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Banking, Business and Contracts No. 09-02-502-CV, 4/10/2003. Click here for the full text of this decision FACTS: Budget Rent-A-Car Conroe/ Woodlands sued Brenda Hogue for breach of contract and negligence after she flooded a rented limousine. Hogue moved for summary judgment on the grounds that Budget waived Hogue’s responsibility for any loss or damage to the vehicle because she purchased the loss damage waiver in the rental agreement. The trial court granted summary judgment and Budget appealed. HOLDING: Affirmed. In this contract, the word “intentionally” modifies the word “damages.” Thus, the use restriction applies if the actor carried the specific intent to damage the vehicle. It cannot be inferred from the statements in the affidavit of Rhowan Collins, Budget’s chief financial officer, that either Hogue or Carroll Wayne Hurst drove onto the water-covered portion of the road with the specific intent to damage the vehicle. The litigants do not refer to any contractual definition of what constitutes willful or wanton misconduct, the second waiver exception. Hogue cites cases that describe “willful” conduct in terms of intent or purpose of design. Geders v. Aircraft Engine and Accessory Co. Inc., 599 S.W.2d 646 (Tex. Civ. App. – Dallas 1980, no writ). The cases cited by Hogue describe “wanton” conduct in terms of consciousness of the likelihood that injury will result from the conduct. Brown v. Lundell, 334 S.W.2d 616 (Tex. Civ. App. – Amarillo 1960), affirmed, 344 S.W.2d 863 (Tex. 1961). In the context of automobile liability policy guest statutes, one insurance treatise distinguishes a “wilful” act, which implies an intention to cause injury, from a “wanton” act, which implies a failure to exercise any care for the safety of those to whom a duty is owed. 6B John A. Appleman, Insurance Law and Practice (Buckley ed.) �4312, at 325-27 (1979). Budget contends summary judgment is precluded because Collins’ affidavit establishes the existence of a disputed fact issue “whether Hogue wantonly and willfully drove the vehicle into the high water.” That affidavit attributes to Hogue statements indicating that she was aware there was water on the road, that they initially stopped the vehicle with the intention of waiting until the water subsided, but they changed their minds after observing another car successfully navigate the passage. This scenario does not describe either an expectation that damage would occur nor a conscious disregard of peril likely to occur. The summary judgment evidence does not raise a fact issue of a violation of the use restriction. Because the contract waived Brenda Hogue’s liability for loss or damage to the vehicle, she is entitled to judgment as a matter of law. The trial court did not err in granting summary judgment. OPINION:Per curiam; McKeithen, C.J., Burgess and Gaultney, JJ.

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