Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-13-00757-CV

Michael TATSCH,

Appellant

v.

CHRYSLER GROUP, LLC

and Infinity County Mutual Insurance Company,

Appellees

From the 216th Judicial District Court, Gillespie County, Texas

Trial Court No. 12977

Honorable N. Keith Williams, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Sandee Bryan Marion, Justice

Marialyn Barnard, Justice

Luz Elena D. Chapa, Justice

Delivered and Filed: December 3, 2014

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

This is an appeal from a trial court’s orders granting summary judgment in favor of 

appellees Chrysler Group, LLC (“Chrysler”) and Infinity County Mutual Insurance Company 

(“Infinity Mutual”). On appeal, appellant Michael Tatsch challenges the granting of the summary 

judgments. We affirm in part, and reverse and remand in part. 

BACKGROUND

In January 2008, Tatsch purchased a 2008 Dodge Ram 5500 pickup truck (“the truck”). 

The truck came with a Basic Limited Warranty spanning three years or 36,000 miles on the 
04-13-00757-CV

odometer, whichever came first. The truck also came with a Cummins Diesel Engine Limited 

Warranty (“engine warranty”) spanning five years or 100,000 miles on the odometer, whichever 

came first.

In August 2011, Tatsch was driving the truck when the engine ceased functioning. The 

truck had roughly 37,000 miles on the odometer. After multiple attempts were made to repair the 

truck, Tatsch was told the truck needed an estimated $31,000.00 in engine repairs due to a “dust 

out condition” and fuel contamination. Specifically, the truck needed a new cylinder “long block,” 

up to six fuel injectors, as well as new gaskets. Although the truck was no longer covered under 

the Basic Limited Warranty, it was still within the range of the engine warranty. However, 

Chrysler denied Tatsch’s request to repair the truck under the express engine warranty.

After Chrysler’s refusal, Tatsch filed a claim with his comprehensive automobile insurance 

carrier, Infinity Mutual, based on the damages to the truck. Infinity Mutual denied Tatsch’s 

insurance claim on the ground that the truck’s mechanical failure, caused by contaminated fuel, 

was excluded from his comprehensive automobile insurance coverage. Subsequently, Tatsch sued 

both Chrysler and Infinity Mutual. 

Tatsch sued Chrysler under the Texas Deceptive Trade Practices Consumer Protection Act 

(“DTPA”) for breach of express and implied warranty as defined by the Texas Business and 

Commerce Code. Chrysler moved for no evidence summary judgment as to Tatsch’s warranty 

claims. The trial court granted Chrysler’s motion. 

Tatsch sued Infinity Mutual for various violations of the Texas Insurance Code as tied into 

the DTPA. In response, Infinity Mutual moved for traditional summary judgment on the ground 

that “Infinity [Mutual] is not liable to Mr. Tatsch because a valid exclusion contained in the policy 

applies and bars Mr. Tatsch’s claim.” Infinity Mutual filed a no evidence motion for summary 

judgment as to Tatsch’s Insurance Code claims. The trial court granted Infinity Mutual’s motions. 

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Tatsch subsequently perfected this appeal of the trial court’s orders.

ANALYSIS

On appeal, Tatsch argues the trial court erroneously granted the summary judgment 

motions filed by Chrysler and Infinity Mutual. Because the motions are effectively unrelated, we 

will examine the trial court’s ruling as to each motion separately. 

Chrysler’s No Evidence Motion

Chrysler filed a no evidence motion for summary judgment under Rule 166a(i) of the Texas 

Rules of Civil Procedure challenging Tatsch’s claims for breach of express and implied warranty 

under the DTPA, as well as Tatsch’s claim for all reasonable and necessary attorney’s fees. 

We review de novo a trial court’s order granting a no evidence motion for summary 

judgment. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A no 

evidence motion for summary judgment under Rule 166a(i) is essentially a motion for pretrial 

directed verdict that requires the nonmoving party to present evidence raising a genuine issue of 

material fact to support each element specifically contested in the motion. Timpte Indus., Inc. v. 

Gish, 286 S.W.3d 306, 310 (Tex. 2009); TEX. R. CIV. P. 166a(i). The trial court must grant the 

motion unless the nonmovant produces more than a scintilla of summary judgment evidence to 

raise a genuine issue of material fact. TEX. R. CIV. P. 166a(i). A scintilla of evidence exists when 

the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their 

conclusions.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). 

Accordingly, we must determine whether Tatsch has presented a scintilla of evidence to support 

the challenged elements of both his express and implied warranty claims.

Express Warranty

Tatsch sued Chrysler under the DTPA for breaching an express warranty as defined by 

section 2.313 of the Texas Business and Commerce Code. See TEX. BUS. & COM. CODE ANN

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§ 2.313 (West 2013). Generally, to recover for breach of an express warranty under the DTPA, a 

plaintiff must prove: (1) consumer status, (2) the existence of a warranty, (3) breach of the 

warranty, and (4) injury resulting from the breach. Church & Dwight Co., Inc. v. Huey, 961 

S.W.2d 560, 568 (Tex. App.—San Antonio 1997, pet. denied); U.S. Tire-Tech, Inc. v. Boeran, 

B.V., 110 S.W.3d 194, 197 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Here, it is 

undisputed Tatsch is a consumer for purposes of the DTPA and an express warranty — the engine 

warranty — existed between Chrysler and Tatsch. Accordingly, Chrysler’s no evidence motion 

challenged Tatsch’s ability to provide evidence establishing a breach of the engine warranty as 

well as damages resulting from that breach. 

1. Breach of Express Warranty:

Tatsch contends he met his evidentiary burden by demonstrating Chrysler refused to repair 

a covered part during the applicable time period of the engine warranty. In support of this 

argument, Tatsch provided a personal affidavit and a repair invoice from a Dodge dealership to 

demonstrate that: (1) Chrysler made an express engine warranty covering the engine and fuel 

injectors,1 (2) the engine block and fuel injectors in Tatsch’s truck required replacement during 

the applicable warranty period, and (3) Chrysler denied Tatsch’s request to make the repairs under 

the express warranty. Chrysler’s brief does not attempt to controvert those facts, and concedes: 

“[i]t is not disputed that [Tatsch] presented the [truck] for repairs during the coverage period 

1 Tatsch’s affidavit states “[t]he [truck] came with a 5 year/100,000 miles Cummins Diesel Engine Limited Warranty 

that covered the engine and fuel injectors.” Admittedly, Chrysler objected to this summary judgment evidence in the 

trial court, claiming it violated the best evidence rule. See TEX. R. EVID. 1002. However, the trial court never 

explicitly ruled on this objection, and had little reason to because Chrysler attached a copy of the actual warranty to 

its own court documents, and a ruling on a motion for summary judgment is not an implicit ruling on objections to the 

proffered summary judgment evidence. See Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex. App.—San 

Antonio 2000, no pet.). “Pursuant to rule 33.1, the party objecting to summary judgment evidence has the burden to 

obtain a ruling on that party’s objections.” Duncan-Hubert v. Mitchell, 310 S.W.3d 92, 99 (Tex. App.—Dallas 2010, 

pet. denied); see TEX. R. APP. P. 33.1. Because Chrysler did not obtain a ruling on its objection to Tatsch’s affidavit, 

and the contents of the engine warranty are not disputed on appeal, we consider this portion of Tatsch’s affidavit as 

proper summary judgment evidence. See Anderton v. City of Cedar Hill, ___ S.W.3d___, 2014 WL 4291492 at *3 

(Tex. App.—Dallas 2010, no pet. h.). 

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afforded by the Cummins Warranty . . . [a]nd, it is not disputed that damages components were on 

the list of components covered by the Cummins Warranty.” 

The Supreme Court of Texas has noted that an “express warranty claim, like one for breach 

of contract, involves a party seeking damages based on an opponent’s failure to uphold its end of 

the bargain.” Med. City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 61 (Tex. 2008). Here, we 

hold Tatsch presented more than a scintilla of evidence that Chrysler failed to uphold its 

obligations under the engine warranty, i.e., Chrysler declined to repair a part it concedes was 

covered under the express engine warranty during the warranty period. Accordingly, we agree 

with Tatsch and hold he met his evidentiary burden to respond to Chrysler’s no evidence motion 

with more than a scintilla of summary judgment evidence that Chrysler breached its express engine 

warranty by failing to perform. 

Chrysler attempts to counter this conclusion by arguing Tatsch’s real burden was to present 

a scintilla of evidence of a defect with the truck’s engine components because “[t]he cause of the 

damages to those components is the core issue in this case.” In support of this argument, Chrysler 

directs this court to the following language from the “What’s Covered” section of the Basic Limited 

Warranty covering Tatsch’s truck:

The Basic Limited Warranty covers the cost of all parts and labor needed to repair 

any item on your truck when it left the manufacturing plan that is defective in 

material, workmanship or factory preparation. There is no list of covered parts since 

the only exception is tires and Koss headphones. You pay nothing for these repairs. 

These warranty repairs or adjustments – including all parts and labor connected 

with them – will be made by your dealer at no charge, using new or remanufactured 

parts.

(emphasis added). However, Tatsch did not seek repairs for his truck under the Basic Limited 

Warranty, which expired after his truck’s odometer passed 36,000 miles. Rather, Tatsch sought 

repairs under the engine warranty. The engine warranty’s “What’s Covered” section makes no 

mention of the limiting defect language cited to by Chrysler; rather, the warranty covers:

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In vehicles equipped with a Cummins Diesel Engine, ONLY the following engine 

parts and components are covered by the Cummins Diesel Engine Limited 

Warranty: cylinder block and all internal parts, . . . fuel injection pump & injectors, 

. . . [and] gaskets and seals for listed components.

(emphasis added). Accordingly, we hold Chrysler’s argument and reliance based upon language 

from a separate and inapplicable express warranty is without merit.

2. Damages From Breach of Express Warranty:

Chrysler’s no evidence motion also challenged Tatsch to provide a scintilla of evidence 

that he was injured as a result of Chrysler’s failure to comply with its express engine warranty. In 

response, Tatsch produced evidence by way of his affidavit that he has been deprived of the use of 

his truck. He also produced a repair bill estimating approximately $31,000.00 in necessary repairs. 

Tatsch argues economic damages awarded under the DTPA specifically includes the cost of 

repairs. See TEX. BUS. & COM. CODE ANN. § 17.50(b)(1). We agree. The DTPA specifically 

defines “economic damages” as “compensatory damages for pecuniary loss, including costs of 

repair and replacement.” Id. at § 17.45(11). Accordingly, because Tatsch proffered his repair bill, 

we hold he has met his burden to produce more than a scintilla of evidence of damages resulting 

from Chrysler’s breach of the express engine warranty. 

Because Tatsch produced more than a scintilla of evidence that Chrysler breached the 

express engine warranty and Tatsch suffered damages as a result, we reverse the trial court’s no 

evidence summary judgment in favor of Chrysler on Tatsch’s express warranty claim. 

Implied Warranty

In addition to his express warranty claims, Tatsch sued Chrysler under the DTPA for 

breaching an implied warranty as defined by section 2.314 of the Texas Business and Commerce 

Code. See TEX. BUS. & COM. CODE ANN § 2.314. To recover for a breach of an implied warranty

under the DTPA, a plaintiff must prove: (1) consumer status, (2) existence of the warranty, (3) 

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breach of the warranty, and (4) damages resulting from the breach. Four Bros. Boat Works, Inc. 

v. Tesoro Petroleum Companies, Inc., 217 S.W.3d 653, 666 (Tex. App.—Houston [14th Dist.] 

2006, pet. denied). On appeal, it is undisputed Tatsch is a consumer and an implied warranty of 

merchantability applies to the truck.2 The primary dispute is, again, whether Tatsch presented any 

evidence of a breach of the warranty and damages.

Tatsch’s implied warranty claim is based on section 2.314’s directive that a seller impliedly 

warrants that his goods, among other things, “are fit for the ordinary purposes for which such 

goods are used.” TEX. BUS. & COM. CODE ANN § 2.314(b)(3). “For goods to breach this warranty, 

they must be defective – that is, they must be ‘unfit for the ordinary purposes for which they are 

used because of a lack of something necessary for adequacy.’” Gen. Motors Corp. v. Brewer, 966 

S.W.2d 56, 57 (Tex. 1998) (quoting Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 443–44 

(Tex. 1989)). To be clear, “[t]he defect in an implied warranty of merchantability case is not the 

same as the defect in a strict products liability case.” Plas-Tex, 772 S.W.2d at 444 (emphasis 

added); see Hyundai Motor Co. v. Rodriguez ex rel. Rodriguez, 995 S.W.2d 661, 664–65 (Tex. 

1999). A plaintiff does not have to use direct or expert evidence to show that the subject goods 

are unfit under section 2.314(b)(3); rather, the burden may be met using solely circumstantial 

evidence. Plas-Tex, 772 S.W.2d at 444. Evidence of proper use of the good together with a 

malfunction may be sufficient circumstantial evidence of a defect under section 2.314(b)(3). Id.

at 444–45. 

2 Chrysler’s motion also challenged Tatsch’s ability to “provide any evidence that Chrysler Group sold or leased [the 

truck] to [Tatsch).” This issue is not disputed on appeal. We note that “a manufacturer can be responsible, without 

regard to privity, for the economic loss which results from his breach of the . . . implied warranty of merchantability.” 

Nobility Homes of Tex., Inc. v. Shivers, 557 S.W.2d 77, 81 (Tex. 1977) (emphasis added); Shows v. Man Engines & 

Components, Inc., 364 S.W.3d 348, 354 (Tex. App.—Houston [14th Dist.] 2012), aff’d sub nom, MAN Engines & 

Components, Inc. v. Shows, 434 S.W.3d 132 (Tex. 2014). 

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It appears from Tatsch’s summary judgment response and his brief that he attempted to 

meet his evidentiary burden to establish the existence of a defect by showing he properly 

maintained his truck, i.e. proper use, and it nonetheless broke down. To support this argument, 

Tatsch provides the following evidence: (1) Tatsch’s affidavit testimony that he has owned over 

twelve diesel-powered trucks and maintained all of them properly and in accordance with the 

manufacturer’s recommendations; (2) alleged records to show proper maintenance at 

“recommended” intervals; and (3) evidence that the truck suffered engine failure with less than 

37,000 miles on the odometer. 

Tatsch avers in his affidavit:

I have owned more than twelve trucks with diesel engines, and currently own five 

trucks with diesel engines. I maintain the trucks according to the manufacturer’s 

recommendations, changing the oil, oil filter, air filter, and fuel filters either at a 

dealership, private shop, or perform the changes myself. All of my trucks with 

diesel engines are maintained the same way and all use the same fuel. [The truck] 

was properly maintained in compliance with the Manufacturer’s recommendations 

as to oil changes, fuel filters, and the air filter. I have not put farm fuel into any of 

my trucks. I have not had any problems with fuel contamination or dust-out 

conditions on any of the trucks except the 2008 Dodge Ram 5500.

Chrysler contends the affidavit does not constitute proper summary judgment evidence because it 

contains only conclusions with regard to his compliance with “Manufacturer’s recommendation.” 

We agree.

It appears Chrysler did not object in the trial court to the conclusory nature of Tatsch’s 

affidavit. However, a claim that an affidavit is conclusory is an objection to the substance of the 

affidavit, which may be raised for the first time on appeal. McFarland v. Citibank (S.D.), N.A., 

293 S.W.3d 759, 762 (Tex. App.—Waco 2009, no pet.); Thompson v. Curtis, 127 S.W.3d 446, 

450 (Tex. App.—Dallas 2004, no pet.). This court has held that conclusory affidavits do not raise 

fact issues sufficient to defeat a no evidence motion for summary judgment. Trejo v. Laredo Nat’l 

Bank, 185 S.W.3d 43, 50 (Tex. App.—San Antonio 2001, pet. denied) (citing Ryland Group, Inc. 

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v. Hood, 924 S.W.2d 120, 122 (Tex. 1996)). “A conclusory statement is one that does not provide 

the underlying facts to support the conclusion.” Trejo, 185 S.W.3d at 50 (quoting Haynes v. City 

of Beaumont, 35 S.W.3d 166, 178 (Tex. App.—Texarkana 2000, no pet.). Chrysler specifically 

argues Tatsch’s affidavit does not contain the underlying facts to establish what the 

“Manufacturer’s Recommendations” are that Tatsch claims he complied with in performing 

maintenance on the truck; therefore, Tatsch’s statement that he complied with said 

recommendations is conclusory. We agree. Having reviewed the record, at no point does Tatsch 

provide, in either his affidavit or other proffered summary judgment evidence, any detail as to 

what constitutes the manufacturer’s recommended maintenance scheme for the truck in question. 

Accordingly, the portion of Tatsch’s affidavit above does not constitute summary judgment 

evidence to raise a fact question as to whether he properly used his truck by properly maintaining 

it. See Trejo, 185 S.W.3d at 50. 

However, our analysis of Tatsch’s proper use through proper maintenance argument 

continues and necessarily includes a review of Tatsch’s “maintenance records to show proper 

maintenance at recommended intervals.” These “records” consist of approximately ten receipts 

indicating Tatsch changed his oil five times, in intervals ranging from 3,396 miles to 10,845 miles, 

and purchased three fuel filters and one oil filter.3

 However, Tatsch has not introduced any 

evidence to establish what the “proper maintenance at recommended intervals” is for his truck. 

Without any factual foundation for what proper maintenance requires for Tatsch’s truck, we cannot 

determine the “records” proffered by Tatsch are anything more than a few receipts indicating he 

intermittently changed his truck’s oil and purchased a few filters. Accordingly, we hold these 

3 There is also a receipt indicating Tatsch purchased a new alternator and parts necessary to replace an alternator. 

Tatsch’s deposition testimony indicates this receipt actually pertains to parts purchased for a Ford pickup truck he 

owns. 

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receipts do not constitute even a scintilla of circumstantial evidence that Tatsch properly used his 

truck by properly maintaining it before it malfunctioned.

Therefore, because Tatsch’s affidavit and records do not provide even a scintilla of 

summary judgment evidence of proper use, we hold Tatsch has failed to raise a fact question 

regarding whether the truck is “unfit for the ordinary purposes for which [it is] used because of a 

lack of something necessary for adequacy,” i.e. defective, as required to recover under the statutory 

implied warranty of merchantability provided in section 2.314. See Brewer, 966 S.W.2d at 57; 

Plas-Tex, 772 S.W.2d at 443; TEX. BUS. & COM. CODE ANN § 2.314(b)(3). Accordingly, we 

overrule Tatsch’s argument and affirm the trial court’s order granting summary judgment on 

Tatsch’s breach of implied warranty claim. Additionally, because Tatsch has not presented any 

evidence of a breach of the implied warranty of merchantability, we need not discuss whether he 

produced evidence of damages resulting therefrom.

Attorney’s Fees

Tatsch’s petition sought to recover “all reasonable and necessary attorneys’ fees” in 

relation to pursuing his warranty claims in addition to damages. Chrysler’s no evidence motion 

for summary judgment asserted there is no evidence of attorney’s fees related to Tatsch’s case. In 

response, Tatsch’s attorney submitted an affidavit detailing the specific services rendered in 

connection with Tatsch’s case resulting in approximately $20,000.00 in attorney’s fees. Chrysler 

made no objection to this affidavit at trial or on appeal. Having reviewed the evidence, we hold 

Tatsch has presented more than a scintilla of evidence that he has accrued attorney’s fees in 

pursuing his case. Accordingly, we reverse the trial court’s summary judgment regarding Tatsch’s 

attorney’s fees. 

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Conclusion – Chrysler’s No Evidence Motion

Based on the forgoing, we affirm the trial court’s summary judgment on Tatsch’s implied 

warranty claims, but reverse the trial court with regard to the summary judgment in favor of 

Chrysler on Tatsch’s express warranty claims and the attorney’s fees related to the express 

warranty claims. We remand these claims for further proceedings consistent with this opinion. 

Infinity Mutual’s Traditional and No Evidence Motions

As noted above, Tatsch sued Infinity Mutual to recover for unfair settlement practices 

under the Texas Insurance Code. See TEX. INS. CODE ANN. § 541.060 (West 2009). Specifically, 

Tatsch accused Infinity Mutual of: (1) failing to attempt a good faith settlement of a claim for 

which Infinity Mutual’s liability has become reasonably clear; (2) failing to promptly provide 

Tatsch a reasonable basis for denying his claim; (3) refusing to pay a claim without conducting a 

reasonable investigation; and (4) refusing to settle Tatsch’s auto insurance claim because there is 

other insurance of a different kind available to satisfy all or part of his loss. See id.

§§ 541.060(a)(2), (3), (7), & (8). In response, Infinity Mutual filed a traditional motion for 

summary judgment to establish Tatsch’s claim was excluded under the “mechanical failure” 

exception of Tatsch’s policy. Additionally, Infinity Mutual filed a no evidence motion for 

summary judgment challenging Tatsch’s ability to provide a scintilla of evidence in support of his 

Insurance Code-based claims. 

We recognize that when both a traditional and no evidence motion for summary judgment 

are filed, we generally examine the validity of the no evidence motion first. See Ford Motor Co. 

v. Ridgeway, 135 S.W.3d 598, 600 (Tex.2004). However, in this case we have determined it is 

more practical, given the outcome, to review Infinity Mutual’s traditional motion first. 

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Infinity Mutual’s Traditional Motion for Summary Judgment

Infinity Mutual filed a traditional motion for summary judgment under Rule 166a(c) of 

Texas Rules of Civil Procedure in an attempt to establish it “is not liable to Mr. Tatsch because a 

valid exclusion contained in the [comprehensive auto insurance] policy applies and bars Mr. 

Tatsch’s claim.” It appears as though Infinity Mutual is attempting to defeat a claim regarding an 

alleged breach of the insurance policy. However, our review of Tatsch’s Second Amended Petition 

establishes the only claims he asserted against Infinity Mutual concern violations of the Texas 

Insurance Code; he did not sue for a breach of the insurance policy or for any type of recovery 

under the insurance policy itself. 

Under Texas law, a defending party may move for summary judgment in his favor as to a 

claim, counterclaim, or cross-claim asserted against said party. TEX. R. CIV. P. 166a(b). Here, 

Infinity Mutual’s traditional motion for summary judgment does not address the Insurance Codebased claims actually asserted by Tatsch. Accordingly, we hold the trial erred by granting 

traditional summary judgment in favor of Infinity Mutual because its motion failed to address

Tastch’s claims. See id. We therefore reverse the traditional summary judgment in favor of 

Infinity Mutual and remand this issue to the trial court for further proceedings consistent with this 

opinion. 

Infinity Mutual’s No Evidence Motion for Summary Judgment

In addition to its traditional motion, Infinity Mutual also filed a no evidence motion for 

summary judgment under Rule 166a(i) challenging Tatsch’s Insurance Code-based claims. See 

TEX. R. CIV. P. 166a(i). A no evidence motion under Rule 166a(i) is essentially a pretrial motion 

for directed verdict. See id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). After 

an adequate time for discovery has passed, a party without the burden of proof may seek summary 

judgment on the ground there is no evidence to support one or more essential elements of the 

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nonmovant’s claim. TEX. R. CIV. P. 166a(i). The motion is required to specifically state the 

element or elements for which there is no evidence, and the trial court must grant the motion unless 

the nonmovant produces more than a scintilla of summary judgment evidence to raise a genuine 

issue of material fact. Id. A scintilla of evidence is such that “rises to a level that would enable 

reasonable and fair-minded people to differ in their conclusions.” Havner, 953 S.W.2d at 711. 

“Evidence does not exceed a scintilla if it is ‘so weak as to do no more than create a mere surmise 

or suspicion’ that the fact exists.” Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014) 

(quoting Ridgeway, 135 S.W.3d at 601). 

Here, Infinity Mutual challenged elements of Tatsch’s claims of unfair settlement practices 

based on Insurance Code sections 541.060(a)(2), (3), (7), and (8). See TEX. INS. CODE ANN. 

§§ 541.060(a)(2), (3), (7), & (8). Specifically, Infinity Mutual contends: (1) there is no evidence 

in this case that its liability was reasonably clear as required by section 541.060(a)(2)(A); (2) there 

is no evidence it failed to promptly provide Tatsch a reasonable explanation for the denial of his 

claim as required by section 541.060(a)(3); (3) there is no evidence it failed to conduct a reasonable 

investigation of Tatsch’s claim as required by section 541.060(a)(7); and (4) there is no evidence 

that it delayed or denied Tatsch’s claims based on the existence of other insurance to satisfy 

Tatsch’s loss as required by section 541.060(a)(8). See id. Tatsch’s response to this motion is not 

the model of clarity; neither his response to Infinity Mutual’s motion nor his appellate brief make 

any mention of the Insurance Code sections he is attempting to support with evidence. 

Having reviewed Tatsch’s response to Infinity Mutual’s no evidence motion, it appears the 

only argument he makes regarding Infinity Mutual’s alleged liability is that it should have 

performed a reasonable investigation into his claim, which corresponds only to the allegation 

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pursuant to section 541.060(a)(7).4 See TEX. INS. CODE ANN. § 541.060(a)(7). Absent a timely 

response to a motion meeting the requirements of Rule 166a(i), the trial court must grant the no 

evidence motion. BP Am. Prod. Co. v. Zaffirini, 419 S.W.3d 485, 509 (Tex. App.—San Antonio 

2013, pet. denied); Imkie v. Methodist Hosp., 326 S.W.3d 339, 343 (Tex. App.—Houston [1st 

Dist.] 2010, no pet.). Here, Infinity Mutual’s motion met the requirements of Rule 166a(i) and 

Tatsch did not submit a timely response as to his claims based on Insurance Code sections 

541.060(a)(2), (3), and (8). Accordingly, we affirm the trial court’s judgment in favor of Infinity 

Mutual as to Tatsch’s claims based on Insurance Code sections 541.060(a)(2), (3), and (8). See 

Zaffirini, 419 S.W.3d at 509. However, we must still determine whether Tatsch presented a 

scintilla of evidence with regard to his remaining claim under Insurance Code section 

541.060(a)(7).

In support of his claim that Infinity Mutual failed to conduct a reasonable investigation, 

Tatsch begins by directing this court to legal authority for the proposition that “[t]he ‘special 

relationship’ between the insured and insurer imposes on the insurer a duty to investigate claims 

thoroughly and in good faith, and to deny those claims only after an investigation reveals there is 

a reasonable basis to do so.” Viles v. Sec. Nat. Ins. Co., 788 S.W.2d 566, 568 (Tex. 1990). Tatsch 

then alleges Infinity Mutual “did not inspect the vehicle, request documentation, speak with any 

Chrysler or dealership personnel, or even request a fuel sample . . . and then denied the claim 

within 36 hours after doing nothing.” The evidentiary support for this claim is Tatsch’s deposition 

testimony and corresponding affidavit in which he avers “Infinity County Mutual did not inspect 

the [truck] or take any fuel samples before denying my claim.” Although Infinity Mutual contends 

4 Of note, Tatsch’s response also argues there is evidence to support findings related to damages. Specifically, Tatsch 

argues there is a scintilla of evidence that Infinity Mutual acted “knowingly” when it allegedly violated the Insurance 

Code, and also argues there is evidence of lost profits resulting from the unfair settlement practices. However, we 

focus our review on the underlying liability questions.

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the fuel was discarded before a sample could be taken, it in no way objects to the assertion it did 

not inspect the actual truck before denying Tatsch’s claim. We hold failing to inspect the truck is 

more than a scintilla of evidence raising a genuine issue of material fact as to whether Infinity 

Mutual performed a reasonable investigation before denying Tatsch’s claim. See Havner, 953 

S.W.2d at 711. Accordingly, we reverse the trial court’s judgment with regard to Tatsch’s section 

541.060(a)(7) claim. 

Conclusion – Infinity Mutual’s Traditional and No Evidence Motions

Based on the foregoing, we affirm the trial court’s no evidence summary judgment in favor 

of Infinity Mutual on Tatsch’s claims based on sections 541.060(a)(2), (3), and (8) of the Insurance 

Code. However, we reverse the trial court’s judgment granting Infinity Mutual’s traditional 

motion for summary judgment because it does not address Tatsch’s claim. Further, we reverse the 

trial court’s no evidence summary judgment as to Tatsch’s claim based on section 541.060(a)(7) 

of the Insurance Code. 

Marialyn Barnard, Justice

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