Chief Justice Gray, Justice Davis, and Justice Scoggins
GRAY Chief Justice
Mutual Insurance Company brings this petition for writ of
mandamus to compel the trial court to vacate its order
denying GuideOne's Motion to Compel Appraisal and to
direct the trial court to order the appraisal to proceed
under the procedure authorized by contract. Because the trial
court abused its discretion in denying the motion to compel,
GuideOne's petition for writ of mandamus is conditionally
proceeding arises from a dispute between an insurance
company, GuideOne, and its insured, D.S. Patel d/b/a Western
Motel, regarding payment for claimed property damage to the
motel from a storm. GuideOne made two payments to Patel for
the damages, but Patel contends the payments are inadequate.
After Patel filed suit against GuideOne and mediation was
unsuccessful, GuideOne invoked its right to appraisal
pursuant to the insurance contract. GuideOne filed a motion
to compel appraisal after Patel refused to voluntarily
proceed with the appraisal process. After a hearing, the
trial court denied the motion to compel appraisal.
sole issue, GuideOne argues the trial court abused its
discretion by failing to enforce a contractual appraisal
clause in the parties' insurance contract. Appraisal
clauses, commonly found in homeowners, automobile, and
property policies in Texas, provide a means to resolve
disputes about the amount of loss for a covered claim. In
re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d
404, 406-07 (Tex. 2011); State Farm Lloyds v.
Johnson, 290 S.W.3d 886, 888 (Tex. 2009). These clauses
are generally enforceable, absent illegality or waiver.
In re Universal Underwriters, 345 S.W.3d at 407.
courts have no discretion to ignore a valid appraisal clause.
State Farm Lloyds v. Johnson, 290 S.W.3d 886, 888
(Tex. 2009). A trial court abuses its discretion in failing
to enforce a valid appraisal clause and such abuse of
discretion cannot be remedied by appeal. See In re
Universal Underwriters of Tex. Ins. Co., 345 S.W.3d 404,
412 (Tex. 2011); In re Allstate Cnty. Mut. Ins. Co.,
85 S.W.3d 193, 195-96 (Tex. 2002).
did not argue at the trial court, nor does he argue here,
that the appraisal clause is illegal. Instead, Patel argued
that GuideOne waived the ability to assert the use of the
clause. GuideOne's argument before us is two-fold: first,
GuideOne contends it did not waive the appraisal clause by
delaying the invocation of it; and second, GuideOne argues it
could not waive the appraisal clause because the insurance
contract included a "non-waiver clause." Because it
is dispositive of this case, we review GuideOne's second
insurance contract between the parties contains the following
Waiver or Change of Provisions.
This policy contains all of the agreements between you and us
concerning the insurance afforded. The first Named Insured
shown in the Declarations is authorized to make changes in