Appeal from the 215th District Court Harris County, Texas
Trial Court Cause No. 2014-53921
consists of Justices Boyce, Busby, and Wise.
Brett Busby Justice
case concerns whether an insurer waived appraisal of a
homeowner's insurance claim by denying it and, if not,
whether an appraisal award supported summary judgment against
the owner's contractual and extra-contractual claims.
Appellant Ron Pounds purchased a home insurance policy from
appellee Liberty Lloyds of Texas Insurance Company. Pounds
submitted a claim for storm damage, which Liberty Lloyds
denied on the ground that "no storm related damages were
found." Pounds then sued Liberty Lloyds. When the
parties were unable to resolve their dispute at mediation,
Liberty Lloyds invoked its right to an appraisal under the
policy. Pounds resisted appraisal, and the trial court
granted Liberty Lloyds's motion to compel. The appraisers
eventually agreed that Pounds's home had experienced
covered damage as a result of the storm and agreed on the
amount of the loss. Liberty Lloyds moved for summary judgment
on Pounds's claims, which the trial court granted.
raises three issues on appeal. In his first issue, he argues
that the trial court erred in compelling appraisal because
Liberty Lloyds waived its right to appraisal by initially
denying his claim. We overrule this issue because (a) Pounds
failed to establish that Liberty Lloyds's denial,
standing alone, was a knowing waiver of the right to an
appraisal; and (b) Pounds failed to establish that he was
prejudiced as a result of Liberty Lloyds' initial denial
of his claim.
argues in his second and third issues that the trial court
erred in granting Liberty Lloyds's motion for summary
judgment on his breach-of-contract claim and
extra-contractual claims. We overrule both issues because
Liberty Lloyds established as a matter of law that it did not
breach the insurance contract, which, under the facts of this
case, also defeats Pounds's extra-contractual claims. We
therefore affirm the trial court's final judgment.
facts in this case are undisputed. Pounds purchased a home
insurance policy from Liberty Lloyds. The policy covered
damage to property caused by wind and/or hail. The policy
provided that Liberty Lloyds would "pay no more than the
actual cash value of the damage until actual repair or
replacement is complete." The policy also set the
deductible for damage caused by wind or hail at $9, 620.00.
policy included an appraisal provision:
If you and we fail to agree on the amount of loss, either may
demand an appraisal of the loss. In this event, each party
will choose a competent and impartial appraiser within 20
days after receiving a written request from the other. The
two appraisers will choose an umpire. If they cannot agree
upon an umpire within 15 days, you or we may request that the
choice be made by a judge of a court of record in the state
where the "residence premises" is located. The
appraisers will separately set the amount of loss. If the
appraisers submit a written report of an agreement to us, the
amount agreed upon will be the amount of loss. If they fail
to agree, they will submit their differences to the umpire. A
decision agreed to by any two will set the amount of loss. .
policy did not set a time limit for invoking appraisal. The
policy also provided that "a waiver or change of a
provision of this policy must be in writing by [Liberty
Lloyds] to be valid."
August 8, 2014, Pounds made a claim under the policy,
alleging that a wind and hail storm had caused damage to his
property. An adjuster inspected the property on August 14,
2014, and determined that there was no storm-related damage.
Liberty Lloyds sent a letter to Pounds two days later denying
the claim because "no storm related damages were
found." The letter concluded by informing Pounds that if
he had any questions or concerns about his claim, he could
contact Liberty Lloyds's claims representative by phone
responded to the denial letter by suing Liberty Lloyds.
Pounds asserted claims for breach of contract and violations
of the Prompt Payment of Claims statute, the Texas Insurance
Code, and the Deceptive Trade Practices Act. Liberty Lloyds
answered, stating (among other things) that it did not waive,
and expressly reserved, its right under the policy to demand
an appraisal to determine the actual cash value of
Pounds's property damage claims. In a November 17, 2014
letter, Liberty Lloyds informed Pounds that "nothing
herein should be ...