# United States Court of Appeals **for the Fifth Circuit**

____________

No. 22-10662

____________ Carl Schnell; Mary Ellen Schnell,

Plaintiffs—Appellants ,

versus
State Farm Lloyds,

Defendant—Appellee

.

______________________________ Appeal from the United States District Court for the Northern Di strict of Texas USDC No. 4:21-CV-558

______________________________
Before Dennis, Engelhardt, and Oldham, Circuit Judges

. James L. Dennis , Circuit Judge : After a hailstorm damaged thei r home’s tiled roof, PlaintiffAppellants Carl and Mary Ellen Schne ll filed insurance claims with their home insurer Defendant-Appellee State Farm Lloyds (“State Farm”). While State Farm accepted coverage for ce rtain claims, it denied coverage for others, including the claim t hat the City of Fort Worth required the Schnells to replace their whole roof, rather than just the damaged tiles. The Schnells sued, and the district court granted summary judgment to State Farm. We
VACATE in part, AFFIRM in part, and REMAND

. United States Court of Appeals Fifth Circuit 

### FILED April 2, 2024 Lyle W. Cayce Clerk Case: 22-10662 Document: 60-1 Page: 1 Date Filed: 04/02/2024No. 22-10662

2 I.

The Schnells owned a home in Fort Worth, Texas, which had a roof covered in concrete tiles manufactured by Monier Lifetile. On April 11, 2017, a wind and hailstorm damaged the Schn ells’ roof. At the time of the storm,
the Schnells had a homeowner’s i nsurance policy with State Farm. The Schnells’ insurance policy covere d the typical “accidental direct physical loss” to their home. However, the Schnell s’ policy also covered increased repair costs due to building code enforcem ent under the policy’s Building Ordinance or Law provi sion, known as “Option OL.” Option OL stated in relevant part:

2. Damaged Portions of Dwelling

. When the dwelling covered under COVERAGE A – DWELLING is damaged by a Loss Insured we will pay for the increased cost to repair or rebuild the physically damaged portion of the dwelling caused by the enforcement of a building, zoning or land use ordinance or law if the enforcement is directly caused by the same Loss Insured and the requirement is in effect at the time the Loss Insured occurs.

3. Undamaged Portions of Damaged Dwelling

. When the dwelling covered under COVERAGE A – DWELLING is damaged by a Loss Insured we will also pay for:
a. the cost to demolish and cl ear the site of the undamaged portions of the dwelling ca used by the enforcement of a building, zoning or land use ordinance or law if the enforcement is directly caused by the same Loss Insured and the requirement is in effect at the time the Loss Insured occurs; and b. loss to the undamaged porti on of the dwelling caused by enforcement of any ordinance or law if: Case: 22-10662 Document: 60-1 Page: 2 Date Filed: 04/02/2024No. 22-10662

3 (1) the enforcement is directly caused by the same Loss Insured; (2) the enforcement requi res the demolition of portions of the same dwelling not damaged by the same Loss Insured; (3) the ordinance or law regulates the construction or repair of the dwelling, or es tablishes zoning or land use requirements at the described pre-mises; and (4) the ordinance or law is in force at the time of the occurrence of the same Loss Insured;

. . . . c. legally required changes to the undamaged portions of any specific dwelling features, dwe lling systems or dwelling components caused by the enf orcement of a building, zoning or land use ordinance or law, if: (1) the enforcement is directly caused by the same Loss Insured; and (2) the requirement is in ef fect at the time the Loss Insured occurs. We will not pay for legally required changes to specific dwelling features, dwelling systems or dwelli ng components that have not been physically damaged by the Loss Insured. On September 8, 2017, the Schnells submitted a claim to State Farm for the physical damage to their home from the storm. State Farm inspected the Schnell residence on October 5, 2017. That day, State Farm estimated covered damages totali ng $5,144.99. This estimat e included damage to roofing components and gutters; howe ver, State Farm denied coverage for damaged roof tiles and certain other exterior roofing components, finding this damage “was not ca used by wind or hail” but i nstead by wear and tear or rot, which was not c overed. Because the estimat ed covered damages fell below the Schnells’ $9,879.00 deductib le, State Farm issued no payment.

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4 Unsatisfied with State Farm’s estimate, the Schnells invoked appraisal, a process under the policy thatallows appraisers appointed by each party, along with an umpire, to set the amount of loss, without consideration of causation or coverage. On March 3, 2 020, the appraisers issued a final award estimating the total amount of loss as $165,848.66. This award consisted of $32,234.13 in “Build ing” damages—that is, costs to cover accidental direct phy sical loss to the home—and $133,614.53 in “Building Code” damages—that is, costs to c over the increased repair costs due to building code enforcement. The appraisal included “Building Code” damages because the Schnells’ home owners association rejected their application to replace only their broken tiles, instead requiring them to replace the whole roof. Specifically, the Schne lls discovered that the manufacturer of their roof tiles, Monier Lifetile, had been purchased by Boral Roofing, which did not mak e the same tile, and the homeowners association refused to allow spot repairs w ith the new Boral tiles. On April 2, 2020, State Farm sent a payment to the Schnells for $21,277.28, reflecting the $32,234.13 a ppraisal award for “Building” damages, less their $9,879.00 deduct ible. State Farm refused to pay the Building Code appraisal award, statin g the application rejection by the homeowners association did not count as enforcement of an ordinance or law under Option OL since “[b]uilding codes are enacted and enforced by state and/or local governments .” As part of its payment, State Farm included the statement, “Please be advised, neither pa rticipation in the appraisal process nor subsequent payment of any sum of money constitutes or should be construed as an admission of liabilityby State Farm. State Farm is not waiving any of the policy’s coverage’s [sic], limitations, exclusion, or provisions, all of which are specifically reserved.” Following State Farm’s instruction that enforcement by state or local government is required to trigger Op tion OL coverage, the Schnells sought a

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5 permit to use Boral tiles for spot repairs on their roof from the City of Fort Worth. On September 9, 2020, Fort Worth Building Code Administrator Evan Roberts informed th e Schnells by e-mail of the following determination under the building code: Based on Jeff’s email [sic] attac hed here is the determination we’ve made: If the existing concrete tiles do n ot interlock with the new tiles and proper water drainage ca nnot be achieved do you concur that they don’t meet: R102.7.1 Additions, alterations, repairs. Additions, alterations or repairs to any structure shall conform to the requirem ents for a new structure without requiring the existi ng structure to comply with the requirements of this code, unless otherwise stated. Additions, alterations , repairs and relocations shall not cause an existing structure to become unsafe or adversely affect the performance of the building. As the lack of a water channel will adversely affect the performance of the building. R904.2 Compatibility of materials.
Roof assemblies shall be made of materials that are compatible with each other and with the building or structure to which the mat erials are applied. Since they do not inter lock [sic] they are not compatible with each other. As Roberts’s e-mail alluded to, he relied on the following opinion of Jeff Driver, Sales Director of Bo ral, for the determination that the old Monier
tiles did not interlock wit h the new Boral tiles: The roof tiles installed at 6512 Saucon Valley Dr., Fort Worth, TX 76132 (Carl Schnell’s residence) were manufactured by Monierlifetile [sic] which was purchased by Boral. These roof Case: 22-10662 Document: 60-1 Page: 5 Date Filed: 04/02/2024No. 22-10662

6 tiles do not interlock with Bo ral’s current product offering. Since these tiles do not interlock, there will not be a proper water channel for drainage and would v oid any warranty. After receiving Roberts’s determination, the Schnells withdrew their permit application.

After the Schnells informed State Farm of Roberts’s decision, State Farm determined, contrary to the opinion of Boral representative Driver,
that the Monier and Boral tiles would properly interlock and consequently denied payment under Option OL. State Farm informed Roberts of its findings, but, when Roberts asked for docume ntation on the new Boral tiles and their compatibility with the old Mo nier tiles, State Farm did not provide any, instead providing the phone numberfor the contractor it consulted on the issue. Roberts did not ever receive any documentation from State Farm or hear from them again. After this litigation commenced, Roberts provided two declarations regarding the intent behind his Septembe r 2020 decision. In a March 18, 2022, declaration, Roberts stated it was his “intent to produce and convey a clear determination regarding the Schnells’ home thattheir roof could not be repaired with new tiles of different dimensions from the existing tiles and specifically that the new tiles reference d in the proposed repair estimate were not compatible with the Schnells’ existing tiles.” He further stated the position of the City of Fort Worth—whic h is “accurately reflected” by his determination—“has not changed.” However, in a May 17, 2022, declaration, Roberts stated diffe rently that his “determination was conditioned upon the replacement tiles not interlocking with the original tiles on the roof,” that he had “not inspe cted the replacement or original tiles,” and he had “no opinion as to whether or not the tiles do or do not interlock.” He further stated, “If the replacement tiles interl ock, in accordance with the manufacture’s [sic] installation instructions , with the original tiles on the

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7 roof, the Schnells may make any spot repairs necessary without the need for a permit.” On February 25, 2021, the Schnells fi led suit against State Farm in the District Court for Tarr ant County, Texas. The Schn ells brought claims for breach of contract; violatio ns of chapter 541 of the Texas Insurance Code for misrepresentations and other statutory violations during th e claims process; violations of chapter 542 of the Texa s Insurance Code, known as the Texas Prompt Payment of Claims Act (TPPCA), for failure to timely tender payment after notice of liability; and breach of the common law duty of good faith and fair dealing. St ate Farm removed the case to the U.S. District Court for the Northern District of Texas on th e basis of diversityjurisdiction. See 28 U.S.C. §§ 1332(a), 1441. State Farm moved for summary judgment on all of the Schnells’ claims, whic h the district court granted. 1 The Schnells timely appealed.

II.

We review a district c ourt’s grant of summary judgment de novo

. Sanders v. Christwood , 970 F.3d 558, 561 (5th Cir. 2020). “Summary judgment is proper ʻ if the movant shows that ther e is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “A genuine issue of material fact exists when there is evidence suff icient for a rational tr ier of fact to find for the non-moving party.” Perez v. Region 20 Educ. Serv. Ctr. , 307 F.3d 318, 323 (5th Cir. 2002) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586–87 (1986)). When reviewing an appeal from summary

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1 In the same order granting summary judgment to State Farm, the district court denied the Schnells’ cro ss motion for partial summary ju dgment as moot. The Schnells do not challenge this denial on appeal.

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8 judgment, we must view the fa cts and evidence in the light most favorable to
the nonmovants and dra w all reasonable inferen ces in their favor. Hanks v. Rogers , 853 F.3d 738, 743–44 (5th Cir. 2017).

III. The Schnells challenge the gra nt of summary judgment to State Farm on each of their four claims. We address each claim in turn.

A. Breach of Contract The Schnells first challenge the district court’s grant of summary judgment to State Farm on their breach of contract claim. Under Texas law, insurance policies are cons trued in accordance with the same rules as contracts generally. Canutillo Indep. Sch. Dist. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. , 99 F.3d 695, 700 (5th Cir. 1996) (citing Forbau v. Aetna Life
Ins. Co. , 876 S.W.2d 132, 133 (Tex. 1994)). “The terms used in an insurance policy are given their ordinary and genera lly accepted meaning, unless the policy shows that the words were meant in a technical or different sense.” Id. (citing Sec. Mut. Cas. Co. v. Johnson , 584 S.W.2d 703, 704 (Tex. 1979)). “When the terms of an insurance poli cy are clear a nd unambiguous a court may not vary those terms.” Id. (citing Royal Indem. Co. v. Marshall , 388 S.W.2d 176, 181 (Tex. 1965)). “A contract . . . is ambiguous when its meaning is uncertain and doubtful or it is reasonably suscep tible to more than one meaning.” Coker v. Coker , 650 S.W.2d 391, 393 (Tex. 1983). When language in an insurance policy “is susceptible to more than one construction, it generally is construed stri ctly against the insurer a nd liberally in favor of the
insured.” Bitco Gen. Ins. Corp. v. Monroe Guar. Ins. Co. , 31 F.4th 325, 331 (5th Cir. 2022) (quoting Gonzalez v. Mid-Continent Cas. Co. , 969 F.3d 554, 557 (5th Cir. 2020)).

The Schnells claim that State Farm breached the insurance contract by denying Option OL coverage after R oberts determined their roof would

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9 need to be replaced because the old Monier and new Boral tiles do not interlock. Below, the district c ourt granted summary judgment to State Farm after finding 1) that Roberts’s enforceme nt decision did not flatly deny the Schnells’ permit for spot repairs but did so conditio ned on the Schnells confirming that the old Monier and new Boral tiles do not interlock, and 2) under that understanding of Roberts’s decision, the Sc hnells were required to present evidence that the Monier an d Boral tiles do no t interlock, which they failed to do. On appeal, the Schne lls argue genuine issues of material fact preclude summary judgment because th ey have presented evidence that Roberts himself determined the tiles do not interlock and fl atly denied their permit for spot repairs and, even if his determination was conditioned, they have presented evidence the tiles do not interlock.

We first address the districtcourt’s determination that Roberts’s September 2020 e-mail did not flatly deny their permit for spot repairs but
instead did so conditioned on the Schn ells confirming that the old Monier and new Boral tiles do not interlock. Optio n OL requires that the roof tile replacement be “caused by the enforcem ent of a building, zoning, or land use ordinance or law.” This language is unambiguous: To “enforce” means “[t]o give force or effect to (a law, etc.); to compel obedience to.” Enforce , Black’s Law Dictionary (11th ed. 2019). 2 Enforcement turns not on what the code technically says but on wh at building officials actually require. St. Luke’s Episcopal Health Sys. Corp. v. Factory Mut. Ins. Co. , No. H–03– 5534, 2007 WL 1217763, at *2 (S.D. Tex. Apr. 24, 2007). The undisputed
evidence shows that Robe rts’s September 2020 e-mail was an enforcement

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2 Other dictionaries provide similar definitions. See, e.g. , Enforce , Webster’s Third New International Dictionary (2002 ed.) (“to put in force : to cause to take effect : give effect to esp. with vigo r ‹~laws›”); Enforce , Oxford English Dictionary (2d ed. 1989) (“To compel the observance of (a law)”).

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10 decision, as he later stated in his Ma rch 18, 2022, declaration that it accurately reflects the position of the City of Fort Worth on the Schnells’ roof under the building code. The qu estion, then, is whether Roberts’s enforcement decision required the Sc hnells to replace their entire roof. We conclude a genuine dispute of material fact exists about what Roberts required, and the district court erred in choosing the interpretation that Roberts’s decision was conditioned. In his September 2020 e-mail, Roberts stated, “since [the two types of tile s] do not inter lock [sic] they are not compatible with each other.” Robe rts later confirmed in his March 18, 2022, declaration that he inten ded his e-mail to “convey a clear determination” that “the new tiles referenced in the proposed repair estimate were not compatible with the Schnells’ existing tiles.” This evidence supports the interpretation that Roberts determined the Monier and Boral tiles did not interlock, were therefore incompatible under the building code, and flatly denied th e Schnells’ request for spot repairs. However, other evidence supports the interpretation that Roberts conditioned his decision by stating that spot repairs would violate the building code only if the Monier and B oral tiles did not interlock, which he left to the Schnells to determine. In his Septe mber 2020 e-mail, Roberts asked the Schnells, “do you concur that[the Monier and Boral tiles] don’t meet.” Furthermore, in a declaratio n on May 17, 2022, Roberts backtracked from his March 18, 2022, statement noted above, stating that his “determination was conditioned upon th e replacement tiles not interlocking with the original tiles on the roof,” that he had “not inspected the replacement or original tiles, ” and he had “no opinion as to whether or not the tiles do or do not interlock.” This conf licting evidence creates a genuine dispute of material fact, and the dist rict court erred in choosing one interpretation of Roberts’s decision over the other. See Guzman v. Allstate
Assurance Co. , 18 F.4th 157, 160 (5th Cir. 2021) (stating courts may not Case: 22-10662 Document: 60-1 Page: 10 Date Filed: 04/02/2024No. 22-10662

11 evaluate the credibility of the witnesses, weigh the evidence, or resolve factual disputes on summary judgment).

We next address the district c ourt’s requirement that the Schnells present evidence that the Monier and Bora l tiles do not interlock. As stated, the import of enforceme nt is what building offic ials actually require. See St. Luke’s , 2007 WL 1217763, at *2. If Robe rts determined the Monier and Boral tiles were incompatible under the bui lding code and flatly denied the Schnells’ request for spot repairs, the Schnells were not required to prove whether the tiles actually interlocked, as Roberts already determined they did not. The policy requires only a c ode enforcement decision mandating increased repairs or changes; the Schnells need not defend the validity of the City’s enforcement decision. Howeve r, if Roberts’s denial was conditioned on the Schnells confirming the tiles do not interlock, the Schnells would have to present such evidence to show Robert s required a full roof replacement. Even assuming Roberts’s determination was conditioned, the Schnells have produced evidence that the Monier and Boral tiles do not
interlock. Roberts stated his concern was whether “ the replacement tiles interlock, in accordance with th e manufacture’s [sic] installation instructions, with the original tiles on the roof.” The Schnells have provided the statement by Driver, the Boral Sales Director, that the old Monier tiles and new Boral tiles do not interlock. While State Farm has presented several witnesses who have stated the tile s do interlock, the manufacturer, whom Roberts credited, stated they do n ot. This dispute of fact precludes summary judgment. See Guzman , 18 F.4th at 160. State Farm also suggests we may af firm summary judgment on an alternative ground not addressed by the di strict court. State Farm argues that the Schnells’ roof tiles were damaged by wear and tear or rot, not a covered risk like wind or hail, a nd that the Schnells, therefore, cannot show their Case: 22-10662 Document: 60-1 Page: 11 Date Filed: 04/02/2024No. 22-10662

12 home was “damaged by a Loss Insured” as required by Option OL. Because the district court did not address this argument, we decline to do so in the first instance on appeal. See Magnolia Island Plantat ion, L.L.C. v. Whittington , 29 F.4th 246, 252 (5th Cir. 2022). B. Texas Prompt Payment of Claims Act The Schnells next challenge the district court’s grant of summary judgment to State Farm on their TPPCA claims. The TPPCA provides, in relevant part, that when “a n insurer that is liable for a claim under an insurance policy,” Tex. Ins. Code § 542.060, “after receiving all items, statements, and forms reasonably re quested and required under Section 542.055, delays payment of the clai m . . . for more than 60 days,” id. § 542.058, “the insurer is liable to pay the holder of the policy or the beneficiary making the claim under the policy, in addition to the amount of the claim, interest on the am ount of the claim at the rate of 18 percent a year as damages, together with reasonable and necessary attorney’s fees,” id. § 542.060. A plaintiff seeking TPPCA da mages “must establish: (1) the amount for which [the insurer] is cont ractually liable under the insurance policy; (2) that [the insurer] failed to co mply with statut ory deadlines; and (3) statutory damages based on the am ount contractually owed less the amounts paid within th e statutory deadline.” Hinojos v. State Farm Lloyds , 619 S.W.3d 651, 658–59 (Tex. 2021) (footnote omitted). “[A]n insurer’s acceptance and partial payment of th e claim within the statutory deadline does not preclude liability for interest on amounts owed but unpaid when the statutory deadline expires.” Id. at 658. “Although the statute says nothing about reasonableness, a reas onable payment should roughly correspond to
the amount owed on the claim. When it does not, a partial payment mitigates the damage resulting from a Chapter 54 2 violation. Interest accrues only on the unpaid portion of a claim.” Id. Case: 22-10662 Document: 60-1 Page: 12 Date Filed: 04/02/2024No. 22-10662

13 The Schnells argue State Farm violated the TPPCA in two ways. First, the Schnells argue State Farm has delayed payment of damages under Option OL past the statutory dead line. The district court granted summary judgment to State Farm on this c laim, reasoning that because it had already granted summary judgment to State Farm on the Option OL breach of contract claim, State Farm would not be liable for any further payment beyond the statutory deadline. Howev er, because, as explained above, genuine issues of material of fa ct preclude summary judgment on the Schnells’ Option OL breach of co ntract claim, summary judgment was also improper on their Option OL TPPCA claim. The Schnells next argue State Farm violated the TPPCA in its late payment of damages for a ccidental direct physical loss to the home. They argue that State Farm became “liable ” under the TPPCA for the accidental direct physical loss to the home when State Farm accepted partial coverage on October 5, 2017, with its initial $5,144.99 estimate. The Schnells argue State Farm violated the TPPCA because it waited until April 2, 2020—past the statutory deadline—to increase its payment for accidental damage to the home to $21,277.28, when it paid the “Building” damages appraisal award. The district court acknowledged t his separate TPPCA argument but granted summary judgment to State Farm without fu rther explanation. On appeal, State Farm argues that, under Texas law and by the terms of its April 2, 2020, payment of the “Building” damages appraisal award, payment of an appraisal award is not a determination of “liability” under the TPPCA when an insurer initially denies coverage but later pays an appraisal award. State Farm argues that because it denied coverage for the replacement of the Schnells’ roof tiles and payment of the apprais al award cannot establi sh liability, it was never liable for payment so as to trig ger the TPPCA’s statutory deadline.

An insurer does not become “ liable” for purposes of the TPPCA “until it (1) has completed its investigation, evaluated the claim, and come to Case: 22-10662 Document: 60-1 Page: 13 Date Filed: 04/02/2024No. 22-10662

14 a determination to accept and pay the claim or some part of it; or (2) [has] been adjudicated liable by a court or arbitration panel.” Barbara Techs. Corp. v. State Farm Lloyds , 589 S.W.3d 806, 819 (Tex. 2019 ). Because appraisal is a process to determine the value of damages without determining coverage, “payment in accordance with an appraisal is neither an acknowledgment of liability nor a determination of liability under the policy for purposes of TPPCA damages.” Id. at 820. Thus, when an insurer “initially rejected a claim” but later “paid the claimant an appraisal award,” the insurer was not “liable” under the TPPCA solely due to the payment of the appraisal award. Hinojos , 619 S.W.3d at 655 (citing Barbara , 589 S.W.3d 806). On the other hand, because appraisal “has no beari ng on any deadlines” under the TPPCA, “[n]othing in the TPPCA would ex cuse an insurer from liability for TPPCA damages if it was liable under the terms of the policy but delayed payment beyond the applicable statut ory deadline, regardless of use of the appraisal process.” Barbara , 589 S.W.3d at 818–19. Thus, when an insurer initially “accepted the claim,” establishing liability; then “appraisers eventually determined that [the insurer] owed more on the claim than it had paid”; and the insurer “paid the appraisal amount” past the TPPCA deadline, “the later payment of the appraisal award did not bar Chapter 542 liability.” Hinojos , 619 S.W.3d at 656 (citing Alvarez v. State Farm Lloyds , 601 S.W.3d 781, 783 (Tex. 2020) (per curiam)); see also Randel v. Travelers Lloyds of Tex. Ins. Co. , 9 F.4th 264, 268–69 (5th Cir. 2021) (analyzing the “substantial gap of roughly $185,000 betwe en the preappraisal dwelling and personal property payments and the appraisal award” for purposes of the TPPCA).
Here, State Farm confuses the sce nario in which an insurer denies coverage but later pays an appraisal award without admitting liability—in which there would be no TPPCA violation—with the scenario in which an insurer admits coverage, thus establishing liability, and later increases its Case: 22-10662 Document: 60-1 Page: 14 Date Filed: 04/02/2024No. 22-10662

15 payment pursuant to an appraisal awar d—in which there would be a TPPCA violation. See Hinojos , 619 S.W.3d at 655–56. In the present case, State Farm accepted coverage for damage to certain roofing components and gutters in its October 5, 2017, estimate. By accepting coverage for certain roofing component and gutter damage, State Farm admitted liability for that damage for purposes of the TPPCA. See Barbara , 589 S.W.3d at 819. State Farm later paid $21,277.28 pursuant to the “Building” damages appraisal aw ard on April 2, 2020, and the itemized estimate from the appraisal umpire shows updated costs for roofing component and gutter repairs. The Schnells, the refore, have presented evidence that payment of the “Buildi ng” damages appraisal award was a delayed payment for that damage for w hich State Farm had already admitted liability in 2017, and summary judgment for State Farm on those claims was improper. See Hinojos , 619 S.W.3d at 656; Alvarez , 601 S.W.3d at 783; Randel, 9 F.4th at 268–69. However, State Farm has consistently denied coverage since 2017 for other damage, such as broken roof tiles and certain other exterior roofing components, which State Farm maintains were damaged by wear and tear or rot, not a covered risk like wind or hail. As to this damage, State Farm has not admitted liabil ity. Because there has not yet been a determination of liability as to this damage, it is a factissue whether payment of the “Building” damages appraisal award was a late payment under the TPPCA as to this damage. See Barbara , 589 S.W.3d at 819. Although State Farm again argues it is not liable for the damage to the roof tiles because it believes they were not damaged by a covered risk like wind or hai l, as stated above, the district court did not address this argument, a nd we will not address it in the first
instance. See Magnolia Island Plantation , 29 F.4th at 252. Case: 22-10662 Document: 60-1 Page: 15 Date Filed: 04/02/2024No. 22-10662

16 C. Chapter 541 of the Texas I nsurance Code and the Common Law Duty of Good Faith and Fair Dealing Finally, the Schnells challenge the district court’s grant of summary judgment to State Farm on their claims that State Farm violated chapter 541 of the Texas Insurance Code by making misrepresentations during the claims process and breached its common law duty of good faith and fair dealing. In the short paragraphs the Schnells dedicate to these issues in their brief on appeal, they cite no legal author ity or evidence in the record. A party may forfeit an argument thro ugh inadequate briefing in several ways, such as by failing to “offer any . . . citation to authority” or by failing to “offer record citations.” Rollins v. Home Depot USA , 8 F.4th 393, 397 & n.1 (5th Cir. 2021) (first quoting JTB Tools & Oilfield Servs., L.L.C. v. United
States , 831 F.3d 597, 601 (5th Cir. 2016); and then quoting United States v. Rojas , 812 F.3d 382, 407 n.15 (5th Cir. 2016)); see also United States v. Upton , 91 F.3d 677, 684 n.10 (5th Cir. 1996) (same). Further, parties on appeal may not incorporate by reference arguments mad e in filings before the district

court. See Morris v. Livingston , 739 F.3d 740, 752 (5th Cir. 2014) (citing Sylvester v. Cain , 311 F. Appx. 733, 735 (5th Cir. 2009) (per curiam) (unpublished)). Because the Sc hnells have failed to cite to any legal authority or record evidence in their brief on appe al as to their chapter 541 and good faith and fair dealing claims, they have forfeited their challenge to the district court’s grant of summary judgment to State Farm on these claims. Although the Schnells state theypresented evidence to the di strict court below, they do not cite to or even name any such e vidence in their brief before us, and they may not incorporate by reference on appeal the arguments they raised
below. Case: 22-10662 Document: 60-1 Page: 16 Date Filed: 04/02/2024No. 22-10662

17 IV.

We VACATE the district court’s summary judgment in favor of
State Farm as to the Schnells’ breach of contract and TPPCA claims,
AFFIRM the remainder of the dist rict court’s judgment, and REMAND for further proceedings consis tent with this opinion. Case: 22-10662 Document: 60-1 Page: 17 Date Filed: 04/02/2024