Nature of the Case
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Facts
Theodore owned a residence in Omaha, Nebraska. He moved to Arlington, Texas, still owning the home in Omaha. Theodore's brother, Bernard, who lived in Omaha, was in the process of constructing a new home for himself and his family. The brothers agreed that Bernard and his family could occupy Theodore's home in Omaha while awaiting the completion of their new home. There was no formal agreement and little discussion regarding the informal agreement. Theodore testified that 'there was no rent paid and no agreement. He was to just take care of it, shovel the snow, and live in it. Pay the utility bills, which I wouldn't have to pay.' The brothers understood that Theodore would pay the taxes, but no rent was to be paid by Bernard to Theodore. Theodore specifically told his brother 'that I would leave my insurance policy that I had on it while he was in there, and I didn't really discuss any part of his homeowner's or anything else. I just assumed he would take care of that. But we did discuss that I would leave my policy on it.' D, Bernard's daughter, ignited the gas fireplace in the family room of the house. Allegedly, she failed to open the damper, which caused a fire resulting in substantial destruction to the home. P, Theodore's carrier, paid the sum of $139,760 to Theodore and obtained in return a subrogation receipt. P then filed suit against Bernard Reeder and Patricia Reeder, parents of D, as well as D. The parents were dismissed from the action, and no appeal has been taken from that order. D filed a motion for summary judgment. The trial court sustained the motion for summary judgment and dismissed the action. P appealed.
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