AFFIRM and Opinion Filed December 18, 2019 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-01050-CV AIX SPECIALTY INSURANCE COMPANY, Appellant V. RAJ SHIWACH, MD, Appellee On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-04268 

### MEMORANDUM OPINION Before Chief Justice Burns, Justice O’Neill 1 , and Justice Rosenberg 2 Opinion by Chief Justice Burns This appeal involves insurer AIX Specialty Insurance Company’s (“AIX”) duty to defend the insured Dr. Raj Shiwach, MD (“Shiwach”). AIX appeals the su mmary judgment in Shiwach’s favor, contending in six issues the trial court erred by granti ng Shiwach’s partial motion for summary judgment and denying its mo tion for summary judgment. W e affirm.
FACTUAL AND PROCED URAL BACKGROUND Shiwach purchased a professional liability policy from AIX. Whe n Leslie Broderick, a patient under Shiwach’s psychiatr ic care at Hickory Trail Hospi tal, LP (“HT”), sued Shiwach, he notified AIX of Broderick’s law suit and demanded AIX defend and indemnify him. AIX refused,

1 The Hon. Michael J. O'Neill, Justice of the Court of Appeals f or the Fifth District of Tex as at Dallas, Retired, sitting by assignment.
2 The Hon. Barbara Rosenberg, former Justice of the Court of App eals for the Fifth District of Texas at Dallas, sitting by assignment.–2– contending neither Broderick’s O riginal Petition nor her later First Amended Petition (the “Broderick Petition”) asserted any covered allegation because t he policy’s sexual, criminal, and willful acts exclusions applied. Shiwach paid for his own defen se and prevailed in the district court and on appeal. Despite a renewed request by Shiwach to reimburs e his defense costs, AIX again refused. Shiwach sued AIX, asserting clai ms for breach of contract, viol ations of chapters 541 and 542 of the Insurance Code, and recovery of his attorneys’ fees. AIX’s answer included a general denial, various affirmative de fenses, but no counterclaims. Shiwach moved for partial summary judgment, omitting only his c hapter 541 claims. Together with the Broderick Pet ition and the policy, Shiwach’s evidence included the summary judgment order and the related appellate opinion from the Brode rick lawsuit, in which both courts determined Broderick’s claims against Shiwach were time-barred “healthcare liability claims.” AIX objected to both exhibits as a violation of the eight-corne rs rule and filed a combined noevidence and traditional motion for summary judgment addressing each of Shiwach’s claims. After the summary judgment hearin g but before the trial court r uled, Shiwach filed a notice of nonsuit as to his chapter 541 claims. The trial court grante d Shiwach’s nonsuit, overruled AIX’s objections to Shiwach’s evidence, granted Shiwach’s motion for summary judgment, and denied all other relief. AIX appeals the order overruling its objectio ns, the order granting Shiwach’s nonsuit, the summary judgment in Shiwach’s favor, and the denia l of its motion for summary judgment.
DISCUSSION
Standard of Review and Burden of Proof We review a trial court’s grant of summary judgment de novo. Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen , 525 S.W.3d 671, 680 (Tex. 2017). To prevail on a traditional motion for–3– summary judgment, a movant must prove the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. T EX

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. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548 (Tex. 1985). To prevail on a no-evidence su mmary judgment, the nonmovant must produce evidence that raises a genuine issue of mat erial fact on each challenged element of its claim. Timpte Indus., Inc. v. Gish , 286 S.W.3d 306, 310 (Tex. 2009). In both instances, we credit evidence fa vorable to the nonmovant if rea sonable jurors could, and disregard contrary evidence unless r easonable jurors could not. Id .; Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). The insured has the initial burden to establish a claim potenti ally covered by the policy. Dallas Nat’l Ins. Co. v. Calitex Corp. , 458 S.W.3d 210, 222 (Tex. App.—Dallas 2015, no pet.). If the insured does so, the burden shifts to the insurer, which ca n then defeat the duty to defend by demonstrating the application of any relevant exclusion. T EX

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. C ODE § 554.002; Calitex Corp. , 458 S.W.3d at 222. Duty to Defend In its first issue, AIX contends the trial court erred in not g ranting its summary judgment motion because injuries that ar ose out of an alleged gang rape 3 were not “medical incidents” that triggered its duty to defend. To d etermine whether the Broderic k Petition triggered AIX’s defense obligation, we must first decide w hether it alleged a covered “ medical incident” as the cause of Broderick’s injury. The eight-corners rule governs our analysis. Ewing Const. Co., Inc. v. Amerisure Ins. Co. , 420 S.W.3d 30, 33 (Tex. 2014). Pursua nt to the eight-corners ru le, we look to the four corners of the petition for allegations potentially within the scope of co verage in the four corners of the

3 Because the statute of limitati ons barred the Broderick lawsuit , the court did not reach the merits of Broderick’s claims.–4– insurance policy. Id . We consider the factual allegations in the petition without r egard to their truth or falsity, and we resolve all doubts regarding the duty to def end in the insured’s favor. Id . If the underlying petition contains even one covered claim, the insure r must defend the entire suit. Evanston Ins. Co. v. Legacy of Life, Inc. , 370 S.W.3d 377, 380 (Tex. 2012). Here, the policy required AIX t o defend and indemnify Shiwach a gainst a claim for damages with respect to an injury only if “(1) the injury is ca used by a ‘medical i ncident’; . . . (3) the injury arises out of the individual insured’s profession as a physician; and (4) [a] claim for damages, with respect to the injury, is first made against any insured.” The policy defined a “medical incident” as “any act or omission arising out of the p roviding of or failure to provide professional medical services . . . by the insured or any perso n acting under the personal direction, control or supervisi on of the insured.” Thus, we examine the allegations against Shiwach. We first note that the Broderick Petition’s introductory paragraph listed all defendants: Shiwac h, HT, Universal Health Services, Inc., UHS of Delaware, Inc., 4 a “manager of HT called John Doe,” “Chica an employee of HT la st name unknown,” and a “European woman also employed by HT.” The same paragraph defined each listed defendant coll ectively as “Defendants.” The Broderick Petition also ide ntified each defendant in separa te numbered paragraphs and provided capacity information a bout each. Regarding Shiwach, th e petition specified: 3. The Defendants are all sued i n their capacity as employees a nd managers of Hickory Trail LP and or the Universal Health “UHS” Defendants. Dr. Shiwach is sued in his individual capacity as well as his capacity as a me dical professional and employee and or manager of Hickory Trail LP “HT” and the UHS De fendants. Under a heading for “Causes of Action,” the pe tition alleged on ly facts: 11. Plaintiff was gang raped by the above individual Defendant s while a patient at Defendant HT. The above named persons all partici pated in some manner in the rape which occurred in or about May 2014.

4 We refer to Universal Health Ser vices, Inc. and UHS of Delaware , Inc. collectiv ely as “UHS.”–5– 12. The Defendants HT and the UHS Defendants ratified the rape because managers of the Defendants were involved in the rape , and such rapes have been occurring at UHS facilities with r egular frequency across the c ountry since at least 2004. The Defendants HT and UHS have failed to take action to correct the problems with rape, suicide, and over drugging of patients at their facilities as well as keeping patients who should never have been admitted to their facilities . Serious regulatory violations were noted at least 13 of the 26 UHS faci lities in Texas. The Defendants UHS were cited for serious problems in 8.4% of their cases while the national average is 3% pe r federal regulators. 13. The UHS Defendants own, control, and manage Defendant HT. T he UHS Defendants and the Defendant HT were responsible for negligent hiring of the individual defendants, understaffing, failing to provide adequate security, failing to perform background checks and negligent retention of the individual defendants along with inadequate security measures and staffing.
14. Each and every one of thes e actions and or inactions were a proximate and or producing cause of the P laintiff’s damages. 15. Plaintiff is entitled to her l egal damages for the rape inc luding but not limited to pain and suffering, mental a nguish, and loss of income.
*********** WHEREFORE, Plaintiff requests ... that on final trial, Plaintiff have judgment against the individual and corporate defendants for all her legal damages , and for punitive damages and for all her pre and post judgment interest and for such other and further relief both at law and equity to which she may be j ustly entitled. (emphasis added). Shiwach does not argue the polic y covers the rape allegation in paragraph 11. Instead, he argues the petition asserted the potentially covered claims in paragraphs 12 and 13 against him as a manager or employee of HT and UHS. Relying on the required li beral reading in favor of the duty to defend, Shiwach contends t he petition alleged three pot entially covered malpractice claims, any one of which triggered AIX’s duty to defend: (1) failure to correct problems with patient suicide, (2) over drugging of pa tients, and (3) improper retent ion of patients. Shiwach further contends these triggering allegations cannot be subsumed by the rape allegation because the petition specifically alleged “each and every action or inactio n pleaded was a proximate and or producing cause” of Broderick’s damages.–6– In response, AIX contends Broderi ck’s sole claim against Shiwac h was rape, for which the policy excluded coverage. AIX relies heavily on paragraph 15, c ontending Broderick’s qualification of “her legal damages for the rape” brought the a llegations within the parameters of the sexual exclusion. 5 AIX further argues that because Broderick asserted the potenti ally covered claims in paragraphs 12 and 13 against HT and UHS only, the tri al court improperly rewrote those allegations to include Shiwach. Although the specific allegations against Shiwach and the capac ity in which they were alleged against him lack clarity, the eight-corners rule does n ot require us to ignore logical inferences that flow from the facts alleged in the petition. Allstate Ins. Co. v. Hallman , 159 S.W.3d 640, 645 (Tex. 2005) (inferring a profit motive even though ple adings made no reference to any pecuniary interest). In other words, reasonable inferences aris ing from the petition may give rise to a duty to defend. Gen. Star Indem. Co. v. Gulf Coast Marine Assoc. , 252 S.W.3d 450, 456 (Tex. App.—Houston [14th Dist.] 2008, pet. denied); Gomez v. Allstate Tex. Lloyds Ins. Co. , 241 S.W.3d 196, 204–05 (Tex. App.—Fort Worth 2007, no pet.). For example, in General Star , the plaintiff oil and gas le ssee hired a company to move an oil rig. 252 S.W.3d at 455. The le ssee alleged in its petition that, while moving, the rig contacted the “well stub or net protector,” bending the “well and well st ub.” Id . at 456. The lessee sought damages for, among other things, restoration an d profit and pro duction losses. Id . The company’s insurer refused to defend, relying on the policy’s exclusion fo r damages related only to the well.
Id . at 455. Construing the petition liberally, the Fourteenth Cou rt of Appeals inferred that some portion of the damages the lessee sought could have included da mage to the well stub or net protector, bringing the less ee’s claim within coverage. Id . at 456.

5 We address the exclusion below.–7– Here, paragraph three of the Br oderick Petition specified that “Dr. Shiwach is sued in his individual capacity as well as his capacity as a medical profes sional and employee and or manager of Hickory Trail LP ‘HT’ and the UHS Defendants.” Adhering to t he analysis in General Star , we agree with Shiwach’s contention that a reasonable inference exi sts that “when Broderick says ‘HT’ [and ‘UHS’], she also means Shiwach.” Construing the petition l iberally, we infer that Broderick sought damages against Shiwach as an individual, physician, emp loyee, and manager of HT and UHS for the allegations in paragraphs 11–13. We accordingly con clude Shiwach carried his burden in demonstrating potentially cov ered claims and overrule AIX’s first issue. Alleged Defects in Shiwach’s Summary Judgment Motion In its second issue, AIX contends the trial court erred in gran ting Shiwach’s motion for summary judgment because the motion failed to identify or addre ss Shiwach’s specific causes of action or their essential elements. Specifically, AIX argues Sh iwach’s motion had to expressly assert that the factual allegations in the Broderick Petition p otentially met the essential terms of AIX’s policy. AIX also complain s the motion never discussed the origin of Broderick’s damages, never connected Broderick’s injur y to the policy’s requirements , and never cited to the policy’s definition of a “medical incident” or to case law interpreting the term. A motion for summary judgment m ust state the specific grounds u pon which judgment is sought, and stands or falls on those grounds alone. T EX

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. P. 166a(c); McConnell v. Southside Indep. Sch. Dist. , 858 S.W.2d 337, 339–41 (Tex. 1993). Like the fair notice plea ding requirement, specificity in a motion for summary judgment serves “to provide the nonmovant with adequate information to oppose the motion and to define the issues.” Hevey v. Hundley , No. 05-12-00588- CV, 2013 WL 5782924, at *2 (Tex. App.—Dallas Oct. 25, 2013, pet . denied) (“If the motion contains a concise statement that provides fair notice of the c laim involved to the nonmovant, the grounds for summary judgment are sufficiently specific.”).–8– Here, as to his breach of contract claim, Shiwach alleged the p olicy was a valid and binding contract; AIX acknowledged prompt tender and notice of the Brod erick lawsuit; AIX failed to provide him a defense and thereby breached the policy; and, as a result, he was entitled to damages. As to his chapter 542 claim, Shiwach alleged AIX wrongfully rej ected its defense obligation, entitling him to additional damages. As to his attorneys’ fees claim, Shiwach alleged his attorneys’ fees were direct damages stemming from AIX’s breach of the poli cy to which he was entitled pursuant to the Business and Comm erce Code, the Insurance Code, and the Civil Practice and Remedies Code. With respect to each claim, Shiwach cited case l aw and presented admissible summary judgment evidence. We therefore conclude Shiwach’s motion gave AIX fair notice of the grounds on which he sought summary judgment with adequate information to oppose it. We overrule AIX’s second issue.
Exclusions In its third issue, AIX contends that even if the Broderick Pet ition alleged a “medical incident,” the sexual, criminal, and willful acts exclusions pr ecluded any defense obligation. 6 The policy excluded medical incidents arising out of actual or thre atened sexual abuse or misconduct, criminal acts, and willful, wanton, fraudulent, or malicious ac ts or omissions. 7 An injury arises out

6 We recognize AIX also raised the professional liability of oth ers and hospital liability exclusions. We observe the predicate capacities for the application of these exclusions ar e a “member, partner, officer, director, [or] stockholder” of any professional entity or a proprietor, hospital administra tor, trustee, or governor of a medical facility.” Broderick sued Shiwach as an individual, p hysician, employee, and manager , rather than in any of these excluded capacities. Accordingly, we reject application of these exclusions.

7 The relevant language provides: TEXAS SEXUAL ABUSE, MISCONDUCT AND MOLESTATION EXCLUSION ENDORS EMENT *********** This insurance does not apply t o a “medical incident” . . . ari sing out of: 1. The actual or threatened: a. Sex ual abuse; b. Sexual misconduct ; c. Sexual molestation; d. Physical abuse; or e. Physical m olestation by anyone of any person; or 2. The negligent: a. Employment; b. Investigation; c. Supervision; d. Reporting to the proper authorities, or failure to so rep ort; or e. Retention; of any person for whom any insured is or ever was legally respo nsible and for such person’s conduct which–9– of excluded conduct if but for causation exists. Utica Nat’l Ins. Co. v. Am. Indem. Co. , 141 S.W.3d 198, 203 (Tex. 2004). Texas courts and the Fifth Circuit recogn ize a distinction between cases involving concurrent, but for causation, and those involving se parate and independent causation.
Utica Nat’l Ins. Co. , 141 S.W.3d at 2; Willbros RPI, Inc. v. Cont’l Cas. Co. , 601 F.3d 306, 311 (5th Cir. 2010). In cases involving concurrent, but for causation, excluded and covered acts combine to cause the plaintiff’s injuries. Utica Nat’l Ins. Co. , 141 S.W.3d at 204; Willbros RPI, Inc. , 601 F.3d at 311. Because the two causes cannot be separated, the exclusi on is triggered. Fed. Ins. Co. v.
Everest Nat’l Ins. Co. , 257 S.W.3d 771, 777 (Tex. App.—Dallas 2008, pet. denied) (exc lusion barred coverage for foundation damage where “but for the allege d foundation damage, there would be no HOA suit.”); Burlington Ins. Co. v. Mexican Am. Unity Council , 905 S.W.2d 359, 363 (Tex. App.—San Antonio 1995, no writ) (exclusion applied where neglig ent supervision of a youth home resident and the assault and battery which caused her inju ries were not “separate and independent”); Thornhill v. Houston Gen. Lloyds , 802 S.W.2d 127, 130 (Tex. App.—Fort Worth 1991, no writ) (exclusion applied where store was negligent in selling alcohol to minors and failing to train its employees regarding permissible purchases because the claims were “related and interdependent.”). Conversely, in cases involving se parate and independent causati on, the covered act and the excluded act each independently cause the plaintiff’s injuries, and the insurer mu st defend despite

would be excluded by Paragraph 1. above.
3. Exclusions This insurance does not apply to: a. Criminal Acts Injury arising out of a criminal act, including but not limited to sexual abuse or molestation or fraud, committed by the insured or any person for whom the insured is legally re sponsible. *********** j. Liabi lity Arising out of an y Willful, Wanton, Fra udulent or Malicious Acts or Omissions Injury arising out of a criminal act, including but not limit ed to sexual abuse or molestation or fraud, committed

by the insured.–10– the exclusion. Willbros RPI, Inc. , 601 F.3d at 311; Warrilow v. Norrell , 791 S.W.2d 515, 526 (Tex. App.—Corpus Christi 1989, writ deni ed) (exclusion did not apply where plaintiff’s liability could arise from negligent failure t o have a defective gun repaired o r negligent failure to keep an empty chamber under the hammer, each of which was an independent caus e of the victim’s death); Cagle
v. Com. Standard Ins. Co. , 427 S.W.2d 939, 943–44 (Tex. Civ. App.—Austin 1968, no writ) (rejecting applicatio n of policy’s exclus ion for fraudulent act s where breach of contract and fraud were independent causes of the plaintiff’s damages); Guar. Nat’l Ins. Co. v. N. River Ins. Co. , 909 F.2d 133, 137 (5th Cir. 1990) (because hospital’s failure to se cure windows and its failure to properly supervise a psychiatri c patient both independently cau sed the patient’s suicide, the professional exclusion did not apply). Applying these standards, Shiw ach’s potential liability could rest on the rape allegation, for which no coverage exists, or the covered allegations that S hiwach—as an individual, physician, employee, and manager of HT and UHS—(1) failed to take actions to correct problems with suicides and over drugging of pa tients, (2) failed to provide a dequate security measures and staffing, (3) negligently hired and retained employees, or (4) improperly admitted and failed to discharge patients. The Broderick Petition did not clearly alle ge whether any one act or omission caused or arose out of any other, nor did it provide any connec tion between the pot entially covered allegations and the rape. It did not limit the potentially cove red allegations in paragraphs 12 and 13 to factual conditions which pur portedly created the opportun ity for the rape, and it did not limit the entities’ liability (includi ng Shiwach’s liability as an em ployee or manager of HT and UHS) to the rape. And although Broderick sought her “legal damages for the rape,” the petition did not limit Broderick’s damages to the rape in paragraph 15, the pray er for relief. Moreover, the petition expressly alleged each “action or inaction” described was a “pr oximate or producing cause” of Broderick’s damages.–11– We conclude the Broderick Petition alleged conduct that could have caused Broderick’s injuries separate and independent from any conduct that would q ualify as a sexual, criminal, or willful act. Therefore, the exclusions did not excuse AIX’s dut y to defend. We overrule AIX’s third issue.
Extracontractual Claim 8 In its fourth issue, AIX contends the trial court erred when it failed to grant its no-evidence motion for summary judgment on Shiwach’s chapter 542 claim. Spe cifically, AIX argues (1) it is not subject to additional penalties under chapter 542 because i t had no duty to defend, and (2) Shiwach’s response to its no-evidence motion failed to raise a genuine issue of material fact. Chapter 542, known as the Prompt Payment of Claims Act (“PPCA”) , imposes penalties on insurers when they wrongfully refuse their defense obligatio ns. Lamar Homes, Inc. v. MidContinent Cas. Co. , 242 S.W.3d 1, 19–20 (Tex. 2007). In addition to liability for the amount of the insured’s loss, an insurer th at wrongfully refuses its defe nse obligation must pay the insured 18% annual interest on the amount of the claim and reasonable a ttorney’s fees. T EX

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542.060. Here, AIX’s argument for reversal of the chapter 542 penalties awarded against it necessarily depends on reversal of the adverse summary judgment . Above, however, we determined AIX owed Shiwach a duty to defend. Instead of defend ing him, AIX twice refused its defense obligation a nd did not reimburse S hiwach. We therefore conclude AIX is liable under the
PPCA. We also reject AIX’s contention that Shiwach’s response to its no-evidence motion failed to raise a genuine issue of material fact. We review a no-evide nce motion for summary judgment

8 Shiwach’s chapter 541 claims w ill not be addressed because, as discussed below, the trial court properly nonsuited them.–12– under the same legal sufficiency standard used to review a dire cted verdict. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 750–51 (Tex. 2003). Under this standard, we a scertain whether the nonmovant produced more than a mere scintilla of probative evid ence establishing the existence of a material fact on each challenged element. Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 600 (Tex. 2004). More than a mere sci ntilla of evidence exists if t he evidence rises to a level that would enable fair-minded people to d iffer in their conclusions. King Ranch Inc. , 118 S.W.3d at 751. In response to AIX’s no-evidence motion, Shiwach submitted (1) the Broderick Petition and the policy to establish AIX’s duty to defend, and (2) AIX’s denial letter, in which AIX admitted notice of the Broderick lawsuit, but otherwise denied its defense obligation. Because Shiwach produced evidence establ ishing as a matter of law AIX’s duty to defend and its breach of that duty, we disagree with AIX’s contention that Shiwach faile d to present sufficient evidence in response to its no-evidence moti on. We overrule AIX’s fourth is sue. Extrinsic Evidence In its fifth issue, AIX contends the trial court’s admission of extrinsic evidence—the Broderick lawsuit’s summary judgment order and related appellat e opinion—was contrary to the eight-corners rule. We review a trial court’s decision to admit evidence for an abu se of discretion. City of
Brownsville v. Alvarado , 897 S.W.2d 750, 753 (Tex. 1995). A trial court abuses its dis cretion when it acts arbitrarily, unreasonabl y, or without reference to any guiding rules or legal principles. Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241–42 (Tex. 1985). But even when an abuse of discretion occurs, the harmless error rule requires re versal only if the error amounted to such a denial of the appellant’s rights as was reasonably calcu lated to cause and probably did cause “the rendition of an improper j udgment,” or that error “probabl y prevented the appellant from–13– properly presenting the case [on appeal].” T EX

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. P. 44.1(a); G&H Towing Co. v. Magee , 347 S.W.3d 293, 297 (Tex. 2011). Pursuant to the eight-corners rule, extrinsic evidence is beyon d a court’s consideration. GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church , 197 S.W.3d 305, 308 (Tex. 2006). Although the Fifth Circuit and mu ltiple intermediate appellate courts have expressly recognized a limited exception to this rule, permitting consideration of ext rinsic evidence when relevant only to the coverage issue, the Texas S upreme Court and this Court have not yet done so. Id . at 309; City of Dallas v. Csaszar , No. 05-99-00208-CV, 1999 WL 1268076, at *7 n.2 (Tex. App.—Dal las 1999, pet. denied). Here, assumi ng—but not deciding—the extrin sic evidence should have been excluded, the trial court could find a duty to defend based on the Broderick Petition and policy alone. We therefore conclude that even if there was error, ther e was no harm. We overrule AIX’s fifth issue.
Nonsuit In its sixth issue, AIX contends the trial court erred when, a fter the summary judgment hearing, it allowed Shiwach to nonsuit his chapter 541 claims w hile a no-evidence motion for summary judgment relating to tho se claims was pending in the tr ial court. In the summary judgment context, a plaintiff has the right to take nonsuit after a defendant files a motion for summary judgment, up to the time the court r enders a decision. Leon Springs Gas Co. v. Rest. Equip. Leasing Co. , 961 S.W.2d 574, 577 (Tex. App.— San Antonio 1997, no pet.) (traditional summary judgment); Pace Concerts, Ltd. v. Resendez , 72 S.W.3d 700, 702 (Tex. App.— San Antonio 2002, pet. denied) (no-evidence summary judgm ent). “If the plaintiff asks for a non-suit at a time when he is entitled thereto, no further pl eading or objection on the defendant’s part can affect plaintiff’s right to the non-suit.” Progressive Ins. Companies v. Hartman , 788 S.W.2d 424, 426 (Tex. App.—Dallas 1990, no writ).–14– This right to nonsuit is absolut e so long as the defendant has not asserted a claim for affirmative relief. BHP Petroleum Co., Inc. v. Millard , 800 S.W.2d 838, 840 (Tex. 1990). To qualify as a claim for affirmativ e relief, a “defensive pleadin g must allege that the defendant has a cause of action independent of th e plaintiff’s claim, on which he could recover benefits, compensation, or relief, even though the plaintiff may abandon his cause of action or fail to establish it.” Leon Springs Gas Co. , 961 S.W.2d at 577. A request for attorney’s fees qualifies as a request for affirmative relief when asserted with an independ ent claim for relief. Pace Concerts , 72 S.W.3d at 703-04 (claim for attorney’s fees did not qualify as affirmative relief where it was based on a dependent counterclaim). Here, AIX’s answer alleged as affirmative defenses that various policy exclusions barred Shiwach’s claims. In its prayer for relief, AIX also requested reasonable attorneys’ fees for “responding to and defending the a llegations raised against it. ” AIX, however, asserted no counterclaims. Because AIX’s “affirmative defenses” and request for attorneys’ fees were dependent on Shiwach’s claims, we conclude it did not assert an y claims for affirmative relief. In the absence of a claim for affirm ative relief by AIX, Shiwach h ad an absolute right to nonsuit his chapter 541 claims up to the time the trial court issued a deci sion on the summary judgment motions. We overrule AIX’s sixth issue. Attorneys’ Fees Although not raised specifically i n a discrete issue, AIX also challenges Shiwach’s entitlement to his attorneys’ fees. Based on our conclusion tha t AIX owed Shiwach a duty to defend, we also concl ude the trial court co rrectly awarded Shiw ach his attorneys’ fees as set forth in the judgment.–15– CONCLUSION We conclude the trial court prope rly granted summary judgment i n Shiwach’s favor. Shiwach’s motion sufficiently identified the basis for the requ ested summary judgment and demonstrated potentially covere d claims asserted by Broderick. Additionally, AIX failed to prove as a matter of law that any exclusion precluded its defense obl igation. We also conclude the trial court’s consideration of extrinsic evidence, if any, was harmle ss. Likewise, the trial court correctly entered judgment against AIX under chapter 542 and properly gra nted Shiwach nonsuit on his chapter 541 claims. We affirm the trial court’s orders and judg ment.

181050F.P05 /Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE–16– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

AIX SPECIALTY INSURANCE COMPANY, Appellant

No. 05-18-01050-CV V. RAJ SHIWACH, MD, Appellee On Appeal from the 134th Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-18-04268. Opinion delivered by Chief Justice Burns. Justices O'Neill and Rosenberg participating.
In accordance with this Court’ s opinion of this date, the judg ment of the trial court is AFFIRMED

. It is ORDERED that appellee RAJ SHIWACH, MD re cover his costs of this appeal from appellant AIX SPECIALTY INSURANCE COMPANY.
Judgment entered December 18, 2019