Recently, the Houston Court of Appeals affirmed a trial court’s decision granting summary judgment in favor of an expert hired by an insurer to help investigate a third-party liability claim.  In Sears Roebuck & Co. v. ACM Engineering & Environmental Services, 2012 WL 1137912 (Tex.App. – Houston, April 3, 2012), Sears’ insurer, Liberty Mutual hired ACM to help investigate a mold claim arising from improper installation  of  siding.   ACM  incorrectly  certified  that  the  home  was  free  of  mold.   And  when  the homeowner sued Sears, Sears filed a third-party petition against ACM for breach of contract and for breach  of  warranty.   The  trial  court  granted  summary  judgment  in  favor  of  ACM  and  this  appeal followed.

The court observed that the dispute centers upon Sears’ third-party beneficiary and undisclosed-principal theories of recovery.  The court reviewed Texas law addressing these issues and noted that the law presumes that a party contracts for their own benefit “and any intent to benefit a third party must be clearly apparent and will not be presumed.”  And addressing the undisclosed-principal argument, the court noted that “an insurer is not an agent of the insured merely because if performs acts beneficial to the insured.”  Further, both arguments would undermine the rule “that a contractor hired by an insurance company owed no duty to the insured.”    Accordingly, the court affirmed summary judgment in favor of ACM.

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