Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
FARMERS GROUP, INC., FARMERS UNDERWRITERS ASSOCIATION, FIRE UNDERWRITERS ASSOCIATION, FARMERS INSURANCE EXCHANGE, FIRE INSURANCE EXCHANGE, GERALD HOOKS JR., LESLY K. NOLEN, AND JOSEPH C. BLANKS, P.C., Appellants,
SANDRA GETER, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Appellee.
appeal from the 172nd District Court of Jefferson County,
Chief Justice Contreras and Justices Benavides and Perkes
CONTRERAS CHIEF JUSTICE
appeal concerns a class action brought by appellee Sandra
Geter, on behalf of herself and all others similarly situated
(Geter or the Geter class), against appellants Farmers Group,
Inc., Farmers Underwriters Association, Fire Underwriters
Association, Farmers Insurance Exchange, and Fire Insurance
Exchange (collectively Farmers). The Geter class claimed that
Farmers improperly refused to renew their HO-B homeowners
insurance policies. The trial court granted partial summary
judgment in favor of the class and conducted a trial on
attorney's fees. It later rendered judgment requiring
Farmers to offer retroactively renewed HO-B policies to all
class members, and it awarded the class over $3 million in
attorney's fees and court costs.
appeal, Farmers argues that the trial court: (1) erred by
ordering Farmers to offer renewed HO-B policies to all class
members; (2) lacked subject matter jurisdiction to order a
particular premium rate for those renewed policies; (3)
lacked subject matter jurisdiction to compel Farmers to renew
the policies; (4) erred in granting specific performance; (5)
erred in awarding injunctive relief; (6) erred in granting a
motion to show cause filed by the class; and (7) erred in
awarding attorney's fees and costs. Appellants Gerald
Hooks Jr., Lesly K. Nolen, and Joseph C. Blanks, P.C.
(Blanks) argue that the trial court erred by striking their
pleas in intervention seeking attorney's fees.
affirm in part, reverse in part, and remand for further
Texas, homeowner's insurance policies must be written on
forms approved by the Texas Department of Insurance (TDI).
Tex. Ins. Code Ann. § 2301.006(a). A policy based on
Texas Policy Form HO-B generally provides coverage against
all risks to a dwelling, whereas a policy based on Texas
Policy Form HO-A typically covers only named perils to a
dwelling. Tex. Dep't of Ins., Texas Homeowners Policies 1
Both HO-A and HO-B policies cover only named perils to
dwelling contents. Id.
alleged that she attempted to renew her Farmers HO-B policy
in 2001. However, on January 4, 2002, Farmers mailed a
"Policyholder Notice of Non-Renewal" to Geter
stating in part: "Because of substantial losses which we
have incurred for the homeowners and dwelling lines of
insurance in Texas, we regrettably must inform you that we
will no longer offer property insurance coverage in the state
of Texas under the policy form you currently have."
Farmers instead offered an HO-A policy to
filed suit later in 2002 alleging that Farmers was required
to renew the HOB policy pursuant to the terms of that policy,
which included in relevant part:
6. Refusal to Renew.
a. We may not refuse to renew this policy because of
claims for losses resulting from natural causes.
b. We may not refuse to renew this policy solely because you
are an elected official.
c. We may refuse to renew this policy if you have filed three
or more claims under the policy in any three year period that
do not result from natural causes.
If you have filed two claims in a period of less than three
years, we may notify you in writing, that if you file a third
claim during the three year period, we may refuse to renew
this policy by providing you proper notice of our refusal to
renew as provided in d. below. If we do not notify you after
the second claim, we may not refuse to renew this policy
because of Iosses.
A claim does not include a claim that is filed but is not
paid or payable under the policy.
d. If we refuse to renew this policy, we must deliver to you,
or mail to you at your mailing address shown on the
declarations page and any mortgagee named in the declarations
page, written notice of our refusal to renew not later than
the 30th day before the date in which this policy expires.
Proof of mailing will be sufficient proof of notice. If we
fail to give you proper notice of our decision not to renew,
you may require us to renew the policy.
(Emphasis added.) Geter alleged that there were 433, 618
similar Farmers HO-B policies in force in Texas, and she
sought class certification for all persons who received
notice, as she did, that their policies would not be renewed.
Geter sought declaratory relief and an injunction requiring
Farmers to renew the HO-B policy. The trial court certified
the class under Texas Rule of Civil Procedure
moved for summary judgment in October 2010, arguing that its
non-renewal of the HO-B policies did not violate Texas
insurance law or the terms of the policies (Farmers'
first summary judgment motion). The Geter class responded and
filed its own motion for partial summary judgment on all
issues except attorney's fees (Geter's first summary
judgment motion). Geter's motion requested a declaration
that: (1) all class members are "entitled to specific
performance of their right to renew the HO-B policies";
(2) the term of the renewed policy "shall be one year
beginning the date the nonrenewal of their last HO-B policy
became effective"; (3) the premium to be charged for the
renewed policy "shall be determined by [TDI]"; and
(4) Farmers must advise class members on how to accept
renewal in a form and manner to be approved by the court.
order dated November 23, 2010, the trial court denied
Farmers' first summary judgment motion and granted
Geter's first summary judgment motion. The order stated
that each class member is "entitled to renewal" of
the HO-B policy and that the term of the renewed policies
"shall be one year beginning the date the nonrenewal of
their last HO-B policy became effective." The order
additionally commanded Farmers to "submit a plan for
determining the premium to be charged" for the renewed
policies, and it permitted the class to object to
Farmers' plan and to offer an alternative plan.
Farmers filed a "Motion for Partial Summary Judgment as
to Rating Issues and Remedies" (Farmers' second
summary judgment motion) in which it argued in part: (1) the
trial court lacks jurisdiction to order a particular premium
rate for the renewed HO-B policies; (2) Farmers cannot
lawfully issue a policy for a term that has expired; and (3)
Geter has not demonstrated the elements required to obtain
injunctive relief or specific performance. Geter also filed a
second motion for partial summary judgment on the issue of
setting the premium for the renewed policies. She argued that
the trial court had jurisdiction to set the premium rate as
"supplemental relief" under the Uniform Declaratory
Judgments Act (UDJA). Geter further noted that, though
Farmers charged a premium of $2, 181 for the HO-B policy in
effect from 2001 to 2002, it demanded a $5, 410 premium for
the HO-A replacement policy effective the following year,
even though the latter policy provided less coverage. She
asked the trial court to rule that the premium for the
retroactively renewed HO-B policies-which Farmers was
required to offer under the November 23, 2010 order-would be
the same as the premium Farmers charged for the HO-A
replacement policies. The Geter class also filed a "Motion
to Show Cause" requesting the same relief.
21, 2011, the trial court signed an order granting
Geter's second summary judgment motion, granting
Geter's motion to show cause, and denying Farmers'
second summary judgment motion. The order set forth the
premium rate for the HO-B renewal policies precisely as
requested by Geter in her motions.
on attorney's fees only was held over several days in
November 2016. The jury found that $812, 332.50 was a
reasonable fee for necessary services provided by class
counsel in the trial court, and it assessed additional
conditional amounts for representation on appeal. Pursuant to
a motion filed by the class, the trial court stated in
findings attached to its final judgment, dated December 14,
2017, that the amounts determined by the jury were a
"base lodestar, as that term is used in the Texas
Supreme Court," and it found that the class was entitled
to a "multiplier [of] 3.75 times the base lodestar . . .
especially because of the risk and nature of contingent fee
work, the length of time commitment required, the result
obtained and the substantial and protracted costs
incurred." See Tex. R. Civ. P. 42(i)(1)
("In awarding attorney fees [in a class action], the
court must first determine a lodestar figure by multiplying
the number of hours reasonably worked times a reasonable
hourly rate. The attorney fees award must be in the range of
25% to 400% of the lodestar figure."). Accordingly, the
trial court awarded the class $3, 046, 246.88 in trial
attorney's fees, along with conditional appellate fees,
and $486, 789.97 in costs. Farmers then perfected this
separate proceeding initiated in 2002, the State of Texas,
TDI, and the Commissioner of Insurance (collectively the
State) filed suit in the 261st District Court of Travis
County alleging that Farmers violated the Deceptive Trade
Practices Act (DTPA). The Travis County suit alleged, among
other things, that Farmers charged higher premiums for HO-A
policies than it did for HO-B policies; however, the suit did
not seek a declaration that the HO-B policies were wrongfully
non-renewed. Eventually, Farmers and the State proposed a
settlement agreement under which the members of a settlement
class, including Hooks and Nolen, would release their claims
against Farmers. Hooks and Nolen, represented by Blanks,
intervened in the Travis County proceeding in order to
prevent the release of any claims for declaratory relief
regarding non-renewal of the HO-B policies-i.e., the claims
raised in the Geter class action. See Lubin v. Farmers
Gp., Inc., No. 03-03-00374-CV, 2009 WL 3682602, at *9
(Tex. App.-Austin Nov. 6, 2009, no pet.) (mem. op. on
remand). Farmers eventually entered into a settlement
agreement with the State which contained a release that-in
accordance with Blanks's demand- "carved out"
the declaratory relief requested in the Geter class
action. According to Farmers, the settlement
agreement called for it to compensate affected policyholders
"in a package valued at over $100 million." The
Travis County district court approved the settlement
agreement and rendered final judgment in February 2016.
2016, Hooks and Nolen intervened in this class action seeking
to recoup their attorney's fees. Their plea in
intervention argued that the carve-out they obtained in the
Travis County judgment "benefits all Geter class
members" because it prevented the release of the
declaratory relief sought in the class action. Farmers moved
to strike the intervention, and the trial court granted the
motion. Blanks then filed its own plea in
intervention making the same assertions as Hooks and Nolen;
again, the trial court struck the intervention pursuant to
Farmers' motion. Hooks, Nolen, and Blanks appealed the
Standard of Review
review summary judgments 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, indulging every
reasonable inference and resolving any doubts against the
motion. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex.
2012) (per curiam); City of Keller v. Wilson, 168
S.W.3d 802, 824 (Tex. 2005).
both parties move for summary judgment and the trial court
grants one motion and denies the other, we review all the
summary judgment evidence, determine all issues presented,
and render the judgment the trial court should have rendered.
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248
first issue on appeal, Farmers contends that the trial
court erred by rendering summary judgment declaring that it
was required to offer retroactive renewed HO-B policies to
all class members. In particular, Farmers argues that it was
not required to renew under the plain language of the policy
or under the insurance code. By its third issue, Farmers
argues that the trial court lacked subject matter
jurisdiction to compel renewal of the HO-B policies.
general, the goal of contract interpretation is to ascertain
the parties' true intent as expressed by the plain
language they used. Great Am. Ins. Co. v. Primo, 512
S.W.3d 890, 892-93 (Tex. 2017); see Gilbert Tex. Const.,
L.P. v. Underwriters at Lloyd's London, 327 S.W.3d
118, 126 (Tex. 2010) (explaining that "we look at the
language of the policy because we presume parties intend what
the words of their contract say"). But the contract at
issue here is a standard policy form prescribed by TDI, and
so "the intent of the parties is not what counts because
they did not write the contract." Greene v. Farmers
Ins. Exch., 446 S.W.3d 761, 766 (Tex. 2014) (citing
Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746
(Tex. 2006)). "Rather, the policy language is
interpreted according to the ordinary, everyday meaning of
its words to the general public." Id. (citing
Fiess, 202 S.W.3d at 746). We construe policy
language so that no provision is rendered meaningless, and we
may not insert language or provisions the parties did not
use. Primo, 512 S.W.3d at 892-93 (citing
Nat'l Union Fire Ins. Co. v. Crocker, 246 S.W.3d
603, 606 (Tex. 2008)). We assign terms their ordinary and
generally accepted meaning unless the contract directs
otherwise. Id. at 893. If the language lends itself
to a clear and definite legal meaning, the contract is not
ambiguous and it will be construed as a matter of law.
Id. (citing Am. Mfrs. Mut. Ins. Co. v.
Schaefer, 124 S.W.3d 154, 157 (Tex. 2003)).
Summary Judgment ...