1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00293-CV 

__________________

GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, 

Appellant

V.

NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee

__________________________________________________________________

On Appeal from the 284th District Court

MontgomeryCounty, Texas

Trial Cause No. 20-02-02039-CV

__________________________________________________________________

OPINION 

At issue in this appeal is whether the Uniform Condominium Act 

makes an agreement to settle a subrogation claim, which the Act requires 

to be waived, enforceable.1 On cross-motion for summary judgment, the 

1Tex. Prop. Code Ann. § 82.111(d) (requiring the insurer to waive 

its right to subrogation under the policy against a unit owner); id. § 

82.004 (prohibiting persons from varying the requirements of Chapter 82 

by agreement “[e]xcept as expressly provided by this chapter”[]). 
2

trial court refused to enforce the agreement and rendered a take-nothing 

judgment against the plaintiff who sued the defendant to enforce a 

settlement agreement of an insurance subrogation claim the Act required 

the insurance company that brought the suit to waive. 

Finding no error, we affirm.

Background

The Fire

Dana and Donna Evans own a unit at The Shore, a high-rise 

condominium in Austin, Texas. In May 2019, an accidental fire, which 

investigators determined originated in the Evanses’ unit, damaged 

property in several units and in the common areas on several floors of 

The Shore.2

The duties of the entity responsible for managing The Shore, duties 

that include obtaining insurance against risks of loss like fires, are 

2In general, the Declaration filed of record for The Shore created a 

separate ownership interest for the property that each unit owner kept 

inside the walls of the owner’s unit. That said, the owner of a unit also 

owns an undivided interest in the Common Elements. The Declaration 

defined the Common Elements broadly to mean “[a]ll portions of the 

Condominium, including both the General Common Elements and 

Limited Common Elements, and including the Residential Unit’s interest 

in the Master Common Elements but excluding the Units.” 
3

created by filing a document referred to as a declaration in the real 

property records of the county where the condominium is built.3 A limited 

partnership formed The Shore in 2006,dedicating the property to be used

as a condominium by filing a “Condominium Declaration” (the 

Declaration) in the real-property records of Travis County, Texas. Under 

the Declaration, the purchasers of units at The Shore became members 

of The Shore Condominium Association, Inc.(the Association). Under the 

Declaration, the Association is responsible for managing the 

Association’s affairs.The owners of the units must pay Association dues, 

which are used among other things to purchase insurance to cover the 

property at The Shore. To comply with that obligation, the Association 

bought an insurance policy from Great American Insurance Company of 

New York, which insured the property The Shore was required to insure 

under the Uniform Condominium Act against the risk of loss from fires, 

less the policy’s deductible. 

After the May 2019 fire, Great American paid the claims presented

to it that were covered under its policy from the fire. The claims Great 

American paid came from owners of units who had property damaged in 

3Id. §§ 82.051(a), .111. 
4

their units, including the Evanses. Great American also paid to repair 

damages that occurred to property in the common areas of the floors 

damaged in the fire. In the areas outside the units, the owners of the 

units hold an undivided interest, which The Shore’s Declaration defines 

as Common Elements.4

The Declaration also required the Evanses to obtain insurance on 

the property in their unit. And the Declaration required them to obtain 

“insurance covering damage to other Units or property located therein, 

the cause of which originates from such Owner’s Unit.” To comply with 

their obligations under the Declaration, the Evanses bought a 

condominium policy issued by Nationwide Mutual Insurance Company.

Nationwide’s policy covered the Evanses for up to $300,000 per 

occurrence for their negligent “ownership, maintenance or use of real or 

personal property[.]” 

The Settlement

Great American’s settlement is tied to an email dated December 16, 

2019, that its attorney Chris Surber, sent Nationwide’s adjuster, Ross 

Ver Helst. In the email, Great American offered “to resolve any and all 

4See n.2. 
5

claims and causes of action it has or may have against Dana and Donna 

Evans arising out of and related to the [May 2019] fire for the total 

amount of $373,212.93 or Dana and Donna Evans’insurance policy 

liability limit, whichever is less.”5 On January 16, 2020, Ver Helst 

sent Surber an email and responded to his settlement demand:

Chris, this is confirmation that we are accepting your demand 

for the damages to The [Shore] Condominium Association for

the remainder of our insured’s liability limit. We have 

previously settled subrogation claims for two of the condo unit 

owners and have remaining liability limit[s] of $266,540.25 of 

our insured’s $300,000 liability policy limit.6

5See Tex. Prop. Code Ann. § 82.111(a) (requiring the unit owners 

association, to maintain property insurance on the insurable common 

elements if that insurance is reasonably available); § 82.111(b) (when the 

building contains units with “horizontal boundaries described in the 

declaration,” the unit owners association must maintain insurance when 

it is reasonably available that “include[s] the units,” but the insurance 

“need not include improvement and betterments installed by unit 

owners”).

6Surber’s demand letter and Ver Helst’s emails refer to the 

condominium association responsible for managing The Shore as “The 

Waterfront Master Condominium Association.” The Clerk’s Record, 

however, shows that as of May 2019 the correct legal name for the 

condominium where the fire occurred is The Shore’s Condominium 

Owner’s Association, Inc. The Clerk’s Record includes a corrective 

amendment, which shows The Waterfront Master Condominium 

Association, Inc. became The Shore Condominium Association, Inc. in 

2006. In August 2019, an endorsement was added to Great American’s 

policy naming “The Shore Condominium Association” as a named insured 

under Great American’s policy, with the name change retroactive to the 

policy’s inception. For clarity and to avoid confusion, we have chosen to 
6

On receiving Ver Helst’s email, Surber sent Ver Helst the following 

email: 

My client accepts your offer of $266,540.25. Please make the 

check payable to “Gauntt, Koen, Binney & Kidd LLP as 

trustee for Great American Insurance Company of New York” 

and mail the same to my attention at the below address. A 

copy of my firm’s W9 is attached. If you require a release, 

please send the same as soon as you can.

Finally, can you tell me if you paid the other condo owners 

100% of their claim, based on a pro rata basis, etc?

On January 17, 2019, Dana Evans sent Ver Helst the following 

email:

I do not believe thatthe Great AmericanInsurance Co.

of New York has the right to a claim against my policy.

The Texas Property Code Sec. 82.111 requires

condominium associations to maintain an insurance

policy covering the building, common elements and the

units, except for improvements and betterments in the

individual units. The Code also requires that each unit

owner must be insured by the policy against liability

arising out of the person’s ownership of the common

elements or membership in the association as required

by the association declarations (subsection (d)(1)). This

would appear to limit any liability that I would have

use The Shore Condominium Association when referring to the entity in 

charge of the condominium based on the documents in the Clerk’s Record 

that show that was the entity’s legal name of record when the fire 

occurred in May 2019. 
7

relating to damages to common elements of the building.

In addition, the Association insurance policy must waive

the right to subrogation against a unit owner (subsection

(d)(2)). Finally, if the unit owner has insurance covering

the same loss, the association insurance is primary

(subsection (d)(4)). If a unit owner is partly or wholly

responsible for a loss, the association may assess the

owner for the amount of the association insurance policy

deductible and any costs exceeding the insurance limits

(section (l)). This recovery is not available to the

insurance company.

The Shore Condominium Declarations Section VI,

subsection 6.1.c. requires that insurance purchased by

the Association or an Owner must waive the right to 

subrogation against any member or owner of the 

association.

The Great American Insurance Co. of New York

insurance policy for The Shore Condominium

Association complies with the requirements of the Texas

Property Code. It provides coverage for the building

except for improvements and betterments and 

appliances installed in individual units (Building and

Personal Property Coverage Form page 36, and Texas

Condominium Association Coverage Amendment page

100). Under the Texas Condominium Association

Coverage Amendment, the policy specifically waives the

right to recover against any unit owner (page 101). The

deductible for any loss is $25,000 (page 109). This 

amount would be recoverable by The Shore

Condominium Association, through their trustee, and

not by Great American Insurance Co. of New York.

Based on this information, I do not see how Great

American Insurance Company of New York can make a

claim against me for any losses that they insure under

the Association policy. My liability for the deductible

amount should be paid to the Association Trustee. I am

responsible for damage to property of other owners not
8

covered under the Association policy, and I expect that

to be covered under liability section of my policy with

Nationwide Mutual.

Please explain to me how I have this wrong.7

After Northwestern received Dana’s email, it didn’t fund the 

settlement or send Great American any releases. In February 2020, 

Great American sued Nationwide alleging that Nationwide accepted and 

then breached the agreement it made with Great American to settle 

Great American’s subrogation claim. Nationwide answered and filed a 

counterclaim. In its counterclaim, Nationwide alleged that assuming an 

agreement to settle did occur, which it denied, the agreement was illegal 

and unenforceable as a matter of public policy under the Uniform 

Condominium Act. In the alternative, Nationwide claimed the settlement 

resulted from a mutual mistake. It asked the court based on its claims of 

mistake to set the settlement aside. 

The parties sought to resolve the claims and defenses raised in their 

pleadings in a series of six dispositive motions: (1) Great American’s 

7Dana Evans learned in a telephone call with Ver Helst on January 

16 that Great American had threatened to sue the Evanses if 

Northwestern refused to pay the amount Great American demanded to 

settle the subrogation claim that it represented to Ver Helst it had 

against the Evanses.
9

Traditional Motion for Summary Judgment (Nationwide’s Breach of 

Contract Claim); (2) Great American’s Traditional Motion for Partial 

Summary Judgment (Nationwide’s Counterclaim for Declaratory 

Judgment and Motion to Dismiss for Lack of Subject Matter 

Jurisdiction); (3) Nationwide’s Traditional Motion for Summary 

Judgment (Great American’s Breach of Contract Claim); (4) Nationwide’s 

Traditional Motion for Summary Judgment (Great American’s Claims for 

Declaratory Relief); (5) Great American’s Amended Traditional Motion 

for Partial Summary Judgment (Nationwide’s Breach of Contract Claim); 

and (6) Great American’s Plea to the Jurisdiction and Motion to Dismiss.

In October 2020, the trial court ruled on these motions, incorporating its 

rulings in a Final Judgment. 

Great American complains the trial court erred in granting 

Nationwide’s Traditional Motion for Summary Judgment on its breach of 

contract claim. Based on that ruling, the trial court ordered Great 

American to “take nothing on its claims and causes of action against 

Defendant Nationwide[.]” The trial court made its take-nothing judgment 

final by including language of finality in its judgment. The last two 
10

sentences of the judgment state: “All relief not granted is denied. This 

Judgment is final as to all claims and parties and is appealable.”8

After the trial court signed the judgment, Great American moved

for a new trial. The trial court later overruled the motion and Great 

American appealed. 

Standard of Review

We review summary judgments de novo.9 “To prevail on a 

traditional motion for summary judgment, the movant must show no 

material fact issues exist and that it is entitled to judgment as a matter 

of law.”10 We take as true all evidence favorable to the respondent, and 

we indulge every reasonable inference and resolve any doubts in favor of 

the non-movant.11 “When both parties move for summary judgment and 

the trial court grants one motion and denies the other, . . . we review both 

8See Bella Palma, LLC v. Young, 601 S.W.3d 799, 801 (Tex. 2020)

(“A trial court may express its intent to render a final judgment by 

describing its action as (1) final, (2) a disposition of all claims and parties, 

and (3) appealable.”). 

9Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212, 218 (Tex. 

2022).

10Id.; Tex. R. Civ. P. 166a(c).

11Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 

(Tex. 2003).
11

sides’ summary judgment evidence and render the judgment the trial 

court should have rendered.”12

In its motion for summary judgment, Northwestern relied on more 

than one theory to support its claim that it was entitled to summary 

judgment. When the trial court ruled on Northwestern’s motion, it did 

not explain the theory on which it decided to grant Northwestern’s 

motion. Since the court did not specify the grounds on which it granted 

the motion, we must affirm the trial court’s “summary judgment if any of 

the grounds asserted are meritorious.”13

Analysis

Great American raises three issues in its brief. In issue one, Great 

American argues that its settlement with Northwestern doesn’t violate 

public policy under the Uniform Condominium Act because the 

legislature didn’t intend to prevent parties from settling disputes under 

Chapter 82. In issue two, Great American argues the trial court erred in 

granting Northwestern’s motion because the evidence conclusively 

12Endeavor Energy Res., L.P. v. Energen Res. Corp., 615 S.W.3d 144, 

147-48 (Tex. 2020).

13Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 

45 (Tex. 2017).
12

proved the parties agreed to settle and their agreement is enforceable 

under Texas law. In issue three, Great American argues the trial court 

erred in granting the motion based on Northwestern’s argument that 

Great American failed to comply with a condition precedent to 

Northwestern’s policy before Great American filed suit.

We note that both parties have cited the Uniform Condominium Act 

throughout their briefs.14 For convenience, we will address Great 

American’s argument that the settlement doesn’t violate public policy 

first. And when addressing this argument, which Great American relied 

on in the first two issues of its brief, we will assume without deciding that 

the representatives of Northwestern and Great American had full 

knowledge of all the facts needed to reach a binding agreementwhen they 

exchanged the emails that resulted in the settlement that led to the 

dispute.15 With these assumptions, we are left with two questions of law: 

14Tex. Prop. Code Ann. §§ 82.001-.164 (West 2014 & Supp. 2022) (the 

Uniform Condominium Act or the UCA). Although the legislature has 

amended various sections of the UCA after the May 2019 fire, there are 

no changes in the statute relevant to Great American’s appeal. For that 

reason, we cite the current version of the statute in the opinion. 

15Northwestern disputes that Ver Helst had full knowledge of all 

the relevant facts. But his knowledge is not relevant if the Uniform 

Condominium Act prevents the courts from enforcing the agreement even 
13

(1) Does the Uniform Condominium Act apply to a condominium owners 

association’s insurance company? (2) If so, did the Texas legislature 

intend to prevent parties from using settlement agreements under 

circumstances that involve the insurance the Uniform Condominium Act 

requires condominiums to carry as a device to avoid the limitations and 

prohibitions in Property Code section 82.111?16

Does the Uniform Condominium Act

Apply to Great American? 

Just like any other individual or entity, insurance companies are 

free to settle doubtful and disputed claims and “may contract as they 

wish so long as the agreement reached does not violate positive law or 

offend public policy.”17 Still, the “freedom of contract is not unbounded.”18

“When a contractual arrangement is inconsonant with public policy 

expressed in a regulatory statute, preservation of contractual freedom 

and its ‘indispensable partner’—contract enforcement—must yield.”19

when the parties know all the relevant facts needed to allow parties to 

reach a binding settlement.

16Id. § 81.111 (Insurance). 

17Phila. Indem. Ins. Co. v. White, 490 S.W.3d 468, 475 (Tex. 2016).

18Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 

664 (Tex. 2008).

19White, 490 S.W.3d at 490.
14

Great American argues that nothing in the Act prohibited Great 

American “from making a subrogation claim against Nationwide” or 

Northwestern from “accepting Great American’s” demand. Great 

American also claims the Uniform Condominium Act doesn’t apply to 

insurers who sell insurance to condominium associations, suggesting its 

reach is limited to condominium owners’ associations and to the owners 

of the units in condominiums. As Great American sees it, its settlement 

with Northwestern “conferred a new, independent right to Great 

American upon which Great American could recover without aid, or 

assistance of the allegedly illegal policy or right/claim, especially 

considering the fact that the settlement included the Association’s 

deductible.” In response to Northwestern’s argument claiming Great 

American waived its rights of subrogation under Chapter 82 and its 

policy, Great American suggests that Northwestern should have raised 

that claim in response to Great American’s settlement demand. Great 

American concludes Northwestern lost its right to raise that claim after 

agreeing to the settlement.
15

Starting with the Act, we note the Act regulates how condominiums 

created since January 1, 1994, are regulated and managed.20 Given the 

inherent complexities involved in carving real estate up into separately 

and commonly owned parts, the UCA establishes baseline rules that 

apply the creation, development, and management of condominiums.21

The insurance coverage condominiums must carry is just one of the areas 

where the legislature became involved in the business of regulating and 

managing condominiums under the Act.22 And when a condominium 

includes units with horizontal boundaries described in the declaration

filed of record, the legislature said the condominium owner’s association 

must obtain a policy, if reasonably available, that includes the property 

in an owner’s unit, except for the “improvements and betterments”that 

the unit owner installed.23

20Tex. Prop. Code Ann. §§ 82.001, .051, .055, .101-.116. 21Id. §§ 82.001-.164. 22Id. § 82.111(d). 

23Id. § 82.111(b). The Declaration for The Shore states the physical 

boundaries of the units are “depicted on the “Map[.]” The Declaration 

defines “Map” as “the plats and plans described as Exhibit ‘B’ attached to 

the Declarations.”However, the Clerk’s Record does not contain the plats 

and plans exhibit that the documents filed of record in Travis County 

reference as an attachment to the Declaration, Exhibit B. Still, the 

definition of “Map” in The Shore’s Declaration states Exhibit B incudes a 
16

In addition to the above, the Uniform Condominium Act contains 

additional requirements obligating the Association to obtain insurance 

coverage for the property of The Shore. Under Property Code section 

82.111(d), the Association had to obtain a policy (1) naming each unit 

owner as an insured, (2) waiving the carrier’s right to subrogation against 

each unit owner, (3) providing that no act or omission of a unit owner—

unless acting within the unit owner’s authority for the Association—

would void the Association’s policy, and (4) making the Association’s 

policy the primary policy should a unit owner obtain insurance that also 

covered their loss.24

No one has argued that a policy meeting the requirements of 

Property Code section 82.111 wasn’t reasonably available when the 

Association bought the policy insuring The Shore against the losses that 

were caused by the May 2019 fire. Indeed, the evidence shows Great 

American treated the individual unit owners, including the Evanses, as 

insureds under its policy as it paid claims as they were presented by unit 

“survey plat of the Property and dimensional drawings that horizontally 

and vertically identity and describe the Units and the Common 

Elements.” 

24Id. § 82.111(d). 
17

owners for the property covered by the policy in the units damaged by the 

fire. 

While Great American argues the legislature didn’t intend Chapter 

82 to apply to insurance companies, the language of the statute shows its 

argument lacks merit. For instance, Property Code section 82.111(g) 

provides that “[t]he insurer issuing the policy may not cancel or refuse to 

renew it less than 30 days after written notice of the proposed 

cancellation or nonrenewal has been mailed to the association.”25 And 

when a claim is submitted that is payable for damages to the Common 

Elements of the condominium under a policy purchased by the 

Association, “[t]he insurance proceeds for that loss shall be payable to an 

insurance trustee designated by the association for that purpose[.]”26 All 

in all, Property Code section 82.111 represents a tightly regulated 

scheme that designates the insurance condominiums built after January 

1, 1994,must carry.27

Thus, it’s clear from the language in the statute that the legislature 

intended section 82.111 to apply to insurers that sell condominium 

25Id. § 82.111(g).

26Id. § 82.111(e).

27Id. §§ 82.111, .111(d). 
18

policies to condominium associations subject to Chapter 82.28 When a 

“statute is clear and unambiguous, we must read the language according 

to its common meaning without resort to rules of construction or extrinsic 

aids.”29 We reject Great American’s argument that Chapter 82 doesn’t 

apply to Great American.The summary-judgment evidence shows Great 

American sold an insurance policy to a condominium owner’s association 

that is required to carry a policy that contains the coverage required by 

Property Code section 82.111(d).30 Great American concedes its coverage 

did comply with the Act, and based on our review of the policy, we agree 

the provisions in the policy include a waiver of subrogation against those 

who own units in The Shore.31

Does Chapter 82 Render the Settlement Unenforceable?

Great American argues Chapter 82 doesn’t reach its agreement. 

But the language of Chapter 82 prohibits parties from using any device 

28Id. § 82.111. 

29State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). 30Tex. Prop. Code Ann. § 82.111(d). 

31See Great American Policy Endorsement SB 87 66 Texas —

Condominium Association Coverage Amendments, IV. Select Business 

Policy Conditions, Loss Conditions[—Amendments, Waiver of Rights of 

Recovery]; Condominium Declaration For The Shore, A Condominium, 

Article VI, Insurance, Section 6.1(c).
19

except as expressly provided by Chapter 82 from evading the Chapter’s 

limitations or prohibitions.32 The section of the Property Code restricting 

the freedom of parties to freely contract around the provisions in Chapter 

82 states:

Except as expressly provided by this chapter, provisions of 

this chapter may not be varied by agreement, and rights 

conferred by this chapter may not be waived. A person may 

not act under a power of attorney or use any other device to 

evade the limitations or prohibitions of this chapter or the 

declaration [filed of record for the condominium].33

To be sure, the legislature used “except as provided” in many of the 

sections of Chapter 82.34 But we find it significant that it didn’t provide 

for any exceptions in Property Code section 82.111(a)-(d), the subsections 

of Chapter 82 that create the rules prescribing the insurance coverage for 

condominium owners associations like the one responsible for managing 

The Shore.35

To be sure, section 82.004 applies to persons and that term isn’t 

defined in the Uniform Condominium Act.36 Still, we must assume that 

32Id. § 82.004.

33Id. 34Id. §§ 82.102(f), .103(a), .107(a)-(d), .170, .111(i), .112(d), .113(d), 

.114(j), .117, .151(a), .152(a), .157(a), .007(b), .067(a), .068(f). 35Id. § 82.111(a)-(d). 

36See id. § 82.003 (Definitions).
20

the legislature intended for courts to interpret the word person to include 

corporations since the legislature defined person to include corporations 

in the Code Construction Act, an Act that applies to defining the words 

the legislature didn’t specifically define in the Uniform Condominium 

Act.37 A careful examination of the Act’s structure reveals that if 

insurance coverage is reasonably available to a condominium required to 

cover the risks listed in section 82.111(a)-(d), the condominium owners 

association and its insurer cannot waive the requirements. No one has 

claimed that insurance covering those risks was not reasonably available 

to The Shore. Thus, as a person subject to restrictions and prohibitions of 

section 82.111 and 82.004, Great American could not use any “device to 

evade the limitations or prohibitions” of the waiver of subrogation 

required in section 82.111(d).38

Faced with the language of the statute, Great American still argues 

that enforcing its arm’s-length agreementwith Northwestern outweighs 

Northwestern’s public policy argument that its settlement should be 

declared void as a matter of public policy despite the policy preference 

37Tex. Gov’t Code Ann. §§ 311.002, 311.005(2) (“‘Person’ includes 

corporation, organization, . . . and any other legal entity.”). 38Tex. Prop. Code Ann. §§ 82.004, .111, .111(d).
21

the legislature expressed prohibiting parties from using any device to 

evade the limitations of Chapter 82. According to Great American, 

enforcing settlements and allowing parties to settle claims is more 

important than allowing it to use the settlement in the manner they used 

it here. Northwestern responds that enforcing the settlement offends 

public policy because enforcing the agreement would allow Great 

American to collect on a subrogation claim that both doesn’t exist under 

its policy and to collect on a subrogation claim the legislature required it 

to waive.39

Great American cites several cases to support its argument that the 

trial court erred in holding its settlement with Northwestern was 

unenforceable. The cases it cites, however, may be distinguished on their 

facts. For example, Great American relies heavily on Jistel v. Tiffany 

Trail Owners Association, Incorporated, 215 S.W.3d 474, 482 (Tex. 

App.—Eastland 2006, no pet.) to support its claim that Nationwide can’t 

rely on section 82.004 to avoid the terms of its agreement to fund the 

settlement based on the $266,540 term on which the parties agreed.40

39See n.31.

40Jistel v. Tiffany Trail Owners Ass’n, Inc., 215 S.W.3d 474, 477-78

(Tex. App.—Eastland 2006, no pet.).
22

But unlike here, the parties involved in the lawsuit in Jistel were 

the unit owner and the condominium association. The question before the 

Eastland Court of Appeals was whether Chapter 82 allowed the parties 

to settle a claim Larry Jistel, as the plaintiff, filed after suing Tiffany 

Trail to repair his unit on a claim against Tiffany Trail Condominium 

Association under Property Code section 82.107.41 Under section 82.107, 

a condominium owner’s association is “responsible for maintenance, 

repair, and replacement of the common elements” of the condominium.42

In section 82.107, the legislature provided room for a condominium 

association to alter the maintenance, repair, and replacement 

requirements. But in section 82.111, the provision that mandates the 

insurance coverage condominiums must carry, the legislature did not 

provide room allowing condominiums to alter the insurance coverage the 

legislature required.43

To boil it down, the Eastland Court of Appeals didn’t address a 

settlement based on a claim waived under section 82.111, a section where 

the legislature didn’t allow variances from the insurance coverage the 

41Tex. Prop. Code Ann. § 82.107(a). 

42Jistel, 215 S.W.3d at 482; Tex. Prop. Code Ann. § 82.107(a). 

43Compare Tex. Prop. Code Ann. § 82.107(a)-(d),with § 82.111.
23

legislature required condominiums to have.44 And unlike section 82.107, 

which applies to the maintenance and repair obligations of condominium 

associations, section 82.111, which governs a condominium association’s 

insurance obligations, doesn’t allow the association or its insurer the 

right to vary or waive the rights conferred on unit owners in section 

82.111 including the waiver of subrogation provision, section 

82.111(d)(2).45

The other cases Great American relies on in its brief are also 

distinguishable. None of them involve statutory provisions like the ones 

in Property Code sections 82.004 and 82.111.46

44Jistel, 215 S.W.3d at 482-83; Compare Tex. Prop. Code Ann. § 

82.107,with id. § 82.111.

45Compare Tex. Prop. Code Ann. § 82.107, with id. §§ 82.111, 

.111(d)(2).

46(1) Hartford Fire Ins. Co. v. Galveston, H. & S.A. Ry. Co., 239 S.W. 

919, 923 (Tex. Comm’n App. 1922, holding approved, judgm’t adopted); 

(2) Am. Nat’l Ins. Co. v. Tabor, 230 S.W. 397, 399 (1921); (3) De Leon v. 

Trevino & Bros., 49 Tex. 88, 91-92 (1878); (4) Plano Parkway Office 

Condos. v. Bever Props., LLC, 246 S.W.3d 188, 195 (Tex. App.—Dallas 

2007, pet. denied) (op. on reh’g); (5) Beyers v. Roberts, 199 S.W.3d 354,

358 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); (6) Associated 

Milk Producers v. Nelson, 624 S.W.2d 920 (Tex. App.—Houston [14th 

Dist.] 1981, writ ref’d n.r.e.); (7) Markman v. Gaitz, 499 S.W.2d 692, 696 

(Tex. Civ. App.—Houston [1st Dist.] 1973, writ ref’d n.r.e.); (8) Castilleja 

v. Camero, 402 S.W.2d 265, 269 (Tex. App.―Corpus Christi 1966), aff’d, 

414 S.W.2d 424 (Tex. 1967); (9) City of Garland v. Tex. Power & Light 
24

Since the text in section 82.004 and 82.111 is clear, it “is 

determinative of legislative intent unless the plain meaning of the 

statute’s words would produce an absurd result.”47 The text of the statute 

required Great American to waive its subrogation rights, which left it 

with no right to sue the Evanses in an effort to shift the losses that fell 

on its policy to the Evanses and their insurer, Northwestern. For that 

reason, voiding Great American’s settlement with Northwestern doesn’t 

strike us as absurd or unfair. 

Conclusion

We hold the trial court did not err in granting Northwestern’s 

motion for summary judgment. The summary-judgment evidence 

conclusively established that Great American waived its subrogation 

claim against the Evanses,48 and that under an endorsement to Great 

American’s policy,Great American’s policy is the primary policy that was 

Co., 295 S.W.2d 925, 930 (Tex. Civ. App.—Dallas 1956, no writ); (10) Fred 

Miller Brewing Co. v. Coonrod, 230 S.W. 1099 (Tex. Civ. App.—San 

Antonio 1921, writ ref’d).

47Tex. Workforce Comm’n v. Wichita Cty., 548 S.W.3d 498, 492 (Tex. 

2018). 

48See n.31.
25

required to respond to the damages that resulted from the fire at The 

Shore.49 We overrule Great American’s first two issues.50 The trial court’s 

judgment is 

AFFIRMED. 

 _________________________

 HOLLIS HORTON

 Justice

Submitted on May 12, 2022

Opinion DeliveredFebruary 9, 2023

Before Golemon, C.J., Horton and Johnson, JJ. 

49See Great American Policy Endorsement SB 87 66 Texas — 

Condominium Association Coverage Amendments, IV. Select Business 

Policy Conditions, Loss Conditions (making Great American’s policy 

primary when a unit owner has other insurance that covers the loss); 

Condominium Declaration For The Shore, A Condominium, Article VI, 

Insurance, Section 6.2(a)(iii); see also Tex. Prop. Code Ann. § 82.111(d)(4).

50We need not reach Great American’s third issue since we have 

affirmed the summary judgment on Northwestern’s claim the settlement 

is unenforceable against it under Chapter 82. See Tex. R. App. P. 47.1.