Mahmoud Abdalla v. Farmers Insurance Exchange

ACCEPTED 07-17-00020-CV SEVENTH COURT OF APPEALS AMARILLO, TEXAS 7/5/2017 4:12 PM Vivian Long, Clerk Oral Argument Conditionally Requested FILED IN No. 07‐17‐00020‐CV 7th COURT OF APPEALS AMARILLO, TEXAS In The Court Of Appeals 7/5/2017 4:12:31 PM For The Seventh District Of Texas VIVIAN LONG CLERK Amarillo, Texas MAHMOUD ABDALLA v. FARMERS INSURANCE EXCHANGE On Appeal From the 153rd Judicial District Court Tarrant County, Texas, Cause No. 153‐269720‐13 APPELLEE’S BRIEF Scot G. Doyen – SBN 00792982 sdoyen@ds‐lawyers.com Alasdair Roberts – SBN 24068541 aroberts@ds‐lawyers.com DOYEN SEBESTA, LTD., L.L.P. 450 Gears Road, Suite 350 Houston, Texas 77067 Telephone: 713‐580‐8900 Facsimile: 713‐580‐8910 ATTORNEYS FOR APPELLEE FARMERS INSURANCE EXCHANGE TABLE OF CONTENTS ISSUES PRESENTED ................................................................................................. viii STATEMENT OF FACTS ................................................................................................ 1 STANDARD OF REVIEW ............................................................................................... 6 ARGUMENT ................................................................................................................. 8 I. The Appraisal Award was not Rendered as the Result of Mistake or Accident ........................................................................................... 8 II. Timely Payment of the Appraisal Award Precludes Contractual Liability ......................................................................................... 14 III. Tendering Payment of an Appraisal Award Estops a Breach of Contract Cause of Action Regardless of Whether Payment was Accepted........................................................................................ 15 IV. Timely Payment of the Appraisal Award Precludes Chapter 542 Liability ......................................................................................... 16 V. Timely Payment of the Appraisal Award and Lack of Independent Injury Precludes Extra‐Contractual Liability ............................ 19 CONCLUSION AND PRAYER ....................................................................................... 25 ii TABLE OF AUTHORITIES Cases Amine v. Liberty Lloyds of Tex. Ins.,. No. 01‐06‐00396‐CV, 2007 WL2264477 (Tex.App.—Houston [1st Dist.] 2007, no pet.) .................................................................................................................... 16, 17 Anderson v. Am. Risk Ins. Co., Inc., 2016 WL3438243 (Tex.App.—Houston [1st Dist.] 2016, no pet.) ...................... 20 Barnes v. Western Alliance Ins. Co. 844 S.W.2d 264 (Tex.App. —Fort Worth 1992, writ dism'd by agr.) ................. 9 Breshears v. State Farm Lloyds, 155 S.W.3d 340 (Tex.App.—Corpus Christi 2004, pet. denied) ............. 14,16,20 City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ................................................................................................. 7 Davis v. Nat. Lloyds Ins. Co., 484 S.W.3d 459 (Tex.App.—Houston [1st Dist.] 2015, pet. filed) ....................... 19 Douglas v. State Farm Lloyds 37 F.Supp.2d 532 (S.D. Tex. 1999) ................................................................................... 20 Fisch v. Transcon. Ins. Co., 356 S.W.2d 186 (Tex. Civ. App. —Houston 1962, writ ref'd n.r.e.) .................... 10 Franco v. Slavonic Mut. Fire Ins., 154 S.W.3d 777 (Tex.App.—Houston [14th Dist.] 2004, no pet.) ...................... 14 Garcia v. Lloyds, 514 S.W.3d 257 (Tex.App.—San Antonio 2016, pet. denied) ........................................................................................................ 8,9,10,11,12,16,17 iii Gardner v. State Farm Lloyds, 76 S.W.3d 140 (Tex.App.—Houston [1st Dist], no pet.) .......................................... 14 In re Slavonic Mut. Fire Ins. Ass'n, 308 S.W.3d 556 (Tex.App.—Houston [14th Dist] 2010, no pet.) .................. 16,17 JM Walker LLC v. Acadia Ins. Co. No. 09‐10562, 2009 WL4884943 (5th Cir. Dec. 18, 2009) ................................... 12 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006). ................................................................................................ 7 MLCSV10 v. Stateside Enter. Inc., 866 F.Supp.2d 691 (S.D. Tex. 2012). ................................................................................12 Nat. Security Fire & Cas. Co. v. Hurst, No. 14‐15‐00714‐CV, 2017 WL 2258243 (Tex. App.—Houston [14th Dist.] 2017, no pet. h.) ................................................................................................... 15,16,21,23 Providence Lloyds Ins. Co. v. Crystal City Indep. Sch. Dist., 877 S.W.2d 872 (Tex.App.—San Antonio 1994, no writ) ........................... 6,8,9,13 Republic Ins. v. Stoker, 903 S.W.2d 338 (Tex. 1995) ............................................................................................... 19 Scottish Union & Nat'l Ins. Co. v. Clancy, 71 Tex. 5, 8 S.W. 630 (Tex. 1888) ..................................................................................... 14 Spicewood Summit Office Condo. Ass'n, Inc. v. First Lloyd's Ins. Co., 287 S.W.3d 461 (Tex.App.—Austin 2009, pet. denied) .......................................... 20 Texas Mut. Ins. Co. v. Sara Care Child Care Ctr., Inc., 324 S.W.3d 305 (Tex.App.—El Paso 2010, pet. denied) ......................................... 20 Transp. Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994) .................................................................................................. 19 iv USAA Tex. Lloyds Co. v. Menchaca, No. 14‐07121, 2017 WL1311752 (Tex. 2017) .............................................. 20,22,23 Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) ................................................................................................. 6 Wells v. Am. States Preferred Ins. Co., 919 S.W.2d 679 (Tex.App.—Dallas 1996, writ denied) .......................................... 14 Statutes TEX. INS. CODE §541.151 ............................................................................................................ 21 TEX. INS. CODE §542.056(a) ......................................................................................................18 TEX. INS. CODE §542.058 ......................................................................................................17,18 TEX. INS. CODE §542.060 ............................................................................................................ 18 Rules TEX. R. CIV. P. 166a(c) ................................................................................................................... 6 v RECORD REFERENCES CR2 Clerk’s Record page 2 vi STATEMENT OF THE CASE Nature of the Case: Property insurance suit filed by Plaintiff Mahmoud Abdalla against his insurer, Farmers Insurance Exchange, claiming damages after a water discharge event (CR5-23). Suit was filed prior to the completion of the appraisal process invoked by Plaintiff. Course of Proceedings: Defendant moved for summary judgment twice based on its timely payment of an appraisal award. The 153rd Judicial District Court of Tarrant County, Texas, the Hon. Susan Heygood McCoy presiding, granted summary judgment after three hearings on the motion (CR305, 512, 641). Trial Court’s Disposition: The trial court granted summary judgment on the breach of contract cause of action on April 6, 2016 (CR305). Subsequently the trial court granted summary judgment on Plaintiff’s causes of action for breach of the common law duty of good faith and fair dealing and negligent misrepresentation on September 22, 2016 (CR512). The trial court granted summary judgment on all remaining causes of action and awarded Defendant costs of court in the amount of $1,276.10 on December 5, 2016 (CR641). vii ISSUES PRESENTED Whether the trial court erred in refusing to vacate the appraisal award. Whether the trial court erred in granting Appellee’s motion for summary judgment. STATEMENT REGARDING ORAL ARGUMENT Appellee believes this case can be decided on the briefs without oral argument. Nevertheless, Appellee would be pleased to present oral argument should the Court request it. viii — 1 — STATEMENT OF FACTS Appellant was insured under a Business Owners Policy issued by Appellee (CR334‐453). The policy also includes an appraisal clause, which was invoked by the Appellant when a disagreement arose over the dollar amount of damages to the property (CR465‐66). The appraisal clause is as follows: (Tab A, CR438‐439) On February 21, 2012 the Appellant, Mahmoud Abdalla, suffered a water leak at his tire warehouse in Arlington, Texas (CR459). An insurance claim was reported to Appellee that same day (CR459). Appellee assigned *2 the claim to an adjuster named Tonya Stillwell who proceeded with investigation of the claim (CR459). Over the course of Appellee’s investigation it issued $264,829.29 in payments to Appellant for covered losses at the property (Tab C, CR468). On March 28, 2013, Appellant invoked the appraisal process and designated Tony Siahpush as his appraiser (CR465). Appellee designated Kyle Albright as its appraiser (Tab C, CR468). Relevant dates following invocation of appraisal are as follows: 1. Appellant filed the instant lawsuit on December 19, 2013 (CR5‐23); 2. Appellee answered the lawsuit on January 12, 2014 (CR24‐26); 3. On May 30, 2014 the trial court conducted a conference with the attorneys regarding resolution of the case and on July 2, 2014 issued an order appointing Judge Charles Bleil as the umpire (CR642); 4. On October 8, 2014 Judge Bleil issued his “Award of Umpire” (Tab B, CR27‐29). Judge Bleil’s award reflects that both sides’ appraisers had completed their assignments, and that he was submitting his award to conclude the appraisal process (Tab B, CR27). The award attached the “Appraisal Award” (“Award”) prepared by Appellee’s appraiser, Kyle Albright, and stated: — 3 — This appraisal is evidenced by the document attached to this award. It is the Umpire’s considered opinion that the Albright appraisal of an actual cash value loss amount of $345,664.21 (three hundred forty‐five thousand, six hundred sixty‐four dollars and twenty‐once cents) is the more sound and well supported appraisal. Accordingly, the Umpire hereby award the sum of money to make whole the damages caused to the subject property. (Tab B, CR27‐28). The Award of Umpire was signed by Judge Bleil and Mr. Albright, which made the award binding per the terms of the policy (Tab A, CR438‐439). On October 15, 2014, seven days after the Award of Umpire was issued, Appellee tendered payment to Plaintiff for $76,125.81 (building coverage) and $5,855.98 (business personal property coverage) which reflected the actual cash value amounts owed under the Award of Umpire less depreciation, policy deductible, and prior payments (Tab C, CR468‐470). The letter accompanying the payments provided the following concise breakdown of the amounts tendered: *4 (Tab C, CR468) The deadline under the insurance policy for Appellee to pay an appraisal award is five business days after an appraisal award has been made (Tab A, CR440). Payment was timely tendered per the terms of the policy, as seven days cannot elapse with more than five business days elapsing within the same time period. Dissatisfied with the award, Appellant moved for vacation of the appraisal award of October 27, 2014 on the basis that the Award of Umpire was a product of mistake (CR30‐37). The trial court entertained the motion and denied it on April 6, 2016 (CR304). Having satisfied its duties to Appellant under the Policy, Appellee moved for summary judgment on October 21, 2015 and argued that the *5 timely payment of the Award meant there was no genuine issue of material fact on Plaintiff’s causes of action for breach of contract, breach of the duty of good faith and fair dealing, and violations of Chapters 541 and 542 of the Texas Insurance Code (CR50‐201). The trial court granted summary judgment on Appellee’s breach of contract cause of action on April 6, 2016 and re‐opened discovery with regard to the extra‐contractual causes of action (CR305). Following the trial court’s April 6, 2016 rulings, Mr. Abdallah was presented for deposition and testified that he was only seeking damages for amounts owed under the insurance contract (CR504). Having established that there was no independent injury to Appellant that would serve as a basis for his extra‐contractual causes of action, Appellee again asserted a motion for summary judgment on all remaining causes of action (CR312‐506). On August 25, 2016 a hearing was held on Appellee’s motion for summary judgment and the Court issued an order granting summary judgment on Appellee’s causes of action for breach of the duty of good faith and fair dealing and negligent misrepresentation (CR512). At the same hearing, the trial court withheld ruling on the remaining causes of action until Tonya Stillwell, Appellee’s claims adjuster, could be deposed (CR643). *6 Ms. Stillwell was presented for deposition on September 15, 2016, and Appellee reset its motion for summary judgment for hearing on November 11, 2016 (CR527‐49). The trial court granted summary judgment on all remaining causes of action and on December 5, 2016 the Court rendered judgment that Appellant take nothing and that Appellee recover its costs of court in the amount of $1,276.10 (CR641). STANDARD OF REVIEW When examining an appraisal award every reasonable presumption will be indulged to sustain the award. Providence Lloyds Ins. Co. v. Crystal City Indep. Sch. Dist., 877 S.W.2d 872, 875 (Tex.App.—San Antonio 1994, no writ). An award entered by the umpire and appraisers can only be disregarded if: (1) the award was made without authority; (2) the award was issued as a result of fraud, accident, or mistake; or (3) the award was not made in substantial compliance with the terms of the policy. Id. at 875‐76. The trial court’s summary judgment is reviewed de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). On its traditional motion for summary judgment, Appellee must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). — 7 — A no evidence motion for summary judgment is functionally identical to a motion for directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). Appellate courts view the evidence in the light most favorable to the non-movant, but do not disregard evidence that supports the motion. See City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). SUMMARY OF ARGUMENT The trial court properly denied the motion to vacate the appraisal award, then properly granted summary judgment on the causes of action asserted by the Appellant. The Appellant invoked the appraisal provision of his policy, the Award of Umpire was not the result of mistake, accident, or fraud, and Appellee promptly and timely tendered payment of the amount owed. The timely payment of the Award precludes liability under the contract and established that Appellant had no further right to recovery of policy benefits. Without any further right to policy benefits, Appellant has no independent injury to serve as a basis for damages under extra contractual causes of action. The evidence submitted by Appellee to the trial court shows that there was no genuine issue of material fact as to whether it failed to timely tender *8 payment of the Award, or whether Appellant suffered an independent injury that would support extra‐contractual causes of action. Alternatively, the evidence submitted to the trial court by Appellant was legally and factually insufficient to support a breach of contract, or extra‐ contractual causes of action. The judgment of the trial court must be affirmed. ARGUMENT I. The Appraisal Award was not Rendered as the Result of Mistake or Accident An appraisal award made pursuant to the provisions of an insurance policy is binding and enforceable. Garcia v. Lloyds, 514 S.W.3d 257, 264 (Tex.App.—San Antonio 2016, pet. denied); Providence, 877 S.W.2d at 875. The burden to set aside an appraisal award lies squarely upon the Appellant. Garcia, 514 S.W.3d at 264‐65. There are three grounds upon which an appraisal award can be set aside: 1. The award was made without authority; 2. The award was made as the result of fraud, accident, or mistake; or — 9 — 3. The award was not made in compliance with the requirements of the policy. Id. at 265; Providence, 877 S.W.2d at 875‐76. Appellant argues that the Award is the result of mistake or an accident. The law in Texas is clear that an appraisal award may only be set aside on the basis of accident or mistake “upon a showing that the award does not speak the intention of the appraisers.” Garcia, 514 S.W.3d at 269 (internal citations omitted). Mistake is further defined as “a situation where the appraisers and umpire were laboring under a mistake of fact by which their appraisal award was made to operate in a way they did not intend, such that the award does not speak the intention of the appraisers and umpire…” Barnes v. Western Alliance Ins. Co., 844 S.W.2d 264, 268 (Tex.App.—Fort Worth 1992, writ dism’d by agr.). Appellant has offered no evidence that the Award failed to reflect the intent of the appraisers or the umpire. Appellant relied predominantly on the Affidavit of Max Judge which detailed differences between his appraisal and that of Mr. Albright’s, but wholly failed to identify the intent of the appraisers or the umpire. (CR39‐41). The intent of Judge Bleil and Appellee’s appraiser is clear in the Award, and the Award was consistent with that intent: — 10 — It is the Umpire’s considered opinion that the Albright appraisal of an actual cash value loss amount of $345,664.21 (three hundred forty‐five thousand, six hundred sixty‐four dollars and twenty‐once cents) is the more sound and well supported appraisal. Accordingly, the Umpire hereby award the sum of money to make whole the damages caused to the subject property. (Tab B, CR27‐28). The law recognizes that mere disagreements between the appraisers and the umpire do not mean the Award was the result of mistake or accident, and that a decision by an umpire to use one estimate over another does not establish mistake or accident. See Garcia, 514 S.W.3d at 270. The affidavit takes issue with Defendant’s appraiser’s method of calculating demolition and excavation activities (CR33, 39‐40, Appellant Br. 12). The affidavit also states “I believe I have adequately address [sic] the issue of erosion in my estimate and I don’t believe Mr. Albright did.” (CR33, 40, Appellant Br. 12). The Policy requires the appraisers to submit their differences to the umpire, so in instances where an umpire is appointed a disagreement between the appraisers is a necessity. In fact, the whole purpose of the Court’s appointment of an Umpire is to resolve disagreements between the respective appraisers. Fisch v. Transcon. Ins. Co., 356 S.W.2d 186, 189 (Tex. Civ. App.— Houston 1962, writ ref’d n.r.e.). If appraisers did not fail to agree, there would be nothing to submit to the umpire and nothing upon which he could act. Id. *11 Appellant’s argument that disagreement between the appraisers constitutes a mistake contradicts the purpose of appointing an umpire. The Affidavit argues that the Award improperly relies upon an engineering report created by Rimkus Engineering and disregards the findings of an engineering report prepared by Syntec. (CR32, 39‐40, Appellant Br. 11). The Garcia court examined the issue of whether a difference in scope between an appraisal award and pre‐appraisal estimates is evidence the award does not reflect the appraiser’s intent and held that the policy’s appraisal clause did not specify the manner in which the appraisers were to set the amount of loss nor did it require the appraisers to rely on or refer to prior damage estimates. See Garcia, 514 S.W.3d at 266‐67. The same logic applies here. There is nothing in the Policy’s appraisal clause that dictates the method the appraisers and umpire should employ in determining the amount of the loss, nor is there an instruction to consider or disregard estimates or engineering reports previously created by either side (Tab A, CR438‐439). Like the appraisers in Garcia, Judge Bleil’s decision to adopt or disregard portions of an engineer’s report does not mean his Award was rendered as the result of an accident or mistake. — 12 — Plaintiff’s argument that an umpire’s decision to adopt the recommendations from one appraiser over another constitutes mistake is nonsensical. The MLCSV10 court confronted whether an appraisal award should be set aside on the basis of mistake when one appraiser’s estimate was allegedly not based upon a reliable methodology and whether the umpire’s selection of one appraiser’s estimate over another constituted mistake. The court determined that: An umpire must often choose between two competing values. McCool's [the umpire’s] decision to use Lochridge's [one appraiser’s] estimates rather than Haden's [the other appraiser] does not mean that the appraisal award resulted from accident or mistake. Garcia, 514 S.W.3d at 269 (quoting MLCSV10 v. Stateside Enter., Inc., 866 F. Supp. 2d 691, 702 (S.D. Tex. 2012). Similarly, in JM Walker, the court determined that a difference in roof measurements did not constitute a mistake because the insured provided no evidence that the award did not speak to the umpire’s intent. JM Walker LLC. v. Acadia Ins. Co., No. 09‐10562, 2009 WL4884943, at *746‐47 (5th Cir. Dec. 18, 2009). The Court stated, “[a]n umpire often must choose between two competing values, and LaFluer’s decision to go with Gillespie’s measurement, rather than Austin’s does not mean his award was premised on a mistake.” Id. The facts in this particular case are even less compelling because there isn’t *13 even an allegation of a disagreement regarding an objectively verifiable fact (such as a roof measurement). In the present case, there was purely a difference of opinion between the appraisers that was resolved by the umpire. This is exactly how the appraisal process is designed to work. The points raised by Appellant exhibit no more than a dispute between his own appraiser and the Appellee’s appraiser and the Umpire concerning the value of damages to the property based on the reliance of certain evidence at the expense of other evidence. This is not evidence of mistake or accident in the appraisal process, the Award is clear as to the intent of Judge Bleil, he considered Mr. Albright’s appraisal to be a sounder and better supported appraisal and the Award issued was consistent with that decision. Appellant has not carried his burden to set aside the appraisal award because he has presented no evidence of mistake, accident, or contrary intent. Every reasonable presumption will be indulged to sustain the Award, and there is ample evidence showing the Award reflected the intent of Judge Bleil (Tab B, CR27‐29). Providence, 877 S.W.2d at 875. Therefore, the Trial Court was correct in denying the motion to vacate the appraisal award. — 14 — II. Timely Payment of the Appraisal Award Precludes Contractual Liability When an insurer participates in the appraisal process and pays the amount set by the appraisers and umpire there is no breach of contract. Breshears v. State Farm Lloyds, 155 S.W.3d 340, 344 (Tex.App.—Corpus Christi 2004, pet. denied); Franco v. Slavonic Mut. Fire Ins., 154 S.W.3d 777, 787 (Tex.App.—Houston [14th Dist.] 2004, no pet.). That is because the policy’s appraisal provision estops a party from contesting the issue of damages in a breach of contract dispute leaving only a liability question for the court. Scottish Union & Nat’l Ins. Co. v. Clancy, 71 Tex. 5, 8 S.W. 630, 631 (1888); Wells v. Am. States Preferred Ins. Co., 919 S.W.2d 679, 683‐84 (Tex.App.—Dallas 1996, writ denied)(internal citations omitted); et al. Under Texas law, a contract claim does not survive the insurer's payment of an appraisal award. For instance, in Franco, the insureds alleged after invoking appraisal that the insurer’s payment of the appraisal award did not defeat their breach of contract cause of action. Franco, 154 S.W.3d at 786. The appellate court disagreed, holding that because the insurer paid the appraisal award, the insureds were estopped from maintaining a breach of contract claim against the insurer. Id.; see also Gardner v. State Farm Lloyds, 76 S.W.3d 140, 143‐44 (Tex.App.—Houston [1st Dist.] *15 2002, no pet.). Simply put, compliance with the contractual appraisal award negates any claim for breach of contract as a matter of law. Like the insurer in Franco, Farmers fully participated in the appraisal process and timely tendered payment of the Award (Tab B, CR27‐29, Tab C, 468‐ 473). There is no genuine issue of material fact as to whether payment was tendered, or whether the tender was timely. The record shows that the Award was dated October 8, 2014 and payment was tendered on October 15, 2014 (Tab B, CR27‐29, Tab C 468‐473). Appellant did not address the breach of contract cause of action other than to argue that the award should be vacated due to accident or mistake. Appellant Br. 14. Viewing the evidence in the light most favorable to Appellant does not create a genuine issue of material fact because it is undisputed that Appellee fully participated in and timely tendered payment of the Award (Tab B, CR27‐29, Tab C 468‐473). III. Tendering Payment of an Appraisal Award Estops a Breach of Contract Cause of Action Regardless of Whether Payment was Accepted Even when an insured does not accept payment of an appraisal award, tender of the amount owed pursuant to the conditions of the appraisal clause estops an insured from asserting a breach of contract cause of action. Nat. Security Fire & Cas. Co. v. Hurst, ‐‐S.W.3d‐‐, No. 14‐15‐00714‐CV, 2017 WL *16 2258243 *3‐4 (Tex.App.—Houston [14th Dist.] 2017, no pet. h.). (internal citations omitted); See Garcia, 514 S.W.3d at 271. In response to Appellee’s first motion for summary judgment, Appellant argued that the Award needed to be vacated and that he had not negotiated the payment tendered (CR229). But the law is clear that payment does not have to be accepted to preclude a breach of contract cause of action. Id. Further, Appellant introduced no evidence of mistake or accident that justifies the vacation of the Award. Accordingly, as a matter of law, there is no breach of contract, and the Trial Court’s summary judgment on Appellant’s breach of contract claim was properly rendered. IV. Timely Payment of the Appraisal Award Precludes Chapter 542 Liability Full and timely payment of an appraisal award precludes liability under Chapter 542.1 There is no provision in Chapter 542 that establishes a deadline for payment of an appraisal award. In re Slavonic, 308 S.W.3d at 563, n.5. In Breshears the payment of the appraisal award was tendered “[w]ithin thirty 1 In re Slavonic Mut. Fire Ins. Ass'n, 308 S.W.3d 556, 563‐64 (Tex. App.—Houston [14th Dist.] 2010, no pet.)); See Amine v. Liberty Lloyds of Tex. Ins. Co., No. 01–06–00396–CV, 2007 WL 2264477, *4 (Tex.App.‐Houston. [1st Dist.] Aug. 9, 2007, no pet.) (mem. op.) (holding that where insurer makes timely payment pursuant to an appraisal award, there is no violation of the code's prompt payment deadlines); and Breshears, 155 S.W.3d at 344–45 (holding that insurer did not breach contract and insureds were not entitled to payment of penalty, even though final payment was delayed until completion of appraisal process). — 17 — days” of the umpire’s decision and the Court found no basis for extending 542 liability to the insurer. Breshears, 155 S.W.3d at 342, 344‐45. In Hurst, the insurer tendered payment of the appraisal award 30 days after the issuance of the award and the Court held that the payment was issued “well within the timeliness requirements of section 542.058.” Hurst, 2017 WL 2258243 at *5. The Amine Court considered whether there was any violation of the prompt payment of claims act and adopted the reasoning of the Breshears Court in holding that timely payment of an appraisal award precludes an award of penalty interest as a matter of law. Amine, 2007 WL 2264477 at *4. In Garcia, the insured argued on appeal that notwithstanding a valid appraisal award, an insurer should still be liable for prompt payment of claims violations that occurred before the appraisal clause was invoked. Garcia, 514 S.W.3d at 274. The Garcia Court rejected this argument and relied on In re Slavonic, Breshears, et al. in holding that timely payment of an appraisal award precludes imposition of penalties under Chapter 542. Id. at 275 (internal citations omitted). Even if the law dictated that an insurer could be liable under Chapter 542 for violations that occurred prior to the invocation of appraisal, Appellant would not be liable in this case. Appellant argues that Appellee did not accept or reject the claim until March 20, 2012 which was greater than 15 business *18 days after the claim was reported on February 22, 2012. Appellant Br. 19. However, Appellant ignores that the 15 business day deadline to accept or reject a claim does not arise until after the insurer has “all items, statements and forms required by the insurer to secure final proof of loss.” Tex. Ins. Code §542.056(a). Appellant has entered no evidence into the record to establish the date Appellant received the necessary information to secure final proof of loss. Ms. Stillwell testified in her deposition that the date Appellant received all items, statements, and forms required to secure final proof of loss was on October 9, 2014 when the Award was received by Appellant (CR547).2 Therefore, the 15 business day period under Section 542.056 and the 60 day time period under Section 542.058 of Chapter 542 did not begin running until October 9, 2014 and payment was then tendered six days later (Tab B, CR27‐ 29, Tab C, and CR468‐473). Tex. Ins. Code §542.056(a) and §542.058. Therefore, liability and a right to damages under Section 542.060 would not arise even if appraisal had not been invoked. Tex. Ins. Code §542.060. There is no evidence in the record that Appellee can rely on to create a genuine issue of material fact 2 This evidence was presented to the trial court by Appellant in its Reply to Plaintiff’s Amended Response to Defendant Farmers Insurance Exchange’s Motion for Summary Judgment (CR636- 638). — 19 — as to whether October 9, 2014 was the date upon which Appellant had secured final proof of loss and could accept the claim and issue payment. Upon the issuance of the Award of Umpire, Defendant tendered payment of the award seven days later (Tab B, CR27‐29, Tab C, and CR468‐473). As a matter of law, there is no Chapter 542 liability because Appellee timely paid the Award and there is no evidence in the record that Appellee can point to that creates a genuine issue of material fact as to the timeliness of payment. V. Timely Payment of the Appraisal Award and Lack of Independent Injury Precludes Extra‐Contractual Liability There can be no claim for bad faith absent a breach of the underlying insurance contract. See Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex. 1995); Davis v. Nat. Lloyds Ins. Co., 484 S.W.3d 459, 474 (Tex.App. – Houston [1st Dist.] 2015, pet. filed). Further, for conduct to evolve from a mere breach of contract to bad faith, the breach of contract has to be accompanied by an independent tort. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 17 (Tex.1994). When a plaintiff “joins claims under the Texas Insurance Code and DTPA with a bad faith claim, all asserting a wrongful denial of policy benefits, if there is no merit to the bad faith claim, there can be no liability on either statutory *20 claim.”3 Appellee moved for summary judgment on these extra‐contractual causes of action on the grounds that there was no underlying breach of the insurance contract and that there was no evidence or genuine issue of material fact as to the existence of an independent injury (CR317‐318, 508‐ 509, and 634‐635). There was no underlying breach of contract because Appellant invoked the policy’s appraisal clause, and Appellee timely paid the Award. Breshears, 155 S.W.3d at 344, et al.; (Tab B, CR27‐19, Tab C, and CR468‐473). Upon payment of the Award Appellant was no longer entitled to any benefits under the policy that could serve as a basis for damages under an extra‐ contractual theory of recovery. Without a basis for further recovery of policy benefits, Appellant’s only avenue to damages under an extra‐contractual cause of action is by establishing an independent injury. USAA Tex. Lloyds Co. v. Menchaca, ___S.W.3d ___ 2017 WL 1311752 *4‐12 (Tex. 2017). 3 Anderson v. Am. Risk. Ins. Co., Inc., 2016 WL 3438243 *7 (Tex.App.—Houston [1st Dist.] 2016, no pet.). See Tex. Mut. Ins. Co. v. Sara Care Child Care Ctr., Inc., 324 S.W.3d 305, 317 (Tex. App.—El Paso 2010, pet. denied); Spicewood Summit Office Condo. Ass'n, Inc. v. Amer. First Lloyd's Ins. Co., 287 S.W.3d 461, 468 (Tex.App.—Austin 2009, pet. denied) quoting Douglas v. State Farm Lloyds, 37 F.Supp.2d 532, 544 (S.D.Tex. 1999) (“[W]hen an insured joins claims under the Texas Insurance Code and the DTPA with a bad faith claim, all asserting a wrongful denial of policy benefits, if there is no merit to the bad faith claim, there can be no liability on either of the statutory claims.”). — 21 — There was no evidence of an independent injury in this case. The Appellant had an opportunity to present evidence of an independent injury during his deposition but confirmed that his complaint against Appellee was that he was not paid amounts owed to him under the policy (CR504). Underpayment is not an injury independent of damages under the policy. Hurst, 2017 WL 2258243 at *6. Even faced with the opportunity to develop evidence of an independent injury through Ms. Stillwell, Appellant failed to do so. Appellant also opted to attach no evidence to his responses to the multiple motions for summary judgment that would be indicative of an independent injury (CR226‐290, 513‐632). Appellant created no genuine issue of material fact as to whether he suffered an independent injury. With no independent injury and no breach of contract, the trial court properly granted summary judgment on causes of action for violations of Chapter 541, the DTPA, and the duty of good faith and fair dealing.4 4 Appellant points to two issues in his brief that he argues constitute an issue of material fact to serve as a basis for extra-contractual liability. The first is that Appellee’s file contained two letters which contained inconsistencies, one of which was sent to Appellant. Appellant Br. 17. The second is that based upon the timeline by which Appellee accepted coverage following Appellant’s reporting of the claim. Appellant Br. 17-19. To the extent Appellant argues that these issues are evidence of a violation of Chapter 542, Section IV of this brief addresses those issues. To the extent Appellant argues these issues create a genuine issue of material fact to establish a violation of Chapter 541 or the DTPA, Appellant has still not presented any evidence or created a genuine issue of material fact as to whether he sustained damages as required by Section 541.151 of the Texas Insurance Code. Tex. Ins. Code §541.151. — 22 — The Menchaca opinion was issued by the Supreme Court of Texas on April 7, 2017 between the judgment in this case and Appellant’s deadline to file his brief. Menchaca, 2017 WL 1311752 at *1. In Appellant’s brief, he argues that the Menchaca opinion clarifies that “…a breach of contract is not required for a plaintiff to recover extra‐contractual and statutory damages.” Appellant Br. 15. This interpretation of Menchaca ignores the issue of an independent injury, and ignores the opinion in Hurst issued on May 23, 2017 by Houston’s 14th District Court of Appeals. The Menchaca opinion provides five distinct but interrelated rules governing the interplay of contractual and extra‐contractual claims arising from an insurance policy. Menchaca, 2017 WL 1311752 at *4. But the Menchaca case is not an appraisal case, and the opinion notes that neither party invoked the appraisal clause “as a method for resolving this dispute.” Menchaca, 2017 WL 1311752 at n.2. Menchaca examined whether an insured can recover policy benefits for violation of Chapter 541 of the Texas Insurance Code when the insurer has complied with its duties under the policy. Menchaca, 2017 WL 1311752 at *1. The five rules espoused in Menchaca do not provide Appellant a path to recovery for extra‐contractual damages because the only rule that applies to Appellant is the independent *23 injury rule and Appellant has no evidence of an independent injury.5 The independent injury rule in Menchaca has two aspects: (1) when an insurer’s 541 violation causes an injury independent of policy benefits the insured may recover damages for the injury even if the insured is not entitled to benefits; and (2) an insurer’s violation of 541 does not permit the recovery of any damages other than policy benefits unless there is an injury independent of the policy benefits. Id at *11. The Appellant presented no evidence to the court that he had suffered an injury independent of the insurance contract, and in fact confirmed that his complaint was that he was not paid the amounts owed under the policy (CR504). The Hurst court applied the Menchaca opinion to an appraisal case and held that: 5 The first rule (an insured cannot recover policy benefits for a statutory violation if there is no right to the benefits under the policy) does not apply because there is clearly a right to policy benefits in this case. Menchaca, 2017 WL 1311752 at *4‐5. The second rule (an insured who established a right to recover benefits under a policy can recover those benefits as actual damages under Chapter 541 if the Chapter 541 violation causes the loss of a benefit) does not apply because the timely payment of the appraisal award means no benefits were lost. Menchaca, 2017 WL 1311752 at *7‐9. The third rule (an insured can recover policy benefits even if the policy does not provide for them if the conduct of the insurer caused the insured to lose the contractual right to those benefits) does not apply because the insured is entitled to benefits under the policy and received them through the appraisal award. Menchaca, 2017 WL 1311752 at *9‐10. The fifth rule (that no damages can be recovered for a statutory violation unless the insured proves a right to benefits under the policy or an independent injury) does not apply because all benefits have been tendered per the appraisal award and there is no independent injury. Menchaca, 2017 WL 1311752 at *12. — 24 — 1. to recover damages beyond policy benefits the bad faith or statutory violation must cause an independent injury; 2. that an independent injury is rare and no Texas court has encountered one; and 3. that timely tender of an appraisal award afforded the insured all policy benefits he was entitled to and that there was no independent injury that would entitle the insured to recover under extra contractual theories. Hurst, 2017 WL 2258243 at 6. The Hurst opinion noted that Hurst’s own testimony was that his dispute with the insurer was that the initial payment was too low. Id. The substance of that testimony is identical to that of Appellant (CR504). The Hurst Court’s application of Menchaca is correct and applies to this case because both Hurst and Appellant are owed no policy benefits that could serve as a measure of damages under the Texas Insurance Code, DTPA, or duty of good faith and fair dealing, and neither Hurst nor Appellant had any evidence of an independent injury that would serve as a basis for extra‐ contractual damages. Therefore, there is no genuine issue of material fact as to whether Appellant is owed policy benefits or suffered an independent injury. The trial court was correct in granting summary judgment on the causes of *25 action pled under Chapter 541, the DTPA, and the common law duty of good faith and fair dealing. CONCLUSION AND PRAYER WHEREFORE, Appellee Farmers Insurance Exchange prays that this Court affirm the District Court’s granting of summary judgment on all causes of action asserted by Appellant. Respectfully submitted, s/ Scot G. Doyen Scot G. Doyen Texas Bar No. 00792982 sdoyen@ds‐lawyers.com Alasdair Roberts Texas Bar No. 24068541 aroberts@ds‐lawyers.com DOYEN SEBESTA, LTD., L.L.P. 450 Gears Road, Suite 350 Houston, Texas 77067 Telephone: 713‐580‐8900 Facsimile: 713‐580‐8910 ATTORNEYS FOR DEFENDANT FARMERS INSURANCE EXCHANGE — 26 — CERTIFICATE OF COMPLIANCE I hereby certify that the number of words contained in this Appellee’s Brief is 5914. s/ Scot G. Doyen Scot G. Doyen CERTIFICATE OF SERVICE I hereby certify that on July 5, 2017, true and correct copies of the above and foregoing instrument have been e‐served on the following counsel for Appellant Mahmoud Abdalla: Chris Schleiffer Scott Hunziker The Voss Law Firm, P.C. 26619 Interstate 45 South The Woodlands, Texas 77380 (713) 861‐0015 (713) 861‐0021 (Facsimile) scott@vosslawfirm.com s/ Scot G. Doyen Scot G. Doyen — 4079 — TAB A 153-269720-13 . . FARMERS' 438 Farmers/Mahmoud 8000290825 — 4080 — TAB A 153-269720-13 439 Farmers/Mahmoud 8000290825 — 4081 — TAB A 153-269720-13 440 Farmers/Mahmoud 8000290825 — 4082 — TAB A 153-269720-13 441 Farmers/Mahmoud 8000290825 TAB B !S?-).t,q7~() ·13 Cause No. 153-269926-13 • MAHMOUD ABALLA, § IN THE DISTRICT COURT § § V. § TARRANT COUNTY, TEXAS § FARMERS INSURANCE § EXCHANGE § 153'd JUDICIAL DISTRICT AW ARD OF UMPIRE Previously, the parties invoked the appraisal process in this matter. Because the parties, through their designated appraisers, were unable to agree on an individual to serve as Umpire, the Court duly appointed the undersigned to serve as Umpire in accordance with the applicable I policy of insurance affecting the damaged property. The appraisers have completed their assignments of appraisal. Thus, this Award of Umpire is submitted to the Court for filing and to conclude this process. This appraisal process resulted from the parties' ,vritten agreement. Attached to this Award is a document entitled "Appraisal Award" prepared by one of the duly selected appraisers, namely, Kyle P. Albright, Sr., IA, CGA, FCLS, P.O. Box 16026, Galveston, TX, 77552-6026. This appraisal is evidenced by the document attached to this award. It is the Umpire's considered opinion that the Albright appraisal of an actual cash value loss amount of $345,664.21 (three hundred forty-five thousand, six hundred sixty-four dollars and twenty-one cents) is the more sound and well supported appraisal. Accordingly, the Umpire J-~ dtC,..(,.u.,, s, .A..otf Page 1 of 2 ~bit~ 27 Court's Minute~;., Tr~n!';action # Lf.L-. - ' — 28 — , . TAB B hereby awards this sum of money to make whole the damages caused to the subject property. Awarded and signed this 8'h day of October, 2014. Charles Bleil, Umpire Page 2 of 2 *29 . . TAB B APPRAISAL AWARD Date: I0/7/2014 Re: lnsured(s): Mahmoud Abdalla Claim#: sooo29oa2s Policy#: 0604851630 Date of Loss: 2/21/2012 Location: 1000 Avenue H E, Arlington, TX 76011 We, the undersigned, pursuant to the within appointment, DO HEREBY CERTIFY that we have truly and conscientiously performed the duties assigned determined and do hereby award as the Actual Cash Value and the Replacement Cost Value of said property. Item: Dwelling: RCV - $ 340,688.03 ACV - $ 324,496.27 ltem:APS RCV- $ -0- ACV- $ -0- Item: Contents: RCV - $ 23,314.19 ACV- $ 21,167.94 Item: ALE{LOSS OF USE: $ -0- TOTAL AMOUNT OF LOSS $ 364,002.22 AMOUNT OF DEPRECIATION $ 18,338.01 ACTUAL CASH VALUE OF LOSS $ 345,664.21 SPECIAL PROVISIONS: 1. Subject to policy provisions and deductible 2. Less any previous payments per this claim 3. Policy coverage to be addressed by others 4. The above amount(s} are all inclusive as relate to this claim APPRAISER- --1.4f}~.t.¥tf}/6,LL-l='---:::;;:..~__,...,..,,.-,,_____,DATE iv - ? -:<o If ~llJ~,,,;f{l'~ UMPIRE- -~------r;W ____·__ D.ATE/0- 8-c(}//j, TAB C 153-269720-13 ~ Toll Free: (!100) ·135· 776-1 ~ FARMERS Send all correspondence to: Email: myclaim('! farmersinsurann·.com INSURANCE National Document Center P.O. Box 26!1994 Oklahoma City, OK 73126-!1991 Occober 15, 2014 Fax: (!177) 217 -1389 ATIN SCOTI HUNZIKER VOSS LAW FRIM 26619 INTERSTATE 45 SPRING TX 77380 RE: Insured: Mahmoud Abdalla and Nancy Abdalla Claim Unic Number: 800029082 5-1-2 Policy Number: 0604851630 Loss Dace: 02/21/2012 Lornrion of Loss: 1000 Ave H E, Arlington, TX Subject: Serdemmt Notice Dear Mr. Hunziker: We appreciate the opporcunicy to serve our insured's insurance needs and we are here co help our customer through the claims process as efficiently as possible. Enclosed, please find actual cash value payment for your client's building and the replacement cosc value payment on their business personal property cl.Lim based on the signed appraisal award, less che applicable policy deductible and prior payments. I have attached a copy of the signed award for your records. As pare of the appraisal process our appraiser, Kyle Albright and your client's appraiser Max Judge submitted their evaluations of your client's damages co the selected umpire, Judge Charles Bleil. The award was signed by Mr. Albright on October 7, 2014 and by Mr. Bleil on October 8, 2014. Here is an explanation of the secclemenc: Line of Coverage Building Business Personal Property Replacement Cost $340,688.03 $23,314.19 Less: Depreciation Sl6,l91.76 SN/A Actual Cash Value $324,496.27 SN/A Less: Policy Deductible S l,000.00 SN/A Setrh:ment Amount $323,196.27 $23,314.19 Less: Prior Payments $247,370.46 Sl7,458.83 Amount $76, 125.81 $5,855.98 The customer"s policy has actual cash value and replacement cosc value settlement options for cheir business personal property claim. Actual cash value is an amount less chan che full replacement cost of the damaged property, and reflects a depreciated value based on the age and condition of che items at che cime of loss relative V624VRN4 Farmers/Mahmoud 8000290825 3479 468 TAB C 153-269720-13 co che useful life of the property. We have elected co issue payment of chis cime for che full replacement cost of your client's businesss personal property claim per che appraisal award without deduction for depreciation. The policy provides actual cash value coverage for your client's building loss. Actual cash value is che replacement cosc of che damages less any applicable depreciation. The claim was seeded ac replacement cost less che appropriate deductions for depreciation based upon signed appraisal award. The policy requires I include the mortgage company as a payee on their building loss. li> minimizt: delays in repairs, we suggest our cuscomt:r concact their mortgage company co find out their requirements for endorsing che payment and releasing che funds. \Xie wish co inform you rhere are rime limirs as found in the Condirions language of your client'spolicy. These limirs may have bc:cn cxrcndcd by scarure in your scace. The rime period sec forth in che Conditions section is the shortest period which may apply. In regard to rime limits, chis policy has been modified by rhe TEXAS CHANGES Endorsemenr, sl987 3rd Edition which states: C. Legal Action Against Us l. The Legal Action Against Us Property Loss Condition is replaced by che following, except as provided in F.2. below: LEGAL ACTION AGAINST US No one may bring a legal action against us under chis policy unless: a. There has been full compliance with all of che rerms of chis insurance; and b. The action is brought within 2 years and one day after the dace on which che direct physical loss or damage occurred. Please note, on occasion, t:ndorsements are updated with newt:r t:dicions. \X'e encourage you to reference your client's policy and included endorst:mt:nts for any updart:s. By tht: writing of this letter, we do not waivc any of rhc ccrms, rnn<licions. or provisions of your clienr's insurance policy. all of which arc cxprcssly retaml·d and rcscrve<l. Any ,Ktivicy on our parry dot:s nor consciruce a waivt:r of our righcs. If you have any quescions about the claim, please do noc hesicace co contact me direccly ac my primary phone numbi:r (512) 619-24 75. Although not my main office numbt:r, in case of immediate need an alternative number for our claims office is (866) 850-6372. Thank you. Sincerely, Truck Insurance Exchange fUtUt~ ~ Tonya Stilwell Senior Commercial Property General Adjuster (512)619-2475 V624VRN4 Farmers/Mahmoud 8000290825 3480 469 — 3481 — TAB C 153-269720-13 CC: CARNAHAN AND THOMAS Check(s): 1607496704, 1607497 616 Enclosure(s): Gen Supporting Documents V624VRN4 Farmers/Mahmoud 8000290825 470 TAB C 153-269720-13 10/09/2014 12:52 817-989-2176 FEDE>< OFFICE 0807 PAGE 04 APPRAISAL AWARD D:ite: 1on12014 Re: lnsured(s}: Mahmoud Abdalla Claim#-; sooo29oe:i~ Policy#: 060485t6J() Date of Loss: 2/2.112012 Location: 1000 Avenue HE, Arlington, TX 76011 We, tha undersigned, pursuant to the within appelntment, 00 HEREBY CERTIFY that we have truly and· consciontlcusly perform,d the duties assigned determined and dn hereby award as thl? Actual Cash Value and the Replacement Cost Value of said propenv. Item: Dwelling: RCV- $ 340,688.03 ACV- S 324,496.27 Item:~ RCV- s -0- ACV· s -0- Item: contents: RCV- $ 23,314.19 A.CV- $ 21,167.94 Item: AbE/LOSS OF USE: s ·O· TOTAL AMOUNT OF LOSS $ 364,002.22 AMOUNT OF OEPREOATION s 18,338.01 ~,cruAt. CASH VALUE OF LOSS $ 345,664.21 S?ECIAL PROVIS!CNS: l Subject to pollcy prOVlSiQns and deduc:lble 2. Less any previous pavments per this claim 3. Policy coverage to be addressed by others 4. The above amount(s) are all Inclusive as relate to this claim .........""'?.". . _...._J~.~----,,_, . . .-.,. .,. .,.,. ,_____DATE _.~ ·? -.'!loll ~ tNJ.,,:,;tJ,·r... APPRAISER- Mlhb'!"". 11J UMPIRE·. DATE Farmers/Mahmoud 8000290825 3482 471 — 3483 — TAB C 153-269720-13 FEDEX OFFICE 0807 PAGE 02 13/09/2014 12:52 817-589-2176 ~ 1 - -~~' \j~ Cause No. 153-2619:20 B . 11?. ·~· _, I·• l ..., ;;, ~ ,-:,7"'- ~- I 3 MAH~Ot:D ABALLA. § rN THE DrSTRlCT COURT § s v. § TAR.RANTCOUNTY,TEXA.S § F.~V.SRS fNSURA!'!CE § EXCHA'.'JOE § I5/ 11 JUDrClAL DISTRlCT AWARD OF UMPLT{E Previously, the parties invoked the appraisal process in th.is matter. Because the parties, through their designated appraisers, were unable to agree on an lndividua.l to serve as Umpire, the / Court duly appointed the undersigned to serve as Umpire in accordance with the applicable poiicy of insurance affecting the damaged property. The appraisers have completed their assignments of appnisal. Thus. this Award of Umpire is submitted to the Court for filing and to conclude this proces5. This appraisal process resulted from the pa:ties · v.Tittcn agreement Attached to th:s A ward is a documen: ~'I1ti~:ed "Appraisal Award" prepared by one of the duly selected appra:sers. namely, Kyie P. Albrig.ilt, Sr., IA, CGA. FCLS. P.O. Box 16026, Gaiveston. TX. 77552-6026. Tilis appraisal is evidenced by the document attached to th.is award. I~ is :he Umpire's considered opinion that the Albright appraisal of an actual cash value loss amount of $345,664.21 (three bundred forty-five thousand, s.x hundred sixty-four dollars and twenty-one cents) is the more sound and well supported appmi.sal. Accordingly, the Umpire J-,:ld f~ I, ~o,f Page 1 of 2 01,-JJ.+"{5 ---- ·--·- -·-·--···-···-----. Farmers/Mahmoud 8000290825 472 — 3464 — TAB C 153-269720-13 10/0S/2814 12:52 817-989-2176 FEDEX OFFICE 0807 PAGE 03 hereby awards this sum of money to make whole the damages ,:auscd to the subject property. Awarded and signed this 81~ day of October, 2014. Charles BJeil, Umpire Page 2 of 2 Farmers/Mahmoud 6000290625 473