NUMBER 13-25-00004-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
U.S. RISK, INC., Appellant,
v.
ISI CONTRACTING, INC., Appellee.
ON APPEAL FROM THE 93RD DISTRICT COURT
OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Silva, Peña, and West
Memorandum Opinion by Justice Peña
This is a permissive interlocutory appeal of an order denying summary judgment
in an insurance coverage dispute. By two issues, appellant U.S. Risk, Inc. (U.S. Risk)
argues that the trial court erred in denying its motion for summary judgment because (1) it
owed no duty to appellee ISI Contracting, Inc. (ISI) under Texas Insurance Code Section
541.061 concerning alleged misrepresentations of policy coverage made to a third party and (2) the statute of limitations barred ISI’s suit. We affirm.
I. BACKGROUND
A. Relevant Facts
The summary judgment evidence established the following facts. Ricardo Guerra
operated two businesses involved in landscaping: RGR Industries (RGR), a limited
liability company, and Guerra Construction (GC), a sole proprietorship. Guerra testified
RGR was his “main company” with about twenty to thirty employees while he was the
only employee of GC, so RGR employees and equipment were regularly used for GC’s
work. Guerra used James E. Capt & Associates, LLC (Capt) as a retail agent to solicit
insurance coverage for both businesses. In January 2013, Capt sent an application to
U.S. Risk, a managing general agent, 1 for insurance quotes covering GC’s operations.
Each application submitted stated that GC’s operations included guard rail installation
and repair and listed such as a scheduled hazard for which GC sought coverage. U.S.
Risk provided Capt a quote from Scottsdale Insurance Company 2 (Scottsdale), an
insurance carrier, which provided the lowest premiums but contained an exclusion for
“[a]ll operations other than mowing right aways for [Texas Department of Transportation
(TXDOT)].” This exclusion was included because Jackie Baca, a U.S. Risk underwriter,
emailed a Scottsdale underwriter explaining that Lucy Magallan, a Capt insurance
representative, allegedly told Baca GC would “only mow the lawn for TXDOT” and
guardrail exposure was already covered by a separate policy issued to RGR. However,
1 As a managing general agent, U.S. Risk could accept business only from a licensed retail agent
such as Capt. See TEX. INS. CODE § 981.220.
2 U.S. Risk was Scottsdale’s Texas managing general agent responsible for underwriting and binding coverage on behalf of Scottsdale.
2
Magallan testified she “would never say that.” Baca testified Scottsdale also confirmed
that GC was covered by another policy, though she never personally reviewed that policy.
Magallan subsequently provided the quotes to Nora Quintanilla, Guerra’s office
manager who oversaw insurance for both businesses. Quintanilla selected U.S. Risk’s
Scottsdale quote, and on January 21, 2013, U.S. Risk issued a binder for coverage to GC
indicating the Scottsdale policy excluded “ALL OPERATIONS OTHER THAN MOWING
RIGHT AWAYS FOR TXDOT.” The Scottsdale policy issued to GC for 2013–2014
contained an endorsement indicating the same exclusion for “ALL OPERATIONS OTHER
THAN MOWING RIGHT AWAYS FOR TXDOT.” Each year’s policy was sent to Guerra’s
office and stored by Quintanilla. Quintanilla testified she contacted Magallan after noticing
the Scottsdale policy’s incorrect description, but Magallan reassured her guardrail activity
was covered.
In March 2013, ISI subcontracted GC to perform, among other tasks, guardrail
work on highways around San Antonio under a prime contract between ISI and TXDOT.
The subcontract required GC to indemnify and defend ISI against liability for any personal
injury caused by GC and to carry general liability coverage with ISI as an additional
insured. However, ISI was never added as an additional insured on the policy. 3 According
to Magallan, she spoke to Quintanilla and “advised [GC] as adding [ISI] as an additional
insured, but [GC] did not want to pay additional fees, so [Capt] did not add them.” 4 The
same Scottsdale policy (with the same exclusion and without ISI as an additional insured)
was issued to GC for 2014–2015 and 2015–2016. For each policy year, ISI received a
3 ISI points out that each Scottsdale policy separately provided coverage for liability assumed by
contract.
4 Magallan also testified that for similar reasons, RGR choose not to add ISI as an additional insured
under its Scottsdale policy.
3
certificate of liability insurance from Capt which purportedly showed that GC was covered.
In August 2015, GC and ISI received notice of a claim made on behalf of Danny
Martinez who was allegedly involved in an accident around October 2014 involving GC’s
guardrail work. GC and ISI both tendered the Martinez claim to Scottsdale seeking a
defense and indemnification under GC’s 2015–2016 policy, and Guerra also requested
coverage from Scottsdale under a 2014–2015 policy for RGR. Notably, RGR’s policy did
not contain an exclusion for all operations other than mowing rights-of-way. A Scottsdale
underwriter emailed Baca of U.S. Risk on September 10, 2015, and asked, “Does [GC]
have coverage in place for the guardrail installation? We have received a claim from
another agent and policy number that relates to [GC] for a guardrail incident. Just wanting
to confirm that our policy only covers the mowing of right-a-ways.” Baca replied, “No, per
the appl. in file–only mowing.” Baca followed up on September 14, 2015, and stated, “Per
our conversation, [GC] has duplicate coverage through [Scottsdale].”
On October 23, 2015, Scottsdale informed ISI that after review of GC’s 2014–2015
policy, it determined “there is no obligation to indemnify ISI in this matter.” Scottsdale
explained “ISI is not named insured or additional named insured under the policy” and
“there is no coverage for any . . . incident . . . other than ‘mowing right of ways for the
TXDOT[.]’” ISI responded through its counsel on November 13, 2015:
Given the foregoing, we request that Scottsdale honor its duty to defend
and accept ISI’s tender of defense for this matter within fifteen (15) days of
this correspondence. We further request that Scottsdale provide our office
with a certified complete copy of Guerra’s commercial general liability
policy . . . . If we do not receive your acceptance of ISI’s tender of defense,
o[r] if we do not receive any response within the aforementioned timeframe,
then ISI will proceed with a declaratory judgment action against Scottsdale
to enforce its rights to a defense under the applicable Scottsdale policy.”
Regarding Guerra’s claim under RGR’s Scottsdale policy, Scottsdale informed Guerra on
4
September 24, 2015, that it was proceeding under a reservation of rights and investigating
the matter. Subsequently, Guerra testified he “got some calls from a lawyer from San
Antonio, which was representatives with our insurance” who told Guerra “don’t worry
about anything. Everything is fine.” Quintanilla similarly testified “[s]ome lawyer was
calling [Guerra] and telling him that he was taking care of the [Martinez claim].” ISI’s owner
Tim Herbert testified “still to this day, there’s confusion as to who covered what,” but
“because the defense was provided for Guerra and the suit went away” ISI had “no reason
to further inquire or dispute . . . the information contained” in the October 2015 Scottsdale
rejection letter. ISI did not sue, but Kelly Parker, a former ISI employee, testified that
“[a]fter [ISI] discovered that [GC] didn’t have insurance” he was assigned to “follow up
with the Certificate of Insurance” to “see if [subcontractors] listed the appropriate
companies as an additional insured” and ask for “copies of their insurance policies so [ISI]
can make sure that there was not an exclusion that was specific to the work that they
were performing.”
On March 22, 2017, the Markham family sued TXDOT and ISI for damages arising
out of a 2015 accident involving allegedly defective guardrail installation by GC. ISI
tendered the claim to Scottsdale and demanded GC defend and indemnify ISI in the suit.
On July 11, 2017, Scottsdale’s denied coverage for the suit under GC’s 2015–2016 policy
and RGR’s 2014–2015 policy. Scottsdale explained the basis of the suit concerned GC’s
guardrail work, but the RGR policy did not list GC as an additional insured and GC’s policy
only provides coverage for mowing operations for TXDOT. ISI incurred over $1 million in
defense of the Markham suit.
5
B. Procedural Background
Guerra filed suit against Scottsdale and Capt on October 2, 2018, 5 to which ISI
intervened on January 30, 2019. In its live eighth amended petition filed on April 10, 2024,
ISI’s only remaining claim asserts that U.S. Risk violated Texas Insurance Code Section
541.061 when it “made misrepresentations relating to [GC]’s insurance coverage, failed
to state material facts relating to [GC]’s insurance coverage necessary to make other
statements made by U.S. Risk and Capt not misleading, and made statements in a
manner that would mislead a reasonably prudent person to a false conclusion of a
material fact.” See TEX. INS. CODE § 541.061.
On June 6, 2020, U.S. Risk filed its first amended combined traditional and noevidence motion for summary judgment against ISI arguing the applicable statute of
limitations barred ISI’s claims and alternatively that it owed no duty to ISI. In response,
ISI argued it could not have discovered the defects in GC’s policy until the Markham suit
in 2017. On February 28, 2024, U.S Risk filed its second amended combined traditional
and no-evidence motion for summary judgment further arguing ISI could not maintain a
Section 541.061 claim because there was no specific misrepresentation made to ISI. The
trial court subsequently denied U.S. Risk’s second amended motion for summary
judgment on October 31, 2024, and denied its first amended motion for summary
judgment on November 6, 2024.
U.S. Risk then moved for a permissive appeal of the denial of its summary
judgment motions. The trial court granted the motion and entered amended orders
identifying the controlling issues of law and stating why an immediate appeal would
5 Guerra settled all his claims against all parties in this matter.
6
materially advance termination of the litigation. See TEX. CIV. PRAC. & REM. CODE
§ 51.014(d); TEX. R. CIV. P. 168. U.S. Risk timely filed a petition for a permissive
interlocutory appeal and presented the controlling legal issues as: (1) the scope of U.S.
Risk’s duty under Texas Insurance Code Section 541.061 and (2) whether the discovery
rule tolled the statute of limitations. This Court subsequently granted U.S. Risk’s petition
for permissive appeal. See TEX. R. APP. P. 28.3.
II. SECTION 541.061
By its first issue, U.S. Risk argues it “did not owe ISI any duty with respect to
representations [it] allegedly made to a third-party concerning coverage on an insurance
policy . . . because [Section] 541.061 does not create liability for misrepresentations
about an insurance policy made to any person other than the claimant.” ISI responds
there is no language in Section 541.061 requiring that the “misrepresentation sued upon
be made to the claimant.”
A. Standard of Review & Applicable Law
When construing a statute,
[o]ur fundamental goal . . . “is to ascertain and give effect to the
Legislature’s intent.” Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452
(Tex. 2012). To do this, we look to and rely on the plain meaning of a
statute’s words as expressing legislative intent unless a different meaning
is supplied, is apparent from the context, or the plain meaning of the words
leads to absurd or nonsensical results. Crosstex Energy Servs., L.P. v. Pro
Plus, Inc., 430 S.W.3d 384, 389–90 (Tex. 2014). Words and phrases “shall
be read in context and construed according to the rules of grammar and
common usage.” Id. (citing TEX. GOV’T CODE § 311.011). We presume the
Legislature “chooses a statute’s language with care, including each word
chosen for a purpose, while purposefully omitting words not chosen.” TGS–
NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). In
that vein, we take statutes as we find them and refrain from rewriting the
Legislature’s text. Entergy Gulf States v. Summers, 282 S.W.3d 433, 443
(Tex. 2009).
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Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 518 S.W.3d 318,
325–26 (Tex. 2017). “Statutory construction is a question of law that we review de novo.”
San Jacinto Title Servs. of Corpus Christi, LLC. v. Kingsley Props., LP., 452 S.W.3d 343,
346 (Tex. App.—Corpus Christi–Edinburg 2013, pet. denied) (citing R.R. Comm’n of Tex.
v. Tex. Citizens for a Safe Future and Clean Water, 336 S.W.3d 619, 624 (Tex. 2011)).
Texas Insurance Code Chapter 541 “shall be liberally construed” to promote its
purpose of defining and prohibiting unfair methods of competition or deceptive acts or
practices in the insurance business. TEX. INS. CODE §§ 541.001, .008. To bring a private
action under Chapter 541, ISI must show that: (1) both it and U.S. Risk are “persons” as
defined by Texas Insurance Code Section 541.002(2); (2) U.S. Risk engaged in an act or
practice that violated Texas Insurance Code Chapter 541, Subchapter B; and (3) U.S.
Risk’s act or practice was a producing cause of actual damages to ISI. See Dortch v.
Boxer Prop. Mgmt. Corp., No. 01-17-00148-CV, 2018 WL 3431733, at *6 (Tex. App.—
Houston [1st Dist.] July 17, 2018, no pet.) (first citing TEX. INS. CODE §§ 541.002, .151;
and then citing Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex. 2000)); Kersh v.
UnitedHealthcare Ins. Co., 946 F.Supp.2d 621, 642 (W.D. Tex. 2013). The Insurance
Code broadly defines a “person” as “an individual, corporation, association, partnership,
reciprocal or interinsurance exchange, Lloyd’s plan, fraternal benefit society, or other
legal entity engaged in the business of insurance, including an agent, broker, or adjuster.”
TEX. INS. CODE § 541.002(2); see also Tex. Med. Res., LLP v. Molina Healthcare of Tex.,
Inc., 659 S.W.3d 424, 438 (Tex. 2023) (noting “person” under Section 541.151 is not
limited to an insured or beneficiary).
Subchapter B of Texas Insurance Code Chapter 541 prohibits the
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misrepresentation of insurance policies. TEX. INS. CODE § 541.061. Section 541.061
specifically provides that:
It is an unfair method of competition or an unfair or deceptive act or practice
in the business of insurance to misrepresent an insurance policy by:
(1) making an untrue statement of material fact;
(2) failing to state a material fact necessary to make other statements
made not misleading, considering the circumstances under which
the statements were made;
(3) making a statement in a manner that would mislead a reasonably
prudent person to a false conclusion of a material fact;
(4) making a material misstatement of law; or
(5) failing to disclose a matter required by law to be disclosed, including
failing to make a disclosure in accordance with another provision of
this code.
Id.
B. Discussion
The dispositive issue before us is whether ISI may maintain its Section 541.061
action based on U.S. Risk’s alleged misrepresentations to Scottsdale. 6 For the reasons
discussed below, we conclude the statute does not restrict liability to only
misrepresentations made to a claimant.
ISI points to three alleged misrepresentations U.S. Risk made to Scottsdale:
(1) Baca’s 2013 email to Scottsdale indicating GC only needed mowing coverage; (2) the
same email indicating guardrail exposure was already covered by a separate policy
issued to RGR; and (3) Baca’s 2015 email to Scottsdale indicating that “[GC] has
6 Causation is not an issue before us because U.S. Risk did not raise it as a ground for summary
judgment with the trial court. See TEX. R. CIV. P. 166a(b)(2)(C), (D); G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (“Summary judgments . . . may only be granted upon grounds expressly asserted in the summary judgment motion.”).
9
duplicate coverage through [Scottsdale].” U.S. Risk contends ISI cannot maintain a
Section 541.061 action because ISI is a “stranger as to all of the statements forming the
basis for its suit” since none were about ISI, none were made to ISI, and none were
solicited by ISI.
In reviewing the plain language of Chapter 541, we find no language supporting
U.S. Risk’s argument that a misrepresentation must be made “directly to the claimant.”
Chapter 541 authorizes a private action if both parties to the suit are “persons,” the
defendant engaged in an act violating Subchapter B, and the defendant’s act or practice
caused plaintiff actual damages. TEX. INS. CODE § 541.151; see also Brown & Brown of
Tex., Inc. v. Omni Metals, Inc., 317 S.W.3d 361, 381 (Tex. App.—Houston [1st Dist.]
2010, pet. denied) (explaining Texas caselaw on Section 541.151’s predecessor
established that “contractual privity or third[-]party beneficiary status is not required for
standing to bring claims”). Section 541.061 provides five ways an insurance policy can
be misrepresented but does not set out to whom the misrepresentation is made to. Id.
§ 541.061.
Absent language about who the misrepresentation must be made to, U.S. Risk
contends we should construe Section 541.061 to require an actionable misrepresentation
be made directly to the claimant. U.S. Risk emphasizes that we must read Chapter 541
as a coherent whole to “giv[e] effect to every word, clause, and sentence.” Sunstate
Equip. Co. v. Hegar, 601 S.W.3d 685, 689–90 (Tex. 2020) (quoting First Am. Title Ins.
Co. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008)). However, elsewhere in Subchapter B,
the Legislature explicitly uses the term “misrepresenting to a claimant” when defining
unfair settlement practices and “to the public” when defining false information and
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advertising. TEX. INS. CODE §§ 541.052 (false information), .060 (unfair settlement). Had
the Legislature intended to limit a third-party’s ability to bring a claim under Section
541.061, it could have included a prohibition like the one contained in Section 541.060(b).
See id. § 541.060(b) (“Subsection (a) does not provide a cause of action to a third party
asserting one or more claims against an insured covered under a liability insurance
policy.”). Accepting U.S. Risk’s argument would insert limiting language into Section
541.061 where the Legislature has seemingly chosen not to, despite explicitly providing
such language elsewhere. See Cadena Comercial USA, 518 S.W.3d at 329 (“When the
Legislature uses a word or phrase in one part of a statute but excludes it from another,
the term should not be implied where it has been excluded.”); see also TEX. INS. CODE
§ 541.008 (“This chapter shall be liberally construed and applied to promote [its]
underlying purposes . . . .”). The term “claimant” is omitted from Section 541.061, and we
will not imply its application here. See Cadena Comercial USA, 518 S.W.3d at 329; Tex.
Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 637 (Tex. 2010)
(“Courts are not responsible for omissions in legislation, but we are responsible for a true
and fair interpretation of the law as it is written.”).
U.S. Risk further argues such a construction of Section 541.061 would contravene
and displace the “common law requirement” that “only a person to whom a statement is
made or who is an intended recipient of the statement has a cause of action based on a
misrepresentation in that statement” 7 and cites to American National Insurance Company
7 U.S. Risk seemingly concedes that under certain circumstances the common law allows for third
parties, whom the statements were not directly made to, to maintain a misrepresentation claim. See Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 578–80 (Tex. 2001) (fraudulent misrepresentation); McCamish, Martin, Brown & Loeffler v. F.E. Appling Ints., 991 S.W.2d 787, 792 (Tex. 1999) (negligent misrepresentation).
11
v. Arce, 672 S.W.3d 347 (Tex. 2023). Arce dealt with the construction of Texas Insurance
Code Section 705.051, which provides: “A misrepresentation in an application for a life,
accident, or health insurance policy does not defeat recovery under the policy unless the
misrepresentation: (1) is of a material fact; and (2) affects the risks assumed. TEX. INS.
CODE § 705.051. While the common law includes intent as an element of an insurer’s
misrepresentation defense in the life insurance policy context, the appellant in Arce
argued this statutory provision displaced such requirement and “establish[ed] an insurer’s
right to rescind if both statutorily stated conditions are satisfied.” Arce, 672 S.W.3d at
355–56. The Supreme Court of Texas disagreed and held “[b]oth the statutory and the
common-law elements govern an insurer’s misrepresentation defense because,
grammatically, [S]ection 705.051 states conditions that are necessary, not sufficient, to
defeat recovery.” Id. at 356. However, Justice Young cautioned in his concurrence that
the decision “d[id] not mean that courts may freely draw from the common-law well to
‘supplement’ statutory requirements.” Id. at 360 (Young, J., concurring). The court noted
that since Section 705.051’s enactment in 1909, it “has long functioned side by side with
the common law” and the requirement of intent is “well settled, longstanding, and clearly
articulated” despite the statute’s silence. Id. at 349, 354 & n.18.
Unlike Section 705.051, Section 541.061 and its predecessors do not appear to
have “functioned side by side with the common law.” See id. U.S. Risk has not pointed
us to, nor have we found, any case which has applied common law misrepresentation
requirements to claims under Section 541.061. But see Lennar Corp. v. Great Am. Ins.
Co., 200 S.W.3d 651, 701 n.70 (Tex. App.—Houston [14th Dist.] 2006, pet. denied)
(“Unlike a common-law misrepresentation claim, an insured is not required to prove
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reliance to maintain a claim under” former Article 21.21, Section 4, now incorporated into
Chapter 541, Subchapter B), abrogated on other grounds by Gilbert Tex. Constr., L.P. v.
Underwriters at Llyod’s London, 327 S.W.3d 118 (Tex. 2010). Thus, we find no merit in
U.S. Risk’s argument that the proper construction of Section 541.061 would contravene
the common law.
U.S. Risk also argues that its construction of Section 541.061 is supported “from
the unchallenged, unbroken chain of decisions requiring the misrepresentation to be
made to the claimant” and cites several cases in support. See Ruttiger, 381 S.W.3d at
445–46; Malik v. GEICO Advantage Ins. Co., No. 01-19-00489-CV, 2021 WL 1414275,
at *7 (Tex. App.—Houston [1st Dist.] Apr. 15, 2021, pet. denied) (mem. op.) (examining
a private action brought under Section 541.151(2), which requires a showing of
detrimental reliance unlike Section 541.151(1)); Dortch, 2018 WL 3431733, at *6–7;
Zatorski v. USAA Tex. Lloyd’s Co., No. 01-13-01002-CV, 2015 WL 456474, at *2–3 (Tex.
App.—Houston [1st Dist.] Feb. 3, 2015, no pet.) (mem. op.); Ramirez v. GEICO, 548
S.W.3d 761, 775 (Tex. App.—El Paso 2018; pet. denied). But none of the cases cited
explicitly hold that a Section 541.061 misrepresentation claim is maintainable only if the
misrepresentation is made directly “to the claimant” nor involve misrepresentations made
to a third party as is the case here. See Ruttiger, 381 S.W.3d at 446; Malik, 2021 WL
1414275, at *7; Dortch, 2018 WL 3431733, at *7; Zatorski, 2015 WL 456474, at *3;
Ramirez, 548 S.W.3d at 775.
In sum, we hold that Section 541.061 does not require a misrepresentation to be
made directly to the claimant. We overrule U.S. Risk’s first issue.
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III. LIMITATIONS
By its second issue, U.S. Risk argues “the undisputed evidence demonstrated
conclusively that ISI had actual knowledge of its injury—‘that Guerra did not have
insurance’—but did not bring suit within two years of obtaining that knowledge.” ISI
disputes that the evidence conclusively established U.S. Risk’s affirmative limitations
defense.
A. Standard of Review & Applicable Law
“We review summary judgments de novo.” Wal-Mart Stores, Inc. v. Xerox State &
Loc. Sols., Inc., 663 S.W.3d 569, 576 (Tex. 2023). To prevail on a traditional motion for
summary judgment, the movant must show there is no genuine issue of material fact, and
the movant is entitled to judgment as a matter of law. Id. “If the movant meets that burden,
the burden shifts to the nonmovant to present evidence raising a fact issue, but the burden
does not shift if the movant does not satisfy its initial burden.” Id. at 583. “If the nonmovant
brings forth more than a scintilla of probative evidence to raise a genuine issue of material
fact, summary judgment is improper.” Id. at 576. “In determining whether a fact issue
precludes summary judgment, we take as true all evidence favorable to the nonmovant,
and we indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor.” Id. (citation modified).
A defendant that moves for summary judgment on the affirmative defense of
limitations has the burden to conclusively establish that defense. Gill v. Hill, 688 S.W.3d
863, 868 (Tex. 2024) (citing KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988
S.W.2d 746, 748 (Tex. 1999)). “[T]o succeed on limitations at the summary-judgment
stage, the movant must also conclusively negate application of the discovery rule and any
14
tolling doctrines pleaded as an exception to limitations.” Id. (citation modified). “The
defendant has the burden regarding any issues raised that affect the running of
limitations, while the plaintiff has the burden to raise a fact issue on equitable defenses
that defeat limitations even though it has run.” Id. (quoting Draughon v. Johnson, 631
S.W.3d 81, 88 (Tex. 2021)).
Under the Insurance Code, ISI had to bring its Section 541.061 misrepresentation
claim “before the second anniversary of the following: (1) the date the unfair method of
competition or unfair or deceptive act or practice occurred; or (2) the date the person
discovered or, by the exercise of reasonable diligence, should have discovered that the
unfair method of competition or unfair or deceptive act or practice occurred.” TEX. INS.
CODE § 541.162(a). “Generally, determining when a plaintiff discovered an injury or
whether the plaintiff exercised due diligence in discovering an injury are fact questions.”
Est. of Maun, No. 13-22-00576-CV, 2024 WL 49542, at *4 (Tex. App.—Corpus Christi–
Edinburg Jan. 4, 2024, no pet.) (mem. op.) (citing LaTouche v. Perry Homes, LLC, 606
S.W.3d 878, 884 (Tex. App.—Houston [14th Dist.] 2020, pet. denied)). “However, if
reasonable minds could not differ about the conclusion to be drawn from the facts, the
commencement of the limitations period may be determined as a matter of law.” Id.
(quoting LaTouche, 606 S.W.3d at 884).
B. Discussion
ISI filed suit on January 30, 2019, and it is undisputed ISI did not actually discover
U.S. Risk’s alleged misrepresentations until discovery. U.S. Risk argues events as early
as 2015 put ISI on notice of its injury and ISI’s suit is consequently time barred. Thus, the
dispositive issue before us is whether ISI, “by the exercise of reasonable diligence, should
15
have discovered that [U.S. Risk’s] unfair method of competition or unfair or deceptive act
or practice occurred.” TEX. INS. CODE § 541.162(2).
U.S. Risk points to two pieces of summary judgment evidence in support of its
argument: (1) Parker’s testimony that ISI changed internal policies after the Markham suit
around 2015–2016 and (2) Scottsdale’s 2015 letter rejecting ISI’s request for coverage
on the Martinez claim. U.S. Risk argues this evidence shows ISI was aware of its injury—
that Guerra did not have compliant insurance coverage. Had ISI inquired further, U.S.
Risk contends ISI would have discovered that it was not covered under Guerra’s policies.
But reasonable diligence is ordinarily a fact question, Est. of Maun, 2024 WL 49542, at
*4, and ISI provided controverting evidence. ISI still received certificates of insurance from
Capt purporting to show GC had the required coverage. Quintanilla, Guerra, and Herbert
also explained that Scottsdale ultimately provided coverage on the Martinez claim, and
Herbert explained that “because the defense was provided for Guerra and the suit went
away,” ISI had “no reason to further inquire.” Reasonable minds could differ on whether
Scottsdale handling the Martinez claim under RGR’s policy after previously rejecting
coverage under GC’s policy warranted ISI to inquire further. See Sw. Energy Prod. Co. v.
Berry-Helfand, 491 S.W.3d 699, 724 (Tex. 2016).
Even assuming ISI failed to use reasonable diligence by failing to review GC’s
insurance policy, U.S. Risk provided no evidence that a diligent investigation would have
led ISI to discover Baca’s alleged misrepresentations. See id.; Childs v. Haussecker, 974
S.W.2d 31, 47 (Tex. 1998). ISI’s claim is based on the alleged misrepresentations of U.S.
Risk, and it is unclear how a review of GC’s policies would have uncovered the specific
conduct ISI alleges caused its damages.
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Because fact questions remain with respect to whether ISI knew or should have
known through the exercise of reasonable diligence about U.S. Risk’s alleged
misrepresentations, we hold U.S. Risk failed to conclusively establish its limitations
defense. See Childs, 974 S.W.2d at 47. We overrule U.S. Risk’s second issue.
III. CONCLUSION
We affirm the trial court’s judgment.
L. ARON PEÑA JR.
Justice
Delivered and filed on the
13th day of August, 2026.
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