Opinion

Opinion issued December 5, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00608-CV

____________

ATLANTIC LLOYDS INSURANCE COMPANY OF TEXAS,

CENTENNIAL INSURANCE COMPANY, ATLANTIC MUTUAL

INSURANCE COMPANY, BARRY BRADY, AND THOMAS GERVASIO,

Appellants

V.

SUE BUTLER, SHEILA CAULEY, BRAD GODWIN, GAYLE GODWIN,

INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE

ESTATE OF PAUL GODWIN, DECEASED, DELORES HARDY,

MARILYN SAVAGE MARTINEZ, AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF HELEN JANICE SAVAGE, DECEASED, THOMAS

J. MAY, DEAN PICKRELL, NICOLA PICKRELL, INDIVIDUALLY AND

AS NEXT FRIEND OF DANIEL PICKRELL, ISAAC PINEDA, ALTA

SELF, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF

THE ESTATE OF CLIFTON SELF, DECEASED, MARY THOMAS,

DIANNE THOMPSON, OLLIE MAE WASHINGTON, DAVID SCHNAKE,

MELVIN THORNTON, WILLIE STAFFORD, AND DAVID PRINCE,

Appellees

* * * * *

SUE BUTLER, SHEILA CAULEY, BRAD GODWIN, GAYLE GODWIN,

INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE

ESTATE OF PAUL GODWIN, DECEASED, DELORES HARDY,

MARILYN SAVAGE MARTINEZ, AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF HELEN JANICE SAVAGE, DECEASED, THOMAS

J. MAY, DEAN PICKRELL, NICOLA PICKRELL, INDIVIDUALLY AND

AS NEXT FRIEND OF DANIEL PICKRELL, ISAAC PINEDA, ALTA

SELF, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF

THE ESTATE OF CLIFTON SELF, DECEASED, MARY THOMAS,

DIANNE THOMPSON, OLLIE MAE WASHINGTON, DAVID SCHNAKE,

AND MELVIN THORNTON, Appellants

V.

ATLANTIC LLOYDS INSURANCE COMPANY OF TEXAS,

CENTENNIAL INSURANCE COMPANY, ATLANTIC MUTUAL

INSURANCE COMPANY, BARRY BRADY, THOMAS GERVASIO, AND

H.R. MANAGEMENT COMPANY, Appellees

* * * * *

H.R. MANAGEMENT COMPANY, Appellant

V.

SUE BUTLER, SHEILA CAULEY, BRAD GODWIN, GAYLE GODWIN,

INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE

ESTATE OF PAUL GODWIN, DECEASED, DELORES HARDY,

MARILYN SAVAGE MARTINEZ, AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF HELEN JANICE SAVAGE, DECEASED, THOMAS

J. MAY, DEAN PICKRELL, NICOLA PICKRELL, INDIVIDUALLY AND

AS NEXT FRIEND OF DANIEL PICKRELL, ISAAC PINEDA, ALTA

SELF, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF

THE ESTATE OF CLIFTON SELF, DECEASED, MARY THOMAS,

DIANNE THOMPSON, OLLIE MAE WASHINGTON, DAVID SCHNAKE,

MELVIN THORNTON, AND ZURICH INSURANCE COMPANY, Appellees

On Appeal from the 269th District Court

Harris County, Texas

Trial Court Cause No. 96-50493

O P I N I O N

These appeals arise from the trial court’s rulings on multiple motions for

summary judgment, which disposed of all of the parties’ claims, counterclaims, and

third-party claims made in connection with a 1993 settlement agreement in a toxic-tort lawsuit.

The plaintiffs below, Sue Butler, Sheila Cauley, Brad Godwin, Gayle Godwin,

individually and as personal representative of the estate of Paul Godwin, deceased,

Delores Hardy, Marilyn Savage Martinez, as personal representative of the estate of

Helen Janice Savage, deceased, Thomas J. May, Dean Pickrell, Nicola Pickrell,

individually and as next friend of Daniel Pickrell, Isaac Pineda, Alta Self,

individually and as personal representative of the estate of Clifton Self, deceased,

Mary Thomas, Dianne Thompson, Ollie Mae Washington, David Schnake, and

Melvin Thornton (collectively, “the plaintiffs”), challenge the trial court’s rendition

of summary judgment on their claims in favor of the defendants below, Atlantic

Lloyds Insurance Company of Texas (Atlantic Lloyds), Centennial Insurance

Company (Centennial), Atlantic Mutual Insurance Company (Atlantic Mutual), H.R.

Management Company (HRM), Barry Brady, and Thomas Gervasio (collectively,

“the defendants”). The plaintiffs also challenge the trial court’s denial of their motion

for summary judgment on their claim for breach of the 1993 settlement agreement.

In five issues, the plaintiffs contend that the trial court erred in granting

summary judgment for the defendants on the plaintiffs’ claims for breach of the 1993

settlement agreement, fraudulent inducement, conspiracy to defraud, negligent

misrepresentation, promissory estoppel, quantum meruit, breach of insurance

contracts, breach of the duty of good faith and fair dealing, and violations of the

Texas Insurance Code

; in granting summary judgment as to motions that had not

been properly set or heard; and in ruling that certain documents previously produced

in discovery were privileged.

Defendants Atlantic Lloyds and Centennial contend, in two issues, that the trial

court erred in granting summary judgment for the plaintiffs on the defendant’s

counterclaims for fraud, conspiracy to defraud, and unjust enrichment brought against

the plaintiffs and their former attorney, David Prince.

We affirm.

Factual and Procedural Background

In 1987, the Texas Department of Agriculture (TDA), pursuant to an

investigation, determined that maintenance workers had used chlordane

in 1986 and

1987 at the Fondren Green apartment complex in Houston. Westwood Savings and

Loan Association (Westwood) owned the complex, and HRM managed the complex

until January 1, 1987, when RFG Management (“RFG”) took over management.

Beginning in 1988, several former residents and employees of the complex

filed lawsuits against several defendants, asserting personal injury and related claims

based on their exposure to the chemical. These suits were ultimately consolidated in

federal district court (“the underlying lawsuit”).

Westwood, HRM and RFG were

among the defendants in the underlying lawsuit.

Westwood held an insurance policy from Zurich Insurance Company (Zurich) ,

which provided coverage to any person or organization that managed Westwood’s

property. In settlement of the claims presented against Westwood and RFG, Zurich

tendered the $1 million limits of its policy to the plaintiffs. Zurich then withdrew

from defending HRM.

HRM held three insurance policies: (1) a $300,000 primary coverage policy

issued by Atlantic Lloyds; (2) a $15 million umbrella policy issued by Centennial,

which expired on September 10, 1986; and (3) a $10 million umbrella policy issued

by Centennial under which coverage began following the expiration of the $15

million policy. Atlantic Mutual owns Centennial and is the parent company and

general managing agent for both Centennial and Atlantic Lloyds. Barry Brady was

a claims handler for Atlantic Mutual who was assigned to the underlying litigation,

and Thomas Gervasio was Brady’s supervisor.

In 1993, following lengthy settlement negotiations and two mediations, the

plaintiffs, represented at that time by attorneys David Prince and John O’Quinn,

settled their claims against HRM in the underlying lawsuit. It is undisputed that

insurance coverage was an important issue for the plaintiffs. Atlantic Lloyds and

Centennial contended that the $15 million policy did not apply to the plaintiff’s

claims. Nevertheless, there was no coverage question as to the $300,000 policy and

the $10 million policy. As part of the settlement, HRM, through its insurers, initially

paid approximately $530,000 to settle the claims of Daniel Pickrell, a minor. After

further negotiations with O’Quinn and Prince, HRM paid $9,759,562 to settle the

remaining plaintiffs’ claims and received releases from all of the plaintiffs.

Also in 1993, and following the settlement of the underlying lawsuit, HRM

sued Zurich in federal district court for alleged wrongful settlement practices. HRM

a sserted that it was an additional insured under the Zurich policy and that Zurich had

wrongfully exhausted the limits of the policy without settling any of the claims

brought against HRM. The federal district court granted summary judgment in favor

of Zurich on HRM’s claims, and the court of appeals affirmed the judgment.

The plaintiffs filed the instant suit

against the defendants in 1996, asserting

that the defendants breached the 1993 settlement agreement and fraudulently induced

the plaintiffs into settling their claims by misrepresenting the amount of insurance

available for settlement. Specifically, the plaintiffs alleged that the agreement with

HRM was reached in accord with the plaintiffs’ demand to settle their claims for the

full amount of the remaining policy limits of all policies covering HRM for which

coverage had not been denied. The plaintiffs alleged that the attorneys for HRM

falsely represented to O’Quinn and Prince that only $10.3 million in coverage was

available for settlement because coverage under HRM’s $15 million policy had been

denied. The plaintiffs contended, in part, that coverage under the $15 million policy

was not formally denied and that the settlement check delivered to them was drafted

against the $15 million policy.

Atlantic Lloyds and Centennial filed counterclaims against the plaintiffs and

Prince, asserting that the underlying lawsuit was a fraudulent scheme engineered by

Prince and others to defraud HRM and its insurers and that the plaintiffs had

exaggerated or falsely represented their injuries and damages. These counterclaims

were based, in part, on a 1995 sworn statement given by a former employee of the

Fondren Green apartment complex, Willie Stafford, who admitted that he had sprayed

chlordane in some of the units at the complex. In his 1995 statement, Stafford

testified that he was provided money and cocaine to help recruit additional plaintiffs

for the underlying lawsuit and that he was paid by Prince to exaggerate his testimony

concerning the number of apartments that he had actually sprayed with chlordane.

Atlantic Lloyds and Centennial also produced testimony from other witnesses

allegedly corroborating the allegations made by Stafford.

The parties filed multiple summary judgment motions on numerous issues, and,

after several oral hearings, the trial court granted summary judgment in favor of the

defendants on all of the plaintiffs’ claims and summary judgment for the plaintiffs on

the counterclaims asserted by Atlantic Lloyds and Centennial. The trial court entered

a “global” final judgment on July 11, 2001.

Standard of Review

A party moving for summary judgment has the burden of proving that there is

no genuine issue of material fact and that the movant is entitled to judgment as a

matter of law. Tex. R. Civ. P . 166a(c); Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546,

548 (Tex. 1985); Farah v. Mafrige & Kormanik, 927 S.W.2d 663, 670 (Tex.

App.—Houston [1st Dist.] 1996, no writ). When deciding whether there is a

disputed, material fact issue precluding summary judgment, evidence favorable to the

non-movant will be taken as true. Nixon, 690 S.W.2d. at 548-49 . Every reasonable

inference must be indulged in favor of the non-movant and any doubts resolved in its

favor. Id. at 549 . When a defendant moves for summary judgment, it must either (1)

disprove at least one element of the plaintiff’s cause of action or (2) plead and

conclusively establish each essential element of its affirmative defense, thereby

defeating the plaintiff’s cause of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.

1995); Farah, 927 S.W.2d at 670 .

Here, none of the pertinent summary judgment orders specifies the grounds

upon which the trial court relied. Therefore, on appeal, a non-movant is required to

show that each summary judgment ground alleged was insufficient to support

summary judgment. Star-Telegram, Inc. v. Doe , 915 S.W.2d 471, 473 (Tex. 1995).

Accordingly, we will affirm any summary judgment order if any of the grounds

presented in the supporting motion is meritorious. Harwell v. State Farm Mut. Auto.

Ins. Co. , 896 S.W.2d 170, 173 (Tex. 1995); Carr v. Brasher , 776 S.W.2d 567, 569

(Tex. 1989).

When, as here, both parties move for summary judgment, the appealing party

may challenge the denial of its own motion, as well as the judgment in favor of the

prevailing party. CU Lloyd’s v. Feldman , 977 S.W.2d 568, 569 (Tex. 1998). Each

party must carry its own burden, however, both as movant and, in response to the

other party’s motion, as non-movant. Id .; James v. Hitchcock Indep. Sch. Dist. , 742

S.W.2d 701, 703 (Tex. App.—Houston [1st Dist.] 1987, writ denied).

The Plaintiffs’ Appeal

Breach of the 1993 Settlement Agreement

In their first issue, the plaintiffs contend that the trial court erred in granting

summary judgment against them, instead of in their favor, on their claim that the

defendants breached the 1993 settlement agreement. They argue that the trial court’s

procedures were “fatally flawed”; that Atlantic Lloyds, Centennial and HRM

breached the 1993 settlement agreement as a matter of law; and that, alternatively, the

summary judgment evidence established an issue of material fact as to whether the

agreement was for “policy limits or a sum certain.”

Procedural Issue

In an initial procedural issue, the plaintiffs argue that, “without notice or

hearing,” the trial court improperly granted summary judgment for the defendants on

the plaintiffs’ claim for breach of the 1993 settlement agreement. See Tex. R. Civ.

P . 166a(c).

In May 1999, the defendants filed a summary judgment motion on the

plaintiffs’ claim for breach of the agreement, and the plaintiffs filed their response in

January 2000. A court master, appointed to rule on pre-trial matters, initially denied

the defendants’ motion in March 2000. Subsequently, the trial court, at the outset of

a hearing that it conducted on August 18, 2000, stated that it had considered the

issues presented in the defendant’s motion, the plaintiffs’ response, and the summary

judgment record. The trial court then, on the record, pronounced its ruling that, as a

matter of law, the 1993 settlement agreement was for a “sum specific,” $9,759,362,

and not for “policy limits.” The plaintiffs’ counsel then presented argument and

authorities to the court in support of their position and in opposition to the

defendants’ motion. Following its ruling, the trial court asked the parties, “Am I clear

on that? Okay. So that’s my ruling here this afternoon on that issue.” On October

27, 2000, the trial court signed its order granting the defendants’ motion and denying

the plaintiffs’ motion on the plaintiffs’ claim for breach of the agreement.

The record indicates that, at the hearing, the plaintiffs’ counsel made no

objection regarding a lack of adequate notice and did not raise such objection at any

time thereafter. Accordingly, we hold that any such error was waived. See Tex. R.

App. P . 33.1; White v. Wah , 789 S.W.2d 312, 319 (Tex. App.—Houston [1st Dist.]

1990, no writ).

The plaintiffs also argue that the result of the trial court’s July 11, 2001

“global” final judgment was, in effect, to grant the plaintiffs’ own motion for

summary judgment in favor of their claim against the defendants for breach of the

terms of the 1993 settlement agreement. We disagree. Such an implied ruling is

contrary to the trial court’s oral pronouncements from the bench at the August 2000

hearing and to its written October 27, 2000 ruling granting the defendants’ motion

and denying the plaintiffs’ motion . Moreover, in its final judgment, the trial court

granted only “all outstanding motions for summary judgment.” As a result of the trial

court’s earlier ruling denying the plaintiffs’ motion for summary judgment for breach

of the settlement agreement, the plaintiffs’ motion was no longer an “outstanding”

motion and thus could not have been granted by the trial court’s final judgment.

Terms of the 1993 Settlement Agreement

One of the grounds asserted in the defendants’ summary judgment motion as

to the plaintiff’s breach-of-contract claim was that, as a matter of law, the terms of the

1993 settlement agreement specified a sum certain, $9,759,362, representing the

remaining available limits of the $10 million policy, and that the agreement did not

encompass the limits of the $15 million policy.

In contrast, the plaintiffs responded, and contend on appeal, that the summary

judgment evidence established, as a matter of law, that they had an oral agreement

with the defendants to settle all claims against HRM for all available, unexhausted

policy limits or, alternatively, that the summary judgment evidence raised a material

fact question on this issue.

The law in regard to contract interpretation is clear and well-settled. The

interpretation of an unambiguous contract is a question of law, which is reviewed de

novo. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co. , 995 S.W.2d 647, 650-51 (Tex.

1999). Whether a contract is ambiguous is also a question of law. See Columbia Gas

Transmission Corp. v. New Ulm Gas, Ltd ., 940 S.W.2d 587, 589 (Tex. 1996). To

determine whether a contract is ambiguous, we look at the agreement as a whole in

light of the circumstances present when the parties entered into the contract. Nat’l

Union Fire Ins. Co. v. CBI Indus., Inc. , 907 S.W.2d 517, 520 (Tex. 1995). We

examine and consider the entire writing in an effort to harmonize and to give effect

to all the provisions of the contract so that none will be rendered meaningless. Id.

No single provision will control; rather, all provisions must be considered with

reference to the whole instrument. Id.

Our primary concern in construing a written contract is to ascertain the true

intent of the parties as expressed in the instrument. Forbau v. Aetna Life Ins. Co. ,

876 S.W.2d 132, 133 (Tex. 1994) . If a written contract is worded in such a way that

it can be given a definite or certain legal meaning, then the contract is not ambiguous.

CBI Indus. , 907 S.W.2d at 520 . A contract will become ambiguous only if its

meaning is uncertain or if it is subject to two or more reasonable interpretations. Id.

An ambiguity does not arise simply because the parties advance conflicting

interpretations of the contract. Forbau , 876 S.W.2d at 134 .

Moreover, we may not consider extrinsic evidence to contradict or to vary the

meaning of unambiguous language in a written contract in order to create an

ambiguity. Sears, Roebuck & Co. v. Commercial Union Ins. Corp ., 982 S.W.2d 151,

154 (Tex. App.—Houston [1st Dist.] 1998, no pet.). A court may consider the

parties’ interpretations of the contract through extrinsic or parol evidence only after

a contract is first determined to be ambiguous. See Friendswood Dev. Co. v. McDade

+ Co ., 926 S.W.2d 280, 283 (Tex. 1996). An “ambiguity must become evident when

the contract is read in context of the surrounding circumstances, not after parol

evidence of intent is admitted to create an ambiguity.” CBI Indus. , 907 S.W.2d at

521 .

In support of their argument, the plaintiffs direct us to deposition and affidavit

testimony of O’Quinn and Prince that they reached an oral agreement with HRM’s

attorneys to settle the plaintiffs’ claims for “all available policy limits.” The plaintiffs

also point to a January 6, 1993 settlement demand letter sent from O’Quinn to

Thomas Alleman, an attorney who represented HRM in the underlying lawsuit.

O’Quinn’s letter reads as follows:

As a result of your conversation with Mr. Prince about settling

this case, Mr. Prince and I have met and reached a decision.

From his conversation with you, Mr. Prince was led to believe

that the insurance carrier which had the coverage for your client up to

September 10, 1986 in the amount of $15,000,000 has denied coverage.

Mr. Prince was further led to believe that, therefore, the only available

coverage to pay our clients at this time would be the insurance after

September 1986, in the amount of $10,300,000 less the $500,000 paid

to Daniel Pickrel [sic], leaving a remaining amount of $9,800,000.

I believe our clients’ claims have value substantially in excess of

the $12,000,000 offer we previously made during the mediation process.

The punitive damages alone should exceed that figure, and the actual

damages themselves exceed that figure. Our clients are facing a lot of

extra expense in preparing for the upcoming trial and in presenting their

case during the trial. Therefore, we have reluctantly decided to make

this one final offer in an effort to settle the case.

If the insurance carriers you say have the only coverage for these

claims will pay the entire amount of their remaining coverage, which we

understand to be at least $9.8 million, we will settle all our remaining

claims and causes of action against your clients and give a general

release, with court costs to be paid by the defendants.

I want to emphasize we are not making this offer because we

think this is sufficient compensation or damages for these claims, but

rather, in an effort to avoid the additional expense and then having to

fight about the coverage. Therefore, if your insurance carriers or clients

wish to accept this offer, they need to do so immediately without delay,

because once we spend additional monies preparing this case for trial,

our position will probably change. Consequently, we ask for an answer

within the next ten (10) days.

On February 9, 1993, in response to an intervening settlement offer, Prince sent

a demand letter to Alleman, which read as follows:

This letter will confirm that Mr. O’Quinn and I, on behalf of our

twenty-one clients, reject H.R. Management Co.’s settlement offer of

Eight Million, Six Hundred Thousand Dollars ($8,600,000).

Our settlement demand is Nine Million, Eight Hundred Thousand

Dollars ($9,800,000.00) as per Mr. O’Quinn’s letter of January 6, 1993.

This is our final settlement demand and it will not remain open much

longer. Once the Response is filed on the Summary Judgment Motion,

our settlement demand will be withdrawn and our clients have agreed

with Mr. O’Quinn’s decision that the case will be tried.

That same day, Alleman sent a letter to O’Quinn and Prince, which read as

follows:

This will confirm that we have agreed to settle all claims and

demands by your clients against H. R. Management Company for the

sum of Nine Million, Seven Hundred Fifty[-]Nine Thousand, Five

Hundred Sixty[-]Two Dollars ($9,759,562.00) . David and I will prepare

the appropriate releasing documents using the general format we relied

upon in the Daniel Pickrell matter.

I would appreciate it if one of you would sign a copy of this letter

and return it to me confirming this agreement at your earliest

convenience.

(Emphasis added.) Prince signed this letter on a signature line beneath the word

“AGREED” and returned it to Alleman. In March 1993, Prince delivered to Alleman

signed and notarized releases from the plaintiffs in exchange for a settlement check

totaling $9,759,562.

The plaintiffs argue that the February 9, 1993 letter from Alleman to Prince did

not constitute a complete, integrated settlement agreement because it lacked essential

terms and, therefore, the parol evidence rule did not apply to bar extrinsic evidence

of the parties’ intentions and oral representations concerning the terms of the

settlement agreement. However, this Court has previously emphasized that:

[O]ne of the exceptions to the general [parol evidence] rule is that if the

written instrument itself shows to be either ambiguous or incomplete,

parol testimony is admissible to show what the real contract was to the

extent necessary to remove the ambiguity, and to make the contract

complete in its terms which show to be incomplete .

Warren Bros. Co. v. AAA Pipe Cleaning Co. , 601 S.W.2d 436, 438 (Tex. Civ.

App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.) (quoting Magnolia Warehouse &

Storage Co. v. Davis & Blackwell , 195 S.W. 184, 185 (Tex. 1917)) (emphasis added).

In other words, “[w]here a writing is incomplete or ambiguous, parol evidence is

admissible to explain the writing or to assist in the ascertainment of the true

intentions of the parties insofar as the parol evidence does not alter or contradict any

part of the written memorandum in question .” Warren Bros ., 601 S.W.2d at 438-39

(emphasis added).

Here, the February 9, 1993 letter from Alleman to Prince, subsequently signed

and agreed to by Prince, expressly “confirmed” an agreement to settle “all claims and

demands by [the plaintiffs] against [HRM] for the sum of [$9,759,562].” It is true

that the letter did not memorialize a time for performance, the specific names of all

the settling parties, or the payor of the settlement funds. However, the fact that such

terms were missing from the face of the agreement was not fatal and did not render

the agreement ambiguous. Rather, the agreement was merely incomplete, and the

trial court could consider parol evidence for the limited purpose of “mak[ing] the

contract complete in its terms which show to be incomplete.” See id. at 438 .

When no specific time for performance is stated in a contract, the law will

imply a reasonable time. CherCo Props., Inc. v. Law, Snakard & Gambill, P.C. , 985

S.W.2d 262, 266 (Tex. App.—Fort Worth 1999, no pet.); see Moore v. Dilworth , 179

S.W.2d 940, 942 (Tex. 1944). In fact, the parties did, and obviously intended to,

fulfill the settlement agreement within a reasonable time after February 9, 1993. In

regard to Alleman’s proposal, accepted by Prince, to settle “all claims and demands

by your clients,” there can be no reasonable question that the attorneys for both the

plaintiffs and for HRM were aware of the identities of the individual plaintiffs and

the nature of their specific claims. In regard to the question of the identity of the

payor to fund the settlement, it is evident from the summary judgment record that the

parties understood such payors to be either HRM or its “insurance carriers,” as

referenced by O’Quinn in his January 6, 1993 letter.

The plaintiffs concede in their briefing that, “In the case at bar, all parties agree

that there was a contract. The issue here is what are the terms of the contract . . . .”

They argue that an oral agreement was reached between their attorneys and the

attorneys for the defendants to settle the plaintiffs’ claims in the underlying lawsuit

for “all available” insurance policy limits covering HRM and that such agreement was

incompletely memorialized by the exchange of correspondence culminating in the

February 9, 1993 letter. The plaintiffs also concede that, in settling their claims, they

“knew they were not receiving any of the $15 million policy,” but they assert that

they “mistakenly believed they were receiving all available insurance when they were

not.”

However, a lack of clarity in the language chosen by the parties does not

suffice to render an agreement ambiguous. Universal C.I.T. Credit Corp. v. Daniel ,

243 S.W.2d 154 , 157 (Tex. 1957). Rather, “[o]nly if the intention of the parties as

expressed on the face of the document is doubtful may the court resort to parol

evidence to resolve the doubt.” Massey v. Massey , 807 S.W.2d 391, 405 (Tex.

App.—Houston [1st Dist.] 1991), writ denied , 867 S.W.2d 766 (Tex. 1993). Again,

an ambiguity does not arise simply because the parties advance conflicting

interpretations of their agreement. See Forbau , 876 S.W.2d at 134 .

Here, the February 9, 1993 letter from Alleman, agreed to by Prince, did not

in any way memorialize an agreement to settle the plaintiffs’ claims for the limits of

“all available insurance” policies covering HRM. Rather, we hold that, as a matter

of law, the letter was an agreement to settle the plaintiffs’ claims for a sum certain,

$9,759,562 , in exchange for signed releases. The parol evidence on which the

plaintiffs rely would have, therefore, materially “alter[ed] or contradict[ed]” the

express terms of the 1993 settlement agreement. See Warren Bros ., 601 S.W.2d at

438-39 .

The plaintiffs also argue that, as an exception to the parol evidence rule,

extrinsic evidence may be used to show the existence of a mistake of fact concerning

the nature of the 1993 settlement agreement. The parol evidence rule does not apply

when it is alleged that, by reason of mutual mistake, “an agreement does not express

the real intention of the parties”; in such cases, extrinsic evidence may be admissible

to show the real agreement. Marcuz v. Marcuz , 857 S.W.2d 623, 627 (Tex.

App.—Houston [1st Dist.] 1993, no writ). When mutual mistake is alleged, the party

seeking relief must show what the parties’ true agreement was and that the instrument

incorrectly reflects that agreement because of a mutual mistake. Id. Texas courts

have held that unilateral mistake by one party, combined with knowledge of that

mistake by the other party, is equivalent to mutual mistake. Davis v. Grammar , 750

S.W.2d 766, 768 (Tex. 1988); Marcuz , 857 S.W.2d at 627 .

Here, the plaintiffs argue that the summary judgment record “conclusively

establishes mutual mistake.” However, the record presented does not show that the

“real intention” of the 1993 settlement agreement was to settle the plaintiffs’ claims

for the limits of all applicable policies covering HRM for which coverage had not

been formally denied. Rather, the agreement was, as we have held, for a sum certain.

Moreover, the summary judgment record does not support the conclusion that the

agreement was the result of a unilateral mistake, e.g. , a mistake on the part of the

plaintiffs as to the terms of the settlement, of which the defendants were aware. The

parties dispute the issue of whether counsel for HRM had ever represented to

O’Quinn or Prince that coverage under the $15 million policy had been formally

“denied” or had simply told O’Quinn and Prince that coverage under this policy was

“not available” for purposes of negotiating any final settlement. Prince and O’Quinn

had copies of all policies covering HRM and could have made their own assessment

of whether coverage under the $15 million Centennial policy was “available.” From

the correspondence exchanged by the parties’ counsel, it is clear that, in either case,

to recover any sum greater than the $10.3 million tendered by the defendants in

settlement, the plaintiffs would have first had to take their claims to trial and to obtain

an excess verdict. Instead, the plaintiffs, on the advice of Prince and O’Quinn, chose

to settle their claims, which O’Quinn acknowledged that they were doing “in an effort

to avoid the additional expense [of preparing for and prosecuting their claims at trial]

and then having to fight about the coverage.”

Thus, we hold that the trial court did not err in determining that the summary

judgment record did not establish as a matter of law that the 1993 settlement

agreement was the result of a mutual or unilateral mistake. Similarly, we also

conclude that the evidence does not raise a fact question as to whether the parties’

settlement agreement was the result of a mutual or unilateral mistake.

Because the 1993 settlement agreement was an agreement to settle the

plaintiffs’ claims for a sum certain, $9,759,562 , in exchange for signed releases, we

hold that the trial court did not err in determining that the defendants did not breach

the terms of the agreement by delivering settlement funds to the plaintiffs in the

amount of $9,759,562. Accordingly, we further hold that the trial court did not err

in granting summary judgment for the defendants, instead of in favor of the plaintiffs,

on the plaintiffs’ claim that the defendants breached the 1993 settlement agreement.

We overrule the plaintiffs’ first issue .

Quantum Meruit

In part of their second issue, the plaintiffs contend that the trial court erred in

granting summary judgment against them on their claim for quantum meruit because

genuine issues of material fact existed as to this claim . Their quantum meruit claim

was raised as an alternative ground of recovery to their breach-of-contract claims. As

the plaintiffs acknowledge, they could recover in quantum meruit only in the absence

of an express contract. See Murray v. Crest Constr., Inc. , 900 S.W.2d 342, 345 (Tex.

1995). Here, as we have held above, the material terms of the 1993 settlement

agreement were expressly set forth in the February 9, 1993 letter from Alleman to

Prince. Therefore, we hold that the trial court did not err in granting summary

judgment against the plaintiffs on their quantum meruit claim.

We overrule that portion of the plaintiffs’ second issue concerning their

quantum meruit claim.

Fraud, Misrepresentation, Estoppel

In their second issue, the plaintiffs also contend that the trial court erred in

rendering summary judgment against them on their claims for fraudulent inducement,

negligent misrepresentation, and promissory estoppel because genuine issues of

material fact existed as to these claims and because the “disclaimer of reliance”

provision of the releases signed by the plaintiffs does not preclude these claims.

One of the grounds asserted in the defendants’ summary judgment motion as

to these claims was that the plaintiffs disclaimed reliance on any allegedly fraudulent

representations made by the defendants by signing releases that contained a

“disclaimer of reliance” provision.

The plaintiffs’ fraudulent-inducement claims are, in essence, based on their

contention that they would never have entered into the 1993 settlement agreement had

they known that coverage under the $15 million policy had not been formally

“denied” and that, to the extent that the defendants represented that coverage under

this policy had been “denied,” such representations constituted fraud.

Texas law has long imposed a duty not to induce another to enter into a

contract through the use of fraudulent misrepresentations. Formosa Plastics Corp.

USA v. Presidio Eng’rs & Contractors, Inc. , 960 S.W.2d 41, 46 (Tex. 1998). This

legal duty is separate and independent from the duties established by the contract

itself; a party is not bound by a contract procured by fraud. Id .

A cause of action for fraud requires proof of “a material misrepresentation,

which was false, and which was either known to be false when made or was asserted

without knowledge of its truth, which was intended to be acted upon, which was

relied upon , and which caused injury.” Id. at 47 (quoting Sears, Roebuck & Co. v.

Meadows , 877 S.W.2d 281, 282 (Tex. 1994)) (emphasis added). Claims for negligent

misrepresentation and promissory estoppel also require proof of reliance as an

essential element. Thompson v. Deloitte & Touche, L.L.P. , 902 S.W.2d 13, 19 (Tex.

App.—Houston [1st Dist.] 1995, no writ) (“The elements of negligent

misrepresentation include a false representation made for the guidance of others who

rely on it and suffer damage.”); Leach v. Conoco, Inc. , 892 S.W.2d 954 , 959 n.2 (Tex.

App.—Houston [1st Dist.] 1995, writ dism’d w.o.j.) (“The elements of promissory

estoppel are as follows: (1) a promise; (2) foreseeability of reliance on the promise

by the promisor; and (3) substantial detrimental reliance by the promisee.”).

To defeat the summary judgment motion on their fraud claims, the plaintiffs

had to present evidence sufficient to raise a fact question as to whether the defendants

made material misrepresentations with the intent to induce the plaintiffs into settling

their claims. Here, the plaintiffs argue that the summary judgment evidence raised

a fact question as to whether the defendants materially misrepresented the amount of

insurance coverage available to fund any settlement of the plaintiffs’ claims. The

plaintiffs contend that the defendants’ representation that coverage under the $15

million Centennial policy had been denied was known, or should have been known,

by the defendants to be false at the time that it was made, was intended to be and was

relied upon by the plaintiffs, and caused the plaintiffs to be wrongly induced into

settling their claims.

Effect of the Disclaimer of Reliance

In support of their argument that the plaintiffs disclaimed reliance on any

allegedly fraudulent representations, the defendants rely chiefly on Schlumberger

Technology Corporation v. Swanson , 959 S.W.2d 171, 179-81 (Tex. 1997). The

Schlumberger court articulated its concern that parties should, under certain

circumstances, be able effectively to bring an end to a dispute by executing releases

disclaiming reliance as follows:

Parties should be able to bargain for and execute a release barring all

further dispute. This principle necessarily contemplates that parties may

disclaim reliance on representations. And such a disclaimer, where the

parties’ intent is clear and specific, should be effective to negate a

fraudulent inducement claim. As an example, a disclaimer of reliance

may conclusively negate the element of reliance, which is essential to a

fraudulent inducement claim. . . . The question is under which

circumstances such disclaimers are binding.

Id . at 179 (citations omitted).

In Schlumberger , the parties negotiated a buy-out of the Swansons’ interest in

a sea-diamond mining project. Id . at 174. According to the Swansons, during their

negotiations, Schlumberger represented to them that the project was neither

technologically feasible nor commercially viable, refused to give them any

information or data supporting these representations, and disputed the validity of the

Swansons’ rights and interests in the project. Id . As part of the negotiated buy-out,

the Swansons released Schlumberger from all causes of action, known or unknown,

and specifically agreed that they were not relying on any statements or representations

of Schlumberger, were relying on their own judgment, and had been represented by

counsel, who had explained the entire contents and legal consequences of the release.

Id . After Schlumberger subsequently sold its interest in the sea-diamond mining

project for a profit, the Swansons sued Schlumberger for fraudulently inducing them

to sell their interest at an undervalued price. Id . A jury found in favor of the

Swansons on all issues, but the trial court rendered a judgment notwithstanding the

verdict. Id . at 174-75. On appeal, the court of appeals reversed and rendered

judgment in accordance with the jury’s findings.

In reversing the court of appeals and reaching its holding that the language of

the release signed by the Swansons precluded all of their claims as a matter of law,

the Texas Supreme Court considered it significant that the parties (1) were

represented by “highly competent and able legal counsel,” (2) negotiated with each

other at arm’s length, (3) were “knowledgeable and sophisticated business players,”

(4) disagreed over the value of the mining project, and (5) entered into the release to

end their dispute about the value of the project. Id . at 180. In characterizing its

holding, the court noted as follows:

In sum, we hold that a release that clearly expresses the parties’ intent

to waive fraudulent inducement claims, or one that disclaims reliance

on representations about specific matters in dispute, can preclude a

claim of fraudulent inducement . We emphasize that a disclaimer of

reliance or merger clause will not always bar a fraudulent inducement

claim.

Id . at 181 (emphasis added). Therefore, in assessing the effect of the disclaimers at

issue in this case, we must analyze not only the language used, but also the particular

circumstances under which the disclaimers were executed. Id . at 179 (“The contract

and the circumstances surrounding its formation determine whether the disclaimer of

reliance is binding.”).

Here, the individual plaintiffs each signed a release and indemnity agreement

releasing HRM and Atlantic Lloyds from all existing and future claims. The releases

each contained the following disclaimer:

I expressly warrant and represent to the parties hereby released

and to each of them as a part of the consideration for the payment of the

above-mentioned sum of money that before executing this instrument,

I have fully informed myself of its terms, contents, conditions, and

effect; that in making this settlement I have had the benefit of the advice

of doctors and attorneys of my own choosing; and no promise or

representation of any kind has been made to me by the parties hereby

released or by anyone acting for them, except as is expressly stated in

this instrument. I have relied solely and completely upon my own

judgment, and the advice of my counsel in making this settlement ; and

I fully understand that this is a full, complete, and final release, and that

the sum of money mentioned above is all the money that is to be paid to

me by [HRM] as a result of the herein-described accident.

(Emphasis added.) Each release also bore a signature line, signed by Prince,

acknowledging that he had “fully and completely” explained the terms of the release

to each plaintiff before the release was signed.

The language of the disclaimer signed by the plaintiffs in this case tracks the

language of the disclaimer held to be effective by the Supreme Court in Schlumberger

and similarly expresses the parties’ intent unequivocally to disclaim reliance upon

representations by the defendants.

Additionally, although there is no evidence that

the individual plaintiffs were themselves “knowledgeable and sophisticated”

concerning the issues raised in the underlying litigation, there is no dispute that the

plaintiffs were represented by “highly competent and able legal counsel” who

negotiated at arm’s length with counsel for HRM.

The plaintiffs argue that the present case is distinguishable from Schlumberger

because, in that case, the Swansons sued over alleged misrepresentations concerning

the value of the mining project, which had been one of the subjects of the parties’

dispute and a central reason for the negotiated buy-out. The plaintiffs argue that, in

contrast, the defendants’ alleged misrepresentations as to the amount of available

coverage are not covered by the disclaimer in this case because such

misrepresentations were not a subject of the parties’ dispute. The plaintiffs assert that

“the ‘matter in dispute’ in the underlying lawsuit concerned chlordane poisoning and

damages, not insurance coverage.”

We disagree. The record presented here demonstrates that “the specific matters

in dispute” in the underlying litigation included the issues of whether HRM’s

coverage under the $15 million Centennial policy applied to any of the plaintiffs’

claims and whether such coverage would form any part of a negotiated settlement of

the plaintiffs’ claims. The testimony and correspondence contained in the summary

judgment record indicate that a sharp disagreement existed between counsel for the

plaintiffs and counsel for HRM on these issues. Additionally, O’Quinn testified that,

in his opinion, HRM possessed sufficient assets to satisfy a judgment in excess of the

limits of its insurance policies. Moreover, as noted above, O’Quinn’s January 6, 1993

letter conveyed that the plaintiffs’ $9.8 million settlement demand was made in an

effort to avoid the expense of a trial and “having to fight about the coverage.” Here,

as in Schlumberger , it is evident that the parties in the underlying litigation entered

into a settlement agreement to resolve, in part, their disagreement about the issue of

available coverage.

The plaintiffs also argue that the present case is controlled by this Court’s

opinion in Decker v. Urrutia , 965 S.W.2d 26 (Tex. App.—Houston [1st Dist.] 1998),

rev’d , 992 S.W.2d 440 (Tex. 1999). In Decker , which involved an automobile

accident, this Court reversed a summary judgment granted by the trial court in favor

of a driver of a rental truck and the truck rental company. Id . at 27. In doing so, we

concluded that, because certain insurance provisions contained in the rental

agreement were not written on forms prepared by the State Board of Insurance, such

provisions were void, were not incorporated into the insurance policy, and did not

serve to limit the amount of insurance available to pay the accident victim’s claim.

Id . at 28-29. We held, therefore, that the summary judgment evidence presented was

sufficient to raise a fact question regarding the plaintiff’s affirmative defense of

mutual mistake, and we remanded the case to the trial court. Id . at 29.

The plaintiffs rely on our opinion on rehearing in Decker , in which we denied

the motions for rehearing filed in that case. Id . at 30. In our opinion on rehearing,

we distinguished Schlumberger and noted that a disclaimer signed by the parties in

Decker did not bar recovery because there was no dispute between the parties as to

the amount of available insurance coverage. Id. at 30.

Because the record here

established that one of the matters in dispute between the parties was the availability

of coverage under the $15 million Centennial policy, we find Decker distinguishable

for the same reasons that we find the court’s reasoning in Schlumberger applicable.

We hold that, based on this record, the disclaimer contained in the releases

signed by the plaintiffs conclusively negated the element of reliance on any

representations concerning the availability of coverage under HRM’s $15 million

Centennial policy to fund a settlement of the underlying litigation.

Accordingly, we

further hold that the trial court did not err in granting summary judgment for HRM

and Atlantic Lloyds on the plaintiffs’ claims for fraudulent inducement, negligent

misrepresentation, and promissory estoppel.

Scope of the Disclaimer of Reliance

The plaintiffs also contend that, because the releases signed in this case do not

specifically mention defendants Atlantic Mutual, Centennial, Brady, or Gervasio,

these defendants cannot claim any benefit from the releases’ disclaimer of reliance.

Under Texas law, the mere naming of a “general class of tortfeasors” in a

release does not discharge the liability of each member of that class. Duncan v.

Cessna Aircraft Co. , 665 S.W.2d 418 , 419-20 (Tex. 1984). “A tortfeasor can claim

the protection of a release only if the release refers to him by name or with such

descriptive particularity that his identity or his connection with the tortious event is

not in doubt.” Id . at 420. In Duncan , the court held ineffective a release that

purported to discharge claims against not only a named airplane owner and its

employees, but also against “any other corporations or persons whomsoever

responsible therefor, whether named herein or not . . . .” Id . at 418.

The plaintiffs argue that the provisions of the release, including the disclaimer

of reliance, apply only to those parties particularly described in the release, namely,

“[HRM], all its affiliated companies, parent companies, subsidiaries, officers, agents,

and employees, its insurer [Atlantic Lloyds], and all its affiliated companies, officers,

agents, and employees.”

We must presume that parties to a contract intend every contractual provision

to have some meaning. Schlumberger , 959 S.W.2d at 180 ; CBI Indus. , 907 S.W.2d

at 520 . Therefore, in determining the proper scope of the disclaimer, we look first to

the language of the disclaimer itself, which recites that “no promise or representation

of any kind has been made to me by the parties hereby released or by anyone acting

for them .” (Emphasis added.) Unlike the release held ineffective in Duncan , the

disclaimer of reliance at issue here did not attempt to include a virtually limitless

“general class of potential tortfeasors.” 665 S.W.2d at 419. Rather, by its plain

language, the disclaimer applies to HRM, Atlantic Lloyds, and those specific parties

who had the authority to act on behalf of HRM or Atlantic Lloyds in connection with

the underlying lawsuit.

Generally, an insurer has a contractual obligation to act on behalf of its insured

to retain counsel and to participate in the defense, and possibly settlement, of a

lawsuit against its insured if the petition states a claim within the policy coverage.

See Nat’l Union Fire Ins. v. Merchant’s Fast Motor Lines Inc. , 939 S.W.2d 139, 141

(Tex. 1997). As noted above, it is undisputed that two of HRM’s insurance policies

were issued by Centennial, which was itself owned by Atlantic Mutual. It is also

undisputed that, at all relevant times, Brady and Gervasio were employed by Atlantic

Mutual. Brady was a claims handler assigned to the underlying litigation, and

Gervasio was Brady’s supervisor. Here, the plaintiffs direct us to no evidence in the

record that, at any relevant time, Centennial, as HRM’s insurer, Atlantic Mutual, as

Centennial’s parent company, and Brady and Gervasio, as employees of Atlantic

Mutual with the actual responsibility of handling the plaintiffs’ claims, were not

acting on behalf of HRM in conformance with this contractual duty.

Based on the record presented, we hold that, by limiting its application to the

specific parties who could and did act on behalf of HRM and Atlantic Lloyds in the

underlying lawsuit, the disclaimer of reliance was not so broad as simply to name a

“general class of tortfeasors” and described Centennial, Atlantic Mutual, Brady, and

Gervasio with sufficient particularity as to include those defendants within the scope

of the disclaimer. Accordingly, we further hold that the trial court did not err in

granting summary judgment for these defendants on the plaintiffs’ claims for

fraudulent inducement, negligent misrepresentation, and promissory estoppel.

We overrule the portion of plaintiffs’ second issue concerning their claims for

fraud, negligent misrepresentation, and promissory estoppel.

Insurance Code Claims

In their third issue, the plaintiffs contend that the trial court erred in granting

summary judgment for the defendants on the plaintiffs’ claims for breach of insurance

contract, breach of the duty of good faith and fair dealing, and violations of article

21.21 of the Texas Insurance Code.

The plaintiffs argue that

[o]nce the insurance companies consented to the settlement, [the

plaintiffs] became third-party beneficiaries, and the insurance companies

owed a direct contractual duty to deal in good faith with them.

Accordingly, by failing to pay all the insurance they had promised to

pay, they breached their duty of good faith and fair dealing as well as

Article 21.21 of the Texas Insurance Code.

The defendants sought summary judgment on these claims on the grounds that the

plaintiffs, as third-party claimants, lacked standing to assert such claims against

HRM’s insurers.

Article 21.21 prohibits an insurer from engaging in “unfair settlement

practices” with respect to a claim by “an insured or beneficiary.” Tex. Rev. Civ.

Stat. Ann . art. 21.21, § 4(10)(a) (Vernon Supp. 2004). Such unfair settlement

practices include misrepresenting a material fact or policy provision relating to

coverage at issue. Id . § 4(10)(a)(1) (Vernon Supp. 2004). However, article 21.21

expressly provides that claims based on unfair settlement practices are unavailable

to third-party claimants such as the plaintiffs. Id . § 4(10)(b) (Vernon Supp. 2004)

(“[T]his clause does not provide a cause of action to a third party asserting one or

more claims against an insured covered under a liability insurance policy.”); see also

Crown Life Ins. Co. v. Casteel , 22 S.W.3d 378 , 384 n.1 (Tex. 2000) (noting that “the

amended clause did not create a direct cause of action against an insurance carrier by

third parties whose claims were based on the liability of the insureds.”). As noted by

the Texas Supreme Court,

A third party claimant has no contract with the insurer or the insured,

has not paid any premiums, has no legal relationship to the insurer or

special relationship of trust with the insurer, and in short, has no basis

upon which to expect or demand the benefit of the extra-contractual

obligations imposed on insurers under [article] 21.21 with regard to their

insureds.

Allstate Ins. Co. v. Watson , 876 S.W.2d 145, 149 (Tex. 1994).

Here, it is undisputed that the plaintiffs did not purchase an insurance policy

from HRM’s insurers and that the plaintiffs were third-party claimants who asserted

claims against HRM covered by its insurance policy. Accordingly, we hold that the

plaintiffs have no standing to assert claims for breach of an insurance contract, breach

of the duty of good faith and fair dealing, or violations of article 21.21 based on any

conduct of HRM’s insurers prior to the settlement agreement. Thus, we further hold

that the trial court did not err in granting summary judgment in favor of the

defendants on these claims.

As noted above, the plaintiffs also argue that, after the settlement was reached

in the underlying lawsuit, they became third-party beneficiaries of HRM’s insurance

policies and assumed standing to bring suit for alleged violations of the contractual

and extra-contractual obligations owed by HRM’s insurers.

The plaintiffs argue that, under this Court’s decision in Hermann Hospital v.

National Standard Insurance Company , they had standing to present claims for

breach of the duty of good faith and fair dealing, breach of an insurance contract, and

violations of article 21.21. Id ., 776 S.W.2d 249, 252 (Tex. App.—Houston [1st Dist.]

1989, writ denied). In contrast to this case, in Hermann Hospital , a hospital sued a

patient’s insurance carrier over representations of coverage allegedly made by the

insurer, upon which representations the hospital relied in admitting and treating the

patient. Id . at 252. However, as this Court noted, that case involved a direct

relationship between the parties that is not presented here:

We find that as a practical matter, the relationship between insurance

companies and providers of health care is a direct one , with the health

care provider acting in reliance on the representations of coverage made

by the carriers. Hospitals and other health care providers must, and do,

rely upon the insurance carriers representations of coverage in making

their decisions regarding admission of potential patients. If insurance

coverage and benefits can be verified, the hospital will usually accept an

assignment of benefits to insure it is paid for any services rendered. If

insurance coverage and benefits cannot be verified, or if no coverage

exists, the medical provider can then make alternative financial

arrangements.

Id. (emphasis added). We conclude that Hermann Hospital is substantively

distinguishable.

The plaintiffs also rely on Getty Oil Company v. Insurance Company of North

America , for the proposition that “claimants become third party beneficiaries of

insurance once there is a judgment or settlement approved by the carriers.” Id ., 845

S.W.2d 794 (Tex. 1992). In Getty , the court addressed a situation in which a specific

insurance policy provision prohibited third-party claims against the insured or the

insurer until the insured’s liability was determined by a final judgment or agreement.

Id . at 801. The court noted, “We have held that when such . . . policy provisions

exist, ‘a third party’s right of action against the insurer does not arise until he has

secured such an agreement or a judgment against the insured.’” Id . (quoting Great

Am. Ins. Co. v. Murray , 437 S.W.2d 264, 265-66 (Tex. 1969)). The plaintiffs direct

us to no such specific contractual provisions in the present case. Additionally, the

third-party claimant in Getty asserted contractual rights to be indemnified by the

insured and to be named as an additional insured on the applicable policies. The

plaintiffs do not assert such contractual rights in this case.

The Texas Supreme Court has held that, in the context of a first-party lawsuit

by an insured against its insurer based on an agreed judgment, the insurer’s

contractual duty of good faith and fair dealing toward its insured does not extend

beyond the signing of the agreed judgment. Mid-Century Ins. Co. of Tex. v. Boyte ,

80 S.W.3d 546, 548-49 (Tex. 2002); Stewart Title Guar. Co. v. Aiello , 941 S.W.2d

68, 71 (Tex. 1997). Consequently, any claims that the insured may have against the

insurer based on the agreed judgment sound in contract, not in tort. Aiello , 941

S.W.2d at 71 . We find these cases analogous to the situation presented here, in which

the plaintiffs argue that they assumed the status of third-party beneficiaries of HRM’s

insurance policies after the signing of the 1993 settlement agreement. Therefore,

assuming that the plaintiffs attained the status of third-party beneficiaries of HRM’s

insurance policies after the agreement was reached, we hold that HRM’s insurers

owed the plaintiffs no extra-contractual duty of good faith and fair dealing thereafter;

thus, any claims that the plaintiffs have regarding the alleged conduct of HRM’s

insurers following that settlement sound in contract, not in tort.

We hold that the trial court did not err in granting summary judgment in favor

of the defendants on the plaintiffs’ claims for breach of an insurance contract, breach

of the duty of good faith and fair dealing, and violations of article 21.21 based on the

alleged conduct of HRM’s insurers subsequent to the parties’ settlement agreement.

We overrule the plaintiffs’ third issue.

“Abandoned” Motions

In their fifth issue, the plaintiffs contend that, to the extent that the trial court’s

July 11, 2001 global, final, amended summary judgment granted any unheard pending

motions for summary judgment filed by the defendants, or motions that were denied

by the appointed master and not appealed to the trial court, such ruling was in error.

Having held that the trial court, based on the grounds asserted in the defendants’

motions presented and argued to it , did not err in granting summary judgment on all

of the plaintiffs’ claims,

we need not address the merits of any of the grounds

asserted in other, so-called “abandoned” motions.

The Defendants’ Appeal

Fraud, Conspiracy to Defraud, and Unjust Enrichment

In their first issue, Atlantic Lloyds and Centennial contend that the trial court

erred in granting summary judgment against them on their counterclaims against the

plaintiffs and Prince for fraud, conspiracy to defraud, and unjust enrichment. Within

these issues, Atlantic Lloyds and Centennial argue that the summary judgment

evidence “more than demonstrates a fact issue as to fraudulent misrepresentation” and

that the plaintiffs “did not conclusively negate Atlantic Lloyds’ and Centennial’s

reliance on the fraudulent misrepresentations.”

Fraud and Conspiracy to Defraud

The plaintiffs and Prince, in their summary judgment motions on the

defendants’ counterclaims, argued, in part, that the defendants did not present

summary judgment evidence sufficient to raise a fact issue on each element of the

defendants’ cause of action for fraud. As noted above, to prevail on a cause of action

for fraud, a party must offer proof of “a material misrepresentation, which was false,

and which was either known to be false when made or was asserted without

knowledge of its truth, which was intended to be acted upon, which was relied upon,

and which caused injury.” Formosa Plastics , 960 S.W.2d at 47 (quoting Meadows ,

877 S.W.2d at 282 ). In their response, the defendants presented voluminous

deposition testimony, documents, and expert reports as direct and circumstantial

evidence to refute the plaintiff’s arguments and to raise a material fact question.

In order to demonstrate the falsity of the plaintiffs’ allegations of wide-spread

spraying of chlordane at the apartment complex, the defendants produced the

following: (1) the deposition testimony of Annette Lorback, a resident of the

apartment complex, who never saw any of the plaintiffs, her friends, or members of

her own family who lived at the complex exhibit any signs of illness; (2) the

deposition testimony of Toni Armeli, a former manager of the apartment complex,

that none of the residents complained of sickness to her; (3) the deposition testimony

of Lonnie Jackson, a handyman who assisted Stafford, that only two vacant

apartments and three or four other apartments were sprayed with chlordane and were

then cleaned; (4) an analysis of the original deposition testimony given by Stafford

and Isaac Pineda, another handyman at the complex, that indicated that the apartments

of 14 of the 22 plaintiffs were probably not sprayed; (5) the deposition testimony of

many of the plaintiffs, who did not know whether their apartments had been sprayed

with chlordane; (6) the results of testing at the apartment complex, conducted by the

City of Houston, that measured the highest level of airborne chlordane, which was

approximately 1/16th of the permitted OSHA exposure level, in a vacant apartment;

(7) the testimony of (a) TDA investigator Eujean Hinze that the levels of chlordane

measured at the apartments were below the approved levels of exposure and (b)

Stafford, who, when questioned in connection with the investigation of the spraying,

could not verify which apartments were sprayed with chlordane and did not remember

whether he used chlordane or another pesticide; and (8) the conclusions and opinions

of John Yocum, a professional engineer and environmental consultant retained as an

expert witness by the defendants, that concentrations of chlordane were higher in

unoccupied apartments than in occupied ones.

With regard to the plaintiffs’ allegations of medical injuries and damages

resulting from chlordane exposure, the defendants asserted that such evidence was

misleading, incomplete, or manufactured. The defendants argued that the summary

judgment evidence demonstrated that (1) none of the plaintiffs’ treating or examining

physicians performed a differential diagnosis on any of the plaintiffs to rule out other

potential causes of their alleged conditions and symptoms; (2) the plaintiffs’ treating

physicians took inadequate medical histories and failed to note or to take into

consideration the fact that several of the plaintiffs had significant, documented, pre-existing health factors, including alcoholism, anxiety disorders, cancers, diabetes,

drug abuse, exposure to other pesticides, heart attacks, hypertension, obesity,

psychiatric problems, physical or mental abuse, sexually transmitted diseases, sleep

disorders, long-term smoking, and surgeries; (3) the plaintiffs’ physicians relied only

on literature provided to them by Prince in forming their conclusions that the

plaintiffs’ conditions and symptoms were caused by exposure to chlordane; (4) many

of the plaintiffs did not undergo toxicological testing, such as a fat biopsy, to detect

the levels of their alleged chlordane exposure; (5) those plaintiffs who were tested did

not show the presence of unsafe levels of chlordane and showed exposure to other

chemicals; and (6) an alleged “close personal relationship” existed between Dr.

Howard Siegler, one of the plaintiffs’ treating physicians, and O’Quinn.

The defendants also presented the opinions of their own medical experts. Dr.

John Meyer, a board-certified neurologist, testified that he reviewed the plaintiffs’

medical records and the relevant medical articles and literature and formed the

opinion that none of the plaintiffs had objective neurological or psychiatric signs

attributable to chlordane exposure. Dr. Wayne Snodgrass, a board-certified

toxicologist and pharmacologist, testified that the levels of chemicals detected in the

blood and fat tissue samples taken from Stafford and Melvin Thornton, another

plaintiff, were more consistent with acute, recent chlordane exposure ( e.g. , within a

few hours before the blood test) than with high levels of exposure over a long term.

Additionally, the defendants presented the opinions and report prepared by

Barry Zalma, a certified fraud examiner retained as an expert witness by the

defendants. In his report, Zalma concluded that, in his opinion, there were more than

50 separate indicators that the plaintiffs’ underlying claims were fraudulent,

including: (1) the plaintiffs’ injury claims were subjective and persisted contrary to

medical studies; (2) the plaintiffs gave false or incomplete medical histories to their

doctors; (3) the plaintiffs’ treating physicians prepared and submitted identical

medical reports for each plaintiff, despite differences in exposure, symptoms, medical

history, and physical condition among the plaintiffs; (4) the plaintiffs failed to

mention their alleged chlordane exposure to any doctor other than one hired by their

attorneys; (5) the plaintiffs did not seek any medical attention until after they had

signed a power of attorney; (6) after the 1993 settlement, the plaintiffs did not use the

settlement proceeds for medical monitoring; (7) reports existed from non-treating

doctors who could find no link between the alleged exposure and the plaintiffs’

alleged conditions and symptoms; (8) the plaintiffs’ claim of widespread spraying

was physically impossible, based on the fact that a single, half-gallon bottle of

chlordane was purchased and could not have been sufficient to spray 20 or more

apartments, as alleged; (9) when the bottle was seized by the TDA in its investigation,

eight ounces of chlordane remained unused; and (10) indoor spraying of other

pesticides at the apartment complex, as shown on work orders from an exterminating

company, had occurred.

The plaintiffs and Price argue that the defendants failed to put forth any

evidence in response to the plaintiffs’ summary judgment motions that the defendants

acted in reliance upon the alleged misrepresentations. It is well-settled that a party

asserting a cause of action for fraud must prove that it “actually and justifiably relied”

on the alleged misrepresentation and thereby suffered injury. Ernst & Young, L.L.P.

v. Pac. Mut. Life Ins. Co. , 51 S.W.3d 573, 577 (Tex. 2001) (emphasis added); see Am.

Tobacco Co., Inc. v. Grinnell , 951 S.W.2d 420, 436 (Tex. 1997) (noting that allegedly

defrauded party must show that it “reasonably” relied on misrepresentations). As the

Restatement (Second) of Torts sets forth:

One who makes a fraudulent misrepresentation is subject to liability to

the persons . . . whom he intends or has reason to expect to act or to

refrain from action in reliance upon the misrepresentation, for pecuniary

loss suffered by them through their justifiable reliance in the type of

transaction in which he intends or has reason to expect their conduct to

be influenced.

Restatement (Second) of Torts § 531 (1977) (emphasis added); see Tex. Capital

Sec., Inc. v. Sandefer , 58 S.W.3d 760, 772-73 (Tex. App.—Houston [1st Dist.] 2001,

pet. denied). In other words, in the context of two opposing parties engaged in

litigation and negotiating at arm’s length and from equal bargaining positions, one

party cannot prevail in a subsequent action for fraud based on its “reliance” on its

opponent’s obvious lie or on a misrepresentation that, with reasonable diligence,

could have easily been refuted. Such reliance is not justifiable or reasonable.

As evidence of their reliance on the truth of the claims raised by the plaintiffs

in the underlying lawsuit, the defendants point to the fact that they ultimately agreed

to settle the plaintiffs’ claims for $10.3 million. However, the summary judgment

evidence does not support the defendants’ assertion that their reliance on the

plaintiffs’ claims in the underlying suit was justifiable or reasonable. Much of the

summary judgment evidence on which the defendants relied as indicative of fraud

was available through discovery in the underlying lawsuit. In his report summarizing

his analysis of the underlying litigation, Zalma, the defendants’ retained fraud

examiner, concluded as follows:

Shortly before the settlement the Defendants’ case was improving.

[Additional doctors’] reports were in, Plaintiffs’ [sic] could not produce

objective evidence of injury and were concerned that taken individually

the damages awarded would be small. Prince brought in O’Quinn to

trade on his fame and skill. O’Quinn did nothing but lend his name and

negotiating skill to the suit. That fame caused [HRM] to raise its offers

more than two-fold. Fraud indicators that should have been obvious to

the defense team were clouded by the desire to resolve the case before

O’Quinn’s reputation caused more damage to the defendants than could

be reasonably anticipated .

(Emphasis added.)

The defendants also argue that, because of Stafford’s and Prince’s deception,

they could not have uncovered the allegedly fraudulent nature of the plaintiffs’

underlying claims until several years after the 1993 settlement agreement. However,

this argument is refuted by much of the defendants’ own summary judgment

evidence, including critical analyses of the plaintiffs’ medical records, their treating

physicians’ reports, their depositions, and the testing conducted at the apartment

complex. Moreover, the material allegations contained in Stafford’s 1995 sworn

statement—that spraying was limited and not widespread and that plaintiffs with little

or no exposure to chlordane and few or no injuries had asserted claims in the

underlying lawsuit—were available to HRM through discovery in the underlying

lawsuit, as shown by the defendants’ summary judgment evidence. The defendants

have not shown how they were prevented from uncovering the true nature of these

allegations through discovery in the underlying suit.

Additionally, several factors other than reliance on the truth of an opponent’s

allegations may influence a party’s decision ultimately to settle disputed claims in a

lawsuit, including the nature of the liability facts, the nature of the damages alleged,

the number of parties involved, the perceived propensity of a jury in the forum to

return a significant damage award, the level of skill of opposing counsel, the quality

of the appearance of the fact witnesses and parties, and the costs associated with

continued discovery, trial preparation, and trial itself. Furthermore, settlement

agreements typically do not admit wrongdoing on the part of the alleged tortfeasor.

Based on the record presented, we hold that the summary judgment evidence

did not raise a material fact question as to whether the defendants justifiably or

reasonably relied upon any alleged misrepresentation made by the plaintiffs in the

underlying lawsuit. Accordingly, we hold that the trial court did not err in granting

summary judgment in favor of the plaintiffs and Prince on the defendants’

counterclaims for fraud and conspiracy to commit fraud.

Unjust Enrichment

The defendants further contend that the trial court erred in granting summary

judgment on their equitable counterclaim of unjust enrichment against the plaintiffs

and Prince because the evidence indicated that the proceeds of the 1993 settlement

agreement were obtained “as a result of their scheme to commit insurance fraud.”

The defendants note that “[a]n action for unjust enrichment is based upon the

equitable principle that a person receiving benefits which were unjust for him to

retain ought to make restitution.” Bramson v. Standard Hardware, Inc. , 874 S.W.2d

919, 927 (Tex. App.—Fort Worth 1994, writ denied).

However, “[g]enerally speaking, when a valid, express contract covers the

subject matter of the parties’ dispute, there can be no recovery under a quasi-contract

theory.” Fortune Prod. Co. v. Conoco, Inc. , 52 S.W.3d 671, 684 (Tex. 2000). “When

a valid agreement already addresses the matter, recovery under an equitable theory

is generally inconsistent with the express agreement.” Id . This Court has also

previously held that “unjust enrichment claims are predicated on the absence of an

express contract controlling the circumstances.” Inglish v. Prudential Ins. Co. , 928

S.W.2d 702, 706 (Tex. App.—Houston [1st Dist.] 1996, writ denied).

Here, we have held that the defendants did not present sufficient summary

judgment evidence to raise a material fact question concerning whether they were

fraudulently induced into the 1993 settlement agreement. Therefore, a “valid, express

contract” (the 1993 settlement agreement) existed “which cover[ed] the subject matter

of the parties’ dispute” (the value of the plaintiffs’ claims), and the defendants’ claim

for unjust enrichment is precluded. Accordingly, based on the record presented, we

hold that the trial court did not err in granting summary judgment in favor of the

plaintiffs and Prince on the defendants’ counterclaims for unjust enrichment.

We overrule Atlantic Lloyds’s and Centennial’s first issue.

“Judicial Estoppel” and “The Law of the Case”

In their second issue, the defendants argue that the trial court erred in granting

summary judgment for the plaintiffs on the grounds that the defendants’

counterclaims were barred under the theories of “judicial estoppel” and “law of the

case.” Specifically, the defendants challenge the plaintiffs’ assertions, made in the

plaintiffs’ summary judgment motions, that (1) the defendants were estopped by a

previous interrogatory answer from arguing that any proceeds from a Centennial

insurance policy were used to fund the 1993 settlement agreement and (2) in the event

that this lawsuit might be remanded to the trial court, the defendants could not re-litigate the issue of causation. However, because our holdings on the other issues

raised in this case dispose of the defendants’ appeal, we need not address this issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Hedges, Jennings, and Alcala.