover damages.”). Here, Modelist recovered damages in a contract cause of action; thus, he is also entitled to recover his attorney’s fees. Cole’s Clean Scene Carwash, Inc. v. Hubbard, 76 S.W.3d 784, 787 n. 4 (Tex.App.—Houston [14th Dist.] 2002, no pet.) (stating award of attorney’s fees is mandatory under section 38.001 when party proves breach of contract). Accordingly, Dixon’s sole issue is overruled.

The trial court’s judgment is affirmed.

KEM THOMPSON FROST, Justice,

concurring.

I respectfully concur in the court’s judgment.

Damages

Appellant Joseph Dixon asserts that the trial court erred in denying his motion for judgment notwithstanding the verdict because appellee Shelton R. Modelist did not “prove an essential element of an action for breach of contract: to-wit: [sic] that he sustained damages, as a result of Dixon’s failure to comply with the agreement....” To reject this asserted error this court need not address whether the recovery of past damages is a prerequisite for the recovery of future damages in a contract case.

There was evidence before the jury that Dixon’s failure to comply with his agreement to construct the driveway with proper drainage resulted in damages to Modelist based on a bid that Modelist received as to how much it would cost him in the future to repair the improper drainage in the driveway. The jury found that Dixon had failed to comply with his agreement to construct the driveway with proper drainage and that $9,700, if paid now in cash, would fairly and reasonably compensate Modelist for his damages that resulted from such failure to comply. Although the jury did find that the $9,700, in reasonable probability, would be sustained in the future, it did so in the context of an instruction that the jury consider as an element of possible damages “[t]he reasonable and necessary cost to remove and replace the driveway, or otherwise repair the improper drainage in the driveway.” At the time of trial Modelist had not yet incurred any cost regarding the repair of the driveway. Therefore, the jury’s finding that Modelist would sustain in the future an expense of $9,700 reflects the reality that Modelist had not yet incurred this cost and does not conflict with the jury’s finding that this amount constitutes damages that resulted from Dixon’s failure to comply. In sum, given both the damage evidence at trial and the jury’s findings based on that evidence, Modelist proved he had sustained damages as a result of Dixon’s failure to comply with the agreement. Therefore, Dixon’s assertion of error lacks merit.

Attorney’s Fees

Though not mentioned by the majority, in his appellate brief Dixon seeks an award of attorney’s fees for his defense of Modelist’s contract claims. Dixon cites no rule or statute that he claims entitles him to such an award. Texas law provides that, as long as certain requirements are satisfied, a party that is awarded damages under a breach-of-contract claim may also recover its reasonable attorney’s fees from the hable party. See TEX. CIV. PRAC. & REM. CODE §§ 38.001, 38.002. Texas law does not provide that a party found liable for damages under its contract may recover from the successful claimant attorney’s fees for the unsuccessful defense of the contract claim. See id.

      . Dixon does not specifically attack the sufficiency of the evidence to support the future damages award in this case.

      . This is often referred to as the “reasonable probability” rule. E.g., GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 617 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). Under this rule, the award of future damages rests with the sound discretion of the jury. Id.

      . In Srite v. Owens-Illinois, Inc., the first court of appeals considered a similar issue. 870 S.W.2d 556 (Tex.App.—Houston [1st Dist.] 1993), rev’d sub nom on other grounds, 897 S.W.2d 765 (Tex.1995). In that case, the jury returned a verdict for the plaintiffs awarding only future damages and not past damages. Id. at 558. On appeal, the plaintiffs/appellants argued that the jury could not find liability and award future damages but not award past damages. Id. The court of appeals disagreed, held that the evidence was sufficient to support the verdict, and affirmed the judgment. Id. at 563.