Opinion filed June 8, 2017

In The

Eleventh Court of Appeals 

__________

No. 11-14-00296-CV

__________

ROBERT J. JOHNSON, Appellant,

V.

OSCAR O. TENA AND MICHAEL GARCIA, Appellees

On Appeal from the 142nd District Court

Midland County, Texas

Trial Court Cause No. CV-49,544

M E M O R A N D U M O P I N I O N

Two years after a vehicle accident in Midland, Robert J. Johnson sued Oscar 

O. Tena, the owner of a pickup that was involved in that accident. Johnson alleged 

that he had sustained bodily injuries and property damage in the accident. Five 

months after the limitations deadline had expired, Johnson sued Michael Garcia, 

Tena’s nephew, who was the driver of Tena’s pickup at the time of the accident.

Tena and Garcia moved for summary judgment on traditional grounds. Garcia 
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moved for summary judgment on his affirmative defense of statute of limitations.

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Johnson responded and argued that Garcia was equitably estopped to assert the 

limitations defense. The trial court granted Garcia’s motion for summary judgment 

and entered judgment in his favor. Johnson appealed.

On appeal, Johnson asserts that the trial court erred when it granted summary 

judgment in Garcia’s favor because Johnson had raised genuine issues of material 

fact on the elements of his defense of equitable estoppel. We affirm.

I. Background Information

On the day of the accident, Garcia and his cousin, Frank Tena, borrowed a

pickup owned by Frank’s father, Oscar Tena. At the time of the accident, they were 

on the way to Garcia’s father’s house to get the spare keys to Garcia’s vehicle; Garcia 

had locked his other set of keys in his vehicle. Oscar Tena gave Garcia permission

to use the pickup. Johnson stated in his affidavit that, as he waited at a red stop light 

on July 12, 2011, he “was struck from behind by a vehicle” owned by Oscar Tena. 

Garcia, the driver of the pickup that collided with Johnson’s pickup, claimed that 

Johnson abruptly changed lanes in front of Garcia just before the collision occurred.

Immediately after the accident, Johnson and Garcia spoke to each other and 

exchanged insurance information. Garcia said that he and his cousin spoke to 

Johnson and that Johnson called and spoke to Loya Insurance Company, the 

company that provided the insurance policy to Oscar Tena. Johnson did not mention 

that he spoke to Frank Tena, but he did confirm that, while he was at the scene, he 

spoke to an agent from Loya Insurance. Garcia testified in his deposition that he 

gave Johnson his name and his driver’s license number and that Johnson looked at 

Garcia’s driver’s license and then returned it to Garcia. Johnson, however, denied

 

1We note that Tena moved for summary judgment on other grounds and that Johnson states in his 

appellate brief that he “does not appeal dismissal of claims versus Oscar Tena.” Accordingly, we do not 

address the merits of the summary judgment with respect to Tena. 
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that those things happened. He stated that he thought Oscar Tena was the driver of 

the pickup. According to Garcia, Johnson did not want to involve the police or file 

an accident report. Garcia said that Johnson told him that Johnson had been drinking 

a beer, and Garcia saw a “tall boy” beer can in the console of Johnson’s pickup.

After the accident, Johnson communicated with Loya Insurance and received 

correspondence from it. Loya Insurance paid $1,302.55 for Johnson’s property 

damage and initially offered a $250 settlement for Johnson’s bodily injury claim. 

Within three months after the accident, Johnson hired a lawyer; the lawyer also 

communicated with Loya Insurance about Johnson’s claims and made a Stowers2

demand on October 7, 2011. On November 23, 2011, Loya Insurance then increased 

its settlement offer for bodily injury to $5,000. 

Johnson’s lawyer rejected Loya Insurance’s settlement offer and made 

another Stowers demand on June 13, 2012, which Loya Insurance did not accept. In

July 2012, and then five more times from January to May 2013, Loya Insurance sent 

correspondence to Johnson’s lawyer that requested additional medical information 

to evaluate Johnson’s bodily injury claims, but Johnson’s lawyer never responded. 

II. Issue Presented

Johnson asserts one issue with five subparts and argues that he raised a 

question of material fact on each element of his equitable estoppel defense. Johnson 

 

2Common law imposes a duty on liability insurers to settle third-party claims against their insureds 

when reasonably prudent to do so. See G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544, 547 

(Tex. Comm’n App. 1929, holding approved). “When these conditions coincide and the insurer’s negligent 

failure to settle results in an excess judgment against the insured, the insurer is liable under the Stowers 

Doctrine for the entire amount of the judgment, including that part exceeding the insured’s policy limits.” 

Phillips v. Bramlett, 288 S.W.3d 876, 879 (Tex. 2009) (citing G.A. Stowers Furniture Co., 15 S.W.2d at 

548). “Texas law insurers must ‘exercise “that degree of care and diligence which an ordinarily prudent 

person would exercise in the management of his own business” in responding to settlement demands within 

policy limits.’” Tex. Farmers Ins. Co. v. Soriano, 881 S.W.2d 312, 314 (Tex. 1994) (quoting Am. 

Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 848 (Tex. 1994)).
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claims in his first subpart that he raised a genuine issue of material fact that Loya 

Insurance misrepresented or concealed facts about the identity of the driver, Garcia. 

In his second and third subparts, he argues that he raised a fact question that Loya 

Insurance withheld knowledge and remained silent when it should have told him that 

Garcia was the driver. In addition, in his last two subparts, Johnson claims that he 

had no “means of knowing” the driver’s identity and that he reasonably relied on 

Loya Insurance’s misrepresentations.

III. Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 

S.W.3d 860, 862 (Tex. 2010); Mid-Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 

618, 621 (Tex. 2007). As in this case, the movant for traditional summary judgment 

must show that there is no genuine issue of material fact and that it is entitled to 

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & 

Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A defendant who 

moves for traditional summary judgment must either negate at least one essential 

element of the nonmovant’s cause of action or prove all essential elements of an 

affirmative defense. See Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 

644 (Tex. 1995). When a party moves for summary judgment on traditional grounds, 

we take the evidence adduced in favor of the nonmovant as true and draw every 

reasonable inference and resolve all doubts in the nonmovant’s favor. Id. (citing 

El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex. 1987)). Once the defendant 

establishes a right to summary judgment as a matter of law, the burden shifts to the 

plaintiff to present evidence that raises a genuine issue of material fact. City of 

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979); see also

Plunkett v. Conn. Gen. Life Ins. Co., No. 11-13-00129-CV, 2015 WL 3484985, at 

*4 (Tex. App.—Eastland May 29, 2015, pet. denied) (mem. op.). Thus, if a movant 

establishes an affirmative defense, then the burden of production shifts to the 
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nonmovant. Hofstetter v. Loya Ins. Co., No. 01-10-00104-CV, 2011 WL 1631938, 

at *2 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, pet. denied) (mem. op).

When the trial court’s judgment does not specify the grounds upon which it 

relied for its ruling, the judgment must be affirmed if any of the theories advanced 

are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001);

Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). 

IV. Analysis

Johnson sued Garcia for negligence that arose out of an automobile accident.

Negligence has a two-year statute of limitations. TEX. CIV. PRAC. & REM. CODE 

ANN. § 16.003 (West 2017); see also Honea v. Morgan Drive Away, Inc., 997 

S.W.2d 705, 707 (Tex. App.—Eastland 1999, no pet.). A claimant in a suit for 

negligence that arises from an automobile accident must file the lawsuit for those 

damages within two years from the date the cause of action accrued. See CIV. PRAC.

&REM. § 16.003(a). The statute of limitations begins to run when the cause of action 

accrues. CIV. PRAC. & REM. § 16.003(a); Burke v. Ins. Auto Auctions Corp., 169 

S.W.3d 771, 776 (Tex. App.—Dallas 2005, pet. denied).

A. When did Johnson’s claims accrue?

In applying the statute of limitations, a cause of action generally will accrue 

when facts come into existence that gives a claimant the right to seek remedy in the 

courts. Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex. 1977). In personal injury 

actions, it is when “the wrongful act effects an injury, regardless of when the 

claimant learned of such injury.” Id.; see also Atkins v. Crosland, 417 S.W.2d 150, 

153 (Tex. 1967) (general rule for tort action is it accrues when tort is committed 

notwithstanding fact that full range of damages are not ascertainable until a later 

date). The question of when a cause of action accrues is a question of law for the 

court. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990). 
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“As a general rule, when the elements of duty, breach, and resulting injury or 

damage are present, a tort action accrues. Then, the statute of limitations begins to 

run.” Burke, 169 S.W.3d at 776. “If the act complained of constitutes a legal injury 

to a plaintiff, the wrong is completed and the cause of action accrues from the time 

the act is committed, even where little, if any, actual damage occurs immediately on 

commission of the tort.” Id. Johnson’s claim for personal injuries and property 

damage accrued on July 12, 2011, when the accident occurred and the alleged 

negligence of Tena and Garcia injured him and damaged his pickup, even though 

the amount of damages was unknown at that time. See id.; see also Riojas v. Phillips 

Props., Inc., 828 S.W.2d 18, 21 (Tex. App.—Corpus Christi 1991, writ denied). 

Therefore, the two-year limitations deadline was July 12, 2013. Johnson filed suit 

against Tena the day before limitations expired, but he filed suit against Garcia five 

months after that deadline had passed.

Once Garcia established all the elements of the limitations defense as a matter 

of law, the burden of production shifted to Johnson to defeat Garcia’s affirmative 

defense. TEX. R. CIV. P. 94; see Hofstetter, 2011 WL 1631938, at *2 (citing EPGT 

Tex. Pipeline, L.P. v. Harris Cty. Flood Control Dist., 176 S.W.3d 330, 335 (Tex. 

App.—Houston [1st Dist.] 2004, pet. dism’d)). In this case, Johnson concedes that 

he did not sue Garcia within the two-year limitations period, but he argues that 

summary judgment in Garcia’s favor is improper because Johnson raised fact 

questions on his equitable estoppel defense. 

B. The elements of an equitable estoppel in avoidance of a limitations 

defense.

To defeat Garcia’s limitations defense with an equitable estoppel defense, 

Johnson must provide summary judgment evidence to raise a fact issue for each 

element of his claim of equitable estoppel. See Hofstetter, 2011 WL 1631938, at *2 

(citing Rabe v. Dillard’s, Inc., 214 S.W.3d 767, 768 (Tex. App.—Dallas 2007, no 
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pet.); Resolution Trust Corp. v. Ammons, 836 S.W.2d 705, 710 (Tex. App.—

Houston [1st Dist.] 1992, no writ) (plaintiff may defeat defendant’s summary 

judgment when plaintiff raises fact issue on each element of counter-affirmative 

defense)). The elements of equitable estoppel are as follows:

(1) a false representation or concealment of material facts; 

(2) made with knowledge, actual or constructive, of those facts; 

(3) with the intention that it should be acted on; 

(4) to a party without knowledge or means of obtaining 

knowledge of the facts; and 

(5) who detrimentally relies on the representation or 

concealment. 

Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515–16 

(Tex. 1998) (citing Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 489 (Tex. 

1991)). As we explain below, if Johnson failed to raise a material fact question on 

the threshold issue of duty, then his equitable estoppel claim will not defeat Garcia’s 

statute of limitations defense. Because the presence of a duty is a threshold question 

of law, we will address that issue first. 

C. Because Johnson, as a third-party claimant, had no special 

relationship with Loya Insurance, it owed no duty to him.

Johnson cannot avail himself of an estoppel defense if Loya Insurance had no 

duty to him as a third-party claimant. Insurance companies represent their insured’s

interests and are adverse to third-party claimants; thus, they are not required to 

perform duties for third-party claimants that compromise the duties that the insurer 

owes to its insured. Vaughn v. Sturm-Hughes, 937 S.W.2d 106, 109 (Tex. App.—

Fort Worth 1996, writ denied). In Vaughn, the court referred to two cases, Otis v. 

Scientific Atlanta, Inc. and Transport Insurance Co. v. Faircloth, that led the court

to the conclusion that the failure of an insurer to disclose the identity of a driver in 

an accident did not give rise to an equitable estoppel defense sufficient to toll the 
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statute of limitations. Vaughn, 937 S.W.2d at 109 (citing Transport Ins. Co. v.

Faircloth, 898 S.W.2d 269, 279–80 (Tex. 1995); Otis v. Scientific Atlanta, Inc., 612 

S.W.2d 665 (Tex. Civ. App.—Dallas 1981, writ ref’d n.r.e.)). 

In Otis, the plaintiffs sought to add a defendant that made a component part 

of an alleged defective fire alarm. The Otis court held that, in Texas, the 

concealment of one’s identity does not toll the statute of limitations. Otis, 612 

S.W.2d at 666. In Faircloth, the court held that a third-party claimant cannot expect 

or demand “extra-contractual obligations” from insurers. Faircloth, 898 S.W.2d at

279. “For policy reasons, we do not require insurance companies to perform duties 

for third-party claimants that are ‘coextensive and conflicting’ with the duties they 

owe their insureds.” Id. (quoting Allstate Ins. Co. v. Watson, 876 S.W.2d 145, 150 

(Tex. 1994)). “Owing such duties to third parties would ‘necessarily compromise 

the duties the insurer owes to its insured.’” Id. at 279–80 (quoting Watson, 876 

S.W.2d at 150).

Johnson adduced no evidence that would raise a material fact question that a 

special relationship existed that would impose a duty on Loya Insurance to him as a 

third-party claimant. Johnson’s case is unlike the case he cites for support, Cook v. 

Smith, where the insurer promised to pay a settlement to the claimant but did not 

intend to do so and thereby induced the claimant to delay filing suit. 673 S.W.2d 

232, 235 (Tex. App.—Dallas 1984, writ ref’d n.r.e.) (fact question on equitable 

estoppel precluded summary judgment where adjuster falsely made representations 

to Cook that her medical bills would be paid and sought to delay Cook in filing of 

the suit). Here, not only did Loya Insurance not agree to pay Johnson’s bodily injury 

claims, it also actively questioned those claims. Although it made modest settlement

offers, Loya Insurance did not accept Johnson’s Stowers demands and continually 

requested additional medical information over an eleven-month period in order to 

evaluate his bodily injury claims.
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V. Conclusion

The trial court did not err when it granted summary judgment in favor of 

Garcia. Johnson failed to a raise a material fact question that Loya Insurance owed 

him a duty as a third-party claimant. In light of the resolution of the duty issue, we 

need not address the other elements of Johnson’s estoppel defense. We overrule 

Johnson’s sole issue on appeal.

VI. This Court’s Ruling

We affirm the judgment of the trial court.

MIKE WILLSON

JUSTICE 

June 8, 2017

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.