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Ken Petroleum Corporation v. Questor Drilling Corporation6/29/2000
e contractual indemnity provision Ken Petroleum sought to enforce was void as a matter of law, there could be no breach of contract and that Crawford was therefore inapposite. See id. The court of appeals further concluded that intent is not an element of a cause of action for the laundry list violation of "representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law." Id. at 289-90 (citing Tex. Bus. & Com. Code § 17.46(b)(12)).
We agree with the court of appeals that the rationale of Crawford Sign would not automatically foreclose a DTPA cause of action when a contract or a part thereof is void by operation of law. But a contract is a mutual undertaking. An aspect of an agreement that proves unenforceable because it is against public policy does not, standing alone, constitute a violation of section 17.46(b)(12). There must be something more. Cf. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671-72 (Tex. 1990) (holding that evidence of representations outside the contract was legally sufficient evidence to support a section 17.46(b)(12) claim). There must be a representation "that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law." Tex. Bus. & Com. Code § 17.46(b)(12). In this case, Ken Petroleum did not present any summary judgment evidence that Questor made representations about the indemnity obligations. The indemnity provisions themselves are only agreements that Ken Petroleum will indemnify Questor and that Questor will indemnify Ken Petroleum. They are not representations withing the meaning of section 17.46(b)(12) of the DTPA. The trial court correctly granted summary judgment for Questor on the DTPA claim against it. The court of appeals accordingly erred in reversing summary judgment for Questor on that claim.
However, Ken Petroleum also asserted DTPA claims against Phibro based on the certificate of insurance that it sent to Ken Petroleum in response to an inquiry about the amount of insurance that Questor had. The motion for summary judgment did not address that claim, and the trial court therefore erred in granting summary judgment as to Phibro. See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993)
In Weber Energy, we reverse the judgment of the court of appeals and render judgment for Weber Energy. In Ken Petroleum, we reverse the judgment of the court of appeals in part, and remand that case to the court of appeals for further disposition.
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