In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-20-00037-CV

___________________________

On Appeal from the 153rd District Court

Tarrant County, Texas

Trial Court No. 153-283785-16

Before Bassel, Womack, and Wallach, JJ.

Memorandum Opinion by Justice Bassel

SANFORD CRAYTON, Appellant

V.

HOMEOWNERS OF AMERICA INSURANCE COMPANY, Appellee
2

MEMORANDUM OPINION

I. Introduction

Appraisal under an insurance policy involves a contractual process by which 

the insurer and the insured select third parties to determine the amount of a claimed 

loss when the insurer and the insured cannot agree what the amount of the loss is. 

Barbara Techs. Corp. v. State Farm Lloyds, 589 S.W.3d 806 (Tex. 2019) (Hecht, C.J., 

dissenting). This appeal poses the question of how an insurer’s payment of an 

appraisal award triggers the deadlines and penalties of the act that requires insurers to 

timely process and pay insurance claims—the Texas Prompt Payment of Claims Act

(the TPPCA or the Act). See Tex. Ins. Code Ann. §§ 542.051–.061.

How the appraisal process and the TPPCA relate to each other was recently

explored by the Texas Supreme Court in Barbara Technologies. The majority opinion

and Justice Boyd’s concurring and dissenting opinion (hereinafter referred to as the 

concurrence)1 in Barbara Technologies offered fresh interpretations on whether the 

payment of an appraisal award created liability under the TPPCA and on what various 

1

As explained below, we utilize the concurrence in Barbara Technologies because 

Justice Boyd conducted a thorough statutory analysis of the interplay between 

Insurance Code Sections 542.058 and 542.060—an analysis that the majority in 

Barbara Technologies did not conduct because the parties did not brief the interplay 

between those two sections and because it was not necessary to the majority’s

analysis. See 589 S.W.3d at 824 (majority opinion). Although Barbara Technologies also 

includes a dissenting opinion by Chief Justice Hecht, joined by Justices Brown and 

Blacklock, that dissenting opinion merely references Section 542.058 and 542.060 but

does not include a statutory analysis of the interplay between the two sections. See id.

at 848–49 (Hecht, C.J., dissenting).
3

terms of the Act mean. These fresh interpretations of the interrelation of the 

appraisal process and the TPPCA create a host of questions that impact our 

resolution of this appeal.

The suit below arose from a claim by the insured, Appellant Sanford Crayton, 

for a wind and hail claim on his homeowner’s policy against his insurer, Appellee

Homeowners of America Insurance Company. Eventually, Crayton’s claims boiled

down to the question of whether Homeowners violated the TPPCA by initially 

rejecting his claim but later paying an appraisal award on the claim after Crayton sued.

Homeowners filed a combined no-evidence and traditional motion for 

summary judgment raising grounds that Crayton could not establish a violation of the 

TPPCA. Crayton responded without offering any evidence of his own that 

Homeowners’ original claim decision was flawed. Instead, Crayton relied on the fact 

that the appraisal award was several times higher than the damages in the original

adjustment that was the basis for Homeowners’ original rejection of his claim. Based 

on this disparity, he argued that a fact issue existed on Homeowners’ TPPCA liability.

In Crayton’s view, the disparity raised issues regarding (1) whether Homeowners’

original adjustment was flawed and (2) whether Homeowners should not have 

originally rejected the claim on the basis that Crayton’s damages fell below his 

deductible. The resolution of those fact issues would show that Homeowners had 

violated the TPPCA’s deadlines because it had not timely paid what it should have 

when the claim was originally presented.
4

The trial court granted Homeowners’ motion. Crayton raises two issues: one 

challenges the granting of the no-evidence portion of Homeowners’ motion, and the

other challenges the granting of the traditional motion. We affirm the trial court’s 

granting of Homeowners’ no-evidence motion.

As we read Barbara Technologies, Homeowners’ payment of the appraisal did not 

constitute a retroactive acceptance of Crayton’s claim that triggered the TPPCA’s 

deadlines. Nor did the payment of the appraisal award have probative value as to 

whether Homeowners’ original claim decision was in error such that it raised a fact 

issue as to Homeowners’ liability. Finally, we disagree with the concurrence that 

when an insurer pays an appraisal award after a sixty-day deadline contained in one of 

the Act’s provisions, there is a violation of the TPPCA and that the insurer can free 

itself from that violation only by proving that it had no liability because the insured’s 

claim is “invalid.”

II. Factual and procedural background

The underlying facts are not disputed. Homeowners issued a Texas 

homeowner’s policy insuring Crayton’s residence. In October 2014, Crayton filed a 

claim for storm damage that Homeowners acknowledged the same day that it was 

received.

Two days after the claim was filed, an adjuster from an independent adjusting 

agency visited Crayton’s property and investigated the claim. The adjuster concluded

that the damage to Crayton’s dwelling totaled approximately $300 calculated on the
5

basis of both a replacement cost value and an actual cash value. The adjuster also 

assessed the damage to a fence and to an outbuilding as totaling approximately $2,200

calculated on both a replacement cost value and an actual cash value.

The adjuster’s report contained the following description of the loss

adjustment:

Loss Adjustment:

Please see the attached estimate for damages noted during 

inspection. Specific damages consisted of 8 damaged shingles on the 

right slope and 10 damaged shingles on the left slope. There was no 

visible damage to the front or rear slopes of the dwelling roof. I 

inspected the interior of the dwelling and found no visible storm 

damage.

Other Structure: There was wind damage to the shared cedar 

wood fence. There was 128’ of damaged fencing and our estimate is to

repair 64’. There was wind damage to the shingles on the storage shed 

on the front and rear slopes. The wind lifted the shingles pulling

through the fasteners.

The attached estimate represents an agreed scope with the

insured’s contractor Joel Carriker with Trinity Roofing and Mrs. 

Crayton.

Overhead and profit not applied to estimate.

Depreciation applied based on age on the roofs. No depreciation 

applied to fencing being repaired.

Within six days of the inspection, Homeowners notified Crayton by letter of 

the adjuster’s findings and of the fact that the estimated damages were less than his 

policy’s deductible. Homeowners’ letter told Crayton that he should notify 
6

Homeowners should additional damage be found or if a contractor doing repairs 

estimated the damage to be higher than the adjuster’s findings.

The record reflects no more communication between Crayton and 

Homeowners until more than a year after Homeowners’ letter when, in January 2016,

counsel for Crayton sent Homeowners a demand letter claiming that Homeowners

had failed to adequately adjust and pay Crayton’s claim. The demand letter 

enumerated a number of alleged unfair settlement practices and misrepresentations of 

the insurance policy. The letter claimed that Crayton’s property had suffered $31,000 

in damages and that he had incurred $3,900 in expenses and $30,000 in attorney’s fees

to date.

Twenty-two days after the date of the demand letter, Crayton sued 

Homeowners for breach of contract, violation of the TPPCA, and “Bad 

Faith/Deceptive Trade Practices.” Homeowners answered and moved to abate the 

suit, claiming that Crayton had failed to provide information required under the terms 

of the policy and to make a written demand for an appraisal before filing suit.

The trial court entered an agreed order abating the case until an appraisal was 

completed and Crayton had provided the information required by the policy. 

Homeowners then invoked the appraisal process by writing Crayton’s counsel that

“[p]ursuant to the appraisal provision, Homeowners of America invokes the appraisal 

process and her[e]by demands appraisal to establish the amount of the loss, cost of 
7

repair, and actual cash value associated with the loss.” Homeowners designated an 

appraiser, and Crayton’s counsel did the same.

Several months after the trial court had entered the abatement order, the 

appraisers concluded that Crayton’s loss replacement cost was, before application of 

the deductible in Crayton’s policy, approximately $13,000 and that the loss actual cash 

value was approximately $11,000. Homeowners made an approximately $9,000 

payment to Crayton “[i]n accordance with the appraisal award.” Several months after 

payment of the appraisal award, the parties jointly moved to lift the abatement, and 

the trial court entered an order doing so.

Homeowners then filed a combined no-evidence and traditional motion for 

summary judgment. Among other grounds, Homeowners challenged Crayton’s claim 

that it had violated the TPPCA. Homeowners’ traditional motion appears to be 

predicated on the ground that Crayton had not raised any basis to establish that 

Homeowners’ original claim decision was in error. In its no-evidence motion,

Homeowners challenged that it was liable on Crayton’s claim because he “ha[d] failed 

to provide any [] evidence [that Homeowners] is liable for the claim or that it [had]

failed to comply with a provision of the Prompt Payment Act chapter 542 of the 

Texas Insurance Code.”

Crayton responded to Homeowners’ summary-judgment motion, but he did 

not attach any controverting evidence to his response. Instead, Crayton noted recent 

authority from the Texas Supreme Court that the payment of an appraisal award did 
8

not insulate an insurer from a TPPCA claim. Crayton argued that Homeowners had 

accepted Crayton’s claim by the manner in which it had paid the appraisal award and 

that he was “entitled to allow a jury to determine if [Homeowners’] payment for 

policy benefits established that it was liable for Crayton’s claim within the meaning of

the [TPPCA].” Beyond this, Crayton argued that the evidence that Homeowners had 

attached to its summary-judgment motion created a fact issue on Homeowners’

TPPCA liability—in essence, Crayton’s argument was that the payment of the 

appraisal award demonstrated in and of itself that Homeowners’ original claim

decision was flawed and that it had failed to timely pay the claim. Specifically, 

Crayton argued that

[a] jury is entitled to see the appraisal award, see [the adjuster’s] estimate 

and photos, and hear testimony from the appraisers regarding the scope 

of damage to determine whether—based on those facts—[Homeowners] 

is liable for Crayton’s claim. [Homeowners’] own summary[-]judgment 

evidence will be the majority of the evidence at trial (in addition to the 

appraiser’s testimony). As a result, [Homeowners’] own summary[-]judgment 

evidence satisfies Crayton’s burden to produce a scintilla of evidence that fact issues 

exist. A jury should be allowed to look at the appraisal award, [Homeowners’]

initial investigation, and subsequent payment to determine that [Homeowners] is 

liable for Crayton’s claim. [Emphasis added.]

Crayton also amended his petition to delete his claims for breach of contract and 

other Insurance Code violations, leaving only a cause of action under the TPPCA.

2

2

By its amendment, Crayton apparently conceded that the payment of the 

appraisal award barred the other claims that he had originally alleged for breach of 

contract and for common law and statutory bad-faith claims. See Ortiz v. State Farm 

Lloyds, 589 S.W.3d 127, 135 (Tex. 2019).
9

The trial court heard argument on Homeowners’ motion for summary 

judgment and granted it. Crayton sought reconsideration of that ruling and a new

trial, and the trial court again heard argument. The trial court denied reconsideration 

and a new trial by written order. Crayton then filed a notice of appeal.

III. The TPPCA, the appraisal, and the impact of Barbara Technologies on 

the relationship of the two

A. We set forth what the TPPCA is.

The TPPCA establishes a number of deadlines for insurance companies to 

process claims and penalizes a failure to meet its deadlines by assessing interest on the

claim at the rate of eighteen percent per annum and the payment of the insured’s

attorney’s fees. See Tex. Ins. Code Ann. §§ 542.051–.061. The supreme court recently 

summarized the Act’s rolling set of deadlines and its penalty provision as follows:

Taken together, the TPPCA imposes several key requirements on 

insurers: (1) the insurer must acknowledge receipt of the claim, 

commence any investigation of the claim, and request any items, 

statements, or forms required from the claimant within fifteen days of its 

receipt of notice of the claim; (2) the insurer must notify the claimant of 

acceptance or rejection of the claim no later than fifteen business days 

after the insurer receives all items, statements, and forms required to 

secure final proof of loss; (3) if the insurer notifies the insured that it will

pay all or part of the claim, it must pay it by the fifth business day after 

the date of notice of acceptance of the claim; (4) if the insurer delays 

payment of a claim for more than the applicable statutory period or sixty 

days, the insurer shall pay TPPCA damages; and (5) an insurer that is 

liable for a claim under an insurance policy and violates a TPPCA 

provision is liable for TPPCA damages in the form of 18% interest on 

the amount of the claim per year, with attorney’s fees. See id.

§§ 542.055(a)(1)–(3), .056(a), .057(a), .058(a), [.]060(a). Thus, the 

TPPCA has three main components—non-payment requirements and 
10

deadlines, deadlines for paying claims, and enforcement. See generally id.

§§ 542.055–.060.

Barbara Techs., 589 S.W.3d at 812–13. This appeal deals with the interplay of the 

section of the Act requiring payment within sixty days, the Act’s enforcement 

provision, and whether that interrelation creates a fact issue that the timing of 

Homeowners’ payment of the appraisal award violated those provisions.

B. We set forth the appraisal process.

The appraisal process is a contractual remedy that provides a mechanism to 

quantify an insured’s loss. Barbara Technologies noted that the appraisal process 

provides this remedy to determine the amount of the loss when the parties are at

loggerheads on the issue:

“[I]n every property damage claim, someone must determine the 

‘amount of loss,’ as that is what the insurer must pay.” [State Farm Lloyds 

v.] Johnson, 290 S.W.3d [886,] 895 [(Tex. 2009)]. Appraisal clauses are a 

means of determining the amount of loss and resolving disputes about 

the amount of loss for a covered claim. Id. at 888–89.

Id. at 814 (footnote omitted).

Here, Crayton’s policy with Homeowners contained an appraisal provision that 

permitted the appointment of appraisers should the parties “fail to agree on the 

amount of loss.” As noted, an appraisal occurred in this case, and Homeowners paid 

Crayton for the loss as determined by the appraisers.
11

C. We explain the interplay of the TPPCA and the appraisal process

described by the analysis of Barbara Technologies.

It was almost accepted wisdom of the courts of appeals that an insurer’s

payment of an appraisal award insulated the insurer from TPPCA claims. The 

supreme court’s opinion in Barbara Technologies worked a sea change in that view.

The supreme court noted that the appraisal process was in common use long 

before the passage of the TPPCA but that the Act makes no reference to it. Id. The 

failure of the Act to mention such a long-used process prompted the court to 

conclude that it “must interpret the absence of any such language in [C]hapter 542 to 

mean that the Legislature intends neither to impose specific deadlines for the 

contractual appraisal process within the TPPCA scheme nor to exempt the 

contractual appraisal process from the deadlines provided by the [Act].” Id.

After concluding that the TPPCA’s text does not integrate the appraisal process 

into its deadlines, Barbara Technologies “examine[d] the TPPCA’s deadline and 

enforcement provisions to determine how they apply in the context of contractual 

appraisals.” Id. at 817. As detailed below, the supreme court appears to place the

appraisal process in a separate lane from TPPCA claims, with the appraisal process 

neither being a liability trigger under the TPPCA nor a defense to liability under that 

Act.

The supreme court described the end game of the TPPCA process as an

investigation and evaluation by the insurer that
12

culminate[s] in a determination either that the claim is covered and the 

amount of loss exceeds the deductible, in which case the insurer must

notify the insured that it will pay the claim, or that the claim is rejected, 

in which case the insured must notify the insured of the reasons—for 

example, because the loss is not covered, the amount of the loss does 

not meet the deductible, or for some other reason under the policy.

Id. “Accepting” the claim triggers the deadline for payment within five business days. 

See Tex. Ins. Code Ann. § 542.057(a).

But rejection, which from the supreme court’s description includes the 

determination that a covered loss falls below a policy’s deductible, triggers none of the 

Act’s deadlines and, for that reason, could not trigger the Act’s enforcement provision 

that requires a determination that the insurer is liable under the policy and has failed to

comply with some requirement of the Act. See Barbara Techs., 589 S.W.3d at 819–20

(interpreting Tex. Ins. Code Ann. § 542.060). Specifically,

[w]hen an insurer rejects a claim in accordance with [S]ections 542.055

and [542].056 and notifies the insured of the reasons for the rejection, no 

other TPPCA deadlines or requirements apply at that point that could 

give rise to a claim under [S]ection 542.060, as there is no payment 

deadline without the insurer[’s] owing benefits under the policy.

Id. at 817. Thus, the court concluded that “[u]nder the TPPCA, use of the appraisal 

process to resolve a dispute has no bearing on any deadlines or enforcing any missed 

deadlines.” Id. at 817–18 (emphasis added).

The supreme court then dealt with the case law that had previously overlaid the 

appraisal process onto TPPCA claims and rejected the holding that the “full and 

timely payment of an appraisal award precludes an insured from recovering damages
13

under the TPPCA as a matter of law.” Id. at 818. Barbara Technologies viewed the cases 

as lacking in statutory analysis but accepted their premise to the extent that “use of 

the appraisal process to fully resolve a dispute as to the amount of policy benefits due, 

if owed at all, does not subject the insurer to TPPCA damages.” Id. at 819.

Then, Barbara Technologies appears to take the step of placing the appraisal

process into a separate lane from the TPPCA and, with that demarcation in place, to 

hold that the payment of an appraisal award neither creates nor forestalls liability

under the TPPCA’s enforcement provision found in Section 542.060 of the Act:

While we address the standard for TPPCA damages under [S]ection 

542.060 below, we caution that to the extent these opinions could be 

read to excuse an insurer liable under the policy from having to pay

TPPCA damages merely because it tendered payment based on an 

appraisal award, or to foreclose any further proceedings to determine the 

insurer’s liability under the policy, we disapprove of these opinions. See

Tex. Ins. Code [Ann.] §§ 542.058, .060. Nothing 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.

Id.

The supreme court then turned to a further analysis of Section 542.060. In this 

analysis, Barbara Technologies appeared to follow the same analytical approach that it 

had taken in dealing with the interrelation of the Act and appraisals; the mandates of 

the Act and the fact that an appraisal has occurred are discreet events, with the

appraisal not acting as a trigger for TPPCA liability.
14

Initially, the supreme court quoted Section 542.060(a)’s language that “[e]xcept 

as [otherwise] provided . . . , if an insurer that is liable for a claim under an insurance 

policy is not in compliance with this subchapter, the insurer is liable to pay” the 

insured damages as specified by this section. Id. (quoting Tex. Ins. Code Ann. 

§ 542.060(a)). The supreme court explained that Section 542.060(a) contains two 

triggers to the imposition of its penalties:

We see no way under the language of the TPPCA that an insurer can be 

“liable” on the claim within the meaning of [S]ection 542.060 until it

(1) has completed its investigation, evaluated the claim, and come to 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.

Id.

When an insurer rejects a claim, the insurer can only become liable under 

Section 542.060 if it later accepts the claim or is adjudged to have wrongfully rejected 

the claim. Id. at 819–20. Specifically, the supreme court held that

[i]f an insurer rejects a claim, it has concluded based on its investigation 

and evaluation that it owes no benefits under the policy and is not liable 

for the claim; unless and until the insurer later accepts the claim, thereby admitting 

liability, or there is a judgment that the insurer wrongfully rejected the claim, the

insurer is not “liable for a claim under an insurance policy” under [S]ection 542.060.

Id. (emphasis added).

The supreme court then described when the appraisal process might trigger the

liability element of Section 542.060 even though the insurer had initially rejected the 

claim in such a way that it had not initially triggered liability under the Act. Id. at 820. 

In this analysis, Barbara Technologies first described the appraisal process as an 
15

expression of an insurer’s willingness “to resolve a dispute outside of court” and 

likened it to a settlement. Id. With that premise in place, the supreme court held that 

the payment of the appraisal did not trigger the conditions of liability found in Section 

542.060 because they were neither “an acknowledgment of liability nor a 

determination of liability under the policy.” Id.

After analyzing several additional cases, the supreme court again reiterated the 

gulf that exists between what is necessary to establish an insurer’s liability under the 

TPPCA and the effect of the payment of an appraisal award:

To be clear, nothing in the TPPCA suggests that the invocation of a contractual 

appraisal provision alters or suspends any TPPCA requirements or deadlines. 

Rather, under the TPPCA, until an insurer is determined to owe the claimant 

benefits and thus is liable under the policy—either by accepting the claim and 

notifying the insured that it will pay, or through an adjudication of liability—the 

insurer is required to pay nothing, is subject to no payment deadline, and is not subject 

to TPPCA damages for delayed payment. See Tex. Ins. Code [Ann.]

§ 542.060(a) (imposing prompt pay damages when an insurer is liable 

under the policy and violated a provision of the TPPCA). This is not to

say that a rejected claim can never trigger damages under the TPPCA; to 

the contrary, if an insurer later accepts a claim after initially rejecting it,

or if an insurer is adjudicated liable for a claim it rejected, TPPCA 

deadlines and prompt pay requirements will apply. See id. §§ 542.057–

.060. But use of a policy’s appraisal process to resolve a dispute as to the value of 

loss—that is, the amount of benefits the insured would be entitled to under the policy 

if the insurer were determined liable for the claim—and payment based on the 

appraisal has no bearing on the TPPCA’s payment deadlines or enforcement of those 

deadlines. See In re Allstate Cty. Mut. Ins. Co., 85 S.W.3d [193,] 198 [(Tex. 

2002) (orig. proceeding) (Baker, J., dissenting)] (citation omitted).

Here, [the insured] filed suit after [the insurer] investigated, 

evaluated, and ultimately rejected the claim. The parties’ insurance 

policy sets forth the parameters of the appraisal process, providing the 

parties an alternative to seeking a judgment to resolve a dispute as to the 

value of the claim. [The insurer] invoked the appraisal provision because 
16

[the insured] disputed the insurer’s determination that the amount of the

loss was below [the insured’s] deductible, which resulted in rejection of 

the claim. At that point, the parties were already in litigation, and the appraisal 

provision offered an alternative process to resolve the valuation dispute. While the 

TPPCA does not acknowledge the appraisal process—neither explicitly subjecting it 

to the TPPCA’s deadlines or enforcement, nor exempting it—[C]hapter 542 

establishes that an insurer is not subject to TPPCA damages for delayed payment 

unless it was subject to a payment deadline because it owed benefits under the policy. 

We hold that [the insurer’s] payment of the appraisal value neither established 

liability under the policy nor foreclosed TPPCA damages under [S]ection 542.060.

Id. at 822–23 (footnotes omitted) (emphases added); see also Ortiz, 589 S.W.3d at 132 

(“As explained, appraisal awards do not serve to establish a party’s liability (or lack 

thereof). In re Allstate [Cty. Mut.] Ins. Co., 85 S.W.3d at 195. Rather, they contractually 

resolve a particular type of dispute among insurers and insureds: the amount of the

covered loss. Id.”).

It appears to us that Barbara Technologies left open avenues for the insured to 

show that TPPCA deadlines were triggered because the insurer was liable on its policy 

at the time that it rejected the claim but removed the appraisal process’s probative 

value in making that showing.

D. The meaning of Section 542.058 was left unanswered by the 

majority opinion in Barbara Technologies.

Barbara Technologies gave guidance on the question of whether an insurer who 

rejects a claim is liable under Section 542.060 but did not address whether that insurer 

might be liable under the provision of the Act that provides an overall deadline for 

when a claim should be paid. Specifically, the supreme court left unanswered how to 

interpret Section 542.058 of the TPPCA:
17

Except as otherwise provided, if an insurer, after receiving all items, 

statements, and forms reasonably requested and required under Section 

542.055, delays payment of the claim for a period exceeding the period 

specified by other applicable statutes or, if other statutes do not specify a 

period, for more than 60 days, the insurer shall pay damages and other 

items as provided by Section 542.060.

Tex. Ins. Code Ann. § 542.058(a). Barbara Technologies also offered no guidance to 

interpret Subsection (b) of Section 542.058 that provides, “Subsection (a) does not 

apply in a case in which it is found as a result of arbitration or litigation that a claim 

received by an insurer is invalid and should not be paid by the insurer.” Id. § 542.058(b).

Because the parties in Barbara Technologies had not addressed the question of

Section 542.058’s interpretation, the supreme court only outlined but did not reconcile

the tension between the language of Section 542.058 and that of Section 542.060:

Neither party has specifically raised the issue of whether [S]ection 

542.058’s “shall pay damages” language could be the basis for TPPCA 

damages for late payment, independent of [S]ection 542.060’s limitation 

of TPPCA damages to insurers “liable on a claim under an insurance 

policy.” Moreover, the parties have not briefed the interplay between 

[S]ection 542.060’s liability requirement and [S]ection 542.058’s 

exception for a claim that is found to be “invalid” and “should not be 

paid.”

Barbara Techs., 589 S.W.3d at 824.

The only interpretative hint that the majority opinion in Barbara Technologies

offered as to the meaning of Section 542.058 was “that when discussing the damages 

standard under the TPPCA and its predecessor, this Court has recognized the liability 

element for imposing TPPCA damages.” Id.

E. We set forth how Barbara Technologies summarized its holdings.
18

The supreme court wrapped up its discussion of the TPPCA by concluding that

[u]nder the TPPCA, an insurer must pay damages in the form of 18% 

interest on the amount of the claim and reasonable and necessary 

attorney’s fees if it delays payment of a claim for more than the 

applicable statutory period or sixty days. See Tex. Ins. Code [Ann.] 

§§ 542.058, .060. We hold that neither [the insurer’s] invocation of the 

policy’s appraisal process for resolution of a dispute as to the amount of 

loss, nor [the insurer’s] payment based on the appraisal amount, exempts 

[the insurer] from TPPCA damages as a matter of law. And without [the 

insurer] having accepted liability under the policy or having been 

adjudicated liable, we hold that [the insured] is not entitled to TPPCA 

damages as a matter of law. We reverse the court of appeals’ judgment 

and remand the case to the trial court for further proceedings consistent 

with this opinion.

Id. at 828–29.

F. The concurrence in Barbara Technologies analyzed Section 

542.058 and concluded that the insurer had violated this TPPCA 

section by rejecting the insured’s claim and then subsequently

paying the appraisal award.

The concurrence did not shy away from interpreting Section 542.058 and came

to the conclusion that it dictated liability for the insurer in the circumstances analyzed

by Barbara Technologies. The concurrence “conclude[d] that, by voluntarily and 

unconditionally paying the benefits claimed, the insurer conceded both its liability and 

the claim’s validity.” Id. at 829 (Boyd, J., concurring & dissenting). Thus, the 

concurrence concluded that the case should be remanded to the trial court to address

only the amount of interest and attorney’s fees that the insurer owed the insured. Id.

The concurrence outlined the TPPCA’s flow and initially noted that the 

sections dealing with the claim’s acknowledgement, acceptance, and payment “impose 
19

no payment obligation or deadline when the insurer rejects a claim for policy benefits.” 

Id. at 831 (discussing Tex. Ins. Code Ann. §§ 542.055–.057). On the other side of the 

equation, when the insurer accepts the claim, “the Act requires it to pay the claim 

within five business days.” Id.

In the concurrence’s view, the TPPCA “describes two independent circumstances 

in which insurers must pay statutory interest and attorney’s fees.” Id. (emphasis

added). The two independent circumstances are found in Sections 542.058 and

542.060:

•First, if an insurer “delays payment of the claim” for more than sixty 

days after it receives all reasonably required “items, statements, and 

forms” from the claimant, it “shall” pay interest and attorney’s fees “as 

provided by Section 542.060,” unless “it is found as a result of

arbitration or litigation” that the claim “is invalid and should not be 

paid.” [Tex. Ins. Code Ann.] § 542.058(a), (b).

•Second, if an insurer “is liable for a claim under an insurance policy” and 

“is not in compliance with” the Act, it must pay, “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).

Id. at 831–32 (footnotes omitted).

After analyzing and rejecting the rationales of the various cases holding that

“an insurer that makes a full and timely payment of an appraisal award is not obligated 

to pay statutory interest or attorney’s fees even if it previously failed to comply with 

the Act or timely pay the claim,” the concurrence concluded that the appraisal process 

performed a different function than the TPPCA. Id. at 834, 837 (footnote omitted). 
20

Appraisal provides a mechanism to value the claim but does not establish when the 

insurer should have paid the claim; instead, the TPPCA dictated when the claim 

should be paid. Id. at 837.

By separating the TPPCA and the appraisal process into separate spheres that 

removed the appraisal process from the equation used in determining a violation of 

the TPPCA, the concurrence began to unravel the answer to its initial question 

regarding whether the TPPCA required the insurer to pay interest and attorney’s fees 

after “having voluntarily and unconditionally paid the claim for benefits, but having 

paid more than sixty days after receiving all the information it required before

rejecting the claim.” Id. In the concurrence’s view, the insurer had complied with the 

Act by acting timely in processing and rejecting the claim up until it faced the sixtyday deadline for payment in Section 542.058. Id. The insurer, however, violated 

Section 542.058 because its later voluntary payment of the appraisal award was made 

“more than sixty days after it received all the information it reasonably required from 

[the insured] to decide to reject the claim.” Id. By paying the appraisal award long 

after rejecting the claim, the insurer transgressed the sixty-day time limit for payment 

in Section 542.058(a), and the insurer had not been freed from the effect of its 

violation by obtaining a finding under Section 542.058(b) that “as a result of 

arbitration or litigation that a claim received by an insurer is invalid and should not be 

paid by the insurer.” Id.
21

The concurrence then took up the task that the majority in Barbara Technologies

abjured and offered guidance to the trial court on why it should determine on remand 

that Section 542.060 does not apply to the facts found in the case but that Section 

542.058 does and why the facts establish a violation of that section. Id. at 837–39.

It appears that the concurrence concluded that a violation occurred in large 

part because of the effect of Section 542.058(b)’s language that the sixty-day deadline

does not apply if there is a finding that the claim is invalid. Id. at 839 (citing Tex. Ins. 

Code Ann. § 542.058(a), (b)). That provision largely underlies the three reasons for 

the concurrence’s view that the insurer had violated Section 542.058 through its 

failure to comply with the section’s sixty-day deadline:

First, the concurrence challenged the majority’s instruction that the trial court 

on remand should apply both Sections 542.058 and 542.060 by reading them together.

Id. at 838. In the concurrence’s view, that exercise was impossible because Sections

542.058 and 542.060 create opposite burdens on the same issue, trigger different

deadlines, and require the payment of the Act’s penalties under different 

circumstances. Id. The concurrence’s view was that when an insurer accepts a claim,

the deadline to pay the claim in five days under Section 542.057 is triggered, and thus

Section 542.058’s sixty-day deadline never becomes applicable. Id. at 839. On the 

other hand, when an insurer rejects a claim but complies with the TPPCA’s deadlines

while doing so, there is no claim that the insurer has failed to comply with the 
22

TPPCA, and thus the predicate of liability under Section 542.060 that the insurer is 

not in compliance with the Act is not met. Id.

Not only did the structure of the TPPCA create an “irreconcilable conflict”

when attempting to apply the two sections, that structure created a similar conflict if 

claims under both sections were submitted to a jury. Id. at 838. The concurrence

viewed the invalidity language in Section 542.058(b) that freed the insurer from that

section’s sixty-day deadline as being the same standard as Section 542.060’s standard

that required a finding that the insurer “is liable.” Id. With that premise established, 

the concurrence thought it impossible to follow the majority’s instructions that on 

remand the insured must prove that the insurer was liable under its policy and that the 

insurer could challenge the assertion of liability by proving that it had no liability 

because the claim was invalid. Id. As the concurrence stated, the majority “would 

place the burden entirely on [the insured]—requiring [the insured] to prove that its 

claim for policy benefits was ‘valid’ and should have been paid because [the insurer] 

was ‘liable’ on the claim—[and would] render[] [S]ection .058(b) completely 

meaningless.” Id.

The concurrence then explained why it had concluded that Section 542.058 

applied when the insured rejected a claim but later paid it after the appraisal process.

Id. at 839. Again, the insurer had complied with Section 542.060 because it had 

“timely acknowledged, investigated, and rejected [the insured’s] claim and [had] 

provided the reasons for its rejection.” Id. And again accepting the claim did not 
23

create liability under the sixty-day deadline of Section 542.058 because the five-day 

deadline to pay an accepted claim under Section 542.057 controlled, and the failure to 

meet that deadline would trigger a violation of Section 542.060 because the insurer 

would not be “in compliance with” the Act. Id.

But Section 542.058 fit the crime of initially rejecting the claim but then paying 

an appraisal award. Id. The failure to pay the claim until there was an appraisal award 

showed that the insurer had violated Section 542.058 because it had “‘delayed 

payment of the claim’ for more than sixty days after receiving from [the insured] all 

the information it required to secure proof of loss” and had not carried its burden of

proof under Section 542.058(b) that the insured’s claim was invalid and should not 

have been paid. Id.

The concurrence then argued that the invalidity provision of Section 542.058 

would still apply even if Section 542.060 could be read to apply to the facts involved

in Barbara Technologies. Id. Even if Section 542.060 applied, the concurrence

concluded that the insurer would still be required “to pay the statutory interest and 

attorney’s fees unless the insurer [met] its burden to prove that the claim was invalid 

and should not have been paid. Section [542].060 applies only if [the insurer] was ‘not 

in compliance with’ the Act.” Id. The concurrence’s chain of reasoning was that if 

the insurer complied with the TPPCA in how it acknowledged, investigated, and 

rejected the claim, the insurer’s only potential act that would meet the liability

standard of Section 542.060 for “not [being] in compliance with” the TPPCA would 
24

be the failure to pay within Section 542.058’s sixty-day deadline. As the act of 

noncompliance was found in Section 542.058 then apparently all the provisions of

that section must control, including its provision that requires the insurer to pay unless it 

carries its burden to establish the claim was invalid and should not have been paid. Id.

After detailing its views regarding why Section 542.058 applied, the 

concurrence then set out its view that “the Act’s language confirms that an insurer

that voluntarily and unconditionally pays a claim ‘is liable’ on that claim, even if its 

liability has not been adjudicated.” Id. at 840–41. The concurrence rejected the 

majority’s construction that Section 542.060 requires an adjudication of the insurer’s 

liability. Id. at 841. The concurrence viewed the Act as not requiring an adjudication

of liability before Section 542.060 applies but requiring only an adjudication of 

invalidity to free an insurer from the deadline of Section 542.058 and drew from this

inconsistency a presumption that the provisions carried different meanings. Id.

Then, Justice Boyd turned back to an argument based on the invalidity

language of Section 542.058(b) and his construction of that section to mean that an 

insurer carries the burden to prove that it is not liable on the claim. Id. at 842–43. He

reiterated that to require an adjudication that an insurer is liable before the sixty-day 

deadline applies would render meaningless Section 542.058(b) because that subsection 

requires the insurer to prove that the claim is invalid and thus places the burden on 

the insurer to establish that it is not liable before being freed from the sixty-day 

deadline. Id. at 842. He also reiterated the principle that he had stated earlier in his 
25

opinion that the contradiction takes shape because if “[a]ll that matters then is

whether the insurer is legally adjudicated to be liable, [] whether it is found to be not

liable is irrelevant and [S]ubsection .058(b) is completely meaningless.” Id. 

Next, the concurrence disagreed with the majority that payment of the 

appraisal did not constitute an acceptance of the claim. See id. Unlike the majority, 

the concurrence saw no difference between “(1) an insurer who initially accepts and 

pays the claim, (2) an insurer who initially rejects but later voluntarily and

unconditionally pays a claim, and (3) an insurer who initially rejects but later 

voluntarily and unconditionally pays the claim in an amount determined through an 

appraisal process.” Id. In the concurrence’s view, none of the three scenarios altered 

the fact that “by voluntarily and unconditionally paying the claim, the insurer ‘accepts’

the claim and thus concedes its liability for the benefits under the policy.” Id. at 843.

The effect of that concession was not lessened because the amount of the loss was 

determined by the appraisal process. Id. To avoid making a concession of liability,

the insurer could have continued to reject the claim. Id. “Instead, [the insurer] 

voluntarily and unconditionally paid the claim” and could no longer “argue that the 

claim it ha[d] voluntarily and unconditionally paid should not have been paid at all.” Id.

After charting the path outlined above, the concurrence summarized its views

as follows:

In summary, [the insurer] timely acknowledged, investigated, and 

rejected [the insured’s] claim just as the Act required. Unsatisfied with

[the insurer’s] decision, [the insured] filed suit, forcing [the insurer] to 
26

either voluntarily pay the claim or litigate its liability and the claim’s 

validity. [The insurer] chose to voluntarily and unconditionally pay the 

claim but did so more than sixty days after receiving from [the insured] 

all the information it reasonably required to initially reject the claim. 

Because [the insurer] fully complied with the Act’s requirements, 

[S]ection .060 and its “is liable” standard does not apply. Instead, 

[S]ection .058 applies, and because arbitration or litigation has never 

determined that [the insured’s] claim was invalid and should not have

been paid, [S]ection .058 requires [the insurer] to pay statutory interest 

and attorney’s fees. And even if [S]ection .060 could also somehow 

apply, it requires [the insurer] to pay interest and fees because [the 

insurer] conceded that it “is liable” under the policy by voluntarily and 

unconditionally paying the claim.

Id.

IV. Standard of review

We apply a de novo standard of review to summary judgments. Travelers Ins. v. 

Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A no-evidence motion for summary

judgment is reviewed “under the same legal sufficiency standard as a directed verdict.”

Painter v. Ameritex Drilling I, Ltd., 561 S.W.3d 125, 130 (Tex. 2018). That standard

places the burden on the nonmovant “to produce more than a scintilla of evidence to 

support each challenged element of its claims.” Id.

The party moving for a traditional summary judgment carries “the burden to 

prove that there is no genuine issue of material fact and that it is entitled to judgment 

as a matter of law.” Ortiz, 589 S.W.3d at 131. “When reviewing a summary judgment, 

we take as true all evidence favorable to the nonmovant, and we indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor.” Id. (quoting 

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)).
27

We recently noted how we organize our review of combined no-evidence and

traditional summary-judgment motions as follows:

Because the trial court did not state the grounds for granting summary 

judgment, we will uphold the summary judgment if it can be sustained 

under either traditional or no-evidence grounds. See Dow Chem. Co. v. 

Francis, 46 S.W.3d 237, 242 (Tex. 2001). When a party moves for 

summary judgment under both traditional and no-evidence grounds, we 

normally first review the trial court’s judgment under the no-evidence 

grounds. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). 

But we may address the traditional grounds for summary judgment first

when they are dispositive. See D.R. Horton-Tex., Ltd. v. Savannah Props. 

Assocs., L.P., 416 S.W.3d 217, 225 n.7 (Tex. App—Fort Worth 2013, no 

pet.) (addressing traditional summary judgment first because movant’s 

affirmative defense was dispositive).

Tippett v. Safeco Ins. Co. of Ind., No. 02-19-00152-CV, 2020 WL 827143, at *3 (Tex. 

App.—Fort Worth Feb. 20, 2020, no pet.) (mem. op.).

V. Why we conclude that the trial court properly granted Homeowners’

motion for summary judgment

As we previewed in the introduction, we conclude that the trial court made the 

proper determination by granting Homeowners’ no-evidence motion for summary 

judgment. Homeowners did not accept Crayton’s claim by the manner in which it

paid the appraisal award, a disparity between the original adjustment and the appraisal

award is not probative of Homeowners’ liability under the rationale of Barbara 

Technologies, and Homeowners did not violate Section 542.058 of the Act.

A. Homeowners did not “accept” Crayton’s claim when it paid the

appraisal award.
28

Crayton argues that there is evidence that Homeowners indeed accepted that it 

was liable on his claim, and because it was not in compliance with the provisions of 

the TPPCA, it was liable under Section 542.060(a). By this argument, Crayton tries to 

place Homeowners in the category established by Barbara Technologies of an insurer

becoming liable even though it had initially rejected a claim because it subsequently

accepted the claim. See Barbara Techs., 589 S.W.3d at 822 n.12 (majority opinion). We

disagree that Homeowners’ actions constituted “acceptance” of the claim under the 

standard pronounced by Barbara Technologies.

The supreme court outlined when an insurer might admit its way into liability 

for a claim previously rejected:

Even after acknowledging receipt of the claim, investigating it, and then 

rejecting the claim (that is, denying liability), an insurer may later choose

to accept the claim, admitting liability under the policy. For example, if a 

contractual appraisal provision such as the one in this case is invoked 

after the insurer has received all information requested from the 

claimant, conducted an investigation, and rejected the claim, the insurer 

may choose to[] (1) refuse to pay the appraisal amount and maintain its 

denial of liability for the claim; (2) pay the appraisal amount without 

accepting liability; or (3) accept the claim, essentially admitting it was incorrect to

deny liability initially, and then pay the claim in accordance with the appraisal 

amount. If the insurer chooses the third option, it becomes liable for the claim despite 

its earlier rejection of the claim, and it will be subject to TPPCA damages for failure

to pay within the applicable TPPCA deadlines. See Tex. Ins. Code [Ann.]

§§ 542.056(a), .057(a), .058, .060. If the insurer chooses the first option, 

refusing to pay an appraisal amount and continuing to deny liability, the 

insured could choose to pursue litigation. And if the litigation resulted 

in a judgment that the insurer was in fact liable on the claim, the insurer 

would then owe the amount of the claim, as fixed by the binding 

appraisal, and TPPCA damages if the insurer failed to pay the claim

timely in accordance with [S]ection 542.058. See id. §§ 542.058, .060. 
29

This opinion addresses only the second option, as those are the facts of 

the case before us.

Id. (emphasis added).

Thus, the question is how an insurer places itself in the ambit of the third

option by accepting the claim in a way that essentially admits itself into liability. Based 

on a subsequent footnote in Barbara Technologies, it appears that the insurer must 

“specifically accept” the claim:

JUSTICE BOYD [in the concurrence] would hold that voluntarily 

paying the appraisal amount constitutes acceptance of the claim. See post

at 829. We disagree. An appraisal is binding only as to the amount of 

the loss on the claim, not as to liability. See, e.g., In re Allstate Cty. Mut.

Ins., 85 S.W.3d at 198 (explaining that an appraisal is not used to 

determine liability (citation omitted)); Breshears[ v. State Farm Lloyds], 155 

S.W.3d [340,] 343 [(Tex. App.—Corpus Christi–Edinburg 2004, pet. 

denied) (mem. op.).] So an insurer that pays an appraisal amount as to a rejected 

claim—where the insurer has denied liability—does not satisfy [S]ection 542.060’s 

requirement that the insurer be “liable for a claim under an insurance policy,” 

unless the insurer specifically accepts the claim or is adjudicated 

liable. See Tex. Ins. Code [Ann.] § 542.060(a). We find no support for 

the proposition that payment of an appraisal amount on a rejected claim 

establishes liability for purposes of [S]ection 542.060.

Id. at 823 n.14 (emphasis added).

Here, Crayton argues that Homeowners did not qualify its language carefully 

enough when it paid the appraisal award and stepped into a retrospective acceptance

of the claim. In his view, various statements should be construed as admissions that 

Homeowners was liable under the policy:

While payment of an appraisal award is not in and of itself an acceptance

of the insured’s claim, in this case, at least some evidence of acceptance 

exists. For example, [Homeowners’] payment letter reflects that 
30

[Homeowners] paid $9,190.22 on October 19, 2018, “covering 

[replacement cost value] on the dwelling, [replacement cost value] on 

other structures that are buildings and the [actual cash value] on the 

fence.” The letter further explains that the appraisal award payment 

“established compliance with its obligations under the policy” and was 

timely paid “under the policy.” Likewise, the check detailing

[Homeowners’] payment of the appraisal award is evidence of 

acceptance. The check stub identifies the payment as one made on 

Crayton’s 2014 claim, pursuant to the policy, under “Coverage A 

Dwelling” for “property damage” out of [Homeowners’] “Claims 

Account.” [Record citations omitted.]

The evidence that Crayton cites does not create a specific acceptance of the 

claim. Here, Homeowners invoked the appraisal process and then paid the amount of

the appraisal award; the very first words of the letter state that the basis of its payment 

is “[i]n accordance with the appraisal award.” The reference to compliance with the

policy and timely payment is reasonably interpreted as a reference to the fact that 

Homeowners had complied with the appraisal provision of its policy and not as an

admission that it had indeed been liable all along. The evidence cited by Crayton does 

not show that Homeowners specifically accepted the claim in a way that essentially 

admitted it was incorrect to deny liability initially and then pay the claim in accordance 

with the appraisal amount.

A federal court rejected an argument similar to Crayton’s in Lopez v. Allstate 

Texas Lloyds, No. 7:18-CV-260, 2020 WL 292342, at *9–11 (S.D. Tex. Jan. 21, 2020) 

(opinion & order). In Lopez, the insured relied on five examples of language that he

argued showed that an insurer had accepted his claim by paying an appraisal award. 

Id. at *10. The instances that the insured relied on were similar to those relied on by
31

Crayton to support his contention that Homeowners specifically accepted the claim; 

the instances in Lopez included

language found in Defendant’s February 7, 2019 letter and motions, that 

Defendant “admitted:” (1) the appraisal payment was “an unconditional 

payment for ‘the Full Cost or Replacement less deductible;”’

(2) Defendant “tendered payment of the ‘full net Replacement Cost 

Value;”’ (3) the payment “was in compliance with the ‘Loss Payment’ 

provision in the policy;” and twice (4) “[Plaintiff] had received ‘the full 

extent of all recoverable benefits under the subject Policy.[’]”

Id. Lopez rejected the contention that the examples relied on by the insured were 

admissions of liability and acceptance that the claim was covered. Id. at *11. Rather 

the “statements that payment was made pursuant to the appraisal award and the 

appraisal award was timely paid pursuant to the policy . . . does nothing more than

detail the contractually required payment made by [the insurer] after the appraisal 

process.” Id. The references that Crayton relies on do no more than those relied on 

by the insured in Lopez and did not constitute a specific acceptance by Homeowners

of Crayton’s claim.

B. The fact that the appraisal award was made did not meet Crayton’s

burden to present a scintilla of evidence of a TPPCA violation.

Next, without telling us whether he seeks to establish a violation of Section

542.058 or Section 542.060, Crayton argues that “there is some evidence to support 

the adjudication of [Homeowners’] liability for [his] claim.” The evidence that

Crayton cites is that the appraiser and Homeowners never disputed that his claim was 

a covered loss and that his claim was rejected because the amount to repair the 
32

damages fell below his deductible. Then he points out that the appraisal award was 

five times the original estimate of damages. With that combination of evidence, he

argues that

[a]t trial, a jury will review the award and payment letter as well as [the 

adjuster’s] loss report, estimate, and photos. This amounts to more than 

a scintilla of evidence that Crayton suffered a covered loss (which 

[Homeowners] has never disputed) and that the cost of repair was more 

than his $3,020 deductible. A reasonable jury could certainly conclude 

from these items that [Homeowners] is liable for Crayton’s claim under

the policy.

This comparison of the original adjustment against the appraisal award, Crayton

argues, is exactly what Barbara Technologies contemplates and was the basis for Barbara 

Technologies’ conclusion that the insured did not establish a right to relief as a matter of 

law. We conclude to the contrary; using the appraisal results as evidence that the 

insurer is liable contravenes the rationale of Barbara Technologies that places TPPCA 

deadlines and the appraisal process in separate realms.

We will first deal with whether the fact that the appraisal is higher than the 

amount of damages found in the original adjustment creates a fact issue regarding

whether the insurer “is liable” under Section 542.060’s standard. We read Barbara 

Technologies as contrary to Crayton’s argument that comparisons of the original

adjustment to the appraisal award is what that opinion contemplates. Instead, we 

view Barbara Technologies as being antithetical to such an approach. As we have 

outlined, Barbara Technologies goes on at length divorcing the appraisal process from 

the determination that the insurer is liable on the policy and thus liable under the
33

TPPCA. Crayton never explains how he can create a comparator using the appraisal

award and the original adjustment when Barbara Technologies holds that the

use of a policy’s appraisal process to resolve a dispute as to the value of 

loss—that is, the amount of benefits the insured would be entitled to 

under the policy if the insurer were determined liable for the claim—and 

payment based on the appraisal has no bearing on the TPPCA’s payment 

deadlines or enforcement of those deadlines.

589 S.W.3d at 822 (emphasis added).

3

 Indeed, the supreme court has likened the 

appraisal process as akin to a settlement. Id. at 820. The logical force of placing the 

TPPCA liability and appraisal in what we describe as separate lanes is that an insured 

can certainly prove that the insurer is liable on its policy and should have paid the 

claim earlier, but he must remove the appraisal as being probative on those issues.

In essence, Crayton wants to find a back door into the use of an appraisal

award when the supreme court appears to have shut the front door. If that door were 

opened, the process that the supreme court views as the vital process of appraisal could,

for all practical purposes, be at an end. An insurer would know that once it invokes

appraisal, it runs the risk of producing a result that, rather than helping end litigation,

would provide the ammunition for the litigation to continue and places itself at a severe

disadvantage when arguing that it was not liable on its policy. The insurer would be

left in the position of trying to explain the arcana of the appraisal process to the jury

3

The supreme court references “enforcement” while discussing Section 

542.060(a), which predicates the ability to enforce its penalties on the insurer’s being 

“liable for a claim.” See Tex. Ins. Code Ann. § 542.060(a). By stating that the 

appraisal has no bearing on “enforcement,” this augments our conclusion that the 

appraisal process has no bearing on establishing liability.
34

as justification for its determination not to pay the claim in the first place when 

purportedly disinterested appraisers came up with a higher number.

Crayton argues that by holding as we do, we violate Barbara Technologies’ holding 

that the insurer did not “demonstrate[] that TPPCA damages are foreclosed as a

matter of law, as tender of the appraisal amount does not preclude TPPCA damages.” 

589 S.W.3d at 828. We agree with Crayton that the supreme court held that the

payment of the appraisal award did not free the insurer from a remand of the case. 

But Barbara Technologies was an introduction to a new world exploring the interrelation

of the TPPCA and appraisals. Because of Homeowners’ and Crayton’s arguments

and the state of the summary-judgment record, we face an issue not explicitly 

answered by Barbara Technologies: is the appraisal award probative evidence that the

insured is liable for the claim and should have paid the claim in accordance with

TPPCA’s deadlines? We apply what we see as the rationale of Barbara Technologies to

answer the question in the negative.

4 In doing so, our interpretation avoids the 

4

Crayton also points to other cases in which the supreme court and this court

have remanded cases after Barbara Technologies was handed down and argues that we 

should follow a similar course. Those cases, however, did not involve the issues we 

grapple with here. See Lazos v. State Farm Lloyds, 601 S.W.3d 783, 784 (Tex. 2020) 

(remanding case to trial court to apply Barbara Technologies and Ortiz when court of

appeals had concluded that the insured “could not maintain his TPPCA claim due to 

[the insurer’s] payment of the appraisal award”); Alvarez v. State Farm Lloyds, 601 

S.W.3d 781, 783 (Tex. 2020) (same); Lambert v. State Farm Lloyds, No. 02-17-00374-

CV, 2019 WL 5792812, at *3 (Tex. App.—Fort Worth Nov. 7, 2019, pet. filed) (mem.

op.) (remanding case because it was in the same procedural posture as Barbara

Technologies); see also Perry v. United Servs. Auto. Ass’n, 602 S.W.3d 915, 917 (Tex. 2020) 

(same); Marchbanks v. Liberty Ins. Corp., 602 S.W.3d 917, 918 (Tex. 2020); Alcala v. 
35

concerns that Chief Justice Hecht noted in his dissent about the seeming 

contradictions of the majority’s reasoning.5

C. The evidence does not raise a fact issue that Homeowners violated 

Section 542.058 of the TPPCA.

1. We set forth the basic points that show why we disagree with 

the concurrence.

Crayton next invokes Section 542.058 to argue that we should reverse the 

granting of Homeowners’ no-evidence summary judgment. He uses Section 542.058 

in two ways. First, he argues that paying the appraisal award more than 1,000 days 

after rejecting his claims is a violation of the sixty-day limit of Section 542.058 and 

was thus not in compliance with the TPPCA and thus constituted a violation of 

Section 542.060. He then argues that Homeowners committed the following

freestanding violation of Section 542.058:

Section 542.058 lacks the liability element present in Section 542.060. It 

is undisputed that [Homeowners] had everything it needed to make a 

Republic Lloyds, No. 13-18-00026-CV, 2020 WL 830840, at *4 (Tex. App.—Corpus

Christi–Edinburg Feb. 20, 2020, no pet.) (mem. op.) (reversing summary judgment 

predicated on timely payment of appraisal award).

5

Chief Justice Hecht noted the seeming contradiction in the majority’s 

approach as follows:

I think this is a fair paraphrase: the crux of the courts’ opinions is that 

the Act does not penalize a postclaim-rejection payment of an appraisal 

award, and we do not disagree with that; but the Act does not excuse a 

postclaim-rejection payment of an appraisal award from its penalties, so 

we disapprove of them.

Barbara Techs., 589 S.W.3d at 849 (Hecht, C.J., dissenting).
36

claim decision on October 15, 2014, but did not pay the appraisal award 

until 1,464 days later. Accordingly, even assuming arguendo that Crayton 

lacked sufficient evidence of liability, his TPPCA claim still should have 

survived no-evidence summary judgment because there is more than a 

scintilla of evidence that [Homeowners] violated Section 542.058.

We now enter the territory left uncharted by the majority opinion in Barbara 

Technologies, which is the construction of Section 542.058. This creates the task of 

weaving together the few comments that the majority in Barbara Technologies made

about Section 542.058, the extensive commentary about that section in the 

concurrence, and our own view of the section’s meaning in order to interpret the 

section’s impact on Crayton’s TPPCA claim. It is our conclusion that Homeowners’

actions were not a violation of Section 542.058.

We must disagree with the concurrence that the circumstances of this case,

which mimic those of Barbara Technologies, establish a violation of Section 542.058 for 

which the insurer commits what is tantamount to a per se violation of Section

542.058(a). First, comparing Justice Boyd’s opinion and the majority’s, it appears that 

the majority does not agree with the premises that the concurrence uses to argue that

there could be no violation of Section 542.060 and there is a facial violation of Section

542.058(a) when the appraisal award is paid out side of Section 542.058(a)’s sixty-day 

deadline. Nor do we see the same significance that he sees in the invalidity provision 

of Section 542.058(b). The concurrence construes this subsection to require an

insurer to prove that it is not liable on the policy to avoid the sixty-day deadline of

Section 542.058(a). From this premise, that opinion concludes that requiring an 
37

insured to prove liability under Section 542.060 would read Section 542.058(b) out of

the Act. But that conclusion assumes that both provisions address the same issue. 

We conclude that the invalidity provision addresses a different issue and does not

create the dilemma that the concurrence sees in the Act.

2. Payment of an appraisal award does not trigger a violation of 

Section 542.058(a) of the TPPCA.

We will approach the analysis of Section 542.058 by first looking at Subsection 

(a) in isolation and then integrating the effect of Subsection (b) and our disagreement

with the concurrence and that subsection’s meaning.

Subsection (a) of Section 542.058 reads as follows:

Except as otherwise provided, if an insurer, after receiving all items, 

statements, and forms reasonably requested and required under Section 

542.055, delays payment of the claim for a period exceeding the period 

specified by other applicable statutes or, if other statutes do not specify a 

period, for more than 60 days, the insurer shall pay damages and other

items as provided by Section 542.060.

Tex. Ins. Code Ann. § 542.058(a).

Crayton would read this section to potentially create liability when the insurer 

pays an appraisal award outside its sixty-day window. The payment of the appraisal

award, in his view, becomes evidence to establish that the original claim decision of 

the insurer was in error and is thus evidence that retrospectively establishes that the 

insurer failed to comply with Section 542.058’s sixty-day deadline. We disagree.

First, we note the supreme court’s one signpost pointing to how it would 

construe Section 542.058. As noted above, the one thing that the supreme court said
38

when it left for another day the construction of Section 542.058 was “that when 

discussing the damages standard under the TPPCA and its predecessor, this Court has 

recognized the liability element for imposing TPPCA damages.” Barbara Techs., 589

S.W.3d at 824.6

 Thus, to the extent that the supreme court gave a preview of how it 

6

The supreme court cited a number of cases to support its statement:

See Lamar Homes, Inc.[ v. Mid-Continent Cas. Co.], 242 S.W.3d [1,] 16 [(Tex. 

2007)] (“The prompt-payment statute provides that an insurer, who is 

‘liable for a claim under an insurance policy’ and who does not promptly

respond to, or pay, the claim as the statute requires, is liable to the policy 

holder or beneficiary not only for the amount of the claim, but also for 

‘interest on the amount of the claim at the rate of eighteen percent a year

as damages, together with reasonable attorney’s fees.’” (citation 

omitted)); [Progressive Cty. Mut. Ins. v.] Boyd, 177 S.W.3d [919,] 922 [(Tex. 

2005)] (explaining that “[t]here can be no liability under [the TPPCA] if 

the insurance claim is not covered by the policy” because TPPCA 

damages are to be awarded when the insurer is liable under the policy

(citation omitted)); [Allstate Ins. v.] Bonner, 51 S.W.3d [289,] 291 [(Tex. 

2001)] (“To successfully maintain a claim under [the TPPCA], a party

must establish three elements: (1) a claim under an insurance policy; 

(2) that the insurer is liable for the claim; and (3) that the insurer has 

failed to follow one or more sections of [the TPPCA] with respect to the 

claim.”)[, judgment withdrawn and superseded on reh’g by Allstate Ins. Co. v. 

Bonner, No. 00-0282, 2001 WL 1412951 (Tex. June 21, 2001) (not 

designated for publication)]. And this is not the only court to discuss the 

TPPCA damages standard in such a way. See, e.g., Cox Operating, L.L.C. 

[v. St. Paul Surplus Lines Ins.], 795 F.3d [496,] 505–09 [(5th Cir. 2015)] 

(“[Section] 542.058 provides an alternate payment deadline to the one set 

out in § 542.057 . . . . As referenced in § 542.058, § 542.060 provides the 

enforcement mechanism for [the TPPCA’s] deadlines . . . . In sum, the 

[TPPCA] (1) imposes on insurers a series of claims-handling deadlines, 

§§ 542.055–.058; and (2) enforces those deadlines by requiring insurers 

who fail to comply with them (and who ultimately are liable on the

claim) to pay statutory interest.” (citations omitted)); Tremago, L.P. [v. 

Euler-Hermes Am. Credit Indem. Co.], 602 F. App’x [981,] 983–84 [(5th Cir. 

2015) (per curiam)] (holding that “[i]n order to prevail on a [TPPCA] 
39

would view Section 542.058, that section does not abrogate an insured’s need to 

establish policy liability on the part of the insurer.

The question becomes whether the subsequent payment of the appraisal award

is probative of failure to comply with the Act because the payment of that award 

indicates that the insurer failed to pay the claim within sixty days “after receiving all

items, statements, and forms reasonably requested and required under Section 

542.055.” Tex. Ins. Code Ann. § 542.058(a). In essence, to read the appraisal process

into Section 542.058(a) requires the payment of an appraisal to be tied to the process 

of Section 542.055 by making the payment an act showing a failure of the insurer to 

act after having “all items, statements, and forms reasonably requested and required

under Section 542.055.”

First, the structure of Section 542.058(a) in combination with the separate 

tracks on which the supreme court placed the TPPCA and the appraisal process sever 

the connection. Creating the connection violates the general principle of Barbara 

Technologies that places the claim-assessment process of the TPPCA in a separate track 

from the appraisal process.

claim, the insured must show ‘(1) a claim under an insurance policy 

(2) for which the insurer is liable and (3) that the insurer has not 

followed one or more sections’ of the Act,” and that without an 

admission or finding of liability, the insurer’s settlement payment did not 

subject it to TPPCA damages (citation omitted)).

Barbara Techs., 589 S.W.3d at 824.
40

Second, tying the appraisal process to Section 542.055 is contrary to how 

Barbara Technologies specifically carried forward the distinction between the appraisal

and the deadlines of the TPPCA in its treatment of Section 542.055, the predicate for 

a violation of Section 542.058(a). This more specific treatment appears in the

supreme court’s rejection of the insurer’s argument that “its initiation of the

contractual appraisal process constituted an additional information request under 

[S]ection 542.055(b), extending the TPPCA’s deadline to accept or reject a claim.”

Barbara Techs., 589 S.W.3d at 816.

The supreme court responded to this argument in two ways. First, it divorced

the request and assessment of documents in the claim-assessment process established

in Section 542.055 from the appraisal process:

Under [S]ection 542.055(a), after receiving a claim, an insurer must 

acknowledge receipt, begin an investigation, and request from the 

claimant all items, statements, and forms that the insurer reasonably 

believes will be necessary to evaluate the claim. See id. § 542.055(a). The 

insured may then make “additional requests” for information when 

necessary “during the investigation of the claim.” See id. § 542.055(b). 

We read “additional” to reference the initial information, meaning that 

the TPPCA authorizes the insurer to request information from the 

claimant in two phases: (1) an initial request made within fifteen 

business days of receiving the claim for information the insurer believes 

“at that time” will be required; and (2) additional requests for 

information revealed to be necessary during the course of the 

investigation. Because [the insurer’s] appraisal demand was based on its

contractual right to engage in a specific dispute resolution process and was not a 

request for items, statements, or forms from [the insured] to secure final proof of loss, 

we conclude that [the insurer’s] use of the appraisal process falls outside the scope of 

[S]ection 542.055.

Id. (emphasis added).
41

The supreme court then offered an additional reason why invocation of the 

appraisal process was not a part of the insurer’s claim-investigation process as follows:

Further, [S]ection 542.056(a) specifies that the “insurer shall notify a 

claimant in writing of the acceptance or rejection of a claim not later 

than the 15th business day after the date the insurer receives all items, 

statements, and forms required by the insurer to secure final proof of 

loss.” Id. § 542.056(a). As such, the rejection or acceptance of a claim is the 

insurer’s acknowledgment that it had all the information it needed from the claimant 

to determine whether the claimant was entitled to benefits under the policy. Because 

an insurer’s rejection of a claim is based on all information the insurer deemed 

necessary, as well as the insurer’s investigation, later invocation of the policy’s

appraisal provision does not somehow start the investigatory period anew. Where 

the policy provides for an appraisal process if the parties “disagree 

on the value of the property or the amount of loss,” as the policy 

here does, and the appraisal process was initiated only after [the 

insurer] rejected the claim, having determined that the value of the 

covered loss was below the deductible, use of the contractual 

appraisal process was not part of the insurer’s investigation. 

Id. at 816–17 (emphases added) (footnote omitted). Carrying forward this theme, the 

supreme court later noted that “when an insurer complies with the TPPCA in 

responding to the claim, requesting necessary information, investigating, evaluating, 

and reaching a decision on the claim, use of the contract’s appraisal process does not 

vitiate the insurer’s earlier determination on the claim.” Id. at 823 (emphasis added).

Thus, in continuing to draw the demarcation between the claim process and the 

contractual appraisal process, the supreme court seems to draw another line. That 

line is that the existence of an appraisal award does not show that the insurer had 

failed to timely respond to the claim because the appraisal process is not a part of the

claim process. Because Section 542.058(a) creates a deadline tied to the claim process
42

found in Section 542.055’s trigger of the insurer’s receiving all the documents that it

had requested and that are required to make a claim assessment, the supreme court 

divorces the claim-assessment process from the appraisal process. The later payment 

of an appraisal award is not a trigger to the determination that the insurer has failed to

meet the deadlines required in the claim-assessment process.

And, again, more broadly, using an appraisal award as evidence of a violation of 

Section 542.058 is another attempt to open a back door into the prohibited territory 

of using the appraisal process to establish liability under the TPPCA. A construction

that attempts such a maneuver is inconsistent with the overall separation of the 

appraisal process from TPPCA liability.

7

 To permit the appraisal award to be

probative of whether there was a Section 542.058(a) violation based on the insurer’s 

failure to pay within sixty days “after receiving all items, statements, and forms 

reasonably requested and required under Section 542.055” violates the line the 

supreme court drew in Barbara Technologies to separate the appraisal process from

TPPCA liability and to require that liability to be shown by evidence that goes beyond

the payment of the appraisal award.

7

See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts 180 (2012) (“[T]here can be no justification for needlessly rendering provisions

in conflict if they can be interpreted harmoniously.”); see also Tex. Gov’t Code Ann.

§ 311.021(2) (“In enacting a statute, it is presumed that . . . the entire statute is 

intended to be effective[.]”).
43

And such a construction would once again undermine the appraisal process. 

An insurer who triggered the appraisal process would be creating the evidence needed

by its opponent to trigger an automatic violation of Section 542.058.

Limiting ourselves for the moment to Subsection (a) of Section 542.058, the

majority opinion of Barbara Technologies seems to answer most of the issues that the 

concurrence raises to support its view that there could be no violation of 

Section 542.060 but that there must be violation of Section 542.058. First, for the 

reason just explored, we reject the premise that the payment of an appraisal award sets 

a violation of Section 542.058 in motion based on the failure to pay the claim within

sixty days “after receiving all items, statements, and forms reasonably requested and 

required under Section 542.055.”

Second, the majority specifically rejected the concurrence’s conclusion that

payment of the appraisal award in and of itself constitutes an acceptance of the claim.

Id. at 823 n.14 (“JUSTICE BOYD [in the concurrence] would hold that voluntarily 

paying the appraisal amount constitutes acceptance of the claim. . . . We disagree.”).

Third, the majority appears to disagree with the concurrence’s premise that

Section 542.058 must apply to the claim because Section 542.060 cannot. Again, the 

concurrence’s reasoning is that so long as the insurer timely notified the insured of its 

rejection of the claim, the insurer satisfied all of the Act’s deadlines. Because the 

insurer was “in compliance” with the Act, there was no violation of Section 
44

542.060(a) that requires a showing that the insurer “was ‘not in compliance with’ the 

Act. Tex. Ins. Code [Ann.] § 542.060(a).” Id. at 839 (Boyd, J., concurring & dissenting).

Instead, the majority appears to have left open the possibility that a Section 

542.060 violation can occur when the insurer rejects a claim and the insured later 

obtains a judgment that the insurer is liable on the policy and thus wrongfully rejected 

the claim.

8

 Presumably the insured can predicate an insurer’s lack of compliance on

Section 542.058’s deadline (through means other than payment of the appraisal

award) once it establishes that the insurer is liable on the claim and did not pay the 

claim within the sixty-day deadline of Section 542.058(a).

3. We disagree with the concurrence that Section 542.058(b)

requires the conclusion that an insurer has violated Section 

542.058 when it rejects a claim and later pays an appraisal

award.

8

As Barbara Technologies held,

Section 542.060(a) specifies that, “[e]xcept as [otherwise] provided . . . , 

if an insurer that is liable for a claim under an insurance policy is not in 

compliance with this subchapter, the insurer is liable to pay” the insured 

damages as specified by this section. See Tex. Ins. Code [Ann.]

§ 542.060(a) (emphasis added). We see no way under the language of 

the TPPCA that an insurer can be “liable” on the claim within the

meaning of [S]ection 542.060 until it (1) has completed its investigation,

evaluated the claim, and come to a determination to accept and pay the 

claim or some part of it; or (2) been adjudicated liable by a court or 

arbitration panel. If an insurer rejects a claim, it has concluded based on its 

investigation and evaluation that it owes no benefits under the policy and is not liable 

for the claim; unless and until the insurer later accepts the claim, thereby admitting 

liability, or there is a judgment that the insurer wrongfully rejected the claim, the 

insurer is not “liable for a claim under an insurance policy” under [S]ection 542.060.

Id. at 819–20 (majority opinion) (emphasis added).
45

The majority in Barbara Technologies refused to join issue with the concurrence

on its construction of the word “invalidity” in Section 542.058(b). Id. at 828 n.19

(majority opinion) (“We do not address the relationship between ‘liable,’ ‘invalid,’

‘should be paid,’ and ‘right to receive benefits,’ as that issue has not been raised or 

briefed in this Court.”). As we have noted, the concurrence places considerable

emphasis on Section 542.058(b)’s language that Subsection (a) of that section “does

not apply if ‘it is found as a result of arbitration or litigation that a claim received by 

an insurer is invalid and should not be paid by the insurer.’” Id. at 837, 839, 842

(Boyd, J., concurring & dissenting) (citing Tex. Ins. Code Ann. § 542.058(b)). The 

concurrence repeatedly describes that subsection as creating in effect a mirror image 

of Section 542.060’s liability standard. See id. at 837–43.

The concurrence relied on that interpretation to support its view that Section 

542.058 rather than Section 542.060 creates the operative deadline for payment when

the insurer pays an appraisal award; its reasons were primarily two-fold. See id. at 839.

First, according to the concurrence, Subsection (b) demonstrates that Sections

542.058 and 542.060 cannot be read together. Id. at 838. In its view, Section

542.058(b) places the burden of proof on the same issue as Section 542.060’s liability

language, but unlike Section 542.060, which places the burden to show liability on the

insured, Section 542.058(b) places its burden on the insurer. Id. Second, the

concurrence reasoned that requiring an adjudication that an insurer is liable before the
46

sixty-day deadline applies would render meaningless Section 542.058(b) because that 

subsection requires the insurer to prove that the claim is invalid by placing the burden 

on the insurer to establish that it is not liable before being freed from the sixty-day 

deadline. Id. We conclude that the concurrence asks the word “invalidity” in Section

542.058(b) to do too much work.

First, if our conclusion that the payment of an appraisal award does not trigger

the deadline of Section 542.058(a), then not applying Section 542.058(b) to a claim

involving the appraisal process would not be reading the subsection out of the Act. If 

the payment of the appraisal award does not trigger a violation of Section 542.058(a) 

in the first place, then the exception in Section 542.058(b) becomes irrelevant because 

it provides an exception to a provision that never applied in the first place.

Second, we disagree with the concurrence’s conclusion that proving an insurer 

is liable on a claim and a finding that a claim is invalid are, what we perceive him to 

say, images that mirror each other. If the legislature intended for Section 542.058(b) 

to be the mirror image of the liability standard of Section 542.060, that choice is not 

reflected in the plain language of the Act. The starting point for the meaning of an

undefined term in a statute is its “common, ordinary meaning unless a contrary 

meaning is apparent from the statute’s language. . . . To determine a statutory term’s 

common, ordinary meaning, we typically look first to their dictionary definitions and 

then consider the term’s usage in other statutes, court decisions, and similar 

authorities.” Tex. State Bd. of Exam’rs of Marriage & Family Therapists v. Tex. Med. Ass’n, 
47

511 S.W.3d 28, 34–35 (Tex. 2017). Black’s Law Dictionary defines “invalid” to mean

“1. Not legally binding <an invalid contract>. 2. Without basis in fact <invalid 

allegations>.” Invalid, Black’s Law Dictionary (11th ed. 2019). But a claim may be 

valid, and the insurer still not be liable.

As a general proposition, an insurer may not be liable on a valid claim; that is 

exactly the situation involved in both this case and Barbara Technologies. Homeowners 

and the insurer in Barbara Technologies did not contend that the insured’s claim was 

invalid, i.e., without a basis in fact. Instead, the claim was valid, but the insurers were 

not liable because the valuation of the damages fell below the policies’ deductibles.

On the basis of the plain meaning of the word “invalid” and its application in the 

specific circumstances of Crayton’s claim and of the insured in Barbara Technologies, we 

must disagree with the concurrence that the invalidity provision of Section 542.058(b) 

and the liability provision of Section 542.060(a) are equal but opposite because they 

create burdens of proof on the same issue.

Third, though it is somewhat dim guidance, we look to the legislative history of 

the TPPCA to give context to how the provision came into existence, and it does not 

appear that the invalidity provision of Section 542.058(b) was included to place a 

burden on an insurer to prove that it was not liable in order to avoid a violation of 

Section 542.058(a). This supports our conclusion that Section 542.058(b)’s invalidity

provision meant something other than placing a burden on the insurer that to avoid 
48

strict liability if it paid the claim outside Section 542.058(a)’s sixty-day deadline, it had 

to prove that it was not liable on the claim.

9

House Bill 2 in 1991 proposed enactment of Section 21.55 of the Insurance 

Code, which is the predecessor to the present version of the TPPCA. See Tex. H.B. 2, 

72nd Leg., R.S. (1991); see also Act of May 27, 1991, 72nd Leg., R.S., ch. 242, § 11.03, 

1991 Tex. Gen. Laws 939, 1043–45 (originally codified as Tex. Ins. Code Ann.

§ 21.55), amended by Act of May 20, 2003, 78th Leg., R.S., ch. 1274, § 2, 2003 Tex. 

Gen. Laws 3611, 3681. The Association of Fire and Casualty Companies in Texas 

raised the following objection to adding the Act’s penalties on top of already existing

causes of action that punish bad faith and expressed the fear that the additional

penalties might force insurers to pay claims that were not valid:

Adding this additional penalty and confusion on top of current laws

could discourage insurers from contesting possible fraudulent or

9

We recognize that legislative history is not an appropriate aid to construe an 

unambiguous statute but cite the history to give context to how the invalidity 

provision of Section 542.058(b) came into existence. This limited use of legislative

history is permissible:

[Legislative] history may be appropriate to give context to our 

construction. E.g., Ojo v. Farmers [Grp.], Inc., 356 S.W.3d 421, 430 (Tex. 

2011) (referencing legislative history to show that the Legislature was 

aware of the possibility of negative consequences of its language when it 

drafted the statute at issue); see also[] id. at 436–48 (Jefferson, C.J., 

concurring) (observing that the court’s use of legislative history did not 

depart from the general rule: “When used in this contextual manner, 

there is little reason to think legislative history inappropriate for 

citation[]”).

Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 844 n.6 (Tex. 2018).
49

questionable claims, i.e., such as arson, and could distract from the duty 

of insurers to pay only valid claims. The Committee must be aware that 

the rates insurance consumers pay could be adversely affected if insurers 

are paying too much in claims dollars for either fraudulent or 

questionable claims because of the threat of bad faith.

Tex. H. Comm. on Ins. Minutes 14, 72nd Leg., R.S. (Mar. 4, 1991) (emphasis 

added).

10

When introduced, the bill contained the following provision that gave an 

insurer grace from the Act’s deadlines when it faced a potentially baseless claim:

(b)(1) If suspicion of [a] false claim or criminal activity giving rise to the 

claim results in the institution of a bona fide investigation of the claim,

the company shall pay the amount of the claim into an escrow account, 

where it shall remain until the investigation is concluded with no finding

of culpability on the part of the insured or other claimant or until a 

criminal verdict or civil settlement or judgment is entered on the record 

of the case, whichever is later, except that the company may at any time 

pay the claimant. If the investigation is concluded with no finding of 

culpability on the part of the insured or other claimant, or if no criminal 

charges are preferred and no civil suit for [a] false claim [is] brought 

within a reasonable time as determined by the rule of the board, or if a 

criminal prosecution arising from the claim is dismissed or results in 

acquittal or results in a mistrial and is not retried, the money in the 

escrow account, including accrued interest, becomes the property of the 

insured. If the investigation leads to criminal prosecution which results 

in conviction or if in a civil suit a decision is reached in favor of the 

company under the burden of proof requirements of Article 21.58 of 

this code, the money in the escrow account, including accrued interest, 

becomes the property of the company.

Tex. H.B. 2 (introduced version), 72nd Leg., R.S. (1991).11

10The minutes can be found at the following URL: 

https://lrl.texas.gov/scanned/legisCmteMinutes/houseCmtes/72-0/Insurance/0304

1991.pdf (last visited Dec. 11, 2020).
50

As the bill evolved, so did the provision suspending the Act’s deadlines when 

the insurer had a basis to question the validity of a claim. The House Committee’s

substitute bill contained a provision that began to take the shape of what would

evolve into Section 542.055 of the Act, which contained the language that we 

highlight to address fraudulent claims:

Sec. 2. NOTICE OF CLAIM. (a) Except as provided by Subsection 

(d) of this section, an insurer shall, not later than the 15th business day 

after the receipt of notice of a claim:

(1) acknowledge receipt of the claim;

(2) commence any investigation of the claim;

(3) request from the claimant all items, statements, and 

forms that the insurer reasonably believes will be required 

from the claimant.

(b) If the acknowledgement of the claim is not made in writing, 

the insurer shall make a record of the date, means, and content of the 

acknowledgement.

(c) For purposes of this section, receipt of a notice of a claim by 

an agent of an insurer is the equivalent of receipt by the insurer, unless 

the agent notifies the claimant that the agent is not authorized by the

insurer to receive a notice of a claim.

(d) If an insurer has a reasonable basis to believe that the claimant has 

fraudulently caused or contributed to the loss, based on specific information available

for review by the department, the insurer is not required to satisfy the requirements of 

Subsection (a) of this section. The commissioner may adopt rules requiring 

an insurer to submit a report if an insurer does not satisfy the 

requirements of Subsection (a) in accordance with this subsection.

11The text of the introduced bill can be found at the following URL: 

https://lrl.texas.gov/LASDOCS/72R/HB2/HB2_72R.pdf#page=194 (last visited 

Dec. 11, 2020).
51

See Legislative Reference Library of Texas, H.B. 2, 72nd Leg., R.S., House Comm. 

Substitute, https://lrl.texas.gov/LASDOCS/72R/HB2/HB2_72R.pdf#page=743

(emphasis added) (last visited Dec. 11, 2020).

The House Committee’s substitute bill also contained a Section 3(e) within the 

section titled “Acceptance or Rejection of Claims.” Section 3(e) included a deadline 

to accept or reject a claim and excepted from its deadline claims that were in litigation:

(e) Not later than the 90th day after the date an insurer notifies a 

claimant under Subsection (d) of this section, the insurer shall accept or 

reject the claim or shall notify the claimant of the reasons the insurer 

needs additional time. The insurer shall notify the claimant again before 

the 90th day of each subsequent 90-day period during which the claim is 

not settled. The insurer need not provide the notice required by this subsection if the 

claim is the subject of pending arbitration or litigation.

See id. https://lrl.texas.gov/LASDOCS/72R/HB2/HB2_72R.pdf#page=745

(emphasis added) (last visited Dec. 11, 2020).

In turn, the adopted version of the bill deleted the highlighted Section 2(d)

(dealing with claims the insurer asserted were fraudulent) and the highlighted language

of Section 3(e) (dealing with claims in litigation), left Subsection (a) and (b) of

Section 2 intact, and then melded those provisions into what would eventually 

become Section 542.058(a) and (b) of the present TPPCA:

(f) Except as otherwise provided, if an insurer delays payment of a claim 

following its receipt of all items, statements, and forms reasonably 

requested and required, as provided under Section 2 [now section 

542.055] of this article, for a period exceeding the period specified in 

other applicable statutes or, in the absence of any other specified period, 

for more than 60 days, the insurer shall pay damages and other items as

provided for in Section 6 of this article.
52

(g) If it is determined as a result of arbitration or litigation that a claim 

received by an insurer is invalid and therefore should not be paid by the 

insurer, the requirements of Subsection (f) of this section shall not apply 

in such case.

Act of May 27, 1991, 72nd Leg., R.S., ch. 242, § 11.03, 1991 Tex. Gen. Laws 939, 

1044 (amended 2003). The adopted version also added the liability provision that 

eventually became Section 542.060 of the present TPPCA.

12

This evolution is hardly conclusive. But the evolution of the provision gives a 

context that points to a conclusion that Section 542.058(b) was intended to deal with

the insurance industry’s concern that the TPPCA would be forced to pay invalid 

claims out of fear of the Act’s deadlines and penalties. At the least, the evolution

contains no indication that the legislature intended what would eventually become

Section 542.058(b) to create a mirror to the liability provision of Section 542.060.

4. We explain how we interpret Section 542.058(b).

12The Senate Committee Report included a Section 6 that would eventually 

become the penalty provision found in Section 542.060 of the present TPPCA. See

Legislative Reference Library of Texas, H.B. 2, 72nd Leg., R.S., Senate Committee 

Report, https://lrl.texas.gov/LASDOCS/72R/HB2/HB2_72R.pdf#page=1861 (last 

visited Dec. 14, 2020). In the Senate Committee Report, Subsection (f) repeated the 

language of the penalty provision and provided that if the insurer exceeded the sixtyday deadline, “the insurer shall pay the amount of the claim owed and payable plus 18 

percent per annum on that amount. The insurer shall also pay the claimant any 

reasonable attorney fees arising from the claimant’s efforts to collect payment for the 

claim.” Id. at https://lrl.texas.gov/LASDOCS/72R/HB2/HB2_72R.pdf#page=1860

(last visited Dec. 14, 2020). A Senate Floor Amendment revised the language to

provide “the insurer shall pay damages and other items as provided for in Section 6 of 

this article.” Id. at https://lrl.texas.gov/LASDOCS/72R/HB2/HB2_72R.pdf#page

=2066 (last visited Dec. 14, 2020).
53

Based on the lack of symmetry between the liability concept of Section 542.060

and the invalidity found in Section 542.058(b), we conclude that it is not a 

harmonious reading of the Act to give the later section the expansive reading or the 

role that the concurrence gives it.

13 In our view, Subsection 542.058(b) has a place by 

clarifying that the sixty-day deadline in Section 542.058(a) does not trigger TPPCA 

liability or a reading that once the sixty-day deadline has passed the insurer has lost the 

ability to challenge the claim in general. Instead, the passing of the sixty-day deadline

does not impair the insurer’s ability to challenge the claim’s validity and to prove that 

it has no basis in fact. 

To give Section 542.058(b) the reading given by the concurrence appears to 

give the subsection a priority that it does not warrant. With Section 542.060 

establishing the conditions for liability of the Act and the supreme court’s seeming 

endorsement that there is a liability element for imposing TPPCA damages, to read

Section 542.058(b) as creating a separate standard for TPPCA liability gives it a 

13We strive to read the terms of a statute in harmony with the other provisions 

contained in the statute:

“But we will not give an undefined statutory term a meaning that is out 

of harmony or inconsistent with other provisions in the statute.” In re 

Hall, 286 S.W.3d 925, 928–29 (Tex. 2009) [(orig. proceeding)]. “[I]f a 

different, more limited, or precise definition is apparent from the term’s 

use in the context of the statute, we apply that meaning.” State v.

$1,760.00 in U.S. Currency, 406 S.W.3d 177, 180 (Tex. 2013) (per curiam).

Hegar v. Am. Multi-Cinema, Inc., 605 S.W.3d 35, 41 (Tex. 2020).
54

prominence in the Act that seems inconsistent with its subordinate position as an 

exception to one of the Act’s deadlines.

14

Indeed, this inconsistency is brought to the fore in the concurrence’s argument 

that if there is a Section 542.060 violation, it can only come from the failure to meet 

the Section 542.058 sixty-day deadline.

15 Application of this approach means that the 

primary liability standard of the Act found in Section 542.060 is subordinated to and

read out of the Act because of the language of Section 542.058(b).

16

14Barbara Technologies also left for another day its construction of the words “the 

insurer shall pay damages and other items as provided by [S]ection 542.060,” which is 

the concluding phrase of Section 542.058(a). 589 S.W.3d at 824; see Tex. Ins. Code 

Ann. § 542.058(a). We do not read these words as having significance if our 

premise—that payment of the appraisal award does not trigger the conditions for a 

violation of Section 542.058—is correct. The condition that would implicate the 

refenced penalties has not occurred with the payment of the award.

15The concurrence argued,

But as the Court agrees, [the insurer] fully complied with the Act by 

timely acknowledging, investigating, and rejecting the claim and 

providing its reasons for rejecting. If [the insurer] was “not in 

compliance with” the Act, its only possible act of non-compliance would 

be its failure to comply with [S]ection .058’s sixty-day payment deadline.

If [the insurer’s] only non-compliance was with [S]ection .058, then that 

section must control whether [the insurer] owes interest and fees. And 

as explained, [S]ection .058 requires [the insured] to pay interest and fees 

unless an arbitration or litigation determines that the claim was invalid and 

should not have been paid.

Barbara Techs., 589 S.W.3d at 839 (footnote omitted).

16We do reject one argument made by Homeowners. It suggests that the trial 

court’s summary judgment may be sustained because its original loss assessment was 

reasonable in light of the appraisal award. The comparison process underlying this 
55

VI. Conclusion

Homeowners’ no-evidence motion for summary judgment challenged Crayton 

to produce a scintilla of evidence of a TPPCA violation. Crayton argues he did so 

with the very evidence that Homeowners relied on to support its motion because that

evidence met his burden to create a fact issue on whether a TPPCA violation had 

occurred. It is Crayton’s view that the payment of the appraisal award was made in a 

way that Homeowners, in essence, admitted that its original rejection was in error and 

that the amount of the loss found by the appraisal award should have been paid 

argument has its origin in Breshears, 155 S.W.3d at 345, and has become a construct 

relied on by the federal courts in dealing with TPPCA claims. See Mainali Corp. v. 

Covington Specialty Ins., 872 F.3d 255, 259 (5th Cir. 2017) (citing Breshears to support the

statement “[a]t a minimum under those state court decisions, there is no statutory 

violation because [the insurer] made a pre[-]appraisal award that was undeniably 

reasonable”). Relying on this process both the federal courts and some Texas courts 

have looked at prior precedent to determine what ratio was found to be reasonable

and then formulaically applied the ratio to determine if the insurer’s pre-appraisal

payment was reasonable. See, e.g., Lakeside FBBC, LP v. Everest Indem. Ins. Co., No. SA17-CV-491-XR, 2020 WL 1814405, at *12 (W.D. Tex. Apr. 8, 2020) (order on motion 

for summary judgment); Hinojos v. State Farm Lloyds, 569 S.W.3d 304, 313 (Tex. 

App.—El Paso 2019, pet. granted) (“Accordingly, because [the insurer] made a 

reasonable payment on [the insured’s] claim within the sixty-day statutory limit, the 

subsequent payment resulting from the appraisal process did not mean [the insurer]

violated the prompt payment deadlines of the insurance code.”).

We reject this approach to TPPCA liability because we see no language in the

Act to support such an approach. Barbara Technologies quoted Breshears but ended its 

quotation before the words that other courts have relied on to derive the ratio

standard, and the supreme court has granted the petition for review in Hinojos. See 

Barbara Techs., 589 S.W.3d at 821–22 (quoting Breshears, 155 S.W.2d at 345, but

deleting words from the quote that the insurer “provided a reasonable payment within 

a reasonable time”). Further, the very premise of comparing the original loss

adjustment and the appraisal is contrary to the demarcation between the two that we 

see in Barbara Technologies’ holding.
56

within the deadlines of the TPPCA. Further, in Crayton’s view, the jury should

compare Homeowners’ original loss assessment and the appraisal award to decide 

whether Homeowners violated Section 542.060 because it was liable on the claim and 

had failed to comply with the Act’s deadlines or had violated the Act because the 

appraisal payment was made outside Section 542.058(a)’s sixty-day deadline.

We do not agree that Homeowners admitted that its original rejection of the 

claim was in error. To the contrary, Homeowners made its payment by noting that it

was doing so “[i]n accordance with the appraisal award.”

We also hold that to meet the “is liable” standard of Section 542.060(a) requires

something other than evidence of a disparity between the original damage

determination and the appraisal. If we agreed with Crayton, we would be violating the 

principle of Barbara Technologies that consigns the adjudication of liability and the 

appraisal process to separate and distinct roles.

Finally, we do not agree that the facts point to a violation of Section 

542.058(a)’s sixty-day deadline for payment of claim, either as a freestanding violation 

of the TPPCA or as an event showing that the insurer is not in compliance with the 

Act as required by Section 542.060(a). Section 542.058(a) ties its violation to a failure 

to comply with Section 542.055. As we read Barbara Technologies, the claim process 

described by Section 542.055 is divorced from the appraisal process. Thus, the trigger 

for a Section 542.058 violation is not pulled by the payment of an appraisal award. 

Nor do we agree with the concurrence that only Section 542.058 can apply when an 
57

insurer rejects a claim and that the consequence of a construction holding otherwise 

renders the invalidity provision of Section 542.058(b) meaningless.

We overrule Crayton’s issue challenging the granting of Homeowners’ noevidence motion for summary judgment and do not reach his second issue

challenging the granting of the traditional motion for summary judgment. See Tex. R. 

App. P. 47.1. We affirm the trial court’s judgment.

/s/ Dabney Bassel

Dabney Bassel

Justice

Delivered: December 23, 2020