## In the

Court of Appeals Second Ap pellate 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

Befo re Bassel, Womack, and Wallac h, JJ.

Memorandum Opinion by Justice Ba ssel 

### S ANFORD 

### C RAYTON



### , Appellant

V



### .

H OMEOWNERS OF 

### A MERICA 

### I NSURANCE 

### C OMPANY



### , Appellee2 M E MORANDUM OPINION

I

. I ntroduction

Appraisal under an insurance policy involves a contractual process by which

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

loss w hen th e insurer and the insured cannot agree what th e amount of the loss is.

Barbara Techs. Corp. v. State Farm Lloyds

, 589 S.W.3d 80 6 (T e x. 2019) ( He cht, C.J.,

dissenting). This appeal poses th e quest ion of how an insure r ’ s pa yment of an

app raisal aw ard t rigg ers the dea d lines and penalties of the act that requires insurers to

timely process and pay insurance c laims

— the T e x as P rompt Pa ymen t of C laims Act

( the TPPCA or the Act )

. See T e x. Ins

. Code Ann. § § 54 2.051

– . 061.

Ho w the appraisal proce ss and the TPP CA r elat e to each other w as recently

expl ored by the Texa s Supreme Court in Barbara Tech nologies

. The majority opinion

and Justice Boy d ’ s con curring and dissent ing opinion ( hereinafter referred to as the

concurrence) 1 in Ba rb ara T ec

h nologies offe red fresh int erpr etation s on whether the

payment of an apprais al award c reated liability u nder the TPPCA and on what various

1 As e xp lained below, we utilize the concurrence in Barbara Techno log ie s becaus e Justice Boyd c onducted a thorough statutory analy sis of the in terplay between

Insurance Code Sect ions 542.0 58 and 542.060

— an analysis t hat the majority in

Bar bara Technol ogies did not conduct b ecause the parties did not brief the interpla y be t ween those two sections and because it was not necessary to th e majority ’ s analysis

. See 589 S.W.3d at 824 (m ajority opin ion)

. Although B arbara Te chnolo g

i e s also

includes a d issenti ng opinion by Chief Jus tice Hecht, joined by Justices B r own and

Bl ac klock

, that dissenting op i nion m erely references Secti on 542.058 an d 542.060 but

does not include a statutory a naly sis of the i nterplay betwe en the two s ections

. See id.

at 848

– 49 (Hec ht, C.J., dissenting).3 terms of the Act m ean. Th ese fresh interpre tati ons of the interrelation of the

appraisal process and the TPPC A cre at e a host of questions t hat impact our

re solution of this app eal.

T he suit b elow arose from a claim by t he insured, Appellant Sanford Crayton,

for a wind and hail claim on h is homeown er’s p ol icy agains t his insurer, Appell ee

Homeowners of America I n surance C ompany. Eventually, Cray ton’s claim s boiled

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

rejecting his claim but later paying an appraisa l award on the claim after Crayton sue d.

Ho meow ners filed a combined no

- evi denc e an d traditional motion fo r

s umma ry ju dgment raising grounds t ha t Crayton could not establish a violatio n of the

TPPCA

. Cra yton re sponded wit h ou t offering any evidence of his own that

Ho m e owners ’ original claim decision wa s flawed . Instead, Crayton r eli ed on th e fact

that the appra i s al award was s everal time s hi gher than the dam ag e s in the orig inal

ad justment that was the basis for Homeowners ’ orig inal rejection of his claim

. B ased

on t his disparity

, he argued that a fact issue existed on Home owners ’ TP PCA l iabi l ity

.

I n C rayton ’ s v iew, the dispar ity raised i s sue s regarding (1) whether Homeow ners ’

original adju stment was flawed and (2) whether Homeo wners should no t have

ori ginally rejecte d the cla i m on the basis that Crayto n’s damages fell below his

d educ tible . The resolution of th o s e f act issue s w ould show that Hom eowners had

violate d the TPPC A ’ s dead l ines bec ause it had not timely pa id what it shou ld have

when the claim was originally pr esented

.4 T he trial court granted Hom eowner s ’ m o tion. Cra yton ra i se s two issues : on e

challeng e s th e gr anting of the no

- e vidence portion of Homeowne rs ’ m otion

, and th e

other challenges the granting of the traditio nal moti on. W e affi rm the tria l court ’ s

granting of Hom eowners ’ no

- evidence motion

.

A s we read B arbara T e c

h nologies

, Homeowners ’ payment of the appraisal di d not

con stitute a retroactiv e acceptance of Crayton’s claim tha t triggered the TPPCA ’ s

deadlines

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

whether Home o wners’ original claim decision w a s in error s uch that it raised a fact

issue as to Homeowners’ liability

. F inally, we disagree with the concurrence tha t

when a n insurer pays an apprais al award after a sixty

- day d eadline c ontained in o ne of

the Act ’ s prov i s ions

, there is a violation of t h e TPPCA and tha t th e ins ur er can free

itself from that violation o nly by proving t h a t it had no liabil ity because the insured ’ s

c l aim is “ invalid. ”

I I. F actual and procedural background

T he un derlying facts are not dispu t ed

. Home owne rs issued a Texas

h o m e own er ’ s p olic y insu r ing Crayton ’ s residence. I n Oct ober 2014, Crayton filed a

c laim for stor m damage that Homeowner s acknowledged the same day tha t i t was

received.

T wo days after the claim was filed

, an adjust e r from a n in d e pen dent a djus ting

agenc y vis ited Crayton ’ s proper t y a nd investig ated the claim

. The adj ust e r concluded

that t he dam age to Crayton’s dwellin g tota led approximatel y $300 calculated on the5 basis of both a r epla c emen t c ost va l ue and an a ctual c a s h v al ue. The adj u s t e r al so

assessed the d amage to a fence and to an outbuilding as totaling a pproximately $2,200

calculat ed o n both a r eplacemen t c ost va lue and an a ctual c ash v alue

.

The adjuster ’ s re p o rt con tained th e following desc r i pt ion of the l o s s

a djustmen t:

Loss Adjustment:

Please see the attac hed estimate fo r da mages noted durin g inspection. Specific dama ges consisted of 8 damaged shingles on the right slope an d 10 damaged shing l es on the l e ft s lope. There was no visible dama g e to the front o r r ear slop es of the dwelling roof. I inspected th e interior of t h e d welling and found no visible storm damage.

O ther St ructure: There was wind damage to the shared cedar

w ood fence. There w a s 128’ of d a maged f encing and ou r estimate i s t o repair 64’. There was wind damage to the shingles on the stora ge shed

on the f ron t and rear slopes

. The wind lifted the shing les pulling through the f asteners.

The attached estimate repre sents an agreed sc o pe with t h e insur ed’s contractor Joel Carr i ke r w ith Trinit y Roofing an d Mrs. Crayton.

Overhead and profit no t applied to es t ima te.

Depreciation applied based on age on the roofs. No depreciation

ap plied to fencing being repaired.

Within six d a ys of th e i n spe c tion

, Homeowners notified Cr ay t on by lette r of

the a dj ust e r’s findings and of the fact that th e estimated damages were les s than h is

policy ’ s deductible

. Homeowners ’ letter t old Crayton that he should n otify6 Hom eown ers should additi on al dam a ge be foun d or if a contr actor d o in g repai rs

est i mate d the d amage to be high er than the adju s t e r ’ s f indings

.

The record refl ects no m ore communication b etween Crayton and

Hom eowners until m ore than a year after Homeowner s ’ letter when , i n J anu a ry 2016,

c ou nse l for Crayton sen t H ome owners a d e mand letter claimin g th a t Homeowne r s

had failed to adequately adjust and pay Crayton ’ s claim. T he demand l etter

enumerated a number of alleged unfair sett lement pr actices a nd misreprese nta t ions of

the i nsurance polic y

. The le t ter claimed that Cr ay ton ’ s property had suffer ed $3 1,000

in da mage s and that he had inc urred $3,900 in expenses and $30,000 in attorney’s fees

to date

.

Twenty

- two days after the date of the dem an d letter, Cra yt on s ued

Homeow n ers fo r br each of c o ntract, vio lation of the TPPCA , and “ B ad

Fait h/ Dece ptive T rade Practices

. ” Homeowne rs answered and moved to aba te the

suit

, claiming t hat Crayton had failed to provide inf ormation re q uired under the t er m s

of the polic y and to make a w ritt en demand for a n appraisa l be fore filin g suit.

T he trial court entered an agreed order a bati ng the ca se until an apprais al was

completed a nd Crayton ha d pr ovided the information requir ed by the p olicy.

H o meowners t hen inv oked the appraisa l proc ess by w riti ng Cray ton ’ s co unsel that

“ [p] ursuant to the ap prais al provision, Homeowners of Ame r ica invokes the appraisal

p rocess and her [e] by demands appraisal t o es tablish the amount of the loss, cost of7 repair, a nd ac tual cash value a s sociated wit h th e loss

. ” Homeowners designated an

appraiser

, and Cra yton ’ s counsel d id the same.

Severa l months afte r the trial court had entered t he abatement order, the

appraise r s c onclu ded that Cr ayton ’ s l oss r e plac ement c os t w a s , before ap plicatio n of

t he deduc tib l e in Crayton ’ s policy, app roximately $1 3 ,000 and that the l os s a ctual c ash

v alue was app roxim ately $ 11

, 0 0 0. Hom eowners made an approximately $9

, 000

payment to Cra yto n “ [ i] n ac cordance wit h the a ppraisal award. ” Several mon t h s a fter

pa y ment of the appr ais al award , t he partie s jointly moved to lift the abatemen t , and

the t rial court enter ed an order doing so.

Homeowners then filed a combined no

- eviden ce and traditio n al m o t ion for

s ummary judgment

. A mo n g other gro un ds, Home owners challenged C ra yton ’ s cl aim

that it ha d violated the TPPCA

. Homeowners ’ trad itio na l motion appear s to be

predicated on the ground that Crayton had no t raised any basis t o establish t hat

Hom e own ers ’ origi nal claim de c i sion was in error

. I n its no

- evi dence motion

,

Homeown ers challeng ed tha t it was liable on Crayton’ s claim bec ause h e “ ha [d] failed

to provide any [] evidence [ that Homeo wners] is liable for the cla i m or that it [had]

fa i led to comp ly w ith a provi s ion of the Prompt Pay ment Act chapt er 54 2 of the

Texas Insuran c e Co de. ”

C rayt on r esp onded to Homeowner s ’ su m mary

- judgm ent mot ion , but he d i d

not attach any controvert ing evidence to his re spo nse

. Instead, Crayton noted recent

autho r ity f r o m t he Texas Supreme C ourt that th e paymen t of an appraisal aw a rd di d8 not insul ate a n insur e r f rom a TP PCA c laim. Cray ton argued that Hom e owner s had

accepted Crayton’s cla im by the manner in which it had paid the appraisa l award and

th at he was “ en t itled to a llow a jury to det ermine if [ H omeowners ’ ] paym ent for

policy ben ef its es tablished t hat i t was l i abl e for Cr ayton’s claim wi thin the me aning of

the [ TPPCA ]. ” Beyond this, Crayton argu ed t h at the evidence that Homeowners ha d

attached to i ts summary

- judg men t m otion creat ed a fa ct iss ue on Hom e own er s ’

TPPCA liab ility

— in es sence, Crayton ’ s a rgume nt was that the pa yment of the

app raisal award demonstrated in and of itself that Homeowners ’ orig i nal claim

decision wa s flawed an d t hat it had f a i led to timely pa y t h e claim

. Specifically

,

Crayto n ar gued that

[a] j ury i s entitled to see th e appraisal award, s ee [ the a dju st e r ’ s] e stimate

an d pho tos, an d hear testimony from the appraisers regarding th e scope of damage to d e termine wheth er

— based on t h ose facts

— [ Homeo wne r s ] is liable for Crayton’s c laim. [ Homeowners ’ ] o wn su mmary [

- ] judgmen t evid ence will be the m a jorit y of the ev idence at trial (in addition to the appraiser’s testimony). As a result, [ H omeowners ’ ] own summa r y [

- ] judgment

evidence sati s fies Crayton’s b urd e n to produce a scintilla of evid ence tha t fa ct issue s

e x

ist

. A jury shou ld be allowed to l ook a t the a pprai sal aw ard, [ Homeowners ’ ]

initial investigation, and subsequent payment to dete r mine that [ Homeowners ] i s liable fo r Crayton’s c l aim. [Emphasis add e d.]

Cra yton als o amend ed his petit ion to delete hi s cl a ims for bre ach of contract and

oth er Insuranc e Code violations

, leaving only a cause of action under the TPPCA

. 2

2 B y its amendment, Cray ton app arently conc eded t ha t t he payment of the

ap p raisal award barred the ot he r claims t hat he had origi nally alleged f or bre ach of

cont rac t and for co mmon law and stat u tory bad

- faith c l aims

. Se e Or tiz v. St ate Far m Lloyds , 589 S.W.3d 127 , 135 (Tex . 2019).9 The trial court hear d argumen t on Homeowne r s ’ moti on for summary

jud gment and gran ted it

. Cra yt on sought r ec on sid eration of th at ruling and a new

tri al , and the tr i al c ourt a gain hear d argument. The t ri al court denied reconsider a ti on

and a new trial b y written ord er. Crayton then f iled a notice of appeal.

III. The TPPC A, the ap prais al

, and the impact of Barbara Tech nol ogies on the relationship of th e tw o

A. We set forth what the TPPCA is.

The TPPCA esta b lishes a number of de a dlines for in surance com pa n ie s to

proces s cl aims and penalizes a failure to meet its deadlines by ass es sing i nt e res t on the

claim at the rat e of eighteen percent per annum and the payment of the in sured ’ s

att orney ’ s fees. See Te x. I n s. Code Ann. § § 542.0 5 1

– . 061. The supreme court recently

summarized the Act ’ s rolli ng set of deadlines and its penal ty pr o vi sio n as f o llows:

Ta ke n together, the TP PCA imposes sev eral key requi remen ts on
insurers: (1) the ins urer must ackn owledge receipt of the claim,

co mmenc e any investig ation of the c laim, and request any items

, statements, or forms required f rom t he claima nt with in f ifte en d ay s of its receipt of notice of the c laim; (2) the insur er must notify t he claimant of

acceptance or rejection of the claim no lat er th a n fifteen bus iness days

af t er the insurer receives all items, statement s, an d forms req uired to

secur e final pr o of o f lo ss ; (3) if the insurer notifies the i nsured that it will pay all or part of the clai m, it must pay it by the fift h business day af ter

t h e date of not ice of accept a nce of the claim; (4) if th e insurer delays

payme nt of a cla im fo r more th an the app l icab le s ta tu tory period or six ty days, the in surer shall pa y TPP CA damages; and (5) an insur er that is

lia ble for a claim under an insuran ce po l icy and viola tes a TPPCA

p r ovision is liable for TPPCA damages in the f orm o f 18% inter est o n the amo un t of the clai m pe r ye ar, with attorney ’ s fees. See id. §§ 542.055(a) (1)

– (3), .056(a), .05 7(a), .058( a), [.] 060(a). Thu s, the

TPPCA h as three main comp one n ts

— non

- paymen t requirement s and10 deadlines, deadlines for paying claims, a nd en forcement. See g eneral ly i d. § § 542 .055

– .060

.

B arbara Techs.

, 589 S.W.3d at 8 1 2

– 1 3

. This appe al dea ls with the int erplay of the

section of the Act requi r ing payment within si x ty days

, the Act’s enforce m ent

provision , and whether that interrelation create s a fact i ssue that th e ti m ing o f

Homeowners ’ payment of the ap praisal award violated t hose provi sions

.

B. We set forth t h e app raisal pr ocess

.

The appr a isal proce ss i s a contr a ctual remedy that provid e s a mechanism to

q u an tify an insured’s loss. Barbara Tec h nologies noted t hat th e a p pr aisal process

provides t his r e medy to deter mine the amount of t he loss w hen the p a rties ar e at

loggerheads on the iss ue :

“ [ I]n every property da m age claim, so meone mus t determine the

‘amount of loss,’ as that is what the insurer must pay. ” [ State Fa r m L lo

yds

v. ] J ohnson , 290 S.W.3d [ 886, ] 8 95 [ (Tex. 2009 ) ]

. Appraisal cl auses are a means of det er mining th e a mount of loss and r esolving dispu tes a b out
the amount of loss for a covered claim. Id. at 888

– 89.

Id . a t 814 ( footn ote omitted)

.

Here, Crayton ’ s p ol icy with Homeowner s contain e d a n appraisal pr ovision that

perm i t ted the appoin tment of app ra isers should the parties “ f a i l to a gree on the

amo u nt of loss. ” A s noted, an appraisal occurred in this case

, and Hom eowners paid

Crayton for the loss as det ermi ne d b y the apprais ers.11 C. W e explain t he interpl a y of the TPPCA and the appra isal process desc ribed by the analysis of B arba ra T echn o

l o

gies

.

I t was a lmos t accepted wisdom of the c ourt s of a ppe als that an insurer’ s

payment of an appr aisal award ins ula ted th e insurer fr o m TPPCA clai ms

. The

su prem e cour t ’ s opinion in Barbara Tech no logies worked a sea cha nge in that vi ew.

The supre me c o urt noted th at the a ppraisal proce ss was in commo n use long

before the passage o f t he TPP CA bu t that the A ct make s no r efe r e n ce to it. Id

. T he

failure of the Act to me ntion such a long

- used proce ss prompted the cour t to

conc l ude that it “ must int erpret t he absence of any s u ch la nguage in [C] hapter 542 to

mean that the Legislature intends neit her to impose specific de adli nes f o r the

cont ractua l ap p raisal proc ess within t he TPPCA scheme nor to exemp t the

contractual appr aisal p r ocess from the deadline s pro v ided by th e [A c t]

. ” I d

.

A fter con cluding that the TPPCA ’ s text does not integrate th e ap pra isal process

in to its dead line s , Barbara Tech nologies “ e x amine [d] the TPPCA ’ s deadline and

enforcement provisions to determine ho w t h ey apply in th e context of co n t ractual

app raisal s

. ” Id

. at 817. A s detailed below, t he supreme c ourt app ear s t o place the

appr aisal process in a se para te lane fro m TPPCA cla i m s , wi th the appraisal process

nei ther being a lia bility trigger under th e T PPC A nor a defense to liability u n d er th at

A ct

.

Th e supreme court describe d the end game of the TPPCA process as an

investiga t io n and e valuation by the in su re r that12 c ulminate [s] in a d e te rmination ei ther that the claim is c over ed and the

amount of loss e xc e eds the deductible , in which ca s e t he insurer mu s t
notif y the insure d that it will pay the claim, or that the claim is reje cted

, in which case the insu red mu st noti f y the insured of t h e reasons

— for example, because the los s is not covered, the amount of t h e loss does

not me et the deduct i ble , or for so me o ther r e a son under the policy

.

Id

. “ Accepting ” the claim trigger s the de ad line for pay ment with in f i ve b us iness d ays

.

See Tex. Ins. Code Ann. § 54 2. 057(a).

But r eje ction, which from t he supreme court ’ s descr iption inclu de s the

determi n ation tha t a c o ver ed loss falls below a policy ’ s deduc tibl e , trigger s no n e of the

A ct ’ s d ea dlines and

, for th at r eason , cou l d not trigger the Act ’ s enforcement prov i sion

that requires a de te rm i nation tha t the ins urer is l i able u nder the pol icy and has fai l ed to

comply w i th some req u irement of the Act. See B arbara Techs. , 589 S.W.3d at 819

– 20

( inter preti ng T e x. Ins

. Co d e A nn. § 542 .060)

. Specifically

,

[ w] hen an i nsurer rejects a claim in ac cordance with [ S ] ections 542.055

and [ 542 ] .0 56 and notifies the i n sured of the rea s o ns f or the rejection, no

other TPPCA deadlines or requirements apply at t hat point t hat could give ris e to a claim under [ S ] ection 542.060, as t h ere i s no payment deadline withou t the insurer [ ’ s] owing benefi t s under the p oli cy.

Id. at 817. Thus, th e cou r t co ncluded tha t “ [u] nder t he TPPCA, use of the appraisal

process to reso lve a dispute has no beari ng on an y dea dl ines or enforcing any mis sed

deadl ines. ” I d

. at 817

– 18 (emph asis added).

T h e supreme cou r t th en dealt with the case law that had prev iou s l y ove rla id the

ap praisal pr ocess onto TPPCA clai ms and rejected th e holdi ng that the “full and

timely p ayme nt o f a n appraisal award precludes an ins u red from recovering d amages13 under the TPPCA as a matter o f law. ” Id

. at 818. Barba r a Tech nologies viewe d the c ases

a s lack in g in statu tory analysis bu t accepted their prem ise to the extent t hat “ use of

the ap prai sa l p ro cess to fully resol ve a dispute as to the amount o f polic y ben efits due,

if ow ed at all, doe s not subject the insurer t o TPP CA d amages. ” Id

. at 81 9.

Then

, Barbara Tech nologie s ap p ears to take the step of pl acing the appraisal

pr oce ss into a se para te lane from th e TPPCA and

, with that demar cation i n place

, to

hold th at the payment of an a pprai s al award neither cre ates nor f oresta lls liabilit y

under the TPPCA ’ s e nf orcement provision found in S ecti on 542 .060 of the A ct :

While we ad dres s t he standa rd f or TPPCA damag es u nder [S] ection

542.060 b elow, we caution that to the extent th ese opinions cou l d be

read to excuse an insure r liab le un der t he p oli cy fr om having to pay

T PPCA damages me r ely bec aus e it te ndered payment base d on an

appr aisal a ward, or to f or eclose any f urther proceedings to determ ine the

insurer ’ s liability under t he policy, we disap p rove of these opinions. See

T ex . I ns . C ode [Ann

. ] §§ 542 .05 8, .0 60. Nothing in t he TPPCA would

e x c use an ins urer fr om liability f or TP PCA damages if it w as l ia ble under

th e terms of the policy but de layed payment beyond the applicable

statutor y d eadline

, regardless of use of the ap p raisal process.

I

d

.

The supr eme court then turned to a furthe r a na lys is of Section 542 .0 60. I n thi s

a n alysis

, Barbara Tech nolo gi

es a p p e ared to follow the sa me analytical app roach that i t

had tak en in de aling with the interrelation of the Act and appra isals ; the mandates of

the A c t a nd the fa ct th at an appraisal h as o ccurre d are discreet event s, w ith th e

ap praisal not actin g a s a tr ig ger for TP PCA liability

.14 Initia lly

, the supreme cou r t quoted S ection 542 .06 0 (a) ’ s lan g uage that “[e] x cept

as [othe rwise] provi ded .

. . , if an insurer that is liable for a claim under an insu rance

pol icy is not in co mp lia nce with this s u bchapter, the i n surer is liable to pay” t he

insured damages as sp ecifi e d by thi s section. Id

. ( quoting T e x. In s. Code A nn.

§ 542.06 0 (a) )

. T he sup reme court explained t h at S ection 542 .060(a) cont ain s two

trig g ers to t he imposition of its p enal ties :

We see no way u nder t he language of the TPPC A t hat an insurer can b e “liabl e ” on t he claim within the me aning of [S] ection 5 4 2.060 until it (1 ) h as completed its investigat io n, evaluated the claim, and c ome t o a det ermination to accept and pay t he c laim or some part of i t; o r (2) [ has] been adju d icated lia b le by a court or arbi tr ation p anel.

Id

.

When an in s ure r r eject s a claim, t he insurer c an on ly become liable under

S ect ion 5 42 .06 0 if it later accept s t he cl aim or i s adjudged t o have wrongfull y reje cted

the claim. Id . at 8 19

– 20. Specifically , the supreme court h eld that

[i

] f an ins urer rejects a claim, i t has concluded based o n its inves tig ati on and evaluati on that it owes n o benefits under the policy and is not li abl e for the claim; unless and unt il the insurer late r ac ce

pts t he claim, ther eby admitting

liab il ity, or there is a jud gment that the insurer wrongfully reje cted th e claim, the

in sur er is n ot “liab le for a claim un der an in surance po licy” under [ S ] ection 542. 060.

Id

. ( emphasis added).

T he supreme court t hen de scr ibed when th e appraisal process might trigger the

li ab i lity element of S e ction 5 4 2

. 060 even though t he i ns urer had initia lly reject ed the

cl aim in s uch a way that i t had not i nitially trigger ed liab ility under the Act

. Id . at 8 20.

I n this analys is, B a rba ra Tech nologies first describe d the appraisal proces s a s an15 expression of an ins u rer ’ s will i ngness “ to r esolve a dispute o ut sid e of court ” and

l ikene d it to a s ettlement. Id

. With t h at premise in place, the supre me court held th at

th e paym ent of t he a ppr aisa l did not trigger the conditions of liability foun d in S ecti on

542 .060 becau s e they were neither “ a n acknowl ed gment o f liability n or a

determinati on of lia bility under t he policy

. ” Id

.

After analyzing several additi onal cases, t he supreme co ur t ag ain reit erated the

gulf that exists between what is n ecessary to establish an ins ur e r ’ s liability u n der the

TPPCA and the ef fect of t h e p ayment of an appraisal aw ard:

To be cl ear, nothing in the T P

PCA suggests that the invoc ation of a contra ctual

app ra is al pro vision alters or suspends any TPPCA requirement s or deadlines. Rather, under t h e TPPCA, until a n insurer is determined to owe t he cla imant

b enefi ts and thus i s li a bl e unde r the policy

— ei ther b y accepting the claim and

no tifying the insur ed that it w il

l pay , or through an adjudication of liability

— the

in surer is required to pay not hi

n

g, is subject t o no payment deadline, an d is not s u bje ct
to T PPCA damages for d elay e d paymen t. See T ex . I n s . C od e [Ann.] § 542.060(a) (impos ing prompt pay d amages wh en a n i nsurer is li able under the policy and violated a p ro vision of the TPPCA). This is not to say that a rejec ted claim can nev er trigger damage s u nde r t he T PPCA; to

the con tr ary, if an in surer later accepts a claim after initia lly rejecting it,

or if a n i n su r er is adjudic ated liable for a claim it rejected, TP PCA deadlines and prompt pay r e quirem ents will apply. See id. §§ 542.0 57

– .060. But use of a p ol icy ’ s appraisal proc ess to resolve a disp ute as to the va l ue of

loss

— that i s, the amount of b enefits t h e i n sured would be entitled to under the policy if the i nsurer were determined liable f or the claim

— an d payment based on the

ap

praisal has no bea ri n

g o n the T PPCA ’ s payment dea dlin es or enf orcem ent of those

d

ea d lines

. See In re Allstate Cty. Mut. Ins. Co.

, 8 5 S.W. 3d [ 193, ] 19 8 [ (Tex.

2 002) (orig. proceeding) (Baker, J., dissenti ng) ] (citat i on omitted).

Here, [the insured] file d suit after [the insurer ] i nvestigated

, evaluated, and ultimately rejected the claim. Th e p arties ’ in sura nc e policy sets fo r t h t h e parameter s of th e app rais al process, providi ng the

pa rties an alternativ e t o seekin g a judgment to resolve a dispute as to t he

value of the claim. [ T h e insurer] invo ked the appraisal provision because16 [the insured] di sp u ted t he in s urer ’ s determinat i on t ha t the amou nt of t he

l oss was below [the insur ed’s] ded uctible , which resu lt ed in re j ection of

the claim. At that point, th e parties were already in litigation, and the appra isal provisi on offered an alternative pro ce ss to reso lve t h e valuation disp u te. W hile the

TPP CA does n ot a cknowledge the apprais al proces s

— neither explicitl y subjec t ing it

to the TPPCA ’ s deadlines or enfo r cement, nor exempting it

— [ C ] hapter 542

establish es that an insure r is not subject to TPPCA damag es fo r del ayed p ayment
unless it w as s ubject to a payment d eadl ine because it owed be nefits un der the policy.

We hold t hat [ the insurer ’ s ] payment of the appr a isal value neither estab lished liability under the p olicy nor foreclo sed TPPCA damages unde r [ S ] ection 54 2. 0 60.

Id

. at 822

– 2 3 (fo ot notes o mi tt ed) (empha s e s added ) ; s ee also Orti z

, 589 S.W. 3d at 132

( “ As exp la ined, a ppraisal awards do not serve to establi s h a party ’ s liability (o r lack

thereof). In re Al lstate [ Cty. Mut. ] Ins. Co

. , 85 S.W.3d at 195. Rather, they contractually

r esol ve a particular type of dispute among insurers and insureds: the amoun t of t he

cover e d loss. Id

. ” ).

It appears to us that Barbara Tec h nologies left open av enue s for the insured to

show that TPPCA deadlines were trigger ed b ecause the insure r was lia b le o n its poli cy

at the t ime that it rejected t he c lai m but removed the appra isa l proc ess ’ s proba tive

value in mak ing that showi n g

.

D. Th e meaning of S ection 542.0 58 was left unan swered by the major ity opinion in Barbar a T e

c

hnologi es

.

Bar bara Tech nologi es g av e guidance on the questi on of wheth er an in su rer who

reje cts a claim i s liable u nder S ection 542

. 0 6 0 but did not addre s s whether th a t insurer

mi ght be liabl e un der the provisi on of the A ct that provides an over all deadline for

when a claim shou ld be paid

. Specifically

, the supreme court left unanswe re d how to

i nterpret S ect io n 542 .0 5 8 o f the TPP CA :17 Ex cept as otherwise pr o vided, if an insurer, af t er receiving all i tems,

statements, and forms reason a bly requested and required und e r Section 542.055, del ays pa yment of t he claim for a peri od exceeding the p e riod

spec ified by ot he r applica b le stat utes or, if other statutes do n o t specify a

p eriod, for m ore than 60 days

, the insurer shall pay damages and o ther items as provided by Sect i on 542.060.

Tex. I n s. Co d e Ann. § 54 2 .0 58 (a)

. Barb a r a T e ch nologies also offered no g uidance to

i nt erpr et S ubsection (b) o f S e ction 542

. 058 that p rovides

, “ Subs ection (a) doe s not

apply in a case in w hich it is found as a result of arb itration or litigation that a cl aim

recei v ed b y an insurer is invalid and should not be p ai d by the insure r. ” Id. § 5 42 .058( b )

.

Bec a use the par ties in Barbara Tec h nologies had n ot addressed the quest ion of

S ection 542 .058 ’ s inter pretation

, the sup reme court only outline d b ut did not reconci le

th e t e ns ion between the langu age of S ection 542 .058 an d tha t of S ection 542

. 06 0 :

Neithe r party has specifically raised the i s s ue of whether [S] e c t ion

54 2.058 ’ s “shal l pay damages” language cou ld be th e bas is for TPPCA damages for late pay ment, independen t of [S] ec tion 542.060 ’ s limitation

of TPPC A damages to insurers “ liable on a cl ai m under an insuran c e policy.” Moreover, the p arties have not brief e d th e interp lay b etween [S] ection 542.060 ’ s liabi lity req uirem ent and [S] ection 542.058 ’ s excepti on for a clai m t h at i s found to be “in valid” and “should no t be pai d.”

Bar bara Tech s

. , 5 89 S.W.3d at 824.

The only i nterpretative hi n t tha t the m ajority opinion in Barba ra T ec

hnologies

offered as to the meaning of S ection 542 .058 was “ that when discussing the damage s

st an dard under the TPPCA and its predecessor, this Court has reco gn ized th e liabili t y

element for imposi ng TPPCA damages

. ” Id

.

E. We set forth ho w Ba rbara Tech no logies summarized it s holdings.18 The supreme court wrap ped up its d iscussion of the TPPCA by con cl uding that

[u

] nder the TPPCA, an insurer must pay d ama ges in the f or m of 18%

in t erest o n the amount of the claim a n d reasonab le and necessary

at to rney ’ s fees if it delays payment of a claim for more than the applicable statutory pe riod or sixty days. Se e T ex . I ns . C od e [Ann.] §§ 542.058, .060. We hold that neithe r [the i nsure r ’ s] i n vocation of the pol icy ’ s appraisal p rocess for resolution of a d is pute as to t he amount of loss, nor [the insurer ’ s] p ayment based on the appraisal amount, exem pts [the i nsur er ] from TPPCA damages as a matter of law. And without [ the

in surer ] having acce p ted liab ility under the polic y or h a ving been adjudicated liable

, w e hold that [t he insu red] is not entitled to TP PCA damages as a matter of law. We reverse the court of app ea ls ’ judgment

and remand the case to the trial court fo r furthe r pr oc eedings con s istent

w

ith this opinion.

Id

. at 8 2 8

– 29.

F. The concurren ce in Barbara Te c

hnologies analyzed S ection

542. 058 and concluded that the insurer had vi ola ted t h is TPPCA

s ect ion by rejecting the insure d ’ s cla im and then subsequently

pa ying the ap pr aisal award

.

The concurrence did not shy aw a y from interpreting S ection 54 2 .058 and cam e

to t h e con clusion th at it dictated liability f or the i nsurer in the ci rcumstan c es analyzed

by B ar bara Tec hnologies

. The concurrence “ conclude [d] that, by v olunta ri ly and

unco n d itionally paying t he benefits claimed, the insurer conce ded both its li ability and

the claim ’ s validity

. ” Id . at 829 (Boyd, J., c oncurring & dissenting) . Thus, the

conc urre nc e concluded that the ca se should be rem anded to the tr ial court t o addres s

on l y the amount of inter e s t and attorney ’ s fe es that the in surer owed the insured. Id

.

The concurrence outlined the TPPCA ’ s flow and initially noted t h at the

sections dealin g wi th t he claim’s acknowledgement

, accept a nce , and pay me nt “ i mpose19 n o pa yment ob li ga tion or deadline when t h e insurer rejects a claim for p oli cy bene fits. ”

Id. at 831 (d isc ussing T ex. I n s . C ode Ann. § § 542.055

– .057 )

. O n the other side of the

equatio n , w hen th e insurer accept s th e claim, “ the Act requires it to pa y the cl ai m

w

ithin f ive business days

. ” Id.

I n the concurrence ’ s view, th e TPPCA “ de scr ibes two independ ent circumstances

in which insurers must p ay statutory int erest and att o rney ’ s fees

. ” Id

. ( em phasis

added )

. Th e two independent circumstances a re foun d i n S ec t ion s 542 .05 8 a n d

542 .060:

• First

, i f an insurer “de l ays payment of the claim ” f or m ore than sixty

d ays after it receives all reasonably requ i red “items, statements, and

fo rms” from th e cl ai mant, it “sh all” pay inte rest and attorney ’ s fees “as provide d by Se ctio n 542

. 06 0 ,” unless “it is fou n d as a result of

arbitration or liti gatio n” that the claim “is i nval id and should not be paid.” [ Tex. Ins. Code Ann. ] § 542

. 058( a), (b).

• Second

, if a n insurer “is liable for a claim unde r an ins urance policy” an d

“i s not in com p liance wi th” the Act, it must pay, “in a dd ition to the

amoun t of the claim, int erest on th e amount of the claim at the rate of 18 percent a year as d amag es, together with re ason ab le and nece ssary
attorney ’ s f ees.” Id. § 54 2.060 (a).

Id

. a t 83 1

– 32 ( foo tno t es omit t ed )

.

After a n alyzing and rej ect ing the rationales of th e various cas es holding t h at

“ an insure r that makes a full and timely payment of a n ap praisal award is not o blig a t ed

to pay statutory interest or at torney ’ s fees even if it p re viously fai le d to c o mp ly w ith

the Ac t or timely pay t he claim

, ” the concurrence conc luded that t he appr ais a l process

performed a d ifferent function tha n the TPPCA. I d

. at 83 4

, 83 7 (footno te o mi tted)

.20 Appraisal provide s a mechani sm to value the claim but d oes no t est abl ish w he n the

insure r shou ld have pa id t he claim ; i nstead, the TPP CA dictated when the cla im

s hould be pai d. Id

. at 837.

By separating t he TPPC A and the appraisal process i nto se pa r at e s pheres that

removed the a ppraisal process from the equation used in d ete rmining a vi olation of

the T PPCA

, the concurrence began to unravel the a nswe r to it s initial q uestio n

regarding whet her the TPPCA re qui red the insurer to p ay interest and att or ney ’ s fe es

after “ having voluntarily and uncond itionally paid the claim for b ene fi t s, bu t ha ving

paid more than sixty days after receiv i ng all the information it requ ired bef ore

r ejec t ing t h e claim

. ” Id

. I n the concurrence ’ s view, the ins urer had c ompl ie d with the

Act b y act i ng timely in processing and re jecting the claim up unti l i t face d th e sixty

day deadline for payment in S ection 542

. 0 58. Id

. The insurer

, however

, vio lated

S ect ion 542 .058 b eca us e it s later volunta r y payment o f the appraisal awar d w as made

“ mo re than sixty days afte r it received all the informati o n it reason abl y requ ir ed f rom

[the insured ] to d ecide to reject the clai m

. ” Id

. By paying the appraisal aw ard long

a fter rejecting t he claim , the insurer t ransgressed the sixty

- d ay t ime li mit for pay ment

in Section 542 .058 (a)

, and the insu rer had not been f reed f ro m t he eff e c t of its

violation by obta in in g a f ind ing under S e c tion 542

. 058(b) that “ a s a result o f

ar bitration or litigation tha t a c laim received by an i ns urer is invalid a nd s h o uld not be

paid by the insurer

. ” Id

.21 The concurrence the n took up the ta sk tha t the m a j o r ity i n Barbara Tech nologi es

abjured an d of fered g u idance t o the trial court on why i t should determine on remand

tha t S ection 542 .060 d oes not apply to th e fac ts f ou nd in t he case but that S ecti on

542 .058 do es and why the facts esta bli sh a vi ola t ion of t hat se ctio n. Id

. at 83 7

– 39.

It appears that the concurrence c o n cluded that a violat ion oc curred in large

part because of the effect of Section 542

. 058(b) ’ s lan guag e that t he s ixty

- day deadline

d oes not a pply if there is a finding tha t the cla im i s i n v ali d. Id. at 839 (citing T e x. Ins.

Code A nn. § 542.0 58 ( a), (b ) ). Th at provi sion lar gel y u nde rl i es th e th ree r eason s for

the concurrence ’ s view t hat the insurer ha d vi o l ated S ection 542 .058 th rough its

failu re to comply with the section ’ s s ixty

- d a y dea dl i n e :

First, the concurrence chall e nged the majority’s instruct i on t hat th e trial cour t

on remand should app l y both S ect ion s 542 .058 and 542 .060 by reading them toget her.

Id . at 838. In the concurrence ’ s view

, that exercis e w as imp ossible because S ec ti on s

542 .058 a nd 542 .060 create opposite burdens on th e same issue

, t r igg er different

dea dl in es, and re quire the payment o f t he A ct ’ s penal t i es under different

circumsta nces

. Id

. The c oncurrence ’ s view was that w hen a n insurer accepts a c laim

,

the de a d l i ne t o pay t he claim in f i ve d ay s under S ection 542 .057 i s t rigger ed

, and thus

S ect io n 54 2 .058 ’ s sixty

- day d ea dline neve r b e comes applicable. I d

. a t 83 9. O n the

oth e r h a nd, w hen an insurer rejects a claim but co mplie s with the TPPCA ’ s deadlin es

while doi ng so , there i s no cl aim tha t th e insure r has failed to comp ly with the22 TPPCA

, and thus t h e pr edi cate of liabil ity un der S ection 542

. 060 that the insu rer i s

not in compl i a nce w ith the A ct is not met. Id

.

Not o nly did the stru cture of the TPPCA create a n “ irr e conc ilable conflict ”

w hen attemp ting to ap ply the two s ections, th at stru cture crea t ed a s i m ilar conflict i f

cla ims u nder bo th sections were s ubmit ted to a jury. Id

. at 83 8. The concurrence

v

i e w e d t h e invali d ity l a n g u a ge in S ection 542 .058(b ) that f r eed the insurer from th at

sectio n ’ s sixty

- d ay deadline as b e ing the same standard as S ecti o n 5 42 .06 0 ’ s standard

that r equired a findin g th at th e ins ur er “ is liable. ” Id

. Wi th t h a t premi s e esta blished,

the co ncurrence thought it im possible to fol low th e m ajo r ity ’ s instruc tions tha t o n

rema nd the insured must prove th at the insu re r was liable un de r its po licy and th at the

insurer coul d challenge the a ssertion of lia bility by p ro vi ng tha t it h a d no li ab i lity

b ecause th e claim was in valid

. Id. As the con cur ren c e stated, the majority “ would

p lace the burd en entirely on [ the in sure d]

— requ iring [the in sured] to pr o ve that i t s

claim for pol icy benefits was ‘ valid ’ a n d should h a ve b ee n paid because [the insurer]

was ‘ liable ’ on the clai m

— [a nd woul d] render [] [ S] e cti o n .058(b) completely

mean ingless. ” Id

.

The concurrence then exp lain ed why it had co nclude d that Section 5 4 2 .058

ap plie d w hen the insured re je cted a c l aim but later p aid it a fter the app r ai s al process.

Id . at 839. Again, t he i nsurer h ad co mplied w ith S e c tion 542 .060 because it had

“ timely acknowledge d, investigated, and r ejecte d [the insured ’ s ] claim and [h a d]

prov ided the r eason s fo r i ts rejection. ” Id

. And aga in a cce pt ing th e cla im did not23 create liabili t y u n d er the sixty

- d ay deadline of S ec tio n 5 42

. 0 5 8 because the five

- day

deadline to pay an acce pted claim un der S ection 542 .057 contro lled

, and the failu r e to

meet that deadli ne woul d trigg er a violation of S e ctio n 542 .0 60 becaus e the insurer

would not be “ in compli a nce w ith ” the A ct

. Id

.

B ut S e cti o n 542 .05 8 fit the crime o f initially rejecting t he claim b ut then paying

an appraisal award. Id

. Th e fai l ure to pay the claim until the re was an ap prai sal aw ard

showe d tha t the insur er had viol ated S ecti on 542 .058 becau se it had “ ‘ delay ed

payment of t he c laim ’ for more than sixty days aft e r rec eiving f rom [the insure d] all

the in formation it req u ired to secu r e proo f of l oss ” and had not carried its bur d en of

pro of under Sec ti on 542 .058(b ) tha t the insured ’ s c laim was i nvalid and sh ould not

have b een p a id

. Id

.

The concurrence then a rgued t hat the inval idi ty provi sion of S ection 542

. 058

wou l d stil l ap ply e v en i f S ection 542 .060 could be read to apply to the fa cts involved

i n B a rbara Tech nologies

. Id. Ev en if S ection 542 .060 applied

, the concurrence

co ncl u de d t h a t t he i nsurer would still be r equired “ to pay t he stat utory i nterest and

at torney ’ s fe es unless t he insu r er [met] its burden to prove that the cl aim was invalid

a nd s ho ul d not have be en paid. Section [ 542 ] .0 60 applies on ly if [th e insurer] was ‘ no t

i n compliance w ith ’ th e Act. ” Id

. The concurrence ’ s c hai n of re ason ing wa s that if

the i nsur er complie d with the TPP C A in ho w it ackn owledged, investigated, and

rejec ted t h e claim, the insurer ’ s only potenti al act that would me et the liability

st an d ard o f S e ction 542 .060 for “ not [b eing] in compl i ance w ith ” t h e TPPC A woul d24 be the failure t o pay w ith in Section 542 .058 ’ s sixty

- d a y dead line. A s the act of

no n compliance w a s f ou nd in S ection 542

. 058 then apparently all the provis ions of

that section mus t c o nt r ol

, i ncluding i ts pro vision that requ i res t he ins urer to pay u nle ss i t

c arr ies its burden to est ablish the cla i m was invalid a nd shoul d not have been paid. Id

.

After det ai ling its view s regarding why S ection 542 .058 applied, the

concurrence the n se t o u t it s v iew that “ th e Act ’ s language con firms t hat an i ns urer

that voluntarily and u ncondit iona l ly pay s a claim ‘ is liable ’ on t hat claim, e v en if its

liability has not b een ad ju dicated. ” Id . at 840

– 41. The concurrence reject e d the

majority’s constru c tio n that S e ction 542

. 06 0 require s an a d judication of the i nsurer ’ s

liabi l ity

. Id . at 841. The co ncurrence viewed the A ct as not requ irin g a n adjudi c ation

of liability bef o re S e ction 54 2 .06 0 applie s but re quir ing only an adjudication of

invalidity to fre e a n ins urer f rom the deadl ine of S ection 542 .05 8 and drew from this

inconsi s tency a p resumption th at the p rovis ions carried diffe rent meanings

. I d

.

T h en, Justice Boyd tur ned ba ck to a n argument based o n the in v alidity

language of S ection 542 .058(b) and h i s construc ti on of t hat sectio n t o m ean that an

insurer c a rries the burden to p rov e that it is not l iable o n the cla im

. Id . at 842

– 43. He

reiterated that t o re quir e an ad judi ca tion t hat an insurer is liable before the sixty

- day

de adline applies would re n d e r meaning le ss S ection 542 .058(b ) bec ause that subsection

r equires the insu rer to prove that t he clai m is i nvalid and thu s places the b urden o n

the insurer to estab l ish th at i t is not l iabl e before being freed f r o m t he sixty

- day

deadline

. Id . at 84 2

. H e a lso reit era ted the principle t h at he had st ated earlier in h is25 op inion that t he c ontra diction t a ke s sha pe because if “ [ a ] ll that matte rs then is

wheth er the insure r is le gall y adjudicated to be liable, [] whether it is f ound to be not

liable is irreleva n t a nd [S] ubse ction .058(b) is co m pletely meaningl ess. ” Id

.

Next

, the concurrence disagr eed with the m ajo ri ty that paymen t of the

apprais al did not c onstit ute an acce p tan ce o f the claim. See id. Unlike the majority,

the concurrence saw no difference b e t w een “(1) an insurer w ho initially accepts and

pays the claim, (2 ) an insurer who initially rejec ts but later voluntar ily and

unconditionally pays a claim, and (3) an ins u rer wh o initially rejects but later

voluntarily and uncondit ionally pays the claim i n an amount d etermined through an

appraisal process.” Id. I n the concurrence ’ s vi ew, n o ne of t he th ree scen ario s altered

the fa ct that “ by voluntarily and unconditionally p a y in g th e claim, t he insurer ‘ accepts ’

the c laim and thus concedes its liability f o r the benefi ts under the policy. ” Id

. at 843.

The effect o f that conces sion was not lessened be cau se the amount of the loss wa s

determined by the appraisal process. Id

. T o a void m aking a concession of liability

,

the insure r c ould have c ontinued to re j e c t the claim

. Id

. “ Ins t ead, [ the insurer]

volunt arily an d unconditional ly paid t he claim ” and c o ul d no longer “ argue that the

claim it ha [d] volunt a rily and unconditiona ll y pa id should not have been paid at all. ” Id

.

Af ter ch arting the path outlined a b o ve , the co ncurrence s ummar ized it s views

as follows :

In s um mary, [th e insurer ] t imely acknow ledg ed, i nvesti gat ed, and rejected [t he insured ’ s ] claim j u st as the Act requi red. Unsat isfied w ith [the insurer’s] decision

, [th e in sured] filed suit, forcing [ th e i nsurer] t o26 either volun tarily pay the claim or litigate i ts li abil i ty and the claim ’ s vali dit y. [ The insu r er] chose to volunt arily and unconditional l y pay the

claim b ut d i d so mo re than sixty days after receiving from [ the insured]

all the informati o n it r easona bly require d to initially reject the claim.

Becau se [the ins urer] f ull y complied wit h the A ct ’ s req u irements, [S] ection .060 and its “is liable” standard does n ot a p p ly. Inst ead, [S] ec tion .058 applies, and because ar bitr ation or litigation h a s never d et e rmined that [the insured ’ s ] claim was invalid and shou ld not have

bee n paid, [S] ection .058 requires [the insurer ] t o p ay statutory interest

and atto r ney ’ s fees

. A n d even if [S] ecti on .060 could also somehow apply, it requ ires [the insurer] t o p ay interes t an d fees becau se [the insurer] conceded that it “is liabl e ” under th e policy by v olu ntari ly and

un condition ally payin g the claim.

Id

.

IV. Standard of revie w

W e apply a de novo stand ard of r eview to summary judgments. Travel ers Ins. v.

J

o ac him , 315 S .W.3d 86 0, 862 ( Tex. 2010). A no

- evid ence motion for su mmar y

judgment is reviewed “ un der t he same le gal suff iciency st andard as a directed ver dict

. ”

Painter v . Am e r itex Drillin g I, Ltd. , 561 S.W.3d 125, 13 0 (Tex. 201 8). That stan dar d

pla ce s th e burden o n the non mov an t “ to produ ce m ore than a scintilla of evid ence to

suppo rt each challeng ed el ement of it s claims

. ” Id

.

The party moving for a t rad i tional summar y j u dg me nt carries “ the burden to

prove that t here is no genuin e iss ue of material fac t and tha t i t is entitl ed t o judgment

as a matter of la w. ” Or tiz , 589 S.W.3d a t 131

. “When rev iewi ng a sum mary judgment,

we ta ke as true all e vidence favorable to the n onm o va nt, an d we indulge ever y

rea sonabl e inference and resolve a ny doubts in t he n onm ovant ’ s f a vor .” Id. ( quo ting

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

.27 W e recen tly noted how we or gani ze ou r revi ew of combined no

- evidence an d

tr a d i t iona l summary

- judgmen t mot ion s a s follows :

Because the t r ial court did no t sta te the g r ounds for gr ant ing summary judgment, we will upho ld the s ummary j udgm ent if it can be su st ained

und er e ith er tradition al or no

- eviden ce grounds. See Dow Chem. C o. v

. Francis , 46 S.W.3d 237, 2 4 2 ( Tex. 2 001). When a party move s for

summa ry j u d g men t under b oth tradition al and no

- evidence grounds, we

norma lly first review the trial court ’ s judg me nt under t he n o

- e vidence

gro unds. Ford Motor C o. v. Ridgway , 135 S.W.3 d 5 9 8, 600 (Te x. 2004).

But we m a y a ddress the traditional grounds for summar y j u d gme nt first when they are d ispositive. See D.R. Horton

- Tex., Ltd. v. Sav annah Pr ops. Assocs., L.P.

, 4 16 S.W.3d 217 , 22 5 n .7 (Tex. App

— Fort Worth 201 3, no pet.) (addressing tr a d it ional summ ary judgment firs t bec ause m ovant ’ s affirmative defe n se was dis po s i tiv e).

Tip p ett v. Safeco I n s

. Co

. of I nd

. , No. 02

- 19

- 00152

- C V

, 2020 WL 827143 , a t * 3 (Tex.

App.

— For t Wo rth Feb. 20, 2020, no pet. ) (mem. op.).

V. Why we conclude that the tr i a l court properly granted Homeowners ’ motion for summary judgment

A s we prev i e wed in the i ntroduction, we con clude that the tri al court mad e the

proper deter mi nation by granting Ho meowners ’ no

- evidence mot ion for summary

jud gment. Homeowners did not ac c e pt Crayton ’ s claim by the manner i n which it

paid th e appraisal award

, a disp a r ity between the original ad justment and the appraisal

award i s not probative o f H ome owner s ’ liabilit y und er the rationale o f B arba ra

T

e c

hnologie s

, and Homeow ners did not vio la t e S ect ion 542 .058 of the Act.

A. Homeowners did no t “ accept ” Crayto n ’ s clai m w he n i t pai d the appraisal aw ard.28 Crayton argues that there is evidence that H omeown ers i n deed a ccept ed that it

was liable on his c laim

, and because it was not in complia nc e with t he pro vi sions of

the TPPCA , it was liable unde r S ecti o n 542.060 (a ). B y t his arg u men t, Crayto n t r ies to

place Homeowners in t he ca tegory established by Ba rbara Tec h nol ogies of a n insurer

becomin g liable even though it had initiall y rejected a claim b ecau se it subseque nt ly

acce pted the claim

. See Barbar a Tech s

. , 589 S.W .3d at 8 22 n .12 (ma jori ty o pinion)

. W e

dis agree that Hom eowne r s ’ actions constitute d “ ac ceptance ” of t he claim un der the

standard pronounced by B a rbara T e c

h nologies

.

The su pre me co urt out li ned when an insu rer might admi t its wa y into l iab i lity

for a claim p re v iousl y re j ec ted :

Eve n after ackn owledgi ng receip t of the cl a im, investigating it, and then reje c ting t he c laim (that is, de nyi ng l iabili ty), a n insurer may later choose

to acce pt the cl a im, a dmi tting liability un der the po li cy. For exa mple, i f a

con tract u al app rai sal provisi on such as th e one i n this c ase is invok e d

af ter the insurer h as received a ll infor mat ion requested fr o m th e cl aimant , cond u cted an investigation, a nd rejec ted the c la im, t he insurer may choose to [] (1) r ef use to pay the app ra isal amou n t and m ai n ta in its

d eni al of liabi lity fo r the c laim; (2) pay the appraisal amount without

acce pti ng lia bi lity; or (3) acce pt th e cl aim, e ssenti a lly admitting it was in correct to
den y l iab ility in itially, and then pay the cl ai

m in accord ance wi th the appr a i

sal

a m ou n t. If the ins urer choose s the t hird op tion, it beco m es l iable for the c laim despite

its earlie r rejection of the claim , an d it w ill be subject to TPPCA damag es for f ai

lure

to pay with in the applicable TPP CA deadlin es

. See T ex

. I ns . C ode [A nn.] §§ 542 .05 6 (a ), . 057 ( a), .058, .0 60. If the insur er chooses the first o p tion

, refu sing to pay a n appraisal a mount and conti nuing to d eny l iabi lity, the

in s ured could ch oose to pu rsue li tigation. And if t he litigation resulte d in a jud gm ent that th e i nsur e r was in fac t liab le on the claim, the insure r

wo uld then owe the amount of t he cl aim, as fixed by the bin din g

appr aisal, a nd TPPCA da mages if the in surer f ailed to pay the cla im

tim ely in accordance with [S] e ction 542.058. See id. §§ 54 2. 058, .060.29 Thi s op in i on add ress es on l y t he second opt ion, as tho s e are the facts of

the cas e bef o re us.

Id

. ( emphasis a dded).

T h us, the question is h ow an insurer p laces it self in the amb it o f the third

opti on by acc ept ing the claim in a wa y that e ssentially a dmi ts i t s e lf int o l i abili ty

. Based

o n a sub sequent foot no te in Barba ra Tech nologies , it a ppears tha t the insurer must

“ specifical ly accept ” the claim :

JUSTICE BOYD [ in the concurrence ] wou ld hold that volu ntarily paying the appr ais al amount co n stitutes accepta n c e of t he c la i m. See post

a t 82 9. We dis agree. An app raisal is binding only as t o th e amou nt of

the loss on the cla im, not as to liabil ity

. See

, e.g. , In re Allsta te Cty. Mut.

Ins

. , 85 S.W.3d at 198 ( explaining that an appr ais al is not us e d to

determi n e liabi lit y ( ci tat ion om itte d) ); Breshears [ v. State Farm Lloyds ] , 155

S.W .3d [ 340, ] 343 [ (T e x. App.

— C orpus Christi

– Edinbu rg 2004, pet. denied) (me m. op.)

. ] So an insurer t hat pa ys a n a ppr aisal amount as to a rejected

claim

— where the in su rer has de nied l i a bility

— do es not satisfy [ S

] ection 542 .060 ’ s requirement that the in sur er be “lia bl e for a claim under an i nsura nce polic y,”

u

nless the insur er spe cifical l y accepts the claim or i s ad jud icate d

liab le. See T ex . I ns . C ode [Ann.] § 542.0 60(a). We fi nd no s u p por t f or

t he proposition th at paym ent of an ap praisal amount on a rej ecte d c lai m

e stablis he s liabilit y f o r purposes of [S] ectio n 54 2.060.

Id

. at 823 n.14 ( emphas i s added).

Her e, C ra y ton argues that Homeowners did not qualify its la nguage carefully

eno u g h wh e n i t pa id the appraisa l award and stepped into a retrospective a ccep tance

of the claim

. I n his view

, v arious statements should be construed as admis sions that

Home owners wa s li a bl e unde r the policy :

While p ay ment o f an appraisa l award is not in and o f i ts elf an ac ceptance
of the insu red’s claim, in this case, at leas t som e evid e nc e of acceptance

exi sts. For e x ampl e, [ Homeow ners ’ ] payment lette r reflec ts that30 [ Homeo wners] p ai d $9 ,19 0.22 on October 19, 20 18, “c overing [replacement cost value] on the d w e lling

, [ repl acement cost value] on oth er struct ur es that are bui lding s an d the [ac tual cash value] on the

fence.” The l e tter furth e r ex plains tha t the ap praisal a w ard paym ent
“e s tab li s hed compliance with its obligations under t he poli cy” and was ti mely p a id “u nde r th e po licy.” Likewise, t he check det ailing [ Home owners ’ ] payme n t o f th e app raisal award is evid ence of

accept a nce. The c heck stub iden tifies t he paymen t as one made o n Cr ay t on’s 2014 claim, pursuant to the pol icy, un der “Co verage A

Dwell ing” f o r “pr ope rt y dama ge” out of [ Homeowners ’ ] “Claim s Accou nt.” [Record citations omitted. ]

T he evi d en ce th at Cr ayton cites does not cre a te a specific a ccepta nc e of the

cla im. Her e, H ome owne rs inv o ked the appraisal process and the n p ai d th e a mount of

th e appr a i sal award ; t he very first words of the let ter s tat e t hat the basi s of it s p ayment

is “ [i]n acc orda nce with the ap praisal awa rd. ” T he refe ren c e to compliance with the

policy and tim e ly paym ent is reasonably interpreted as a re fer ence to the f ac t t h at

H omeowner s had complied with the apprai sal p r o vis ion o f its po l icy and not as a n

admi s sion that it h ad indeed been liable all alon g. T he e vide nce cite d by Crayton does

not show t hat Hom eowners s peci fically accepted the claim in a way th at essential ly

a dmitt e d it w as incorrect to deny liability initi ally a nd then pay the c la im in acc ordance

w

it h the ap p rais al amount.

A federal court re j ecte d an arg ument si m ilar to Cr ayton ’ s in Lop ez v . A llsta te

Tex as Lloyds , No. 7:18

- CV

- 260, 2020 W L 2 92 342, at *9

– 1 1 (S

. D. Tex . Jan. 21, 2020 )

(opinion & order)

. I n L ope z , th e i nsured re lied on five ex amples o f lan guage t hat he

a rg ued s ho we d that an insurer had acc epted his claim by payi ng an app rais a l a war d.

Id. at *10. The instances that th e insured relied on were s i milar to tho s e relied on by31 Crayton to s upport his contention that Homeown ers spec ifically accepted th e cl aim ;

the instances in Lopez included

la n g uage f ound in De fendant ’ s Febr uary 7

, 201 9 l etter and motions

, that

Defe nda nt “ adm itted : ” ( 1) the ap p r ai sa l payment was “ an unconditional

p ayment for ‘ the Full C ost or Re pla cemen t l e s s dedu ctible; ” ’ (2) Defend ant “ tende red p aym ent of the ‘ full net Re pla c e ment C ost Value; ” ’ (3) the pay ment “ w a s i n c ompliance with the ‘ Loss Pay men t’

prov ision in the poli c y; ” an d twice (4) “ [Plai ntiff] had rec eived ‘ the full

extent of all r ecov erabl e b e n efits under the subject Po licy. [ ’ ] ”

Id

. Lopez rejected the co nten t io n tha t t he exa mple s rel ied on by th e ins ured we re

adm issions of liability and acc eptan ce t hat the c l a im was c o vered

. Id

. at *11

. R at her

the “ sta tements that payment w as made p ur suant t o th e appraisal award and the

app raisal award was ti mely pai d pursuant t o th e policy

. . . does nothing mor e t han

d et ail the contractually requi red payment mad e by [the insurer ] after t he appr a isa l

proc ess. ” Id

. The re ference s that Crayton relies on d o no mo re t h a n those rel ied on

by the in sured in Lope z and di d n ot constitute a spe c i fic acceptance by Homeowners

of Cra yt on ’ s clai m.

B. Th e fact tha t the appraisal award was made di d n ot meet Cra yton ’ s burden to present a scintilla o f evide nce of a T PPC A v iolation.

Next , with o ut t e lling us wh ether he seeks to es tabl ish a vio la ti o n o f Section

542 .058 or Section 542 .060

, C ra yton argues t ha t “ there is some e vide nc e to support

th e adju d ication of [ Homeowners ’ ] liabi lity for [hi s ] cla im. ” Th e evid ence that

Cr ayton cites is t hat the appr aiser and Homeowners never disp ut ed that his claim was

a c o vered loss and tha t hi s c laim wa s r eje cte d because the amo un t to repair the32 d amages fell below h is deductibl e

. Then he points out tha t th e apprai sal award was

five time s the or iginal es ti mate of damages

. W i th th at combinatio n of evid en ce, he

ar gu es that

[a] t trial, a j ur y will r evie w t he awar d and payment letter a s well as [t he

ad ju s t e r’s] loss report, estimate, and photos. This amount s to mor e th an

a sc int illa o f evidenc e that Crayto n suffered a covered l oss ( whi ch [Homeowners] has never di sput e d) a nd that the c os t of re pair wa s mo re than his $3,020 d eductible. A reasonable jury could cer t ain ly co nclude

from these items that [Homeowne rs] is l iable for Crayton’s claim und er the policy.

This comparis on o f the or iginal adjustment agains t th e app raisal awar d

, C rayton

argues, is ex actl y w hat Barba ra Te c h nologies co ntemplates and was the basis for Barbara

Tech no logies ’ conclus ion that the insured did not establish a right t o relief a s a matter of

law. W e conclude to th e contrary; using the appraisal resul ts as ev iden ce tha t the

insu r er is l iable contrav e nes th e rati onale of Barbar a T ech nologies that places TP PCA

d eadl ines and t he appr aisal process in se parate realms

.

W e will fi rst deal with whet her the fa ct tha t the appraisal is h i gh er th an the

amount o f damag es fou nd i n t he o rigina l ad jus tmen t cr eates a fact issue rega rding

whe ther the ins ur er “ i s li able ” under Section 542

. 0 60 ’ s sta ndard

. W e r ead Bar bara

Tech nolog ies as co ntrary to Crayton ’ s ar gument t hat compariso ns of the original

adjustment to the appraisa l award is w hat that op ini o n c ontemplates. I n ste ad, we

view Barbara Tech nologies as be ing antit hetical to such an ap pr oach. A s we have

outli ne d

, Bar bara Tech nologies goes on a t length divo rcing th e apprai sal process from

the determination tha t the insure r i s liable o n the poli cy a nd t hus l iab le u n der the33 TPPC A. Cr ayton never explain s how he can create a comparator usi n g t he a p praisal

a

wa rd and t he o riginal ad justment when B arbara Tech nolog ies h old s that the

use of a policy ’ s app raisal process to resolv e a dispute as to the val ue o f

l oss

— that is, the amou n t of benefit s the in su red would be entitle d to

und er the policy if the i nsur er wer e de termined l ia bl e for the claim

— and payment based on the a ppra isal has no bearing on the TPPCA ’ s payment deadlines or enf orcement of tho se dead line s.

589 S.W.3d a t 822 (emphasi s added)

. 3 I nd eed, t he supreme court ha s likened the

appraisa l proces s as a k in t o a settlement. Id

. at 820

. The l ogical force of placing the

TP P C A liabi lity and appraisal in w hat we des crib e as separate lan es is tha t a n in sur ed

c an certainly prove that t he insure r i s liable on it s poli cy and sho uld have paid the

clai m earlier

, but he m ust remove the app rais al as bein g probative on those issues

.

I n essen ce , Cra yton wants to find a ba c k d oor in to the use of a n appraisal

awar d w hen t h e supre me court app ea r s to ha ve sh u t the fron t door

. If that door w ere

opene d, the proces s t h a t the sup reme court views as the vita l proc ess of appraisal cou ld

,

for al l practi cal p urp ose s , be at an end . An i n sure r would know that once it inv oke s

ap praisal

, it r uns the risk o f prod ucing a result that

, rather than helpin g end lit igatio n ,

would pr ovi de t he am muni tion f or the litigation to c onti nue and pl ace s itself at a severe

disadv a ntage w hen arguing t hat it was not liable o n its policy . The insu rer w oul d be

le ft in the posi tion of tryin g to ex plain the arcan a of the appraisal proc ess to the ju ry

3 The supreme court ref erenc e s “ enforcement ” while disc ussing S ection 542.060(a), which pr edicate s the ability to enforce its penalties on the insu rer ’s being

“liable for a cla im.” S e e Tex. Ins. Code An n. § 54 2.060(a). By stating t hat the appraisal has no bearing on “enforcem ent,” this augments our conclusi on that the appraisal process has n o bearing on establishing liability.34 as justificat ion fo r i t s dete rmina tion no t to pay the cl ai m i n the f irst pla ce when

pu r portedl y disintereste d app raisers came up wit h a high er number

.

C r ayton a rgues t hat by holding as we do, w e vi olate Bar bara Tech nologies ’ holding

tha t the insurer d id not “ d emonstr ate [] tha t TPPCA damages are foreclosed as a

matter of law, as tender of t he appr aisal amount d oes not preclude TPPC A da mages. ”

589 S.W.3d a t 828. We agre e with Cr a yto n tha t th e supreme court held that the

payment of t he appraisal award did no t f ree the insure r fro m a remand of th e case

.

But Barbara Tec hnolo g

ies was an introdu ction to a new world exp lori ng the interrelation

of the TPPCA and apprais a l s. Be cause o f H omeowners ’ a nd Crayton’s argument s

and th e state of th e summary

- judgment rec ord , w e fa c e an issue not explicitly

answ ered by B arbara T ech nologies : i s the appraisal aw ard probative evidence tha t the

insured is liable for the claim and shou ld have pai d the claim in acc ord ance with

TPPCA ’ s dead lines ? W e apply what we s ee a s the rationale of Barba ra Tech nol ogies to

answer the question in the negative

. 4 In do ing so, our interpretation avoid s t he

4 Crayton also poin t s to other cases in w hich th e s uprem e court and this court

have r e manded cases after B arbara Tech nologies was handed down an d argue s that we should follow a s i milar course. Those cases, however, di d not involve the issues we grapple with here

. S ee L azo s v. St ate Fa r m L loyds , 601 S.W .3 d 783

, 784 (Tex. 2020) (rem anding case to trial court to app l y Barbara Tech nolog ies and Ortiz when cou rt of appeals ha d concluded tha t the insured “could not mai ntain his T PPCA claim du e to [ the i nsurer’s] payment of the apprais al awar d ”) ; A lvarez v. State F arm L loy d s , 601

S.W.3d 78 1

, 783 (Tex. 2020) (same); Lamber t v. State Farm Lloyds , No. 02

- 17

- 00374

- CV , 201 9 WL 5 792812, at *3 (Tex. App.

— F ort W orth Nov. 7, 2019 , pet. file d) (mem. op.) (remanding case becaus e i t was in the same p rocedural pos tur e as Bar ba ra T

ec

h nol o gies ) ; see also Perry v . United Serv s

. Auto

. Ass ’ n , 602 S.W.3d 915, 917 (Tex. 2020) (same); Marc hbanks v. Liberty Ins

. Cor p

. , 60 2 S.W .3d 9 17 , 918 (Tex . 2020) ; Al cala v.35 c oncern s tha t Chief Justice Hecht noted in his dissent about th e seeming

con tra dictions of the majority ’ s reasoning. 5

C. The evidence d oes not rai se a fact issue that Homeowners v io lated

S ection 542 .058 of the TPPCA.

1. We set forth t he bas ic points th at s how why we disagree w ith

the concur ren ce

.

Cr ayto n n ext invo k es S ection 5 42

. 058 t o argue that we should reverse the

granting o f Homeowners ’ no

- ev idence summary judg ment. H e uses S ec tion 54 2 .0 5 8

in two ways . F irst, he argue s tha t paying the appra isal awa rd more th an 1,000 day s

after rej ec tin g his cl a ims i s a vio la t ion of the sixt y

- day l i mit of S ection 542

. 058 and

was thus not in com pliance with the TPPCA a nd thus constituted a v iolat ion of

S ec ti o n 542 .060. He then argues that Home owners commi tted t h e fo llowing

free standing vio lati on of S ecti on 542 .0 58 :

Se c t io n 542.058 lac ks t he liability element pre s ent in Section 542. 060. It

is undispu ted that [Homeowners] had every thi ng it needed to make a

Repub lic Lloyds , No. 13

- 18

- 000 26

- CV, 202 0 WL 83084 0, at * 4 (Tex. A pp.

— C orpu s C hris t i

– E d inburg Feb. 20, 2020, n o pet.) (me m. op.) ( revers ing summary judgment predicated on timely payme nt of appraisal award)

.

5 Chief J ustice Hecht noted the seeming co ntradiction i n the majority’s approach as fo llow s :

I thin k this is a fair paraphras e: th e c rux of the courts ’ opinio ns is that

the Act does not penalize a postclaim

- rejection payment o f an appraisal award, and we do not d isagree with that; but the Act does not excu se a postclaim

- rejection payment of an appraisa l award from its penalties , so

w e d isapprove of them.

Barba ra T echs. , 589 S.W .3d at 849 (Hecht, C. J., dissen ting)

.36 clai m decision o n October 15, 201 4, but did not pay the appr ai sal aw ard until 1,464 days l ater. Ac co rdingly, ev en a s s u ming ar gue ndo tha t Crayton

lacked sufficient evide n ce of liability, his TPPCA cl a im still s hould h ave survived no

- e v i d e nce sum mary judgmen t be cause there is more than a

sc intilla of eviden c e t hat [Ho meowners] viol ated Section 5 42.058.

We n o w ent er the te r rito ry left uncharted by the majority opin io n in Barbara

T

ec

hn ologi es

, which is the constr uctio n o f S ect io n 542 .0 58. T his cre ates the task of

weaving together the few comm ents tha t the majority in Barbara Technolo gies made

about S e ction 54 2 .05 8

, th e ex ten sive co mmentary abou t th at section in the

concurrence
, a n d our ow n view o f the s ection ’ s m eaning in orde r to interpret the

sec tio n ’ s impact on Crayton ’ s TPPCA claim. I t is ou r con c lusion that Hom e owners ’

actions were not a v i o la tion of S e c t ion 5 42

. 058.

W e must d isagree with the concurrence that the circumst an ces of th i s case ,

which m imic those of B arba ra T ech nolo gies

, establish a vi ola tion of S ecti on 542

. 058 for

which the i nsu rer co mmi ts what i s tantamount to a per se v i olation of S ect io n

542 .05 8(a )

. F ir st, comparing Justice Boyd ’ s opinion and the ma jorit y ’ s, it appears that

the maj o rity doe s no t a gree wi t h the premises tha t the concurrence uses to argu e that

the re could be no viol atio n of S ection 542 .06 0 an d ther e is a facial violation of S ec t i o n

54 2 .0 58 (a) w hen th e appraisa l award is paid out side of S ection 542 .05 8(a) ’ s sixty

- day

deadl ine

. N o r do we se e the same signi ficance that he sees in the invalidity provi sion

of S ecti on 54 2 .05 8(b). The concurrence con strues this subsection t o r equi re a n

i nsure r to p r ove that it is not liable on t he po licy to av oid the sixty

- day deadline of

S ection 542 .058 (a )

. F rom thi s p remi se , that opinion con cludes that requiring an37 insured to prove l ia bili ty un der S ecti on 542 .060 would read S ectio n 542 .058(b ) out of

the A ct

. But tha t concl usi on assumes th at both p rovi s ions address th e same iss ue.

W e conclude that the invalidity p r ovi sion ad d resses a diffe rent issue and does not

c reate the dilemma that the concurrence se e s in the A ct.

2. Payment of an apprai s al a war d does n ot tr ig ger a violati o n of

S ecti on 542 .058(a) of t he TPPC A

.

We will appr oach the an alysis of S ection 542 .05 8 b y fi rs t look ing at S ub section

( a

) in isolation and th en integrating the ef fe ct of S ubs ectio n ( b ) and our disagreement

w

ith the co ncur ren c e and th at s ubs ection ’ s meanin g

.

Sub sect ion ( a) of S ection 542

. 0 5 8 read s a s follows:

Except as otherwise provi ded, if an insu rer, aft er rec eiving a ll items,

sta tements, and forms r easonably requ este d and requi red under Section 542.055, dela ys pay m e nt of t he claim for a period exceedin g the peri od

s pecif ied by other ap p licable st atutes or, if other statutes do not speci fy a perio d, for m ore th an 60 d a ys, the insur er shall pay damages and other

ite ms a s provided by Sectio n 542.060.

Tex. I ns. Code A n n

. § 54 2 .05 8(a).

C ray ton would read this secti on t o pot entially create liab ili t y when the insurer

pay s an apprai sal award out side it s sixty

- day wi ndow . Th e payment of the appraisal

award, in his v iew, becom es evidenc e t o estab lish that the origina l clai m d e cis i on of

th e in sur er was in error and is thus evi dence tha t retrosp ectivel y es ta blishe s that the

insure r failed to com ply with S ection 5 42 .058 ’ s sixty

- day de adline

. W e d isagree

.

First, we not e th e supreme court ’ s o n e signpost pointing to how it wou ld

c ons t rue S ect io n 542 .058. As n ote d abo ve, the one thin g th at th e supr eme c ourt sa id38 wh en it left for another day the con structi on of S e ction 542

. 0 58 was “ that when

discus sing the damage s stand ard under t he TPPCA and its pre deces sor, this Court has

reco g niz ed t he l i abil ity elem ent for im posing TPPCA d amag es. ” B arbara Techs.

, 58 9

S.W.3d at 82 4. 6 Thus

, to th e exten t that the suprem e court gave a preview of how it

6 T he sup r e me c ourt c ited a num ber o f cas es to support i t s statement:

S ee La mar Homes, In c

. [ v. Mi d

- Contine nt Cas. Co

. ]

, 2 42 S. W. 3d [ 1, ] 16 [ (Tex. 2007) ] ( “ The prompt

- payme n t sta tu te provides th a t an i n surer, who is

‘lia ble for a claim unde r an in sura nce polic y’ and who does not promptly

res pond t o, or pa y, t he claim a s the statut e requires, is li a ble to the po licy

holder o r b e nefic iary no t o nl y for the amou n t of the cl aim, b u t al so for

‘interest on the amount of the clai m at the rate of eig hteen p erce nt a year as da mages , together with r easo na bl e attorney ’ s f ees.’ ” (c it ation

omitt ed)); [ Progressi ve Cty. Mut. In s. v. ] Boyd

, 1 7 7 S.W.3 d [ 919, ] 922 [ (Tex.

2 005) ] (explaining that “ [t]he r e can be no li ability und er [th e TPPCA ] i f

the in surance claim i s not c overed by t he p o licy ” because TPPCA

d am ages are to be awarded when th e insure r is liable u nder t he p olic y (c itat ion om it ted)) ; [ Allsta te Ins. v. ] Bonner , 51 S.W .3d [ 289, ] 2 91 [ (T e x. 2001) ] (“To succe ssf ully ma intai n a claim under [th e TPPCA], a pa rty

must es tabli sh thr ee elem en ts: (1) a clai m under an insuranc e policy ; (2) that the in su rer is li able for t he claim; and (3) that th e insur er has

f

aile d to follo w on e or more s e ctions of [ the TPPCA] with resp ect to the

c laim.”) [, j udgment wi thdrawn and s uperseded 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 i s not the only court to d iscus s the

TP P CA damages sta ndard in such a way. See, e.g. , Cox Operating, L .L. C. [ v . St. Paul Su rp lus Line s Ins. ] , 795 F.3 d [ 496

, ] 505

– 0 9 [ (5th Cir. 2015) ] (“[Section] 542

. 058 pro vide s an alter nate pa y me nt d ead line to the one set

out i n § 542.05 7

. . . . A s r e f e renc e d in § 5 42.058, § 54 2.060 provides the

enfor ceme nt mecha n is m fo r [ the TPPC A ’ s] d eadlines

. . . . In sum, t he [TPPCA ] (1) im poses on insurers a series of claims

- handli n g deadl ines

, §§ 542. 0 55

– . 058; a nd ( 2) enforces those de adlines by req u iring i nsu r e rs wh o fail to comply with them (and who ulti mat ely are li abl e on t he

clai m) to pay statu t ory in tere st.” (citatio ns omitte d)); Tre mago, L.P. [ v. Eul er

- Hermes Am. Credit Inde m . Co. ] , 602 F. App ’ x [ 981, ] 983

– 84 [ (5th C ir. 2015) (pe r curiam )] (hol ding th at “ [ i]n o r der to p re va il on a [T PPCA]39 would vie w S ect ion 542 .058, th at sec tion does not a brog ate an insured ’ s need to

est ablish po l icy lia bilit y o n t h e part o f t he i nsure r

.

The question becomes whether the su bsequ ent p ayment of the appra i sal award

is pr obati ve of fa ilure to comply wit h the A ct because the payment o f that aw ar d

i ndicates that th e i nsurer failed to p a y the c laim with i n sixty days “ a fter receivin g a ll

items, sta tements, and forms reas onably reque sted a nd re quired under Sectio n

542 .055

. ” T e x . In s. Code Ann. § 542.058(a ). I n essence , t o read the a ppraisal proce ss

i nto S ectio n 542 .058( a) re quires the payment of a n a pprai sa l t o b e tie d to th e process

of S ec t ion 542 .055 by making th e p ayment an act sho wing a failure of the insu re r to

act afte r ha v ing “ a ll it ems, statements, and forms re asonably requ ested an d requir ed

u nder Section 542.055

. ”

First, t he str ucture of S ec tion 542 .058( a) in combin ation with the separ ate

tracks on which the supreme co urt plac ed the T PPCA and the a pp raisa l process s ever

the conne ction. C reating the connection violates the ge ne ral prin cip le o f Barbara

T

e ch nologies th at p l aces the claim

- assess me nt process o f th e TPPCA in a separate track

from the apprais al p roc ess

.

claim, the insure d mu st show ‘(1) a claim u nder an i n suranc e po lic y (2) fo r whi ch the in surer is liabl e and (3 ) th at the insu rer ha s not follow e d one or mo re se c tions’ of the Act,” a nd that witho ut an admis s ion or fin di ng of li a bil ity, the i nsurer ’ s settlement payment d id not subject it to T PPCA damages (cit ation omitted )).

B arbara T ec

hs

. , 58 9 S.W.3 d at 82 4.40 Second , ty ing the appraisal proc ess to S e ction 542 .055 is con t ra ry to h ow

Barb a ra Tech nologies specifically carried forward th e di sti nction between the appraisal

and t he deadlines of t he TPPCA i n its treatm ent of S ection 542 .055

, the predicate for

a violation of S ection 542 .0 58( a)

. Th is more sp ec ifi c tre atment a ppears in the

su pr eme court ’ s rejection of the insurer ’ s argu ment th a t “ i ts initi ation o f th e

contractual app raisal proce ss c o ns t itute d an ad ditiona l in formation request under

[ S ] ection 542.055(b), extending the TPPCA ’ s dea dl in e to accept o r rej ect a claim. ”

B arba ra Techs.

, 58 9 S.W.3d at 8 16.

T he supreme court responde d to t his argum ent in two ways . First , it di vo rc e d

the requ es t and as sessm ent of docu ment s in the c laim

- assessment process established

in S ection 542 .05 5 fr om t he a ppraisa l process :

Under [ S ] ec tio n 5 42.055(a), aft er r eceiv ing a claim, an insurer m ust

ac know ledg e r eceipt , begin an inves ti gation, an d reque st f r om th e cla ima nt all items, stat ements, and forms that the insurer reasonably

believes will be nec ess a ry to evaluate t he claim. S ee id. § 54 2. 055 (a). The

insure d m a y t hen make “addit ional reques ts” fo r info rmati on w hen necessary “dur ing the in ve stigati on o f th e claim

. ” See id. § 5 42.0 55(b).

We read “additional” t o reference the initial information, me a ning that

the TP PCA au thor izes the insure r t o request informat ion f rom the

claimant in two phase s: (1 ) an initial request made withi n f ifteen

busin ess day s of re ceivin g the c laim fo r in formation the insurer believes “at that time” will be required; and ( 2) add itional req uests f or inform at i on rev ea l ed to be necessary dur i n g the course of t he investiga tion. Be cause [ th e insurer ’ s ] appra isal deman d was bas ed o n it s

contra ct ual r ight to eng age in a specific dispute resolutio n process and was not a request fo r item s , statemen ts, or f or

ms from [ the in sur ed

] to secure final pro o f of loss,

we conc lude that [ the i ns

ur er ’ s ] use of the appraisal proce ss fa lls outside t h e s co

pe of [ S

] ecti on 54 2. 055.

Id

. (emphasis added)

.41 The supreme court then offere d an addi tional rea son wh y in vocat ion of the

appraisa l process wa s not a part of the ins urer ’ s c laim

- inves ti gation process as follows:

F urther, [S] e ction 542.05 6 (a) specifies th at th e “ insur er shal l n otify a claimant in writing of the acceptance o r rejecti on of a c laim not l ater
tha n th e 1 5th busines s day afte r the date t he insu rer receives all items

,
st atements , and forms require d by th e in surer to s ecure final p roof of

loss.” Id

. § 54 2.056 (a). A s suc h, the rejection or acceptance of a claim is th e insur er ’ s ackn owledgment that it h ad a l l the infor mati on it ne eded from th e cla imant

to determ ine whe ther the cla im ant was entitled to bene fi

ts u nder the poli cy. Bec au se an insurer ’ s rej ect io n o f a cla im is based on all information the insurer deemed

nec essary , as well as the in surer ’ s in v es ti

gation, lat er in vocation of the poli cy ’ s appraisal provi sio n d oes not some how start the investig ator y perio d anew. Whe re the p oli cy provides f or an ap p

ra is

al proc ess if the parties “disagree on the value of the prope rty o r the amo unt of los s,” as t he p ol i

c

y here doe s, and the app raisal proce ss was initiated onl y a ft

er [ the

insu rer ] rejected the claim, h av ing de termin ed th at the v alu e of the

cove re d lo ss wa s below t he deducti ble, use of the contractual appraisal process w as not part of the in surer ’ s in vesti ga ti

on

.

I

d

. at 8 1 6

– 17 (em phase s added) ( footnote omitt ed )

. Carr ying forward this theme, the

supreme court late r not ed that “when an insurer c omplies with the TPP CA in

responding to the claim, requesting necessary information, i nvestigati ng, eval uat ing,

and reaching a decision on the claim, use of the contract ’ s ap prai sal process does not

vitiate the insurer ’ s earl ier d etermina tion on the claim. ” Id. a t 823 (empha sis added).

Thus , in con tin uing to draw th e dem ar cation betw een the cl ai m proc ess and the

co ntractual appraisa l pr oc ess , the supreme court seems t o draw anot her line . That

li ne is that t he existence of a n apprai s al awar d doe s no t show that th e ins urer h a d

f

ailed to timel y res pond to the cla im be cause th e app rais al process i s not a part o f the

cl aim pr ocess

. Because S ection 542

. 058 (a ) creates a deadline t ied to the claim proc ess42 fo und in S ection 542

. 055 ’ s trigger of the insu rer ’ s recei vin g a ll the documen ts that it

had re q u e st ed and that are re quired to make a cla i m a sse ssme nt, the supreme court

divorce s th e claim

- assessment pro cess from the appra isa l proc ess

. T he l ater payment

of an appraisa l award i s n o t a trig ger to the dete rminatio n t hat t h e in surer h as failed to

meet t he d eadlines requi red in the cl aim

- asses sm e nt proces s

.

A nd , a gain, mor e b roadly, usi ng a n appraisal award as e vidence of a violat ion o f

S e ction 542 .058 is another attempt to ope n a b ack door into the prohibited terri tory

of u sing the ap praisa l process to e stab lish liability under th e TPPCA. A construct ion

that a tt em pts s uch a maneuver i s in consi stent w it h the overall separa tion of the

a ppra isal process from TPPCA liab ility

. 7 To per m it the a ppraisal award to be

proba tive of wh eth er ther e wa s a S ection 542 .05 8(a) vi olation b as ed on t he insurer ’ s

fai lure t o pay w it h in sixty da ys “after rec eiving all items, s t atem ents, and forms

reasonably requ ested and required under Sec tion 542.05 5 ” v i olates t he line t he

supreme court d rew in Barba ra T ech nologies to separat e the ap pra isal pro cess f rom

TPPCA l i ab ility and to re qui re that lia bil ity t o be s hown by evide nc e t hat goes beyond

the payment of the appr aisal award.

7 See A n t onin Scalia & B r yan A. Garner, R ea ding L aw : T h e I nterpretation of Leg al

Texts 180 (2012) (“[ T

]here c a n be n o just i fication f or ne edles sly rendering pro visions

in conflict if they can b e interpr eted harmon iously.”); see also T e x

. G ov ’ t C ode Ann. § 311.021(2) (“I n enacting a s tatute, it is presumed that .

. . th e entire statute is

intend ed t o be ef fective[. ]”).43 And s uch a construction w ould once a ga in und ermine the appra isal process

.

A n insure r who t riggered the apprai sal proce s s would be c r eating th e eviden ce needed

by its oppo nen t to tr igger an auto matic viola tion of S ection 542 .058.

Li m itin g ou rselves fo r the m oment to S ubsection (a ) of S ection 542 .058, the

majority o pin ion of B arbar a T ech n ologies seems to ans w er most of t he issu es t hat the

concur rence raises to su p po rt it s v iew th at t here co uld be no vio lation of

S ection 542

. 060 but that th ere must be vi olation of S ect ion 542 .058. First , f or th e

reason just explored, we reject the p remise that the pay ment of an apprais al award set s

a v i ola tio n of S e cti on 542

. 058 in m otion ba sed on the fail u re to pay the claim withi n

sixty da ys “ a fter receiv ing all items, statem ents, and forms reason ably req ueste d and

required und er Secti on 542.0 55

. ”

Second , the majo rit y specifi cally rejected the concurrence ’ s c o nclusion that

pa yment o f the a pprais al award in and of itself constitut es a n accep ta nce of the cl aim.

Id. at 823 n. 14 ( “ JUSTICE BOYD [in t he co ncurrenc e ] wo uld hold that volu ntar ily

payi ng th e a ppra i sa l amount con sti tu tes accepta nce of the claim.

. . . W e dis a gr e e. ” ).

Thi rd, the ma jority appear s to d isagree with the concurrence ’ s p remise that

S ecti on 5 42

. 058 must apply to the claim be cause S e ction 542 .060 cann ot. Again

, the

con currence ’ s re as on ing is that so long as the ins urer timely notified the insured of its

reje cti on of th e cl aim, th e i nsurer satisfied all of the A ct ’ s deadlines . Because t he

i nsurer was “ in c omp lia nce ” with th e Act, ther e was no vi olation of S ection44 542 .06 0( a) tha t requir es a showing that the i nsurer “ was ‘ not in complianc e with ’ t he

Act

. T e x. I n s. Code [ A nn. ] § 542.060( a

)

. ” Id . at 839 ( Boyd, J., con curr ing & disse nting )

.

Instead, the majority appears to h ave l e ft open the possibility that a Section

542. 060 viol a tion ca n occur when th e insurer rejects a claim an d the insured later

obt ains a judgment tha t the insurer is liable on the policy and thus wro ngfully reject ed

the claim

. 8 P resumably the insure d ca n pred i cate an insure r ’ s lack o f compliance on

Sec tion 542

. 058 ’ s d eadline (th r oug h means ot her t h an payme nt o f the appraisal

awar d) once i t est ablishes t hat t he i nsurer is liable on the claim and did not pay the

claim wit hin the si xty

- day dea dline of Sectio n 542

. 058(a)

.

3. W e di s agree with the concurrence tha t S e c ti o n 54 2 .058(b) requires the conclusion that a n ins u rer has violated S ec tion

542 .058 when it r ejects a cl aim and la ter pays an appr aisal

awar d.

8 A s Ba r b ar a Tec hnologies held

,

S ectio n 542 .060(a) specif ies tha t, “[e]xc ept a s [other wise] provid e d .

. . , if a n insurer t hat is liable for a claim under a n insurance policy is not in

com plian ce with t h is subchapter, the insurer i s liable t o pay” t he insur ed

da m a ge s as sp ecified by thi s sect i on. See T ex . I ns . C ode [A nn.] § 54 2.060 (a) (empha si s adde d). W e see n o way under the langu ag e of

the TPPCA that an i nsurer can be “liable” on the claim withi n the

me aning of [S] ection 542.060 until it (1) has com plete d i ts i nvestigation,

evalua ted the c l aim, and com e to a determi nation to acce pt and pay th e claim or some p art of it; or ( 2) been adjudicat ed liable by a c ourt or arbitration panel. If an insurer re je c ts a claim, it has concluded based on its

investi g

atio n an d e valuation th at it owe s no ben ef its under the policy and i s not lia ble for the claim; u nless and unti l th e insure r la ter a c cepts the claim, thereby a dmitting liability, or there is a judgment t ha t t he insure r wrongfully reje cted the claim, the

i n sure r is n o t “liable for a claim under a n insu ra nce poli cy” under [ S ] ection 542.0 60.

I

d

. at 819

– 20 (majority op inion) (emph a sis added )

.45 T he ma jority in Ba rbara T ech nolog ies refused to j oin i ssue wit h the concurrence

on it s const ruction o f th e wo r d “ inva lidity ” in S ection 542 .058(b). I d

. at 828 n.1 9

(majority opini on) ( “ We do not address t he rela tionshi p between ‘ liabl e, ’ ‘ invali d, ’

‘ should b e paid, ’ and ‘ right to receive benefits, ’ as t hat i ssue ha s not been raised or

briefed in this Cou rt. ” )

. A s we ha ve noted, the co ncurrence places consider able

emp h a sis on S ecti on 542

. 05 8(b) ’ s languag e that S ubse ction (a) of t h at section “ does

not apply if ‘ it is fo und as a result of ar b itra tion or litigation that a claim received by

an i nsurer is inva lid and s hould n ot be paid by t he insu rer. ’ ” Id. at 837

, 839, 84 2

(Boyd, J., concurring & dissenting ) (citing T e x. I ns. C o de An n. § 542. 05 8(b) ) . The

concurr ence rep eatedl y describes th at s ubs ection a s cre ating in effe ct a mirror i mage

of S e ction 542 .060 ’ s liabil i ty s tan dar d

. S e e i d. at 837

– 43

.

The co ncurrence rel ied on that interpretati on to support it s view tha t S ec t ion

5 42 .0 5 8 rather than S ection 542

. 060 cre ates the operative dea dlin e for pa yment when

the ins urer pay s a n apprai sal award ; its rea sons w ere pr im ar ily two

- fold

. See id. at 839

.

First, according to t he co ncurrence
, Subsecti on (b) de monstrate s that S ection s

542 .058 an d 542 .060 cannot be read together

. Id. at 838. In it s v iew, S ection

542 .058(b) pla ces the burden of proof on the same issue as Sec t i o n 542 .0 60 ’ s lia b ility

langu a g e , bu t unlike S ection 54 2 .060 , w hich places the burden to show liabilit y o n the

insur ed

, S ection 54 2 .058 (b) p laces its burden on the insurer

. Id

. S econd

, t he

co ncurrence reasoned that requir ing a n adjudication th at an insur er is lia ble before th e46 sixty

- d ay deadline a pplies w ould re nder mean ingless S ec tion 542 .058(b) because that

subsec ti on re qui res the insurer to prove that the c laim is inva li d by pl acing the bur den

on the insurer to establ is h that it is no t l iable b efore be in g freed from the six ty

- day

d e adline. Id

. W e conclude th at the co ncurrence a sk s the word “ invalidity ” in S e ct ion

542 .0 58(b) to do too much work

.

Firs t, if our con clu sion t hat the p a yment of an appraisal award doe s not tr igger

the deadline of S e c tion 54 2

. 058( a), then not app ly ing S ect i on 542 .058(b) t o a claim

inv olving the appraisa l process wou ld not be reading th e sub se ction out of the A ct. If

the p aym ent of the apprais al a war d doe s not t r igger a violation of S ection 542

. 0 58 (a)

in the f irst pla ce, then t he exce pti on in S ectio n 542 .05 8 (b) bec omes i r relevant becau se

it pro vides an e xception to a provis ion tha t neve r app lied in the first place.

Secon d

, w e d isagr e e with the concu rrenc e ’ s con c lusion that pr oving an insurer

is li able on a claim and a finding t hat a c laim is inv alid a re
, what we perceive h im to

say , imag es that mirror ea ch other

. If the legislat ure int ended for S ection 542 .058( b)

to be the mirror image of the liabil ity s tandar d of S ection 542 .060, t hat choice is n ot

reflected in th e p la in lan gu ag e of the A ct

. The sta rting po int for the me aning of an

un defi ned term in a s ta tu t e is its “ common, ordinar y meani ng unless a contrary

me aning is app arent from the st atute ’ s langu age.

. . . To determine a statutory term ’ s

com mon, ordinary m ean ing, we typ ically look first to th eir dict ionary defin it ions and

then c ons ider the term ’ s usage i n other statutes, cour t decis ions, and similar

authoriti es. ” Tex

. S tate Bd. of E xam ’ r s o

f Mar riage & Fami ly Therapist s v. Tex

. Med. Ass ’ n ,47 511 S.W.3d 28, 34

– 3 5 (Tex. 20 17). B l ack ’ s Law Dictionar y define s “ invalid ” t o m ean

“ 1. Not le gall y b inding <an i nvalid contract>

. 2. Wit h ou t b as is in fact <invali d

allegations >. ” Invalid

, Black ’ s Law Dictiona r y (1 1 th e d. 201 9 ). But a cla im may be

valid, and the insur er s till not be lia b le.

A s a gene ral prop osition

, an insurer ma y not b e liab le on a val id claim ; t hat is

exactly t he situatio n inv ol ved in both this case and Barbara Tech nologies . Ho meowner s

a n d th e ins ure r in Barbara Te c h nologies di d not contend that the in sured ’ s cl ai m was

i n valid, i

. e ., wi tho ut a ba s is in fact . I n stead , the c laim was va lid, but t he insu r er s were

not liable becau se th e valuation o f the damages fell below the policies ’ deduct i ble s

.

On th e ba sis of the pla in meaning of the word “ in valid ” an d its ap plic at ion i n the

speci fic circ umstanc e s of Crayton ’ s clai m and of the insured in Barba ra T e ch nolo gies

, we

m ust dis agree with the concurrence that the invalidi ty provi sion of S ection 542 .0 58(b)

an d th e l i ability p rovi sion of S ection 542 .060 (a) are e qual b ut opp osite b e c ause they

create bur den s of pro of on the same issue.

Third

, th ough it is somewhat dim guidance

, we l oo k t o the legislative history o f

the TPPC A to give context to how the pr ovis ion cam e into exi stence, and it does not

appear that the invalidi ty p rovisio n of Section 542.058(b) w as inclu ded to place a

burden on an i nsurer to pro ve that it was not li able in orde r to avoid a violation of

Section 542.058( a)

. Th i s supports o ur c on clusion tha t Section 542

. 0 58(b) ’ s invalidity

provisi o n meant s omethin g ot her tha n placing a burden o n the insurer that t o avo i d48 strict liabili ty if it paid the cla im outside S e ction 5 4 2 .05 8(a ) ’s sixty

- day deadline

, i t ha d

to prove that it was not liab le o n t h e c l aim

. 9

House Bill 2 in 1991 proposed enactment of S e ct i on 2 1.5 5 of the In surance

Code

, which is the pre decessor to the pre sent version of the TPPCA

. See Tex. H .B. 2

,

72 nd Le g

. , R.S . (1991 ) ; see al so Act of May 27, 19 91, 72nd Leg., R .S., c h. 24 2, § 11 .03,

199 1 Tex. Gen. Laws 9 3 9, 10 4 3

– 45 (o ri ginal ly codified as T ex

. I ns

. C ode A nn.

§ 21.55)

, amended by Act of May 20, 2003 , 7 8 th Leg., R.S. , ch. 1274, § 2, 2003 T ex.

G e n. L aws 3611

, 368 1

. T h e Ass ociation of Fire a nd Casualty Com pani es in T e xas

raised the f ollowi ng objectio n to adding the A ct ’ s pe nalt ies on top of alr eady exi sting

c auses o f action that p u nis h bad fait h and express ed the fear that the addition al

pena lties might force i nsu rers to pa y c laims that wer e no t valid :

Adding this additional penalt y a nd confu sion on top of current law s

co u ld di scourage insur ers f rom con t esting possible fraudulent or

9 W e r ecognize t hat leg islat ive h istory is not an appropriate aid to c ons true an unambiguous statu t e but cite the hist o ry to give c o ntext to how the inva lidi ty

p rovis ion of S ect io n 542

. 058(b) came into exist e nce

. Thi s limited use o f legislativ e history i s permis sible :

[ Legislati ve ] h i story may be appropriate to give context to o ur

constr uct ion. E.g.

, O jo v. Farmers [ Gr p

. ]

, Inc

. , 356 S.W.3d 421, 430 (Tex.

20 11) (r eferencing legislative histo ry to show that the Legislature was

aw are of the possibi l i ty of ne gati ve consequences of its l a nguage when it

drafted the statute at issue ) ; s ee also [] i d. at 436

– 48 (J efferson, C.J.

,

con c urr ing ) ( o bserving that the court ’ s use of legislative history did not depart from the general rule: “Wh en used in this con t extua l ma nne r, there is litt le re as o n to think legislative history inappropriate f o r citation [] ”).

F

ort Wo rt h Transp. Auth. v . Rod rigu ez , 54 7 S.W.3d 830, 8 44 n.6 (T ex. 201 8).49 questionable claims, i.e., such as arson, a nd could d is tr act f rom t he duty

of ins ur ers to pa y o nl y valid claims . T he Commit tee must be aware that

the ra te s insuran ce consumer s pa y could be adv e rsely affected if i nsure rs

are p aying too much i n claims d o ll a rs for either fraudulent or questionable cl aims becau se o f the thre at of bad f ait h.

T ex. H. Co mm

. o n Ins

. M in utes 14

, 72 nd Leg. , R.S. (Mar

. 4, 1991) (emphasis

added)

. 10

Wh en intr o duced, the bill contained th e fol low ing p rovi sion th at ga ve an

insurer gr ace from the Ac t ’ s de adlines when i t faced a potentially baseless clai m :

(b )(1 ) If suspicion o f [a] false cl aim or c riminal activity givi ng rise to the

claim results in the inst itution of a bona fide investigation o f the cl aim,

the co mpany shall pay the amoun t of the claim into an escrow account,

where it shall remain until the in ves t i gation is con cluded with no finding of culp ability on th e part of the insured or other c laimant or until a criminal verdict or civil s ettlemen t or jud gme nt is entered on the reco rd

of the case, whichever is later, except that the c ompany may at any ti me

p a y the claiman t. If the inv estigati on is co ncluded with no finding of culpability on the part of the ins ured or other claimant, or i f no crimi nal

char ges are preferred and no civ il suit f or [a] fal se claim [is] brought

with in a r easonable tim e as deter m ined by t he ru le of the boar d, or if a

crimi nal p rosecuti on arising from the claim is dis missed or results in acquitta l or results in a m istrial a nd is not ret ried, the money in the

escrow acc ount, including accrued interest, be comes the pro perty of t h e insured . If the investiga tion leads to cr imina l prosec ution which results

in convictio n or if in a civil su it a dec ision is reached in fav or of th e

co mpany u nder the burden of proof req uire ments of Articl e 21.58 of this code, the money in the escr ow ac c ount, inc ludin g accrued inte rest, becomes the pr opert y of the company.

Tex. H.B. 2 (introduc ed version) , 72 nd Leg

. , R.S. (1991). 11

10 The minutes can be found at the follow ing URL : https://lrl.te xas .gov/scanned/ legisCmte Minutes/houseCmtes/72

- 0/ Ins urance/ 0304

1 991 .pdf (last v is ited Dec. 11 , 202 0 ).50 A s the bill evo lved

, so di d the pro vis ion suspen ding the A c t ’ s deadlines whe n

the insurer had a basis to question t h e val idit y of a claim. T he House C o m m i t t e e ’ s

s u b s t i t u t e b i l l cont ained a provision that began to take the shape of what wou ld

evolve into S ection 542 .055 of t h e A ct

, w hic h cont ained the language t hat we

highlight t o address fraudul ent claim s:

S e c. 2. NO T ICE O F C L AIM. (a) Exc ept as provide d by Subsection (d) of this s e ctio n, an insurer shall, not la ter than t he 15th business day

after the rece ipt o f notice of a claim :

(1) acknowledge rece ipt of the cla i m; (2) commence any i nvestiga t ion o f the clai m ; (3) re quest f rom the claima nt all items, statement s, and

form s th at the insurer reasonably bel iev es will be required

fro m the claimant.

( b) I f the ac kno w l ed geme n t of the clai m is not made in w r iting

, the insure r shall make a record of the date, mean s, an d co nt ent of the

a cknowled g ement

.

(c) For pur poses of t his section, receipt of a notice of a claim by an agent of an insurer is the eq u ivale nt of re cei p t b y th e insurer, unl ess the agent no ti f ies t he claimant that the agent is not au thorized by the

i nsu rer to receive a n otice of a cla im.

(d) If an insur er h as a reasonable basis to believe th at the claimant has fra udulently caused or c o ntrib uted to the l os

s, b a sed on specif ic i nformation a va i lable for review by the departme nt, th e i nsurer is not r eq uir ed t o satisfy the requirem ent s o f Subsection (a) of th is s ect ion. The commissioner may adopt r ules requiring

an ins urer to submit a repo r t if an insur er d o es not satisfy the

r equi rements of S ub s ectio n (a) in acc ordance with th is sub s ec tion.

11 The text of the intro duced bi ll ca n be found at the f o llowing URL : https://lrl.texa s.gov/LASDOCS/72R/HB2/HB2 _72 R.pdf#page=1 94 (last vis ite d

Dec. 11 , 20 20).51 See Legi slati ve R eference Libra ry of Te xas, H

. B

. 2, 72nd Leg., R. S., House Comm.

Substitute, https://lrl.te xas.gov/LASDOCS/72R/HB2/HB2_72R.pdf#page=743

(em phasis a dded ) (last vi sited Dec. 11 , 2020)

.

T he H ouse C ommittee ’ s sub stitute bill also contained a S ectio n 3 ( e ) with in the

section tit le d “ A c ce ptance o r R e jectio n o f C laims

. ” Section 3(e) i ncluded a deadli ne

to acce pt or r eject a claim and except ed from it s dead lin e claim s t hat w ere i n litigatio n :

(e) Not later than t he 9 0th day after the date an insur er no tifi es a claimant under Su bsection (d ) of t hi s section, t he insure r s hall accept or rej ect the claim or sh all n otify t he claim ant of the reaso ns the i nsurer

n eed s addit i on al time. The insurer sh all n otify the claima nt a gain before the 90th day of eac h sub sequ ent 90

- day period duri ng which th e clai m is

not sett l e d

. The i nsu rer need not provi de the notice req ui red b y this subsecti on if the

claim is the s ubject of p e n ding arb itration o r litigatio n.

See i d. https://lrl.texas.gov/LASDOCS/72R/HB2/HB2_72R. pdf#p age= 745

(emphasis added) (l ast vis ited Dec. 11 , 2020).

I n turn, the a dopte d vers ion of the b ill de le ted the highligh ted S ection 2(d)

( dealing wi th cl aims the i ns ur er as ser te d were f rau dulent ) and th e highl ighted langu a ge

of S e ction 3 (e) (deali ng wi th cl aims i n litigation )

, left S ub section (a) and (b) o f

Section 2 intact, an d the n mel ded those pro vi s ions into what would eventuall y

b e come Section 54 2 .058 (a) and (b) of th e pr e s ent T PPCA :

( f) Exce pt as ot herwis e p r o vid ed , if an insu rer delays paym ent o f a clai m f

ollowing its receipt of all items, statements, and fo rms reasonabl y

reque s ted and require d, as pr ovided un de r Sec tion 2 [now sect ion 542.055] of t his arti cle, f or a pe r i od ex ceeding the per iod spec ified in

o t her a pplic able st atutes or, in t he ab sence of an y other specified perio d, for more than 60 days, the insurer shall pay dam ages and other items as provided f or in Section 6 of th is article.52 (g) If it i s de te rmi ne d a s a re sult of arbitra tion or litigatio n tha t a cla im

rece ived by an insu rer i s invali d a nd therefore should not be paid by the insurer, the r equirements o f Subsec tion (f) of thi s sec t io n shall n ot appl y in such case.

Act of May 27, 1 991, 72n d Le g. , R .S

., c h. 24 2, § 11 .03, 199 1 Tex. G en. Laws 9 3 9,

10 4 4 ( amended 2003 )

. The ado pt ed vers ion al s o ad ded the liabilit y p rovis ion that

even tually beca m e S ec ti on 542 .0 60 of t he prese nt TPPCA

. 12

T hi s e volut ion i s hardl y conclusive

. But th e evol u tion of the provis i o n gives a

context that points to a conclusi on tha t S ec tion 542 .058(b) was inten ded to deal with

t he insurance i nd ustry ’ s concern that the TPP CA would b e f orce d to pa y invalid

claims o ut of fea r of th e Act ’ s deadline s and pe nalt ies

. At the leas t, t he evol u tion

contains no indication t hat the legi slature in tend ed what would event ual ly become

S ec tion 542 .058(b) to cr e ate a m irror to the liabilit y prov i sion of S ectio n 5 42 .06 0.

4. We explai n h ow we int er pret S ection 542 .058(b ).

12 The Senate Committee R eport i ncluded a S ection 6 that would eventually

be co m e t he penal t y prov isi on fo und i n S ecti o n 54 2 .060 of the present T PPCA

. See Legislati ve Reference Library of Te xas, H

. B

. 2, 72nd Leg., R. S., Senate Committee Repor t, https://lr l.te xas.g ov/LASDOCS/72R/HB2/HB2_72R .pdf#page=1861 (las t
vi sited Dec. 14 , 2020)

. In the Sen ate C om mittee Report

, S ubsection (f) repeated t he language of th e penalty p r ovision and provide d that if the insurer exce eded the sixty

day dea dline

, “ the insurer sh all pa y the amount of the cla im ow ed a nd p a yable plus 18

percent per annum on t hat amou nt. The in surer shall also p ay the claim ant any

re asonable at torney fees ari sing fr om the claimant ’ s efforts to collect pa yment for the

cla im. ” Id. at https://lrl. texas.gov /LASDOCS/72R/HB2/HB2_72R.p df#page=1860 (last vis ited Dec. 14 , 2020)

. A S e nate Floor Am endm en t revi s ed the langua ge t o

pr o vide “ the insurer shal l pay d amages and other items as prov ided for in Se ction 6 of

this article

. ” Id. at https :// lrl.texas. gov/LASDO CS/72R/HB 2/HB2_72R.pdf #pag e =2066 (last vis ited Dec. 14 , 2020)

.53 Ba se d on t he lack of sy m metry b etween the liability concept of S ection 5 42 .060

and the invalidity found in S ect ion 542 .058 (b), we conc lude tha t it i s not a

harmonious readi ng of the Act to give t he later sect ion the expans ive read ing or the

r o le that the concurrence g iv es it

. 13 I n ou r v iew

, S ubsection 542 .058(b) ha s a place by

cl arifying that the sixty

- day dea dline in S e ction 542 .058(a) does not tr igger TP PCA

liability or a rea ding that once the sixty

- day dea dl ine ha s passed the ins urer ha s lost the

a bility to c halleng e th e cl a im i n ge ne r a l

. I n stead, the p assi ng of the sixty

- day deadline

does not impair t he in surer’s a bi lity to challenge t he c laim ’ s v alidity and to prov e tha t

it has no basis in fact.

To giv e S e ct ion 542 .058(b) the re ading given by the concurrence ap p ears to

giv e th e su b se c tion a pri ority th a t it does not warra nt

. W ith S ection 542 .060

es tabli sh ing the c ondit ions for liability of th e A ct and the supreme court ’ s seem ing

endorseme nt that there is a l i ability element for i mposing TPPCA da mag es, to read

S e ction 54 2 .0 5 8(b) as crea tin g a separate sta nda rd for TPPCA l iability gives it a

13 W e striv e to read the terms of a s tatute in harmony w ith t he other provi s ions

con tai n ed in the statu te:

“ But we wi l l not give an unde fine d s t a tutory term a meaning that i s out
of harm o ny or in consiste nt with other prov isions in the statute .” In re Hall , 286 S.W.3 d 925, 928

– 29 (Tex. 200 9) [(orig. proceeding )]

. “ [I]f a different, mo re lim i ted, or pr e cise defini tion is appar ent f rom the te rm ’ s

us e in the co ntext of the stat ut e, we apply that mea ning.” State v.
$1,760.00 in U.S. Currency , 406 S.W.3d 177 , 180 (T ex. 2 0 13) (per curiam).

H egar v . Am. Multi

- Cinem a , Inc. , 605 S.W.3d 35, 4 1 (Tex. 2 020)

.54 prominenc e in the A c t tha t seems inconsistent wit h its subordin ate position as an

except ion t o o ne of t he Act ’ s deadlin es

. 14

Indeed, th is incons istency is brought to the for e in the c oncu rrence ’ s a r gumen t

that if there is a S ection 542 .06 0 violation, it can only c ome f rom the fai lure to meet

t he Section 542

. 058 sixty

- day deadlin e

. 15 Ap plicat i on of this approach means tha t th e

primary liability standard of the Act fou nd i n S ecti on 542 .0 60 i s s ubo r din a ted to and

read out of th e Act because o f the language of Section 542 .0 58(b)

. 16

14 Barbara T ech nologies a lso left for anot her day its c on struction of th e words “ th e insurer s hall pay d amages and other items as provided by [ S ] ection 54 2 .060

, ” which is

t he co n cluding ph r ase of S ection 542 .058(a). 5 89 S.W.3d at 824; see T e x. Ins. C ode

Ann. § 542.058( a). W e do not read these w ords as having sig ni ficanc e i f our

p remise

— tha t payment of the a ppra isal awa rd does not trigge r the condition s for a

violation of S ection 54 2 .058

— is cor rect. The con dition that would implic ate the

refen ced pe n altie s has not occurred with t he payment of t he award.

15 The conc urrence a rgued

,

B ut as t he Co ur t agre es, [the ins ure r ] fu lly c omplied wi th the Act by

time ly acknowledg ing, inves tigating

, and reject ing the claim and providi ng its rea sons for rejecti ng. I f [the insure r ] was “not in

com pliance with” the Act, its on ly pos sibl e act of no n

- complia nce wo uld

be i ts failure to comply with [S] e ctio n

. 058 ’ s sixty

- da y payment deadline.

If [ the insu r e r ’ s ] only non

- compliance was wit h [ S] ection . 058, then that

s ecti on must cont ro l whether [the i nsu re r] owes inte rest and fees. And

a s expl ai n ed, [S] ect ion . 058 re quires [the insured ] t o pay int erest and f ees unle ss an arbit ration or litigat ion d etermine s that the c laim was invali d and

shou ld not hav e been paid.

B ar bara T e chs. , 589 S.W.3d at 839 (footn ote om itted)

.

16 W e do reject on e a rg um ent mad e b y Hom eown ers

. I t suggest s that the t rial

cour t ’ s summary ju dgment may be sustained because its origi nal loss assessment was reasonable in light o f the appr aisal award. Th e comp a rison process underl ying this55 VI

. Conclusion

Hom e own er s ’ n o

- evidence motion for summary judg ment challen ged Cra yto n

to prod uce a s cinti lla of evi denc e of a TPPCA violation. C ra yton argues h e di d so

wi th t he very evid ence t hat Ho meow ners r elie d on to support it s motio n b ecaus e th at

evid ence met his burden t o crea te a fact issue o n wh ether a TPPCA violation had

oc curred. It is C rayton’s view t hat th e payment of the appraisal award was made in a

w a y that H omeowners
, in essenc e , admitted that it s original rejection was in e rro r and

tha t th e am ount of the loss found by the apprai sal awar d should have be en paid

ar gument ha s its ori g in in B r eshears

, 155 S.W .3d at 34 5

, a nd has becom e a con st ruct
rel i ed on by the federal courts in dealing wi th TP PCA clai m s

. See Ma inali C orp. v.
Covi n

gton Specialty Ins

. , 872 F.3d 255 , 259 (5th Ci r. 201 7 ) (citing Breshears to suppor t the

state m ent “ [a] t a m inim um under tho se state court d ecis ions, t here is no s tatuto ry violation b eca use [the insurer ] made a pre [

- ] appra isal a ward that was und eniab ly

rea s onable ” )

. R e lying o n this proc ess both the fe deral c ourts and some T e xas courts
have l ook ed at prio r prec ede nt t o de ter mine w hat ra tio was found to be r easonable

a nd th en f ormulaically a pplied the ra tio to dete rmine if t he insurer’s pr e

- app raisa l

payme nt was rea sonable. See , e.g. , Lakeside FBBC , L P v. Eve r est Indem

. I n s

. Co.

, No. SA

17

- CV

- 49 1

- XR

, 2020 W L 1 814 4 05, a t *1 2 ( W .D. T ex. Apr

. 8, 2020) (order on motion

f

or summar y judgment) ; H inojos v . State Farm L loyds

, 569 S .W.3d 304, 313 ( Tex. App.

— El Paso 20 19, pe t. gran ted ) ( “ A ccord ingly, because [the i nsurer ] made a reasonable payment on [the insured ’ s ] claim within t he si xty

- day sta t utory l imi t

, t he

s ub sequent paym ent resul t ing from the appraisal process did not mea n [th e insurer ]

viol a ted the prompt payme nt dea dlines of the i nsur a nce co de. ” ).

W e reje ct thi s approach to TPPCA liability becau se we see no langua ge in t he

A ct t o support s uch an app ro ac h

. B a rbara T e c

h nologies quoted Bre she ars b u t en ded its quotati on b e for e the word s that other courts have rel ied o n t o der ive the rati o

s tanda rd, and the su preme c ourt ha s granted the petition for review in H in o jos

. See

Ba r bara T ech s

. , 5 8 9 S.W .3 d at 8 21

– 22 ( qu oting B res hea rs , 155 S.W .2d at 345

, but

de leting word s from th e quo t e that the insurer “ pro vided a rea s o n able payment within

a re asonable tim e ” )

. Furt her, t h e very prem ise of c omparing the or igi nal loss adjustment and th e appra isal is contrary to the dema rcation betwee n the two that we see in Barbara Tec h nologie s ’ ho l ding.56 within the deadli nes o f the TPPCA. F urth er , i n Crayton’s view, the j ury should

compare Hom e owner s ’ original loss assess ment an d the apprai sa l award to decide

whether H omeow ner s violat ed S ection 542 .060 beca use it was liable on the cla i m and

had fa iled to comply with the Act ’ s d eadlines o r had vi olat ed the Act because the

a ppra i sal p ayment w as m a de out si de S ection 542 .058(a ) ’ s sixty

- day deadl ine

.

W e do no t agree that Ho meown ers admitte d tha t its original rejec tion of the

claim was in error. T o the contrary , Ho meowners m ade its payment by noting th at it

was doing so “ [ i ] n accordance with the app r aisal aw ard .”

We als o ho l d that t o mee t the “ is l iable ” standar d of S ection 542

. 060(a) requir es

something other th an evidence of a dispar ity between t he origin al damag e

determina tio n an d the appraisal

. If we agreed with C rayton, we would be violatin g t h e

princ iple of Barbar a Tech nologies that con signs the adjudication of l i abili ty an d the

apprais a l process to separate a nd distinct roles.

F inally

, we d o not agree t hat the fac ts poin t t o a vi olation of S ect ion

542 .058(a) ’ s sixty

- day deadline f or payme nt o f claim , ei ther as a freest anding violati on

of th e T PPC A or as an event sho wi ng th at the in surer is no t in complian ce with the

A c t as requi red by S ectio n 542 .060(a). Sectio n 542

. 058( a) t ie s its vi olation to a failure

to comply with S ectio n 542 .055

. A s w e read B a rbara Tec h nol ogies

, the claim pro cess

desc ribed by S ection 542 .05 5 is divo rced from the appraisal process. T h us, the trigg er

for a S ection 542

. 058 violation is not p ulled by the payment of an appr ai sal award.

Nor do we agree with the concurre nce t h at on ly S ection 542 .05 8 c a n apply when an57 insurer rejects a claim and tha t th e c onsequence o f a construction holding ot her wise

re nders the invalid ity provis ion of S e ction 542 .0 58(b ) meaningless

.

W e overr ule Cr ayt on ’ s issue challenging the gr anting o f Ho meowne r s ’ no

evidenc e m oti on for sum mary judgment and do no t re ach his second issu e

chall enging the granting of t he t raditional mo t ion for su mmary j udgment

. Se e Tex. R.

App. P. 47.1. We affirm t he trial c ou rt ’ s ju dgment

.

/s/ Dabney Ba ssel

Dabne y Basse l J usti c e

Deli ve r ed: December 23 , 2020