Court of Appeals of Texas, Houston (1st Dist.).

FIREMAN’S FUND INSURANCE COMPANY, Appellant,

v.

Bernard ASH, Ash Investigations, and Richard David Rodriguez, Appellees.

No. 01-98-00849-CV.

|

April 15, 1999.

Before Justices COHEN, HEDGES, and NUCHIA.

OPINION

HEDGES.

*1 This is an appeal of cross-motions for summary judgment. The trial court rendered summary judgment in favor of appellees, Bernard Ash, Ash Investigations, and Richard David Rodriguez (collectively, the Ash defendants), and against appellant, Fireman’s Fund Insurance Company (FFIC). FFIC appeals both the rendering of summary judgment and the denial of its own summary judgment. We reverse and remand.

BACKGROUND

In 1991, Armando Villarreall was killed while working for Maskell-Robbins, Inc., his employer and FFIC’s insured. FFIC retained Ash Investigations to investigate the ensuing workers’ compensation claim. Ash Investigations employed Richard David Rodriguez for the investigation. During the investigation, Rodriguez replaced a witness’s statement with a statement he wrote. He stated that he did this with the permission of the witness. FFIC maintained that it never instructed Rodriguez to substitute the statements. The Villarrealls sued FFIC and the Ash defendants alleging wrongful conduct during the investigation. FFIC settled the Villarrealls’ claim for $250,000. FFIC filed its cross-action against the Ash defendants for common-law indemnity. The Ash defendants and FFIC filed cross-motions for summary judgment. The trial court granted the Ash defendants’ motion.

STANDARD OF REVIEW

For a defendant to be entitled to summary judgment, it must disprove, as a matter of law, at least one of the essential elements of each of the plaintiff’s causes of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). When reviewing the summary judgment record, we apply the following standards:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). When presented with cross-motions for summary judgment, we should review the summary judgment evidence presented by both sides and determine all questions presented and render such judgment as the trial court should have rendered. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988).

COMMON-LAW INDEMNITY

The parties agree that the principal issue in this case is whether FFIC, the settling defendant, is entitled to common-law indemnity from the Ash defendants, the non-settling defendants. The Ash defendants argue that FFIC was not entitled to indemnity because FFIC was a joint tortfeasor. FFIC argues that it was not a joint tortfeasor,¹ that it was only liable to the Villarrealls under a vicarious liability theory because Ash was its agent, and as such, it was entitled to common-law indemnity.

*2 There is no common-law indemnity in this state between joint tortfeasors. B & B Auto Supply v. Central Freight Lines, Inc., 603 S.W.2d 814, 816-17 (Tex.1980). In B & B Auto, the court recognized that there remains indemnity in cases where there is a contractual basis for indemnity or where one party’s liability is purely vicarious. Id. at 817. Vicarious liability is liability placed upon one party for the conduct of another, based solely upon the relationship between the two. St. Anthony’s Hosp. v. Whitfield, 946 S.W.2d 174, 177 (Tex.App.-Amarillo 1997, writ denied). Under the doctrine of respondeat superior, an employer is exposed to liability not because of any negligence on its part, but because of the employee’s negligence in the scope of that employment. Id. at 178. Therefore, in a case in which one defendant’s liability is premised solely on respondeat superior, that defendant’s liability is purely vicarious and a claim for common-law indemnity exists.

Faced with cross-motions for summary judgment, we must determine whether the summary judgment evidence is such that there is no genuine issue of material fact thereby establishing one party’s right to judgment as a matter of law. For the Ash defendants to prevail, the evidence must show that as a matter of law FFIC was a joint tortfeasor. For FFIC to be entitled to a reversal and rendition, it must show that as a matter of law it was only liable vicariously. If we determine that neither joint tortfeasor liability nor vicarious liability is established as a matter of law, we must remand.

In arguing that summary judgment was proper, Ash relied on the following: The Villarreall petition that alleged that FFIC was directly liable and that FFIC and the Ash defendants were jointly liable. Specifically, the petition alleged that FFIC “took steps to manufacture evidence.” It alleged that FFIC “commenced acts of commingling the worker’s [sic] compensation investigation with the anticipated gross negligence claim.” Finally, the petition alleged that FFIC was directly liable because Randi Baker, the FFIC employee who retained Ash Investigations, refused to cooperate with the Villarreall’s attorney unless Villarreall promised not to bring a gross negligence suit.

We find the Ash defendant’s argument unpersuasive. The Villarreall petition is relevant to the issue of the duty to defend, not the duty to indemnify. Moreover, the Villarreall petition is not summary judgment evidence on which the Ash defendants could rely. Therefore, the Ash defendants have not established as a matter of law that FFIC was a joint tortfeasor and therefore not entitled to common-law indemnity. We reverse the trial court’s summary judgment in favor of the Ash defendants.

In arguing that it was entitled to judgment as a matter of law because its liability was only vicarious, FFIC relied on the following: Ash Investigations was a private insurance adjusting company retained by FFIC to investigate the Villarrealls’ claims. Ash Investigations employed Rodriguez for this task. Baker testified that she instructed Rodriguez to take pictures, to interview the widow, and to get other information related to the accident. During this investigation, Rodriguez substituted a witness statement with a statement he wrote. He admitted that it would have been more appropriate for him to have incorporated the witness’s statement into the report being prepared for FFIC. Baker testified that she did not tell anyone to change the accident description and that she did not know who made the change. FFIC’s trial counsel testified that the only reason it settled with the Villarrealls was because of its potential vicarious liability due to the actions of Rodriguez. FFIC contends that this evidence establishes, as a matter of law, that the Ash defendant’s were its agents, and therefore, its liability was vicarious.

*3 We disagree with FFIC’s contention. FFIC has not established as a matter of law that the Ash defendants were its agents. Therefore, FFIC has not established as a matter of law that its only liability was vicarious liability. We affirm the trial court’s denial of FFIC’s cross-motion for summary judgment.

In summary, we find that there exists genuine issues of fact as to whether FFIC and the Ash defendants are joint tortfeasors and also as to whether FFIC’s liability is only vicarious liability. Therefore, we sustain appellant’s first issue and overrule its second issue.

We reverse the trial court’s summary judgment in favor of the Ash defendants and affirm the trial court’s denial of FFIC’s cross-motion for summary judgment. The cause is remanded.

	Footnotes
1		FFIC also argues that joint tortfeasor is an affirmative defense which was waived because the Ash defendants failed to plead it. We disagree. An affirmative defense is “an independent reason why a plaintiff should not recover.” Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 546 (Tex.1991) (holding that ERISA’s preemption doctrine must be pled or it is waived). Rule 94 provides a non-exhaustive list of affirmative defenses or matters constituting avoidances that must be pled. Tex.R.Civ.P. 94. We do not believe that joint tortfeasor shares the same characteristics as those listed under Rule 94. Therefore, the Ash defendants’ failure to plead joint tortfeasor does not constitute a waiver.