TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-08-00408-CV
The Spicewood Summit Office Condominiums Association, Inc., Appellant
v.
America First Lloyd's Insurance Company, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-07-001768, HONORABLE JON N. WISSER, JUDGE PRESIDING
O P I N I O N
Commercial property owned by appellant Spicewood Summit Office Condominiums
Association, Inc. was damaged in a hailstorm. The property was insured by appellee America First
Lloyd's Insurance Company. Spicewood claims that America First has not paid all amounts
due under the insurance policy as a result of the damage caused by the hailstorm. America First
denied that it has failed to pay under the terms of the policy, and sought summary judgment as
to Spicewood's contract-based claims based on the contractual limitations period having run and
as to Spicewood's extra-contractual claims based on the assertion that there is no evidence of
America First's bad faith in rejecting Spicewood's claim under the policy. The district court granted
summary judgment in favor of America First as to all of Spicewood's claims. We affirm the
judgment as to Spicewood's extra-contractual claims. However, we find that the contractual
limitations provision in the insurance contract is void and, therefore, reverse the district court's
judgment as to Spicewood's contract-based claims and remand.
Factual and Procedural Background
On March 25, 2005, a hailstorm damaged five two-story buildings at the Spicewood
Summit Office Condominiums in Austin. The buildings each have "metal clad wall panels on
the upper stories" and "batten style architectural metal roof panels." Spicewood Summit Office
Condominiums Association is the property owner. Spicewood had an existing insurance policy with
America First Lloyd's Insurance Company insuring the premises against property loss occurring
from damage caused by windstorm and hail.
Spicewood reported the damage to America First on March 28, 2005. After
America First's initial assessment of the loss, Spicewood obtained an independent assessment that
estimated a significantly higher cost of repair. America First then had an inspection of the property
performed and issued payments for "minor additional roof repairs" on November 16, 2005. On
March 13, 2006, in response to another inquiry from Spicewood, America First had a reinspection
of the buildings performed, which resulted in a supplemental payment by America First on May 10,
2006. On January 4, 2007, Spicewood requested that the claim be reopened and the property
reinspected, which resulted in two additional inspections and another supplemental payment made
by America First in May 2007.
Dissatisfied with the amounts paid by America First, Spicewood filed suit against
America First on June 13, 2007. In its petition, Spicewood asserted claims for breach of the
insurance contract, prompt-payment penalties under subchapter B of chapter 542 of the insurance
code, and related attorneys' fees. Spicewood also asserted extra-contractual claims for breach of
the duty of good faith and fair dealing under the common law, violation of insurance code
chapter 541 and the Deceptive Trade Practices-Consumer Protection Act, and related attorneys' fees.
America First filed both "traditional" and "no evidence" motions for summary judgment. On
March 21, 2008, the district court granted America First's motions for summary judgment, ruling
that (1) Spicewood's claims for breach of contract, prompt-payment penalties, and related attorneys'
fees were precluded based on "the contractual limitations period provided in the [insurance] policy,"
and (2) Spicewood's extra-contractual claims were precluded because "there was, at most, a
bona fide dispute regarding the extent of damage and valuation of Plaintiff's loss." Spicewood
appeals the judgment. We review the summary judgment de novo. See Joe v. Two Thirty Nine Joint
Venture, 145 S.W.3d 150, 156 (Tex. 2004).
Contractual Limitations Provision
America First asserted in its "traditional" motion for summary judgment that the
limitations period established by the insurance contract precludes Spicewood's breach of contract
claim. Under the "traditional" Rule 166a(c) standard, a summary judgment should be granted
only when the movant establishes that there is no genuine issue as to any material fact and that it is
entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). A defendant moving for summary judgment on
the affirmative defense of limitations has the burden to conclusively establish that defense.
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). If the movant establishes
that limitations bars the action, the non-movant must then adduce summary judgment proof raising
a fact issue in avoidance of limitations. Id. When reviewing a summary judgment, we take as true
all competent evidence favorable to the non-movant, and indulge every reasonable inference and
resolve any doubts in the non-movant's favor. Id.
As a general rule, the statute of limitations for a breach of contract action is four years
from the day the cause of action accrues. See Tex. Civ. Prac. & Rem. Code Ann. § 16.051
(West 2008); Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). Parties may contract for a different
period of time in which a party may file a breach of contract action. See Jett v. Truck Ins. Exch.,
952 S.W.2d 108, 109 (Tex. App.--Texarkana 1997, no writ). However, section 16.070(a) of
the Texas Civil Practice and Remedies Code sets a statutory limit with respect to how short the
period may be.
[A] person may not enter a stipulation, contract, or agreement that purports to limit
the time in which to bring suit on the stipulation, contract, or agreement to a period
shorter than two years. A stipulation, contract, or agreement that establishes a
limitations period that is shorter than two years is void in this state.
Tex. Civ. Prac. & Rem. Code Ann. § 16.070(a) (West 2008).
Civil practice and remedies code section 16.070(a) does not explicitly limit
what event can trigger a contractual limitations period. However, under the plain language of
section 16.070(a), the "time in which to bring suit" cannot be shorter than two years. A party is
unable to bring suit until the party's cause of action has accrued. See Luling Oil & Gas Co.
v. Humble Oil & Refining Co., 191 S.W.2d 716, 721 (Tex. 1945) ("The accrual of a cause of action
means the right to institute and maintain a suit, and whenever one person may sue another a cause
of action has accrued."); Port Arthur Rice Milling Co. v. Beaumont Rice Mills, 143 S.W. 926, 928
(Tex. 1912) ("'The accrual of the cause of action' means the right to institute and maintain
a suit; and whenever one person may sue another a cause of action has accrued, and the statute
[of limitations] begins to run."). Likewise, the plain language of section 16.070(a) establishes a two-year minimum for the "limitations period," which by its general meaning has as its beginning
point the accrual of a cause of action. See Barker v. Eckman, 213 S.W.3d 306, 311 (Tex. 2006)
("Limitations begins to run upon accrual of the cause of action."); Seureau v. ExxonMobil Corp.,
274 S.W.3d 206, 226 (Tex. App.--Houston [14th Dist.] 2008, no pet.) ("'Accrual' refers to the
date when a limitations period begins to run."). Consequently, a contractual limitations period, to
comply with section 16.070(a), cannot end until after two years after the day the cause of action for
breach of the agreement has accrued. (1)
This does not mean that the trigger for a contractual limitations period must be the
accrual of the applicable cause of action. Rather, the statute requires that, even if the parties to a
contract establish an event other than the accrual of a cause of action as the trigger for the contractual
limitations period, the contractual period for filing suit cannot end until at least two years after the
cause of action accrues. It necessarily follows that if a contractual limitations period for a cause of
action is set at a minimum length of two years, the contract cannot establish a trigger for that period
that occurs prior to the accrual of the cause of action, as that would have the effect of shortening the
period for filing suit to less than two years.
The insurance contract between America First and Spicewood contains the following
provision:
No one may bring a legal action against [America First] under this policy unless:
a. There has been full compliance with all the terms of this insurance, and
b. The action is brought within 2 years and one day after the date on which the
direct physical loss or damage occurred.
According to subsection (b) of this provision, the two-year contractual limitations
period commences on the date of loss. Thus, for the contractual period to comply with civil practice
and remedies code section 16.070(a), Spicewood must have been able to bring its claim for breach
of contract against America First as early as the date of loss. However, subsection (a) of the
contractual provision requires that there must be "full compliance with all the terms" of the insurance
policy by the insured for it to bring a "legal action." See Jett, 952 S.W.2d at 111-12 (interpreting
similar contractual provision to mean "all of the insured's requirements within the policy
must be met before a suit against the insurer can be brought"). The insurance contract requires that
Spicewood give prompt notice of loss or damage to the insured property, and provides America First
fifteen days after receipt of such notice to begin its investigation and request a "signed, sworn
proof of loss." America First's obligation to provide notification that the claim has been accepted
or denied, in full or in part, is not triggered until Spicewood has submitted the proof of loss and all
other information requested by America First. Therefore, Spicewood was not entitled to file suit
against America First under the policy on the date on which the direct physical loss or damage
occurred because, without more, no breach of the insurance agreement by America First had
yet occurred, and Spicewood did not yet have a cause of action for breach of contract. See Murray
v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990) ("[A] cause of action generally
accrues at the time when facts come into existence which authorize a claimant to seek a judicial
remedy."). A trigger date for a two-year contractual limitations provision that precedes the date the
cause of action accrues, such as the provision at issue here, will result in a "time in which to bring
suit" that is shorter than two years in violation of section 16.070(a) of the civil practice and remedies
code. See Tex. Civ. Prac. & Rem. Code Ann. § 16.070(a).
A provision in an insurance contract that establishes a limitations period shorter than
two years is void. See id. As discussed above, the provision at issue in this case has the practical
effect of providing a period in which to file suit that is less than two years. Therefore, the contractual
limitations provision is void. As a result, the four-year statute of limitations governs Spicewood's
breach of contract claim. See id. § 16.051; National Military Mut. Life Ins. Co. v. Cross, 379 S.W.2d
96, 99 (Tex. Civ. App.--Corpus Christi 1964, no writ); Culwell v. St. Paul Fire & Marine Ins. Co.,
79 S.W.2d 914, 916 (Tex. Civ. App.--Eastland 1935, writ dism'd w.o.j.). Spicewood's petition,
which was filed on June 13, 2007, was filed within this four-year limitations period. (2)
America First contends that two Texas federal cases--Douskos v. Eden Park
Insurance Co., No. A-01-CV-192 JRN, 2001 U.S. Dist. LEXIS 7953 (W.D. Tex. June 15, 2001),
and Port Arthur Towing Co. v. Mission Insurance Co., 623 F.2d 367 (5th Cir. 1980)--confirm
the validity of a two-year contractual limitations period that runs from the date of loss. We are not
persuaded that these cases support America First's position. In Douskos, the insurance contract
provided that suit must be brought "within 2 years after the date on which the direct physical loss
or damage occurred." 2001 U.S. Dist. LEXIS 7953, at *5. The court held that the phrase "within
2 years" resulted in a period shorter than two years and, therefore, found the contractual provision
void. See id. at *5-6. The court did not, however, hold that the provision would have been valid if
it had instead stated "within 2 years and one day." See id. In Port Arthur, the insurance contract
provided that the limitations period was the "shortest limit of time permitted" by state law. 623 F.2d
at 368. The court held that a two-year limitations period applied as the shortest period permitted by
Texas law, and dismissed the plaintiff's lawsuit as untimely. See id. at 369-70. The court did not,
however, discuss or analyze when the limitations period commenced or the trigger date's effect on
the actual length of the limitations period. (3)
In addition, America First contends that the form of the insurance policy at issue was
approved by the commissioner of insurance, see Tex. Ins. Code Ann. § 2301.006(a) (West 2009)
("[A]n insurer may not deliver or issue for delivery in this state a form for use in writing insurance
. . . unless the form has been filed with and approved by the commissioner."), and that we should
defer to the commissioner's approval of the policy's limitations provision as an expression of the
validity of the provision under civil practice and remedies code section 16.070. Construction of a
statute by the administrative agency charged with its enforcement is entitled to serious consideration,
so long as the construction is reasonable and "does not contradict the plain language of the statute."
Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993). It is not clear in this case
that the commissioner's approval of the policy form is any form of a statement by the commissioner
regarding the proper interpretation of section 16.070. Nonetheless, even if it were, the insurance
policy's limitations provision contradicts the plain language of section 16.070(a). Therefore,
any amount of deference we provide to the insurance commissioner's approval of the form of
America First's insurance policy would not result in the validation of the policy's limitations
provision in light of section 16.070's clear mandate.
Because the two-year contractual limitations period is unenforceable, Spicewood's
breach of contract claim is not barred by limitations. Therefore, the district court's grant of
summary judgment as to Spicewood's claims for breach of the insurance contract, statutory
penalties for delayed payments under the policy under insurance code chapter 542, and related
attorneys' fees was error. (4)
Bona Fide Coverage Dispute
In its petition, Spicewood also claims that America First's "wrongful withholding
of benefits" constituted a breach of the common law duty of good faith and fair dealing and a
violation of insurance code chapter 541, see Tex. Ins. Code Ann. §§ 541.001-.454 (West 2009)
("Unfair Methods of Competition and Unfair or Deceptive Acts or Practices"). Spicewood further
alleges that America First's "act of denying payment of benefits" violated the Deceptive Trade
Practices-Consumer Protection Act (DTPA), see Tex. Bus. & Com. Code Ann. §§ 17.41-.63
(West 2002 & Supp. 2008).
An insurer breaches its duty of good faith and fair dealing by denying or delaying
a claim when the insurer's liability has become reasonably clear. Universe Life Ins. Co. v. Giles,
950 S.W.2d 48, 55-56 (Tex. 1997). (5) The focus is not on whether the insured's claim was valid, but
on the reasonableness of the insurer's conduct in rejecting the claim. See Lyons v. Millers Cas.
Ins. Co., 866 S.W.2d 597, 601 (Tex. 1993); Oram v. State Farm Lloyds, 977 S.W.2d 163, 166-67
(Tex. App.--Austin 1998, no pet.). This inquiry is a fact issue. See Giles, 950 S.W.2d at 56.
Absent legally sufficient evidence of bad faith, however, Spicewood's claims under the common
law, insurance code chapter 541, and the DTPA are subject to summary judgment. See U.S. Fire Ins.
Co. v. Williams, 955 S.W.2d 267, 268-69 (Tex. 1997) (summary judgment dismissing common law
claim proper where no evidence of bad faith); Douglas v. State Farm Lloyds, 37 F. Supp. 2d 532,
544 (S.D. Tex. 1999) ("[W]hen an insured joins claims under the Texas Insurance Code and
the DTPA with a bad faith claim, all asserting a wrongful denial of policy benefits, if there is
no merit to the bad faith claim, there can be no liability on either of the statutory claims."). Evidence
establishing only a "bona fide coverage dispute," without more, does not rise to the level of bad faith.
State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 44 (Tex. 1998); Williams, 955 S.W.2d
at 268.
America First asserted in its "no evidence" motion for summary judgment that there
was no evidence of bad faith and "Spicewood cannot show anything more than a bona fide dispute
with regard to coverage." Under the Rule 166a(i)--or "no evidence"--standard, after adequate time
for discovery a defendant may move for summary judgment on the ground that there is no evidence
of one or more essential elements of a claim on which the plaintiff would have the burden of proof
at trial. See Tex. R. Civ. P. 166a(i). A no evidence summary judgment is essentially a pre-trial
directed verdict, and we apply the same legal sufficiency standard. Moore v. K Mart Corp.,
981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied). We review the evidence in the
light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id. The
granting of a no evidence motion will be sustained when the evidence offered by the non-movant
to prove a vital fact is no more than a mere scintilla. Merrell Dow Pharms., Inc. v. Havner,
953 S.W.2d 706, 711 (Tex. 1997). More than a scintilla of evidence exists when the evidence as a
whole rises to a level that would enable reasonable and fair-minded people to differ in their
conclusions. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no
more than create a mere surmise or suspicion. Moore, 981 S.W.2d at 269.
Spicewood attached to its response to America First's motion for summary judgment
the same documents that America First attached to its motion: a copy of the insurance contract, an
affidavit by America First's senior claims analyst with primary responsibility for investigating
Spicewood's claim under the policy, and three reports made by inspectors hired by America First
assessing the damage to the property. According to these documents, America First hired a roof
consultant in 2005 to reinspect the property after Spicewood obtained from its roofing contractor a
cost estimate of the hailstorm damage in excess of $392,000. The consultant's November 7, 2005
report details his on-site investigation and building-by-building assessments of damage and cost
estimates for repairs. For several of the buildings, the consultant identified damage that he assessed
as "maintenance issues" that were not caused by the hailstorm. America First issued payments of
$1,623.75 per building on November 16, 2005, in accordance with the roof consultant's report. In
early 2006, America First again sent the roof consultant to the Spicewood property for a reinspection,
which was performed with Spicewood's roofing contractor present. From this March 13, 2006
inspection, the consultant again assessed "no functional loss" to wall panels, but observed "very
minor and sparse denting" when viewed from different angles. There is no report from the
2006 inspection in the record. According to the senior claims analyst's affidavit, America First
issued a supplemental payment on May 10, 2006, in accordance with the consultant's new estimate
following the 2006 inspection.
In early 2007, Spicewood again requested a reinspection of the property.
America First assigned the task to a different company. The March 1, 2007 report following
the reinspection describes the inspection of each building. The new inspector found "no damage
that would warrant the replacement of this metal roof system." However, the new inspector--per
America First's request--contacted an engineering company to investigate the property. The
engineering company's nine-page report, issued on April 3, 2007, contains building-by-building
descriptions of the company's inspections and conclusions. The engineering company concluded
that, "[f]rom an engineering and functional perspective, the metal roof and siding panels
are functioning as intended and do not warrant repair or replacement." Based on the engineering
company's finding that the "western exposures of the metal siding panels" on four of the buildings
had been "cosmetically affected by hail stone impact," America First issued a final payment in
May 2007.
In contrast to the reports in the record from America First's three inspectors,
Spicewood did not produce any reports or testimony from any other expert as to the reasonableness
or unreasonableness of America First's loss assessments. Indeed, there is no evidence at all of how
any amount of damages sought by Spicewood has been determined. As a result, there is no evidence
that any amount sought by Spicewood under the policy is reasonable, or that any inspector relied on
by Spicewood to determine such an amount is qualified and reliable. Further, there is no evidence
that the reports of America First's inspectors were not objectively prepared, or that America First's
reliance on each of those reports in making payments to Spicewood was unreasonable, or any other
evidence from which a fact-finder could infer that America First acted without a reasonable basis
or that liability in excess of the reports' damage assessments was reasonably clear. See Lyons,
866 S.W.2d at 601.
Spicewood appears to argue that the fact that an insurance company would agree to
perform subsequent assessments that result in additional amounts paid under the policy, by itself,
is some evidence of bad faith. However, this evidence standing alone does not suggest anything in
the nature of bad faith. If anything, an insurer's agreeing to perform a reassessment demonstrates
good faith. To find otherwise might encourage insurers to stand by their initial assessments for fear
that their willingness to consider new evidence and issue supplemental payments would indicate
their initial assessments were made in bad faith. Moreover, there is no evidence here of any delay
in the insurer's responding to the insured's inquiries, any fundamental differences among the
multiple assessments, or any refusal by the insurer to make additional payments in accordance with
an increased assessment of damage.
Furthermore, Spicewood bases its bad faith claims on the assertion that the total
amount ultimately paid under the policy is insufficient--a wrongful denial of benefits--not on an
assertion that the total amount should have been paid at the time of the initial assessment--a
wrongful delay of benefits. See Giles, 950 S.W.2d at 56. The fact that Spicewood requested
multiple assessments, without more, is no evidence that the final assessment made was unreasonable.
Likewise, the fact that America First issued multiple payments over time rather than the full payment
initially is no evidence that the total amount paid is insufficient. Spicewood produced evidence
that it had obtained from its own contractor a higher damage estimate than the amounts paid.
However, without any evidence as to the reasonableness of the amount sought by Spicewood or the
unreasonableness of the amounts paid by America First, Spicewood has failed to produce any
evidence that the dispute is anything more than a bona fide dispute as to the amount of the loss. See
Travelers Pers. Sec. Ins. Co. v. McClelland, 189 S.W.3d 846, 854 (Tex. App.--Houston [1st Dist.]
2006, no pet.).
Spicewood's summary judgment evidence--including America First's senior claim
adjuster's affidavit and the reports issued by three separate inspectors hired by America First--does
not provide any evidence that America First's basis for rejecting Spicewood's claim for additional
amounts was unreasonable, see Lyons, 866 S.W.2d at 601, or that America First's liability for
such additional amounts was reasonably clear, see Giles, 950 S.W.2d at 56, or that anything more
than a bona fide coverage dispute exists between the parties, see Williams, 955 S.W.2d at 268.
Therefore, the district court's grant of a take nothing summary judgment as to Spicewood's claims
for breach of a common-law duty of good faith and fair dealing and for violations of insurance code
chapter 541 and the DTPA was not error.
Conclusion
We reverse the district court's judgment with respect to Spicewood's claims for
breach of contract, prompt-payment penalties under insurance code chapter 542, and attorneys' fees
in connection with such claims, and we remand those claims to the district court for further
proceedings. We affirm the district court's judgment with respect to all other claims.
__________________________________________
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed in part; Reversed and Remanded in part
Filed: June 12, 2009
1. Our statutory interpretation comports with those courts that have previously construed
civil practice and remedies code section 16.070(a) or its predecessor. See Holston v. Implement
Dealers Mut. Fire Ins. Co., 206 F.2d 682, 684 (5th Cir. 1953) ("The clear meaning of the statute is
that the plaintiff must be given at least two years after the accrual of his cause of action within which
to file suit."); Salazar v. Capitol County Mut. Fire Ins. Co., No. 04-96-00995-CV, 1998 Tex. App.
LEXIS 2450, at *5-7 (Tex. App.--San Antonio Apr. 22, 1998, no pet.) (not designated for
publication); Culwell v. St. Paul Fire & Marine Ins. Co., 79 S.W.2d 914, 916 (Tex. Civ.
App.--Eastland 1935, writ dism'd w.o.j.); American Sur. Co. v. Martinez, 73 S.W.2d 109, 112
(Tex. Civ. App.--El Paso 1934, writ ref'd); Taylor v. National Life & Accident Ins. Co., 63 S.W.2d
1082, 1083 (Tex. Civ. App.--Amarillo 1933, writ dism'd w.o.j.).
2. There is no dispute between the parties that if a four-year limitations period
applies, it would be satisfied here. Therefore, we need not determine whether the limitations period
began to run on the date of loss, see Administrative Servs. of N. Am. v. Hartford Fid. & Bonding Co.,
245 F. App'x 384, 386 (5th Cir. 2007) (voiding contract's provision regarding limitations period's
duration, but not voiding provision regarding accrual of claim), on the date of the initial payments
under the policy, see Pace v. Travelers Lloyds of Tex. Ins. Co., 162 S.W.3d 632, 634-35
(Tex. App.--Houston [14th Dist.] 2005, no pet.) (holding that limitations began to run on denial
of coverage, and reconsideration of claim did not restart limitations period), or on the date of
the final payments under the policy, see Peña v. State Farm Lloyds, 980 S.W.2d 949, 954
(Tex. App.--Corpus Christi 1998, no pet.) (holding that "reinvestigation of and partial payment for
the same reported problems" reset starting date for limitations period).
3. We note that when faced with the identical situation as in Port Arthur, the Fourteenth
Court of Appeals rejected the Fifth Circuit's holding, and held instead that a contract providing
for the "shortest limitation of time permitted" by state law fails to specify a lawful period of
limitations, resulting in application of the four-year statute of limitations. See Duster v. Aetna Ins.
Co., 668 S.W.2d 806, 806-07 (Tex. App.--Houston [14th Dist.] 1984, writ ref'd).
4. America First concedes that reversal of the district court's judgment on the breach of
contract claim also results in reversal of the court's judgment on Spicewood's claims for prompt-payment penalties and related attorneys' fees. See Harris v. American Prot. Ins. Co., 158 S.W.3d
614, 623 (Tex. App.--Fort Worth 2005, no pet.) (insurer not liable for violation of prompt-payment
statute unless liable for underlying insurance claim); Wheelways Ins. Co. v. Hodges, 872 S.W.2d
776, 783 n.8 (Tex. App.--Texarkana 1994, no writ) (attorneys' fees recoverable pursuant to
civil practice and remedies code section 38.001 in successful suit for breach of contract).
5. An insurance company may also breach its duty of good faith and fair dealing by failing
to reasonably investigate a claim. See State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 44-45 (Tex. 1998); Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 56 n.5 (Tex. 1997). Spicewood has
not alleged a violation of this duty.