UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARTY AGEE and CAROLINA AGEE,

Plaintiffs,

VS.

HARTFORD ACCIDENT AND

INDEMNITY COMPANY,

Defendant.

)

)

)

)

) CIVIL ACTION NO.

)

) 3:22-CV-1697-G

)

)

)

MEMORANDUM OPINION AND ORDER

Before the court is the defendant’s motion to dismiss, docket entry 24, the

third amended complaint for failure to state a claim. For the reasons set forth below,

the motion is GRANTED IN PART and DENIED IN PART. The Agees’ request to

abate their extra-contractual claims is also DENIED.

I. BACKGROUND

This is the court’s second memorandum opinion in this case, and the court

therefore incorporates from its previous opinion the factual background of this

motion. See generally Memorandum Opinion and Order (docket entry 22). In sum,

on September 24, 2019, Joseph Barrera (“Barrera”) rear-ended the plaintiff Marty

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Agee (“Agee”), who was standing behind his vehicle, and the vehicle itself. Plaintiffs’

Third Amended Complaint (“Third Amended Complaint”) (docket entry 23) ¶¶ 3.02,

6.03. At the time of the collision, Agee had underinsured motorist (“UIM”)

insurance coverage under a commercial automobile policy issued to his employer. Id.

¶ 5.01. With the defendant-insurer’s consent, Agee had already settled his claims

against Barrera before filing this suit. Id. ¶ 5.04. The defendant Hartford Accident

and Indemnity Company (“Hartford”) denied Agee’s UIM claim for damages that

exceeded the Barrera settlement. Id. ¶¶ 5.05-5.07. This dispute arises from

Hartford’s denial of Agee’s and his wife Carolina Agee’s (collectively, “the Agees”)

claim. Id.

Previously, Hartford had filed a motion to dismiss the Agees’ second amended

complaint for failure to state a claim. Defendant Hartford Accident and Indemnity

Company’s Motion to Dismiss Plaintiff’s Second Amended Complaint for Failure to

State a Claim Pursuant to Federal Rule of Civil Procedure 12(b)(6) (docket entry

11). The court granted the motion because the Agees failed to plead a predicate

declaratory judgment claim or sufficient facts for UIM benefits. Memorandum

Opinion and Order at 7-9. The Agees were given the opportunity to amend their

complaint to cure these defects. Id.

On January 9, 2023, the Agees filed their third amended complaint. Third

Amended Complaint. On January 30, 2023, in lieu of an answer, Hartford filed

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another motion to dismiss. Defendant Hartford Accident and Indemnity Company’s

Motion to Dismiss Plaintiffs’ Third Amended Complaint for Failure to State a Claim

Pursuant to Federal Rule of Civil Procedure 12(b)(6) (docket entry 24); Defendant

Hartford Accident and Indemnity Company’s Brief in Support of Motion to Dismiss

Plaintiffs’ Third Amended Complaint for Failure to State a Claim Pursuant to Federal

Rule of Civil Procedure 12(b)(6) (“Brief in Support”) (docket entry 25). The Agees

responded to the motion on February 20, 2023. Plaintiffs’ Response to Defendant’s

Motion for Dismiss Plaintiffs’ Third Amended Complaint for Failure to State a Claim

Pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Response”) (docket entry 26). 

Hartford filed its reply on March 6, 2023. Defendant Hartford Accident and

Indemnity Company’s Brief in Support of Reply to Plaintiff’s Response in Opposition

to Defendant’s Motion to Dismiss (“Reply”) (docket entry 28). The motion is now

ripe for decision.

II. ANALYSIS

A. Legal Standard

“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead

‘enough facts to state a claim to relief that is plausible on its face.’” In re Katrina

Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic

Corporation v. Twombly, 550 U.S. 544, 570 (2007)), cert. denied, 552 U.S. 1182

(2008). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not

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need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555

(citations, quotation marks, and brackets omitted). “Factual allegations must be

enough to raise a right to relief above the speculative level, on the assumption that all

the allegations in the complaint are true (even if doubtful in fact).” In re Katrina

Canal, 495 F.3d at 205 (quoting Twombly, 550 U.S. at 555) (internal quotation

marks omitted). “The court accepts all well-pleaded facts as true, viewing them in

the light most favorable to the plaintiff.” Id. (quoting Martin K. Eby Construction

Company, Inc. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004))

(internal quotation marks omitted).

The Supreme Court has prescribed a “two-pronged approach” to determine

whether a complaint fails to state a claim under Rule 12(b)(6). See Ashcroft v. Iqbal,

556 U.S. 662, 678-79 (2009). The court must “begin by identifying the pleadings

that, because they are no more than conclusions, are not entitled to the assumption

of truth.” Id. at 679. The court should then assume the veracity of any well-pleaded

allegations and “determine whether they plausibly give rise to an entitlement to

relief.” Id. The plausibility principle does not convert the Rule 8(a)(2) notice

pleading to a “probability requirement,” but “a sheer possibility that a defendant has

acted unlawfully” will not defeat a motion to dismiss. Id. at 678. The plaintiffs must

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“plead[ ] factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. “[W]here the well-pleaded

facts do not permit the court to infer more than the possibility of misconduct, the

complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to

relief.’” Id. at 679 (alteration in original) (quoting FED. R. CIV. P. 8(a)(2)). The

court, drawing on its judicial experience and common sense, must undertake the

“context-specific task” of determining whether the plaintiffs’ allegations “nudge” their

claims against the defendant “across the line from conceivable to plausible.” See id.

at 679, 683.

B. Application

1. Scope of Amended Complaint

First, Hartford argues that the Agees’ third amended complaint exceeds the

court’s leave to amend their complaint. Brief in Support at 6; see Memorandum

Opinion and Order at 8. The court, in its previous opinion, granted Hartford’s

motion to dismiss but permitted the Agees the opportunity to replead. 

Memorandum Opinion and Order at 9. The court specifically ordered: “The

plaintiffs shall have twenty days from the date of this order to replead their claims. 

Failure to file and serve a third amended complaint within that time, seeking a

declaratory judgment as to the tortfeasor’s liability and underinsured status, will

result in dismissal of this suit without further notice.” Id. Hartford argues that the

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plaintiffs go beyond the court’s leave to “once again assert extra-contractual claims

for bad faith and unspecified violations of the Texas Insurance Code.” Brief in

Support at 6. Additionally, Hartford argues that the plaintiffs do not attempt to

allege an independent injury. Id. Thus, Hartford contends, all of the Agees’ claims

except for the declaratory judgment claim should be dismissed.

The court disagrees that the Agees have inappropriately exceeded the leave

granted them to amend their complaint. The court ordered the Agees to amend their

complaint to include a “declaratory judgment [claim] as to the liability and

underinsured status [of the tortfeasor.]” Memorandum Opinion and Order at 8. 

Alternatively, the plaintiffs were permitted to attempt to allege an independent

injury, but were not required to do so. Id. Here, the Agees filed their third amended

complaint with a declaratory judgment claim, and the court concludes that the

plaintiffs have satisfied the court’s order. Further, the Agees had pleaded extracontractual claims in the second amended complaint so these claims are not new to

the litigation. See Plaintiffs’ Second Amended Original Complaint (docket entry 10)

¶ 4.05; see also Third Amended Complaint ¶ 6.03. Because the court did not limit

how the plaintiffs could replead, the court will not strike the contractual and extracontractual claims on this basis alone.

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2. Breach of contract and extra-contractual claims

Second, Hartford argues that the Agees’ breach of contract claim should be

dismissed because Agee has not established that Hartford has an obligation to pay

UIM benefits. Brief in Support at 8-9. Because Hartford is not obligated to pay

UIM benefits until the plaintiffs establish that their damages exceed the tortfeasor’s

available insurance, the Agees’ breach of contract claim is not ripe and should be

dismissed for failure to state a claim upon which relief can be granted. Id. at 9. The

plaintiffs contend they do not assert a breach of contract claim. Response at 8-9. 

Upon review of the arguments and the third amended complaint, the court concludes

that the third amended complaint does not assert a breach of contract claim. See

generally Third Amended Complaint.

Consequently, the plaintiffs’ extra-contractual claims are dismissed because the

plaintiffs do not assert a breach of contract claim. The Agees’s extra-contractual

claims include claims of bad faith and violations of the Texas Insurance Code. Third

Amended Complaint ¶¶ 6.03(j)-(k) (“[P]laintiffs are entitled to separate additional

damages from [Hartford] for bad faith and violations of the Texas Insurance Code

including statutory, punitive and/or exemplary damages, and attorneys fees . . . .”). 

Absent a breach of contract claim, the Agees cannot under Texas law assert their

extra-contractual claims. The general rule in Texas is that “an insured cannot recover

policy benefits for an insurer’s statutory violation if the insured does not have a right

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to those benefits under the policy.” USAA Texas Lloyds Company v. Menchaca, 545

S.W.3d 479, 490 (Tex. 2018). 

This rule comes from the Texas Supreme Court’s opinion in Republic Insurance

Company v. Stoker, 903 S.W.2d 338, 341 (Tex. 1995). The insurer in Stoker originally

relied on an invalid reason to deny the insured’s claim but later asserted a valid

reason for denying the claim. See id. at 339. The insured sued for breach of contract

and bad faith. Id. at 339-40. The trial court granted summary judgment for the

insurer on the breach of contract claim because the policy did not cover the claim. 

Id. at 339. At trial, however, the jury found the insurer liable for the extracontractual claims, and the trial court awarded policy benefits as “extra-contractual

damages.” Id. at 339-40. The Texas Supreme Court reversed the judgment and held

that “as a general rule there can be no claim for bad faith when an insurer has

promptly denied a claim that is in fact not covered.” Id. at 341. Since Stoker, the

Texas Supreme Court has applied this rule to other types of extra-contractual

violations, confirming the principle that “an insured who sues an insurer for statutory

violations can only recover damages ‘caused by’ those violations.” Menchaca, 545

S.W.3d at 490-491; see also Progressive County Mutual Insurance Company v. Boyd, 177

S.W.3d 919, 921 (Tex. 2005) (per curiam) (holding that a trial court’s take-nothing

judgment on a contract claim “negate[d]” the extra-contractual claims).

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Hartford argues that the extra-contractual claims must be dismissed because

the plaintiffs fail to plead either “a right to receive benefits under the policy” or “an

injury independent of a right to benefits.” Brief in Support at 11 (citing In re State

Farm Mutual Automobile Insurance Company, 629 S.W.3d 866, 872-73 (Tex. 2021)

(orig. proceeding)). In response, the Agees merely state that they do not assert a

breach of contract claim. Response at 9 (“There is no breach of contract claim and

there cannot be one until [the] Court properly determines the actual claim of

declaratory judgment.”). Thus, Hartford argues, Agees’ extra-contractual claims

should be dismissed because the Agees voluntarily removed their breach of contract

claim. Reply at 3. Without a breach of contract claim, Hartford argues, the plaintiffs

cannot establish that Agee has “a right to receive benefits under the policy,” In re

State Farm, 629 S.W.3d at 872-73, to hold Hartford liable for bad faith or statutory

violations. Reply at 4-5. 

Hartford cites State Farm to illustrate its argument. Id. at 3. In State Farm, the

plaintiffs chose only to assert extra-contractual claims, not a breach of contract claim. 

In re State Farm, 629 S.W.3d at 871. The Texas Supreme Court held that the trial

court’s award of extra-contractual damages was predicated on the insureds

establishing a right to policy benefits. Id. at 872-76. Therefore, the Texas Supreme

Court reversed the judgment because the plaintiffs had not proven that the insurer

had breached the contract, or alternatively, that the denial of policy benefits was an

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independent injury. Id. at 872-76. Here, Hartford argues that the Agees have not

pled a breach of contract claim or pled an injury independent of the insurance

contract, thus the claims should be dismissed. Reply at 3-4. The court agrees, and

the plaintiffs make no argument that they have pled a breach of contract claim or an

independent injury. See generally Response. 

The Agees contend, however, that their extra-contractual claims are ripe under

the Fifth Circuit’s opinion in Hamburger v. State Farm Mutual Auto Insurance Company,

361 F.3d 875 (5th Cir. 2004). Response at 12. The Hamburger court reasoned that

under Texas law the “insured does not have a bad faith cause of action against the

insurer for the insurer’s failure to attempt a fair settlement of a UIM claim after there

is a judgment against the insurer” so “an insured such as Hamburger could never

successfully assert a bad faith claim against his insurer for failing to attempt a fair

settlement of a UIM claim.” Hamburger, 361 F.3d at 880-81 (citing Mid-Century

Insurance Company of Texas v. Boyte, 80 S.W.3d 546, 549 (Tex. 2002)). Turning to the

Texas Supreme Court case on which Hamburger relies, it is clear that Boyte does not

except extra-contractual claims from the rule requiring plaintiffs to plead breach of

contract claims. See Boyte, 80 S.W.3d at 549. Instead, Boyte holds that is there is no

statutory duty to settle insurance claims post-judgment “[w]hen the only legal

relationship between the parties after judgment is debtor and creditor.” See id. 

Moreover, the Fifth Circuit in Hamburger in 2003 reasons that “[a]bsent a more clear

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indication from Texas courts . . . .” Hamburger, 361 F.3d at 880. Here, the court has

the benefit of almost twenty years of Texas state precedent indicating that extracontractual claims cannot be asserted without the predicate breach of contract claim. 

See In re State Farm, 629 S.W.3d 871; Menchaca, 545 S.W.3d at 490-491. The court

will apply settled Texas law by following the Texas Supreme Court’s precedent in

State Farm and Menchaca. In conclusion, the extra-contractual claims are dismissed

because they are claims for which the court cannot grant relief.*

3. Loss of Consortium

Next, Hartford argues that Mrs. Agee’s claims for loss of consortium and

household services should be dismissed because she was not a bystander or involved

in the vehicular accident. Brief in Support at 17-18. The plaintiffs, in turn, argue

that they are entitled to damages under the UIM policy for Mrs. Agee’s losses

because her claim is derivative of the injuries sustained by Agee. Response at 9-10. 

The court agrees with the plaintiffs.

Although loss of consortium is not considered a “bodily injury” under the

terms of an automobile insurance policy, loss of consortium is still actionable under

* The Agees request that the court abate their extra-contractual claim

until the declaratory judgment claim is concluded. Response at 14. Because

abatement would be futile in the absence of a breach of contract claim, the court

declines to do so. Additionally, the plaintiffs makes no argument why abatement is

appropriate as it “would unduly prolong the litigation . . . .” See Bays v. State Farm

Mutual Automobile Insurance Company, No. 3:98-CV-3027-D, 1999 WL 68648, at *2

(N.D. Tex. Feb. 4, 1999) (Fitzwater, J.).

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the injured spouse’s insurance policy. McGovern v. Williams, 741 S.W.2d 373, 376

(Tex. 1987). In McGovern, the Texas Supreme Court held “that when only one

person is actually involved in an automobile accident and sustains bodily injury in

that accident, [the statutory policy would] limit[] recovery for any and all claims to

the ‘per person’ [] limit.” Id. This does not deprive a spouse of his or her claim,

however, because it merely makes “a consortium claim and the bodily injury claim

subject to the ‘per person’ liability provided in the insurance policy.” Id.

Hartford cites Haralson v. State Farm Mutual Automobile Insurance Company, 564

F. Supp. 2d 616 (N.D. Tex. 2008) (Kaplan, M.J.), to support its theory that the

court cannot grant damages predicated on Mrs. Agee’s loss of consortium. Brief in

Support at 17. The court is not persuaded by Hartford’s argument because the only

plaintiff in Haralson was a non-injured spouse seeking loss of consortium damages,

and because the damages are derivative claims of a spouse’s injuries, the Haralson

court set aside the jury award for loss of consortium. See Haralson, 564 F. Supp. 2d

at 619, 626-27. In Haralson, the plaintiff’s husband sustained injuries in a car

accident, and the couple settled with the tortfeasor prior. Id. at 618. The wife filed a

separate claim on the UIM policy for her, inter alia, loss of consortium and household

services. Id. at 621. In relevant part, the jury awarded the wife $15,000 for her loss

of consortium claim and $1,000 for her loss of household services. Id. at 626. The

court set aside the jury verdict regarding the loss of consortium and loss of household

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services because the wife’s claim was “a derivative claim that arises solely as a

consequence of injuries to a spouse.” Id. (citing McGovern, 741 S.W.2d at 374). 

Thus, the claim would be the husband’s “bodily injury,” and the wife could not

recover damages in her own independent suit. See id. Here, there is not a similar

limitation as both the Agees are party to this suit. Consequently, Hartford’s motion

to dismiss the loss of consortium and loss of household services claims is denied.

4. Negligence Per Se

The plaintiffs allege that Barrera’s negligence amounts to negligence per se,

resulting from violations of the Texas Transportation Code. Third Amended

Complaint ¶ 4.02. These violations include sections 545.062, 545.351, 545.401, and

544.004 of the Texas Transportation Code. See id. Hartford moves to dismiss these

negligence per se claims because these statutes do not impose a mandatory standard of

conduct. Brief in Support at 18-19. The Agees did not respond to Hartford’s

arguments to dismiss their negligence per se claims. See generally Response.

Negligence per se is a common law doctrine where courts establish the duty of

care by reference to “a penal statute rather than on the reasonably prudent person

test used in pure negligence claims.” Smith v. Merritt, 940 S.W.2d 602, 607 (Tex.

1997). But not all penal statutes can serve as a basis for a negligence per se claim.

“Where a statute incorporates the ordinarily prudent person standard, negligence per

se does not apply because the statute does not establish a specific standard of

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conduct different from the common-law standard of care.” Supreme Beef Packers, Inc. v.

Maddox, 67 S.W.3d 453, 456 (Tex. App. – Texarkana 2002, pet. denied); Waring v.

Wommack, 945 S.W.2d 889, 891 (Tex. App. – Austin 1997, no writ) (holding that

violating a statutory duty to yield to oncoming traffic while turning is not negligence

per se because it “comes within the class of statutes in which the common-law

standard of the reasonably prudent man must be used.”). Courts assess whether a

penal statute incorporates the reasonably prudent standard by examining whether

“the statute imposes a conditional duty” instead of “an absolute duty.” Miranda-Lara

v. Rebert, No. 09-18-00325-CV, 2020 WL 5099968, at *4 (Tex. App. – Beaumont,

August 31, 2020, no pet.) (memo. op.) (citing Babiy v. Kelley, No. 05-17-01122-CV,

2019 WL 1198392, at *3 (Tex. App. – Dallas, Mar. 14, 2019, no pet) (mem. op.)). 

In transportation code statutes specifically, Texas courts ask whether the statute

allows “for the driver to make a discretionary call.” Miranda-Lara, 2020 WL

5099968, at *4. When a statute mandates drivers to exercise their own judgment,

such as proceeding only when it is safe, the statute reflects an ordinary standard of

care and negligence per se is not applicable. Supreme Beef Packers, 67 S.W.3d at 456. 

In contrast, when a statute requires all drivers to stop at a red flashing light, without

any discretion, the statute defines a mandatory standard of conduct instead of

standard of care. Id. In such a case, “it is redundant to submit a question on the

statutory standard or to instruct the jury regarding it, and the negligence per se

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standard is subsumed under the broad-form negligence question.” Smith v. Central

Freight Lines, Inc., 774 S.W.2d 411, 413-15 (Tex. App. – Houston [14th Dist.] 1989,

writ denied); Southern Pacific Company v. Castro, 493 S.W.2d 491, 495, 497-98 (Tex.

1973) (holding when a statute requires a driver to stop at a train tracks once he hears

“the statutory audible signal” or sees “the train . . . plainly visible,” the statute creates

a mandatory standard of conduct that supports a negligence per se claim). The court

will now address in turn the statutes the Agees’ claim Barrera violated. See Third

Amended Complaint ¶ 4.02.

On a highway, section 545.062 requires drivers to “maintain an assured clear

distance between the two vehicles so that, considering the speed of the vehicles,

traffic, and the conditions of the highway, the operator can safely stop without

colliding with the preceding vehicle or veering into another vehicle, object, or person

on or near the highway.” TEX. TRANSP. CODE § 545.062(a). Texas intermediate

appellate courts have held that section 545.062 “imposes on the driver the same duty

of reasonable care as that imposed under the common law.” Benavente v. Granger, 312

S.W.3d. 745, 749 (Tex. App. – [1st Dist.] Houston 2009, no pet.)(“[A] breach of

section 545.062 does not constitute negligence per se.”); Roberts v. Staples, 644

S.W.3d 738, 743 (Tex. App. – Texarkana 2022, no pet.) (same). “At its core, this

provision requires a driver to examine the context in which he is driving and conduct

himself in a manner that allows him to ‘safely stop’ should he need to.” Ordonez v.

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Ausby, No. EP-21-CV-00077-DCG, 2023 WL 310442, at *9-10 (W.D. Tex. Jan. 18,

2023) (citing TEX. TRANSP. CODE § 545.062(a)). The court concludes that the

discretion required by section 545.062 invokes the common law standard of care. 

The court thus agrees with the weight of Texas intermediate appellate courts that

have held that section 545.062 of the Texas Transportation Code cannot support a

negligence per se claim.

Next, section 545.351 states that “[a]n operator may not drive at a speed

greater than is reasonable and prudent under the circumstances then existing.” TEX.

TRANSP. CODE § 545.351(a). The common law’s ordinary standard of care is

expressly incorporated into section 545.351, and therefore, a negligence per se claim is

not cognizable. Trinh v. Hunter, No. SA-20-CV-00725-JKP, 2022 WL 6813293, at

*6 (W.D. Tex. Oct. 11, 2022) (citing Gore v. Gore, 233 S.W.3d 911, 913 (Tex. App. –

Beaumont 2007, pet. denied)).

Section 545.401 creates an offense when an operator “drives a vehicle in wilful

or wanton disregard for the safety of persons or property.” TEX. TRANSP. CODE

§ 545.401(a). Because the statute does not mandate specific conduct, see Supreme

Beef Packers, 67 S.W.3d at 456 (distinguishing reasonable care standard from

“mandatory standard of conduct” in statutes that support negligence per se claims),

section 545.401 does not create an appropriate standard of care for negligence per se,

Merritt, 940 S.W.2d at 607. The court agrees with the other district courts that have

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addressed this identical issue, see, e.g., Ordonez, 2023 WL 310442, at *7; Salas v.

United States, No. DR-22-CV-00007-AM, 2023 WL 2753895, at *3-4 (W.D. Tex.

Mar. 31, 2023), and concludes that section 545.401 “imposes a duty that is not

absolute, but rather is conditional,” see Cudworth v. South Texas Paisano Construction

Co., 705 S.W.2d 315, 317 (Tex. App. – San Antonio 1989, writ ref’d n.r.e.)

(analyzing a different statute). Therefore, a violation of section 545.401 cannot

constitute negligence per se.

The final statute cited by the Agees is section 544.04 for violating HOV rules

and regulations, namely operating a vehicle in the HOV lane when Barrera was the

only occupant in the car. Third Amended Complaint ¶ 4.02. The correct citation is

section 544.004, which requires drivers to “comply with an applicable official trafficcontrol device” unless “otherwise directed” by a police or other traffic official. TEX.

TRANSP. CODE § 544.004(a)-(b). Hartford does not cite a case that has addressed

this specific section of the transportation code. See Brief in Support at 18-19; see also

Reply at 9-10.

Unlike the other statutes the Agees cite for their negligence per se claims,

section 544.004 mandates drivers to “comply” with traffic control devices instead of

requiring drivers to act as a prudent person. Compare TEX. TRANSP. CODE § 544.004;

with id. 545.351(a) (requiring drivers to drive at a speed that is “reasonable and

prudent under the circumstances then existing”); and id. § 545.062(a) (requiring

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drivers to maintain a distance, “considering the speed of the vehicles, traffic and the

conditions of the highway” so that the operator can “safely stop”); and id.

§ 545.401(a) (prohibiting the operation of a vehicle with “wilful or wanton disregard

for the safety or persons or property”). Although section 544.004 cannot be enforced

against an alleged violator if the traffic device is not “in a proper position and

sufficiently legible to an ordinarily observant person,” id. § 544.004(b), this

enforcement mechanism does not transform the mandate from an absolute direction

to an instruction with discretion. Drivers are required by section 544.004 to comply

with traffic-control devices unless otherwise directed by a traffic or police officer or

the operator is then-currently operating an authorized emergency vehicle. Id.

§ 544.004(a)(1)-(2). In other words: there is no room for discretion under section

544.004, and compliance is mandatory unless exempted. See id.

It is illustrative to look to other areas of the Texas Transportation Code that

also regulates behavior around traffic signs. Section 544.007, for example, governs

driving through intersections. Id. § 544.007. In relevant part, section 544.007 states

that when a driver is approaching an intersection, he “shall yield the right-of-way to

other vehicles and to other pedestrians lawfully in the intersection,” and “[a]n

operator of a vehicle facing a green arrow signal . . . may cautiously enter the

intersection.” Id. § 544.007(b)-(c). This permissive language and discretion on rightof-way analysis does not create a special standard of care and could not be the basis

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for a negligence per se claim. Ochoa v. P.A.M. Cartage Carriers, LLC, No.

5:17-CV-787-XR, 2019 WL 360528, at*6 (W.D. Tex. Jan. 29, 2019). Here,

however, section 544.004 does not allow a driver any discretion. It commands the

driver to comply with the traffic control device or an officer’s directions. See TEX.

TRANSP. § 544.004. Therefore, the court concludes that section 544.004 is the type

of statute that mandates specific conduct and supports a negligence per se claim. In

sum, the Agees’ negligence per se claims will be dismissed in part, regarding sections

545.062, 545.351, and 545.401 but not as to section 544.004.

III. CONCLUSION

Hartford’s motion to dismiss the Agees’ third amended complaint is

GRANTED IN PART and DENIED IN PART. Hartford’s motion to dismiss the

Agees’ extra-contractual claims and the negligence per se claims based on sections

545.062, 545.351, and 545.401 of the Texas Transportation Code is GRANTED. 

Hartford’s motion to dismiss the remaining claims is DENIED. The Agees’ request

for an abatement is also DENIED.

SO ORDERED.

July 18, 2023.

___________________________________

A. JOE FISH

Senior United States District Judge

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