Opinion issued November 14, 2024
In The Court of Appeals For The First District of Texas ———————————— NO. 01-24-00367-CV ——————————— IN RE SURECHOICE UNDERWRITERS RECIPROCAL EXCHANGE, Relator
Original Proceeding on Petition for Writ of Mandamus
OPINION
Real Party in Interest Nicole Glasper filed suit against Relator SureChoice
Underwriters Reciprocal Exchange following its denial of Glasper’s insurance claim
for property damage. SureChoice filed a Motion to Compel Appraisal and to Abate
the trial court proceedings, which Glasper opposed. SureChoice seeks a writ of
mandamus commanding the trial court to vacate her order denying the Motion to Compel Appraisal and ordering the trial court to compel the parties to engage in the
appraisal process.
We reject Glasper’s argument that SureChoice waived the appraisal provision
in the insurance policy by denying coverage of her claim and not invoking appraisal
until after she filed suit. The insurance policy mandates appraisal and Glasper has
not shown a basis for denying enforcement of the appraisal provision.
We conditionally grant mandamus relief to compel the appraisal.
Background
The underlying case involves a lawsuit brought by Glasper for claims arising
from SureChoice’s handling of her property damage insurance claim.1 SureChoice
issued to Glasper an insurance policy, effective April 2022, that provided coverage
for her home (“Policy”). Among other provisions, the Policy contained an appraisal
clause that states:
F. Appraisal
If you [Glasper] and we [SureChoice] fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent and impartial appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in the state where the “residence premises” is located. The appraisers will separately set the amount of loss. If the appraisers
1 The underlying case is Nicole Glasper v. SureChoice Underwriters Reciprocal Exchange, Cause No 2024-06021, pending in the 234th District Court of Harris County, Texas, the Honorable Lauren Reeder presiding.
2 submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss. Each party will:
1. Pay its own appraiser; and
2. Bear the other expenses of the appraisal and umpire equally.
The Policy also included a “Waiver or Change of Policy” provision, stating that “[a]
waiver or change of a provision of this [P]olicy must be in writing by us
[SureChoice] to be valid. Our request for an appraisal or examination will not waive
any of our rights.”
On August 29, 2023, Glasper submitted a claim to SureChoice for damage to
her property allegedly sustained during a storm on April 5, 2023. SureChoice’s
adjuster inspected Glasper’s property and prepared an estimate of damages totaling
$1,502.77. The adjuster ultimately determined that the covered damage was below
the Policy’s deductible amount, and as a result, denied the claim.2 Glasper argued
the adjuster had “grossly undervalued the cost of repairs in its estimate and yielded
an unrealistic amount to underpay coverage.” Glasper hired her own adjuster who
found there was “$28,596.49 worth of damage to the property caused by the
hail/windstorm event.” According to Glasper, her adjuster found “additional storm
2 According to Glasper, “[a]fter . . . depreciation and $1,000[] deductible, [she] was left without adequate funds to make repairs on the entirety of h[er] claim.” 3 damage that was completely absent from” the estimate prepared by SureChoice’s
adjuster.
SureChoice requested that its engineer reinspect the property, but the
inspection revealed no additional hail- or windstorm-related damage. On October
10, 2023, SureChoice informed Glasper that its engineer had “determined that the
roof covering was not damaged by wind and/or hail or by a covered cause of loss”
but rather due to “a combination of age-related deterioration, fatigue, inadvertent
manmade damage, and/or mechanical damage.” According to Glasper, SureChoice
“effectively claim[ed] that all remaining damages (all damages beyond [its] original
$1,112.37 determination) to the property were caused by something that wa[s] NOT
covered by the [P]olicy.” (Emphasis in original.)
On October 24, 2023, Glasper issued a demand letter to SureChoice for
$28,596.49 in replacement costs for the property’s roof, plus $3,002.63 in claimed
statutory interest costs and $1,940.00 in attorney’s fees. On November 3, 2023,
SureChoice rejected Glasper’s demand stating: “We must respectfully reject your
demand as there was no supportive documentation included with your demand . . .
We have concluded our claim review process and our decision coverage will remain
the same. Should you wish to provide additional information, and such information
4 has not been previously reviewed by the carrier for consideration, please do so at
your earliest opportunity.”3
Glasper did not respond. Instead, she filed the instant suit against SureChoice
on January 30, 2024, asserting causes of action for breach of contract, violations of
the Insurance Code, breach of duty of good faith and fair dealing, and violations of
the Deceptive Trade Practices Act. Glasper sought $28,596.49 in actual damages.
SureChoice was served with Glasper’s suit on February 26, 2024. The
following day, on February 27, 2024, SureChoice sent a letter to Glasper invoking
and demanding appraisal under the Policy and designating its appraiser, stating: “It
appears that an impasse has been reached between Nicole Glasper and S[ureChoice]
regarding the amount, if any, of Ms. Glasper’s loss. S[ureChoice] thus invokes and
demands appraisal pursuant to the Policy.” SureChoice stated that its letter was “not
intended to be, and should not be construed as, a waiver of any of [its] rights,
defenses, terms, conditions, and/or exclusions available under the Policy or Texas
law, whether or not specifically addressed in this letter.” Glasper responded by email
on March 12, 2024, stating without explanation or elaboration, “We do not agree
with appraisal.”
3 SureChoice’s November 3, 2023 letter is not included in the record. The letter, however, was attached as Exhibit B to Glasper’s Response to SureChoice’s Motion to Compel, and Glasper’s Response to SureChoice’s Petition for Writ of Mandamus contains an excerpt from the letter, including the quoted language.
5 On March 18, 2024, SureChoice field an answer and an Opposed Motion to
Compel Appraisal and to Abate requesting that the trial court compel appraisal and
abate the lawsuit until after completion of the appraisal. SureChoice argued that it
was contractually entitled to an appraisal under the Policy, and that it had not waived
its right because there was no written waiver of its right, as required by the Policy,
and Glasper could not establish prejudice.
Glasper filed a response arguing that because SureChoice had not invoked
appraisal within the 60-day statutory notice following her demand letter, SureChoice
“effectively [had] waived its right to do so.” Glasper also argued that because “the
crux of the case” involves matters of causation, and “[a]ppraisal is useful to resolve
a gap between coverage positions of the two parties,” an appraisal here “is simply
not necessary” because “[it] does not resolve causation issues.” Glasper stated that
if she were “forced to comply with an appraisal process during an abatement,
[SureChoice] could simply reject the appraisal award after it is complete (in whole
or in part), claiming that the damages set by the award were not caused by hail and
wind and therefor[e] are not covered by the [P]olicy,” “result[ing] in a complete
waste of time and money for the parties . . . .”
SureChoice filed a reply arguing it had not waived its appraisal right but rather
invoked appraisal immediately upon service of the lawsuit on February 27, 2024,
only four months after Glasper had made her demand. SureChoice contended that
6 “[t]o adopt [Glasper’s] argument that one party can deem the other party to have
waived its rights under [an appraisal] clause[], simply because the first party chooses
to litigate rather than honor such clauses, is not only contrary to Texas law but to
common sense as well.” (Emphasis in original.) SureChoice argued that Glasper
had “not shown or even alleged prejudice . . . .” and thus she could not establish
waiver.
The trial court denied SureChoice’s Motion to Compel Appraisal. SureChoice
filed a Motion to Reconsider arguing it had not waived its appraisal right, that the
trial court’s ruling was “against the great weight of Texas law,” and that Glasper
would not be prejudiced if compelled to participate in the appraisal process because
there were no immediate deadlines on the docket control order. SureChoice further
reiterated that under the Policy, it had a contractual right to appraisal.
Glasper filed an opposition to SureChoice’s Motion to Reconsider arguing
that SureChoice had presented nothing new for the court’s consideration. Glasper
again argued that “appraisal does NOT resolve causation issues and” thus, because
“SureChoice’s denial [of coverage] is based on causation reasons (i.e., claiming the
damage was not caused by a covered occurrence) as opposed to a dollar amount
dispute of a covered occurrence[,] SureChoice’s Motion [to Reconsider] must be
denied.” (Emphasis in original.)
7 The trial court denied SureChoice’s Motion to Reconsider and this mandamus
proceeding followed.
Standard of Review
Mandamus is an extraordinary remedy that is available only in limited
circumstances. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.
proceeding). To secure mandamus relief, a relator must establish that (1) the trial
court committed a clear abuse of discretion or violated a duty imposed by law, and
(2) there is no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d
124, 135–36 (Tex. 2004) (orig. proceeding). A trial court abuses its discretion when
“it reaches a decision so arbitrary and unreasonable as to amount to a clear and
prejudicial error of law or if it clearly fails to correctly analyze or apply the law.” In
re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.
proceeding) (internal quotation marks and citations omitted).
Mandamus will not issue when there is a clear and adequate remedy at law.
Walker, 827 S.W.2d at 840. We review the adequacy of an appellate remedy by
balancing the benefits of mandamus review against its detriments. In re Team
Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). We consider
whether mandamus will “preserve important substantive and procedural rights from
impairment or loss, allow the appellate courts to give needed and helpful direction
to the law that would otherwise prove elusive in appeals from final judgments, and
8 spare [the litigants] and the public the time and money utterly wasted enduring
eventual reversal of improperly conducted proceedings.” In re Prudential Ins. Co.
of America, 148 S.W.3d at 136. An appellate remedy is not inadequate merely
because it may result in more expense or delay than obtaining a writ. Walker, 827
S.W.2d at 842.
Appraisal Clauses
Appraisal clauses, commonly found in homeowners’ insurance policies,
“provide a means to resolve disputes about the amount of loss for a covered claim.”
In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d 404, 406–07 (Tex. 2011)
(orig. proceeding). “Appraisals can provide a less expensive, more efficient
alternative to litigation,” and they “should generally go forward without preemptive
intervention by the courts.” Id. (quoting State Farm Lloyds v. Johnson, 290 S.W.3d
886, 895 (Tex. 2009)). Trial courts have no discretion to ignore a valid appraisal
clause. Johnson, 290 S.W.3d 886, 888 (Tex. 2009) (holding that “appraisals should
generally go forward without preemptive intervention by the courts”); see also In re
Slavonic Mut. Fire Ins. Ass’n, 308 S.W.3d 556, 559 (Tex. App.–Houston [14th Dist.]
2010, orig. proceeding) (“Where an insurance contract mandates appraisal to resolve
the parties’ dispute regarding the value of a loss, and the appraisal provision has not
been waived, a trial court abuses its discretion and misapplies the law by refusing to
enforce the appraisal provision.”). Absent illegality or waiver, appraisal clauses are
9 generally enforceable. In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d at
407.
A trial court’s abuse of discretion in failing to enforce an appraisal clause
cannot be remedied by appeal. Id. at 412; see also In re State Farm Lloyds, 514
S.W.3d 789, 795 (Tex. App.—Houston [14th Dist.] 2017) (orig. proceeding)
(holding that trial court abused discretion by refusing to enforce valid appraisal
clause and appellate remedy not adequate to correct error); In re Liberty Ins. Corp.,
496 S.W.3d 299, 232 (Tex. App.—Houston [1st Dist.] 2016) (orig. proceeding)
(same).
Abuse of Discretion
SureChoice argues the trial court abused its discretion by denying its Motion
to Compel Appraisal because it has a contractual right to appraisal, and it never
waived its right. Glasper responds that SureChoice waived its appraisal right
because it did not invoke appraisal until after filing suit and because it denied her
claim, stating an impasse had been reached. Glasper also argues that appraisal “is
simply not suitable” because SureChoice’s denial of her claim was based on
causation grounds.
We reject Glasper’s waiver argument. Neither the denial of Glasper’s claim
nor the timing of SureChoice’s demand for appraisal resulted in waiver. SureChoice
10 has a contractual right to appraisal which it never waived. The trial court abused its
discretion in denying the Motion to Compel.
1. SureChoice did not waive its appraisal right when it denied Glasper’s claim.
Waiver requires intent, “either the intentional relinquishment of a known right
or intentional conduct inconsistent with claiming that right.” In re Universal
Underwriters of Tex. Ins. Co., 345 S.W.3d at 407. In the context of appraisal, to
“constitute waiver the acts relied on must be such as are reasonably calculated to
induce the assured to believe that a compliance by [her] with the terms and
requirements of the policy is not desired, or would be of no effect if performed. The
acts relied on must amount to a denial of liability, or a refusal to pay the loss.” In re
Liberty Ins. Corp., 496 S.W.3d at 232 (quoting In re Universal Underwriters of Tex.
Ins. Co., 345 S.W.3d at 407). Ordinarily, waiver is a question of fact, but when the
facts are admitted or clearly established, waiver is a question of law. Id. at 233. The
party challenging the right to appraisal bears the burden to establish waiver. In re
State Farm Lloyds, 514 S.W.3d at 792.
Glasper argues that because SureChoice denied her claim and an impasse was
reached, SureChoice waived its appraisal rights. We disagree. Taking into
consideration all relevant factors, we cannot conclude SureChoice waived its
appraisal rights.
11 The facts giving rise to this mandamus proceeding are undisputed. When
SureChoice first inspected Glasper’s property, it acknowledged that the Policy
covered part of the loss, but it denied Glasper’s claim because the amount of the loss
fell below the Policy’s deductible. Glasper claimed there was additional damage,
but SureChoice denied coverage for the additional damage concluding it was not
covered under the Policy. SureChoice’s denial of Glasper’s claim was thus not based
solely on coverage. But even if it were, that does not preclude an appraisal from
moving forward. Johnson, 290 S.W.3d at 893 (“Even if the appraisal here turns out
to involve not just damage but liability questions, that does not mean appraisal
should be prohibited as an initial matter.”); In re Liberty Insurance Corp., 496
S.W.3d at 234 (holding that insured’s denial of insurance claim did not amount to
waiver of insured’s right to appraisal).
As the Texas Supreme Court recognized in State Farm Lloyds v. Johnson,
appraisals may be helpful even when an insurer denies a claim. 290 S.W.3d at 894.
Johnson and the present case involve similar facts. In Johnson, the insured filed a
claim under her homeowners’ insurance policy for damage to her roof following a
hailstorm. The adjuster determined that while there was some covered damage, the
repair costs were lower than the policy’s deductible. Id. at 887. By contrast, the
insured’s contractor determined that the entire roof had to be replaced and the
insured requested an appraisal under the policy. Id. The insurer refused to
12 participate in the appraisal process arguing, like Glasper does here, that because the
parties’ “dispute concerned causation and not ‘amount of loss,’” appraisal was not
applicable. Id. at 888. The insured filed a declaratory judgment seeking to compel
appraisal. The trial court granted summary judgment in favor of the insurer agreeing
“that no appraisal was warranted,” but the court of appeals reversed, holding “that
appraisal was required.” Id. The Texas Supreme Court affirmed, holding the insurer
could not avoid appraisal “merely because there might be a causation question that
exceeds the scope of appraisal.” Id. at 893 (noting “appraisal can be structured in a
way that decides the amount of loss without deciding liability questions”). As the
court explained,
. . . when an indivisible injury to property may have several causes, appraisers can assess the amount of damage and leave causation up to the courts. When divisible losses are involved, appraisers can decide the cost to repair each without deciding who must pay for it. When an insurer denies coverage, appraisers can still set the amount of loss in case the insurer turns out to be wrong. And when the parties disagree whether there has been any loss at all, nothing prevents the appraisers from finding “$0” if that is how much damage they find.
Id. at 894. Thus, Johnson clarified that appraisal is not precluded merely because
there are disputed issues involving coverage.
An insurer’s denial of a claim is also not dispositive on the issue of waiver.
In In re Liberty Insurance, we explained that “[w]hether an insurer denied a
homeowner’s claim for damages under the governing policy is relevant to the
question of waiver of the appraisal clause, but it is not determinative of that 13 question.” In re Liberty Ins. Corp., 496 S.W.3d at 235 (holding that “denial of a
homeowner’s claim for damages does not, by itself, constitute an ‘intentional
relinquishment of a known right’ or conduct ‘inconsistent with claiming’ the right
of appraisal”) (quoting In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d at
407); see In re State Farm Lloyds, 514 S.W.3d at 794 (same)). Rather, to determine
whether an insurer “waived its right to invoke an appraisal clause, we must also
consider the language of the Policy, as well as whether the insurer expressed its
intent to reserve its appraisal rights.” In re Liberty Ins. Corp., 496 S.W.3d at 235.
Based on the policy and the insured’s actions in In re Liberty Insurance, we
held the insurer had not waived its appraisal rights by issuing a letter to the insured
denying his claim.4 Id. The insurer’s letter stated:
We have recently reviewed your homeowner's claim and have determined that no storm related damages were found. Your policy affords coverage when physical damage occurs to your covered property resulting from a covered event. As no storm related damages were found, we are closing our file. We regret that we are unable to assist you further in this matter.
4 In In re Liberty Insurance, the insured submitted an insurance claim for damage to his property following a storm. 496 S.W.3d 299, 233 (Tex. App.—Houston [1st Dist.] 2016) (orig. proceeding). Id. The insurer denied his claim, concluding “no storm related damages” had been found. Id. The insured sent a demand letter to the insurer and filed suit. After the parties attempted mediation, the insurer invoked the appraisal clause of the policy. Id.
14 Id. at 233. We held that notwithstanding the insurer’s denial, the insurer had
reserved its right to invoke appraisal because the policy required waiver to be in
writing and the record did not include any such writing, and the insurer had expressly
reserved its right to invoke appraisal in letters to the insured and in filed court
pleadings. Id. at 235. Even though the appraisal clause stated that it applied when
the parties “fail[ed] to agree on the amount of loss” and the case “involve[d] a dispute
over causation,” we held appraisal was still appropriate because the insurer had not
waived appraisal and when “an insurer denies coverage, appraisers can still set the
amount of loss in case the insurer turns out to be wrong.” Id. at 234–35 (citing
Johnson, 290 S.W.3d at 894); see also In re State Farm Lloyds, 514 S.W.3d at 792
(holding that insurer did not waive appraisal by denying coverage for most of
damage where remaining covered damage fell below policy’s deductible).
The same is true here. Even though Glasper is correct that the Policy
expressly provides that appraisal applies when the parties “fail to agree on the
amount of loss” and here there are issues involving coverage, appraisal is not
precluded as an initial matter. See Johnson, 290 S.W.3d at 893 (holding that
involvement of liability questions does not mean appraisal should be prohibited as
initial matter). As the court explained in Johnson, appraisal may move forward so
that the “appraiser[] can assess the amount of damage” leaving “causation up to the
courts.” Id. at 894. And if “divisible losses are involved,” the “appraiser [] can
15 decide the cost to repair each without deciding who must pay for it.” Id. (“When an
insurer denies coverage, appraisers can still set the amount of loss in case the insurer
turns out to be wrong.”); see also In re Liberty Insurance Corp., 496 S.W.3d at 234
(holding that insurer had not waived appraisal even though it denied insurance claim
and case involved issues of causation). Moreover, as in In re Liberty Insurance, the
Policy here unequivocally states that “waiver or change of a provision of this Policy
must be in writing by [SureChoice] to be valid.” There is nothing in the record
reflecting SureChoice waived its appraisal rights in writing.
Citing to her own demand letter, which states Glasper “has reached an impasse
in her attempts to resolve her claim,” Glasper still argues that SureChoice waived
appraisal because the parties effectively reached an impasse. We disagree. Impasse
is reached when “the parties have exhausted any prospect of reaching an agreement
and further discussion would be fruitless.” In re QBE Specialty Ins. Co., No. 01-19-
00164-CV, 2020 WL 6140180, at *4 (Tex. App.—Houston [1st Dist.] Oct. 20, 2020)
(orig. proceeding). “Knowledge that the insured disagrees with the insurer’s
position as to the claim is not sufficient to establish impasse.” Id. And relevant here,
“[i]mpasse arises only if both parties ‘believe additional negotiations would be
futile.’” Id. (quoting In re Acceptance Indem. Ins. Co., 562 S.W.3d 655, 660 (Tex.
App.—San Antonio 2018) (orig. proceeding)) (emphasis in original).
16 In response to Glasper’s demand letter, SureChoice did not express that an
impasse had been reached. It stated that it had reviewed Glasper’s demand letter and
that “[w]e must respectfully reject your demand as there was no supportive
documentation included with your demand . . . includ[ing] an estimate and
photographs, an engineer report or expert report of your own, for us to review.”
Rather than ending any further discussion, SureChoice’s letter further stated,
“[s]hould you wish to provide additional information, and such information has not
been previously reviewed by the carrier for consideration, please do so at your earlier
opportunity.” Rather than responding to SureChoice’s request for additional
information or providing estimates or documentation to support her demand, Glasper
filed suit. One day after receiving service of Glasper’s suit, SureChoice “invoke[d]
and demand[ed] appraisal pursuant to the Policy.” On these facts, Glasper has not
established the existence of “a mutual understanding that neither [party] will
negotiate further,” and she thus failed to demonstrate that an impasse occurred.
(Emphasis added.) See In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d
at 410 (holding that when insurer left file open should insured wish to pursue further
discussion, court would not “infer waiver where neither explicit language nor
conduct indicates that such was the party’s intent”).
17 2. SureChoice did not waive its appraisal rights by invoking appraisal after Glasper filed her suit.
Glasper also argues that SureChoice “in effect waived [a]ppraisal” by not
invoking appraisal before suit was filed. Glasper argues that when SureChoice
invoked appraisal, she “had already filed suit and chosen the litigation route,” and
thus SureChoice “waived appraisal.” We reject Glasper’s arguments.
First, the Policy requires waiver in writing, and there is no evidence of any
such writing. Second, Glasper’s decision to file suit says nothing about
SureChoice’s right to invoke appraisal under the Policy. The Policy provides that if
the parties disagree on the amount of a loss, “either may demand an appraisal of the
loss.” Thus, because the right of appraisal is mutual, Glasper’s decision to file suit
did not compromise SureChoice’s contractual right to invoke its appraisal right.
Third, nothing in the Policy provides a deadline by when appraisal must be
invoked. And Glasper has cited no authority suggesting that the timing involved
here is tantamount to waiver. Glasper quotes from Johnson stating that “[a]ppraisal
is intended to take place before suit is filed,” but the context of that quote reflects
that the court was explaining that when invoked, appraisal “is a condition precedent
to suit.” See Johnson, 290 S.W.3d at 895. The court did not, as Glasper suggests,
hold that appraisal must be invoked prior to suit. Rather, when analyzing waiver in
the context of appraisal, courts focus on the parties’ conduct. See In re Universal
Underwriters of Texas, Ins. Co., 345 S.W.3d at 407-08 (holding that courts focus on 18 parties’ conduct as “indication[] of waiver” and while timing may be relevant to
parties’ intention, “it alone is not the standard by which courts determine the
reasonableness of a delay.”).
Glasper has not shown that the timing of SureChoice’s demand for appraisal
was unreasonable. As Glasper concedes, SureChoice invoked its appraisal rights
four months after receiving her demand letter and only one day after receiving
service of her suit. This was not an unreasonable delay or conduct inconsistent with
SureChoice’s appraisal rights. See id. (finding no waiver where insurer sought
appraisal one month after suit was filed and concluding appraisal was invoked within
reasonable time after parties reached impasse); In re Liberty Ins. Corp., 496 S.W.3d
at 233 (granting mandamus relief where insurer invoked appraisal after suit filed and
after parties participated in mediation, and concluding there was no evidence that
insurer waived appraisal in writing). And even if SureChoice had unreasonably
delayed, “mere delay is not enough to find waiver; a party must show that it has been
prejudiced.” In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d at 411.
Glasper does not argue she was prejudiced in any way by SureChoice’s purported
delay in invoking appraisal. Glasper only argues that appraisal would be a waste of
time because this is a case involving a coverage dispute, an argument we have
already addressed and discounted. See Johnson, 290 S.W.3d at 894 (“When an
19 insurer denies coverage, appraisers can still set the amount of loss in case the insurer
turns out to be wrong.”).
In short, the evidence does not reflect that SureChoice intentionally
relinquished its appraisal rights or engaged in intentional conduct inconsistent with
claiming its rights. See In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d
at 407 (holding that waiver requires intent shown by “either the intentional
relinquishment of a known right or intentional conduct inconsistent with claiming
that right”). The trial court abused its discretion in denying SureChoice’s Motion to
Compel Appraisal.
Adequate Appellate Remedy
The Texas Supreme Court has held that refusal to enforce an appraisal clause
is an abuse of discretion that cannot be remedied by appeal. Id. at 412 (“[M]andamus
relief is appropriate to enforce an appraisal clause because denying the appraisal
would vitiate the insurer’s right to defend its breach of contract claim.”); see also In
re Liberty Ins. Corp., 496 S.W.3d at 235 (“We conclude that the trial court abused
its discretion by denying [the insurer’s] motion to compel appraisal and that [the
insurer] has no adequate appellate remedy to correct this error.”).
We thus hold that SureChoice lacks an adequate appellate remedy and
mandamus relief is appropriate.
20 Abatement
When the trial court denied SureChoice’s Motion to Compel Appraisal, it also
denied its corresponding Motion to Abate pending the appraisal process. Because
the trial court denied SureChoice’s Motion to Compel, there was no need to consider
the necessity of abatement during appraisal. In its mandamus petition, SureChoice
does not separately challenge the trial court’s denial of its Motion to Abate. Given
our conditional grant of mandamus relief to compel appraisal, SureChoice may re-
urge in the trial court its request for abatement pending the appraisal process.
Conclusion
We conditionally grant mandamus relief as to SureChoice’s request to compel
an appraisal. We direct the trial court to (1) vacate its April 25, 2024 order denying
SureChoice’s Motion to Compel Appraisal and (2) order the parties to engage in the
appraisal process. The writ will issue only if the trial court fails to do so.
Veronica Rivas-Molloy Justice
Panel consists of Chief Justice Adams and Justices Rivas-Molloy and Gunn.