IN RE UNITED SERVICES AUTOMOBILE ASSOCIATION, Relator
Proceeding on Petition for Writ of Mandamus
consists of Justices Keyes, Huddle, and Lloyd.
underlying case, the trial court has twice entered an order
granting a new trial-once in 2013 and again in 2016. In a
published opinion, we granted mandamus relief and vacated the
2013 new trial order, see In re United Servs. Auto.
Ass'n, 446 S.W.3d 162, 166 (Tex. App.-Houston [1st
Dist.] 2014, orig. proceeding), mand. denied, 487
S.W.3d 170 (Tex. 2016), holding that the trial court's
reasons for granting a new trial were unsupported by the
record and improper. Yet the trial court cited in its 2016
new trial order the same reasons for granting another new
trial as were articulated in the 2013 order.
opinion in the earlier mandamus proceeding analyzed the
merits of the 2013 order, and it held that none of the
reasons articulated justified a new trial and that the trial
court abused its discretion by entering the order. It became
the law of the case, which the trial court was not free to
disregard on remand, and it bars relitigation of the same
issues in this subsequent proceeding. Accordingly, we hold
that the law of the case doctrine applies and bars the trial
court from granting a new trial based on reasons we
previously rejected. We conditionally grant mandamus relief
and direct the trial court to vacate its 2016 new trial order
and enter judgment on the jury's verdict.
A. The Bents' insurance policy
2005, Mark and Stacey Bent bought a home in the City of Piney
Point for $1 million. The Bents improved the home, and on
September 5, 2008, an appraiser estimated its value at $1.6
Bents purchased a homeowner's policy from USAA. The
policy covered losses up to $1.34 million, but excluded
losses caused by mold, microorganisms, or operation of
ordinances or other law. One provision central to this
dispute is the "loss payment" provision, which
established a 5-day deadline for payment of claims in certain
If we notify you that we will pay your claim, or part of your
claim, we must pay within 5 business days after we notify
you. If payment of your claim or part of your claim requires
the performance of an act by you, we must pay within 5
business days after the date you perform the act.
longer deadline applied to claims resulting from weather or
major natural disasters: if a claim resulted "from a
weather related catastrophe or a major natural disaster, each
claim handling deadline . . . is extended for an additional
September 13, 2008, Hurricane Ike damaged the home. Stacey
reported a claim to USAA, which assigned an adjuster to
investigate. After visiting the property, the adjuster
evaluated the damages at approximately $7, 500, which he
later revised upwards to $14, 302.33. USAA subtracted the
Bents' deductible and mailed the Bents a letter approving
their claim. On the same day, USAA issued a check for $1,
162.33 and marked the claim closed. According to Stacey, the
cost of removing fallen trees was not included in this
initial payment because the adjuster claimed those costs were
December 2008, the Bents obtained a $500, 000 home equity
loan. At that time, they both acknowledged in writing that
the home had a fair market value of $1.6 million and that
they had "no knowledge of any condition, proceeding,
defect, casualty or any other matter now or potentially
existing that would affect the [fair market value]."
The April 2009 flood
April 2009, the home was damaged by a flood, and Stacey
reported the claim. While mitigating the flood damage,
workers discovered mold in the walls. Stacey reported the
mold to USAA, and USAA's adjusters informed the Bents
that mold damage was not covered. The Bents signed a proof of
loss stating that the flood caused an estimated $93, 288.27
in further damages to the home. The Bents took the position
at trial, however, that at least some of the mold was
attributable to leaks in the roof caused by the hurricane
rather than the flood, which USAA had "missed"
during its original inspection.
the flood, the Bents discovered additional damage to the
roof, not included in USAA's initial damage appraisal,
which they attributed to Hurricane Ike and reported to USAA.
In May 2009, USAA conducted an inspection at which Stacey and
a contractor hired by the Bents were present. USAA found
water damage to the roof and interior of the house beyond
that documented in the first inspection after the hurricane,
hail damage to the roof, and damage from foot traffic.
USAA's inspector determined that the roof's shingles
were no longer available and therefore recommended a roof
replacement instead of repair. At the same time, Stacey and
the inspector discussed the cost of removing the fallen
trees, and the inspector stated that the homeowner's
policy covered the costs of removing trees from the driveway
if the Bents could produce proper documentation. Accordingly,
in June 2009, USAA revised the total estimate of the damages
to the home attributable to Ike, notified the Bents that it
would pay an additional amount, and issued a further payment
on the same day.
The Bents' pursuit of their insurance
2009, after another inspection at which Stacey and a
contractor were present, USAA further revised the total
estimate of the damages to the home attributable to Ike to
$98, 079.62. It notified the Bents of this estimate and made
a corresponding payment. Also in July 2009, Stacey obtained
an estimate of $162, 174.85 for the total cost of repairs
attributable to Ike or the flood.
October 2009, the Bents submitted another estimate of
additional damages, including items not previously identified
during USAA's inspections of the home. Because the
estimate was not fully itemized, USAA requested additional
information and informed the Bents through a series of phone
calls and written correspondence that it could not make
further payments until it received additional information.
November 2009, USAA conducted a further inspection, again
with Stacey and a contractor present, at which USAA's
inspector explained the additional detail that USAA required.
The Bents did not send further information until December
2009, when an attorney acting on their behalf wrote to USAA
requesting that it direct all further correspondence to him.
USAA corresponded with that attorney until he withdrew from
representing the Bents, then corresponded with the Bents
directly and with another attorney throughout late 2009 and
the first half of 2010, but received no additional
information supporting the Bents' claims under the
December 2009, USAA invoked the appraisal process referenced
in the homeowner's policy. The Bents' attorney denied
USAA's request to begin the appraisal process, arguing
that USAA had breached the homeowner's policy.
Piney Point Ordinances
Hurricane Ike struck, Stacey met at least 10 times with
Annette Arriaga, the City of Piney Point's director of
planning, development, and permits. Arriaga also serves as
the secretary for the Planning and Zoning Commission and the
Board of Adjustments, which oversees variances to the
2010, Arriaga wrote the Bents, informing them that the
city's estimate of damages to their home exceeded both 50
percent of the home's value and the amount of $300, 000.
Repair costs of that magnitude triggered City of Piney Point
ordinances requiring that any repairs bring the home in
compliance with the city's building codes. To make their
home comply with the building codes would have required the
Bents to raise the home's foundation. Arriaga wrote that
she was "apprehensive about the [overall] health and
welfare of the structure, " and, "I would recommend
that the structure be replaced, re-built."
testified that she has no discretion when notifying
homeowners of potential code violations, but merely informs
them of the relevant ordinances. She and others in her office
review repair or improvement estimates provided by homeowners
and determine whether the proposed costs exceed the greater
of $150, 000 or 50% of the value of all improvements on the
lot. In the case of the Bents' home, the applicable
threshold was $194, 535 in 2009 and $150, 000 in 2010. Thus,
if the Bents had repaired their hurricane damages in late
2008 and then repaired flood damages in 2009, neither alone
would have triggered application of the city's
ordinances. Arriaga testified that she informed Stacey that
the Bents could seek a variance, but Stacey never asked a
contractor to visit Arriaga with her regarding any variances
or negotiations with the city, nor did the Bents request a
variance of the city's ordinances.
USAA's August 2010 letter
August 2010, USAA sent a letter to the Bents' attorney.
The letter presented a "revised dwelling estimate,
" which it asked the attorney to "review . . . with
Mr. and Mrs. Bent." USAA wrote that it had revised the
total estimate of the damages to the home attributable to Ike
to $136, 539.41. Of that amount, after accounting for
depreciation and the Bents' deductible, USAA stated that
it was "prepared to send an additional actual cash value
payment" in the amount of $27, 416.86, which would have
brought the total payments made to $89, 123.64. The August
2010 letter described the latter amount as the "actual
cash value settlement" and stated, "The Loss
Settlement Provision stipulates that the loss to your covered
property be settled at actual cash value."
to USAA's claims record and the testimony of its
corporate representative, Leesa Tomsett, this amount was not
payable until the Bents took action to accept it as a
settlement of their claim. Therefore, unlike each of the
prior payments, USAA did not issue a check at the time it
sent the August 2010 letter. The Bents did not respond to
this letter, but USAA nonetheless ...