Appeal from the 350th District Court Taylor County, Texas
Trial Court Cause No. 11018-D
consists of: Willson, J., Bailey, J., and Dauphinot, S.J.
M. BAILEY, JUSTICE
interlocutory appeal involves a claim of governmental
immunity in an insurance dispute. The Texas Municipal League
Intergovernmental Risk Pool challenges the trial court's
denial of its plea to the jurisdiction. In its sole issue,
the Risk Pool, a governmental entity protected by
governmental immunity, asserts that the trial court erred by
denying its plea to the jurisdiction because its insured, the
City of Abilene, failed to plead a valid waiver of immunity
under Section 271.152 of the Texas Local Government Code.
See Tex. Loc. Gov't Code Ann. § 271.152
(West 2016). We affirm.
underlying lawsuit arises from an insurance claim for hail
damage. The Risk Pool is a self-insurance pool of local
governments. See Tex. Gov't Code Ann §
2259.031(a) (West 2016). As such, the Risk Pool is a
governmental entity that enjoys governmental immunity the
same as other political subdivisions. See Ben Bolt-Palito
Blanco Consol. Indep. Sch. Dist. v. Tex. Political
Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d
320, 324-26 (Tex. 2006). The City is a member of the Risk
City purchased real and personal property insurance to cover
over 400 structures located in Abilene. On June 12, 2014, a
wind and hailstorm moved through Abilene causing extensive
property damage. The following day, the City reported the
damage to the Risk Pool, and the Risk Pool promptly sent an
adjuster to evaluate the claim.
August 20, 2014, the City executed the original Proof of Loss
in accordance with the time limits set forth in the Property
Coverage Document.Based on the loss and damage known at the
time, the City's initial claim amounted to $1, 799,
101.51, which the Risk Pool calculated using its own
valuation of the property at the time of the loss less the
deductible. The Risk Pool promptly paid that amount.
parties continued to assess the damage over the course of two
years, and the Risk Pool's adjuster submitted
supplemental reports regarding damage that was not included
in the original estimate. The parties do not dispute that the
Risk Pool made supplemental payments to the City in April
2015, February 2016, and March 2016. Furthermore, it is
undisputed that as of June 2016 the Risk Pool had paid the
City a total of $6, 948, 132.78 for damages caused by the
13, 2016, the City submitted an additional Proof of Loss for
a significantly higher amount than it had previously
reported. In the subsequent Proof of Loss, the City claimed
that its damages less the deductible and prior payments
amounted to $19, 960, 422.44. The City subsequently requested
a 180-day extension to invoke the appraisal provision in the
Property Coverage Document. The Risk Pool granted the City an
extension on August 15, 2016.
August 26, 2016, the City demanded an appraisal of the damage
pursuant to the procedures set out in the Property Coverage
Document. The Risk Pool declined to participate in
an appraisal because discussions were still ongoing between
the parties. Accordingly, the Risk Pool asserted that an
appraisal was not warranted because there was a lack of a
disagreement regarding the "amount of the loss."
multiple failed attempts to resolve the dispute without court
intervention, the City filed the underlying lawsuit asserting
a claim for breach of contract against the Risk Pool. The
City alleged that the Risk Pool failed to properly
investigate and evaluate the damage caused by the storm.
City subsequently filed an amended petition that expanded
upon its original allegations. In the amended petition, the
City sought damages exclusively under Section 271.153 of the
Texas Local Government Code for its cause of action for
breach of contract. Additionally, the City sought to compel
the Risk Pool to participate in the appraisal process in
accordance with the Property Coverage Document to determine
the amount of the City's damages.
the City filed a verified motion to compel appraisal and
abate the case pending completion of the appraisal. The Risk
Pool objected to the City's motion on the basis that the
Risk Pool's governmental immunity deprived the trial
court of subject-matter jurisdiction to order an appraisal.
The Risk Pool also argued that, even if the trial court had
jurisdiction, the City failed to comply with the contractual
conditions precedent to invoke the appraisal right.
Risk Pool also filed an amended partial plea to the
jurisdiction in response to the City's amended petition.
In the amended partial plea, the Risk Pool asserted that
Section 271.152 of the Texas Local Government Code did not
waive immunity for a claim for specific performance. The Risk
Pool also challenged the sufficiency of the City's
jurisdictional pleadings. ...