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Brewer v. General Motors Corp.6/11/1996
O P I N I O N
Thomas Brewer and the other named plaintiffs filed this class action against General Motors Corporation and Carter-Wood Motor Company on behalf of all persons who, as of August 29, 1994, owned General Motors passenger cars manufactured since 1987 that have nonmotorized three-point restraint systems employing door-mounted restraint retractors, which systems purport to be automatic or passive in nature. The principal allegation of the suit was that General Motors had defectively designed and manufactured the restraint system in a way that discouraged users from using the system because they had to disengage the retractors in order to conveniently and efficiently exit the vehicles. The plaintiffs, however, also allege that General Motors, in designing and marketing the system, committed fraud, made negligent and deliberate misrepresentations, breached warranties, failed to warn of latent dangers, and violated the Texas Deceptive Trade Practices Act. Plaintiffs seek damages and injunctive relief. The trial court has not yet certified the class.
General Motors moved for summary judgement on the principal basis of federal preemption, alleging that the restraint system used in the vehicles in question was expressly authorized as one of the options manufacturers could use pursuant to regulations promulgated under the Motor Vehicle Safety Act, specifically Standard 208. General Motors also contended that summary judgement was proper because Texas law precludes any recovery for strict liability or negligence that causes only economic damages, and because the plaintiffs alleged no specific product failure, but only a risk of failure, and also because plaintiffs failed to give proper notice.
Plaintiffs filed a response to General Motors' summary judgment motion and also filed an amended petition setting out specific causes of action for fraud and violations of the DTPA.
The court granted General Motors' summary judgement motion in all respects and ordered that plaintiffs take nothing "with respect to their claims asserted herein." After Carter-Wood filed a summary judgment motion on the same grounds that General Motors asserted, the court granted summary judgement in its favor.
Summary judgement for a defendant is proper only when the defendant establishes that no genuine issue of material fact exists as to one or more essential elements of the plaintiff's case, and that it is entitled to judgement as a matter of law. Tex. R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). A summary judgment cannot be upheld on any ground not presented in the summary judgment motion. Hall v. Harris County Water Control & Improvement Dist., 683 S.W.2d 863, 867 (Tex. App.-Houston [14th Dist.] 1984, no writ). When a trial court's order granting summary judgement does not specify the grounds for its ruling, the summary judgement will be affirmed if any of the theories advanced in the summary judgement motion are meritorious. Insurance Co. of N. Am. v. Security Ins. Co., 790 S.W.2d 407, 410 (Tex. App.-Houston [1st Dist.] 1990, no writ). The fact that a plaintiff amends his petition and adds new causes of action after a defendant files its summary judgement motion does not change the defendant's burden to establish its entitlement to summary judgement as a matter of law on each cause of action alleged. Tex. R. Civ. P. 166a(c); Clark v. First Nat'l Bank of Highlands, 794 S.W.2d 953, 955-56 (Tex. App.-Houston [1st Dist.] 1990, no writ); Whiddon v. Metni, 650 S.W.2d 904, 905-06 (Tex. App.-Dallas 1983, writ ref'd n.r.e.).
As a threshold question, we determine if the judgement is final and appealable or is interlocutory. The court
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