NATIONAL SECURITY FIRE & CASUALTY COMPANY, ACTION CLAIM SERVICE, INC. AND AARON TIMMINS, Appellants
OZIER HURST, Appellee
Appeal from the 56th District Court Galveston County, Texas
Trial Court Cause No. 10-CV-2657
consists of Justices Busby, Donovan, and Wise.
Security Fire & Casualty Company, Action Claim Service,
Inc., and Aaron Timmins (collectively "appellants")
bring this appeal from a judgment entered in accordance with
the jury's verdict in favor of Ozier Hurst,
National's insured. For the reasons stated below, we
reverse and render.
with the initial estimate and payment, homeowner Ozier Hurst
sued his insurer, National Security Fire & Casualty
Company, the adjusting firm, Action Claim Services, Inc., and
the independent adjuster, Aaron Timmins, for contractual and
extra-contractual claims arising from wind-related damages
sustained by his home during Hurricane Ike . Six hundred and
seventy days after the hurricane, Hurst submitted a damage
claim to National. National then assigned the claim to
Action, who in turn dispatched Timmins to assess the damage
done to Hurst's house. In accordance with Timmins'
appraisal, National paid Hurst $3, 524.56 (accounting for the
$1, 000 policy deductible), which Hurst accepted. Although
Hurst cashed the check, he did not use any of the money to
repair his property, nor did he request re-inspection or
inspection of additional property. Hurst proceeded to file
suit on September 7, 2010.
counsel invoked the Policy's appraisal
clause on February 19, 2014. Both parties hired
appraisers. National hired Mark West and Hurst hired Shannon
Cook. West and Cook could not agree on the amount of
Hurst's loss. Furthermore, they could not agree upon an
umpire to resolve the impasse, so the MDL Court was requested
to appoint one.
Court appointed Judge Mark Davidson as umpire and on
September 25, 2014, he issued Hurst an award of $7, 166.36.
On October 25, 2014, National issued a check to Hurst and his
counsel for $3, 641.80 representing the difference between
the amount of the umpire's award and the amount
originally paid to Hurst for his claim. Hurst did not move to
set aside the award. Hurst never returned nor cashed
National's check but continued pursuing the underlying
was held and the jury found in favor of Hurst. The jury found
National liable for breach of contract and awarded $3, 641.80
as damages. The jury determined September 25, 2014, as the
date National secured final proof of loss. The jury found
National, Action, and Timmins engaged in an unfair or
deceptive act or practice that caused damages to Hurst by
failing to attempt in good faith to effectuate a prompt,
fair, and equitable settlement of a claim when the liability
under the insurance policy had become reasonably
clear. Further, the jury found Action and Timmins
engaged in an unfair or deceptive act or practice that caused
damages to Hurst by refusing to pay a claim without
conducting a reasonable investigation. The jury assessed
$41, 396.71 as damages for these acts. The jury found Action
and Timmins, but not National, knowingly engaged in such
conduct and awarded $12, 500 in damages against Action and
$12, 500 in damages against Timmins. The jury found National
breached its duty of good faith and fair dealing and awarded
$25, 000 as damages.
trial court denied all post-trial motions and in accordance
with the jury's verdict signed a Final Judgment awarding
Hurst $55, 993.60 from National, $22, 731.22 from Action,
$22, 731.22 from Timmins, prejudgment interest, post judgment
interest, 18% penalty interest, court costs, $75, 000.00 in
attorney's fees for trial, $50, 000.00 in conditional
appellate fees, and $35, 000.00 in conditional fees for an
appeal to the Texas Supreme Court. The trial court allowed
the motion for new trial to be overruled by operation of law.
National now appeals on behalf of itself, Action, and
first address appellants' argument that the trial court
erred in failing to grant a directed verdict. They contend
the full and timely payment of the appraisal award precludes
as a matter of law any award for breach of contract, penalty
interest, or any statutory or common-law bad faith
motion to disregard the jury's findings and direct a
verdict should be granted when the evidence is conclusive and
one party is entitled to recover as a matter of law,
Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227
(Tex.1990), or when a legal principle precludes recovery.
JSC Neftegas-Impex v. Citibank, N.A., 365 S.W.3d
387, 396 (Tex. App.-Houston [1st Dist.] 2011, pet. denied);
see also Coastal Ref. & Mktg., Inc. v. Coastal
Offshore Ins., Ltd., No. 14-94-01140-CV, 1996 WL 87205,
at *2 (Tex. App.-Houston [14th Dist.] Feb. 29, 1996, no writ)
(not designated for publication). To the extent that such a
ruling is based on a question of law, it is reviewed de novo.
See In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994)
("[Q]uestions of law are always subject to de novo
review."); Elliott v. Whitten, No.
01-02-00065-CV, 2004 WL 2115420, at *3 (Tex. App.-Houston
[1st Dist.] September 23, 2004, pet. denied) (mem. op.).