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.

Texas Windstorm Insurance Association v. Park

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 25, 2019

TEXAS WINDSTORM INSURANCE ASSOCIATION, Appellant,
v.
JOSEPH PARK, Appellee.

          On appeal from the 156th District Court of Aransas County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Hinojosa.

          MEMORANDUM OPINION

          Dori Contreras, Chief Justice.

         This permissive interlocutory appeal concerns a first-party insurance suit filed by appellee Joseph Park against appellant Texas Windstorm Insurance Association (TWIA). TWIA filed a plea to the jurisdiction, or in the alternative, motion for summary judgment, which the trial court denied. It contends by two issues that the trial court erred. We affirm in part and reverse and render in part.

         I. Background

         Park's two-story house in Rockport was severely damaged by Hurricane Harvey in 2017. Park filed a claim with TWIA, with whom he had an active insurance policy covering windstorm and hail damage, on August 26, 2017. According to Park, an independent adjuster retained by TWIA inspected the house, determined that it was a "total loss," and recommended that TWIA pay Park "the amount allowed under [the] terms of the policy," which was approximately $330, 000. However, Park alleges that TWIA refused to accept the recommendation and instead assigned the claim to another adjuster, who determined from examining photos that the property was in fact repairable. TWIA then hired a consultant who estimated that the repairs would cost $174, 895.36 in actual cash value, not including additional living expenses (ALE). Accordingly, while continuing to assert that it had accepted coverage of Park's claim "in full," TWIA paid $174, 895.36 to Park under the policy.

         On December 13, 2017, Park filed suit alleging that TWIA breached the policy by "failing to accept coverage in full, deny coverage in full, or accept coverage in part, and deny coverage in part, within 60 days from the date the claim was made" and by failing to give him notice of such. Park also alleged that TWIA violated the insurance code by "mishandling" his claim. See Tex. Ins. Code Ann. § 2210.576(d) (West, Westlaw through 2017 1st C.S.). Specifically, he asserted that TWIA: (1) failed to comply with statutory deadlines, including the deadline under insurance code § 2210.5731 for payment of an accepted claim; (2) "disregard[ed]" guidelines published by the Texas Commissioner of Insurance; (3) failed to provide notice as required by § 221.573(d); (4) rejected his claim without conducting a reasonable investigation; and (5) denied the claim even though its liability had become reasonably clear as a result of its investigation. See id. § 2210.576(d)(1)-(5).

         TWIA filed a plea to the jurisdiction, or in the alternative, motion for summary judgment, arguing that Park's claim is barred because, even though TWIA accepted coverage for his claim in full, Park did not seek appraisal prior to filing suit. See id. § 2210.574(f) (West, Westlaw through 2017 1st C.S.). In response, Park argued that there was a fact issue as to whether TWIA fully accepted, fully denied, or accepted in part and denied in part coverage for his claim. He further argued that TWIA's plea and motion should be denied due to the doctrines of judicial admission and judicial estoppel.

         The trial court denied the plea to the jurisdiction and motion for summary judgment and granted TWIA permission to file an interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (West, Westlaw through 2017 1st C.S.). We accepted the appeal. See id. § 51.014(f); see also Tex. R. App. P. 28.3.

         II. Discussion

         TWIA argues by two issues that the trial court erred by (1) denying its plea to the jurisdiction and (2) denying its motion for summary judgment.

         A. Standard of Review

         A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court's subject matter jurisdiction. Id. The plaintiff has the initial burden to plead facts affirmatively showing that the trial court has jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We construe the pleadings liberally in favor of the pleader, look to the pleader's intent, and accept as true the factual allegations in the pleadings. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004). Whether a trial court has subject matter jurisdiction and whether the pleader has alleged facts that affirmatively demonstrate the trial court's subject matter jurisdiction are questions of law that we review de novo. Id. at 226. When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, even when the evidence implicates the merits of the cause of action. Id. at 227; Blue, 34 S.W.3d at 555; see City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009).

         The denial of summary judgment is also reviewed de novo. Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013). A movant for traditional summary judgment has the burden to establish that no genuine issue of a material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). A fact issue exists if there is more than a scintilla of probative evidence to support each element of the plaintiff's claim. Neely, 418 S.W.3d at 59. We review the summary judgment evidence in the light most favorable to the non-movant. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

         A defendant who conclusively establishes an affirmative defense is entitled to summary judgment. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. City of Keller, 168 S.W.3d at 816.

         B. Applicable Law

         TWIA is the "insurer of last resort for windstorm and hail insurance in the seacoast territory" of Texas and is governed by chapter 2210 of the Texas Insurance Code. Tex. Ins. Code Ann. § 2210.001 (West, Westlaw through 2017 1st C.S.). Under that chapter, an insured must file a claim under a TWIA policy within one year from the date the damage occurs. Id. § 2210.573(a) (West, Westlaw through 2017 1st C.S.). Generally, within sixty days of receiving a claim, TWIA must notify the claimant that it has either: (1) accepted coverage for the claim in full; (2) accepted coverage for the claim in part and denied it in part; or (3) denied coverage for the claim in full. Id. § 2210.573(d). If TWIA accepts coverage in full, it must notify the claimant of "the amount of loss [TWIA] will pay" and the time limit to request an appraisal, and it must then pay the claim within ten days of the notice. Id. §§ 2210.573(e), 2210.5731(a) (West, Westlaw through 2017 1st C.S.).

         Section 2210.574, entitled "Disputes Concerning Amount of Accepted Coverage," provides in relevant part:

(a) If [TWIA] accepts coverage for a claim in full and a claimant disputes only the amount of loss [TWIA] will pay for the claim, or if [TWIA] accepts coverage for a claim in part and a claimant disputes the amount of loss [TWIA] will pay for the accepted portion of the claim, the claimant may request from [TWIA] a detailed summary of the manner in which [TWIA] determined the amount of loss [TWIA] will pay.
(b) If a claimant disputes the amount of loss [TWIA] will pay for a claim or a portion of a claim, the claimant, not later than the 60th day after the date the claimant receives the notice described by Section 2210.573(d)(1) or (2), may demand appraisal in accordance with the terms of [TWIA] policy.
(c) If a claimant, on a showing of good cause and not later than the 15th day after the expiration of the 60-day period described by Subsection (b), requests in writing that the 60-day period be extended, [TWIA] may grant an additional 30-day period in which the claimant may demand appraisal.
(f) Except as provided by Subsection (g), the appraisal decision is binding on the claimant and [TWIA] as to the amount of loss [TWIA] will pay for a fully accepted claim or the accepted portion of a partially accepted claim and is not appealable or otherwise reviewable. A claimant that does not demand appraisal before the expiration of the periods described by Subsections (b) and (c) waives the claimant's right to contest [TWIA]'s determination of the amount of loss [TWIA] will pay with reference to a fully accepted claim or the accepted portion of a partially accepted claim.

(g) A claimant or [TWIA] may, not later than the second anniversary of the date of an appraisal decision, file an action in a district court in the county in which the loss that is the subject of the appraisal occurred to vacate the appraisal decision and begin a new appraisal process if:

(1) the appraisal decision was obtained by corruption, fraud, or other undue means;
(2) the rights of the claimant or [TWIA] were prejudiced by:
(A) evident partiality by an appraisal umpire;
(B) corruption in an appraiser or appraisal umpire; or
(C) misconduct or wilful misbehavior of an appraiser or ...

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.