Nassar v. Liberty Mutual Fire Insurance Co.
478 S.W.3d 65
Tex. App.2015Background
- Nassars’ residence in Richmond, Texas insured under Liberty Mutual Homeowners Form A (Aug 2, 2008–Aug 8, 2009) was damaged by Hurricane Ike in Sept 2008.
- Liberty Mutual paid certain Ike losses in Nov 2008, but fence coverage and other dwelling/structure damages were disputed.
- The Nassars sued Liberty Mutual in Feb 2009 for breach of contract and extra-contractual claims; the trial court entered summary judgment for Liberty on coverage and extra-contractual claims and later compelled appraisal for remaining amounts.
- An appraisal award totaling 13,280.77 for the dwelling was issued; the award expressly stated no fence was included in the dwelling; prior payments had been made under the policy's coverage.
- The Nassars appealed challenging (i) coverage for the fence, (ii) remaining extra-contractual claims, and (iii) the compelled appraisal.
- The appellate court affirmed the trial court’s judgment, upholding the appraisal and denial of fence coverage under the dwelling, and rejecting the Nassars’ extra-contractual claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fence coverage under Coverage A (Dwelling) vs. Other Structures | Nassars: fence is a structure attached to dwelling under (1). | Liberty Mutual: fence is a separate 'other structure' under (2) with a lower limit. | Fence not covered under (1); upheld (2) interpretation. |
| Extra-contractual claims viability after coverage ruling | Nassars allege bad faith and misrepresentations regarding coverage. | Liberty Mutual denial based on valid coverage position; no extreme conduct shown. | No viable bad-faith or misrepresentation claims. |
| Appraisal process validity and scope | Appraisal tainted by waiver, fraud, or exceedance of scope;Dwelling damages should include fence. | Waiver not shown; appraisal limited to damages caused by Ike with proper scope. | Appraisal valid; waiver not established; fence not included in appraisal for dwelling. |
| Waiver and timing of invoking appraisal | Liberty waived appraisal by delaying after impasse. | No waiver; impasseTiming shows proper invocation. | No waiver; appraisal timely invoked. |
Key Cases Cited
- In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d 404 (Tex. 2011) (appraisal clauses generally enforceable; waiver/impasse considerations)
- Franco v. Slavonic Mut. Fire Ins. Ass’n, 154 S.W.3d 777 (Tex.App.—Houston [14th Dist.] 2004) (appraisal awards are binding and presumptively sustainable)
- State Farm Lloyds v. Johnson, 290 S.W.3d 886 (Tex. 2009) (causation and damages; appraisal scope considerations)
- Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) (standard for reviewing summary judgments)
- Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462 (Tex. 1998) (interpretation of contract language and avoid rendering terms meaningless)