1 COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

TEXAS FARMERS INSURANCE COMPANY , Appellant ,

v. SUSAN SOLIS MINJAREZ , Appellee. §

§ § § § § No. 08

- 12

- 00 272

- C V

Appeal from the County Court at Law No. 5
of El Paso County, Texas (TC# 2011

- DCV06049 )

MEMORANDUM OPINION Texas Farmers Insurance Company filed a petition for permissive appeal from the trial court’s interlocutory order requiring Texas Farmers to proceed to appraisal to determine the
amount of loss from its insured’s claim. See TEX.CIV.PRAC.&REM.CO DE ANN. § 51.014(d)(West Supp. 201 2) (trial court may permit appeal from an interlocutory order that would not otherwise be appealable under certain prescribed circumstances); see also TEX.R.APP.P. 28.3(a)(requiring party seeking to pursue permissive appeal of interlocutory order to petition court

o f appeals for permission to appeal). Because Texas Farmers has failed to establish that it is entitled to a permissive appeal, w e deny the petition. To be entitled to a permissive appeal, a party must establish that : (1) the order to be appealed involve s a controlling question of law as to which there is a substantial ground for difference of opinion; and (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation. TEX.CIV.PRAC.&REM.CO DE ANN. § 51.014(d);2

TEX .R.APP.P. 28.3(e )(4 ). We strictly construe statutes aut horizing interlocutory appeals. Bally Total Fitness Corp. v. Jackson , 53 S.W.3d 352, 355 (Tex. 2001). The proper scope of a permissive appeal is the determination of controlling legal issues , about which there are legitimate disagreements, necessar y to the resolution of the case. See
Diamond Prods. Int’l v. Handsel , 142 S.W.3d 491, 494 (Tex.App.

- - Housto n [14th Dist.] 2004, no pet.) ( construing predecessor statute); see also House Comm. on Civ il Practices, Bill Analysis, Tex. H.B. 978, 77th Leg., R.S. (2001) (explaining that the addition of the predecessor statute would promote judicial efficiency by “allowing the trial court to certify a question for appeal”
when “the trial court rules on an i ssue that is pivotal in a case but about which there is legitimate disagreement”).
In this case , the controlling legal issue is whether an insurer is required to proceed to appraisal to determine the amount of loss if it has not been established that the l oss at issue is a
covered loss. T he insured sustained hail damage to the roof of her home. When she discovered additional damage to the patio and interior, the insured filed a claim with Texas Farmers, which
denied the claim on the basis that the additio nal damage was not caused by the hail storm. Dissatisfied with Texas Farmers’s findings, the insured requested an appraisal pursuant to her homeowner’s policy

. Texas Farmers refused and the insured sought a declaratory judgment that Texas Farmers was req uired to proceed to appraisal to determine the amount of loss . Texas
Farmers contends that it is not required to proceed to appraisal to determine the amount of loss claimed by its insured because its liability for the loss has not been established. Howe ver, w hen, as here, the dispute between an insurer and its insured involves both damage and liability questions, an appraisal should not be prohibited as an initial matter , notwithstanding that liability3

for the damage claimed by the insured remains unreso lved. See State Farm Lloyds v. Johnson , 290 S.W.3d 886 , 887, 891

- 95 (Tex. 2009)( holding that in a dispute about hail damage to a homeowner’s roof, the insurer could not avoid appraisal by arguing that appraisal is not warranted
whenever causation factors into the award because, when different typ es of damage occur to
different items of property, appraisers may have to decide the d amage caused by each before the courts can decide liability). I t was thus u n n ecessary for the insured in this case to establish that
her loss was a covered loss before Texas Farmers was required to proceed to appraisal. Accordingly, Texas Farmers has failed to establish that t here is a substantial difference of opinion regarding the controllin g question of law in this case. We therefore deny Texas Farmers’s petition for permissive appeal.

October 3 1, 2012 CHRISTOPHER ANTCLIFF, Justice Before McClure, C.J., Rivera, and Antcliff, JJ.