Full opinion text
OPINION ON REHEARING EVELYN V. KEYES, Justice. On March 20, 2008, a panel of this Court reversed the trial court’s judgment and rendered judgment that appellee Omni Metals, Inc. take nothing by its claims. Omni did not file a motion for rehearing, but instead filed a motion for en banc reconsideration. We treated the motion for en banc reconsideration as a motion for rehearing, granted rehearing, and withdrew the March 20, 2008 opinion and judgment and issued our December 17, 2009 opinion and judgment in their place. Appellants Brown & Brown of Texas and Transcontinental Insurance Company filed motions for rehearing and rehearing en banc. We now grant appellants’ motions for rehearing, withdraw our December 17, 2009 opinion and judgment, and issue this opinion and judgment in their place, clarifying our December 17, 2009 opinion. Thus, the appellants’ motions for en banc reconsideration are rendered moot and are dismissed. See Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 41 & n. 4 (Tex.App.-Houston [1st Dist.] 2004, pet. denied) (supp. op. on rehearing). We modify the judgment of the trial court and affirm as modified. This case is on appeal from a trial court judgment in favor of Omni, a buyer and seller of steel coils. Port Metal Processing, Inc. (Port Metal) stored steel belonging to Omni, processed that steel into coils, and temporarily stored the finished coils for Omni. Port Metal purchased insurance from appellant Transcontinental Insurance Company (Transcontinental), originally through the Russell Lee Jacobe Insurance Agency (Jacobe). Jacobe was acquired on November 1, 1994 by Poe & Brown of Texas, Inc. (Poe & Brown), which is now known as appellant Brown & Brown of Texas, Inc. (Brown & Brown). The underlying proceeding on which this action is based is a suit for damages arising from a fire that occurred on December 5, 1995 damaging Omni’s steel stored in a facility operated by Port Metal. The trial court granted Poe & Brown and Transcontinental summary judgment on Omni’s negligent misrepresentation and DTPA claims arising out of oral and written representations made by Poe & Brown, Transcontinental’s local agent, to Omni and Port Metal, regarding Port Metal’s bailee insurance coverage for Omni’s steel stored at Port Metal. See Omni Metals, Inc. v. Poe & Brown of Texas, Inc., No. 14-00-01081-CV, 2002 WL 1381720 (Tex.App.-Houston [14th Dist.] June 13, 2002, pet. denied) (not designated for publication). The Fourteenth Court of Appeals reversed the summary judgment and remanded the case to the trial court. The case was tried against Brown & Brown, Poe & Brown’s successor, and Transcontinental before a jury beginning on October 11, 2005. It was submitted to the jury on theories of negligent misrepresentation and unfair or deceptive acts or practices under former article 21.21 section 16 of the Texas Insurance Code and section 17.46(b) of the Texas Deceptive Trade Practices Act (DTPA). The trial court rendered judgment on the jury verdict in favor of Omni on November 28, 2005. Defendants Transcontinental and Brown & Brown timely appealed. On appeal, Brown & Brown raises four issues. It contends that (1) the evidence is factually and legally insufficient to establish (a) that it made a negligent misrepresentation or engaged in unfair or deceptive acts under the DTPA, (b) that the representation caused Omni’s damages, (c) that Omni justifiably relied on Poe & Brown’s misrepresentations, and (d) that Poe & Brown acted knowingly; (2) the DTPA does not apply to Omni because Omni is not a consumer under the DTPA or an insured or third party beneficiary under Port Metal’s Transcontinental insurance policy; (3) attorney’s fees incurred in another lawsuit and awarded Omni in this suit are not recoverable as damages; and (4) the trial court erred in not giving it a proper credit for a $1,660,000 settlement in the other lawsuit. Transcontinental raises seven issues. It contends that (1) Transcontinental could not be liable for representations made by Poe & Brown (a) when Omni presented no evidence that any representation of Poe & Brown was made with the actual or apparent authority of Transcontinental and (b) when Omni failed to submit a separate issue in the charge on Brown & Brown’s actual or apparent authority and obtain a jury finding; (2) the evidence establishes as a matter of law that Transcontinental is not liable for Poe & Brown’s actions in sending certificates of insurance to Omni; (3) Omni’s misrepresentation claim is not viable, as a matter of law, because (a) no one at Omni read the certificates of insurance, (b) the certificates disclaimed any representation regarding coverage, (c) a statement made by Poe & Brown to Port Metal’s president, Blake McKnight, in 1993 regarding coverage of Omni’s product was not made to Omni, and (d) Port Metal’s president had no authority to act for Transcontinental in representing to Omni that its metal was covered by Port Metal’s bailee policy; (4) Omni was not entitled to recover attorney’s fees of $740,000 for pursuing a tort action against the starters of the fire; (5) the jury’s award of additional damages of $1,080,000 awarded Omni on its DTPA claims against Transcontinental are erroneous because Transcontinental had no contact with Omni and there is no evidence Transcontinental knew of any wrongful act, as required for recovery of additional damages; (6) the trial court erred in not giving a $1,660,000 settlement credit to Transcontinental that Omni received from third parties; and (7) the trial court erred in not admitting evidence of a prior federal judgment in Transcontinental’s favor. In its own issues (3) and (4), Brown & Brown joins in and adopts Transcontinental’s arguments and authorities with respect to issues (5) and (6). We modify the judgment of the trial court and, as modified, affirm. PROCEDURAL HISTORY Port Metal’s warehouse burned down on December 5, 1995, and Omni lost $2,600,000 in steel stored at Port Metal. Transcontinental, Port Metal’s insurer, denied coverage for damages to Omni’s steel on the ground that Port Metal’s “all risk” bailee policy was subject to an exclusion for goods stored at Port Metal for more than sixty days for which Port Metal received a storage fee. Omni paid storage fees to Port Metal. Omni filed suit against Port Metal and defendants it alleged were responsible for the fire, namely Electrical Wire & Cable Company, Inc., Electrical Redesign Company, Lighting Surplus, Harry Schubeck, Jr., and Textron, Inc. It subsequently added Poe & Brown, Port Metal’s insurance agent, and Transcontinental, Port Metal’s insurer. Omni settled separately with the original defendants for a total of $1,660,000. Omni spent $740,000 on attorney’s fees that were not legally recoverable prior to settlement. Omni’s suit against Transcontinental and Poe & Brown was severed from the claims against the settling defendants. In the severed suit, Omni raised claims against Transcontinental and Poe & Brown for negligent misrepresentation and violations of section 17.46(b) of the DTPA under former article 21.21, section 16 of the Texas Insurance Code. Transcontinental and Poe & Brown successfully moved for summary judgment. Omni appealed the summary judgment to the Fourteenth Court of Appeals, which reversed the judgment by opinion entered June 13, 2002, and remanded the case for trial. Omni Metals, Inc., 2002 WL 1331720. This appeal follows from the trial on remand from the Fourteenth Court of Appeals. In the original appeal of this case prior to trial on remand, the Fourteenth Court of Appeals made a number of holdings pertinent to the instant appeal. It held that Poe & Brown voluntarily disclosed to Omni that Port Metal had bailee insurance which covered “all risks,” and, therefore, that Poe & Brown had a duty to disclose the storage fee exclusion, of which it was aware but Omni was not. Id. at *3-4. The Court also held that a fact issue existed as to “whether [Poe & Brown] misrepresented coverage because, under the circumstances, the ‘all risk’ certificate of insurance was false and misleading.” Id. at *4-5. The Court further held that a fact issue existed as to whether Poe & Brown could be held liable to Omni if it misrepresented coverage to Port Metal by telling Port Metal’s president that the policy would cover “[product owned by my customers for processing in-located in my facility.” Id. at *8. The court also refused Poe & Brown’s and Transcontinental’s request that it hold that disclaimers in certificates of insurance delivered to Omni prevented the creation of a false impression about coverage as a matter of law. Id. at *6. Rather, it held that, given the “all risk” designation in the certificate, “the disclaimers in the certificate present a conflicting fact that we must disregard in applying the summary judgment standard of review.” Id. at *7. The court also rejected Poe & Brown’s and Transcontinental’s argument that it had no duty to disclose because it had no duty to explain policy exclusions to an insured. Id. In addition, the court refused to hold that Omni could not sue on the basis of its reliance on misrepresentations made by Poe & Brown to Port Metal and repeated by Port Metal to Omni. Id. Observing that “[cjertain persons, other than the direct recipient of a misrepresentation can sue for negligent misrepresentation,” the Fourteenth Court held that the evidence raised a fact issue as to whether Poe & Brown misrepresented coverage to Port Metal. Id. at 7-8 (citing cases and Restatement (Second) of Torts § 552(2) (1977)). In response to Poe & Brown’s argument that Omni had a duty to read the policy itself, the court held, “Omni’s failure to read the policy does not support the granting of summary judgment.” Id. at *8. In other words, the court held that Omni Metals had no legal duty to read the policy. The court further held that Omni was not prevented from bringing its DTPA claims through article 21.21 section 16(a) of the Insurance Code by lack of consumer status. Id. at *9. The court refused to address Transcontinental’s argument that Omni could not recover against Transcontinental and Poe & Brown attorney’s fees of $740,000 it had incurred in pursuing a tort action against the third parties allegedly responsible for starting the fire because the issue was not included in the motion for summary judgment. Id. at *10. The court likewise refused to address the issue of Poe & Brown’s actual or apparent authority to act as Transcontinental’s agent because it was not presented in the motion for summary judgment. Id. The court remanded the case for trial. Id. THE TRIAL The trial began on October 11, 2005. The evidence at trial comported with, and elaborated upon, the summary judgment evidence. It showed that Omni was a customer of Port Metal, a steel processing company; that Omni stored steel coils at the Port Metal warehouse; and that Port Metal charged Omni a storage fee on steel coils left at the warehouse longer than 60 days. Blake McKnight, Port Metal’s president, testified that he asked Danny Sparks, then an agent for Jacobe and later an agent for Poe & Brown, to insure the Port Metal warehouse and its inventory, including steel that Port Metal’s customers were storing at the warehouse. However, the original policy, written in 1992, excluded from coverage property held in storage for which a storage charge was made, as did the 1993, 1994, and 1995 renewals. McKnight read the 1992 policy and asked Sparks about the exclusion for stored property. Sparks told him the exclusion did not apply to property stored like Omni’s at Port Metal. McKnight testified that he did not read the 1995 insurance policy in effect at the time of the fire. Sparks testified that, by June 1993, he knew the policy did not provide the coverage he promised because he knew Port Metal was charging a storage fee to its customers like Omni. However, he did not explain to McKnight, to Port Metal, or to any of Port Metal’s customers that the insurance policy excluded the steel Port Metal’s customers stored at Port Metal. Sparks also knew, from at least June 28, 1993, that Port Metal received revenues from its customers of $6,000 a month for storage fees. He also knew that Port Metal relied upon him to obtain coverage for all of its customers’ steel. Sparks testified that he made a mistake by selling a policy that did not provide coverage to all of Port Metal’s customers because of the storage exclusion. He further testified that he had an obligation to find out whose steel was being stored, but that he never made such an inquiry. Nor did he ever inform either McKnight or Omni of the exclusion, despite knowing that there was a gap in the intended coverage and that he had a duty to inform McKnight of the exclusion. Omni’s president, Arthur Tomes, spoke on several occasions with Port Metal’s president, McKnight, and inquired whether Omni’s steel at Port Metal’s warehouse was insured. McKnight assured him it was. Omni also requested and received certificates of insurance from Jacobe and later from Poe & Brown to document Port’s Metal’s insurance coverage for Omni’s steel to provide to Omni’s secured lender. Sparks delivered the certificates to Omni knowing that Omni wanted the certificates to make sure that all its steel at Port Metal was covered. The 1993 certificate sent by Sparks to Omni noted the $3,000,000 bailee liability policy issued by Transcontinental. It also contained the statement, typed by Sparks, that Port Metal’s insurance coverage “INCLUDES PROPERTY OF OTHERS IN CUSTODY OF INSURED.” Sparks admitted at trial that this was “untrue.” In 1994 and 1995, Sparks delivered insurance certificates to Omni containing the representation that the insurance covered “All Risk.” Brown & Brown’s expert testified at trial that the certificates were “misleading.” Each of the certificates contained the following disclaimer: “THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS ON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES DESCRIBED BELOW.” Tomes, Omni’s president, testified at trial that he did not “personally read and review every single certificate of insurance that came across to Omni” and that he did not ask for or “actually receive the insurance policy rather than the certificate of insurance” because the company “would think that the certificate of insurance would be adequate to cover what we needed.” He “just look[ed] at ‘all risks.’ ” The certificates confirmed what McKnight had told him, and he saw nothing on the certificates that gave him any reason to doubt what McKnight had told him. The certificates were also reviewed by Debbie Hiner at Omni and then forwarded to Omni’s secured lender as proof that the steel was insured. Tomes testified that “they were satisfied too.” On December 5, 1995, the warehouse caught fire and $2,600,000 million worth of Omni’s steel was ruined. The same day, Sparks approached Port Metal’s president, McKnight, and told him, “If anybody asks you, don’t mention the word ‘storage.’ ” Sparks also telephoned another of Omni’s customers, Mike Lykos, and told him “please do not mention the word ‘storage.’” Following the trial, the jury found the following: 1. Transcontinental and Poe & Brown made negligent misrepresentations on which Omni justifiably relied. 2. Damages for the negligent misrepresentations of $704,267 (value of steel), $370,964.72 (expenses incurred in selling the steel), and $740,000 (attorney’s fees incurred by Omni in the lawsuit against the parties who caused the fire). 3. Transcontinental and Poe & Brown engaged in an unfair or deceptive act that damaged Omni. 4. Damages for the unfair or deceptive act of $704,267 (value of steel), $370,964.72 (expenses incurred in selling the steel), and $740,000 (attorney’s fees incurred by Omni in the lawsuit against the parties who caused the fire). 5. Transcontinental and Poe & Brown knowingly engaged in their conduct. 6. Treble damages for the knowing conduct of $1,620,000 for Poe & Brown and $1,080,000 for Transcontinental. 7. Attorney’s fees of $161,050.07 (preparation and trial), $50,000.00 (appeal to court of appeals), and $25,000.00 (appeal to supreme court). 8. Transcontinental’s and Poe & Brown’s negligence caused the injury. 9. Transcontinental was 40% responsible and Poe & Brown 60% responsible. The trial court entered judgment on the jury verdict on November 28, 2005. In the judgment, it also awarded Poe & Brown and Transcontinental a settlement credit against (1) the $704,267 awarded Omni by the jury for “the value of the loss less any amounts Omni received from the sale of the steel or from Transcontinental” and (2) the $370,964.72 awarded Omni by the jury for “reasonable and necessary expenses incurred in attempting to sell the steel”; and (3) $169,213.61 for prejudgment interest on the principal of (1) and (2) from December 13, 1996 through April 13, 1999. The total amount of the settlement credit was thus $1,244,445.33. The judgment expressly excluded from the settlement credit the $740,000 awarded Omni by the jury as economic damages for “the amount of reasonable and necessary attorneys’ fees and expenses incurred by Omni in a previous suit where Omni was required to prosecute the previous suit as a consequence of Defendants’ -wrongful conduct.” The instant appeal follows from the trial court’s November 28, 2005 judgment. DISCUSSION A. Law of the Case Doctrine Because this case comes to us on appeal after remand from reversal of summary judgment by the Fourteenth Court of Appeals, we consider, as a preliminary matter, the “law of the case” doctrine. That doctrine is defined as “that principle under which questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages.” Loram Maint., Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex.2006); Yazdchi v. San Antonio Fed. Credit Union, No. 01-07-00189-CV, 2009WL 417299, at *3-4 (Tex.App.-Houston [1st Dist.] Feb. 19, 2009, no pet.) (not designated for publication). Under this doctrine, a court of appeals will ordinarily be bound by its initial decision if there is a subsequent appeal in the case. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex.2003). “By narrowing the issues in the successive stages of the litigation, the law of the case doctrine is intended to achieve uniformity of decision, judicial economy, and efficiency.” Id. It is based on public policy and is aimed at bringing finality to litigation. Id. A decision rendered on an issue by an appellate court does not, however, absolutely bar reconsideration of the issue on a second appeal. Id. The application of the doctrine lies within the discretion of the court, depending on the circumstances of the case. Id. It is an exception to the law of the case doctrine that the original decision was clearly erroneous. Id. Here, the Fourteenth Court of Appeals issued a number of rulings on the legal issues presented by the parties’ motions for summary judgment. The case was subsequently tried in reliance on those rulings and a verdict rendered from which this appeal is taken. Therefore we will follow the law of the case established by the Fourteenth Court of Appeals unless we conclude that, in some respect, it is clearly erroneous. B. Omni’s Failure to Submit Issue and Obtain Jury Finding on Poe & Brown’s Authority to Act as Transcontinental’s Agent In its first issue, Transcontinental argues that Omni failed to submit a separate issue on agency in the charge and failed to obtain a separate jury finding on Poe & Brown’s actual or apparent authority to act as its agent. Omni responds that Transcontinental failed to make any timely objection to the absence of a separate issue and therefore waived error and that, even if it had preserved error, the omitted finding was a finding as to an element of the ground of recovery on Omni’s claims, was supported by evidence, and was therefore deemed found under Texas Rule of Civil Procedure 279. The jury charge did not contain a separate issue on Poe & Brown’s status as an agent of Transcontinental. However, the charge instructed the jury that “[ajuthority for another to act for a party must arise from the party’s agreement that the other act on behalf and for the benefit of the party” and that, if so authorized, “that other party is also authorized to do whatever else is proper, usual, and necessary to perform the act expressly authorized.” It also instructed the jury that “[ajpparent authority exists if a party (1) knowingly permits another to hold himself out as having authority or, (2) through lack of ordinary care, bestows on another such indications of authority that lead a reasonably prudent person to rely on the apparent existence of authority to his detriment. ...” Jury questions 1 and 3 then asked the jurors whether “one or more of the Defendants made a negligent misrepresentation on which Omni Metals, Inc. justifiably relied” or “engage[dj in any unfair or deceptive act or practice that caused damages to Omni Metals.” The questions asked the jurors to respond separately for Poe & Brown and for Transcontinental. The damages questions similarly requested separate answers for each defendant. Transcontinental did not object to the instructions, and it did not object to the failure to submit a separate agency question. The judgment awarded actual damages, attorney’s fees, and costs jointly and severally against Poe & Brown and Transcontinental. It also awarded additional damages of $1,620,000 against Brown & Brown f/k/a Poe & Brown and of $1,080,000 against Transcontinental. 1. Waiver Texas Rule of Civil Procedure 274 requires that “[a] party objecting to a charge must point out distinctively the objectionable matter.... Any complaint as to a question, definition, or instruction ... is waived unless specifically included in the objections.” Tex.R. Civ. P. 274; see also Pitman v. Lightfoot, 937 S.W.2d 496, 520 (Tex.App.-San Antonio 1996, writ denied) (holding that by failing to challenge court’s agency instruction on actual and apparent authority, appellants waived any complaint on appeal regarding implied finding of agency relationship); Shandee Corp. v. Kemper Group, 880 S.W.2d 409, 412 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (holding that appellant waived complaint regarding agent’s authority as imputed by Texas Insurance Code because he “did not object to the instructions on the ground that they did not include a definition of the statutory agency requirements”). Because there was no objection to the charge as submitted, we hold that Transcontinental failed to preserve error with respect to the inclusion of an instruction on actual and apparent authority in the jury charge and that its complaint is waived. Even if the issue were not waived, however, we would not find error. 2. Omission of an Element of the Charge Texas Rule of Civil Procedure 279, governing omissions from the charge, provides, in relevant part: Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived. When a ground of recovery or defense consists of more than one element, if one or more of such elements necessary to sustain such ground of recovery or defense, and necessarily referable thereto, are submitted to and found by the jury, and one or more of such elements are omitted from the charge, without request or objection, and there is factually sufficient evidence to support a finding thereon, the trial court, at the request of either party, may after notice and hearing and at any time before the judgment is rendered, make and file written findings on such element or elements in support of the judgment. If no such written findings are made, such omitted element or elements shall be deemed found by the court in such manner as to support the judgment.... Tex.R. Civ. P. 279. Under Rule 279, “[w]hen a question is omitted which constitutes only a part of a ground of recovery, and other questions referable to that ground are submitted and answered, the omitted elements are deemed found in support of the judgment if no objection is made and they are supported by some evidence.” Ins. Co. of N. Am. v. Morris, 928 S.W.2d 138, 143 (Tex.App.-Houston [14th Dist.] 1996), rev’d on other grounds, 981 S.W.2d 667 (Tex.1998) (deeming apparent authority of surety to make representations about quality of partnership investments found by acts of participation, knowledge, or acquiescence by principal); see also Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex.1990) (stating that when “issues are omitted which constitute only a part of a complete and independent ground and other issues necessarily referable to that ground are submitted and answered, the omitted elements are deemed found in support of the judgment if no objection is made and they are supported by some evidence”); Lexington Ins. Co. v. Buckingham Gate, Ltd., 993 S.W.2d 185, 197-98 (Tex.App.-Corpus Christi 1999, pet. denied). Here, the actual or apparent authority of Poe & Brown to act as the agent of Transcontinental is one of the elements of a finding of Transcontinental’s liability for negligent misrepresentation and deceptive trade practices under the DTPA and the Insurance Code. We hold that, by Transcontinental’s failure to object to the omission of a jury question on Poe & Brown’s actual or apparent authority to act as an agent of Transcontinental in making representations about coverage to clients and third parties, and by the submission of evidence that Poe & Brown made representations regarding Port Metal’s bailee policy to Port Metal and to Omni, Poe & Brown’s status as an agent of Transcontinental is deemed found. See Tex.R. Civ. P. 279. We overrule Transcontinental’s first issue. C. Poe & Brown’s Authority to Act as Transcontinental’s Agent In its second issue, Transcontinental argues that the evidence was both legally and factually insufficient to support the jury’s answers to questions number 1, 2, 8, and 9, finding Transcontinental hable for misrepresentation and violations of the DTPA. It argues that even if Poe & Brown’s agency status is deemed found, Poe & Brown was a soliciting agent and that a soliciting agent “does not have authority to alter the policy via representations, and thus, the insurer has no liability as a matter of law where the agent issues a certificate of insurance that misstates coverage.” 1. Standard of Review of Legal and Factual Sufficiency of the Evidence In a legal sufficiency, or “no-evidence” review, we determine whether the evidence would enable reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). In conducting this review, we credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. Id. We consider the evidence in the light most favorable to the finding under review and indulge every reasonable inference that would support it. Id. at 822. We must sustain a no-evidence contention only if (1) the record reveals a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. Id. at 810; Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). When reviewing a no-evidence point of error, “all the record evidence must be considered in the light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in that party’s favor.” Merrell Dow, 953 S.W.2d at 711. “Anything more than a scintilla of evidence is legally sufficient to support the finding.” Formosa Plastics Corp. v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). In reviewing a challenge to the factual sufficiency of the evidence, we “must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Arias v. Brookstone, L.P., 265 S.W.3d 459, 468 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986)). The jury is the sole judge of witnesses’ credibility; it may choose to believe one witness over another, and a reviewing court cannot impose its own opinion to the contrary. Wilson, 168 S.W.3d at 819; Arias, 265 S.W.3d at 468. Because it is the jury’s province to resolve conflicting evidence, we must assume that jurors resolved all conflicts in accordance with their verdict if reasonable human beings could do so. Wilson, 168 S.W.3d at 819; Anas, 265 S.W.3d at 468. 2. Evidence of Agency It is established law that an insurance company is generally liable for any misconduct by an agent that is within the actual or apparent scope of the agent’s authority. This rule is based on notions of fairness: “since the principal has selected the agent to act in a venture in which the principal is interested, it is fair, as between him and a third person, to impose upon him the risk that the agent may exceed his instructions.” Celtic Life Ins. Co. v. Coats, 885 S.W.2d 96, 98-99 (Tex.1994) (citations omitted); Lexington Ins. Co. v. Buckingham Gate, Ltd., 993 S.W.2d 185, 197 (Tex.App.-Corpus Christi 1999, pet. denied). A local recording agent is “a person or firm engaged in soliciting and writing insurance, being authorized by an insurance company ... to solicit business and write, sign, execute and deliver policies of insurance, and to bind companies on insurance risks.” Royal Globe Ins. Co. v. Bar Consultants, Inc., 577 S.W.2d 688, 692 (Tex.1979) (citing Act of May 23, 1951, 52nd Leg., R.S., ch. 491, 1951 Tex. Gen. Laws 1067, repealed by Act of May, 2003, 78th Leg., R.S., ch. 1274, § 26(a)(1), 2003 Tex. Gen. Laws 3641 (“former Tex. Ins.Code art. 21.14, § 2”)); Lexington Ins., 993 S.W.2d at 198. By necessary implication, the local recording agent of an insurer has the authority to represent the coverage afforded by the policies it sells. Royal Globe, 577 S.W.2d at 694. “If [the] representations [are] false ... under the explicit language of Section 16, Article 21.21 [of the Insurance Code] and Section 17.46(b)(12) of the DTPA, his actions eonstitute[ ] a deceptive act or practice for which his principal is accountable.” Id. However, a soliciting agent is someone “who does not sign and execute policies of insurance, and who does not maintain company records of such transactions.” Maccabees Mut. Life Ins. Co. v. McNiel, 836 S.W.2d 229, 232 (Tex.App.-Dallas 1992, no writ) (citing former Tex. Ins.Code art. 21.14). “It is the settled law of this State that a soliciting agent of an insurance company has no power or authority to make a contract on behalf of the company or to waive the terms of the policy.” Int’l Sec. Life Ins. Co. v. Finck, 496 S.W.2d 544, 546 (Tex.1973); Lexington Ins., 993 S.W.2d at 199. Whether an agency relationship exists is usually a question of fact, and circumstantial evidence may be used to establish agency and the extent of the agent’s authority. Pitman, 937 S.W.2d at 521. To determine whether an agent had apparent authority we look to the acts of the principal “to see if those acts would lead a reasonably prudent person using diligence and discretion to suppose that the agent had the authority he purported to exercise.” Shandee, 880 S.W.2d at 412 (quoting Guthrie v. Republic Nat'l Ins. Co., 682 S.W.2d 634, 637 (Tex.App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.)). Transcontinental argues that Poe & Brown was a soliciting agent without power to make a contract on behalf of Transcontinental. However, the record reflects that Poe & Brown was Transcontinental’s local recording agent. The High Performance Agency Agreement (the Agreement) between Transcontinental and Poe & Brown gave Poe & Brown explicit authority “[t]o bind, execute and issue the kinds of insurance contracts and bonds to which this Agreement applies ....” In addition, both Robert Pryor, Transcontinental’s “Authorized Agent,” and Sparks testified that Poe & Brown acted as Transcontinental’s agent. The Agreement expressly grants Poe & Brown the authority “[t]o countersign insurance contracts, bonds, certificates and endorsements.” Moreover, Transcontinental represented that Poe & Brown was its “authorized agent” on the insurance policy issued to Port Metal. Likewise, the certificates issued expressly represented that Pryor was Transcontinental’s “authorized representative.” Transcontinental presented no rebuttal evidence. Reviewing the record evidence in the light most favorable to Omni and indulging every reasonable inference in its favor, we hold that the evidence is legally sufficient to show that Poe & Brown was Transcontinental’s local recording agent and that it therefore had the actual authority to sell Transcontinental insurance policies. We further hold that Transcontinental knowingly permitted Poe & Brown and Poe & Brown’s agents “to hold [themselves] out as having authority” to provide certificates of insurance for Transcontinental insurance products to its insureds and third parties and to make representations about the scope of insurance coverage to them or, at the very least, that Transcontinental “bestow[ed] on [Poe & Brown] such indications of authority” with respect to such actions that would “lead a reasonably prudent person to rely on the apparent existence of authority to his detriment.” See Merrell Dow, 953 S.W.2d at 711. Considering and weighing all the evidence, we hold that the implied finding that Poe & Brown was Transcontinental’s local recording agent with the authority to provide certificates of insurance and to make representations about the scope of insurance coverage is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Arias, 265 S.W.3d at 468. We hold, therefore, that the evidence is legally and factually sufficient to show that Poe & Brown was Transcontinental’s recording agent and that it had the actual authority to provide certificates of insurance to its insureds and third parties and to make representations about Port Metal’s insurance coverage as Transcontinental’s agent. We overrule Transcontinental’s second issue. D. Omni’s Standing to Maintain DTPA — Texas Insurance Code Claims In its second issue, Brown & Brown argues that Omni lacked standing to bring a claim under the DTPA, specifically under subsections 17.46(b)(5) and (12) of the Texas Business and Commerce Code, under which Omni’s DTPA claims were submitted to the jury in Question 3 of the jury charge. See Tex. Bus. & Com.Code Ann. § 17.46(b)(5), (12). Transcontinental argues that “Omni did not purchase or seek to purchase the policy” and therefore it is not a consumer under the DTPA, as required for standing under section 17.46(b)(5), nor does Omni fall within the scope of “persons” permitted to bring DTPA claims under section article 21.21 section 16(a). Brown & Brown acknowledges that consumer status is not required to bring a claim under subsection 17.46(b)(12). Former article 21.21 section 16(a) of the Insurance Code provided that “any person who has sustained actual damages caused by another’s engaging in an act or practice declared in Section 4 of this Article to be unfair methods of competition or unfair or deceptive acts or practices in the business of insurance or in any practice specifically enumerated in a subdivision of Section 17.46(b), Business & Commerce Code, as an unlawful deceptive trade practice may maintain an action against the person or persons engaging in such acts or practices.” Former Tex. Ins.Code art. 21.21, § 16(a), (b) (emphasis added). The section required that, “[t]o maintain an action for a deceptive act or practice enumerated in Section 17.46(b), Business & Commerce Code, a person must show that the person has relied on the act or practice to the person’s detriment.” /A Former article 21.21, section 4 included among the actions defined as unfair and deceptive acts or practices in the business of insurance the “[m]aking, issuing, circulating, or causing to be made, issued or circulated, any ... statement misrepresenting the terms of any policy issued or to be issued or the benefits or advantages promised thereby ..., or using any name or title of any policy or class of policies misrepresenting the true nature thereof.... ”/d § 4(1). Section 17.46(b) of the Business and Commerce Code, which has not been reco-dified, provides, in relevant part: (b) ... the term “false, misleading, or deceptive acts or practices” includes, but is not limited to, the following acts: (5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have ... (12) representing 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 Ann. § 17.46(b) (Vernon Supp.2009). Section 17.50(a) of the DTPA, generally governing standing to bring a DTPA claim, provides: (a) A consumer may maintain an action where any of the following constitute a producing cause of economic damages or damages for mental anguish: (1) the use employment by any person of a false, misleading, or deceptive act or practice that is: (A) specifically enumerated in a subdivision of Subsection (b) of Section 17.46 of this subchapter; and (B) relied on by a consumer to the consumer’s detriment[.] Tex. Bus. & Com.Code Ann. § 17.50(a) (Vernon Supp.2009) (emphasis added). 1. Omni’s Consumer Status Under § 17.46(b)(5) Brown & Brown acknowledges that former article 21.21, section 16(a) of the Insurance Code did not incorporate the “consumer” standing requirement of section 17.50(a) of the DTPA unless the terms of the specific subsection under which a claim was pled required consumer status. See former Tex. Ins.Code art. 21.21, § 16(a). However, it argues that, in Crown Life Insurance Co. v. Casteel, the Texas Supreme Court held that a plaintiff must prove consumer status to bring a DTPA claim for the misrepresentation of “goods or services” under subsection 17.46(b)(5) and that Omni does not qualify as a consumer under the DTPA, i.e., as one “who seeks or acquires by purchase or lease, any goods or services.” 22 S.W.3d 378, 386-87 (Tex.2000); see Tex. Bus. & Com.Code Ann. § 17.45(4). Our disposition of this issue is controlled by the law of the case. With respect to Omni’s consumer status, the Fourteenth Court of Appeals stated in Omni Metals: Omni brought its DTPA-based claims through article 21.21 of the Insurance Code. Tex. Ins.Code ann. art. 21.21, § 16(a) (Vernon Supp.2002). Article 21.21, section 16(a), provides a cause of action for “unlawful deceptive trade practiee[s]” defined under the laundry list of DTPA section 17.26(b). Article 21.21 does not require consumer status to bring a DTPA-based cause of action. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 386 (Tex.2000). “But if the terms of a subsection of DTPA section 17.46(b) require consumer status, then consumer status is required to bring an action under article 32.21 for its violation.” Id. Omni pleaded violations of DTPA section 17.46(b)(5), (7), (12), and (23). By their terms, subsections (5), (7), and (23) require consumer status. Id. at 387. However, subsection (12) does not require consumer status. Id. Because consumer status is not required, the trial court erred in granting summary judgment on Omni’s claim for violation of DTPA section 17.46(b)(12). For the remaining DTPA provisions pled by Omni, we must determine whether consumer status requires direct purchase or lease of services from Poe & Brown. “Privity of contract with a defendant is not required for the plaintiff to be a consumer.” Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex.1996). Further, “[t]he consumer does not have to be the actual purchaser of the insurance in order to be classified as a consumer under the DTPA.” HOW Ins. Co. v. Patriot Fin. Serv. of Texas, Inc., 786 S.W.2d 533, 539 (Tex.App.-Austin 1990), overruled on other grounds by Hines v. Hash, 843 S.W.2d 464 (Tex.1992). Accordingly, Omni is not denied consumer status by lack of privity with Poe & Brown. The trial court erred in granting summary judgment on this ground.... 2002 WL 1331720, at ⅜9. We hold that the law of the case controls, and that Omni was entitled to consumer status under section 17.46(b)(5) and was not required to have consumer status under section 17.46(b)(12). See id. 2. Omni’s Standing as a “Person” Under Former Article 21.21, Section 16(a) Brown & Brown also argues that Omni does not qualify as a “person” entitled to make a claim under former article 21.21 section 16(a) of the Insurance Code because Omni was not an “insured or third party beneficiary” of Port Metal’s insurance policy. Brown & Brown acknowledges that “any person” damaged by another’s engaging in a practice specifically enumerated in subsection 17.46(b) as a deceptive practice can bring a cause of action under that subsection. However, it argues that “[s]everal Texas courts ... have construed the term ‘any person’ as used in [former Texas Insurance Code article] 21.21 § 16(a) to mean only the insured or a third party beneficiary and have held that only an insured or third party beneficiary to a policy have standing to bring a [DTPA-Texas Insurance Code] claim.” It is well established that an insurer’s misrepresentation regarding coverage is actionable under the Texas Insurance Code and the DTPA against agents and companies. See Mem’l Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 243-44 (5th Cir.1990) (recognizing cause of action in Texas under article 21.21 against insurance carrier for false representation of coverage by insurance agent or company acting as ERISA plan agent); Tenner v. Prudential Ins. Co., 872 F.Supp. 1571, 1573 (E.D.Tex.1994) (holding that action could be maintained under DTPA against insurance agent who allegedly acted outside scope of authority in misrepresenting that life policies were paid in full); Royal Globe, 577 S.W.2d at 693 (holding that misrepresentation by local recording agent as to coverage for damages for vandalism was actionable under DTPA and Insurance Code); Celtic Life Ins. Co. v. Coats, 831 S.W.2d 592, 596 (Tex.App.-Austin 1992) (holding that misrepresentation as to psychiatric benefits by health insurance agent was actionable under article 21.21 of the Insurance Code and under DTPA), affd as modified, 885 S.W.2d 96 (Tex.1994); State Farm Fire & Cas. Co. v. Gros, 818 S.W.2d 908, 912-13 (Tex.App.-Austin 1991, no writ) (holding that misrepresentation by local recording agent as to terms or benefits of homeowner’s policy was unfair or deceptive act of principal); Hermann Hosp. v. Nat’l Standard Ins. Co., 776 S.W.2d 249, 252-53 (Tex.App.-Houston [1st Dist.] 1989, writ denied) (recognizing cause of action by hospital that treated insured under article 21.21, section 16 against insurers for allegedly misrepresenting that care and treatment fell within insurance coverage). In Aetna Cas. & Sur. Co. v. Marshall, the Texas Supreme Court held that “[s]ection 16 of article 21.21 makes actionable any violation of [Texas Business and Commerce Code section] 17.46.” 724 S.W.2d 770, 772 (Tex.1987) (holding that injured worker was entitled to recover treble damages against insurer in suit under article 21.21, section 16 for “representing to him that it would provide benefits by the agreement and then failing to do so”). The court made it clear that contractual privity or third party beneficiary status is not required for standing to bring claims against insurers for negligent misrepresentation and deceptive acts and practices under the Insurance Code and the DTPA. Id. It emphasized, “The question is simply whether Aetna engaged in conduct prohibited by section 17.46.” Id. This Court, following Marshall, has likewise held that privity of contract is not required for the imposition of a legal duty under article 21.21, section 16. Hermann Hosp., 776 S.W.2d at 252 (recognizing cause of action by hospital that treated insured against insurers for allegedly misrepresenting that care and treatment fell within insurance coverage). We opined: Hermann Hospital is not suing on an insurance policy or for the wrongful denial of payment under [its patient’s] worker’s compensation insurance policy. It is suing for the damages it suffered by relying on the representations of coverage allegedly made by appellees. The supreme court has held that misrepresentations as to coverage and benefits are precisely the sort of conduct that give rise to a course of action under this section. Aetna, 724 S.W.2d at 772. We find that as a practical matter, the relationship between insurance companies and provides of health care is a direct one, with the health care provider acting in reliance on the representations of coverage made by the carriers. Hospitals and other health care providers must, and do, rely upon the insurance carriers representations of coverage in making their decision regarding admission of potential patients. If insurance coverage and benefits can be verified, the hospital will usually accept an assignment of benefits to insure it is paid for any services rendered. If insurance coverage and benefits cannot be verified, or if no coverage exists, the medical provider can then make alternative financial arrangements. To insulate the insurance carriers from liability leaves the medical care provider without recourse against the party causing its damage, if it acts in reliance on the representation of coverage. Had the insurance carrier not falsely or negligently provided information, appellant could have sought alternative means to ensure that it received payment for service before rendering them. Id. The exact same reasoning applies in this case, in which Omni sought a representation from Poe & Brown that its steel stored at Port Metal was insured for use in its business dealings, specifically including reassurance that its steel was protected by insurance and an assurance for its lender that the lender’s collateral was protected. Had Poe & Brown not falsely represented that Omni’s steel was covered by insurance, Omni could have protected its own interests and those of its lenders either by notifying Port Metal of the gap in the coverage extended by its bailee policy, so that Port Metal could cure the defect in coverage, or by procuring coverage of its own, and it would not have suffered the $3,000,000 loss it did suffer as a result of Poe & Brown’s false assurance that “all risks” were covered by the policy. Brown & Brown, however, cites to a string of authorities that it contends support its position, including Tamez v. Certain Underwriters at Lloyd’s, London, 999 S.W.2d 12 (Tex.App.-Houston [14th Dist.] 1998, pet. denied); Pineda v. PMI Mortgage Insurance Co., 843 S.W.2d 660 (Tex.App.-Corpus Christi 1992, writ denied); and Chaffin v. Transamerica Insurance Co., 731 S.W.2d 728 (Tex.App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.). We find these cases distinguishable. Each involved third party claimants under an insurance policy where the insurer had not made any representation directly to the third party upon which that party relied. See Tamez, 999 S.W.2d at 21-22 (denying standing to third-party claimants seeking to recover insurance proceeds under policy in which they were named neither as insured nor as beneficiary); Pineda, 843 S.W.2d at 672-73 (denying standing to mortgagors to bring bad faith, insurance code, and DTPA counterclaims against mortgage insurer when mortgagors’ claims were “all premised on the spurious argument that they were ‘insureds’ under the PMI policy, in privity with PMI, or were otherwise beneficiaries under the policy”); Chaffin, 731 S.W.2d at 731-32 (denying standing to homeowners claiming to be intended beneficiaries of subcontractor’s insurance policy to bring fraud claim against insurance company for initial allegedly wrongful denial of coverage to subcontractor when there was no evidence that homeowners detrimentally relied on initial denial and homeowners ultimately received entire coverage of policy). Unlike the plaintiffs in each of the foregoing cases, who brought claims of fraud and deceptive statements against insurers based on alleged misrepresentations and bad faith actions under a contract to which they were neither parties nor third party beneficiaries, Omni bases its claims upon false and misleading representations about a third party’s insurance coverage made to it by the insurer’s agent for its use in its business relations and upon which Omni detrimentally relied to its pecuniary loss. Omni thus falls squarely within the scope of persons entitled to sue for damages under the plain language of former article 21.21, section 16(a). We overrule Brown & Brown’s second issue. E. Negligent Misrepresentation and Unfair and Deceptive Acts In its first issue, Brown & Brown argues that the evidence is legally and factually insufficient to establish that (a) Poe & Brown made a negligent misrepresentation and engaged in an unfair or deceptive act; (b) the representation caused Omni’s damages; (c) Omni justifiably relied on Poe & Brown’s misrepresentation; and (d) Poe & Brown acted knowingly. In its third issue, Transcontinental similarly argues that Omni’s misrepresentation claim is not viable because (a) no one at Omni read the certificates of insurance; (b) the certificates disclaimed any representation regarding coverage; (c) there is no evidence that Sparks’s comment to Port Metal’s president, McKnight, regarding the purpose of the storage charge exclusion was conveyed to anyone at Omni; and (d) McKnight had no authority to act for Transcontinental when he stated to Omni’s president, Tomes, that Omni’s stored steel was covered by Port Metal’s bailee policy. The third and fourth of Transcontinental’s contentions — that Sparks’s comment to Port Metal regarding the purpose of the storage charge exclusion and McKnight’s statements to Tomes about coverage are not actionable against Transcontinental— are not supported by any argument or authority and are therefore waived. See Tex.R.App. P. 38.1(i). We address the remaining issues together as questions of the legal and factual sufficiency of the evidence to support Omni’s negligent misrepresentation and deceptive trade practices claims. 1. Appellants’ Negligent Misrepresentation In the first part of its first issue, Brown & Brown argues that the evidence is legally and factually insufficient to support Omni’s misrepresentation claim and its claims under former article 21.21 of the Texas Insurance Code and subsections 17.46(b)(5) and (12) of the DTPA. Specifically, it contends that the evidence is insufficient to support the jury’s answers to Jury Question 1, in which the jury was asked whether Poe & Brown made a negligent misrepresentation, and Jury Question 3, in which the jury was asked whether Poe & Brown engaged “in any unfair or deceptive act or practice that caused damages to Omni Metals.” The charge defined “unfair or deceptive act or practice” to mean “1) representing that goods or services had or would have characteristics that they did not have; or 2) representing that an agreement confers or involves rights that it did not have or involve.” See Tex. Bus. & Com.Code Ann. § 17.46(b)(5), (12). a. Appellants ’ Duty to Disclose Brown & Brown argues that, of the four communications made to Omni concerning Port Metal’s bailee insurance, three were made by Jacobe and only one by Poe & Brown, which subsequently acquired Ja-cobe and has itself since been acquired by Brown & Brown. Thus, it alleges, the only communication between Poe & Brown and Omni was the 1995 certificate of insurance delivered to Omni by Poe & Brown, which stated that Port Metal had a $3,000,000 “All Risk” “Bailee Liability” policy from Transcontinental. The bailee policy stated that the insurer, Transcontinental, “will pay for ‘loss’ ... from any of the Covered Causes of Loss,” which it defined as “RISKS OF DIRECT PHYSICAL ‘LOSS’ ... except those causes of loss listed in the Exclusions.” Brown & Brown argues that, “[a]s a matter of law, Poe & Brown’s certificate of insurance does not make a false representation by accurately describing the bailee policy as an ‘All Risk’ policy.” It refers us to State Farm County Mutual Insurance Co. v. Moran, 809 S.W.2d 613 (Tex.App.-Corpus Christi 1991, writ denied), and North American Shipbuilding, Inc. v. Southern Marine & Aviation Underwriting, Inc., 930 S.W.2d 829 (Tex.App.-Houston [1st Dist.] 1996, no writ), as support for its argument. In Omni Metals, the Fourteenth Court of Appeals recited the elements of negligent misrepresentation, namely, that (1) a representation was made by a defendant in the course of business; (2) the defendant supplied false information for the guidance of others in their business; (3) the defendant failed to exercise reasonable care or competence in obtaining or communicating the information; and (4) the plaintiff suffered pecuniary loss by justifiably relying on the representation. 2002 WL 1331720, at *4; see also Fed. Land Bank Ass’n v. Sloane, 825 S.W.2d 439, 442 (Tex.1991). In the prior appeal of this case, the Fourteenth Court of Appeals pointed out that a misrepresentation need not be an affirmative misrepresentation of fact. It stated, “Where there is a duty to speak, silence may be as misleading as a positive misrepresentation of existing facts.” Omni Metals, 2002 WL 2331720, at *3 (quoting Smith v. Nat’l Resort Cmty., Inc., 585 S.W.2d 655, 658 (Tex.1979)). “Whether a duty to disclose exists is a question of law.” Id. (citing Bradford v. Vento, 48 S.W.3d 749, 755 (Tex.2001)). It further opined, “A duty to disclose may arise in four situations: (1) when there is a fiduciary relationship; (2) when one voluntarily discloses information, the whole truth must be disclosed; (3) when one makes a representation, new information must be disclosed when that new information makes the earlier representation misleading or untrue; and (4) when one makes a partial disclosure and conveys a false impression.” Id. (quoting Hoggett v. Brown, 971 S.W.2d 472, 487 (Tex.App.Houston [14th Dist.] 1997, pet. denied)). Omni argued that Poe & Brown had a duty to disclose under Hoggett scenarios three and four. Id. at *4. The Fourteenth Court of Appeals agreed. Id. Omni had argued that Poe & Brown should have revealed the storage fee exclusion to correct impressions left by earlier certificates of insurance. Id. The court observed that the summary judgment evidence showed that the earliest certificate of insurance provided to Omni, for Port Metal’s 1992-93 bailee policy, stated that “coverage includes property of others in custody of insured.” Id. Sparks, an insurance agent employed by Poe & Brown at the time of the fire loss, sent the certificate to Omni. Id. The summary judgment evidence showed that Sparks was aware of the storage fee exclusion by May of 1995. Id. He had been questioned about the storage fee exclusion by Port Metal’s president, who told him Port Metal charged its customers a storage fee. Id. Nevertheless, Sparks did not disclose or provide additional information about the storage exclusion to Omni, even when he knew that Omni wanted to make sure that its property was covered by insurance purchased by Port Metal. Id. The court of appeals concluded, based on the summary judgment evidence, that “Sparks never corrected the impression conveyed by the 1992-93 policy, which was misleading given facts Sparks later learned.” Id. It held that these circumstances created a fact issue as to whether appellees breached the duty prescribed under Hoggett scenario three. Id. Omni also contended that, under the circumstances, the “all risk” certificate of insurance was a partial disclosure that conveyed a false impression and was therefore false under Hoggett scenario four. Id. The Fourteenth Court of Appeals again agreed. Id. It stated: We conclude that the evidence shows Poe & Brown understood it was answering Omni’s question, “Is my property at Port Metal’s facility covered?” At that time, Poe & Brown knew that Port Metal wanted to cover all property of its customers, was aware of the storage exclusion in the policy, and knew that Port Metal was charging its customers a storage fee. Despite this knowledge, the certificate of insurance was its only answer, a partial answer, to Omni’s question. The certificate verified “all risk” bailee liability coverage with a $3,000,000 limit. In deposition, Poe & Brown’s corporate representative admitted that the term “all risk” did not really cover all possible risks and was possibly confusing. Thus, taken in the light most favorable to Omni, the all risk designation left a false impression under the circumstances. Id. The court held, “Accordingly, there is a fact issue whether appellees met their duty under Hoggett scenario four.” Id. In its second issue in Omni Metals, Omni argued that a fact issue existed as to whether Poe & Brown had misrepresented coverage “because, under the circumstances, the ‘all risk’ certificate of insurance was false and misleading.” Id. Poe & Brown made the same argument it makes here — that the certificate could not be considered a misrepresentation as a matter of law — and it relied upon the same authority, North American Shipbuilding, in support of its argument. Id. at *5. The Fourteenth Court of Appeals addressed Poe & Brown’s argument at length and found North American Shipbuilding to be distinguishable “for several reasons.” Id. The court stated: First, the “all risks” representation in that case was found in the insurance policy, not just in two words on a certificate: “[this policy] insures against all risks of physical loss or damage to the Vessel ... except as herein provided.” 930 S.W.2d at 831. Second, an exclusion for faulty workmanship was also fully delineated in the same document. In comparison, the certificate sent to Omni did not set for the storage exclusion. Third, the defendants in N. Am. Shipbuilding did not communicate the “all risk” policy clause in response to a specific inquiry. In contrast, Poe & Brown provided the “all risk” certificate in response to Omni’s inquiry for confirmation that its steel was covered while at Port Metal. Fourth, in N. Am. Ship building, the insured failed to provide summary judgment proof that the insurer misrepresented the coverage to include faulty workmanship. The summary judgment proof here reveals that appellees told Port Metal that the storage exclusion did not apply. Id. The court followed Black v. Victoria Lloyds Insurance, 797 S.W.2d 20 (Tex.1990), in holding that a fact issue existed concerning misrepresentation of liability insurance coverage for personal use when an insurance company represents that “complete ... insurance” has been provided when it has not. Omni Metals, 2002 WL 1331720, at *5; see Black, 797 S.W.2d at 24 (holding that insurance identification card provided to driver of leased vehicle by lessor’s insurance company, which stated only that policy complied with “the compulsory auto laws of the State of Texas,” but did not indicate that driver of leased vehicle did not have liability insurance coverage for personal use of vehicle, raised fact issue concerning misrepresentation of insurance coverage). The court concluded that Omni had raised a fact issue with respect to “whether [Poe & Brown] misrepresented the