## NUMBER 13

- 1 9

- 00 127

- C V

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

UNITED SPECIALTY INSURANCE

COMPANY

, Appellant,

v.

FARMERS INSURANCE EXCHANGE

, Appellee.

On appeal from the 206th District Court

of Hidalgo County, Texas.2 

## NUMBER 13

- 1 9

- 00 12 8

- CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

UNITED SPECIALTY INSURANCE

COMPANY, Appellant,

v.

WASP CONSTRUCTION, LLC, Appellee

.

On appeal from the 206th District Court

of Hidalgo County, Texas.



## MEMORANDUM OPINION

Before Justices Benavides, Longoria, and Perkes

Memorandum Opinion by Justice Perkes

This is a consolidated appeal from cross

- motions for summary judgment on

defense and indemnity and cross

- motions for summary judgment on breach of contract

involving an insurance dispute. Appellant United Specialty Insurance Company (USIC)

,

as the assignee and subrogee of Alonzo Cantu Construction, Inc. (Cantu), argues the trial3 court erred in granting appellees ’ Farmers Insurance Exchange (FIE) and Wasp

Construction, LLC (Wasp) motions of summary judgment because (1) Cantu is an

additional insured under the FIE policy

, and thus, FIE ha d a duty to defend and indemnify

Cantu in the underlying suit; and (2) Wasp breached its subcontract with Cantu in its

failure to defend or indemnify Cantu for claims asserted against Cantu in the underlying

suit. We affirm.

I. B ACKGROUND

On August 26, 2014, Cantu

, a general contractor, accepted a written

subcontracting bid from Wasp to perform a water and sewer improvement project. Wasp

held a “ business owners policy ” under FIE and was covered through a workers

compensation policy under Service Lloyds Insurance Company

. Cantu carried a liability

insurance policy under USIC

. Wasp ’ s FIE policy included an “ additional insured ”

provision, which allowed for the extension of limited additional insured coverage stating

“ [a] ny person or organization for whom you are performing operations is also an insured,

if you and such person or organization have agreed in writing in a contract or agreement

that such person or organization be included as an additional insured on your policy. ” A t

the time Wasp began working on the excavation project

, h owever, Cantu was not a

named additional insured under Wasp’s FIE policy

.

On August 30, 2014, Hector Guadalupe Mata Martinez, a Wasp employee, was

installing underground pipes when he was crushed by collapsing dirt. The collapse

resulted in severe injuries

, rendering Martinez a paraplegic. On September 9, 2014,

Martinez and associated plaintiffs, filed a petition against Wasp in trial cause number C

7318

- 14

- H. The petition was later amended to include Cantu as a defendant.4 On October 9, 2014

, Wasp signed a subcontracting agreement with Cantu

, which

itself stipulates it was “ made this 12th day of September

, 2014 ”

— two weeks after the

accident

. The parties, however, dispute the date the subcontract ing agreement took

effect

. USIC argues the agreement “ mistakenly reflected ” an incorrect “ made ” date

, and

in any matter, the contents of the subcontract were agreed to orally on August 26, 2014

.

The subcontract included indemnification and insurance provision s

, compelling Wasp to

add Cantu as an additional insured under its FIE policy and defend and indemnify Cantu

against any liability for bodily injuries occurring on its worksite

. 1

1 Neither party challenges the meaning of the indemnification and insurance provision in the Wasp

Cantu contact, which states in applicable part:

To the fullest extent permitted by law, subcontractor shall fully protect, indemnify, and save

and hold harmless the owner of premises and contractor from and against any and all

claims, demands, damages, liens, liabilities, defects in subcontractor ’ s work, damage to

the work of the subcontractor, damage to other property, personal injury to subcontractor ’ s

employees or third parties, and/or causes of action of any nature whatsoever, including

attorney [’] s fees, losses and expenses, arising in any manner, directly or indirectly, out of

or in connection with the work or operations of subcontractor, anyone directly or indirectly

employed or retained by subcontractor or the use of any products material or equipment

furnished by subcontractor.

. .

Prior to starting Work, the Subcontractor shall obtain, maintain [,] and pay for Workmen ’ s

Compensation insurance for all of Subcontractor ’ s employees. Subcontractor shall also

obtain, maintain [,] and pay for comprehensive general liability insurance and

comprehensive automobile liability insurance protecting th e Subcontractor and Contractor

against claims for bodily injury or death, damage to property and products completed

operations liability in connection with the Work or occurring upon, or about the Premises,

with limits at least equal to or greater than those specified below:

Limits of Liability:

$2,000

, 000.00 General Aggregate

$2,000,000.00 Products

- Comp/Ops Aggregate

$1,000,000.00 Personal and Advertising injury

$1,000,000.00 each occurrence or accident

. . . .

Subcontractor also agrees that its comprehensive general liability insurance policies shall

name and covers Contractor as an additional insured in connection with the Premises and

Subcontractor ’ s Work for both ongoing and completed operations. Contractor ’ s additional

insured status is not intended to be in any way tied to or limited by the Subcontractors

obligations described under [the indemnification paragraph] of this Subcontractor

Agreement. The comprehensive general liability insurance obtained by Subcontractor will5 On April 24, 2017, while the aforementioned underlying case was pending, USIC

filed a petition for declaratory judgment against FIE

, Cantu, and Wasp in the cause now

before this Court

, trial cause number C

- 1928

- 17

- D. USIC , in part, claim ed FIE was

responsible for defending Cantu as an additional insured under Wasp ’ s insurance

, as

stipulated in the subcontract agreement

.

Two months later, on June 19, 2017, Cantu filed a cross

- claim against Wasp in

cause number C

- 7318

- 14

- H

, claiming contractual indemnity, breach of contract, and

contribution for Wasp ’ s “ wrongful failure to defend and indemnify Cantu for the claims

asserted against Cantu in the Underlying suit and for its failure to provide additional

insured coverage under the [FIE] policy to Cantu. ”

On September 14, 2017, after an initial Stowers demand letter went unanswered,

see G.A. Stowers Furniture Co. v. Am. Indem. Co. , 15 S.W.2d 544, 546 (Tex. Comm ’ n

App. 1929)

, counsel for Martinez sent Cantu and Wasp a subsequent demand letter in a

“ final attempt to settle

. . . for policy limits

. ” 2 USIC ’ s counsel sent a letter to FIE ’ s counsel

dated September 21

, 2017

, acknowledging that Cantu and Wasp were in receipt of the

Stowers demand letter and proposing a settlement solution

. 3

be specifically endorsed to provide that Contractor ’ s coverage thereunder as an additional

insured is primary to and non

- contributory with any and all other insurance or self

- insurance

maintained by Contractor, irregardless of the “ other insurance ” provisions or related terms

of such insurance or self

- insurance.

2 Cantu had a primary and an excess policy with USIC, plaintiff in this case, totaling $3,000,000 in

coverage. Wasp had a $1,000,000 liability policy with FIE.

3 U SIC wrote, in part:

It is our intention, on behalf of USIC ’ s primary policy, to accept and tender $1 million to

plaintiffs by Friday ’ s noon deadline.

. . . Given this position, it is our client ’ s intent to make

known that USIC is willing to dismiss with prejudice to refiling the declaratory judgment

action in the event that [FIE] is willing to pay its full $1 million limit toward resolution of the

tort case on behalf of [Cantu], and the breach of contract action and cross [

- ] claim filed by

[Cantu] against [Wasp] will be dismissed with prejudice to refiling as well.6 On September 22, 2017, FIE

, through its attorney, offered to “ contribute its liability

limits of one million dollars towards the settlement of all claims against Wasp and Cantu, ”

conditioned on certain terms with respect to resolving the insurers ’ dispute:

(a) USIC ’ s agreement to resolve the coverage issues through litigation and

to pay FIE one million dollars should the court determine that FIE has no

coverage for the claims against Cantu and Wasp. If USIC prevails, then it

pays nothing

. . . (b) the dismissal of Cantu and Wasp from all litigation,

even if it means that USIC has to pay out of its excess policy to effectuate

this.

USIC responded, accepting F IE ’ s terms, save one condition:

In response to your letter of earlier today, USIC is in agreement that it is in

best interests of both [FIE] and USIC to provide [the mediator] with $2

million for use to settle the claim on behalf of both Cantu and Wasp. USIC

agrees that the insurers can continue their dispute regarding payment of

Farmer ’ s $1 million and the triggering of [FIE]’ s policy and ordering of

coverage in the context of a declaratory judgment suit.

. . . USIC will agree

that neither Cantu nor Wasp need to participate in the declaratory judgment

action if they are successfully settled out of their exposure in the underlying

tort matter.

USIC does not understand the other conditions set forth in your letter as

they appear to expand the scope of coverage that is owed by USIC ’ s

policies; therefore, USIC does not agree to them.

FIE ’ s counsel replied as follows:

To confirm our call, the part you objected to was the last phrase of condition

(b) which is that if the case cannot settle for 2 mill then USIC has to pay out

of its excess, and we still get back our million if we win on coverage. This

will only apply if the case does not settle at 2. You advise that for now you

do not plan on offering any more than 2 mill so that contingency is not

extant.

With that understanding, and our agreement that [a case] doesn ’ t apply, we

have a deal.

USIC counsel responded, confirming, “ Deal done at $2M for Cantu and Wasp

. Eddie

inking

. . . . ” On the same day FIE and USIC confirmed agreement to payout a settlement

in cause number C

- 7318

- 14

- H on behalf of Wasp and Cantu

, Cantu agreed to settle all7 cross

- claims against Wasp and Cantu assigned its claims against Wasp to USIC

. It is

unclear whether the settlement of the cross

- claims or the assignment occurred first.

Also on September 22, 201 7

, FIE filed its traditional motion for summary judgment

in the cause before this Court

, arguing

, for reasons explored infra

, that “ it owes Wasp and

Cantu neither defense nor indemnity under the policy of insurance it issued to Wasp, for

either the principal claim of Martinez, the cross

- claim of Cantu against Wasp, or the

intervention of Service Lloyd [ 4 ] ”

.

Following continued communications between USIC, FIE, Wasp, and Cantu on

October 30, 2017, USIC propose d a “ counter proposed agreement. ” The proposed

agreement still required that FIE pay $1 million and USIC pay $1 million to settle the

claim s

, but it removed the following provision includ ed in the prior agreement :

All claims, cross claims, third party demands, counterclaims and/or

interventions will be dismissed with prejudice, each party to bear their own

costs. Plaintiffs, Wasp Construction, LLC, Alonzo Cantu Construction

Company, Inc. forever release one another, their employees, agents,

officers, directors, members, partners and shareholders of and from any

liability that was asserted or could have been asserted in the underlying suit.

Then, on November 2, 2017, counsel for USIC sent out the following email to counsel for

FIE

, Wasp, Cantu, and Martinez:

Like [FIE]

, USIC is prepared to fund its $1M toward settlement of the claims

of Plaintiffs and the workers comp carrier.

Unlike [FIE]

, USIC ’ s agreement to fund the settlement was not contingent

upon entry of the rule 11 agreements proposed by [FIE]

. [FIE] has

unilaterally imposed this condition for funding. In addition, [FIE]’ s proposal

to tie funding of the tort suit to the declaratory judgment action is not

acceptable to USIC. The terms proposed by [FIE] in the “ all party ”

agreement are agreeable to USIC, subject to the minor edits shown in the

attached (Workshare compare copy also attached for convenience to show

edits). USIC has signed this agreement. The terms proposed by [FIE] as to

4 The workers compensation carrier, Service Lloyds Insurance Company intervened in the

underlying injury case to recoup its payments.8 the “ insurer only ” agreement are not acceptable to USIC, but USIC believes

that the insurers ’ dispute should not hold up funding of the underlying

settlement and allowing that matter to proceed to resolution, except for

resolution of issues presented by the contractual claims between Wasp and

Cantu and its cross

- claim that raises that issue.

The record does not include any correspondence that followed.

On November 9, 2017, FIE filed an amended traditional motion for summary

judgment to “ compel specific performance of [a] settlement agreement, to dismiss various

settled claims and parties, to specify the issues to be tried and relief to be awarded and

for fees and costs in bringing this motion. ”

On January 31, 2018, USIC amended its original petition to assert claims as

assignee and abrogee of C antu against W asp for breach of contract in cause number C

1928

- 17

- D

. “ [S]tanding in the shoes of Cantu, USIC seek[s] to have the Court reform the

Subcontract Agreement to reflect the true agreement between WASP and Cantu, ”

asserted USIC

. On February 1, 2018, USIC filed its “ Combined Traditional Motion for

Summary Judgment and Response to [FIE ’ s] Traditional Motion for Summary Judgment. ”

USIC principally argued Cantu is an additional insured under the FIE policy with respect

to the u nderlyi ng s uit

, and FIE ha d a duty to defend Cantu

.

Meanwhile, o n March 5, 2018, in cause number C

- 7318

- 14

- H, after Martinez

received his settlement and dismissed his claims against Wasp and Cantu, Wasp filed a

motion to dismiss claims asserted against it by Cantu. A hearing was held on Wasp ’ s

motion on March 29. Counsel for USIC was present and presented with the court with no

objection as to why Wasp ’ s request for dismissal of claims should not be granted. The

trial court thereby dismissed Cantu ’ s claims against Wasp with prejudice.9 On July 31, 2018, Wasp move d for summary judgment in C

- 1928

- 17

- D, arguing

USIC ’ s claims

, brought as an assignee on behalf of Cantu, are barred by res judicat a,

having already been dismissed with prejudice in the preceding cause number. In

response, USIC filed a cross

- motion for summary judgment against Wasp

, arguing that

the trial court in cause number C

- 7318

- 14

- H “ dismissed claims that no longer existed

before her ” because Cantu had previously assigned its claims against Wasp to USIC

.

Following multiple hearing s on the cross

- motions for summary judgment , t he trial

court granted summary judgment in favor of FIE on August 25, 2018, and in favor of Wasp

on February 25, 2019. This appeal followed.

II. FIE ’ S S UMMARY J UDGMENT

Asserting the trial court erred when it granted FIE ’ s traditional motion for summary

judgment and denied its motion for summary judgment, USIC argues the subcontract

signed by Cantu and Wasp was a valid and enforceable contract in effect prior to the

reported loss

, requiring that FIE defend and indemnify Cantu as an additional insured

under Wasp ’ s policy with FIE. Specifically, USIC contends the subcontract was in effect

on the date of the accident because (1) an oral agreement was in place, (2) reformation

applies, and (3) the written agreement merely formalized what had already been intended

by both parties.

A. Standard of Review and Applicable Law

On appeal, we review de novo a trial court ’ s summary judgment ruling. See Lujan

v. Navistar, Inc.

, 555 S.W.3d 79, 84 (Tex. 2018); Mann Frankfort Stein & Lipp Advisors,

Inc. v. Fielding

, 289 S.W.3d 844, 848 (Tex. 2009).10 When, as here, the parties file competing motions for summary judgment

, each

party bears the burden of establishing that it is entitled to judgment as a matter of law.

Fort Worth Transp. Auth. v. Rodriguez

, 547 S.W.3d 830, 837 (Tex. 2018) (citing City of

Garland v. Dall. Morning News

, 22 S.W.3d 351, 356 (Tex. 2000)). We review both parties ’

summary judgment evidence and determine all questions presented and render the

judgment that the trial court should have rendered. Id. “ [A] defendant who conclusively

negates at least one essential element of a cause of action or conclusively establishes all

the elements of an affirmative defense is entitled to summary judgment

. ” KCM Fin. LLC

v. Bradshaw

, 457 S.W.3d 70, 79 (Tex. 2015).

We construe insurance policies using ordinary rules of contract interpretation.

Tanner v. Nationwide Mut. Fire Ins. Co.

, 289 S.W.3d 828, 831 (Tex. 2009). “ Accordingly,

we give policy language its plain, ordinary meaning unless something else in the policy

shows the parties intended a different, technical meaning. ” Id. ; see Nassar v. Liberty Mut.

Fire Ins. Co.

, 508 S.W.3d 254, 258 (Tex. 2017) ( “ Unless the policy dictates otherwise,

[courts] give words and phrases their ordinary and generally accepted meaning, reading

them in context and in light of the rules of grammar and common usage. ” (quoting RSUI

Indem. Co. v. The Lynd Co

., 466 S.W.3d 113, 118 (Tex. 2015))). Courts must “ examine

the entire agreement and seek to harmonize and give effect to all provisions so that none

will be meaningless. ” Nassar

, 508 S.W.3d at 258.

If the parties offer differing constructions of the policy but only one is reasonable,

then the policy is unambiguous

, and we will adopt the reasonable interpretation. Id. (citing

Grain Dealers Mut. Ins. Co. v. McKee

, 943 S.W.2d 455, 459 (Tex. 1997)); see Liberty

Surplus Ins. Corp. v. Exxon Mobil Corp.

, 483 S.W.3d 96, 100

– 01 (Tex. App.

— Houston11 [14th Dist.] 2015, pet. denied)

. Alternatively, if we determine that both interpretations are

reasonable, then the policy is ambiguous. Nassar

, 508 S.W.3d at 258

. The parties ’ mere

disagreement about the contract ’ s meaning does not create an ambiguity. See In re

Deepwater Horizon

, 470 S.W.3d 452, 464 (Tex. 2015). Whether a contract is ambiguous

is a question of law. Id.

B. Discussion

Here, o n August 26, 2014

, Wasp and Cantu executed a purchase agreement

which did not include any insurance or indemnification language

. Martinez was injured on

August 30, 2014, and he filed suit on September 9, 2014. O n October 9, 2014

, Wasp and

Cantu signed a sub contract requiring that Wasp add Cantu as an additional insured on

its FIE policy. The contract contains language indicat ing it was “ made ” on September 12,

2014.

The parties agree that Cantu was ultimately never named in the FIE policy or

expressly included as an additional insured in an endorsement or certificate of insurance,

and no written agreement to include Cantu as an additional insured existed prior to the

accident giving rise to the claim. See In re Deepwater Horizon

, 470 S.W.3d at 464; s ee

generally Transp. Intern. Pool, Inc. v. Cont ’ l Ins. Co.

, 166 S.W.3d 781, 786 (Tex. App.

—

Fort Worth 2005, no pet.) (explaining “ [a]n additional insured is a party protected under a

policy without being named in the policy ” )

. USIC, however, argues that (1) Wasp and

Cantu had an oral agreement entered prior to Martinez ’ s accident, which was eventually

memorialized in written form ; (2) the FIE policy only required written contract, which Wasp

and Cantu have; (3) thus, Cantu is an additional insured

, and FIE must act accordingly.12 FIE counters that its insurance policy, while providing for additional insured

coverage, limits said coverage to those agreed upon in writing prior to a reported

incident

— i.e., “ FIE policy requires that at the time of the loss that Wasp and Cantu ‘ have

agreed [note past tense] in writing ’ to name Cantu. ” FIE contends it is, therefore, irrelevant

whether there was an oral agreement in place prior to the accident, as a post

- loss written

agreement would effectively nullify the import of the policy ’ s requirement that any liability

coverage be in writing. We agree with FIE.

The FIE “ additional insured ” provision, in relevant part, provides as follows:

Any person or organization for whom you are performing operations is also

an insured, if you and such person or organization have agreed in writing in

a contract or agreement that such person or organization be included as an

additional insured on your policy

. Such person or organization is an

additional insured only with respect to liability arising out of your ongoing

operations performed for that insured. A person ’ s or organization ’ s status

as an insured under this paragraph ends when your operations for that

insured are completed or the contractor ’ s agreement is terminated.

(Emphasis added). The additional insured provision in this case unambiguously limits

FIE ’ s obligations to only Wasp and those entities with whom Wasp directly contracts in

writing for additional coverage. 5 See JP Energy Mktg., LLC v. Commerce & Indus. Ins.

Co.

, 412 P.3d 121, 125 (Okla. Civ. App. Div. 2017) (finding similar language

unambiguous); Liberty Ins. Corp. v. Ferguson Steel Co., Inc.

, 812 N.E.2d 228, 229 (Ind.

Ct. App. 2004) (same); see also Samsung Fire & Marine Ins. Co. Ltd. v. RLI Ins. Co.

, No.

655169/2016, 2018 WL 310322, at *5 (N.Y. Sup. Ct. Jan. 3, 2018) (same); Essex Ins. Co.

v. Do It All Inv. Group, Inc.

, No. 1:11

- CV

- 03120

- JOF, 2012 WL 13009098, at *4

– 5 (N.D.

Ga. Sept. 21, 2012) (same). FIE ’ s interpretation, asserting that the policy implicitly

5 As the parties note in their respective briefs, this issue of whether a pre

- loss oral agreement can

bind an insurer requiring a written agreement finds little to no guidance in Texas jurisprudence.13 requires a written agreement executed before an event for coverage occurs

, is one which

has also been embraced by several sister state courts. See Cusumano v. Extell Rock,

LLC

, 86 A.D.3d 448, 628

– 29 (N.Y. A.D. 1 Dept. 2011) (holding “ Hard Rock was not

entitled to additional insured status ” where insurance policy provided coverage to

additional insureds when “ you have agreed

, in writing

, in a contract or agreement that

another person or organization be added as an additional insured, ” and the construction

agreement requiring additional insured coverage “ was not signed at the time of the

accident ” ); Cincinnati Ins. Co. v. Gateway Const. Co., Inc.

, 865 N.E.2d 395, 399 (Ill. 2007)

(holding where there was “ no written agreement at the time of the accident, no other

documentation confirming additional insured coverage at the time of the accident, ” and

any written agreement stipulating to an additional insured coverage was not executed

until after the accident

, there was no coverage because the policy required that “ All

corporations, partnership[s] and or/[ sic ] affiliated individuals promised to be added as

additional insured[s] under a written contract with the Named Insured. ” ); cf. LMIII Realty,

LLC v. Gemini Ins. Co.

, 90 A.D.3d 1520, 1521 (N.Y.A.D. 4 Dept. 2011) (finding a written

but unsigned purchase order, which included an additional insured endorsement, but was

not signed until after a claim arose

, was sufficient to obligate an insurer to add a third

party as an additional insured to the policy); s ee also Essex Ins. Co.

, 2012 WL 13009098,

at *4

– 5 (interpreting a policy stating

, “ as an additional insured, any person or organization

to whom you are obligated by valid written contract to provide such coverage but only as

respects negligent acts or omissions

, ” as requiring a “ valid[,] written ” contract before

coverage of an event despite evidence that “ the parties may have expressed their

acceptance of certain material terms of the subcontractor agreement by their actions ” ). In14 the aforementioned cases, as here, the policies did not plainly dictate that written

agreements for additional insureds be executed prior to the event requiring coverage.

However, the courts nonetheless held the policies required the insured and prospective

additional insured to have entered into a written contract prior to an incident in order for

additional insured status to attach.

In one particular case cited by FIE, an Indiana appellate court observed that though

evidence established there was an oral agreement between an insured and potential

additional insured

, which was later reduced to writing, the court interpreted the insured ’s

policy provision 6 as requir ing “ that the written agreement between the contracting

parties

. . . exist prior to commencement of work. ” Liberty Ins. Corp. v. Ferguson Steel

Co., Inc.

, 812 N.E.2d 228, 230

– 31 (Ind. Ct. App. 2004). The court’s rational e was clear

—

a policy’s requirement of a written contract would be rendered meaningless if we

determined that the writing could occur post

- reportable loss or that an oral promise

occurring prior to the loss could suffice to bind an insurer

. See Cincinnati Ins. Co.

, 865

N.E.2d at 399; Liberty Ins. Corp.

, 812 N.E.2d at 230

– 31 ( “ Liberty cannot insure a party

without knowledge of the name of the party, the period of coverage, or of its obligation to

do so. ” ); see also Cerestar USA, Inc. v. Safway Steel Products, Inc.

, No. 3:02

- CV

- 123

RM, 2005 WL 8170921, at *8 (N.D. Ind. Jan. 3, 2005) (providing that an insurer “ has a

right to protect itself against responsibility for informal verbal agreements between

contractors by requiring that agreements be in writing, and a holding to the contrary would

6 The policy provision was quoted as follows:

[A]ny person or organization for whom you are performing operations when you and such

person or organization have agreed in writing in a contract or agreement that such person

or organization be added as an additional insured on your policy.

Liberty Ins. Corp. v. Ferguson Steel Co., Inc.

, 812 N.E.2d 228, 229 (Ind. Ct. App. 2004)

.15 allow for the creation of coverage by reducing oral agreements to writing after loss has

occurred, in effect making coverage retroactive despite the terms of the policy ” ) (internal

quotations omitted); see generally In re Deepwater Horizon

, 470 S.W.3d at 461 (analyzing

an excess

- insurance policy provision and determining that an “ insurer ’ s obligation

depended on what it contracted to do

, not what the insured contracted with another

person to do ” ); ATOFINA Petrochemicals, Inc. v. Cont ’ l Cas. Co.

, 185 S.W.3d 440, 443

–

44 (Tex. 2005) (holding an entity

, Fina, was an additional insured at the time of the

accident because there was nothing in the liability policy indica ting that issuance of a

certificate was a condition precedent to Fina ’ s becoming an additional insured

, the

certificate was requested prior to the accident but issued after

, and “ [n]othing in the record

indicates that Fina and A & B attempted to manufacture coverage after the accident ” ).

USIC urges us to consider extrinsic evidence, such as the deposition testimony of

Wasp and Cantu employees

, when interpreting the policy. Because the policy language

is unambiguous, such consideration would be inappropriate. 7 See Nassar

, 508 S.W.3d at

258. Even if extrinsic evidence were necessary in order to determine the intent of the

parties to the insurance contract, the deposition testimony refers only to what Cantu and

Wasp intended regarding their respective obligations under the Cantu

– Wasp contract.

See Barrow

- Shaver Res. Co. v. Carrizo Oil & Gas, Inc. , 590 S.W.3d 471, 479 (Tex. 2019) ;

In re Deepwater Horizon , 470 S.W.3d at 461

. Th e deposition testimony has no relevance

as to what Wasp and FIE intended for their respective obligations to be under the FIE

insurance contract. See Westfield Ins. Co. v. FCL Builders, Inc.

, 948 N.E.2d 115, 120 ( Ill.

7 Having determined that the policy is unambiguous and requires that a written agreement be in

place prior to a reported event, we need not consider a possible oral agreement in place prior to the event

and whether Cantu is entitled to the reformation of said agreement

.16 App. 1 Dist., 2011) ) (finding the consideration of deposition evidence and terms of a

separate contract involving the insured business and a potential additional insured

inappropriate when an appellate court is reviewing what an insurer and insured intended

under the insurance policy contract); U.S. Fid. & Guar. Co. v. Coastal Ref. & Mktg., Inc.

,

369 S.W.3d 559, 568 (Tex. App.

— Houston [14th Dist.] 2012, no pet.) (observing, in the

context of excess insurance coverage, that the appellate court ’s analysis “ does not

depend on Coastal ’ s intent regarding the effect of its agreement with Weaver ” in which

Weaver agreed to provide primary coverage to Coastal, because “ [n]one of the insurers

were parties to the agreement between Weaver and Coastal ” ) ; see also Samsung Fire

,

2018 WL 310322, at *5 (providing that the question of “ coverage (including a given

policy ’ s priority vis

- à

- vis other policies) is controlled by the insurance policy terms, not by

the terms of the underlying trade contract ” )

.

Thus, this C ourt finds that the language of the a dditional i nsured p rovision of the

FIE policy can only engender one reasonable meaning. That is, in order for Cantu to

become an additional insured, Wasp and Cantu must have agreed via a written contract

or agreement

— and the written form must have occur red prior to the reported loss

— which

it did not . W e conclude that FIE has conclusively established through its summary

judgment motion and attached evidence that it was entitled to judgment as a matter of

law. Accordingly, we overrule USIC’s first issue on appeal and affirm the trial court’s

granting of FIE’s motion for summary judgment.

III. W ASP ’ S S UMMARY J UDGMENT

USIC, as the assignee and subrogee of Cantu, argues Wasp breached the

subcontract with Cantu in its failure to defend or indemnify Cantu for claims asserted17 against Cantu in the underlying suit with Martinez. Wasp counters that USIC ’ s claim

against it is barred by res judicata.

A. Standard of Review and Applicable Law

Res judicata is an affirmative defense. T EX

. R. C IV

. P

. 94. A defendant moving for

summary judgment on an affirmative defense such as res judicata must conclusively

prove the elements of that defense. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860,

862 (Tex. 2010). Specifically, it requires proof of the following elements: (1) a prior final

judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those

in privity with them; and (3) a second action based on the same claims as were raised or

could have been raised in the first action. Amstadt v. U.S. Brass Corp.

, 919 S.W.2d 644,

653 (Tex. 1996) (providing that the doctrine ’ s purposes are to prevent a defendant from

being “ twice vexed for the same acts, and to achieve judicial economy by precluding those

who have had a fair trial from relitigating claims ” ).

There “ at least three ways ” in which to show privity between two parties: “ (1) they

can control an action even if they are not parties to it; (2) their interests can be represented

by a party to the action; or (3) they can be successors in interest, deriving their claims

through a party to the prior action. ” Id. ; see Getty Oil Co. v. Insurance Co. of N. Am., 845

S.W.2d 794, 800 (Tex. 1992) ( “ There is no general definition of privity that can be

automatically applied in all res judicata cases; the circumstances of each case must be

examined. ” ) ; see also Friedman v. Rozzlle

, No. 13

- 12

- 00779

- CV, 2013 WL 6175318, at

*6 (Tex. App.

— Corpus Christi

– Edinburg Nov. 21, 2013, pet. denied) (mem. op.).

Essentially, privity exists “ if the parties share an identity of interests in the basic legal right

that is the subject of litigation, ” and “ [ t] o determine whether a prior and later lawsuit involve18 the same basic subject matter, we focus on the factual basis of the complaint. ” Amstadt

,

919 S.W.2d at 653 (citing Barr v. Resolution Tr. Corp. ex rel. Sunbelt Fed. Sav

., 837

S.W.2d 627, 630 (Tex. 1992) ; see Samuel v. Fed. Home Loan Mortg. Corp.

, 434 S.W.3d

230, 234 (Tex. App.

— Houston [1st Dist.] 2014, no pet.) ( “ The main concern is whether

the cases share the same nucleus of operative facts. ” ).

B. Discussion

Under the foregoing standards, we consider whether Wasp ha s conclusively

established that res judicata bars USIC’s suit.

O n March 29, 2018

, the trial court in the underlying suit granted Wasp ’ s motion to

dismiss Cantu ’ s claims against it with prejudice

. With respect to the first element, a

dismissal with prejudice constitutes a final determination on the merits for res judicata

purposes. Harris Cty. v. Sykes, 136 S.W.3d 635, 640 (Tex. 2004); Better Bus. Bureau of

Metro. Hous., Inc. v. John Moore Services, Inc.

, 500 S.W.3d 26, 40

– 41 (Tex. App.

—

Houston [1st Dist.] 2016, pet. denied). Moreover, to the third element, the subject of both

the underlying case and the present case is FIE ’ s liability policy with Wasp and, more

specifically, whether Wasp owed a duty under that policy to defend and indemnify Cantu.

The only substantive difference between the two cases is that USIC, rather than Cantu,

is asserting Cantu ’ s rights in the present case. See Samuel

, 434 S.W.3d at 235

– 36; Truck

Ins. Exch. v. Mid

- Continent Cas. Co.

, 320 S.W.3d 613, 618

– 19 (Tex. App.

— Austin 2010,

no pet.). Thus, our discussion focuses on the second element of whether privity exists.

See Amstadt

, 919 S.W.2d at 630.

USIC urges this Court to employ the analysis rendered by our sister court in

Equitable Recovery, L.P. v. Heath Ins. Brokers of Tex., L.P. and find that the “ dismissal19 order has no effect on USIC ’ s

. . . right to bring its claims against Wasp ” because there is

no privity between the parties. 235 S.W.3d 376, 387 (Tex. App.

— Dallas 2007, pet. dism ’ d)

( “ A party who does not own a claim is unable to release it. ” ). We find this case to be

distinguishable. In Equitable

, the appeal turned on the “ effect of a settlement of one of

two sets of fraud

- related claims involving two separate liability policies issued by the same

insurer, [Caliber], to two different insureds

, ” 22 Texas Services, L.P. and 22 Keystone

Services, L.P. (22 Texas) and Senior Living Properties, L.L.C. (SLP)

. Id. at 379. Caliber

sued 22 Texas and SLP alleging fraudulent inducement

. Id. 22 Texas and SLP “ blam[ed] ”

their wholesale insurance brokers, Heath Insurance Brokers of Texas, L.P., Heath

Insurance Brokers, Inc., Heath Holdings USA, Inc., and HIB GP, Inc. (Heath) and Clair

Odell Insurance Agency, L.L.C. (Od ell)

, respectively. Id. at 380.

While SLP ’ s suit was pe nding, it filed for bankruptcy, and Heath and Odell filed

proof s of claim as creditors. Id. at 381. To resolve its pending state

- court coverage

disputes, SLP litigated them in a bankruptcy adversary proceeding ; SLP sued Caliber

(and others) 8 for contract breach and declaratory relief, and Caliber counterclaimed. Id.

Caliber and SLP ultimately settled all their policy

- related disputes. Id. The Caliber

– SLP

settlement “ narrowly specified the claims it was assigning to be related to the SLP

– Policy

only, a defined term, never mentioning the [22 Texas claims]. ” Id. A t that time, the 22

Texas claims were owned by 22 Texas, not Caliber, because Caliber had earlier settled

with 22 Texas and assigned its claims against Heath to 22 Texas

. Id. at 381

– 82.

22 Texas eventually assigned the claims to Equitable

, which then brought a suit

as assignee to recover what Caliber paid 22 Texas in the settlement. Id. In the case before

8 22 Texas were not parties to the adversary or bankruptcy proceedings. Id.20 our sister court, Heath sought summary judgment on, in part, the affirmative defense of

res judicata on Equitable claims, which the trial court granted. Id. at 379. The appellate

court affirmed in part and reversed on Heath ’ s affirmative defense. Id.

Heath argued on appeal that the bankruptcy court ’ s dismissal of the Caliber

- SLP

claims “ also extinguished Equitable [22 Texas claims] as a matter of law. ” Id. at 380. The

appellate court disagreed, finding that “ the [22 Texas claims] were not owned by any party

to any transaction that Heath argues extinguished the [22 Texas claims] when those

transactions were executed or occurred

. ” Id. at 380

. In fact, the party owning the claims

were not involved in any capacity. Id. at 380

– 82.

These are materially different facts than those before this Court today. USIC ’ s

involvement throughout the underlying litigation is of import here

. See id. USIC

— though

not named in the underlying lawsuit

— acknowledges that it (1) was involved in the

settlement negotiations and (2) at minimum, 9 was present when the trial court granted

Wasp ’ s motion to dismiss claims brought by Cantu against it

. A relevant portion of the

reporter ’ s record from the underlying suit reads as follows:

THE COURT: C

- 7318

- 14

- H; Hector Guadalupe vs. WASP, LLC. Let ’ s

go.

MR. QUEZADA: Jesse Quezada here on behalf of the defendant,

WASP Construction, Your Honor. I filed a Motion to

Dismiss the claims against my client by Cantu

Construction. There ’ s a Rule 11 that was entered into

by Counsel for

— I ’ m going to tender Exhibit Number 1.

It ’ s a Rule 11 agreement as between the parties, it

settled all the claims. Apparently, there ’ s litigation

going on in Judge Rose Reyna ’ s court between the

insurance company that funded the settlement in this

case and apparently they ’ re taking the position that

they ’ d rather wait on the dismissal of this case until

9 USIC argues on appeal that its counsel did not “ acquiesce[] to the entry of the dismissal order

. ”21 other issues are resolved in Judge Rose Reyna ’ s court.

Our position is we want the case dismissed.

THE COURT: Okay. This had to do with which defendant?

MR. QUEZADA: Defendant Cantu Construction.

THE COURT: No, I understand, but who was objecting.

MRS. ELIZONDO: Cantu Construction. Liliana Elizondo on behalf of

Alonzo Cantu Construction.

MRS. GREEN: And Mary Green, Your Honor on behalf of United

Specialty, the insurer for Cantu.

MRS. ELIZONDO: Cantu Construction has assigned its claims to its

carrier. The settlement was entered into. That Rule 11

was entered into at the same time that an agreement

was made between the carriers for WASP and Cantu

to also settle their claims or resolve them in a specific

way. And that ’ s why Mrs. Green is here, so she can

represent things to the Court about that, but since that

is ongoing in the other court, we feel that any dismissal

of these claims

—

THE COURT: My case is done. I don ’ t understand why I should keep

it on my books.

MRS. GREEN: Your Honor

—

THE COURT: My case is settled.

MRS. GREEN: Yes, Your Honor.

THE COURT: Do you have any case law, anything that says I should

keep it on the books?

MRS. GREEN: No, Your Honor.

THE COURT: Okay. We ’ re done. It ’ s dismissed.

. . . .

THE COURT: The Court is also signing the Order Granting

Defendant/Cross Defendant WASP Construction, LLC

Motion to Dismiss with prejudice.22 MR. QUEZADA: Thank you, Your Honor.

THE COURT: And I ’ ll ask you again, do you have anything to show

me why I shouldn ’ t do that?

MRS. GREEN: No, Your Honor.

THE COURT: Okay. It ’ s signed. Thank you.

Several months prior, on the same day FIE and USIC confirmed agreement to

payout a settlement in the underlying suit on behalf of Wasp and Cantu: (1) Cantu

assigned its claims against Wasp to USIC

, and (2) Cantu ’s counsel executed a letter

signed by counsel for Cantu, Wasp, and the plaintiffs, confirming the agreement

reached

— which included the settlement of its claims against Wasp :

[Plaintiffs] have agreed to settle all claims against [Cantu] [as] well as all

claims against [Wasp], in the above referenced matter in exchange for two

million dollars ($2,000,000.00). Further, this letter shall serve as

confirmation that [Cantu] has agreed to settle all cross

- claims against

[Wasp] in the above reference matter.

The language used in Cantu ’ s email to Wasp would indicate that it had the authority

to settle its claims, and USIC has not elucidated which occurred first

— the assignment or

Wasp ’ s agreement to settle claims

— in either its brief or when questioned during oral

argumen t. Although there was brief mention of the assignment at the dismissal hearing,

t he record does not indicate whether Cantu amended its pleadings in the underlying suit

to reflect the assignment , and the order granting Wasp’s m otion to d ismiss w ith prejudice

appears to have taken into consideration the pleadings on file in the court.

In any matter, e xhibits before the trial court at bar demonstrate that USIC had

“ control [of the] action even if they [were] not parties to it, ” had “ interests

. . . represented

by a party to the action, ” and now “ deriv[e] their claims through a party to the prior action. ”23 Amstadt

, 919 S.W.2d at 653

. This is what is needed to prove privity, and USIC cannot

now, where it previously exerted its presence, benefit from an unnamed party status in

the underlying suit

. See id. ; see also Porterfield v. Cenlar FSB

, No. 05

- 14

- 00663

- CV,

2016 WL 1019359, at *6 (Tex. App.

— Dallas Mar. 15, 2016, no pet.) (mem. op.) ; cf.

Benson v. Wanda Petroleum Co.

, 468 S.W.2d 361, 364 (Tex. 1971) (holding no res

judicata where “ the plaintiff in the later suit was neither a party to the former action nor in

privity with any party in the sense that his rights were derived from one who was a party;

and the cause of action always had been that of the present plaintiff who had no voice in

the conduct of the prior suit, with no right to examine witnesses or to take other action to

protect his interests ” ); Equitable Recovery

, 235 S.W.3d at 384

– 85 ; see generally C.I.R.

v. Sunnen

, 333 U.S. 591, 597 (1948) ( “ [Res judicata] rests upon considerations of

economy of judicial time and public policy favoring the establishment of certainty in legal

relations. ” )

.

For the foregoing reasons, we conclude that Wasp has conclusively established

through its summary judgment motion and attached evidence that it was entitled to

judgment as a matter of law on the basis of res judicata

. Accordingly, we overrule USIC’s

second issue and affirm the judgment of the trial court granting Wasp’s motion for

summary judgment

.

I V

. C ONCLUSION

We affirm the trial court ’ s judgment s

.

GREGORY T. PERKES

Justice

Delivered and filed the

29th day of October

, 2020.