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Walls v. Prudential Property & Casualty Insurance Company6/23/2000
Justice Farris
Jenny Walls, Individually and as Independent Administrator of the Estate of Kevin Walls, Deceased, and as Next Friend of Ashlyn Walls, a Minor, Vernon, Walls and Dorothy Walls (collectively the Walls) sued Prudential Property & Casualty Insurance Co. (Prudential), North Dallas Unique Indoor Comfort, Inc. (North Dallas), and John Guerin (Guerin) for the wrongful death of Kevin Walls. In seven points of error, the Walls complain the trial court erred in granting summary judgment in favor of Prudential and North Dallas. For the reasons below, we affirm the trial court's judgment with respect to Prudential and reverse and remand with respect to North Dallas.
The Walls' home, insured by Prudential, was damaged in a fire. Through Prudential's preferred contractor program, Ken Mar was hired as the general contractor to make repairs. Ken Mar later filed for bankruptcy and discontinued work on the house. Guerin, one of the subcontractors who was working under Ken Mar, became the new general contractor. North Dallas, also one of the subcontractors, continued with repairs to the house. At the request of Guerin, North Dallas provided an electrical fan for use at the Walls' residence to dry out moisture that had accumulated under the house. At the request of Kevin Walls, the fan was never removed from the Walls' residence. Several months after the repairs had been completed on the house, Kevin Walls was electrocuted when he came into contact with the electric fan. At that time, the fan was missing the ground pin on the electrical cord and a yellow field coil wire of the motor was loose and damaged.
The Walls sued Prudential for negligence under sections 414, 323 and 411 of the Restatement (Second) of Torts, and for allowing a dangerous condition to exist on the property over which Prudential assumed control. The Walls also sued Prudential under the Deceptive Trade Practices-Consumer Protection Act (DTPA). The Walls sued North Dallas alleging North Dallas was negligent for having provided a defective fan.
Prudential moved for summary judgment alleging it had no duty to the Walls because (1) Prudential never assumed control over the premises, (2) Prudential never became an occupier, or in the alternative, if Prudential was an occupier it had no duty to see that the contractor performed work in a safe manner, (3) the theory of "collateral negligence" applies to all the causes of action asserted, (4) the Walls had no standing as a DTPA "consumer," and (5) there was no proximate cause.
Before we address the merits of this appeal, we will first address whether the Walls' appeal is timely. The Walls sued Prudential, North Dallas and Guerin. On August 18, 1997, the trial court granted summary judgment in favor of Prudential. On August 27, 1997, the trial court granted summary judgment in favor of North Dallas. On December 1, 1997, the trial court granted and agreed order to dismiss without prejudice Walls' claims against Guerin. The Walls filed their notice of appeal on December 30, 1997. Both orders granting Prudential and North Dallas's summary judgment contained a "Mother Hubbard clause."
Both Prudential and North Dallas contend their respective orders were final and appealable at the time the order was entered, and, therefore the Walls' appeal is untimely. We disagree. An order that explicitly grants a summary judgment in favor of less than all the defendants does not clearly evidence an intent to dispose of all claims against all defendants, especially those against whom summary judgment was not sought, regardless of the inclusion of a Mother Hubbard clause. Lowe v. Teator, 1 S.W.3d 819, 823-24 (Tex.App._Dallas 1999, pet. filed
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