551 S.W.3d 337
Tex. App.2018Background
- The Texas Municipal League Intergovernmental Risk Pool (Risk Pool), a governmental self-insurance entity, insured the City of Abilene for property damage from a June 12, 2014 wind/hail storm.
- The City submitted timely proofs of loss and the Risk Pool paid initial and several supplemental amounts, totaling about $6.95 million by June 2016.
- On June 13, 2016 the City submitted a much larger Proof of Loss (about $19.96 million) and later demanded appraisal under the policy; the Risk Pool refused to participate, asserting ongoing settlement discussions and disputing a disagreement over amount.
- The City sued for breach of contract and moved to compel appraisal and abate the case pending appraisal; it pleaded waiver of governmental immunity under the Texas Local Government Contract Claims Act (the Act), Tex. Loc. Gov't Code §§ 271.151-.160.
- The Risk Pool filed a partial plea to the jurisdiction, arguing the Act did not waive immunity for compelling appraisal because that would amount to impermissible specific performance or otherwise exceed remedies allowed by the Act; the trial court denied the plea and ordered appraisal; the Risk Pool appealed interlocutorily.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Act waives governmental immunity to compel contractual appraisal | City: Appraisal is an enforceable contractual adjudication procedure under §271.154 and the Act waives immunity for breach claims under §271.152 | Risk Pool: Compelling appraisal is equivalent to specific performance (a remedy not waived) or otherwise exceeds §271.153 limits | Court: Appraisal is a contractual adjudication procedure enforceable under §271.154 and is not specific performance; denial of plea to jurisdiction affirmed |
| Whether the City’s pleadings sufficiently alleged a waiver of immunity | City: Pleadings invoked the Act and sought appraisal under the policy; allegations support jurisdictional waiver | Risk Pool: Pleadings fail to affirmatively plead a permissible waiver and relief | Court: Accepting pleadings as true, City adequately pled waiver under the Act to compel appraisal |
Key Cases Cited
- Zachry Constr. Corp. v. Port of Hous. Auth. of Harris Cty., 449 S.W.3d 98 (Tex. 2014) (interpreting the Act’s waiver and its sections as terms and conditions that limit recoverable relief)
- In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d 404 (Tex. 2011) (describing appraisal clauses as means to resolve disputes over amount of loss)
- State Farm Lloyds v. Johnson, 290 S.W.3d 886 (Tex. 2009) (explaining appraisal clauses bind parties to a particular method for determining amount of loss)
- Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standard for pleading and reviewing jurisdictional pleas involving governmental immunity)