Great American Lloyds Insurance Company and Mid-Continent Casualty Company v. Vines-Herrin Custom Homes L.L.C., Herrin-Custom Homes, Inc. and Emil G. Cerullo

• Court: Court of Appeals of Texas
• Decided: February 27, 2015
• Docket: 05-15-00230-CV
• Status: Published

Opinion

ACCEPTED 05-15-00230-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 2/27/2015 8:11:54 AM LISA MATZ CLERK

5th Court of Appeals FILED: 02-27-15 Lisa Matz, Clerk DIANA L. FAUST 214-712-9538 Board Certified – Civil Appellate Law diana.faust@cooperscully.com Texas Board of Legal Specialization

February 27, 2015

Ms. Lisa J. Matz, Clerk VIA EFILE Fifth District Court of Appeals George L. Allen, Sr. Courts Building 600 Commerce Street, Suite 200 Dallas, Texas 75202

Re: No. 05-15-00230-CV; Great American Lloyds Insurance Company, and Mid- Continent Casualty Company, Appellants v. Vines-Herrin Custom Homes, L.L.C., et al., Appellees, In the Fifth District Court of Appeals, Dallas, Texas, On Appeal from the 44th District Court, Dallas County, Texas, Cause No. DC-03-6903 Our File No.: 596/16147

Dear Ms. Matz:

Pursuant to this Court’s instructions, attached is a copy of the Amended Final Judgment signed by the Hon. Carlos Cortez on November 26, 2014, in Cause No. 03-6903, Vines-Herrin Custom Homes, L.L.C., et al., Plaintiffs v. Great American Lloyds Insurance Company, et al., Defendants, in the 44th District Court, Dallas County, Texas. The Judgment was appealed on February 16, 2015, and efiled with this Court on February 26, 2015.

Thank you for your cooperation in this matter. If you have any questions, or if you need any additional information, please feel free to give me a call.

Sincerely,

By: /s/Diana L. Faust Diana L. Faust DLF/lmw Enclosure cc: Mr. Geoffrey S. Harper VIA EFILE harper@fr.com Mr. Taj J. Clayton clayton@fr.com Fish & Richardson, P.C. 1717 Main Street, Suite 5000 Dallas, Texas 75201 Counsel for Appellees Founders Square 900 Jackson Street, Suite 100 Dallas, TX 75202 Telephone (214) 712-9500 Fax (214) 712-9540 www.cooperscully.com Houston Office (713) 236-6800 San Francisco Office (415) 956-9700 Sherman Office (903) 813-3900 D/922380v1 41,30ck =.),6

CAUSE NO. DC-03-6903

VINES-HERRIN CUSTOM HOMES, LLC, IN THE DISTRICT COURT OF and HERRIN CUSTOM HOMES, INC.,

Plaintiffs,

and

EMIL G. CERULLO

Intervenor, DALLAS COUNTY, TEXAS v.

GREAT AMERICAN LLOYDS INSURANCE COMPANY AND MID- CONTINENT CASUALTY COMPANY,

Defendants. 44th JUDICIAL DISTRICT

IMMINIMINISOMMIIIIIMMENIMIIIIPAMENDED FINAL JUDGMENT A bench trial on the above-captioned matter was conducted on May 14-16, 2008 before

the 44th Judicial District Court of Dallas County, Texas. The Court heard testimony from

witnesses, and received and admitted exhibits into evidence. After evaluating the credibility of

the witnesses and weighing the evidence presented by the parties, Vines-Herrin Custom Homes,

LLC and Herrin Custom Homes, Inc. (collectively "Vines-Herrin" or "Plaintiffs") and Emil G.

Cerullo ("Mr. Cerullo" or "Intervenor"), and Great American Lloyds Insurance Company and

Mid-Continent Casualty Company (collectively "the Insurance Companies"), the Court enters

the following findings of fact and conclusions of law:

First, the Court finds that the Insurance Companies breached their duty to defend Vines-

Herrin against Mr. Cerullo's claims. IT IS THEREFORE ORDERED by the Court that

Plaintiffs/Intervenor have and recover damages against the Insurance Companies, jointly and

PLAINTIFFS'/INTERVENOR'S PROPOSED AMENDED FINAL JUDGMENT - PAGE 1 severally, in the amount of TWENTY-SEVEN THOUSAND DOLLARS ($27,000.00). In

addition, Plaintiffs/Intervenor shall have and recover statutory late-payment damages equal to

FORTY-ONE THOUSAND TWO HUNDRED TEN DOLLARS AND TWELVE CENTS

($41,210.12), being 18% per annum from May 30, 2006 until the date of this Order on

November 21, 2014.

Second, the Court finds that the Insurance Companies breached their duty to indemnify

Vines-Herrin for the amount of the arbitration award entered against them as a result of Mr.

Cerullo's claims. IT IS THEREFORE ORDERED by the Court that Plaintiffs/Intervenor have

and recover damages from the Insurance Companies, jointly and severally, in the amount of

TWO-MILLION FOUR-HUNDRED EIGHTY-SEVEN THOUSAND FIVE-HUNDRED

SEVEN DOLLARS AND SEVENTY-SEVEN CENTS ($2,487,507.77), plus interest in the

amount of ONE MILLION FIFTY-FOUR THOUSAND SIX HUNDREND THIRTY-FOUR

DOLLARS AND THIRTY-SIX CENTS ($1,054,634.36) accrued from May 30, 2006 to the date

of this Order on November 21, 2014.

Third, the Court finds that Plaintiffs/Intervenor were successful in prosecuting their

breach of contract claim against the Insurance Companies and are therefore entitled to recover

the reasonable and necessary attorneys fees incurred in prosecuting their breach of contract

claim. IT IS THEREFORE ORDERED by the Court that Plaintiffs/Intervenor have and recover

damages from the Insurance Companies, jointly and severally, in the amount of SIX-HUNDRED

FOUR THOUSAND SEVEN-HUNDRED FORTY-THREE DOLLARS AND TWO CENTS

($604,743.02) as reasonable and necessary fees, as well as an additional FOURTEEN

THOUSAND ONE-HUNDRED EIGHTY-SIX DOLLARS AND SEVENTY-SIX CENTS

PLAINTIFFS'/INTERVENOR'S PROPOSED AMENDED FINAL JUDGMENT - PAGE 2 ($14,186.76) as reasonable and necessary costs incurred in connection with prosecuting the claim

for breach of contract.

Finally, IT IS ORDERED that the amounts awarded in this judgment shall accrue post-

judgment interest at a rate of 5% per annum until paid in full.

THIS FINAL JUDGMENT DISPOSES OF ALL PARTIES AND CLAIMS IN

THIS MATTER, AND IS APPEALABLE. ALL RELIEF NOT SPECIFICALLY

GRANTED HEREIN IS DENIED.

SIGNED THIS DAY OF NOVEMBER, 2014.

THE HONO' BLE CARLOS CO TE 44th JUDICIAL DISTRICT COUR DALLAS COUNTY, TEXAS

PLAINTIFFS'/INTERVENOR'S PROPOSED AMENDED FINAL JUDGMENT - PAGE 3