TEXAS WINDSTORM INSURANCE ASSOCIATION, Aрpellant v. Randy JONES, Appellee
NO. 01-16-00385-CV
Court of Appeals of Texas, Houston (1st Dist.).
December 15, 2016
506 S.W.3d 545
Melissa Waden Wray, Richard D. Daly, Daly & Black, P.C., Houston TX, for appellee.
Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.
OPINION
Russell Lloyd, Justice
This permissive interlocutory appeal concerns recently enacted provisions of
Background
A. Factual History
Randy and Debra Jones are the named insureds under an insurance policy TWIA issued on June 12, 2014, covering the property located at 62 Aloe Vera Ct., Lake Jackson, Brazoria County, Texas. The policy, with an effective period from June 12, 2014 to June 12, 2015, provided coverage against direct loss to the property resulting from windstorm and hail.
On August 3, 2015, TWIA received a claim from the Joneses with a stated date of loss of April 17, 2015.1 On August 10, 2015, TWIA assigned the Joneses’ claim to Ideal Adjusting, an independent adjusting company, and an inspectiоn was conducted the same day.
During inspection of the property, the independent adjuster performed test squares on all directional slopes of the Joneses’ roof. The inspection identified six hail-damaged shingles in the front, one hail-damaged shingle on the rear slope, and one hail-damaged shingle on the right slope of the roof. After determining that a full roof replacement was not warranted, the adjuster valued the loss at $3,660.31.
NOTICE OF CLAIM ACCEPTANCE
You are receiving this notice because of a claim you filed with the Texas Windstorm Insurance Association (TWIA). After a reasonable evaluation of your claim TWIA accepts coverage for the claim.
Your policy covers “direct physical loss to the covered property caused by windstorm or hail unlеss the loss is excluded in the Exclusions.” Texas Windstorm Insurance Association inspected the property on August 10, 2015 and documented the damages to the property as detailed in the attached report. Based on this evaluation, TWIA has determined the damages covered by your policy and the value of your loss, if any. TWIA‘s coverage and payment determinations are summarized below:
☐ TWIA accepts the following portion(s) of your claim:
All damages detailed on the enclosed estimate.
Here is a recap of our loss adjustment:
Full Cost of Repairs or Replacement $3,660.31
Deductible $2,920.00
Replacement Cost Value Payment.. $740.31
...
Please note that there are speсific procedures that you are required to follow in order to dispute the amount TWIA will pay for covered damage. These procedures are outlined below, followed by the answers to some frequently asked questions as well as forms you can use to begin the dispute resolution process.
The information sheet attached to the Notice stated, in relevant part:
IF YOU DISAGREE WITH THE AMOUNT OF PAYMENT ON YOUR ACCEPTED CLAIM
....
3. If you dispute the amount of loss we will pay for the clаim, you may request that this amount be determined through the appraisal process. All disputes concerning the amount of payment for an accepted claim under your insurance policy must be resolved through the appraisal process.
4. Please be aware that if you do not request appraisal within the time periods below, you waive your right to contest TWIA‘s determination on the amount of payment.
5. You must request appraisal not later than the 60th day after you receive this notice.
(Emphasis in original.) The Notice also included a “Form to Request Appraisal by Claimant(s)” stating, in relevant part:
- I/We have received TWIA‘S NOTICE OF CLAIM ACCEPTANCE IN PART AND DENIAL IN PART.
- I/We disagree with the amount of payment for the accepted part of the claim.
- I/We request from TWIA a detailed summary of the manner in which TWIA determined the payment owed for the accepted loss.
- I/We request apрraisal to determine the payment owed for the accepted option of the claim.
It is undisputed that Jones did not request an appraisal.
On November 22, 2015, Jones‘s counsel notified TWIA of Jones‘s intent to file suit against TWIA for denial of his insurance claim. On November 23, 2015, Jones filed his original petition alleging breach of contract and violations of Insurance Code sections
On January 14, 2016, TWIA filed its plea to the jurisdiction and alternative motion for summary judgment arguing that (1) Jones could not maintain his сommon-law breach of contract claim because his remedies were limited to those allowed under
Following a hearing, the trial court entered an order denying TWIA‘s plea to the jurisdiction and alternative motion for summary judgment. On April 28, 2016, upon the parties’ request, the trial court entered an amended order denying TWIA‘s plea and alternative motion and permitting the interlocutory appeal of its order. See
Standard of Review
A plea to the jurisdiction is a dilatory рlea that seeks dismissal of a case for lack of subject matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). The plaintiff has the burden to allege facts that affirmatively demonstrate that the trial court has subject matter jurisdiction. Tex. Ass‘n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A plea to the jurisdiction can be used to challenge whether the plaintiff has met his burden of alleging jurisdictional facts, but it can also raise a challenge to the existence of jurisdictional facts. See Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). Pleadings are construed liberally in favor of the pleader, and all factual allegations are accepted as true. See id. at 228.
A trial court‘s review of a plea to the jurisdiction challenging the existence of jurisdictional facts mirrors that of a traditional motion for summary judgment. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); Miranda, 133 S.W.3d at 228. The defendant is required to meet the summary judgment standard of proof for its assertion that the trial court lacks jurisdiction; once the defendant meets its burden, the plaintiff is then required to show that there is a disputed material fact regarding the jurisdictional issue. Miranda, 133 S.W.3d at 228. If the evidence creates a fact question regarding jurisdiction, the trial court must deny the plea to the jurisdiction and leave its resolution to the fact finder. Id. at 227-28. On the other hand, if the evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court
Insurance Code Chapter 2210
TWIA contends that the trial court erred in denying its plea to the jurisdiction because no “denial of coverage” exists to provide Jones with the legal right to bring his lawsuit under
A. Applicable Law
TWIA‘s primary purpose is to provide “an adequate market for windstorm and hail insurance in the seacoast territory of this state.”
In 2011, the Texas Legislature passed House Bill No. 3 (“H.B. 3“), which made significant changes to
B. Analysis
The issue before us is whether TWIA accepted coverage for Jones‘s claim in full, in which case appraisal was his exclusive remedy for disputing the accepted coverage, or whether TWIA accepted coverage for only a portion of his сlaim, in which case Jones was entitled to bring suit against TWIA with regard to its partial denial of his claim.
Jones asserts that TWIA partially denied coverage because it did not offer to pay the total amount of the loss he believed he had suffered. In other words, the partial payment of his claim was a partial denial of his coverage. This assertion conflates two concepts that have distinctly different meanings. A “claim,” as defined by thе statute, is a request for payment.
The law of this state makes a clear distinction between claim and coverage. A claim is a statement of loss, dam-
In support of its contention that it accepted coverage for Jones‘s claim in full, TWIA points to its Notice of Claim Acceptance and attached information sheet. The Notice stated, in part, “You are receiving this notice because of a claim you filed with the Texas Windstorm Insurance Association (TWIA). After a reasonable evaluation of your claim TWIA accepts coverage for the claim.” (Emphasis in original). The information sheet outlines the steps a claimant should take in the event he disagrees with the amount of payment on his accepted claim, namely, requesting appraisal. TWIA asserts that this evidence establishes that TWIA accepted Jones‘s insurance claim.
Jones, however, arguеs that the evidence raises a fact issue with regard to whether TWIA partially denied coverage of his claim. In support of his argument, Jones points to the language in the Notice, stating, “TWIA‘s coverage and payment determinations are summarized below” and “TWIA accepts the following portion(s) of your claim: All damages detailed on the enclosed estimate.” Jones argues that if TWIA had, in fact, accepted the claim in full, thеre would have been no reason for it to specify that it was accepting a “portion” of the claim or to identify that “portion.” Jones also relies on the document attached to the Notice, entitled “Form to Request Appraisal by Claimant(s),” which states in part, “I/We have received TWIA‘S NOTICE OF CLAIM ACCEPTANCE IN PART AND DENIAL IN PART.”
The record reflects that Jones‘s insurance claim was for property damage resulting from wind and hail. During inspection of the proрerty, TWIA‘s independent adjuster concluded that a full roof replacement was not warranted, and valued the loss at $3,660.31. In its Notice of Claim Acceptance, TWIA stated that it “accepts coverage for the claim.” The Notice further states that TWIA accepts “[a]ll damages detailed on the enclosed estimate.” This evidence shows that TWIA accepted coverage in full for Jones‘s claim for damage to his roof. Jones, however much he disagreed with the amount allocated to satisfy his claim, presented no evidence showing that TWIA denied any portion of that claim.
Moreover, we note that the Notice of Acceptance and accompanying documentation fulfilled TWIA‘s statutory duties with respect to acceptance of a claim in full. Under section 2210.573, if TWIA accepts coverage for a claim in full, it must inform the сlaimant of the amount of loss it will pay and the time limit to request appraisal under
Because TWIA accepted coverage for his claim in full, Jones‘s only remedy was to request appraisal within sixty days of receiving the notice. See
Judicial Admission and Judicial Estoppel
Jonеs argues that even if this Court finds that no fact issue exists with regard to whether TWIA denied a portion of his claim, the trial court‘s denial of TWIA‘s plea should be affirmed for another reason. He asserts that TWIA‘s position in this case is inconsistent with its position in Texas Windstorm Insurance Association v. Fried3 and, thus, TWIA is precluded from maintaining its position under the doctrines of judicial admission and judicial estoppel.
In support of his argument, Jones has included approximately 180 pages of documents from the Fried case in the appendix to his appellate brief, and asks that this Court take judicial notice of the pleadings. “The attachment of documents as exhibits or appendices to briefs is not formal inclusion in the record on appeal, and, therefore, the documents cannot be considered.” Till v. Thomas, 10 S.W.3d 730, 734 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Evidence that is not contained in the appellate record is not proрerly before this Court. See
Conclusion
We reverse the trial court‘s amended order denying TWIA‘s plea to the jurisdiction and alternative motion for summary judgment and render judgment dismissing Jones‘s claims.