Affirmed and Memorandum Opinion filed March 26 , 2020.

In The 

## Fourteenth Court of Appeals

NO. 14

- 18

- 00438

- CV

JUNIOUS R. VALENTINE , Appellant

V.
FEDERAL INSURANCE COMPANY , Appellee
On Appeal from the 234th District Court

Harris County, Texas Tri al C ourt Cause No. 2016

- 78466

MEMORANDUM OPINION Appellant Junious R. Valentine obtained a default judgment in federal court against his former employer ( the Hospital ) for employment discrimination. In this

case, Valentine sued the Hospital ’ s insurer , a ppe llee Federal Insurance Company , for breach of contrac t, Insurance Code violations, and conspiracy. The Harris County district court ( the trial court) granted Federal ’ s motion for summary judgment on all of Valentine ’ s claims

. Valentine challenges the tri al cou rt ’ s summary judgment in six issues. We affirm.2 I. B ACKGR OUND The parties agre e that t he Hospital held an insurance policy with Federal that covered employment dis crimination claims against the Ho spital

. The policy was a claims

- made

- and

- reported p olic y that covered loss from a claim “ first ma de

a gainst such Insured during the Policy Period

. . . but only if such Employment Claim [was] reported to the Comp any [i.e., Federal] in writing in the manner and within the time provided in Subse ction 12 of t his c overa ge section. ” S ubsection 12, as amen ded, provided that as a condition precedent to coverage, the Hospital had to give written notice of an employment claim to Federal “ during the Policy Period , or, if appl icable, in no event later than

. . . 180 days after the end of the Policy Period. ” The Polic y Period was from November 3, 2013, to November 3, 2014

. During the Policy Period, Valentine filed a charge of discrimination with the Equal Employment Opportunity Commi ssion (EEOC) and then sued the Hosp ital in a federal district cour t. On February 27, 2 015, t he Hospital petition ed for Chapter 11 bankruptcy , and the federal district court subsequently dismissed Valentine ’ s suit pursuant to the automatic stay

. On October 5, 2015, the bankr uptcy court si gned a n ag reed order lifting the automatic stay to perm it Vale ntin e to prosecute his case in the federal district court. The bankruptcy court ordered that “ the automatic stay in this action is modified to permit [Valentine] to continue to prosecute t he La wsuit , pro vided that any settlement or judgment rela ted to the Lawsuit shall be paid from [the Hospital ’ s] applicable insurance policies. ”
The federal district court reinstated Valentine ’ s case , but less than a month later th e Hospital filed a “ notice of d eni al of i nsurance coverage and reinstatement of stay , ” contending that the Hos pital had been notified by Federal that insurance3

coverage for Valentine ’ s claim had been denied. The Hosp ital contended that the f ederal district court ’ s prior order “ dismissi ng an d aut omaticall y staying this case should be reinstated ” because there was no insura nce coverage for Valentine ’ s claim. The Ho spital attached Federal ’ s denial

- of

- coverage letter , which stated that coverage was denied because Federal did not report Val entin e ’ s c laim until October 9, 2015

— outside the 18 0

- day reporting period follo wing the expiration of the Policy Period.
The federal district court ultimately rendere d a default judgment awarding Valentine damages, attorney ’ s fees, and costs t otaling $87,5 98. V alen tine then sued Federal in a Har

ris County district court , as serting claims for breach of
contract as a thi rd

- party be neficiary , vio lation of the Insurance Code, and conspiracy. In his live pleading, Valentine alleged that Federal breached the in sur an c e policy by refusing to pay the federal court judgment. He alleged that Federal engaged in an unfair and decep tive c ourse of conduc t regarding the availability o f coverage, failed to pro mptly pay the federal court judgment, and misrepresented a mate ria l f act of a policy provision relating to coverage and notice of the claim. Valentine sought damages for p olicy proceeds in the amount
pr e scribed by the federal district court judgment and mental anguish damages due to Federal ’ s “ wrongful conduct in den yin g c overage and delaying payment. ”
Federal filed a traditional motion for s ummary judgment, and Valentin e filed

a re sponse. Both parties attached evidence to support the procedural facts described above. Federal also filed a declaration from its adjust er on the Vale ntine
matter. She testified that Federal ’ s “ claim file ” included Valentine ’ s char ge of discri mination , th e EEOC ’ s notice of charge, and Valentine ’ s complaint from the federal district court

. She testified , “ Federal did not receive notice of Va le n tine ’ s4

claim from anyone before October 9, 2015. ” She attached to her declaration the October 9, 2015 e mail no tic e.
Am ong other e vidence, Valentine filed invoic es from the law firm of Littler Mendelson P.C. , which are dat ed within the Policy Period , des cr i be the client as Federal , a nd describe the insured as the Hospital. The “ claimant name ” and some other detail s ar e re dacted. Val entine also filed an email dated Septemb er 30, 2015, sent from the Hospital ’ s purported bankruptcy attorney at the law f irm o f Porter Hedges LLP to Val entine ’ s attorney , stating that the Hospital had “ told us
repea tedly that there is an insuran ce policy that would cover th is, b ut they have be en unable to locate it. They have reques ted a copy from the insurance company but are s t ill waiting. ”
In i ts motion for summary judgment, Federal argued that it was entitled to judgment on Valentine ’ s clai m s because there was no covera ge und er the terms of the policy due to the Hospital ’ s failur e to provide notice within 180 days of the Po li c y Period

. Val entine responded that the motion should be denied because (1) there was a genuine issue of material fac t regarding when the H o spital receive d notice ; (2) the doctrine of collateral estoppel barred Federa l ’ s attempt to relitigate untimel y n ot i ce ; (3) the Ban kruptcy Code and policy terms barred Federal ’ s contention regarding untimely notice; (4) Federal had no t established prejudice from the unt imely notice; (5) Valentine could assert Insurance Code violati ons as a third

- party

- beneficiary of th e policy; and (6) Federal did not move for summary judgment on the conspiracy claim. The trial court granted Federal ’ s motion for summary judgmen t and ordered that Valentine take nothing on his claims against Federal

. On appeal Valentine raises thes e sam e argum ents

.5 II. S TANDARDS OF R EVIEW We review a grant of a motion for summary judgment de novo. KCM Fin

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

. The party moving for a traditional summary judgment has the initial burden to show that there is no genui ne issue as to any m aterial f act and that the movant is entitled to judgment as a matter of law. Lujan v. Navistar Inc. , 555 S.W.3d 79, 84 (Tex. 2018). If the
movant sat isfies this burden, then the burde n shifts to the nonmovant to raise a
gen ui ne issue of material fact pre cluding sum mary judgment. Id. We review the evidence in the light most fav orable to the nonmovant, crediting evidence favorable to the nonmovant if r easonable fact finders could, and disregarding contrary evidence unless re as ona ble fa ct finders could not

. Mann Frankf ort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 84 8 (Tex. 2009)

. The interpretation of an unambiguous contract is a question of law that we review de novo using well

- settled contra ct

- construction pr in cip les. URI, Inc. v. Kleberg Cty. , 543 S.W. 3d 755, 763 (Tex. 2018). We presume that parties intend what th e words in their contract say, and we interpret contract language accord ing to its plain, ordinary, and generally accepted meaning unless the cont ra ct direct s otherwise. Id. at 763

– 64. Similarl y, s tatutory c onstruction is a question of law and reviewed de novo. Sw. Royalties, Inc. v. Hegar , 500 S.W.3d 400, 404 (Tex. 2016). Our primary objective is to give effect to the Legislature’s intent, whic h we
ascert ain from the plain m eaning of the words used in the st atute if possible. Id.
III. B REACH OF C ONTRACT In his first four issues, Valentine challenges the tria l court ’ s summary j udgment on the breach of contract claim

. We address hi s issues in the ord er pr esente d in his brief.6

A. No G e nuine Issue of Materi al Fact Regarding Notice
In his first issue, Valentine contends that the re is a genuine issue of material fact regarding when the Hospital received notice. Federal a dduced evidence that notice was due n o lat er tha n May 2, 2015 , but F ederal did not receive notic e until October 9, 2015. Valentine focuses on three categories of evidence that he suggest s raise a fact issue about the d ate Federal received notice of the claim: (1) the adjuster ’ s declaration; (2 ) t he Por ter Hedges email; an d (3) the Littler Men delson billing invoices. First, Valen tine contends that there are “ contradictory facts ” alleged in the adjuster ’ s declaration

. V alen tine suggests th at the adjuster ’ s testimony that Valentine ’ s EEOC char ge an d comp laint were “ in Feder al ’ s claim file , ” coup le d with the adjuster ’ s testimony that the Hospital sent the same documents to Federal on October 9, 2015, means that Federal mus t have had notice of the claim before October 9, 2015. But the adjuster d id no t test ify that Federal had the documents in i ts “ claim f

ile ” before October 9, 2015. And the adjuster testified unequiv ocally that Federal did not receive notice of the claim b efore receiving an email on October 9, 2015. The declaration does not rai se co nflict ing inferences regar ding the date of no tice. Second, Vale ntine contends that the Porter Hedges email is more than a scintilla of evidence that Feder al had no tice of Valent ine ’ s claim before October 9, 2015. But the email indicate d only that the H osp ital b elieved it had insur ance coverage for t he claim and had asked Federal for a copy of the policy. This evidence does not transcend mere suspicion ; any inferen ce that Federa l had been notified of Valentine ’ s cl aim would be merely a guess. See For d Mot or Co. v. Ridgway , 135 S.W .3d 598, 601 (Tex. 2 0 04) (cannot raise a genuine issue of7

material fact based on evidence so slight as to make any inference a gu ess; evidence must tra nscend mere su spicion ). Finally, Vale ntine contends that the Littler Mende ls on invoic es show that Littler was working with Federal on multiple employment

- related matters for the Hospital in the summer of 2014 through March 2015 at the same time it wa s defe nding the Ho spital in the federal district court suit. Val entine suggests it i s a

r e asonable inference from this evidence that Fede ral had been notified of Valentine ’ s claim. However, the invoices do not refer to Valentin e, and there is no evidence to suggest th at the invoices related to the Valentine matter rather than

some o ther claim a nt. Valentine ’ s proposed in ference is not reaso nab le because it would require the fact finder to guess to reach a conclusion. See Suare z v. City of Tex. City , 465 S.W.3d 623, 63 4 (Tex. 2015)

. The inference is ba sed on mer e suspicion. See id

. None of t h is evidence, considered individually or in total, gives rise to a reasonable in ference that Federal had been notified of Valentine ’ s claim before October 9, 2015 , let alone within 180 days of the Policy Period

. Because Federal presented undispu ted e viden c e th at Vale ntine ’ s claim was not a covered loss , Federal did not bre ach the policy by denying coverage.
Valentine ’ s first issue is overruled.
B. No Collateral Estoppel

I n his second issue, Va lentine contends that c ollateral esto ppel bars Federal ’ s attem pt to relitigate the issue of untimely notice because Federal is making the same argument regarding lack of coverage that the Hospital advanced in the federal district court suit, and b ecause Federal an d the Ho spital were in privity. See Mid

- Continen t Cas . C o. v. Bay Rock Operating Co. , 614 F.3d 105,8

110

– 11 (5 th Cir. 2010) ( “ An insurer in a coverage case will be barred from re

litigating a particular issue from the underl ying liab ility case if: (1) the issue raised in the coverage suit was raised and deter min ed in the liability suit; (2) the issue determined in the liability suit was essential to the judgment in the liability suit ; and (3) the necessary requirement of priv ity e xis ts between the i nsurer and the insured. ” ) ; see also John G. & Marie Stell a Ken edy Me m. Found. v Dewhurst , 90 S.W.3d 268, 288 (Tex. 2002)

. For purposes of collateral estoppel, “ An insurer and its ins ured do not share privity when they have a conflict of interest about the subject matter of the litigation. ” Williamson v. State F arm L loyds , 76 S.W. 3d 64, 67

– 68 (Tex. App.

— Houston [14th Dist.] 2002, no pet.). “ When an insurer and i ts insured take

c onflicting pos itions on the issue of coverage, they are not in privity. ” Id. at 68. W hen there exists a conflict of interest in connec tion with t he issue of coverage, the insu rer ’ s interests are not the same as the insured ’ s, so the insu re r is not in privity with the insured. See State Farm Lloyds v. C. M.W. , 53 S.W.3d 877, 886

– 8 7 (Tex. App.

— Dallas 2001, pet. denied) (no privity when ins urer provid ed a def ense with reservation o f right to contest coverage of the claims).
The evidence that Federal denied coverage to the Hospital is sufficient to

overcome Valentine ’ s assertion of collateral estoppel

— Federal and the Hospital were not in pr iv ity. See i d. Va l entine contends that the Hospital and Federal agreed there was no coverage, so they w ere in privity. Even if an insurer ’ s denial of coverage does not necessarily create a conflict for purposes of collateral estoppel , but see id. , the H os pital ’ s “ no tic e o f denial of insurance cov erage and rein statement of stay ” informed the federal district court that coverage had been denied, not that the Hospital agreed with Federal ’ s decision to deny coverage.9

Mo reover , nothing in this record indicat e s that the fe deral distri ct court made a ruling on the issue of notice . The record contains no order denying reinstateme nt of th e stay or any finding of fact on the issue of notice

. Th us , nothing in this record indicates that the issue of notice was “ det er mined ” in t he liability s u it

. And , whether the Hos pital gave writ ten notice to Federal within the time period prescrib ed by t he policy was not essential to the federal district court ’ s liability judgment. See Em

p ’ rs Cas. Co. v. Block , 744 S.W.2d 940 , 943 ( Tex. 1988 ) ( insurer c ould contest coverag e beca use recitation in judgment of liability suit that property damage was susta ined as a result of an occurrence on a particular date was not essential to determining the insur ed ’ s liability ) , overruled on o ther
g rounds by State Farm Fire & Cas. Co. v. Gandy , 925 S.W.2d 696, 714 (Tex. 1996)

. Thus, Federal is not barred by the doctri ne o f collateral estoppel from litigating the issue o f coverage in this case.
Valentine ’ s second issue is overruled.
C. No Tolling Under Bankruptc y Code or P o licy In his third issue, Valentine conten ds that (1) the imposition of the automatic stay under Secti on 3 62 of the United Stat es Bankruptcy Code (the Code)

“ suspend [ed] any period to give notice under Federal Insurance ’ s insuran c e poli c y ” ; (2) the notice p eriod under the policy was “ tolled until the stay was lifted ” under Section 108 of the Code; and (3) the pol icy “ acknowledges the effects of bankruptcy. ”
1. Automatic Stay The filing of a bankruptcy petition automatically stays , am o ng oth er conduc t, “ any act to obtain possession of property of the estate or of property from the estate or to exercise control over pr operty of the estate

. ” 11 U .S.C. § 362(a)( 3).10

The automatic stay prevents the initiation and continuation of lawsuits o r o the r actions against th e debtor

. See id. § 362(a)(1). The au tomatic stay encompasses a

“ wide swath of legal actions, in clud ing litiga t ion, lien enfo rcement, and administrative proceedings, that could affect or interfere with the property of the bankr u pt ’ s e state. ” Checkers Dr i ve
- In Rests., Inc. v. Comm ’ r of Patents & Trademarks , 51 F.3d 1078, 10 80 ( D.C. Cir. 1995). Courts ha ve h eld that insurance policies are “ property of the estate, ” so a right to cancel an insurance policy can be automatically st ay ed by the filin g of a ban kruptcy petition

. See In re Minoco Gr p.

o f Co s. , 799 F.2d 517, 51 9 (9 th Cir. 1986) (citing Eric W. Lam , Ca ncellat ion of Insurance: Bankruptcy Auto matic Stay Implications , 59 Am. Bankr. L

. J. 267 (19 85)).
The automatic stay, howev er , does not stop the passa g e of time. See In re Lauderdale Motorcar Corp. , 35 B.R. 544, 548 (Bankr. S.D. Fla. 1983) (citing In r e Be ck , 5 B. R. 169, 170 (B ankr. D. Ha w. 1980) ). Section 362 ’ s “ pro hibition against actions taken to obtain possession of the es tate ’ s property does not a ffe ct the tolling of time. ” Ctys. Contracting & Const. Co. v. Const . Life Ins. Co. , 855 F.2d 1054, 10 58

– 5 9 (3d Cir. 1988). Although the au tomatic stay prohibits certain affirmative conduct, it does not toll the runni ng of stat ut ory ti me period s that

wou l d result in the transfer of property to a credit or. See In re Maanum , 828 F.2d 459, 460 (8 th Cir. 19 8 7) ; see also Cty s. Contracting , 855 F .2d at 105 9 (automatic stay did not prohibit lapse of insurance policy under contractual an d stat utory gra ce period )

. Val entine cites no authority to suggest that the automatic stay toll s the time period for reporting a cla im under a n insura nce poli cy, and we have found none. Valentine appears to argue that because his o wn claim against the Hos pital was staye d, the Ho s pital ’ s contractual duty to notify Federal of the claim, as a condition11

precedent to coverage , was also sta yed

. Again, no case law s upports this contention. T he policy contradicts Valentine ’ s contention by pr oviding that the b ank ruptcy of an in su red sha l l not “ deprive the Company of its rights or defenses under this policy. ” This case does not involve any aff irmative conduct by Feder al against the Hospital, but rather the mere passage of time . We hold that the automatic stay d id not pr ohibit or toll the notice period in the insurance policy.
2. Section 108 Generally, Section 108 of the Code allows for the ex tens ion of time for debtors a nd claimants to do certain things after the debt or has filed a bankruptcy petition or the stay h as been l ifted

. V alentine r efers to the following subsections: (a) If . . . an agreement fixes a period within which the debtor m ay commence an action, and such period has not expired before the date of the filing o f the petition, the trustee may commenc e s uch ac tion only before t h e later of

— (1) the end of such period, including any suspensi on of such period occurring on or after th e commence ment of the case; or ( 2) two years after the order for rel ief. (b) Except as provided in subsection (a) of this sec tio n, if . . . an agreement fixes a period within which the debtor . . . may file any . . . notice, or proof of cl aim or loss, cure a default, or perform any other similar act, and such period has not expired before t he date of the filing of the petition, the trust ee may on ly file, c ure, or perform, as the case may be, before the later of

— (1) the end of such period , including any susp ension of such period occurring on or after the commencement of the case; or (2) 60 da ys after the order for relief. (c)

. . . [ I]f . . . an ag reement f i xes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor . . . a nd such period has not expired before the date of the filing of the petition, then such perio d d oes no t expire until the later of

— (1) the end of such period, including any suspensi on of such period occurring on or after the commencement of the case; or (2) 30 days after notice of the termination or expiration of12

the stay . . . with respect to such cl aim.
T he commen cement of a voluntary bankruptcy proceeding, as here, constitutes an

“ order for relief. ” See 11 U.S.C. § 301

. A s several of the cases cited abov e suggest, the tolling of statutory or contractual dead lines may arise under Section 108(b) o f t he Cod e. See C tys Contr a cting , 855 F.2d at 1059; In re Lauderdale Motorcar , 35 B.R. at 549. But under Section 108(b), notice o f the claim in this case was sti ll due no later than May 2, 2015. Section 108(b) does not help Valent ine, and Valentine expr ess ly dis claimed r eliance o n Section 108(b) to the trial court. Section 108(a) refers to a debto r or trustee commencing an “ action , ” an undefined t erm commonly u n derstood to mean a lawsuit. See In re Sims Bros. Builders, Inc. , 3 5 B.R. 149, 15 0

– 51 (Bankr. S. D. Ohi o 1983) ; see also I n re Lauderdale Motorcar , 35 B.R. at 549

. Sect ion 108(a) is inapplicable because the Hospital ’ s contra ctual duty to notify Federal of claims as a condition precedent to

cov erage is not an “ action ” within the meaning of the stat ute

. See In re La uderdale
M otorcar , 35 B.R. at 549 (debtor ’ s statutory deadline for seeking determination from state governing bod y regarding disco ntinuation of contract was not tolled by Section 108( a) because debtor ’ s right to protest was not an “ action ” b y the debtor) ; see also I n re Sims Bros. , 35 B.R. at 150

– 51.
Section 108(c) refers to the expiration of periods for commencing o r continuing a civil action against the debtor. Although Section 108( c) could have operated to extend limitations for Valent ine ’ s fil ing of a civil act i on against the Hospital, Section 108(c) did not toll the time period for notifying Federal about a n Emp loyment Claim , as defined in the policy.13

3. Contractual Language
Valentin e c ontends that some contractual language is rendered s upe rfluou s if the automatic stay does not result in the tolling of the notice provision

. Valentine contends that a clause referenc ing bankruptcy is “ intended to protect the insur ed while it is in bank rupt cy under precisely the scenario presented here. ” V ale nt ine purports to quote t he policy while arguing, “ Federal Insurance ’ s own policy explicitly states that bankruptcy does ‘ not de prive the [ insured] of its rights or defenses under the policy ” (alter ation by Valentine ). As quoted above, the clause refer s t o “ Com pany , ” i. e., Feder a l, in the place where Valentine has substituted

“ insured. ” Thus, the clause protect s Federal ’ s defense of a failure of a condition precedent regarding notice. Not hin g in t he policy suggests that the notice period should be tol led durin g bankrup tcy.
V ale n tine ’ s third issue is overruled.
D. No Requirement to Show Pr ejudice
In his fourt h issue, Valentine conten ds that to avoid coverage based on the Hospital ’ s untimely notic e, Fed eral was required to show prejudice under Texas law an d th e poli cy.
In Pr odigy Com m unications Corp . v. Agricultural Excess & Surplus Insurance Co. , the Supreme Court of Texas held that , for a claim s
- made

- and

reported p olicy, “ when an insured gives no tice of a claim within the policy period or other specified rep orting period, the insur e r must show that the insured ’ s noncompliance with the policy ’ s ‘ as soon as practicable ’ notice provisio n prejudiced the insure r before it may deny coverage. ” 288 S.W.3d 374, 382 (Tex. 2009) (emphasis added). In reaching this co ncl usion, the cour t reitera t ed the14

impor tan ce that a claim be reported within the time required for reporting. See id. at 380

– 8 2

. The court explained: Because the requirement that a claim be repo rted to the insurer during the policy period or within a sp eci fic nu mber of d ays there a fter is considered essential to coverage under a claims

- made

- a nd

- reported policy, most courts have foun d that an insurer need not demonstrate prejudice to deny coverage when an insured does not give notice of a claim within the pol icy ’ s specified time fra m e. Id. at 381 (collecting cases). The court agreed with the analysis of two other courts that had held prejudice was not required if the insured failed to report a clai m ,
u nder a claim s
- made policy, during the polic y period or oth er app licable r eporting
p eriod. See id. at 381

– 82 (citing T.H.E. Ins. Co. v. P.T.P. Inc. , 628 A.2d 223 (Md. 1993) and Chas . T. M

ain, Inc. v. Fireman ’ s Fun d. Ins. Co. , 551 N.E.2d 28 ( Mass. 1990) )

. This case involves a claims

- made

- and

- reported policy, so Val entine ’ s author ities con c erning other types of policies are inapplicable. Federal adduced undisputed ev idence that Federal did n ot receive notice of Valentine ’ s claim within the Policy Period or the additional 18 0

- day reporting period

. Timely notice un der this policy is essentia l to coverage. See id. at 381. Because the re was no timely notice, there is no coverage , regardless of any showing of pr ejudice. See id. at 381

– 82 ; see also Nicholas Petroleum , Inc. v. Mid

- Continent Cas. Co. , No. 05

- 13

- 01106

- C V , 2015 W L 4456185 , at * 6 ( T ex. App.

— Dallas July 21, 2015 , no pet.) (mem

. op.).
Valentine contends tha t the policy “ explicit ly pr ovides that, abs e nt a showing of prejudice, it may not deny coverage. ” His reliance o n other clauses of the policy is inappo sit e

. He refers to the foll o wing clauses w ithout explaining how the se clauses require a showing of prejudice for untimely notice :15

• U nder the policy’s “Defense and Settlement” section, “The Insureds agree to provid e the Company with all information, assistan ce an d co operation which th e Company reasonably requires and agr ee that in the event of a Claim the Insureds will do nothing that c ould prejudice the Company’s position or its potential or actual rights of recove ry.”

• “With respect to the reporting of any C lai m unde r this co verage se c tion, it is agreed that in determ ining whether the reporting of such Claim has been timely made, the Co mpany shall make such determination by applying the law of any jurisdiction which has a substantial relationship to the Insur eds , the Company, this Poli c y, or the Claim and which is most favor able to such determination of timeliness.”
Neither of these clau ses requires a showing of pr ejudice regarding untimely notice of a claim.
Valentine ’ s fourth issue is overruled.
E. No Error to Gra nt Sum mary Judg ment on B r each of Contrac t Having overruled Valen tine ’ s fi rs t four issues, we hold that the trial court d id not e rr by rendering a summary judgment on Vale ntine ’ s breach of con tract claim.
IV. I NSURANCE C ODE In his fifth issue, Valen tine cont end s that the tria l cour t e r red by granting summary judgment on his Insurance Code claim because (1) he is a third

- party beneficiar y of the policy as a judgment

- creditor ; and (2) he is a “ claimant ” under the Insurance Code ’ s statutory definition. Although an in sure d ’ s judgm ent

- credi t or may be considered a third

- party bene ficiary sufficient to bring sui t against an insurer for policy b enefits, see P.G. Bell Co. v. U.S. Fid. & Guar. Co. , 853 S.W.2d 187, 189 (Tex. App.

— Corpus16

Christi 1993, no writ), Valentine cit es no case upho lding a t h ird

- part y ’ s claim based on violations o f the Insurance Code , see Reule v. Colony Ins. Co. , 407 S.W.3d 4 02, 411

– 1 4 (Tex. App.

— Houston [14th Dist.] 2013, pet. denied) (third

party claimant lacked standing for violation of unfair s ett le ment p ractice under Se c tion 541.060 of the Insurance Code). I ndeed, to be a “ claimant ” under the Insurance Code, the party mu st make a “ claim , ” which is defined as a “ first

- party claim that . . . is made by an insured or policyh older under an insuran ce po licy or
contr act or by a beneficiary named in the policy or co ntract. ” Valentine is n either a first

- party claimant nor a bene ficiary named in the policy. See Reule , 407 S.W. 3d at 411

– 14 (plaintiff was a third

- party claimant even though she paid
prem ium s and was entit led to li a bility coverage under the polic y )

. Even assuming Valentine could bring a claim under the Insura nce Code as a third

- party beneficiary , “ [a] n insured cannot recover any damages based on an insurer ’ s statutory violation unles s the ins ur ed e stablishe s a right to receive benefits under the policy or an injury independent of a right to benefits. ” USAA Tex

. Lloy ds Co. v. Menchaca , 545 S.W.3d 479, 490

– 501 (Tex. 2018) (discussing exceptions to the general rule that an insured cannot rec ov er poli cy benefit s if the insured does not have a right to benefi ts under the policy)

. This rule is based on the statutory requi rement of causation. See id. at 490, 4 99

– 500.

In its summary judgment motion, Federal relied primarily on Menchaca

. Valentin e doe s no t refer to Menchac a , and he does not refe r to any evidence o f an injury independent of his purported right to receive bene fits under the policy. In his petition, he sought only policy benefits and damages dependent on a right to benefits. Becaus e the tri al court d id not e r r in granting summary judgmen t on Valen tine ’ s breach of contract claim , and Valentine alleges no injury indep endent17

of a right to policy benefits, the trial court did not err by granting summary judgment on the Insurance Code cl ai m. Appe llant ’ s fi fth issu e is overruled.
V. C ONSPI RACY
In his fifth issue, appellant contends that the trial court erred by granting summary judgment on the conspiracy claim because Federal did not move for a summary judgment on the claim. See , e.g. , G & H T owi ng C o. v. Mage e , 347 S

. W.3d 293, 298 (Tex. 201 1) ( observing th at a trial court err s by granting a summary judgment on a claim not expressly presented in the written motion). This type of error, however, is not reversible unless the error probably

caus ed th e re ndition of an impr o per judgment or prevented the appellant from properly presenting the case to this court. See id. at 29 7

– 98 (citing Tex. R. App. P. 44.1(a)). “ [ T]he error is harmless when the omitted cause of action is precluded as a matter of l aw by o ther groun ds raise d in the case. ” I d. at 298. Reversal i s not required if the “ unaddressed claim is derivative of the ad dressed claim, and the movant proved its entitlement to summary judgment on the addressed claim. ” Wilson v. Davis , 305 S.W.3 d 57, 73 (Tex. App.

— Houston [1st Dist.] 2009, no pet.), quoted in M

agee , 347 S.W.3d at 297.
C onspiracy is a theory of derivative li ability, not an independent tort. See Agar Corp. v. El ectro Circuits Int ’ l , LLC , 580 S.W.3d 136, 142

– 43 (Tex. 2019). Thus, as sum ing without de ciding t h at the trial court erred, any error in this case was harmless because the trial court properly granted summary judgment on the underlying claims. See Ma cias v. Gomez , No. 13

- 14

- 00139

- CV, 2014 WL 7011372, at *4

– 5 (Tex. App.

— Cor pu s C hris ti Dec. 11, 2014, n o pet.) (mem. op.);

s ee also Zarzana v. Ash l e y , 218 S.W.3d 152, 162 (Tex. App.

— Houston [14th18

Dist.] 200 7, pet. struck) (motion for summary judgment was sufficiently broad to encompass later

- pleaded conspiracy claim because the m o tion add ressed and negated the only underlying cla im)

. Valentine ’ s sixth i ssue is overruled.
VI. C ONCLUSION
Havi ng overruled all of Va lentine ’ s issues , we affirm the trial court ’ s judgment.

/s/ Ke n Wise Justice

Pan el c onsis ts of Justice s Wise , Zimmerer, and Spain.