United National Insurance Company v. AMJ Investments, LLC

447 S.W.3d 1, 2014 WL 2895003, 2014 Tex. App. LEXIS 6969
CourtCourt of Appeals of Texas
DecidedJune 26, 2014
Docket14-12-00941-CV
StatusPublished
Cited by41 cases

This text of 447 S.W.3d 1 (United National Insurance Company v. AMJ Investments, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United National Insurance Company v. AMJ Investments, LLC, 447 S.W.3d 1, 2014 WL 2895003, 2014 Tex. App. LEXIS 6969 (Tex. Ct. App. 2014).

Opinions

OPINION

TRACY CHRISTOPHER, Justice.

After a seven-story office building was damaged by Hurricane Ike, the building’s owner and its property insurer disputed the amount that the insurer should pay under the insurance policy. A jury agreed with the owner that the insurer failed to pay the full amount due, and the insurer appealed the judgment awarding the owner compensatory damages, exemplary damages, and enhanced interest under the prompt-payment statute. We conclude that the evidence supports the jury’s findings that:

• the insurer failed to attempt a good-faith settlement of the claim when its liability was reasonably clear,
• the insured is entitled to recover $300,000.00 in compensatory damages despite the absence of an independent injury, and
• the insured’s bad-faith conduct was committed knowingly.

We conclude, however, that:

• the additional interest for the insurer’s violation of the prompt-payment statute was improperly calculated, and
• the evidence of reasonable and necessary attorney’s fees through the conclusion of trial was insufficiently specific to sustain the award.

We therefore affirm the awards of compensatory and exemplary damages; modify the award of enhanced interest; reverse the award of trial attorney’s fees; and [4]*4remand the' case for redetermination of trial attorney’s fees and for entry of judgment not inconsistent with this opinion.

I. Background

AMJ Investments bought a seven-story office building in April 2008 and insured it for its replacement value of $4 million with United National Insurance Co. Jacob Monty, AMJ’s owner, inspected the building with an engineer and an architect before the purchase and found no signs of improper maintenance. On September 13, 2008, Hurricane Ike damaged the building. Monty drove by the building the next day, saw some broken windows and debris, and telephoned the claim to his insurance agent. United paid AMJ insurance proceeds of $2,191,627.48 by March 16, 2009 and paid a further $222,000.00 on or about November 23, 2009. The parties disagree about whether United should have paid a larger total amount and should have paid more by March 16, 2009.

A. The Initial State of the Building

When Monty was able to enter the building two days, after the hurricane, there was about fourteen feet of water in the basement, and the water meter on the side of the building was spinning. At some point, it was discovered that some of the copper plumbing pipes and one of the sump pumps had been stolen from the basement, but the evidence is conflicting about whether the theft occurred on the day after the hurricane or after the water was already pumped out of the basement.

At unspecified locations throughout the building, water entered through cracked seals around the windows. Experts disagreed about whether the seals failed due to improper maintenance or due to the force of the wind during the hurricane. Additional water entered through two broken windows on the first floor, and both sides attributed that damage to the hurricane.

On top of the building, the elevator shaft culminated in a projecting “penthouse,” so that the building had a “main roof’ and a “penthouse roof,” both of which were damaged. Rain entering through both the penthouse roof and the main roof damaged the seventh floor. In addition, rain entering through the damaged penthouse roof traveled down the elevator shaft to the basement, damaging the shaft and nearby areas and contributing to the water damage in the basement. Both parties attributed this damage to the hurricane. On the main roof, the wind also moved a cellphone-antennae system several feet, damaging the roof below. The parties disagreed about whether the main roof suffered hurricane-related damage beyond this relatively small area.

B. The Claim Investigation and Payment

United hired independent adjuster Clay Sheffield to investigate the loss, and Monty hired public adjuster Gary Krone to represent AMJ’s interests and negotiate the claim’s settlement with United. While these activities were taking place, AMJ’s agents hired subcontractors to take steps to dry the building and prevent further damage, and United approved at least some advance payments to assist with that effort.

Sheffield testified that he was told that the sprinklers on the first floor had turned on and flooded that floor and the basement. He later learned of the theft of the copper piping and a sump pump, and concluded that much of the basement’s water damage fell within the policy’s theft exclusion.

As for the windows, Sheffield initially thought that water entered because the force of the wind broke the surrounding [5]*5seals. After inspecting the roof, he believed that the penthouse roof needed to be replaced, but that the main roof sustained only minor damage. He believed that water damage to the upper floors was the result of water entering through- the penthouse roof.

United authorized Sheffield to hire a “cause and origin” expert to assist in the investigation, and Sheffield retained Rim-kus Consulting. Three engineers employed by that company produced a report in which they concluded that some water damage on every floor was caused by rain entering through the penthouse roof and traveling down the elevator shaft, but that water damage around the unbroken windows occurred because the window seals were improperly maintained.

United or Sheffield also hired building consultánt Stephen Johnson of Unified Building Services to help prepare an estimate for repairs. Johnson estimated that the total cost of repairs would be $1,638,536.24. It is unclear whether this amount was intended to include the $700,000.00 that United had advanced to AMJ or was to be in addition to that amount. In any event, Krone agreed with Johnson’s estimate. Sheffield subsequently prepared his own estimate. He also prepared a proof-of-loss form, which AMJ’s owner executed on March 10, 2009; however, the numbers in the form were not taken from Johnson’s estimate, but were taken from Sheffield’s estimate, which Krone had never seen. On March 16, 2009, United sent Krone checks for more than $1.4 million. When added to AMJ’s deductible and to the payments that United had already advanced, these checks made the total amount of the property-damage claim paid by March 16, 2009 equal to the amount stated in Sheffield’s estimate.

At some point, Krone asked United to pay an additional $250,000.00, but there is conflicting evidence about whether the “supplemental claim” was made before or after March 16, 2009.1 The parties disagreed about whether the damage intended to be addressed by the payment was caused by the hurricane, and in November 2009, they reached a compromise in which AMJ agreed to accept payment of $222,000.00. United then asked AMJ to sign a full and final release reciting that in consideration of United’s payment of $2,413,627.48 (i.e., the combined total of amounts paid on the property-damage claim), AMJ released United from any further liability for the wind' damage to the building. AMJ refused to sign, -but United paid the agreed amount anyway.

AMJ made no further demands for policy proceeds, but sued United seven months later for breach of contract and bad faith.

C. The Trial

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Bluebook (online)
447 S.W.3d 1, 2014 WL 2895003, 2014 Tex. App. LEXIS 6969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-national-insurance-company-v-amj-investments-llc-texapp-2014.