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 District of Texas 

USDC No. 4:21-CV-558 

______________________________ 

Before Dennis, Engelhardt, and Oldham, Circuit Judges.

James L. Dennis, Circuit Judge: 

 After a hailstorm damaged their home’s tiled roof, PlaintiffAppellants Carl and Mary Ellen Schnell filed insurance claims with their 

home insurer Defendant-Appellee State Farm Lloyds (“State Farm”). While 

State Farm accepted coverage for certain claims, it denied coverage for 

others, including the claim that 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 

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No. 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 Schnells’ roof. At the time of the storm, 

the Schnells had a homeowner’s insurance policy with State Farm.

 The Schnells’ insurance policy covered the typical “accidental direct 

physical loss” to their home. However, the Schnells’ policy also covered 

increased repair costs due to building code enforcement under the policy’s 

Building Ordinance or Law provision, 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 clear the site of the undamaged 

portions 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; 

and 

b. loss to the undamaged portion of the dwelling caused by 

enforcement of any ordinance or law if: 

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(1) the enforcement is directly caused by the same Loss 

Insured; 

(2) the enforcement requires 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 establishes 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, dwelling systems or dwelling 

components caused by the enforcement 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 effect at the time the Loss 

Insured occurs. 

We will not pay for legally required changes to specific dwelling 

features, dwelling systems or dwelling 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 totaling $5,144.99. This estimate included damage to 

roofing components and gutters; however, State Farm denied coverage for 

damaged roof tiles and certain other exterior roofing components, finding 

this damage “was not caused by wind or hail” but instead by wear and tear 

or rot, which was not covered. Because the estimated covered damages fell 

below the Schnells’ $9,879.00 deductible, State Farm issued no payment.

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 Unsatisfied with State Farm’s estimate, the Schnells invoked 

appraisal, a process under the policy that allows appraisers appointed by each 

party, along with an umpire, to set the amount of loss, without consideration 

of causation or coverage. On March 3, 2020, the appraisers issued a final 

award estimating the total amount of loss as $165,848.66. This award 

consisted of $32,234.13 in “Building” damages—that is, costs to cover 

accidental direct physical loss to the home—and $133,614.53 in “Building 

Code” damages—that is, costs to cover the increased repair costs due to 

building code enforcement. The appraisal included “Building Code” 

damages because the Schnells’ homeowners association rejected their 

application to replace only their broken tiles, instead requiring them to 

replace the whole roof. Specifically, the Schnells discovered that the 

manufacturer of their roof tiles, Monier Lifetile, had been purchased by Boral 

Roofing, which did not make the same tile, and the homeowners association 

refused to allow spot repairs with 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 appraisal award for “Building” 

damages, less their $9,879.00 deductible. State Farm refused to pay the 

Building Code appraisal award, stating 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 participation in the appraisal process 

nor subsequent payment of any sum of money constitutes or should be 

construed as an admission of liability by 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 Option OL coverage, the Schnells sought a 

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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 the Schnells by e-mail of the following determination 

under the building code: 

Based on Jeff’s email [sic] attached here is the determination 

we’ve made: 

If the existing concrete tiles do not interlock with the new tiles 

and proper water drainage cannot 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 requirements for a new structure 

without requiring the existing 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 materials 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 Boral, for the determination that the old Monier 

tiles did not interlock with 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 

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tiles do not interlock with Boral’s current product offering. 

Since these tiles do not interlock, there will not be a proper 

water channel for drainage and would void 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 documentation on the new Boral tiles 

and their compatibility with the old Monier tiles, State Farm did not provide 

any, instead providing the phone number for 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 September 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 that their roof could not be 

repaired with new tiles of different dimensions from the existing tiles and 

specifically that the new tiles referenced in the proposed repair estimate were 

not compatible with the Schnells’ existing tiles.” He further stated the 

position of the City of Fort Worth—which is “accurately reflected” by his 

determination—“has not changed.” However, in a May 17, 2022, 

declaration, Roberts stated differently that his “determination was 

conditioned upon the 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.” 

He further stated, “If the replacement tiles interlock, in accordance with the 

manufacture’s [sic] installation instructions, with the original tiles on the 

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roof, the Schnells may make any spot repairs necessary without the need for 

a permit.”

On February 25, 2021, the Schnells filed suit against State Farm in the 

District Court for Tarrant County, Texas. The Schnells brought claims for 

breach of contract; violations of chapter 541 of the Texas Insurance Code for 

misrepresentations and other statutory violations during the claims process; 

violations of chapter 542 of the Texas 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. State Farm removed the case to the U.S. District Court 

for the Northern District of Texas on the basis of diversity jurisdiction. See

28 U.S.C. §§ 1332(a), 1441. State Farm moved for summary judgment on all 

of the Schnells’ claims, which the district court granted.1

 The Schnells timely 

appealed. 

II. 

We review a district court’s grant of summary judgment de novo. 

Sanders v. Christwood, 970 F.3d 558, 561 (5th Cir. 2020). “Summary 

judgment is proper ʻif the movant shows that there 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 sufficient for a rational trier 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 

_____________________ 

1

 In the same order granting summary judgment to State Farm, the district court 

denied the Schnells’ cross motion for partial summary judgment as moot. The Schnells do 

not challenge this denial on appeal. 

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judgment, we must view the facts and evidence in the light most favorable to 

the nonmovants and draw all reasonable inferences in their favor. Hanks v. 

Rogers, 853 F.3d 738, 743–44 (5th Cir. 2017). 

III.

 The Schnells challenge the grant 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 construed 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 generally 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 policy are clear and 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 susceptible 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 strictly against the insurer and 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 Roberts determined their roof would 

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need to be replaced because the old Monier and new Boral tiles do not 

interlock. Below, the district court granted summary judgment to State Farm 

after finding 1) that Roberts’s enforcement decision did not flatly deny the 

Schnells’ permit for spot repairs but did so conditioned 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 Schnells were required 

to present evidence that the Monier and Boral tiles do not interlock, which 

they failed to do. On appeal, the Schnells argue genuine issues of material fact 

preclude summary judgment because they have presented evidence that 

Roberts himself determined the tiles do not interlock and flatly 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 district court’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 Schnells confirming that the old Monier 

and new Boral tiles do not interlock. Option OL requires that the roof tile 

replacement be “caused by the enforcement 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 what 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 Roberts’s September 2020 e-mail was an enforcement 

_____________________ 

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 vigor ‹~laws›”); Enforce, Oxford English 

Dictionary (2d ed. 1989) (“To compel the observance of (a law)”). 

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decision, as he later stated in his March 18, 2022, declaration that it 

accurately reflects the position of the City of Fort Worth on the Schnells’ 

roof under the building code. The question, then, is whether Roberts’s 

enforcement decision required the Schnells 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 tiles] do not inter lock [sic] they are 

not compatible with each other.” Roberts later confirmed in his March 18, 

2022, declaration that he intended 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 the 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 Boral tiles did not interlock, which he 

left to the Schnells to determine. In his September 2020 e-mail, Roberts 

asked the Schnells, “do you concur that [the Monier and Boral tiles] don’t 

meet.” Furthermore, in a declaration on May 17, 2022, Roberts backtracked 

from his March 18, 2022, statement noted above, stating that his 

“determination was conditioned upon the 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 conflicting evidence creates a genuine 

dispute of material fact, and the district 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 

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evaluate the credibility of the witnesses, weigh the evidence, or resolve 

factual disputes on summary judgment). 

We next address the district court’s requirement that the Schnells 

present evidence that the Monier and Boral tiles do not interlock. As stated, 

the import of enforcement is what building officials actually require. See St. 

Luke’s, 2007 WL 1217763, at *2. If Roberts determined the Monier and Boral 

tiles were incompatible under the building 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 code enforcement decision mandating 

increased repairs or changes; the Schnells need not defend the validity of the 

City’s enforcement decision. However, 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 Roberts 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 the 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 tiles do interlock, the manufacturer, whom 

Roberts credited, stated they do not. This dispute of fact precludes summary 

judgment. See Guzman, 18 F.4th at 160.

State Farm also suggests we may affirm summary judgment on an 

alternative ground not addressed by the district 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, and that the Schnells, therefore, cannot show their 

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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 Plantation, 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 “an insurer that is liable for a claim under an 

insurance policy,” Tex. Ins. Code § 542.060, “after receiving all items, 

statements, and forms reasonably requested and required under Section 

542.055, delays payment of the claim . . . 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 amount 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 damages “must establish: (1) the 

amount for which [the insurer] is contractually liable under the insurance 

policy; (2) that [the insurer] failed to comply with statutory deadlines; and 

(3) statutory damages based on the amount contractually owed less the 

amounts paid within the 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 the 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 reasonable 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 542 violation. Interest accrues only on 

the unpaid portion of a claim.” Id. 

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 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 deadline. The district court granted summary 

judgment to State Farm on this claim, 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. However, because, as explained above, 

genuine issues of material of fact preclude summary judgment on the 

Schnells’ Option OL breach of contract 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 accidental 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 this separate TPPCA argument but granted 

summary judgment to State Farm without further 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 appraisal award cannot establish liability, it was never 

liable for payment so as to trigger 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 

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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 bearing on any deadlines” under the 

TPPCA, “[n]othing in the TPPCA would excuse an insurer from liability for 

TPPCA damages if it was liable under the terms of the policy but delayed 

payment beyond the applicable statutory 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 between the preappraisal dwelling and 

personal property payments and the appraisal award” for purposes of the 

TPPCA). 

Here, State Farm confuses the scenario 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 

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payment pursuant to an appraisal award—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 award on April 2, 2020, and the itemized 

estimate from the appraisal umpire shows updated costs for roofing 

component and gutter repairs. The Schnells, therefore, have presented 

evidence that payment of the “Building” damages appraisal award was a 

delayed payment for that damage for which 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 liability. Because there has not yet been a determination of 

liability as to this damage, it is a fact issue 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 hail, as stated above, the district 

court did not address this argument, and we will not address it in the first 

instance. See Magnolia Island Plantation, 29 F.4th at 252. 

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C. Chapter 541 of the Texas Insurance 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 authority or evidence in the record. 

A party may forfeit an argument through 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 made 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 Schnells have failed to cite to any legal authority 

or record evidence in their brief on appeal 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 they presented evidence to the district court below, they 

do not cite to or even name any such evidence 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: 04/02/2024
No. 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 district court’s judgment, and REMAND

for further proceedings consistent with this opinion. 

Case: 22-10662 Document: 60-1 Page: 17 Date Filed: 04/02/2024