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Housing Authority of City of Alice v. Texas Municipal League Joint Self-Insurance Fund

Court of Appeals of Texas, Fourth District, San Antonio

March 29, 2017

HOUSING AUTHORITY OF THE CITY OF ALICE, Appellant
v.
TEXAS MUNICIPAL LEAGUE JOINT SELF-INSURANCE FUND a/k/a Texas Municipal League Intergovernmental Risk Pool, Appellee

         From the 79th Judicial District Court, Jim Wells County, Texas Trial Court No. 15-03-54404-CV Honorable Oscar J. Hale Jr., Judge Presiding[1]

          Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice, Irene Rios, Justice.

          MEMORANDUM OPINION

          Patricia O. Alvarez, Justice.

         In a dispute over the amount owed for storm damage to its properties, the insured, Appellant Housing Authority of the City of Alice, sued its insurer, Appellee Texas Municipal League Joint Self-Insurance Fund. After substantial discovery, the trial court asked the parties to submit motions for partial summary judgment on the question of whether the Authority has a right to an appraisal. The trial court granted the Fund's motion for partial summary judgment, and the Authority appealed. Because the order granting the Fund's motion for partial summary judgment was not a final, appealable order, we dismiss this appeal for want of jurisdiction.

         Background

         The Housing Authority of the City of Alice owns more than 120 properties, primarily dwellings, in the City of Alice.

         A. Insurance Policy[2]

         In 2013, the Authority purchased an insurance policy from the Fund to insure against "the risk of direct physical loss of or damage to [the Authority's] property." In case of a loss, the policy's Property Coverage Document, General Conditions, paragraph IV.D indicates the Authority is to "render a signed and sworn proof of loss to the Fund . . . within 60 days." If the Authority and the Fund disagree on the amount of loss, paragraph IV.E establishes an appraisal process to determine the amount of loss.

         B. Storm, Damage Reports, Disputed Proof of Loss

         On May 27, 2014, a storm damaged approximately 120 of the Authority's properties. The next day, the Authority reported the damage to the Fund by a telephone call. Two days after the storm, the Authority sent a signed, written report of loss to the Fund by facsimile.

         The Fund retained an independent adjuster who inspected the Authority's properties and reported his findings. Based on the findings, the Fund determined the Authority's reimbursable amount of loss, less the applicable deductible, was $429, 143.72. The Fund tendered payment to the Authority by check; with the check, the Fund sent its proposed proof of loss for the Authority to sign.

         The Authority did not sign the Fund's proposed proof of loss. Instead, the Authority disputed the proposed amount of loss and asserted its actual losses exceeded $3 million. To support its claim, the Authority took steps to invoke the appraisal process described in the policy.[3]

         C. Authority's Suit, Trial Court's Request

         When the Fund resisted invoking the appraisal process, the Authority sued the Fund for breach of contract. The Authority alleged the Fund failed to pay the amount of loss the Authority claims it is entitled to based on the Authority's appraisal. In turn, the Fund asserted the Authority had no right to invoke the appraisal process. The Fund argued a timely-filed, sworn proof of loss is an appraisal process prerequisite, and the Authority did not timely submit a compliant sworn proof of loss.

         The parties argued their positions on the Authority's right to an appraisal to the trial court. The trial court opined that "I think the issue I'm hearing is whether or not there's a right to an appraisal. . . . I'd like to get the briefing on that and make a ruling and then we'll go from there." The court reiterated that it would "make a ruling on that and then we'll see where we need to go from there."

         D. Motions for Summary Judgment, Trial ...


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