In re Cypress Texas Lloyds
419 S.W.3d 443
| Tex. App. | 2012Background
- Cypress Texas Lloyds seeks mandamus relief to overturn a denial of its motion to compel appraisal under an insurance policy with an appraisal clause.
- The Newmans filed suit on a homeowners policy; Cypress asserted waiver by delaying appraisal.
- Cypress pleaded failure to submit to appraisal and sought abatement as a condition precedent.
- At the hearing, the case was removed from the trial docket to address the appraisal issue, and the trial court found waiver.
- The trial court considered time lapse, discovery, and litigation costs, finding Cypress delayed and the Newmans incurred costs before Cypress moved to compel.
- The court ultimately denied the motion to compel, prompting the mandamus petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of appraisal requires prejudice due to delay | Cypress delayed invoking appraisal after impasse and pursued discovery; prejudice to Newmans. | Waiver not established; apology due to Newmans’ failure to request appraisal; Cypress did invoke through abatement. | Waiver not established; mandamus conditionally granted to compel appraisal. |
Key Cases Cited
- In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d 404 (Tex. 2011) (prejudice required to waive appraisal; both sides have same right to demand appraisal)
- R.R. Comm’n of Tex. v. Aluminum Co. of Am., 380 S.W.2d 599 (Tex. 1964) (courts may not ignore deliberate statements of law from Supreme Court)
- In re Southern Ins. Co., 2011 WL 846205 (Tex.App.-Beaumont 2011) (lower court not free to ignore deliberate Supreme Court statements)