702 S.W.3d 876
Tex. App.2024Background
- Nicole Glasper filed suit against SureChoice Underwriters Reciprocal Exchange after her property insurance claim was denied, with the insurer and Glasper’s adjuster differing sharply on the amount of loss.
- The insurance policy included a mandatory appraisal clause allowing either party to demand appraisal if they disagreed on the amount of loss; it also specified that waiver of any policy provision had to be in writing by SureChoice.
- SureChoice denied Glasper’s claim, asserting damages were below the deductible and not storm-related; Glasper’s adjuster claimed significantly greater damage.
- Glasper sought actual damages, statutory interest, and attorney’s fees, and filed suit after SureChoice declined to pay her demand but left the possibility open for additional documentation.
- After being served with the lawsuit, SureChoice promptly invoked the policy’s appraisal clause and moved to compel appraisal and abate litigation; the trial court denied this motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of Appraisal Clause | SureChoice waived appraisal by not invoking it pre-suit | No written waiver; invoked as soon as served; no prejudice shown | No waiver—policy requires written waiver, none given |
| Timing of Invocation of Appraisal | Delay in invoking (post-suit) constituted waiver | Invoked appraisal within reasonable time, one day after service | No waiver by delay or post-suit invocation |
| Appraisal not suitable due to causation issue | Appraisal only resolves amount, not causation (coverage) | Appraisal can separate amount from causation; coverage litigable | Appraisal appropriate even with causation dispute |
| Adequacy of appellate remedy | N/A | Denial of appraisal not adequately remedied on appeal | Mandamus appropriate, not correctable on appeal |
Key Cases Cited
- In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d 404 (Tex. 2011) (appraisal clauses in insurance policies are generally enforceable and courts have little discretion to deny enforcement)
- State Farm Lloyds v. Johnson, 290 S.W.3d 886 (Tex. 2009) (appraisal is not barred by coverage or causation disputes and should generally proceed)
- In re Liberty Ins. Corp., 496 S.W.3d 299 (Tex. App.—Houston [1st Dist.] 2016) (denial of claim is not alone sufficient to waive appraisal right; policy terms govern waiver)
- In re Prudential Ins. Co., 148 S.W.3d 124 (Tex. 2004) (mandamus is appropriate where no adequate remedy by appeal exists)