felicita-del-carmen-canas-as-next-friend-of-yenifer-estefani-canas-escobar ( 2013 )

Affirmed in Part and Reversed and Remanded in Part and an Opinion by
Each Member of the Panel filed November 27, 2013.
In The
Fourteenth Court of Appeals
NO. 14-11-01055-CV
FELICITA DEL CARMEN CANAS, AS NEXT FRIEND OF YENIFER
ESTEFANI CANAS ESCOBAR, JAVIER ENRIQUE CANAS ESCOBAR
AND BEATRIZ ABIGAIL DEL CARMEN CANAS, MINORS, Appellant
V.
CENTERPOINT ENERGY RESOURCES CORPORATION, Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 2011-08170
OPINION
This is an appeal from a summary judgment in a wrongful-death action in
which the decedent’s children asserted claims against a natural gas provider based
upon negligence, negligence per se, strict liability, gross negligence, negligent
misrepresentation, and intentional misrepresentation. The trial court dismissed all
claims. On appeal, the three-member panel of this court is fractured, resulting in
three separate opinions, two of which are part majority (those authored by Chief
Justice Frost and Justice Christopher), and all of which are part dissents. Though
the panel members disagree about much of the analysis, at least two of the three
panel members agree with respect to the proper judgment for each claim.
As to the claims based upon negligence, negligence per se, and strict
liability, this court affirms the trial court’s judgment. As to these claims, section
IV.A. of this opinion is a plurality opinion, with Justice Christopher concurring in
the judgment, and Justice Jamison concurring in part in the judgment and
dissenting in part. As to the gross-negligence claim, this court reverses the trial
court’s judgment and remands for further proceedings consistent with section C. of
Justice Christopher’s opinion, which is a majority opinion of the court as to the
gross-negligence claim. Section IV.B. of this opinion is a dissenting opinion as to
the gross-negligence claim. As to the intentional-misrepresentation and negligent-
misrepresentation claims, this court reverses the trial court’s judgment and
remands for further proceedings consistent with section IV.C. of this opinion,
which is a majority opinion of the court as to these two claims. As to the
intentional-misrepresentation and negligent-misrepresentation claims, Justice
Christopher concurs in the judgment as to the intentional-misrepresentation claim
and dissents as to the negligent-misrepresentation claim.
In section IV.A. of this opinion, Chief Justice Frost concludes that the
limitation of liability in the natural gas provider’s tariff is reasonable and
enforceable under the applicable legal standard for the filed-rate doctrine and that
the trial court did not err to the extent it granted summary judgment based upon the
tariff’s limitation of liability regarding the claims based upon negligence,
negligence per se, and strict liability. As to part of the gross-negligence claim,
Chief Justice Frost concludes that the trial court’s summary judgment should be
2
affirmed because the plaintiffs have not challenged one of the summary-judgment
grounds on appeal, and Chief Justice Frost dissents to the extent that this court
affirms the trial court’s judgment as to this part of the gross-negligence claim. But,
Chief Justice Frost concludes that it is proper for this court to reverse and remand
the remainder of this claim. In section IV.C. of this opinion, the court, addressing
the plaintiffs’ intentional-misrepresentation and negligent-misrepresentation
claims, determines that that trial court erred in granting summary judgment as to
these claims, which the plaintiffs added after the defendant filed its summary-
judgment motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant/plaintiff Felicita Del Carmen Canas, as next friend of Yenifer
Estefani Canas Escobar, Javier Enrique Canas Escobar and Beatriz Abigail Del
Carmen Canas, Minors (hereinafter the “Canas Parties”) filed a wrongful death
action against appellee/defendant CenterPoint Energy Resources Corporation
(hereinafter “CenterPoint”). In their live petition the Canas Parties make the
following allegations:
On March 2, 2007, Guadalupe Del Carmen Canas (“Canas”) was in her
residence, a garage apartment located behind a house in Houston. Mary
Betancourt owned both the house and the garage apartment.
CenterPoint owned and operated the natural gas entering Canas’s
residence.
Natural gas leaked from an underground corroded gas line located on the
exterior of Betancourt’s house, migrated underground through the soil, and
into Canas’s garage apartment, filling the apartment with dangerous levels
of gas.
As the gas migrated underground into Canas’s residence, it became
odorless or insufficiently odorized. The odorant placed in the gas by
3
CenterPoint was adsorbed by the soil.
Rust and corrosion were visible on the pipes located next to the meter on
the outside of the main residence and CenterPoint did not report this
corrosion to anyone.
At no time did CenterPoint warn Canas or Betancourt of the potential for
gas to migrate into their homes when a corrosion leak or any other type of
leak occurs. CenterPoint also failed to warn Canas or Betancourt that the
gas, which migrates underground into structures, can become either
deodorized or inadequately odorized, due to the odorant being adsorbed
into the soil.
As a result of the leak and the diminished odorant in the gas, the gas
accumulated in the structure and was undetectable until so much gas filled
the structure that it reached the lower explosive limit and ignited.
CenterPoint has known for decades that corrosion in gas lines results in
underground gas leaks which can and do cause gas to travel into someone’s
home or other structure in either an odorless or ineffectively odorized state
due to the odorant being adsorbed in the soil. In addition, for at least a
decade, CenterPoint’s odorant suppliers have told CenterPoint to warn its
customers about the dangers of odorant fade, but CenterPoint has failed to
do so. CenterPoint has continued to fail to warn its customers, both before
and after this incident. CenterPoint is also aware of many other gas
explosions which have occurred in the same manner as the explosion in this
case.
An accumulation of gas inside Canas’s residence caused an explosion
which severely burned and injured Canas. The severe burns and injuries to
Canas ultimately led to her death on March 20, 2007.
In their wrongful-death action, the Canas Parties assert claims for negligence, gross
negligence, negligence per se, strict liability, intentional misrepresentation, and
negligent misrepresentation.
CenterPoint moved for summary judgment on the following grounds:
(1) Under the filed-rate doctrine, all of the Canas Parties’ claims
4
for strict liability and negligence are barred by the gas tariff in
effect on the date of the incident made the basis of this suit.
(2) There is no evidence of CenterPoint’s actual knowledge of a
dangerous condition on Betancourt’s property that caused the
fire in question and therefore the Canas Parties have not
established that CenterPoint owed any duty to Canas regarding
such dangerous conditions.
(3) Even absent any tariff, CenterPoint has no negligence liability
to the Canas Parties because CenterPoint has no duty to inspect
a customer’s wiring, appliances, or the like before supplying
gas to the customer and because CenterPoint is not liable for
dangerous conditions on Betancourt’s property due to the lack
of any evidence that it had actual knowledge of any dangerous
condition on Betancourt’s property. Because CenterPoint has
no negligence liability to the Canas Parties, it cannot be liable
for gross negligence or negligence per se.
(4) CenterPoint cannot be liable for gross negligence because a
claim for gross negligence does not exist independent of an
underlying negligence claim, and the Canas Parties’ negligence
claim fails as a matter of law.
The trial court granted CenterPoint’s summary-judgment motion in its entirety and
dismissed with prejudice all of the Canas Parties’ claims. The trial court did not
specify the summary-judgment grounds upon which it relied.
II. ISSUES PRESENTED
On appeal, the Canas Parties present the following issues:
(1) The trial court erred in granting a final summary judgment dismissing all of
the Canas Parties’ claims against CenterPoint.
(2) CenterPoint’s summary-judgment motion is directed at theories and claims
not asserted by the Canas Parties in their petition. Because the motion does
not specifically address the Canas Parties’ claims, the trial court should not
have granted it.
5
(3) The trial court erred in granting summary judgment as to the
misrepresentation claims that the Canas Parties added after CenterPoint filed
its summary-judgment motion.
(4) The trial court erred in applying the filed-rate doctrine to this case because
the tariff in question is unreasonable as applied to these facts, and in
contravention of the carefully constructed regulatory scheme governing
natural gas safety.
(5) The trial court erred in granting summary judgment as to the Canas Parties’
gross-negligence claim.
III. STANDARD OF REVIEW
In a traditional motion for summary judgment, if the movant’s motion and
summary-judgment evidence facially establish its right to judgment as a matter of
law, the burden shifts to the nonmovant to raise a genuine, material fact issue
sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In reviewing a no-evidence summary
judgment, this court ascertains whether the nonmovant pointed out summary-
judgment evidence raising a genuine issue of fact as to the essential elements
attacked in the no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73
S.W.3d 193, 206–08 (Tex. 2002). In our de novo review of a trial court’s
summary judgment, this court considers all the evidence in the light most favorable
to the nonmovant, crediting evidence favorable to the nonmovant if reasonable
jurors could, and disregarding contrary evidence unless reasonable jurors could
not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence
raises a genuine issue of fact if reasonable and fair-minded jurors could differ in
their conclusions in light of all of the summary-judgment evidence. Goodyear Tire
& Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). When, as in this case,
the order granting summary judgment does not specify the grounds upon which the
trial court relied, the summary judgment must be affirmed if any of the
6
independent summary-judgment grounds is meritorious. FM Props. Operating Co.
v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
IV. ANALYSIS
A. Did the trial court err in granting summary judgment as to the claims
based upon negligence, negligence per se, and strict liability?
The trial court granted summary judgment on the ground that under the
filed-rate doctrine, all of the Canas Parties’ claims for strict liability and negligence
are barred by the gas tariff in effect on the date of the incident made the basis of
this suit.
The “filed-rate doctrine” applies when state law creates a state agency and a
statutory scheme under which the agency determines reasonable rates for the
service provided. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 216 (Tex.
2002). Under this doctrine, when an administrative agency has approved a tariff
containing provisions limiting liability for personal-injury damages, such a liability
limitation is presumed reasonable unless a litigant proves otherwise. See id. at
220. Thus, under the doctrine, filed tariffs govern a utility’s relationship with its
customers and have the force and effect of law until suspended or set aside. See id.
at 217. Additionally, under the filed-rate doctrine, regulated utilities cannot vary a
tariff’s terms with individual customers, discriminate in providing services, or
charge rates other than those properly filed with the appropriate regulatory
authority. See id. And, a utility’s obligations to its customers cannot exceed its
duties under a filed tariff. See id. It follows, then, that aggrieved customers cannot
enforce alleged rights that contradict the tariff’s provisions. See id. Consequently,
the filed-rate doctrine prohibits a customer from suing a utility in contract or tort
over issues that are governed by a publicly-filed tariff’s terms. See id.
A regulatory agency’s rate-making authority authorizes it to approve a
7
tariff’s provision limiting liability because a limitation on liability is an inherent
part of the rate the utility charges for its services. See id. The Supreme Court of
Texas has applied the filed-rate doctrine to hold that a tariff provision that limits
liability for economic damages arising from a utility’s negligence is reasonable and
that a tariff provision that limits liability for personal injury is reasonable. See id.
at 219–222; Houston Lighting & Power Co. v. Auchan USA, Inc., 995 S.W.2d 668,
672–75 (Tex. 1999). The high court likewise has determined that a tariff’s
limitation on liability for personal injury is reasonable because a utility: (1) must
provide nondiscriminatory service to all customers within its area; (2) must
maintain uniform rates and reduce costs; (3) cannot increase rates for all
customers based on losses one specific class of customers incurs; and (4) must
comply with administrative regulations. See Grant, 73 S.W.3d at 220–21. Courts
review a tariff’s reasonableness as a question of law. See id. at 219.
Under the Gas Utility Regulatory Act, the Texas Legislature codified the
filed-rate doctrine in the Texas Utilities Code § 104.005(a). This section states:
A gas utility may not directly or indirectly charge, demand, collect, or
receive from a person a greater or lesser compensation for a service
provided or to be provided by the utility than the compensation
prescribed by the applicable schedule of rates filed under Section
102.151.
Tex. Util. Code § 104.005(a) (West 2013). Entex, A Div. of Reliant Energy Res.
Corp. v. R.R. Comm’n of Tex., 18 S.W.3d 858, 863 (Tex. App.—Austin 2000, pet.
denied). The Railroad Commission of Texas is vested with all the authority and
power of the State of Texas to ensure that gas utilities such as CenterPoint comply
with their obligations under the Gas Utility Regulatory Act. See Tex. Util. Code §
104.001(a) (West 2013).
The summary-judgment evidence contains the CenterPoint tariff which was
8
in effect on March 2, 2007 (hereinafter, “Tariff”); this Tariff was filed with and
approved by the Railroad Commission of Texas, and has the force and effect of
law. See Grant, 73 S.W.3d at 222. The Canas Parties do not dispute that the Tariff
was in effect at the time of the occurrence made the basis of this suit and contained
the following provisions:
14. ESCAPING GAS
Immediate notice must be given to Company by Consumer of
any escaping gas on Consumer’s premises. No flame shall be
taken near the point where gas is escaping and as an added
precaution, the gas should immediately be shut off at the meter
by Consumer. Company shall not be liable for any damage or
loss caused by the escape of gas from Consumer’s housepiping
or Consumer’s appliances.
...
17. NON-LIABILITY
(a) The Company shall not be liable for any loss or damage
caused by variation in gas pressure, defects in pipes,
connections and appliances, escape or leakage of gas,
sticking of valves or regulators, or for any other loss or
damage not caused by the Company’s negligence arising
out of or incident to the furnishing of gas to any Consumer.
(b) Company shall not be liable for any damage or injury
resulting from gas or its use after such gas leaves the point
of delivery other than damage caused by the fault of the
Company in the manner of installation of the service lines,
in the manner in which such service lines are repaired by
the Company, and in the negligence of the Company in
maintaining its meter loop. All other risks after the gas left
the point of delivery shall be assumed by Customer, his
agents, servants, employees, or other persons.
The Tariff defines “Point of Delivery” as “[t]he point where the gas is measured
for delivery into Consumer’s housepiping,” and “Consumer’s Housepiping” as
9
“[a]ll pipe and attached fittings which convey gas from the outlet side of the meter
to the Consumer’s connection for gas appliances.” CenterPoint submitted
summary-judgment evidence indicating that the holes in the pipe that the Canas
Parties claim caused the gas leak were holes in Betancourt’s housepiping, and the
Canas Parties stated in their summary-judgment response that the holes that
allegedly caused the leak were in a section of pipe that ran underground from the
meter to the garage apartment. The Canas Parties have not argued on appeal that
the alleged leak occurred before the gas left the Point of Delivery. Thus, it is
undisputed that the alleged leak of gas occurred after the gas left the Point of
Delivery.1
The Tariff also states that, “[u]nless otherwise expressly stated, these rules
apply to all Consumers regardless of classification, except insofar as they are
changed by or are in conflict with any statute of the State of Texas, valid municipal
ordinance, valid final order of any court or of the Railroad Commission of Texas,
or written contract executed by [CenterPoint], in which case such statute,
ordinance, order or contract shall control to the extent that it is applicable to the
Consumer(s) in question.” The Canas Parties do not assert that the limitation of
liability in the Tariff conflicts with a Texas statute, municipal ordinance, court
order, Railroad Commission order, or written contract executed by CenterPoint,
and the summary-judgment evidence does not raise any such conflict.
On appeal, the Canas Parties challenge the trial court’s summary judgment
regarding strict liability, common-law negligence, and negligence per se by
asserting (1) the trial court should not have granted summary judgment because
CenterPoint’s summary-judgment motion is directed at theories and claims not
asserted by the Canas Parties in their petition; (2) the trial court erred in enforcing
1
The Canas Parties also agree that Canas was a consumer or customer of CenterPoint.
10
the Tariff’s limitation of liability because the Tariff is unreasonable as applied to
these facts, and (3) the trial court erred in enforcing the Tariff’s limitation of
liability because this limitation contravenes the carefully constructed regulatory
scheme governing natural gas safety. These arguments are addressed seriatim.
On appeal, the Canas Parties assert that “CenterPoint is liable because it
failed to warn [Canas] and [Betancourt] of the dangers of odorant fade” and that
“nowhere in the petition is there an allegation that CenterPoint is liable for any
other reason.” Though the Canas Parties allege in the petition that CenterPoint is
liable based upon its alleged failure to warn Canas and Betancourt of the dangers
of odorant fade, the Canas Parties allege other acts and omissions as a basis for
liability. The Canas Parties assert that the summary-judgment grounds in
CenterPoint’s motion were directed at theories and claims not asserted by the
Canas Parties and that these grounds were not directed at the claims based upon
CenterPoint’s alleged failure to warn Canas and Betancourt of the dangers of
odorant fade. This court cannot affirm the trial court’s summary judgment on a
ground not stated in the summary-judgment motion. See Stiles v. Resolution Trust
Corp., 867 S.W.2d 24, 26 (Tex. 1993). Even so, one of the grounds stated in
CenterPoint’s summary-judgment motion is that under the filed-rate doctrine, all of
the Canas Parties’ claims for strict liability and negligence are barred by the gas
tariff in effect on the date of the incident made the basis of this suit. This ground
was sufficiently broad to cover the Canas Parties’ claims seeking recovery based
upon strict liability, common-law negligence, and negligence per se. See Nall v.
Plunkett, 404 S.W.3d 552, 554–56 (Tex. 2013) (holding that summary-judgment
grounds were broad enough to cover both social-host and undertaking theories of
negligence) (per curiam); Williams v. Sable, No. 14-09-00806-CV, 2011 WL
238288, at *3 (Tex. App.—Houston [14th Dist.] Jan. 25, 2011, no pet.)
(concluding that negligence per se is not a separate claim that exists independently
11
of a common-law negligence claim, rather it is merely one method of proving a
breach of duty) (mem. op.); Thomas v. Uzoka, 290 S.W.3d 437, 445 (Tex. App.—
Houston [14th Dist.] 2009, pet. denied) (same as Williams). Accordingly, it is
proper for this court to overrule the Canas Parties’ second issue as to these claims.
Under their fourth issue, the Canas Parties assert various arguments in
support of the proposition that the Tariff’s limitation of liability is unreasonable.
Construing the provisions of the Tariff as a whole, it provides that CenterPoint
may not be held liable under negligence2 or strict-liability claims for any damage
or injury resulting from gas or its use after the gas leaves the Point of Delivery,
other than (1) damage caused by the fault of CenterPoint in the manner of
installation of the service lines, (2) damage caused by the fault of CenterPoint in
the manner in which CenterPoint repaired such service lines, and (3) damage
caused by CenterPoint’s negligence in maintaining its meter loop. Because it is
undisputed that the alleged leak of gas occurred after the gas left the Point of
Delivery, the actual damages sought by the Canas Parties allegedly resulted from
gas or its use after the gas left the Point of Delivery. 3 The Canas Parties have not
alleged any damages that fall into any of the three exceptions to the Tariff’s
2
This conclusion applies both as to negligence claims based upon common-law negligence and
negligence claims based upon negligence per se. In the negligence per se part of their petition,
the Canas Parties allege that CenterPoint’s alleged violation of various regulations proximately
caused Canas’s death, resulting in their wrongful-death damages. The regulations that
CenterPoint allegedly violated include (1) title 49, sections 192.616, 192.617, and 192.625 of the
Code of Federal Regulations, (2) “Texas Administrative Code §8.1(b),” (3) “Texas
Administrative Code §8.215(a)(1),” (4) “Texas Administrative Code §8.215(c)(3),” and (5)
“Texas Administrative Code §8.220(a).”
3
The Canas Parties assert they are not suing CenterPoint for allowing the gas leak but for failing
to warn of the dangers of odorant fade. Though the Canas Parties allege that CenterPoint’s
alleged failure to warn of the dangers of odorant fade proximately caused Canas’s death, they
also allege that Canas’s death was caused by the ignition of gas that leaked from an underground
corroded gas line, and it is undisputed that this alleged gas leak occurred after the gas left the
Point of Delivery. Thus, the Canas Parties’ claims are for damage or injury resulting from gas or
its use after the gas left the Point of Delivery.
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limitation of CenterPoint’s liability regarding such damages, and they do not argue
on appeal that any of their claims fall under one of these three exceptions. Thus,
the Tariff precludes the Canas Parties’ recovery under their negligence, negligence
per se, and strict-liability claims unless the Canas Parties established that the
limitation of liability in the Tariff is unreasonable. See Grant, 73 S.W.3d at 219–
22.
The Canas Parties assert that this limitation is unreasonable and
unenforceable in its entirety because it purports to limit liability for CenterPoint’s
gross negligence. Like the tariff that the Grant court concluded was reasonable,
the Tariff does not exclude personal-injury claims against CenterPoint that arise
from CenterPoint’s negligence in all contexts. See id. at 220. As discussed below,
as in Grant, this court does not have before it the issue of whether the Tariff limits
liability for personal-injury claims based upon CenterPoint’s alleged gross
negligence or willful misconduct. See id. at 219–22. But, the tariff in Grant
contained an express provision stating that the limitation of liability did not apply
to damages caused by the gross negligence or willful misconduct of the utility
company. See id. at 220. Notably, the Tariff does not contain such an express
exception to the limitation of liability, nor does it contain any express reference to
gross negligence or willful misconduct. The facts in today’s case are not the same
as those in Grant. The parties have not cited, nor has research revealed, any Texas
case addressing limitation-of-liability provisions in a tariff under these
circumstances.
Nonetheless, under the legal standard applied by the Supreme Court of
Texas in Grant, the limitation of liability in the Tariff as to negligence and strict-
liability claims is reasonable and enforceable, regardless of whether the Tariff
covers claims based on gross negligence and willful misconduct or whether such a
limitation of liability is reasonable. See id. at 219–22. If the limitation of liability
13
in the Tariff were construed not to apply to gross-negligence and willful-
misconduct claims, then, as in Grant, these claims would be available and this
availability would support the conclusion that the limitation of liability is
reasonable. The parties have not cited, and research has not revealed, any Texas
case addressing whether the presence in a tariff of an unreasonable and
unenforceable limitation of liability for certain claims would make the entire
limitation of liability unenforceable. If the limitation of liability in the Tariff were
construed to apply to gross-negligence and willful-misconduct claims and the
limitation of liability for such claims were held to be unreasonable and
unenforceable, then Texas courts would hold that, the limitation of liability still
may be enforced as to negligence and strict-liability claims. See Danisco
Ingredients USA, Inc. v. Kansas City Power & Light Company, 986 P.2d 377, 769–
74 (Kan. 1999). Thus, in this second circumstance, claims based on gross
negligence and willful misconduct would be available, as in Grant, and this
availability would support the conclusion that the limitation of liability is
reasonable. The third possibility is that the limitation of liability in the Tariff is
construed to apply to claims based on gross negligence and willful misconduct, and
the limitation of liability as to such claims is held to be reasonable and enforceable.
In this event, if the limitation of liability as to gross-negligence and willful-
misconduct claims is reasonable, then the limitation of liability as to negligence
and strict-liability claims necessarily would be reasonable and enforceable. Under
the legal standard applied by the Supreme Court of Texas in Grant, the limitation
of liability in the Tariff as to negligence and strict-liability claims is reasonable and
enforceable. It is not necessary to decide whether the limitation of liability in the
Tariff covers claims based on gross negligence and willful misconduct or whether
14
such a limitation of liability is reasonable, and no position on this issue is taken in
this opinion.4
The Canas Parties also assert that if paragraph 14 of the Tariff were “an
entirely enforceable exculpatory clause,” it would relieve CenterPoint of its duty to
provide natural gas that is readily detectible to a person with a normal sense of
smell, as required by title 49, section 192.625 of the Code of Federal Regulations
and title 16, section 8.215 of the Texas Administrative Code. The Canas Parties
assert that giving effect to paragraphs 14 and 17(b) of the Tariff in this instance
would vitiate this “carefully crafted regulatory scheme,” as well as title 49,
sections 192.616 and 192.16 of the Code of Federal Regulations.
But, none of these regulations provide that a failure to comply with the
regulation will result in tort liability to parties injured as a result of the failure to
comply. The parties have not cited, and research has not revealed, any case in
which a court holds that a failure to comply with any of these regulations will
result in tort liability to parties injured as a result of such a failure to comply. The
enforcement of the Tariff’s limitation of liability as to the Canas Parties’ claims
based on negligence, negligence per se, and strict-liability does not vitiate or
conflict with these regulations or relieve CenterPoint of any obligation to comply
with these regulations.
The Canas Parties also note that, under Paragraph 14 of the Tariff,
“[i]mmediate notice must be given to Company by Consumer of any escaping gas
on Consumer’s premises.” The Canas Parties assert that this requirement presumes
that consumers will recognize the escape of gas by the presence of odorant. The
Canas Parties suggest that the Tariff’s limitation of liability should not apply to
4
Justice Christopher addresses this issue and concludes that a limitation of liability for personal
injuries caused by CenterPoint’s gross negligence or willful misconduct is unenforceable. She
states that she disagrees with the analysis in this opinion to the contrary. See post at p.2–3.
Because this opinion does not address this issue, there is no contrary analysis.
15
cases allegedly involving odorant fade, because Paragraph 14 presumes the
presence of odorant. Though odorant certainly assists consumers in that it makes it
more likely that a consumer will be aware of escaping gas, a consumer could
become aware of escaping gas even without detecting the odorant. In any event, a
consumer cannot give CenterPoint notice of a fact of which the consumer is not
aware. This notification requirement does not remove claims involving alleged
odorant fade from the scope of the Tariff’s limitation of liability.
As to the Canas Parties’ claims based upon negligence, negligence per se,
and strict liability, the Tariff’s limitation of liability is reasonable and enforceable
under the legal standard applied by the Supreme Court of Texas in Grant. See
Grant, 73 S.W.3d at 219–22. The Canas Parties’ appellate arguments as to why
the trial court erred in granting summary judgment regarding common-law
negligence, negligence per se, and strict liability lack merit. Thus, the trial court
did not err to the extent it granted summary judgment as to these claims based
upon the Tariff’s limitation of liability. Accordingly, it is correct for this court to
overrule the Canas Parties’ fourth issue as well as their first issue to the extent that
issue addresses the Canas Parties’ claims based upon negligence, negligence per
se, and strict liability.
B. Did the trial court err in granting summary judgment as to the Canas
Parties’ gross negligence claim?
At no point in its summary-judgment motion did CenterPoint assert that the
Tariff bars the Canas Parties’ gross-negligence claim.5 Instead, as to this claim,6
5
CenterPoint asserts that it specifically moved for summary judgment based on the filed-rate
doctrine as to “all of the [Canas Parties’] negligence claims, including gross negligence.”
Justices Christopher and Jamison agree. But, for the purpose of determining summary-judgment
grounds, gross-negligence claims should not be considered to be included within the scope of the
term “negligence claims.” See Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994)
(emphasizing important distinctions between gross negligence and negligence); Van Voris v.
Team Chop Shop, LLC, 402 S.W.3d 915, 926 (Tex. App.—Dallas 2013, no pet.) (same as
16
CenterPoint asserted the following summary-judgment grounds in its motion: (1)
even absent any tariff, CenterPoint has no negligence liability to the Canas Parties,
and therefore no gross-negligence liability, because under the common law
CenterPoint has no duty to inspect a customer’s wiring, appliances, or the like
before supplying gas to the customer and because CenterPoint is not liable for
dangerous conditions on Betancourt’s property due to the lack of any evidence that
it had actual knowledge of any dangerous condition on Betancourt’s property
(“First Ground”); (2) a gross-negligence claim does not exist independent of an
underlying negligence claim, and the Canas Parties’ negligence claim fails as a
matter of law (“Second Ground”).
In their appellants’ brief, the Canas Parties assert the following arguments
that relate to the gross-negligence claim: (1) CenterPoint’s motion should not have
been granted because it is directed at theories and claims not asserted by the Canas
Parties in their petition rather than their claim based on an alleged failure to warn
of deodorized gas; (2) even if the Tariff bars the Canas Parties’ negligence claim,
that bar does not mean that the Canas Parties cannot recover under their gross-
negligence claim; (3) the trial court erred to the extent it held that the Tariff barred
the Canas Parties’ gross-negligence claim; (4) CenterPoint’s grounds based on the
absence of a duty to inspect or repair the housepiping cannot support the judgment
because the Canas Parties’ claims do not rely on such a duty; (5) this court should
reverse and remand the gross-negligence claim because CenterPoint made no
mention of this claim in its summary-judgment reply; and (6) the Canas Parties do
Moriel). In its summary-judgment motion, CenterPoint did not state as a ground that the filed-
rate doctrine or the Tariff bars the Canas Parties’ gross-negligence claim. Therefore, the trial
court’s judgment cannot be affirmed on such a ground. See Stiles, 867 S.W.2d at 26.
6
In their live pleading, the Canas Parties seek to recover both actual and exemplary damages
based upon CenterPoint’s alleged gross negligence.
17
not allege that CenterPoint had actual knowledge of any dangerous condition on
the property, and such an allegation is not an element of any claim asserted in the
Canas Parties’ petition.
The Canas Parties’ second and third arguments do not apply to the First
Ground. In their fifth argument, the Canas Parties assert that, by failing to mention
the gross-negligence claim in its summary-judgment reply in the trial court,
CenterPoint implicitly conceded that the gross-negligence claim should have
survived summary judgment and therefore this court should reverse the summary
judgment as to this claim. This argument lacks merit. CenterPoint’s failure to
mention the gross-negligence claim in its summary-judgment reply did not amount
to a concession that CenterPoint was not entitled to summary judgment as to this
claim.
In their first, fourth, and sixth arguments, the Canas Parties assert that (1)
CenterPoint’s summary-judgment grounds did not attack any theory or claim
asserted in the Canas Parties’ petition; (2) the Canas Parties make no complaint
about a leak in the housepiping; (3) in their claims, the Canas Parties do not rely on
a duty by CenterPoint to inspect or repair the housepiping; and (4) the Canas
Parties do not allege that CenterPoint had actual knowledge of any dangerous
condition on the property, nor is such an allegation an element of any claim
asserted in the Canas Parties’ petition. But, liberally construing the Canas Parties’
live pleading, some of the allegations are based on dangerous conditions.7 On
appeal, the Canas Parties have not challenged the First Ground. Accordingly, as to
the First Ground, this court should overrule the fifth issue and the correlative part
7
For example, the Canas Parties allege that CenterPoint was negligent and grossly negligent in
various ways, including when it “failed to warn the homeowner about migrating gas from
underground gas leaks” and when it “failed to warn [Canas] about migrating gas from
underground gas leaks.”
18
of the first and second issues.8 See In re A.M.P., 368 S.W.3d 842, 845 (Tex.
App.—Houston [14th Dist.] 2012, no pet.) (affirming summarily trial court’s
summary judgment as to one claim because appellant did not challenge on appeal
all independent summary-judgment grounds as to that claim). This court should
affirm the trial court’s summary judgment to the extent that the Canas Parties base
their gross-negligence claim on a duty to inspect a customer’s wiring, appliances,
or the like before supplying gas to the customer and to the extent that the Canas
Parties seek to impose gross-negligence liability on CenterPoint for a dangerous
condition on Betancourt’s property.9 Because it does not do so, I respectfully
dissent to this part of the court’s judgment.
In the Second Ground, CenterPoint asserts that it cannot be held liable for
gross negligence because a claim for gross negligence does not exist independent
of an underlying negligence claim, and the Canas Parties’ negligence claim fails as
a matter of law. To the extent the Second Ground is based on the failure of the
negligence claim because it is barred by the Tariff, this ground lacks merit. When
liability for negligence or strict liability is barred by a limitation of liability in a
utility’s tariff, this bar does not, by itself, compel the conclusion that gross-
negligence claims are also barred on the theory that gross-negligence claims do not
exist independent of an underlying negligence claim. See Grant, 73 S.W.3d at
215, 220–22 (holding that limitation of liability in utility’s tariff was reasonable
and unenforceable and barred negligence claims, while noting that utility still was
subject to gross-negligence liability). This ground fails under the reasoning of the
Grant court. See Grant, 73 S.W.3d at 220–22. In the context of explaining why
8
Because the Canas Parties have not challenged the First Ground, this court need not and should
not address the merits of this ground.
9
This court would not be affirming the part of the trial court’s judgment in which the trial court
dismissed the Canas Parties’ gross-negligence claim based on CenterPoint’s alleged gross
negligence in failing to warn Canas or Betancourt of the dangers of odorant fade.
19
the limitation of liability in a utility’s tariff barred negligence claims, the Grant
court noted that the utility still was subject to gross-negligence liability. See id.
The plaintiff in Grant did not assert a gross-negligence claim. See id. at 214–15.
Nonetheless, if a tariff’s bar as to negligence liability necessarily meant that any
gross-negligence claims also were barred, then the Grant court would not have
stated that the utility still was subject to potential liability for gross negligence.
See id. at 220–22. In other contexts, the absence of a common-law negligence duty
or the plaintiff’s failure to prove a negligence claim also may preclude recovery
under a gross-negligence claim. See RT Realty, L.P. v. Tex. Util. Elec. Co., 181
S.W.3d 905, 914–16 (Tex. App.—Dallas 2006, no pet.) (holding that, because
claimant offered no evidence that electric utility owed a negligence duty the gross
negligence claim failed as a matter of law); Wortham v. Dow Chemical Co., 179
S.W.3d 189, 202–03 & n.16 (Tex. App.—Houston [14th Dist.] 2005, no pet.)
(stating that a claimant who cannot support a negligence claim cannot succeed on a
gross-negligence claim and concluding that there was no evidence raising a fact
issue as to plaintiff’s negligence claims); Shell Oil Co. v. Humphrey, 880 S.W.2d
170, 174–78 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (holding that,
because defendant did not owe negligence duty to plaintiff there could be no
liability for gross negligence). The only summary-judgment ground other than the
filed-rate doctrine directed at the negligence claims was that under the common
law CenterPoint has no negligence duty to inspect a customer’s wiring, appliances,
or the like before supplying gas to the customer and CenterPoint is not liable for
dangerous conditions on Betancourt’s property due to the lack of any evidence that
it had actual knowledge of any dangerous condition on Betancourt’s property. But,
for the reasons stated above, this court should affirm the trial court’s summary
judgment as to the gross-negligence claim to the extent that the Canas Parties base
this claim on a duty to inspect the customer’s wiring, appliances, or the like before
20
supplying gas to the customer and to the extent that the Canas Parties seek to
impose gross-negligence liability on CenterPoint for a dangerous condition on
Betancourt’s property. Therefore, as to the remaining part of the gross-negligence
claim, the only summary-judgment ground asserted regarding the corresponding
negligence claim was the filed-rate doctrine. In this situation, the cases upon
which CenterPoint relies are not on point. See RT Realty, L.P., 181 S.W.3d at
914–16; Wortham, 179 S.W.3d at 202–03 & n.16; Humphrey, 880 S.W.2d at 174–
78. In this context, when liability for negligence is barred by a limitation of
liability in a utility’s tariff, this bar does not, alone, compel the conclusion that
gross-negligence claims are also barred on the theory that gross-negligence claims
do not exist independent of a negligence claim. See Grant, 73 S.W.3d at 215, 220–
22. See also Van Voris v. Team Chop Shop, LLC, 402 S.W.3d 915, 924–26 (Tex.
App.—Dallas 2013, no pet.) (holding that gross-negligence claim did not fail, even
though the negligence claim was barred by an enforceable pre-injury release).
Because CenterPoint asserted no meritorious summary-judgment ground as to the
remainder of the gross-negligence claim, it is correct for this court to sustain the
fifth issue and the correlative part of the first issue to this extent, reverse the trial
court’s judgment as to the remainder of this claim, and remand for further
proceedings.10
C. Did the trial court err in granting summary judgment as to the Canas
Parties’ misrepresentation claims?
After CenterPoint filed its summary-judgment motion, the Canas Parties
amended their petition and added misrepresentation claims. Regarding these
10
Because of this determination, this court need not address the part of the second issue that
corresponds to the Second Ground. The remanded portion of the trial court’s judgment would
include the part in which the trial court dismissed the Canas Parties’ gross-negligence claim
based on CenterPoint’s alleged gross negligence in failing to warn Canas or Bentancourt of the
dangers of odorant fade.
21
claims, the Canas Parties alleged that CenterPoint represents to the public that the
natural gas it supplies contains an odorant which gives a warning to its customers
if a leak occurs, so they can take necessary actions for their safety. The Canas
Parties allege that CenterPoint knows that sometimes the gas will migrate through
the soil, either becoming insufficiently or completely deodorized, allegedly
resulting in a situation in which the public has either no warning or too-little
warning of a gas leak, even though such a leak may be occurring in their vicinity.
According to the Canas Parties, this misrepresentation involves a material fact and
Canas or Betancourt relied upon this representation in purchasing the natural gas in
question. Under a liberal construction of their petition, the Canas Parties have
alleged claims for intentional misrepresentation and for negligent
misrepresentation.
Reversal is not always necessary when a party amends her petition after an
opposing party files a motion for summary judgment if (1) the amended petition
essentially reiterates previously pleaded claims, (2) a ground asserted in a motion
for summary judgment conclusively negates a common element of the newly and
previously pleaded claims, or (3) the grounds in the original motion are broad
enough to encompass the newly asserted claims. See Coterill-Jenkins v. Texas
Medical Ass’n Health Care Liability Claim Trust, 383 S.W.3d 581, 592 (Tex.
App.—Houston [14th Dist.] 2012, pet. denied). The Canas Parties added new
intentional-misrepresentation and negligent-misrepresentation claims in their
amended pleading, in which the Canas Parties did not reiterate previously pleaded
claims. No ground asserted in the summary-judgment motion conclusively negates
a common element of the newly and previously pleaded claims. In their new
claims for negligent misrepresentation and intentional misrepresentation, the Canas
Parties added a new allegation that CenterPoint made a material misrepresentation.
In the context of this case, these new misrepresentation claims are materially
22
different from the Canas Parties’ other claims for negligence, negligence per se,
strict liability, and gross negligence. In its summary-judgment reply, CenterPoint
noted that the Canas Parties had amended their petition after CenterPoint filed its
summary-judgment motion, asserting for the first time a misrepresentation claim.
CenterPoint then stated, “CenterPoint realizes the Court cannot grant a final
summary judgment given this new claim. CenterPoint intends to file another
summary judgment on this new theory.” We conclude that the grounds in
CenterPoint’s summary-judgment motion are not broad enough to encompass the
newly asserted claims for intentional misrepresentation and negligent
misrepresentation. Thus, the trial court erred to the extent it granted summary
judgment as to these claims.11 See Coterill-Jenkins, 383 S.W.3d at 592.
Accordingly, we sustain the third issue and the first issue, to the extent it addresses
these claims; we reverse the trial court’s judgment as to the claims for intentional
misrepresentation and negligent misrepresentation and remand for further
proceedings consistent with section IV.C. of this opinion.
V. CONCLUSION
As to the claims based upon negligence, negligence per se, and strict
liability, this court affirms the trial court’s judgment. As to the gross-negligence
claim, this court reverses the portion of the trial court’s judgment addressing the
gross-negligence claim for the reasons stated in section C of Justice Christopher’s
opinion, and remands for further proceedings consistent with section C of Justice
Christopher’s opinion. The trial court erred to the extent it granted summary
judgment as to the intentional-misrepresentation and negligent-misrepresentation
claims, which were added after CenterPoint filed its summary judgment motion.
11
In reversing the summary judgment as to the intentional-misrepresentation and negligent-
misrepresentation claims, we do not comment on or address the merits of these claims.
23
Accordingly, this court reverses the portion of the trial court’s judgment addressing
the intentional-misrepresentation and negligent-misrepresentation claims, and
remands for further proceedings consistent with section IV.C. of this opinion.
/s/ Kem Thompson Frost
Chief Justice
Chief Justice Frost and Justices Christopher and Jamison (Christopher, J. and
Jamison, J., each writing a separate opinion).
24