STEPHEN GOODMAN AND J. DERRICK GOODMAN, Appellants v. MICHAEL SCHRADE AND BISCO INDUSTRIES, INC., Appellees

Affirmed; Opinion filed July 31, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01648-CV
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STEPHEN GOODMAN AND J. DERRICK GOODMAN, Appellants
V.
MICHAEL SCHRADE AND BISCO INDUSTRIES, INC., Appellees
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On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-11842-K
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MEMORANDUM OPINION
Before Chief Justice Thomas and Justices Bridges and FitzGerald
Opinion By Chief Justice Thomas
        Stephen Goodman (Stephen) and J. Derrick Goodman (Derrick) (collectively “appellants”) appeal the no-evidence summary judgment granted Michael Schrade (Schrade) and Bisco Industries, Inc. (Bisco) (collectively “appellees”). In a single issue, appellants assert they can maintain a claim for exemplary damages when they sought no actual damages. We affirm the trial court's judgment.
Background
        A vehicle driven by Derrick was involved in an accident with a vehicle driven by Schrade. and owned by Bisco. The vehicle driven by Derrick was owned by Stephen, but Stephen was not a passenger in the vehicle. No personal injuries were sustained by Derrick, however, Stephen's vehicle was a total loss. Pre-suit, Bisco's liability insurer compensated Stephen for the property damage to his vehicle. Appellants filed suit seeking exemplary damages only against Schrade for gross negligence and Bisco for negligent entrustment.
        The trial judge granted appellees' no-evidence summary judgment. See Tex. R. Civ. P. 166a(i). The amended final summary judgment states:
 
The parties, prior to litigation, settled the only actual damages claim, which was the property damage claim to the Goodman car. Since the Plaintiffs made no other actual damages claim in the present suit, upon which a finder of fact could decide liability and potentially make an award, the Plaintiffs are not entitled to pursue their suit for only exemplary damages only [sic].
 
Standard of Review
        Because the pertinent facts are stipulated, we review the trial court's order granting appellees' motion for summary judgment de novo. In re Florenza, 140 S.W.3d 373, 376 (Tex. 2004) (statutory construction is a question of law which appellate court reviews de novo); Am. Broad. Co. v. Gill, 6 S.W.3d 19, 27 (Tex. App.-San Antonio 1999, pet. denied), overruled in part on other grounds by Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000) (“[w]hether an order grants or denies a motion for summary judgment, we apply the same de novo standard of review”).
Discussion
        Exemplary damages may be awarded only if damages other than nominal damages are awarded. Tex. Civ. Prac. & Rem. Code Ann. § 41.004(a) (Vernon 2008). It is necessary to allege, prove and secure jury findings on the existence and amount of actual damage sufficient to support an award of punitive damage. Nabours v. Longview Sav. & Loan Ass'n, 700 S.W.2d 901, 903 (Tex. 1985); Doubleday & Co. v. Rogers, 674 S.W.2d 751, 754 (Tex. 1984). “Except where there are nominal damages which result from malice and in wrongful death claims involving workers' compensation, exemplary damages may be awarded only if damages other than nominal damages are awarded.” Waste Disposal Ctr., Inc. v. Larson, 74 S.W.3d 578, 589 (Tex. App.-Corpus Christi 2002, pet. denied). Although appellants acknowledge this rule, they urge that it should not prevent their recovery of exemplary damages in this case. They assert that the correct rule is that the plaintiff does not have to be awarded actual damages to receive exemplary damages; rather, they must merely show themselves entitled to recover actual damages. Here, appellants assert that pre- suit payment for property damage establishes actual damages entitling them to recover exemplary damages. We disagree.
        “Award” is defined as:
 
award, n. A final judgment or decision, especially one by an arbitrator or by a jury assessing damages.
 
 
 
award, vb. To grant by formal process or by judicial decree.
 
Black's Law Dictionary 147 (8th ed. 2004). The property damage settlement by Bisco's insurance carrier does not come within the definition of “award” which connotes judicial or quasi- judicial action. See Home Ins. Co. v. Pan Am. Grain Mfg. Co., 397 F.3d 12, 16 (1st Cir. 2005) (settlement not an award). See Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d 230, 238 (Tex. App.-Houston [1st] 2003, no pet.) (terms “award” and “damages” generally describe final remedies, citing Black's Law Dictionary definitions). The property damage settlement is not an extrajudicial determination of a third party decision maker such as would be the case of an award by an arbitrator. Further, it is not a document embodying such a decision. Rather, the property damage settlement is the product of a private negotiation. Because the property damage settlement is not an award, it cannot serve as the basis for an entitlement to exemplary damages.
        We overrule appellants' single issue.
        We affirm the trial court's summary judgment.        
 
                                                          
                                                          LINDA THOMAS
                                                          CHIEF JUSTICE
 
071648F.P05