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Texas Soil Recycling, Inc. v. Intercargo Insurance Co.

When the plaintiff pleads the discovery rule as an exception to limitations, the defendant moving for summary judgment on limitations grounds has the burden of negating that exception by establishing that there is no genuine issue of fact about when the plaintiff discovered or should have discovered the nature of his injury.

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As amended December 5, 2001

Appeal from the United States District Court For the Southern District of Texas, Houston Division

Texas Soil Recycling Inc., Bobby E. Seltz, Joe E. Calvert, Lisa G. Calvert, and James J. Gilliland (collectively “plaintiffs”) appeal from the district court’s order granting summary judgment in favor of Intercargo Insurance Company. Plaintiffs contend that the district court erred in dismissing their claims for negligence, negligent misrepresentation, grossly negligent misrepresentation, and violation of the Texas Deceptive Trade Practices Act as barred by the statute of limitations. Plaintiffs also contend that the district court erred in granting summary judgment to Intercargo on plaintiffs’ promissory estoppel and fraud claims and on Intercargo’s counterclaim for indemnity. While this appeal was pending, Intercargo filed a motion for leave to allow the district court to correct its order on final summary judgment. We affirm the judgment of the district court and deny Intercargo’s motion for leave without prejudice.

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