United Neurology, P.A. v. Hartford Lloyd's Insurance

995 F. Supp. 2d 647, 2014 WL 345666, 2014 U.S. Dist. LEXIS 11664
CourtDistrict Court, S.D. Texas
DecidedJanuary 30, 2014
DocketCivil Action No. H-10-4248
StatusPublished
Cited by2 cases

This text of 995 F. Supp. 2d 647 (United Neurology, P.A. v. Hartford Lloyd's Insurance) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United Neurology, P.A. v. Hartford Lloyd's Insurance, 995 F. Supp. 2d 647, 2014 WL 345666, 2014 U.S. Dist. LEXIS 11664 (S.D. Tex. 2014).

Opinion

OPINION AND ORDER

MELINDA HARMON, District Judge.

Pending before the Court in the above referenced cause, removed from state court on diversity jurisdiction and arising out of damage to the roofs and interiors of Plaintiffs United Neurology, P.A. and Athari Real Estate Ltd.’s properties located at 2315 and 2321 Southwest Freeway, Harris County, Texas, purportedly during Hurricane Ike and Plaintiffs’ subsequent claims under an insurance policy1 issued by Defendant Hartford Lloyd’s Insurance Company (“Hartford”), is Plaintiffs’ motion to set aside appraisal award (instrument #40).

Relevant Law

Because this case was removed from Texas state court, Texas substantive law applies. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Therefore the Court looks to final decisions by the Texas Supreme Court or, where there are none, attempts to determine as best as it can what that high court would decide about an issue by examining decisions of intermediate appellate state courts. James v. State Farm Mutual Aut. Ins. Co., 719 F.3d 447, 451 (5th Cir.2013), citing Westlake Petrochems., L.L.C. v. United Polychem, Inc., 688 F.3d 232, 238 n. 5 (5th Cir.2012), and Howe ex rel. Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir.2000).

Appraisal clauses in property insurance policies in Texas provide a method [649]*649to resolve disputes regarding the amount of loss for a covered claim. In re Universal Underwriters of Texas Ins. Co., 345 S.W.3d 404, 406-07 (Tex.2011). Because the language of a contract is intended to embody the intention of the parties, Texas courts have held that appraisal awards made pursuant to the provisions of an insurance contract are binding and enforceable. TMM Investments, Ltd. v. Ohio Cas. Ins. Co., 730 F.3d 466, 471-72 (5th Cir.2013). Such clauses are usually binding and enforceable in the absence of fraud, accident or mistake. State Farm Lloyds v. Johnson, 290 S.W.3d 886, 888 (Tex.2009). Michels v. Safeco Ins. Co. of Indiana, 544 Fed.Appx. 535, 540-41, 2013 WL 5935067, at *5 (5th Cir.2013). There is a strong public policy favoring enforcement of appraisal clauses and every reasonable presumption is indulged to sustain an award; the burden of proof is on the party seeking to avoid such an award. Michels, 544 Fed.Appx. at 540-42, 2013 WL 5935067, at *5-6.2 An award that is substantially in compliance with the insurance policy is presumptively valid and minor discrepancies in the appraisal process or award will not invalidate it. Id. at 541-42, 2013 WL 5935067, at *6, citing Providence Lloyds Ins. Co. v. Crystal City I.S.D. 877 S.W.2d 872, 875 (Tex.App.-San Antonio 1994, no writ); TMM, 730 F.3d at 472. An award not in compliance with the policy’s requirements may be disregarded. Michels, 544 Fed.Appx. at 541-42, 2013 WL 5935067, at *6. In addition to noncompliance with the policy requirements, an appraisal award will also not be enforced if it was made without authority or was the result of fraud, accident or mistake. TMM, 730 F.3d at 472, citing Crystal City, 877 S.W.2d at 875-76.

Generally a standard appraisal clause, such as the one at issue here, specifies appraisal as a means for resolving the “amount of loss” for a covered claim and “binds the parties to have the extent or amount of the loss,” i.e., the damages, determined by the "appraisers, while the question of liability for the loss is left to the court. State Farm Lloyds v. Johnson, 290 S.W.3d 886, 889 (Tex.2009). “The line between liability and damage questions may not always be clear,” however. Id.

In Johnson, the insured claimed that her roof had been damaged by a hailstorm. The insurance company determined that only the shingles on the ridge of the roof had been damaged by hail (as opposed to some other cause), disagreed about how many shingles were damaged and needed to be replaced, and offered to pay an amount much lower than she had requested, so the claimant invoked the appraisal provision. State Farm Lloyds argued against appraisal on the grounds that appraisers could not decide causation questions. The Texas Supreme Court opined that the dispute about how many shingles were damaged and needed to be replaced fell within the scope of appraisal because the amount of the loss, i.e., cost of replacing the shingles (or anything else), depends on both the price and the number of shingles. The Texas Supreme Court further noted that sometimes replacing only a part of a roof is not reasonable or even possible; the policy at issue in the case stated that the insurer would pay reasonable and necessary costs to repair or replace the damaged property and that repair of replacement is an “amount of loss” issue for the appraisers. It emphasized, “Causation relates to both liability [650]*650and damages because it is the connection between them.” Id. at 891-92. It observed, “[W]hen different causes are alleged for a single injury to property, causation is a liability question for the courts.” Id. at 892, citing Wells v. American States Preferred Ins. Co., 919 S.W.2d 679, 685-86 (Tex.App.-Dallas 1996, writ denied) (where “appraisers assessed foundation damage due to plumbing leaks (a covered peril) as ‘O’ but damage due to settling (an excluded peril) as $22,875.94,” the appellate court set aside the appraisal and held that appraisers could decide the amount of damage, but not what caused it). On the other hand, where different kinds of damages affect different items of property, the appraisers may need to decide the damage caused by each before a court can determine liability. Id. at 892, citing Lundstrom v. United Services Automobile Ass’n, 192 S.W.3d 78, 88 (Tex.App.-Houston [14th Dist.] 2006, petition denied) (where “appraisers assessed $4,226.19 for damages due to water (a covered peril) but made no finding for damages due to mold (as to which coverage was disputed),” the district court upheld, and the appellate court affirmed, the award for water damage, but the appellate court found no coverage existed for the mold damage, rendering that issue moot). Id. Where causation would involve dividing the loss due to a covered event from that of

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995 F. Supp. 2d 647, 2014 WL 345666, 2014 U.S. Dist. LEXIS 11664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-neurology-pa-v-hartford-lloyds-insurance-txsd-2014.