Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

National Security Fire & Casualty Co. v. Hurst

Court of Appeals of Texas, Fourteenth District

May 23, 2017

NATIONAL SECURITY FIRE & CASUALTY COMPANY, ACTION CLAIM SERVICE, INC. AND AARON TIMMINS, Appellants
v.
OZIER HURST, Appellee

         On Appeal from the 56th District Court Galveston County, Texas Trial Court Cause No. 10-CV-2657

          Panel consists of Justices Busby, Donovan, and Wise.

          OPINION

          John Donovan Justice.

         National 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.

         Background

         Dissatisfied 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.

         Hurst counsel invoked the Policy's appraisal clause[1] 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.

         The MDL 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 litigation.

         Trial 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.[2] 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.[3] 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.

         The 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 Timmins.[4]

         Analysis and Discussion

         We 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 violations.

         Standard of Review

         A 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.).

         Appraisal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.