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Defendant's Attorney: Eve L. Henson
Brant C. Martin
Bobby M. Rubarts
Fort Worth, Texas – Insurance Law lawyer represented Appellant with filing a petition for permissive interlocutory appeal on a “controlling question of law” ruling.
Appellant has filed a petition for permissive interlocutory appeal, and it
contends that the trial court ruled on a “controlling question of law” when it granted
Appellee’s motion for partial summary judgment. Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(d)(1); Tex. R. App. P. 28.3(a), (e)(4); see Tex. R. Civ. P. 168. The question
presented for our review is “[w]hether amounts an insured is obligated to pay which
are ‘restitutionary in nature’ are uninsurable under Texas law.” But it is not clear that
the trial court actually reached and ruled on this question.
In the insurance dispute below, Appellant—a liability insurance provider—
asserts that Appellee—its insured—seeks indemnification for “restitutionary”
payments Appellee made to a third party and that Texas law prohibits insurance
coverage for such “restitutionary” payments.
1 Appellee anticipated this argument
when it moved for partial summary judgment on the coverage issue, and it countered
that “the [relevant payments to a third party] were ‘expectancy’ or ‘benefit of the
bargain damages,’ not ‘restitution.’” Furthermore, Appellee argued, even if the
relevant payments were “restitutionary in nature,” Texas law does not consider such
The trial court granted Appellee’s motion for partial summary judgment, and—
crucially—it expressly “decline[d] to limit [its] decision and Order to a particular
1The parties’ insurance policy excludes amounts “not insurable under the law.”
ground or grounds.” The summary judgment order could be based on Appellee’s
primary argument that the payments were not “restitutionary,” or it could be based on
Appellee’s alternative argument that Texas law does not prohibit insurance coverage
for “restitutionary” payments. Cf. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d
211, 216 (Tex. 2003) (recognizing that if “the trial court’s order does not specify the
grounds for its summary judgment, we must affirm the summary judgment if any of
the theories presented to the trial court and preserved for appellate review are
The trial court later amended its order to authorize this permissive appeal on
the question of “[w]hether amounts an insured is obligated to pay which are
‘restitutionary in nature’ are uninsurable under Texas law.” And both the trial court
and Appellant characterize this question as “controlling.”
But the trial court need
not have reached this question in granting Appellee’s motion for partial summary
judgment, so it is not clear that the trial court ruled on the issue at all. Cf. El Paso Tool
& Die Co. v. Mendez, 593 S.W.3d 800, 801–02, 805–09 (Tex. App.—El Paso 2019, no
pet.) (concluding permissive appeal was improvidently granted because “it [wa]s not
2The trial court’s order authorizing this permissive appeal explained the
significance of the allegedly controlling issue by stating that “if the controlling issue of
law is resolved in [Appellant’s] favor, i.e., an amount an insured is obligated to pay
that is ‘restitutionary in nature’ is uninsurable under Texas law, then [Appellee’s]
primary claim, breach of contract, will be dismissed as a matter of law.”
clear that the trial court applied the wrong legal test” as appellant argued, nor was it
clear that the case or summary judgment ruling turned on the legal issue presented).
Because the record is ambiguous as to whether the trial court reached—much
less ruled on—the question presented for our review, and because “permissive
appeals should be limited to those cases where we can resolve controlling legal issues
necessary to the resolution of the case,” id. at 809 (emphasis added).
Outcome: We deny Appellant’s petition for permissive interlocutory appeal.