Release me. Now. O
Concrete may have
Ships were lost du
Joe's Bar and Gril
Release me. Now. O
But first, you and
Release me. Now. O
Concrete may have
We've recently dis
Stop dancing like Chris! I told you not to do that. That is going to complicate
this situation.”
Andy testified that he did not know about the water on the floor when he was at his
parents’ house on December 8. When Andy went to bed that night, he felt fine. Andy testified
that he was on his third cup of coffee that morning at his parents’ house when he heard from his
brother in California that there had been a fire at the insurance building. Andy went over to his
uncle’s house in Houston and then went to the insurance building. Andy testified that, when he
arrived at the insurance building, he and others at the scene were coughing and gagging from the
smoke. Andy did not know if he was injured while at the insurance building because the “first
thing [he] did [was] take off the coat that [he] was wearing.” Andy was told that he could not go
inside of the building, but Andy returned to his brother’s house to put on dry clothes, and then he
went back to the insurance building. Andy also testified that he did not feel anything when he was
in the insurance building but that he was told he was injured after the fire.
After he was sent home from the fire, Andy went to see a nurse at work to get some
shots. Andy testified that he did not talk to his treating physician about the burns until a week
later when his wound was open and they were looking for a plastic surgeon.
After the fire, Andy took his brother, Chris, to the hospital, because Chris was
exhausted from walking and his blood pressure was low. Andy testified that, in the car on the way
to the hospital, Chris stated that he felt something burning on his chest. Andy testified that he did
not say anything in the car about what was happening to him. Andy testified that he did not see
anything happen to his clothes during the fire but that he saw the water on the floor when he was
in the insurance building. After Chris was treated, Andy and his father followed the
ambulance to the hospital. Andy testified that his chest was burned before the fire, but it was
not burned at the fire.
Appellants were unable to recover the insurance proceeds. The cause of the fire was never
determined. Appellants sued appellees for negligence, gross negligence, and breach of fiduciary
duty. The breach-of-fiduciary-duty claim was based on two allegations. First, appellants contended
that a fiduciary relationship existed between appellees and the Drapers based on the insurance
agency agreement, the agency relationship created between Andy and appellees, and appellees’
knowledge of Andy’s mental and physical condition. Second, appellants alleged that, after
appellees learned of the fire, Andy’s medical condition was worsened and Andy was exposed to
additional injury in order to satisfy appellees’ financial obligations to the Drapers.
At the close of appellants’ case-in-chief, appellees moved for a directed verdict,
asserting that appellants had not presented evidence establishing a breach of fiduciary duty. The
court granted appellees’ motion and stated that, although appellants had “argued some issues
about duty,” that argument was
misplaced because fiduciary duty was
established between the Drapers and the insurance agency, which was not a party in the
case.
The jury found that the appellees were not negligent and that they did not breach a
fiduciary duty to the Drapers. In addition to losing on their breach-of-fiduciary-duty claim,
appellants sought an award of attorney’s fees pursuant to former article 21.55 of the Texas Insurance
Code. Tex. Ins. Code Ann. art. 21.55 (Vernon Supp. 2004-05).
Appellants also sought an award of the amount of the insurance proceeds lost as a
result of the fire as prejudgment interest.
After the trial, the Drapers and the Drapers’ son intervened in the lawsuit. After
appellees filed a motion for entry of judgment and for sanctions, appellants filed a motion
for new trial. The trial court granted the motion for new trial on the claim of breach of
fiduciary duty, granted the motion for entry of judgment, and awarded appellants
prejudgment interest in the amount of $41,572.10 and attorney’s fees of $70,000.
FACTUAL SUFFICIENCY
In three issues, appellants challenge the legal and factual sufficiency of the evidence
supporting the jury’s verdict.
A. Standard of Review
A trial court must grant a motion for directed verdict when (1) a defect in the
opponent’s pleading makes the pleading insufficient to support a judgment, (2) the
evidence conclusively proves a fact that establishes a party’s right to judgment as a
matter of law, or (3) the evidence is insufficient to raise an issue of fact because
there is a complete absence of evidence of a vital fact. Prudential Ins. Co. of Am. v. Fin. Review
Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). An appellate court must determine if the