Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 156th District Court of Aransas County,
Chief Justice Contreras and Justices Benavides and Hinojosa.
Contreras, Chief Justice.
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.
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.
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).
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.
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.
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.
Standard of Review
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).
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).
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.
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.).
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
(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