Oral Argument Conditionally Requested

No. 07‐17‐00020‐CV

In The Court Of Appeals

For The Seventh District Of Texas

Amarillo, Texas

MAHMOUD ABDALLA

v.

FARMERS INSURANCE EXCHANGE

On	Appeal	From	the	153rd	Judicial	District	Court	

Tarrant	County,	Texas,	Cause	No.	153‐269720‐13

APPELLEE’S BRIEF

Scot	G.	Doyen	–	SBN	00792982	

sdoyen@ds‐lawyers.com

Alasdair	Roberts	–	SBN	24068541	

aroberts@ds‐lawyers.com

DOYEN	SEBESTA,	LTD.,	L.L.P.	

450	Gears	Road,	Suite	350	

Houston,	Texas	77067	

Telephone:	713‐580‐8900	

Facsimile:	713‐580‐8910	

ATTORNEYS FOR APPELLEE

FARMERS INSURANCE EXCHANGE

ACCEPTED

07-17-00020-CV

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

7/5/2017 4:12 PM

Vivian Long, Clerk

 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 7/5/2017 4:12:31 PM VIVIAN LONG CLERK
 ii 

TABLE OF CONTENTS

ISSUES PRESENTED .................................................................................................viii

STATEMENT OF FACTS ................................................................................................1

STANDARD OF REVIEW...............................................................................................6

ARGUMENT .................................................................................................................8

I. The Appraisal Award was not Rendered as the Result of Mistake or

Accident ...........................................................................................8

II. Timely Payment of the Appraisal Award Precludes Contractual

Liability......................................................................................... 14

III. Tendering Payment of an Appraisal Award Estops a Breach of

Contract Cause of Action Regardless of Whether Payment was

Accepted........................................................................................ 15

IV. Timely Payment of the Appraisal Award Precludes Chapter 542

Liability......................................................................................... 16

V. Timely Payment of the Appraisal Award and Lack of Independent

Injury Precludes Extra‐Contractual Liability............................ 19

CONCLUSION AND PRAYER.......................................................................................25
iii

TABLE OF AUTHORITIES

Cases

Amine v. Liberty Lloyds of Tex. Ins.,.		

No.	01‐06‐00396‐CV,	2007	WL2264477	(Tex.App.—Houston	[1st	Dist.]	

2007,	no	pet.)	....................................................................................................................	16,	17	

Anderson v. Am. Risk Ins. Co., Inc.,		

2016	WL3438243	(Tex.App.—Houston	[1st	Dist.]	2016,	no	pet.)	......................	20

Barnes v. Western Alliance Ins. Co.		

844	S.W.2d	264	(Tex.App.	—Fort	Worth	1992,	writ	dism'd	by	agr.)	.................	9	

Breshears v. State Farm Lloyds,		

155	S.W.3d	340	(Tex.App.—Corpus	Christi	2004,	pet.	denied)	.............	14,16,20	

City of Keller v. Wilson,	

168	S.W.3d	802	(Tex.	2005)	.................................................................................................	7	

Davis v. Nat. Lloyds Ins. Co.,		

484	S.W.3d	459	(Tex.App.—Houston	[1st	Dist.]	2015,	pet.	filed)	.......................	19	

Douglas v. State Farm Lloyds		

37	F.Supp.2d	532	(S.D.	Tex.	1999)...................................................................................	20

Fisch v. Transcon. Ins. Co.,	

356	S.W.2d	186	(Tex.	Civ.	App.	—Houston	1962,	writ	ref'd	n.r.e.)	....................	10	

Franco v. Slavonic Mut. Fire Ins.,	

154	S.W.3d	777	(Tex.App.—Houston	[14th	Dist.]	2004,	no	pet.)	......................	14	

Garcia v. Lloyds,		

514	S.W.3d	257	(Tex.App.—San	Antonio	2016,	pet.	

denied)	........................................................................................................	8,9,10,11,12,16,17	
iv

Gardner v. State Farm Lloyds,		

76	S.W.3d	140	(Tex.App.—Houston	[1st	Dist],	no	pet.)	..........................................	14	

In re Slavonic Mut. Fire Ins. Ass'n,		

308	S.W.3d	556	(Tex.App.—Houston	[14th	Dist]	2010,	no	pet.)	..................	16,17	

JM Walker LLC v. Acadia Ins. Co.		

No.	09‐10562,	2009	WL4884943	(5th	Cir.	Dec.	18,	2009)	...................................	12	

Mack Trucks, Inc. v. Tamez,		

206	S.W.3d	572	(Tex.	2006).	................................................................................................	7	

MLCSV10 v. Stateside Enter. Inc.,		

866	F.Supp.2d	691	(S.D.	Tex.	2012).................................................................................12

Nat. Security Fire & Cas. Co. v. Hurst,		

No.	14‐15‐00714‐CV,	2017	WL	2258243	(Tex.	App.—Houston	[14th	Dist.]	

2017,	no	pet.	h.)...................................................................................................	15,16,21,23	

Providence Lloyds Ins. Co. v. Crystal City Indep. Sch. Dist.,		

877	S.W.2d	872	(Tex.App.—San	Antonio	1994,	no	writ)	...........................	6,8,9,13

Republic Ins. v. Stoker,

903	S.W.2d	338	(Tex.	1995)	...............................................................................................	19

Scottish Union & Nat'l Ins. Co. v. Clancy,		

71	Tex.	5,	8	S.W.	630	(Tex.	1888)	.....................................................................................	14	

Spicewood Summit Office Condo. Ass'n, Inc. v. First Lloyd's Ins. Co.,

287	S.W.3d	461	(Tex.App.—Austin	2009,	pet.	denied)..........................................	20

Texas Mut. Ins. Co. v. Sara Care Child Care Ctr., Inc.,

324	S.W.3d	305	(Tex.App.—El	Paso 2010,	pet.	denied)	.........................................	20

Transp. Ins. Co. v. Moriel,

879	S.W.2d	10	(Tex.	1994)	..................................................................................................	19	
v

USAA Tex. Lloyds Co. v. Menchaca,

No.	14‐07121,	2017	WL1311752	(Tex.	2017).............................................. 20,22,23	

Valence Operating Co. v. Dorsett,		

164	S.W.3d	656	(Tex.	2005)	.................................................................................................	6	

Wells v. Am. States Preferred Ins. Co.,		

919	S.W.2d	679	(Tex.App.—Dallas	1996,	writ	denied)	..........................................	14	

Statutes

TEX. INS. CODE	§541.151	............................................................................................................	21	

TEX. INS. CODE	§542.056(a)	......................................................................................................18	

TEX. INS. CODE	§542.058	......................................................................................................17,18

TEX. INS. CODE	§542.060	............................................................................................................	18	

Rules

TEX. R. CIV. P. 166a(c)	...................................................................................................................	6	
vi

RECORD REFERENCES

CR2	 Clerk’s	Record	page	2	
 vii 

STATEMENT OF THE CASE

Nature of the Case: Property insurance suit filed by Plaintiff 

Mahmoud Abdalla against his insurer, 

Farmers Insurance Exchange, claiming 

damages after a water discharge event 

(CR5-23). Suit was filed prior to the 

completion of the appraisal process 

invoked by Plaintiff. 

Course of Proceedings: Defendant moved for summary 

judgment twice based on its timely 

payment of an appraisal award. The 

153rd Judicial District Court of Tarrant 

County, Texas, the Hon. Susan Heygood 

McCoy presiding, granted summary 

judgment after three hearings on the 

motion (CR305, 512, 641). 

Trial Court’s Disposition: The trial court granted summary 

judgment on the breach of contract cause 

of action on April 6, 2016 (CR305). 

Subsequently the trial court granted 

summary judgment on Plaintiff’s causes 

of action for breach of the common law 

duty of good faith and fair dealing and 

negligent misrepresentation on 

September 22, 2016 (CR512). The trial 

court granted summary judgment on all 

remaining causes of action and awarded 

Defendant costs of court in the amount of 

$1,276.10 on December 5, 2016 (CR641). 
 viii 

ISSUES PRESENTED

Whether the trial court erred in refusing to vacate the appraisal 

award. 

Whether the trial court erred in granting Appellee’s motion for 

summary judgment. 

STATEMENT REGARDING ORAL ARGUMENT

 Appellee believes this case can be decided on the briefs without oral 

argument. Nevertheless, Appellee would be pleased to present oral 

argument should the Court request it. 
 1 

STATEMENT OF FACTS

Appellant	 was	 insured	 under	 a	 Business	 Owners	 Policy	 issued	 by	

Appellee	 (CR334‐453).	 The	 policy	 also	 includes	 an	 appraisal	 clause,	 which	

was	 invoked	 by	 the	 Appellant	 when	 a	 disagreement	 arose	 over	 the	 dollar	

amount	of	damages	 to	 the	property	(CR465‐66).		The	appraisal	clause	is	as	

follows:	

(Tab A, CR438‐439)	

On	 February	 21,	 2012	 the	 Appellant,	 Mahmoud	 Abdalla,	 suffered	 a

water	leak	at	his	tire	warehouse	in	Arlington,	Texas	(CR459).		An	insurance	

claim	was	reported	 to	Appellee	 that	same	day	 (CR459).		Appellee	assigned	
 2 

the	 claim	 to	 an	 adjuster	 named	 Tonya	 Stillwell	 who	 proceeded	 with	

investigation	of	the	claim	(CR459).	

Over	 the	 course	 of	 Appellee’s	 investigation	 it	 issued	 $264,829.29	 in	

payments	to	Appellant	for	covered	losses	at	the	property	(Tab C, CR468).			

On	 March	 28,	 2013,	 Appellant	 invoked	 the	 appraisal	 process	 and	

designated	 Tony	 Siahpush	 as	 his	 appraiser	 (CR465).	 	 Appellee	 designated	

Kyle	 Albright	 as	 its	 appraiser	 (Tab C, CR468).	 	 Relevant	 dates	 following	

invocation	of	appraisal	are	as	follows:	

1. Appellant	filed	the	instant	lawsuit	on	December	19,	2013	(CR5‐23);	

2. Appellee	answered	the	lawsuit	on	January	12,	2014	(CR24‐26);	

3. On	 May	 30,	 2014	 the	 trial	 court	 conducted	 a	 conference	 with	 the

attorneys	regarding	resolution	of	the	case	and	on	July	2,	2014	issued	

an	order	appointing	Judge	Charles	Bleil	as	the	umpire	(CR642);	

4. On	October	8,	2014	Judge	Bleil	issued	his	“Award	of	Umpire”	(Tab B,

CR27‐29).	

Judge	Bleil’s	award	reflects	that	both	sides’	appraisers	had	completed	

their	 assignments,	 and	 that	 he	 was	 submitting	 his	 award	 to	 conclude	 the	

appraisal	process	(Tab B, CR27).		The	award	attached	the	“Appraisal	Award”	

(“Award”)	prepared	by	Appellee’s	appraiser,	Kyle	Albright,	and	stated:	
 3 

This	 appraisal	 is	 evidenced	 by	 the	 document	 attached	 to	 this	

award.			

It	is	the	Umpire’s	considered	opinion	that	the	Albright	appraisal	

of	 an	 actual	 cash	 value	 loss	 amount	 of	 $345,664.21	 (three	

hundred	 forty‐five	 thousand,	six	hundred	sixty‐four	dollars	and

twenty‐once	 cents)	 is	 the	 more	 sound	 and	 well	 supported	

appraisal.	 	 Accordingly,	 the	 Umpire	 hereby	 award	 the	 sum	 of	

money	 to	 make	 whole	 the	 damages	 caused	 to	 the	 subject	

property.	

(Tab B, CR27‐28).	

The	Award	of	Umpire	was	signed	by	Judge	Bleil	and	Mr.	Albright,	which	made	

the	award	binding	per	the	terms	of	the	policy	(Tab A, CR438‐439).	

On	October	15,	2014,	seven	days	after	the	Award	of	Umpire	was	issued,	

Appellee	 tendered	 payment	 to	 Plaintiff	 for	 $76,125.81	 (building	 coverage)	

and	 $5,855.98	 (business	 personal	 property	 coverage)	 which	 reflected	 the	

actual	 cash	 value	 amounts	 owed	 under	 the	 Award	 of	 Umpire	 less	

depreciation,	policy	deductible,	and	prior	payments	(Tab C, CR468‐470).		The	

letter	 accompanying	 the	 payments	 provided	 the	 following	 concise

breakdown	of	the	amounts	tendered:		
 4 

(Tab C, CR468)	

	 The	 deadline	 under	 the	 insurance	 policy	 for	 Appellee	 to	 pay	 an

appraisal	award	is	five	business	days	after	an	appraisal	award	has	been	made	

(Tab A, CR440).		Payment	was	timely	tendered	per	the	terms	of	the	policy,	as

seven	days	cannot	elapse	with	more	than	five	business	days	elapsing	within	

the	same	time	period.	

	 Dissatisfied	 with	 the	 award,	 Appellant	 moved	 for	 vacation	 of	 the	

appraisal	award	of	October	27,	2014	on	the	basis	that	the	Award	of	Umpire	

was	a	product	of	mistake	(CR30‐37).		The	trial	court	entertained	the	motion	

and	denied	it	on	April	6,	2016	(CR304).	

	 Having	 satisfied	 its	 duties	 to	 Appellant	 under	 the	 Policy,	 Appellee	

moved	 for	 summary	 judgment	 on	 October	 21,	 2015	 and	 argued	 that	 the	
 5 

timely	payment	of	the	Award	meant	there	was	no	genuine	issue	of	material	

fact	on	Plaintiff’s	causes	of	action	for	breach	of	contract,	breach	of	the	duty	

of	good	faith	and	fair	dealing,	and	violations	of	Chapters	541	and	542	of	the	

Texas	 Insurance	 Code	 (CR50‐201).	 	 The	 trial	 court	 granted	 summary	

judgment	on	Appellee’s	breach	of	contract	cause	of	action	on	April	6,	2016	

and	 re‐opened	 discovery	 with	 regard	 to	 the	 extra‐contractual	 causes	 of	

action	(CR305).	

	 Following	 the	 trial	 court’s	 April	 6,	 2016	 rulings,	 Mr.	 Abdallah	 was	

presented	for	deposition	and	testified	that	he	was	only	seeking	damages	for	

amounts	 owed	 under	 the	 insurance	 contract	 (CR504).	 	 Having	 established	

that	there	was	no	independent	injury	to	Appellant	that	would	serve	as	a	basis	

for	his	extra‐contractual	causes	of	action,	Appellee	again	asserted	a	motion	

for	summary	judgment	on	all	remaining	causes	of	action	(CR312‐506).	

	 On	 August	 25,	 2016	 a	 hearing	 was	 held	 on	 Appellee’s	 motion	 for

summary	 judgment	 and	 the	 Court	 issued	 an	 order	 granting	 summary

judgment	on	Appellee’s	causes	of	action	for	breach	of	the	duty	of	good	faith	

and	 fair	 dealing	 and	 negligent	 misrepresentation	 (CR512).	 	 At	 the	 same	

hearing,	 the	 trial	 court	 withheld	 ruling	 on	 the	 remaining	 causes	 of	 action	

until	Tonya	Stillwell,	Appellee’s	claims	adjuster,	could	be	deposed	(CR643).	
 6 

	 Ms.	Stillwell	was	presented	for	deposition	on	September	15,	2016,	and	

Appellee	reset	its	motion	 for	summary	judgment	 for	hearing	on	November	

11,	 2016	 (CR527‐49).	 	 The	 trial	 court	 granted	 summary	 judgment	 on	 all	

remaining	 causes	 of	 action	 and	 on	 December	 5,	 2016	 the	 Court	 rendered	

judgment	that	Appellant	take	nothing	and	that	Appellee	recover	its	costs	of	

court	in	the	amount	of	$1,276.10	(CR641).	

STANDARD OF REVIEW

 When examining an appraisal award every reasonable presumption 

will be indulged to sustain the award. Providence Lloyds Ins. Co. v. Crystal City

Indep. Sch. Dist.,	877	S.W.2d	872,	875	(Tex.App.—San	Antonio	1994,	no	writ).		

An	award	entered	by	the	umpire	and	appraisers	can	only	be	disregarded	if:	(1)	

the	award	was	made	without	authority;	(2)	the	award	was	issued	as	a	result	of	

fraud,	 accident,	 or	 mistake;	 or	 (3)	 the	 award	 was	 not	 made	 in	 substantial	

compliance	with	the	terms	of	the	policy.	Id. at	875‐76.

The trial court’s summary judgment is reviewed de novo. Valence 

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). On its traditional 

motion for summary judgment, Appellee must show that there is no 

genuine issue of material fact and that it is entitled to judgment as a matter 

of law. Tex. R. Civ. P. 166a(c). 
 7 

A no evidence motion for summary judgment is functionally identical 

to a motion for directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 

581 (Tex. 2006). Appellate courts view the evidence in the light most 

favorable to the non-movant, but do not disregard evidence that supports 

the motion. See City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). 

SUMMARY OF ARGUMENT

 

 The trial court properly denied the motion to vacate the appraisal 

award, then properly granted summary judgment on the causes of action 

asserted by the Appellant.

	 The	Appellant	invoked	the	appraisal	provision	of	his	policy,	the	Award	

of	 Umpire	 was	 not	 the	 result	 of	 mistake,	 accident,	 or	 fraud,	 and	 Appellee	

promptly	 and	 timely	 tendered	 payment	 of	 the	 amount	 owed.	 	 The	 timely	

payment	of	the	Award	precludes	liability	under	the	contract	and	established	

that	Appellant	 had	 no	 further	 right	 to	 recovery	 of	 policy	 benefits.	Without	

any	further	right	to	policy	benefits,	Appellant	has	no	independent	injury	to	

serve	as	a	basis	for	damages	under	extra	contractual	causes	of	action.			

	 The	evidence	submitted	by	Appellee	to	the	trial	court	shows	that	there	

was	no	genuine	issue	of	material	fact	as	to	whether	it	failed	to	timely	tender	
 8 

payment	of	the	Award,	or	whether	Appellant	suffered	an	independent	injury	

that	would	support	extra‐contractual	causes	of	action.	

	 Alternatively,	 the	 evidence	 submitted	 to	 the	 trial	 court	 by	 Appellant	

was	legally	and	factually	insufficient	to	support	a	breach	of	contract,	or	extra‐

contractual	causes	of	action.	

	 The	judgment	of	the	trial	court	must	be	affirmed.	

ARGUMENT

I. The Appraisal Award was not Rendered as the Result of Mistake

or Accident

An	appraisal	award	made	pursuant	 to	 the	provisions	of	an	insurance	

policy	 is	 binding	 and	 enforceable.	 Garcia v. Lloyds,	 514	 S.W.3d	 257,	 264	

(Tex.App.—San	Antonio	2016,	pet.	denied);	Providence,	877	S.W.2d	at	875.		The	

burden	to	set	aside	an	appraisal	award	lies	squarely	upon	the	Appellant.		Garcia,	

514	S.W.3d	at	264‐65.		There	are	three	grounds	upon	which	an	appraisal	award	

can	be	set	aside:	

1. The	award	was	made	without	authority;	

2. The	award	was	made	as	the	result	of	fraud,	accident,	or	mistake;	or	
 9 

3. The	award	was	not	made	in	compliance	with	the	requirements	of	the	

policy.	

Id. at	265;	Providence,	877	S.W.2d	at	875‐76.	

	 Appellant	argues	that	the	Award	is	the	result	of	mistake	or	an	accident.		

The	law	in	Texas	is	clear	that	an	appraisal	award	may	only	be	set	aside	on	the	

basis	of	accident	or	mistake	“upon	a	showing	that	the	award	does	not	speak	the	

intention	 of	 the	 appraisers.”	 	 Garcia,	 514	 S.W.3d	 at	 269	 (internal citations

omitted).		Mistake	is	further	defined	as	“a	situation	where	the	appraisers	and	

umpire	were	laboring	under	a	mistake	of	fact	by	which	their	appraisal	award	

was	made	to	operate	in	a	way	they	did	not	intend,	such	that	the	award	does	not	

speak	the	intention	of	the	appraisers	and	umpire...”		Barnes v. Western Alliance

Ins. Co.,	844	S.W.2d	264,	268	(Tex.App.—Fort	Worth	1992,	writ	dism’d	by	agr.).			

Appellant	 has	 offered	 no	 evidence	 that	 the	 Award	 failed	 to	 reflect	 the	

intent	of	the	appraisers	or	the	umpire.		Appellant	relied	predominantly	on	the	

Affidavit	 of	Max	 Judge	which	 detailed	 differences	 between	 his	 appraisal	and	

that	of	Mr.	Albright’s,	but	wholly	failed	to	identify	the	intent	of	the	appraisers	

or	the	umpire.	(CR39‐41).		The	intent	of	Judge	Bleil	and	Appellee’s	appraiser	is	

clear	in	the	Award,	and	the	Award	was	consistent	with	that	intent:	
 10 

It	is	the	Umpire’s	considered	opinion	that	the	Albright	appraisal	

of	 an	 actual	 cash	 value	 loss	 amount	 of	 $345,664.21	 (three	

hundred	 forty‐five	 thousand,	six	hundred	sixty‐four	dollars	and

twenty‐once	 cents)	 is	 the	 more	 sound	 and	 well	 supported	

appraisal.	 	 Accordingly,	 the	 Umpire	 hereby	 award	 the	 sum	 of	

money	 to	 make	 whole	 the	 damages	 caused	 to	 the	 subject	

property.	

(Tab B, CR27‐28).	

The	law	recognizes	that	mere	disagreements	between	the	appraisers	and	the	

umpire	do	not	mean	the	Award	was	the	result	of	mistake	or	accident,	and	that	

a	decision	by	an	umpire	 to	use	one	estimate	over	another	does	not	establish	

mistake	or	accident.	See Garcia,	514	S.W.3d	at	270.		

The	 affidavit	 takes	 issue	 with	 Defendant’s	 appraiser’s	 method	 of	

calculating	demolition	and	excavation	activities	(CR33, 39‐40,	Appellant Br. 12).	

The	affidavit	also	states	“I	believe	I	have	adequately	address	[sic]	the	issue	of	

erosion	in	my	estimate	and	I	don’t	believe	Mr.	Albright	did.”	(CR33, 40,	Appellant

Br. 12).		The	Policy	requires	the	appraisers	to	submit	their	differences to	the	

umpire,	so	in	instances	where	an	umpire	is	appointed	a	disagreement	between	

the	 appraisers	 is	 a	 necessity.	 	 In	 fact,	 the	 whole	 purpose	 of	 the	 Court’s	

appointment	of	an	Umpire	is	to	resolve	disagreements	between	the	respective	

appraisers.	Fisch v. Transcon. Ins. Co.,	 356	S.W.2d	 186,	 189	 (Tex.	 Civ.	App.—

Houston	1962,	writ	ref’d	n.r.e.).		If	appraisers	did	not	fail	to	agree,	there	would	

be	nothing	 to	submit	 to	 the	umpire	and	nothing	upon	which	he	could	act.	Id.		
11

Appellant’s	argument	that	disagreement	between	the	appraisers	constitutes	a	

mistake	contradicts	the	purpose	of	appointing	an	umpire.	

The	 Affidavit	 argues	 that	 the	 Award	 improperly	 relies	 upon	 an	

engineering	report	created	by	Rimkus	Engineering	and	disregards	the	findings	

of	an	engineering	report	prepared	by	Syntec.	(CR32, 39‐40,	Appellant Br. 11).		

The	Garcia court	examined	the	issue	of	whether	a	difference	in	scope	between	

an	appraisal	award	and	pre‐appraisal	estimates	is	evidence	the	award	does	not	

reflect	the	appraiser’s	intent	and	held	that	the	policy’s	appraisal	clause	did	not	

specify	the	manner	in	which	the	appraisers	were	to	set	the	amount	of	loss	nor	

did	it	require	the	appraisers	to	rely	on	or	refer	to	prior	damage	estimates.		See

Garcia,	514	S.W.3d	at	266‐67.		The	same	logic	applies	here.		There	is	nothing	in	

the	 Policy’s	 appraisal	 clause	 that	 dictates	 the	 method	 the	 appraisers	 and	

umpire	should	employ	in	determining	the	amount	of	the	loss,	nor	is	there	an	

instruction	 to	 consider	 or	 disregard	 estimates	 or	 engineering	 reports	

previously	created	by	either	side	(Tab A, CR438‐439).		Like	 the	appraisers	in	

Garcia,	 Judge	Bleil’s	decision	 to	adopt	 or	disregard	portions	of	an	engineer’s	

report	does	not	mean	his	Award	was	rendered	as	the	result	of	an	accident	or	

mistake.	
 12 

Plaintiff’s	 argument	 that	 an	 umpire’s	 decision	 to	 adopt	 the	

recommendations	 from	 one	 appraiser	 over	 another	 constitutes	 mistake	 is	

nonsensical.	 The	 MLCSV10	 court	 confronted	 whether	 an	 appraisal	 award	

should	be	set	aside	on	the	basis	of	mistake	when	one	appraiser’s	estimate	was	

allegedly	 not	 based	 upon	 a	 reliable	 methodology	 and	 whether	 the	 umpire’s	

selection	 of	 one	appraiser’s	estimate	 over	another	 constituted	mistake.	 	 The	

court	determined	that:	

An	 umpire	 must	 often	 choose	 between	 two	 competing	 values.	

McCool's	 [the	 umpire’s]	 decision	 to	 use	 Lochridge's	 [one	

appraiser’s]	 estimates	 rather	 than	Haden's	 [the	 other	 appraiser]	

does	not	mean	that	the	appraisal	award	resulted	from	accident	or	

mistake.			

Garcia,	 514	 S.W.3d	 at	 269	 (quoting	 MLCSV10 v. Stateside Enter., Inc., 866	 F.	

Supp.	2d 691,	702	(S.D.	Tex.	2012).	

Similarly,	in	JM Walker,	 the	 court	 determined	 that	 a	 difference	in	 roof	

measurements	did	not	constitute	a	mistake	because	 the	insured	provided	no	

evidence	that	the	award	did	not	speak	to	the	umpire’s	intent.		JM Walker LLC. v.

Acadia Ins. Co.,	No.	09‐10562,	2009	WL4884943,	at	*746‐47	(5th	Cir.	Dec.	18,	

2009).	 	 The	 Court	 stated,	 “[a]n	 umpire	 often	 must	 choose	 between	 two	

competing	values,	and	LaFluer’s	decision	to	go	with	Gillespie’s	measurement,	

rather	than	Austin’s	does	not	mean	his	award	was	premised	on	a	mistake.”	Id.	

The	 facts	in	 this	particular	case	are	even	less	compelling	because	 there	isn’t	
 13 

even	an	allegation	 of	a	 disagreement	 regarding	 an	 objectively	 verifiable	 fact	

(such	as	a	roof	measurement).	In	the	present	case,	there	was	purely	a	difference	

of	 opinion	 between	 the	 appraisers	 that	 was	 resolved	 by	 the	 umpire.	 This	is	

exactly	how	the	appraisal	process	is	designed	to	work.	

	 The	points	raised	by	Appellant	exhibit	no	more	than	a	dispute	between	

his	own	appraiser	and	the	Appellee’s	appraiser	and	the	Umpire	concerning	the	

value	of	damages	to	the	property	based	on	the	reliance	of	certain	evidence	at	

the	expense	of	other	evidence.		This	is	not	evidence	of	mistake	or	accident	in	

the	 appraisal	 process,	 the	 Award	 is	 clear	 as	 to	 the	 intent	 of	 Judge	 Bleil,	 he	

considered	 Mr.	 Albright’s	 appraisal	 to	 be	 a	 sounder	 and	 better	 supported	

appraisal	and	the	Award	issued	was	consistent	with	that	decision.		Appellant	

has	 not	 carried	 his	 burden	 to	 set	 aside	 the	 appraisal	 award	 because	 he	 has	

presented	 no	 evidence	 of	 mistake,	 accident,	 or	 contrary	 intent.	 Every	

reasonable	 presumption	will	 be	indulged	 to	 sustain	 the	 Award,	 and	 there	is	

ample	evidence	showing	the	Award	reflected	the	intent	of	Judge	Bleil	(Tab B,

CR27‐29).	Providence,	877	S.W.2d	at	875.	Therefore,	the	Trial	Court	was	correct	

in	denying	the	motion	to	vacate	the	appraisal	award.	
 14 

II. Timely Payment of the Appraisal Award Precludes Contractual

Liability

When	 an	 insurer	 participates	 in	 the	 appraisal	 process	 and	 pays	 the	

amount	 set	 by	 the	 appraisers	 and	 umpire	 there	 is	 no	 breach	 of	 contract.	

Breshears v. State Farm Lloyds,	155	S.W.3d	340,	344	(Tex.App.—Corpus	Christi	

2004,	 pet.	 denied);	 Franco v. Slavonic Mut. Fire Ins.,	 154	 S.W.3d	 777,	 787	

(Tex.App.—Houston	 [14th	 Dist.]	 2004,	 no	 pet.).	 That	 is	 because	the	 policy’s	

appraisal	provision	estops	a	party	 from	contesting	 the	issue	of	damages	in	a	

breach	of	contract	dispute	leaving	only	a	liability	question	for	the	court.	Scottish

Union & Nat’l Ins. Co. v. Clancy,	71	Tex.	5,	8	S.W.	630,	631	(1888);	Wells v. Am.

States Preferred Ins. Co.,	919	S.W.2d	679,	683‐84	(Tex.App.—Dallas	1996,	writ	

denied)(internal	 citations	 omitted);	 et al.	 Under	 Texas	 law,	 a	 contract	 claim	

does	not	survive	the	insurer's	payment	of	an	appraisal	award.		For	instance,	in	

Franco, the	insureds	alleged	after	invoking	appraisal	that	the	insurer’s	payment	

of	the	appraisal	award	did	not	defeat	their	breach	of	contract	cause	of	action.	

Franco,	154	S.W.3d	at	786. The	appellate	court	disagreed,	holding	that	because	

the	 insurer	 paid	 the	 appraisal	 award,	 the	 insureds	 were	 estopped	 from	

maintaining	a	breach	of	contract	claim	against	the	insurer.	Id.; see also Gardner

v. State Farm Lloyds,	 76	 S.W.3d	 140,	 143‐44	 (Tex.App.—Houston	 [1st	 Dist.]	
 15 

2002,	 no	 pet.).	Simply	 put,	 compliance	with	 the	 contractual	appraisal	award	

negates	any	claim	for	breach	of	contract	as	a	matter	of	law.			

Like	 the	 insurer	 in	 Franco,	 Farmers	 fully	 participated	 in	 the	 appraisal	

process	and	timely	tendered	payment	of	the	Award	(Tab B, CR27‐29,	Tab C, 468‐

473).				There	is	no	genuine	issue	of	material	fact	as	to	whether	payment	was	

tendered,	or	whether	the	tender	was	timely.		The	record	shows	that	the	Award	

was	dated	October	8,	2014	and	payment	was	 tendered	 on	October	15,	2014	

(Tab B, CR27‐29,	 Tab C 468‐473).	 	 Appellant	 did	 not	 address	 the	 breach	 of	

contract	cause	of	action	other	than	to	argue	that	the	award	should	be	vacated	

due	to	accident	or	mistake.	Appellant Br. 14. Viewing	the	evidence	in	the	light	

most	 favorable	 to	Appellant	 does	 not	 create	a	genuine	issue	 of	material	 fact	

because	it	is	undisputed	that	Appellee	fully	participated	in	and	timely	tendered	

payment	of	the	Award	(Tab B, CR27‐29,	Tab C 468‐473).		

III. Tendering Payment of an Appraisal Award Estops a Breach of

Contract Cause of Action Regardless of Whether Payment was

Accepted

Even	when	an	insured	does	not	accept	payment	of	an	appraisal	award,	

tender	of	the	amount	owed	pursuant	to	the	conditions	of	the	appraisal	clause	

estops	 an	 insured	 from	 asserting	 a	 breach	 of	 contract	 cause	 of	 action.	 	Nat.

Security Fire & Cas. Co. v. Hurst,	 ‐‐S.W.3d‐‐,	 No.	 14‐15‐00714‐CV,	 2017	 WL	
 16 

2258243	 *3‐4	 (Tex.App.—Houston	 [14th	 Dist.]	 2017,	 no	 pet.	 h.).	 (internal	

citations	omitted);	See Garcia,	514	S.W.3d	at	271.	In	response	to	Appellee’s	first	

motion	for	summary	judgment,	Appellant	argued	that	the	Award	needed	to	be	

vacated	and	that	he	had	not	negotiated	the	payment	tendered	(CR229).		But	the	

law	is	clear	that	payment	does	not	have	to	be	accepted	to	preclude	a	breach	of	

contract	 cause	 of	 action.	 Id. Further,	 Appellant	 introduced	 no	 evidence	 of	

mistake	or	accident	that	justifies	the	vacation	of	the	Award.	

		Accordingly,	as	a	matter	of	law,	there	is	no	breach	of	contract,	and	the	

Trial	Court’s	summary	judgment	on	Appellant’s	breach	of	contract	claim	was	

properly	rendered.	

IV. Timely Payment of the Appraisal Award Precludes Chapter 542

Liability

Full	and	timely	payment	of	an	appraisal	award	precludes	liability	under	

Chapter	542.1		There	is	no	provision	in	Chapter	542	that	establishes	a	deadline	

for	payment	of	an	appraisal	award.		In re Slavonic,	308	S.W.3d	at	563,	n.5.		In	

Breshears	 the	 payment	 of	 the	appraisal	award	was	 tendered	 “[w]ithin	 thirty	

                                                            

1 In re Slavonic Mut. Fire Ins. Ass'n,	308	S.W.3d	556,	563‐64	(Tex.	App.—Houston	[14th	Dist.]	

2010,	no	pet.));	See Amine v. Liberty Lloyds of Tex. Ins. Co.,	No.	01–06–00396–CV,	2007	WL	

2264477,	*4	(Tex.App.‐Houston.	[1st	Dist.]	Aug.	9,	2007,	no	pet.)	(mem.	op.)	(holding	that	

where	insurer	makes	timely	payment	pursuant	to	an	appraisal	award,	there	is	no	violation	

of	the	code's	prompt	payment	deadlines);	and	Breshears,	155	S.W.3d	at	344–45	(holding	that	

insurer	did	not	breach	contract	and	insureds	were	not	entitled	to	payment	of	penalty,	even	

though	final	payment	was	delayed	until	completion	of	appraisal	process).
 17 

days”	of	the	umpire’s	decision	and	the	Court	found	no	basis	for	extending	542	

liability	 to	 the	 insurer.	 Breshears,	 155	 S.W.3d	 at	 342,	 344‐45.	 In	 Hurst,	 the	

insurer	tendered	payment	of	the	appraisal	award	30	days	after	the	issuance	of	

the	award	and	 the	 Court	 held	 that	 the	 payment	was	issued	 “well	within	 the	

timeliness	requirements	of	section	542.058.”		Hurst, 2017	WL	2258243	at	*5.

The	Amine Court	 considered	whether	 there	was	any	 violation	 of	 the	prompt	

payment	 of	 claims	 act	 and	 adopted	 the	 reasoning	 of	 the	 Breshears Court	 in	

holding	 that	 timely	 payment	 of	 an	 appraisal	 award	 precludes	 an	 award	 of	

penalty	interest	as	a	matter	of	law.		Amine,	2007	WL	2264477	at *4.		In	Garcia,

the	insured	argued	on	appeal	that	notwithstanding	a	valid	appraisal	award,	an	

insurer	 should	 still	 be	 liable	 for	 prompt	 payment	 of	 claims	 violations	 that	

occurred	before	the	appraisal	clause	was	invoked.	Garcia,	514	S.W.3d	at	274.		

The	Garcia Court	rejected	this	argument	and	relied	on	In re Slavonic,	Breshears,	

et	al.	in	holding	that	timely	payment	of	an	appraisal	award	precludes	imposition	

of	penalties	under	Chapter	542.		Id. at	275	(internal	citations	omitted).	

Even	if	the	law	dictated	that	an	insurer	could	be	liable	under	Chapter	542	

for	 violations	 that	 occurred	 prior	 to	 the	 invocation	 of	 appraisal,	 Appellant	

would	not	be	liable	in	this	case.		Appellant	argues	that	Appellee	did	not	accept	

or	reject	the	claim	until	March	20,	2012	which	was	greater	than	15	business	
 18 

days	 after	 the	 claim	 was	 reported	 on	 February	 22,	 2012.	 	 Appellant Br.	 19.		

However,	 Appellant	 ignores	 that	 the	 15	 business	 day	 deadline	 to	 accept	 or	

reject	a	claim	does	not	arise	until	after	the	insurer	has	“all	items,	statements	

and	forms	required	by	the	insurer	to	secure	final	proof	of	loss.”		Tex. Ins. Code

§542.056(a).		Appellant	has	entered	no	evidence	into	the	record	to	establish	the	

date	Appellant	received	the	necessary	information	to	secure	final	proof	of	loss.			

Ms.	 Stillwell	 testified	 in	 her	 deposition	 that	 the	 date	 Appellant	 received	 all	

items,	 statements,	 and	 forms	 required	 to	 secure	 final	 proof	 of	 loss	 was	 on	

October	 9,	 2014	 when	 the	 Award	 was	 received	 by	 Appellant	 (CR547).2		

Therefore,	the	15	business	day	period	under	Section	542.056	and	the	60	day	

time	period	under	Section	542.058	of	Chapter	542	did	not	begin	running	until	

October	9,	2014	and	payment	was	then	tendered	six	days	later	(Tab B, CR27‐

29,	Tab C, and CR468‐473).		Tex. Ins. Code §542.056(a)	and	§542.058.		Therefore,	

liability	and	a	right	to	damages	under	Section	542.060	would	not	arise	even	if	

appraisal	had	not	been	invoked.		Tex. Ins. Code §542.060.	There	is	no	evidence	

in	the	record	that	Appellee	can	rely	on	to	create	a	genuine	issue	of	material	fact	

                                                            

2

 This evidence was presented to the trial court by Appellant in its Reply to Plaintiff’s Amended 

Response to Defendant Farmers Insurance Exchange’s Motion for Summary Judgment (CR636-

638). 
19

as	to	whether	October	9,	2014	was	the	date	upon	which	Appellant	had	secured	

final	proof	of	loss	and	could	accept	the	claim	and	issue	payment.	

	Upon	the	issuance	of	the	Award	of	Umpire,	Defendant	tendered	payment	

of	 the	award	seven	days	later	 (Tab B, CR27‐29,	Tab C, and CR468‐473).		As	a	

matter	of	law,	there	is	no	Chapter	542	liability	because	Appellee	timely	paid	the	

Award	and	there	is	no	evidence	in	the	record	that	Appellee	can	point	to	that	

creates	a	genuine	issue	of	material	fact	as	to	the	timeliness	of	payment.			

V. Timely Payment of the Appraisal Award and Lack of Independent

Injury Precludes Extra‐Contractual Liability

There	can	be	no	claim	for	bad	faith	absent	a	breach	of	the	underlying	

insurance	contract.	See	Republic Ins. Co. v. Stoker,	903	S.W.2d	338,	341	(Tex.	

1995);	Davis v. Nat. Lloyds Ins. Co.,	484	S.W.3d	459,	474	(Tex.App.	–	Houston	

[1st	Dist.]	2015,	pet.	filed).		Further,	for	conduct	to	evolve	from	a	mere	breach	

of	contract	to	bad	faith,	the	breach	of	contract	has	to	be	accompanied	by	an	

independent	 tort.	 Transp. Ins. Co. v. Moriel,	 879	 S.W.2d	 10,	 17	 (Tex.1994).	

When	a	plaintiff	“joins	claims	under	the	Texas	Insurance	Code	and	DTPA	with	

a	bad	faith	claim,	all	asserting	a	wrongful	denial	of	policy	benefits,	if	there	is	

no	merit	to	the	bad	faith	claim,	there	can	be	no	liability	on	either	statutory	
 20 

claim.”3		Appellee	moved	for	summary	judgment	on	these	extra‐contractual	

causes	of	action	on	the	grounds	that	there	was	no	underlying	breach	of	the	

insurance	 contract	 and	 that	 there	 was	 no	 evidence	 or	 genuine	 issue	 of	

material	 fact	as	to	the	existence	of	an	independent	injury	(CR317‐318, 508‐

509,	and	634‐635).	

There	was	no	underlying	breach	of	contract	because	Appellant	invoked	

the	policy’s	appraisal	clause,	and	Appellee	timely	paid	the	Award.	Breshears,	

155	S.W.3d	at	344,	et al.;	(Tab B, CR27‐19,	Tab C, and CR468‐473).		

Upon	 payment	 of	 the	 Award	 Appellant	 was	 no	 longer	 entitled	 to	 any	

benefits	under	the	policy	that	could	serve	as	a	basis	for	damages	under	an	extra‐

contractual	theory	of	recovery.		Without	a	basis	for	further	recovery	of	policy	

benefits,	Appellant’s	only	avenue	to	damages	under	an	extra‐contractual	cause	

of	 action	 is	 by	 establishing	 an	 independent	 injury.	 USAA Tex. Lloyds Co. v.

Menchaca,	___S.W.3d	___	2017	WL	1311752	*4‐12	(Tex.	2017).	

                                                            

3 Anderson v. Am. Risk. Ins. Co., Inc., 2016 WL 3438243 *7 (Tex.App.—Houston [1st Dist.] 2016, 

no pet.). See Tex. Mut. Ins. Co. v. Sara Care Child Care Ctr., Inc., 324 S.W.3d 305, 317 (Tex. 

App.—El Paso 2010, pet. denied); Spicewood Summit Office Condo. Ass'n, Inc. v. Amer. First 

Lloyd's Ins. Co., 287 S.W.3d 461, 468 (Tex.App.—Austin 2009, pet. denied) quoting Douglas v. 

State Farm Lloyds, 37 F.Supp.2d 532, 544 (S.D.Tex. 1999) (“[W]hen an insured joins claims under 

the Texas Insurance Code and the DTPA with a bad faith claim, all asserting a wrongful denial of 

policy benefits, if there is no merit to the bad faith claim, there can be no liability on either of the 

statutory claims.”). 
 21 

There	 was	 no	 evidence	 of	 an	 independent	 injury	 in	 this	 case.	 	 The	

Appellant	had	an	opportunity	to	present	evidence	of	an	independent	injury	

during	his	deposition	but	confirmed	that	his	complaint	against	Appellee	was	

that	 he	 was	 not	 paid	 amounts	 owed	 to	 him	 under	 the	 policy	 (CR504).		

Underpayment	 is	 not	 an	 injury	 independent	 of	 damages	 under	 the	 policy.		

Hurst,	2017	WL	2258243	at	*6.				Even	faced	with	the	opportunity	to	develop	

evidence	of	an	independent	injury	through	Ms.	Stillwell,	Appellant	failed	to	

do	 so.	 	 Appellant	 also	 opted	 to	 attach	 no	 evidence	 to	 his	 responses	 to	 the	

multiple	 motions	 for	 summary	 judgment	 that	 would	 be	 indicative	 of	 an	

independent	 injury	 (CR226‐290,	 513‐632).	 	 Appellant	 created	 no	 genuine	

issue	of	material	fact	as	to	whether	he	suffered	an	independent	injury.		With	

no	 independent	 injury	 and	 no	 breach	 of	 contract,	 the	 trial	 court	 properly	

granted	summary	judgment	on	causes	of	action	for	violations	of	Chapter	541,	

the	DTPA,	and	the	duty	of	good	faith	and	fair	dealing.4

                                                            

4

 Appellant points to two issues in his brief that he argues constitute an issue of material fact to 

serve as a basis for extra-contractual liability. The first is that Appellee’s file contained two letters 

which contained inconsistencies, one of which was sent to Appellant. Appellant Br. 17. The 

second is that based upon the timeline by which Appellee accepted coverage following Appellant’s 

reporting of the claim. Appellant Br. 17-19. To the extent Appellant argues that these issues are 

evidence of a violation of Chapter 542, Section IV of this brief addresses those issues. To the 

extent Appellant argues these issues create a genuine issue of material fact to establish a violation 

of Chapter 541 or the DTPA, Appellant has still not presented any evidence or created a genuine 

issue of material fact as to whether he sustained damages as required by Section 541.151 of the 

Texas Insurance Code. Tex. Ins. Code §541.151.
 22 

The	Menchaca opinion	was	issued	 by	 the	Supreme	Court	 of	Texas	 on	

April	7,	2017	between	the	judgment	in	this	case	and	Appellant’s	deadline	to	

file	 his	 brief.	 Menchaca,	 2017	 WL	 1311752	 at	 *1.	 	 In	 Appellant’s	 brief,	 he	

argues	that	the	Menchaca opinion	clarifies	that	“...a	breach	of	contract	is	not	

required	for	a	plaintiff	to	recover	extra‐contractual	and	statutory	damages.”		

Appellant Br. 15.	 This	 interpretation	 of	 Menchaca ignores	 the	 issue	 of	 an	

independent	injury,	and	ignores	the	opinion	in	Hurst	issued	on	May	23,	2017	

by	Houston’s	14th	District	Court	of	Appeals.		The	Menchaca opinion	provides	

five	distinct	but	interrelated	rules	governing	the	interplay	of	contractual	and	

extra‐contractual	claims	arising	from	an	insurance	policy.		Menchaca, 2017	WL	

1311752	at	*4.		But	the	Menchaca case	is	not	an	appraisal	case,	and	the	opinion	

notes	that	neither	party	invoked	the	appraisal	clause	“as	a	method	for	resolving	

this	 dispute.”	 	 Menchaca,	 2017	 WL	 1311752 at	 n.2.	 	 Menchaca examined	

whether	an	insured	can	recover	policy	benefits	for	violation	of	Chapter	541	of	

the	Texas	Insurance	Code	when	the	insurer	has	complied	with	its	duties	under	

the	 policy.	 Menchaca,	 2017	 WL	 1311752	 at	 *1.	 The	 five	 rules	 espoused	 in	

Menchaca	 do	 not	 provide	 Appellant	 a	 path	 to	 recovery	 for	 extra‐contractual	

damages	 because	 the	 only	 rule	 that	 applies	 to	 Appellant	is	 the	 independent	
 23 

injury	 rule	 and	 Appellant	 has	 no	 evidence	 of	 an	 independent	 injury.5	 The	

independent	injury	rule	in	Menchaca has	 two	aspects:	 (1)	when	an	insurer’s	

541	violation	causes	an	injury	independent	of	policy	benefits	the	insured	may	

recover	damages	 for	the	injury	even	if	the	insured	is	not	entitled	to	benefits;	

and	 (2)	 an	 insurer’s	 violation	 of	 541	 does	 not	 permit	 the	 recovery	 of	 any	

damages	other	than	policy	benefits	unless	there	is	an	injury	independent	of	the	

policy	benefits.	Id	at	*11.	The	Appellant	presented	no	evidence	to	the	court	that	

he	 had	 suffered	an	injury	independent	 of	 the	insurance	 contract,	and	in	 fact	

confirmed	that	his	complaint	was	that	he	was	not	paid	the	amounts	owed	under	

the	policy	(CR504).		

		The	Hurst court	applied	the	Menchaca opinion	to	an	appraisal	case	and	

held	that:	

                                                            

5	The	first	rule	(an	insured	cannot	recover	policy	benefits	for	a	statutory	violation	if	there	is	

no	right	to	the	benefits	under	the	policy)	does	not	apply	because	there	is	clearly	a	right	to	

policy	benefits	in	this	case.	Menchaca,	2017	WL	1311752	at	*4‐5.		The	second	rule	(an	insured	

who	established	a	right	to	recover	benefits	under	a	policy	can	recover	those	benefits	as	actual	

damages	under	Chapter	541	if	the	Chapter	541	violation	causes	the	loss	of	a	benefit)	does	not	

apply	 because	 the	 timely	 payment	 of	 the	 appraisal	 award	 means	 no	 benefits	 were	 lost.	

Menchaca,	2017	WL	1311752	 at	*7‐9.		The	third	rule	(an	insured	can	recover	policy	benefits	

even	if	the	policy	does	not	provide	for	them	if	the	conduct	of	the	insurer	caused	the	insured	

to	lose	the	contractual	right	to	those	benefits)	does	not	apply	because	the	insured	is	entitled	

to	benefits	under	the	policy	and	received	them	through	the	appraisal	award.		Menchaca,	2017	

WL	 1311752	 at	 *9‐10.	 The	 fifth	 rule	 (that	 no	 damages	 can	 be	 recovered	 for	 a	 statutory	

violation	unless	 the	insured	proves	a	right	 to	benefits	under	 the	policy	or	an	independent	

injury)	does	not	apply	because	all	benefits	have	been	tendered	per	the	appraisal	award	and	

there	is	no	independent	injury.		Menchaca,	2017	WL	1311752	at	*12.	
 24 

1. to	recover	damages	beyond	policy	benefits	the	bad	faith	or	statutory	

violation	must	cause	an	independent	injury;	

2. that	an	independent	injury	is	rare	and	no	Texas	court	has	encountered	

one;	and		

3. that	timely	tender	of	an	appraisal	award	afforded	the	insured	all	policy	

benefits	he	was	entitled	to	and	that	there	was	no	independent	injury	

that	 would	 entitle	 the	 insured	 to	 recover	 under	 extra	 contractual	

theories.			

Hurst,	 2017	 WL	 2258243	 at	 6.	 	 The	 Hurst opinion	 noted	 that	 Hurst’s	 own	

testimony	was	 that	his	dispute	with	 the	insurer	was	 that	 the	initial	payment	

was	too	low.		Id.		The	substance	of	that	testimony	is	identical	to	that	of	Appellant	

(CR504).	The	Hurst Court’s	application	of	Menchaca is	correct	and	applies	 to	

this	case	because	both	Hurst	and	Appellant	are	owed	no	policy	benefits	 that	

could	serve	as	a	measure	of	damages	under	the	Texas	Insurance	Code,	DTPA,	

or	duty	of	good	faith	and	fair	dealing,	and	neither	Hurst	nor	Appellant	had	any	

evidence	 of	 an	 independent	 injury	 that	 would	 serve	 as	 a	 basis	 for	 extra‐

contractual	damages.	Therefore,	there	is	no	genuine	issue	of	material	fact	as	to	

whether	Appellant	is	owed	policy	benefits	or	suffered	an	independent	injury.		

The	 trial	 court	 was	 correct	in	 granting	 summary	judgment	 on	 the	 causes	 of	
 25 

action	pled	under	Chapter	541,	the	DTPA,	and	the	common	law	duty	of	good	

faith	and	fair	dealing.	

CONCLUSION AND PRAYER

	 WHEREFORE,	 Appellee	 Farmers	 Insurance	 Exchange	 prays	 that	 this

Court	affirm	the	District	Court’s	granting	of	summary	judgment	on	all	causes	

of	action	asserted	by	Appellant.	

Respectfully	submitted,	

	 		s/ Scot G. Doyen

	 Scot	G.	Doyen		

	 Texas	Bar	No.	00792982	

	 sdoyen@ds‐lawyers.com	

	 Alasdair	Roberts	

	 Texas	Bar	No.	24068541	

	 aroberts@ds‐lawyers.com	

	 DOYEN	SEBESTA,	LTD.,	L.L.P.	

	 450	Gears	Road,	Suite	350	

	 Houston,	Texas	77067	

	 Telephone:	713‐580‐8900	

	 Facsimile:	713‐580‐8910	

ATTORNEYS	FOR	DEFENDANT		

FARMERS	INSURANCE	EXCHANGE	

	 	
 26 

CERTIFICATE OF COMPLIANCE

	 I	hereby	certify	that	the	number	of	words	contained	in	this	Appellee’s	

Brief	is	5914.	

			s/ Scot G. Doyen	 	

Scot	G.	Doyen	

CERTIFICATE OF SERVICE

	 I	 hereby	 certify	 that	 on	 July	 5,	 2017,	 true	 and	 correct	 copies	 of	 the	

above	and	foregoing	instrument	have	been	e‐served	on	the	following	counsel	

for	Appellant	Mahmoud	Abdalla:	

Chris	Schleiffer	

Scott	Hunziker	

The	Voss	Law	Firm,	P.C.	

26619	Interstate	45	South	

The	Woodlands,	Texas	77380	

(713)	861‐0015	

(713)	861‐0021	(Facsimile)	

scott@vosslawfirm.com		

			s/ Scot G. Doyen	 	

Scot	G.	Doyen	
 !"# $%&'(#$)$% *!+%,$# !$ -'."*/0 -.$+#$ ($+& " *+($12../0

 !"#

 $3+#

456 $67879:

!"#$ %&$'(" 

 !"# $%&'(#$)$%* )'&"+"$# "%#,(-%.$ /('0"&$& ,%&$( *!$ +'11'2"%34

56789:77;<9:=7 >;?8@A

 ! !$ +'11'2"%3 -//1B *' *!$ C$+"%"*"'%# '+ *!$ 5,#"%$##'2%$(# >('/$(*B @'0$(-3$ D'()4

"! >-(-3(-/! #!$!%!&'( "# ($/1-.$& EB *!$ +'11'2"%34

#!)*+,-*./ 0-1232.2+34

$!%! :%&# *!$ $-(1"$( '+4

&"( !$ &-*$ 2!$% *!$ /('/$(*B -* *!$ &$#.("E$& /($)"#$# #!',1& E$ ($/-"($&F ($E,"1* '( ($/1-.$&

2"*! ($-#'%-E1$ #/$$& -%& #")"1-( G,-1"*BH '(

&'( !$ &-*$ 2!$% *!$ E,#"%$## "# ($#,)$& -* - %$2 /$()-%$%* 1'.-*"'%I

J>$("'& '+ ($#*'(-*"'%J &'$# %'* "%.1,&$ -%B "%.($-#$& /$("'& ($G,"($& &,$ *' *!$ $%+'(.$)$%* '+ -%B

'(&"%-%.$ '( 1-2 *!-* ($3,1-*$# *!$ .'%#*(,.*"'%F ,#$ '( ($/-"(F '( ($G,"($# *!$ *$-("%3 &'2% '+ -%B /('/$(*BI

 !$ $K/"(-*"'% &-*$ '+ *!"# /'1".B 2"11 %'* .,* #!'(* *!$ J/$("'& '+ ($#*'(-*"'%IJ

 !$ /('0"#"'%# '+ 8*$)# 5!"! *!(',3! 5!6! E$1'2 -//1B *' *!$ 5,#"%$##'2%$(# 7/$."-1 >('/$(*B @'0$(-3$

D'()I

7!

"! :K.1,#"'% 7!'!8!&9( "# ($/1-.$& EB *!$ +'11'2"%34

&9( 7$**1"%3F .(-.L"%3F #!("%L"%3F $K/-%#"'% '( .'%*(-.*"'%H

'! !$ +'11'2"%3 "# -&&$& *' >-(-3(-/! 7!'!8!: ;.<-* =/,-4 +1 >+44 '+ *!$ 5?@AB42+34C

&D( =$1$-#$F &"#.!-(3$ '( &"#/$(#-1 '+ .'%*-)"%-%*# '( /'11,*-%*#I

E! >-FGA @.2+3 FG234. H4

"! !$ >-FGA @.2+3 FG234. H4 )*+,-*./ >+44 E+3I2.2+3 "# ($/1-.$& EB *!$ +'11'2"%3F $K.$/* -# /('0"&$& "%

J!'! E$1'24

>5K > E=L;M K LMN= HN

9' '%$ )-B E("%3 - 1$3-1 -.*"'% -3-"%#* ,# ,%&$( *!"# /'1".B ,%1$##4

G! !$($ !-# E$$% +,11 .')/1"-%.$ 2"*! -11 '+ *!$ *$()# '+ *!"# "%#,(-%.$H -%&

%! !$ -.*"'% "# E(',3!* 2"*!"% M B$-(# -%& '%$ &-B -+*$( *!$ &-*$ '% 2!".! *!$ &"($.* /!B#".-1 1'## '(

&-)-3$ '..,(($&I

'! >-(-3(-/! J!"! -E'0$ &'$# %'* -//1B *' *!$ >-FGA @.2+3 FG234. H4 >2G%2A2./ 3I O-I2@GA 5?,-34-4

K-3-*GA E+3I2.2+3 "% *!$ 5,#"%$##'2%$(# ?"-E"1"*B @'0$(-3$ D'()I

0! ,,*G24GA

 !$ ,,*G24GA )*+,-*./ >+44 E+3I2.2+3 "# ($/1-.$& EB *!$ +'11'2"%34

 ))P LN >

8+ 2$ -%& B', &"#-3($$ '% *!$ -)',%* '+ 1'##F $"*!$( )-B )-L$ 2("**$% &$)-%& +'( -% -//(-"#-1 '+ *!$ 1'##I 8%

*!"# $0$%*F $-.! /-(*B 2"11 #$1$.* - .')/$*$%* -%& ")/-(*"-1 -//(-"#$( -%& %'*"+B *!$ '*!$( '+ *!$ -//(-"#$(

#$1$.*$& 2"*!"% MN &-B# '+ #,.! &$)-%&I !$ *2' -//(-"#$(# 2"11 #$1$.* -% ,)/"($I 8+ *!$B .-%%'* -3($$ 2"*!"%

OP &-B# ,/'% #,.! ,)/"($F $"*!$( )-B ($G,$#* *!-* #$1$.*"'% E$ )-&$ EB - Q,&3$ '+ - .',(* !-0"%3

Q,("#&".*"'%I :-.! -//(-"#$( 2"11 #*-*$ #$/-(-*$1B *!$ -)',%* '+ 1'##I 8+ *!$B +-"1 *' -3($$F *!$B 2"11 #,E)"* *!$"(

&"++$($%.$# *' *!$ ,)/"($I R &$."#"'% -3($$& *' EB -%B *2' 2"11 E$ E"%&"%3 -# *' *!$ -)',%* '+ 1'##I

:-.! /-(*B 2"114

"! >-B "*# .!'#$% -//(-"#$(H -%&

'! 5$-( *!$ '*!$( $K/$%#$# '+ *!$ -//(-"#-1 -%& ,)/"($ $G,-11BI

 !"# $% &'( )(*+*,- ##"!. 6,78'*9:+; <-=>'?-@A /A'B*@A= 344*@A; <-@C; D*+: *+= 7A'E*==*,- /# $%&!# 012) # 34 5

/# $%")F&

Farmers/Mahmoud 

8000290825 

4079

153-269720-13

.. FARMERS' 

438 TAB A
 ! "#$%$ &' () (**%(&'(+,

 ! -./ 0&++ %$"(&) 1./% %&2#" ". 3%&)2 ( +$2(+ (4"&.) (2(&)'" /'5 '/36$4" ". "#$ *%.7&'&.)' .! "#$ 8$2(+ 94"&.)

92(&)'" :' ;%.*$%"1 8.'' <.)=&"&.)> ()=

"!?$ 0&++ '"&++ %$"(&) ./% %&2#" ". =$)1 "#$ 4+(&@A

B#$ *%.7&'&.) %$C/&%&)2 ( '&2)$=5 '0.%) *%..! .! +.'' &) "#$ #$%&'( )* +,' -.'*% /0 12(( /3 # 4 5'

6327'3%8 12(( 92*:&%&2* &' %$*+(4$= 31 "#$ !.++.0&)2,

-!

D$)= /' ( '&2)$=5 '0.%) *%..! .! +.'' 4.)"(&)&)2 "#$ &)!.%@("&.) 0$ %$C/$'" ". &)7$'"&2("$ "#$ 4+(&@A -./

@/'" =. "#&' 0&"#&) EF =(1' (!"$% ./% %$C/$'"A ?$ 0&++ '/**+1 1./ 0&"# "#$ )$4$''(%1 !.%@'A

;! B#$ !.++.0&)2 &' (==$= ". "#$ 6327'3%8 <'*'3 = 92*:&%&2*(>

?! 12(( +2 @' = 6327'3%8

B#$ (@./)" .! &)'/%()4$ (**+&4(3+$ ". +.'' ". %$(+ *%.*$%"1 31 !&%$ 0&++ 3$ %$=/4$= 31 "#$ (@./)" .! '/4#

+.''A 9' %$*(&%' (%$ @(=$5 "#$ (@./)" %$=/4$= 0&++ 3$ %$&)'"("$= ". "#$ $G"$)" .! "#$ 7(+/$ .! "#$ %$*(&%'A B#$

%$&)'"("$@$)" 0&++ )." &)4%$('$ "#$ '*$4&!&$= 8&@&"' .! )'/%()4$A

H. ."#$% +.'' &)'/%$= (2(&)'" &) "#$ I/'&)$''.0)$%' ;%.*$%"1 <.7$%(2$ J.%@ 0&++ %$=/4$ "#$ '*$4&!&$= 8&@&"'

.! )'/%()4$A

<!;(%(2%(*#' :! ()= 0! .! "#$ K.%"2(2$#.+=$%' ;%.*$%"1 L$)$%(+ <.)=&"&.) (%$ %$*+(4$= 31 "#$ !.++.0&)2,

:! ! 0$ =$)1 1./% 4+(&@ 3$4(/'$ .! 1./% (4"' .% 3$4(/'$ 1./ #(7$ !(&+$= ". 4.@*+1 0&"# "#$ "$%@' .! "#&'

*.+&415 "#$ @.%"2(2$#.+=$% 0&++ '"&++ #(7$ "#$ %&2#" ". %$4$&7$ +.'' *(1@$)" &! "#$ @.%"2(2$#.+=$%,

ABC ;(1' ()1 *%$@&/@ =/$ /)=$% "#&' *.+&41 (" ./% %$C/$'" &! 1./ #(7$ !(&+$= ". =. '.>

ADC D/3@&"' ( '&2)$=5 '0.%) *%..! .! +.'' 0&"#&) EF =(1' (!"$% %$4$&7&)2 )."&4$ !%.@ /' .! 1./% !(&+/%$ ". =.

'.> ()=

M(' )."&!&$= /' .! ()1 4#()2$ &) .0)$%'#&*5 .44/*()41 .% '/3'"()"&(+ 4#()2$ &) %&'N N).0) ". "#$

@.%"2(2$#.+=$%A

AEC

9++ .! "#$ "$%@' .! "#&' *.+&41 0&++ "#$) (**+1 =&%$4"+1 ". "#$ @.%"2(2$#.+=$%A

 ! "#&' *.+&41 &' 4()4$++$=5 0$ 0&++ 2&7$ "#$ @.%"2(2$#.+=$% )(@$= &) "#$ O$4+(%("&.)' 0%&""$) )."&4$ .!

4()4$++("&.)A

0!

 ! 0$ 4()4$+ "#&' *.+&415 0$ 0&++ )."&!1 "#$ @.%"2(2$#.+=$% (" +$('",

ABC FP =(1' 3$!.%$ "#$ $!!$4"&7$ =("$ .! 4()4$++("&.) &! 0$ 4()4$+ !.% 1./% ).)*(1@$)" .! *%$@&/@> .%

ADC QR =(1' 3$!.%$ "#$ $!!$4"&7$ =("$ .! 4()4$++("&.) &! 0$ 4()4$+ !.% ()1 ."#$% %$('.)A

 ! 1./ 4()4$+ "#$ *.+&415 0$ 0&++ 2&7$ "#$ @.%"2(2$#.+=$% )."&4$ .! 4()4$++("&.) ". 3$ $!!$4"&7$ .) "#$ =("$

'"("$= &) "#$ )."&4$A B#$ =("$ .! 4()4$++("&.) 4())." 3$ 3$!.%$ "#$ FR"# =(1 (!"$% "#$ =("$ 0$ @(&+ "#$

)."&4$A

B#$ !.++.0&)2 &' (==$= ". ;(%(2%(*# -!DA &) "#$ #$%&'( &* %,' -.'*% 20 /FF$33'*F'G /00'*('G 9= &4 23 H$&%

1& "&=&%8 I*: J':&F = -K7'*('( <'*'3 = 92*:&%&2* &) "#$ I/'&)$''.0)$%' 8&(3&+&"1 <.7$%(2$ J.%@,

L!

?$ 0&++ )."&!1 "#$ !&%'" H(@$= )'/%$= &) 0%&"&)2 .!,

B! 9) &)&"&(+ .!!$% ". 4.@*%.@&'$ .% '$""+$ ( 4+(&@ @(=$ .% S'/&"S 3%./2#" (2(&)'" "#$ &)'/%$= /)=$% "#&'

4.7$%(2$A B#$ )."&4$ 0&++ 3$ 2&7$) )." +("$% "#() "#$ FR"# =(1 (!"$% "#$ =("$ .) 0#&4# "#$ .!!$% &' @(=$A

9)1 '$""+$@$)" .! ( 4+(&@ @(=$ .% S'/&"S 3%./2#" (2(&)'" "#$ &)'/%$= /)=$% "#&' 4.7$%(2$A B#$ )."&4$ 0&++

3$ 2&7$) )." +("$% "#() "#$ QR"# =(1 (!"$% "#$ =("$ .! "#$ '$""+$@$)"A

D!

)! B#$ 12(( 6 84'*% 6327'3%8 12(( 92*:&%&2* &' (@$)=$= (' !.++.0',

B! ;(%(2%(*# M!:!ABCA"C &' %$*+(4$= 31 "#$ !.++.0&)2,

A"C !5 (" "#$ "&@$ .! "#$ +.''5 "#$ 8&@&" .! )'/%()4$ (**+&4(3+$ ". "#$ +.'" .% =(@(2$= *%.*$%"1 &' +$'' "#()

TRU .! "#$ !/++ %$*+(4$@$)" 4.'" .! "#$ *%.*$%"1 &@@$=&("$+1 3$!.%$ "#$ +.''5 0$ 0&++ *(1 "#$ 2%$("$% .!

"#$ !.++.0&)2 (@./)"'5 3/" )." @.%$ "#() "#$ 8&@&" .! )'/%()4$ "#(" (**+&$' ". "#$ *%.*$%"1,

A&C B#$ (4"/(+ 4('# 7(+/$ .! "#$ +.'" .% =(@(2$= *%.*$%"1> .%

"&D!"#$ %3E +E4740: !!D&F /012345678 9:;<3=:>? ?3@4>?; ,--4>?8 9:>A8 B476 47; 1?3C4;;40: !"#$%&' ()*+ ' ,- .

Farmers/Mahmoud 

8000290825 

4080

153-269720-13

439 TAB A
 !"#!#"$%#& #' $() *#+$ $# ")!,%" #" ")!-,*) $() -#+$ #" .,/,0). !"#!)"$12 ,'$)" ,!!-%*,$%#& #' $()

.).3*$%4-) ,&. 5%$(#3$ .).3*$%#& '#" .)!")*%,$%#&6 7(%+ !"#!#"$%#& 5%-- )83,- $() ",$%# #' $()

,!!-%*,4-) 9%/%$ #' :&+3",&*) $# ;<= #' $() '3-- ")!-,*)/)&$ *#+$ #' $() !"#!)"$1 %//).%,$)-1 4)'#")

$() -#++6

 !!"

#$ 7() '#--#5%&0 %+ ,..).>

%&'()*+ ,$-.$ /0*()1 % *(23(4%'+4 4+5%64

 '%") %&+3",&*) !#-%*12 %& *,+) #' $#$,- -#++ 41 '%") #' !"#!)"$1 %&+3").2 +(,-- 4) ()-. ,&. *#&+%.)"). $# 4) ,

-%83%.,$). .)/,&. ,0,%&+$ $() ?#/!,&1 '#" $() '3-- ,/#3&$ #' +3*( !#-%*16 7() !"#@%+%#&+ #' $(%+ "$%*-)

+(,-- &#$ ,!!-1 $# !)"+#&,- !"#!)"$16

7$ A&.)" $() *899 /:;<=>? /@8A=@?; 9#++ ?#&.%$%#&2 $() !"#@%+%#&+ !)"$,%&%&0 $# &#$%*) #' #3" %&$)&$%#&+ ,&.

$() $%/) !)"%#. '#" !,1/)&$ #' *-,%/+ ,") ")!-,*). 41 $() '#--#5%&0>

-$ )B:!<9 C:>DB!>E

:$ B%$(%& CD .,1+ ,'$)" 5) ")*)%@) 5"%$$)& &#$%*) #' *-,%/2 5) 5%-->

 -" *E-).0) ")*)%!$ #' $() *-,%/6 :' 5) .# &#$ ,*E-).0) ")*)%!$ #' $() *-,%/ %& 5"%$%&02 5) 5%--

E))! , ")*#". #' $() .,$)2 /)$(#. ,&. *#&$)&$ #' $() ,*E-).0/)&$F

 #" G)0%& ,&1 %&@)+$%0,$%#& #' $() *-,%/F ,&.

 ." H)83)+$ , +%0&).2 +5#"& !"##' #' -#++2 +!)*%'1 $() %&'#"/,$%#& 1#3 /3+$ !"#@%.) ,&. +3!!-1 1#3

5%$( $() &)*)++,"1 '#"/+6 B) /,1 ")83)+$ /#") %&'#"/,$%#& ,$ , -,$)" .,$)2 %' .3"%&0 $()

%&@)+$%0,$%#& #' $() *-,%/ +3*( ,..%$%#&,- %&'#"/,$%#& %+ &)*)++,"16

F$B) 5%-- &#$%'1 1#3 %& 5"%$%&0 ,+ $# 5()$()">

 -" 7() *-,%/ #" !,"$ #' $() *-,%/ 5%-- 4) !,%.F

 #" 7() *-,%/ #" !,"$ #' $() *-,%/ (,+ 4))& .)&%).2 ,&. %&'#"/ 1#3 #' $() "),+#&+ '#" .)&%,-F

 ." I#") %&'#"/,$%#& %+ &)*)++,"1F #"

 G" B) &)). ,..%$%#&,- $%/) $# "),*( , .)*%+%#&6 :' 5) &)). ,..%$%#&,- $%/)2 5) 5%-- %&'#"/ 1#3 #' $()

"),+#&+ '#" +3*( &)).6

B) 5%-- !"#@%.) &#$%'%*,$%#&2 ,+ .)+*"%4). %& F$ -" $("#30( F$ G" ,4#@) 5%$(%&>

 -" CD 43+%&)++ .,1+ ,'$)" 5) ")*)%@) $() +%0&).2 +5#"& !"##' #' -#++ ,&. ,-- %&'#"/,$%#& 5) ")83)+$).F #"

 #" J< .,1+ ,'$)" 5) ")*)%@) $() +%0&).2 +5#"& !"##' #' -#++ ,&. ,-- %&'#"/,$%#& 5) ")83)+$).2 %' 5) (,@)

"),+#& $# 4)-%)@) $() -#++ ")+3-$). '"#/ ,"+#&6

:' 5) &#$%'%). 1#3 $(,$ 5) &)). ,..%$%#&,- $%/) $# "),*( , .)*%+%#&2 5) /3+$ $()& )%$()" ,!!"#@) #" .)&1 $()

*-,%/ 5%$(%& KD .,1+ #' +3*( &#$%*)6

#$ B) 5%-- !,1 '#" *#@)"). -#++ #" .,/,0) 5%$(%& D 43+%&)++ .,1+ ,'$)">

:$ B) (,@) &#$%'%). 1#3 $(,$ !,1/)&$ #' $() *-,%/ #" !,"$ #' $() *-,%/ 5%-- 4) /,.) ,&. (,@) "),*().

,0"))/)&$ 5%$( 1#3 #& $() ,/#3&$ #' -#++F #"

F$ & ,!!",%+,- ,5,". (,+ 4))& /,.)6

L#5)@)"2 %' !,1/)&$ #' $() *-,%/ #" !,"$ #' $() *-,%/ %+ *#&.%$%#&). #& 1#3" *#/!-%,&*) 5%$( ,&1 $)"/+ #'

$(%+ M#-%*12 5) 5%-- /,E) !,1/)&$ 5%$(%& D 43+%&)++ .,1+ ,'$)" $() .,$) 1#3 (,@) *#/!-%). 5%$( +3*( $)"/+6

7() '#--#5%&0 !,",0",!(+ ,") ,..).>

.$ ):?:9?@8AH= )B:!<9

:' , *-,%/ ")+3-$+ '"#/ , 5),$()" ")-,$). *,$,+$"#!() #" , /,N#" &,$3",- .%+,+$)"2 $() *-,%/ (,&.-%&0 ,&.

*-,%/ !,1/)&$ .),.-%&)+ .)+*"%4). %& 5$-$ ,&. 5$#$ ,4#@) ,") )O$)&.). '#" ,& ,..%$%#&,- CD .,1+6

?,$,+$"#!() #" I,N#" P,$3",- Q%+,+$)" /),&+ , 5),$()" ")-,$). )@)&$ 5(%*(>

 -" :+ .)*-,"). , .%+,+$)" 3&.)" $() 7)O,+ Q%+,+$)" *$ #' CRSDF #"

 #" :+ .)$)"/%&). $# 4) , *,$,+$"#!() 41 $() T$,$) G#,". #' :&+3",&*)6

G$ 7() $)"/ U43+%&)++ .,1U ,+ 3+). %& $() 9#++ M,1/)&$ M"#!)"$1 9#++ ?#&.%$%#&2 /),&+ , .,1 #$()" $(,&

T,$3".,12 T3&.,1 #" , (#-%.,1 ")*#0&%V). 41 $() +$,$) #' 7)O,+6

9=C89:; <$D AD%(%!+ 88C=E !"#$%&'() *+,-$.+/0 10$2%/0, 344%/0) *+/5) 6%(' %(, "0$7%,,%!+ 189:;<=< >?@A < 34 B

Farmers/Mahmoud 

8000290825 

4081

153-269720-13

440 TAB A
 ! !"!#"!$% "!#! &' (%) ")*+,*- .&**&/ &0+12 .&/3+(+&/ 3&)- /&( !$$024

$! 5%) '&00&6+/# +- !33)3 (& 7810,-+&/ %!&!'!()* +/ (%) 9,-+/)--&6/)"- :+!;+0+(2 .&<)"!#) =&"*>

?' (%) @)1%!/+1!0 9")!A3&6/ B$(+&/!0 .&<)"!#) +/ (%) 9,-+/)--&6/)"- "&$)"(2 .&<)"!#) =&"* +- -%&6/ !-

!$$0+1!;0) +/ (%) C)10!"!(+&/-D (%)/ (%+- )810,-+&/ 3&)- /&( !$$02 (&>

(+* B," "+#%( !/3 3,(2 (& 3)')/3 !/2 E-,+(E !00)#+/# (%!( 2&, !") 0+!;0) '&" 3!*!#) (& $)"-&/!0

$"&$)"(2 &' !/&(%)" +/ 2&," 1!")D 1,-(&32 &" 1&/("&0F !/3

(++* !"!#"!$% ,!&!-! .&<)"!#) 78()/-+&/ G H,$$0)*)/(!"2 !2*)/(-F

6+(% ")-$)1( (& E$"&$)"(2 3!*!#)E 3+")1(02 1!,-)3 ;2 !/ I11+3)/( (& !/ B;J)1( !- 3)-1"+;)3 +/ (%) @)1%!/+1!0

9")!A3&6/ B$(+&/!0 .&<)"!#)4

.! 5%) '&00&6+/# +- !33)3 (& (%) /+0123-045 7810,-+&/ +/ (%) 9,-+/)--&6/)"- H$)1+!0 "&$)"(2 .&<)"!#) =&"*>

6! /+0123-045

5%+- )810,-+&/ 3&)- /&( !$$02 (& 1&<)"!#) (%!( +- $"&<+3)3 ,/3)" (%) 7*$0&2)) C+-%&/)-(2 B$(+&/!0

.&<)"!#)4

5%+- )/3&"-)*)/( +- $!"( &' 2&," $&0+124 ?( -,$)"-)3)- !/3 1&/("&0- !/2(%+/# (& (%) 1&/("!"24 ?( +- &(%)"6+-)

-,;J)1( (& !00 (%) ()"*- &' (%) $&0+124

"&.!"#$ %/0 +012134 !!.&5 6378/19:2; <4=>/?4@A A/B1@A= ,--1@A; <4@C; D12: 12= 7A/E1==134 !"#$%&' ()*+ ' ,- '

Farmers/Mahmoud 

8000290825 

4082

153-269720-13

441 TAB A
!S?-).t,q7~() ·13 

Cause No. 153-269926-13 • 

MAHMOUD ABALLA, § 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT 

V. TARRANT COUNTY, TEXAS 

FARMERS INSURANCE 

EXCHANGE 153'd JUDICIAL DISTRICT 

AW ARD OF UMPIRE 

Previously, the parties invoked the appraisal process in this matter. Because the parties, 

through their designated appraisers, were unable to agree on an individual to serve as Umpire, the 

Court duly appointed the undersigned to serve as Umpire in accordance with the applicable 

policy of insurance affecting the damaged property. 

The appraisers have completed their assignments of appraisal. Thus, this Award of 

Umpire is submitted to the Court for filing and to conclude this process. This appraisal process 

resulted from the parties' ,vritten agreement. 

Attached to this Award is a document entitled "Appraisal Award" prepared by one of the 

duly selected appraisers, namely, Kyle P. Albright, Sr., IA, CGA, FCLS, P.O. Box 16026, 

Galveston, TX, 77552-6026. 

This appraisal is evidenced by the document attached to this award. 

It is the Umpire's considered opinion that the Albright appraisal of an actual cash value 

loss amount of $345,664.21 (three hundred forty-five thousand, six hundred sixty-four dollars 

and twenty-one cents) is the more sound and well supported appraisal. Accordingly, the Umpire 

J-~ dtC,..(,.u.,, s, .A..otf 

Page 1 of 2 ~bit~ 

I 

Court's Minute~;., 

Tr~n!';action # Lf.L-. - ' 

27 TAB B
, . 

hereby awards this sum of money to make whole the damages caused to the subject property. 

Awarded and signed this 8'h day of October, 2014. 

Charles Bleil, Umpire 

Page 2 of 2 

28 TAB B
. . 

Date: I0/7/2014 

Re: lnsured(s): 

Claim#: 

Policy#: 

Date of Loss: 

Location: 

APPRAISAL AWARD 

Mahmoud Abdalla 

sooo29oa2s 

0604851630 

2/21/2012 

1000 A venue H E, Arlington, TX 76011 

We, the undersigned, pursuant to the within appointment, DO HEREBY CERTIFY that we have truly and 

conscientiously performed the duties assigned determined and do hereby award as the Actual Cash 

Value and the Replacement Cost Value of said property. 

Item: Dwelling: RCV - $ 340,688.03 ACV - $ 324,496.27 

ltem:APS RCV- $ -0- ACV- $ -0-

Item: Contents: RCV - $ 23,314.19 ACV- $ 21,167.94 

Item: ALE{LOSS OF USE: $ -0-

TOTAL AMOUNT OF LOSS $ 364,002.22 

AMOUNT OF DEPRECIATION $ 18,338.01 

ACTUAL CASH VALUE OF LOSS $ 345,664.21 

SPECIAL PROVISIONS: 

1. Subject to policy provisions and deductible 

2. Less any previous payments per this claim 

3. Policy coverage to be addressed by others 

4. The above amount(s} are all inclusive as relate to this claim 

APPRAISER- --1.4f}~.t.¥tf}/6,LL-l='---:::;;:..~__,...,..,,.-,, _____ ,DATE iv - ? -:<o If ~llJ~,,,;f{l'~ 

UMPIRE- -~------r;W ____ 

· __ D.ATE/0- 8-c(}//j, 

29 TAB B
153-269720-13

~ 

~ FARMERS 

INSURANCE 

Toll Free: (!100) ·135· 776-1 

Send all correspondence to: 

Email: myclaim('! farmersinsurann·.com 

National Document Center 

Occober 15, 2014 

ATIN SCOTI HUNZIKER 

VOSS LAW FRIM 

26619 INTERSTATE 45 

SPRING TX 77380 

RE: Insured: 

Claim Unic Number: 

Policy Number: 

Loss Dace: 

Lornrion of Loss: 

Subject: 

Dear Mr. Hunziker: 

P.O. Box 26!1994 

Oklahoma City, OK 73126-!1991 

Fax: (!177) 217 -1389 

Mahmoud Abdalla and Nancy Abdalla 

800029082 5-1-2 

0604851630 

02/21/2012 

1000 Ave H E, Arlington, TX 

Serdemmt Notice 

We appreciate the opporcunicy to serve our insured's insurance needs and we are here co help our customer 

through the claims process as efficiently as possible. Enclosed, please find actual cash value payment for your 

client's building and the replacement cosc value payment on their business personal property cl.Lim based on the 

signed appraisal award, less che applicable policy deductible and prior payments. I have attached a copy of the 

signed award for your records. As pare of the appraisal process our appraiser, Kyle Albright and your client's 

appraiser Max Judge submitted their evaluations of your client's damages co the selected umpire, Judge Charles 

Bleil. The award was signed by Mr. Albright on October 7, 2014 and by Mr. Bleil on October 8, 2014. 

Here is an explanation of the secclemenc: 

Line of Coverage Building Business Personal 

Property 

Replacement Cost $340,688.03 $23,314.19 

Less: Depreciation Sl6,l91.76 SN/A 

Actual Cash Value $324,496.27 SN/A 

Less: Policy Deductible S l,000.00 SN/A 

Setrh:ment Amount $323,196.27 $23,314.19 

Less: Prior Payments $247,370.46 Sl7,458.83 

Amount $76, 125.81 $5,855.98 

The customer"s policy has actual cash value and replacement cosc value settlement options for cheir business 

personal property claim. Actual cash value is an amount less chan che full replacement cost of the damaged 

property, and reflects a depreciated value based on the age and condition of che items at che cime of loss relative 

V624VRN4 

Farmers/Mahmoud 

8000290825 

3479 

468 TAB C
153-269720-13

co che useful life of the property. We have elected co issue payment of chis cime for che full replacement cost of 

your client's businesss personal property claim per che appraisal award without deduction for depreciation. 

The policy provides actual cash value coverage for your client's building loss. Actual cash value is che 

replacement cosc of che damages less any applicable depreciation. The claim was seeded ac replacement cost less 

che appropriate deductions for depreciation based upon signed appraisal award. 

The policy requires I include the mortgage company as a payee on their building loss. li> minimizt: delays in 

repairs, we suggest our cuscomt:r concact their mortgage company co find out their requirements for endorsing 

che payment and releasing che funds. 

\Xie wish co inform you rhere are rime limirs as found in the Condirions language of your client'spolicy. These 

limirs may have bc:cn cxrcndcd by scarure in your scace. The rime period sec forth in che Conditions section 

is the shortest period which may apply. In regard to rime limits, chis policy has been modified by rhe TEXAS 

CHANGES Endorsemenr, sl987 3rd Edition which states: 

C. Legal Action Against Us 

l. The Legal Action Against Us Property Loss Condition is replaced by che following, except as 

provided in F.2. below: 

LEGAL ACTION AGAINST US 

No one may bring a legal action against us under chis policy unless: 

a. There has been full compliance with all of che rerms of chis insurance; and 

b. The action is brought within 2 years and one day after the dace on which che direct 

physical loss or damage occurred. 

Please note, on occasion, t:ndorsements are updated with newt:r t:dicions. \X'e encourage you to reference your 

client's policy and included endorst:mt:nts for any updart:s. 

By tht: writing of this letter, we do not waivc any of rhc ccrms, rnn<licions. or provisions of your clienr's 

insurance policy. all of which arc cxprcssly retaml·d and rcscrve<l. Any ,Ktivicy on our parry dot:s nor consciruce a 

waivt:r of our righcs. 

If you have any quescions about the claim, please do noc hesicace co contact me direccly ac my primary phone 

numbi:r (512) 619-24 75. Although not my main office numbt:r, in case of immediate need an alternative 

number for our claims office is (866) 850-6372. 

Thank you. 

Sincerely, 

Truck Insurance Exchange 

Tonya 

fUtUt~ 

Stilwell 

~ 

Senior Commercial Property General Adjuster 

(512)619-2475 

V624VRN4 

Farmers/Mahmoud 

8000290825 

3480 

469 TAB C
153-269720-13

V624VRN4 

CC: CARNAHAN AND THOMAS 

Check(s): 1607496704, 1607497 616 

Enclosure(s): 

Gen Supporting Documents 

Farmers/Mahmoud 

8000290825 

3481 

470 TAB C
153-269720-13

10/09/2014 12:52 817-989-2176 FEDE>< OFFICE 

D:ite: 1on12014 

Re: lnsured(s}: 

Claim#-; 

Policy#: 

Date of Loss: 

Location: 

APPRAISAL AWARD 

Mahmoud Abdalla 

sooo29oe:i~ 

060485t6J() 

2/2.112012 

1000 Avenue HE, Arlington, TX 76011 

0807 PAGE 04 

We, tha undersigned, pursuant to the within appelntment, 00 HEREBY CERTIFY that we have truly and· 

consciontlcusly perform,d the duties assigned determined and dn hereby award as thl? Actual Cash 

Value and the Replacement Cost Value of said propenv. 

Item: Dwelling: RCV- $ 340,688.03 ACV- S 324,496.27 

Item:~ RCV- s -0- ACV· s -0-

Item: contents: RCV- $ 23,314.19 A.CV- $ 21,167.94 

Item: AbE/LOSS OF USE: s ·O· 

TOTAL AMOUNT OF LOSS $ 364,002.22 

AMOUNT OF OEPREOATION s 18,338.01 

~,cruAt. CASH VALUE OF LOSS $ 345,664.21 

S?ECIAL PROVIS!CNS: 

l Subject to pollcy prOVlSiQns and deduc:lble 

2. Less any previous pavments per this claim 

3. Policy coverage to be addressed by others 

4. The above amount(s) are all Inclusive as relate to this claim 

APPRAISER- _.~ ........ ""'? ~ 

..... "Mlhb'!"". _...._J~. ~----,,_,,.....-.,...,... ,.,..,_ ____ DATE 

tNJ.,,:,;tJ,·r ... 11J ·? -.'!loll 

UMPIRE·. DATE 

Farmers/Mahmoud 

8000290825 

3482 

471 TAB C
153-269720-13

13/09/2014 12:52 817-589-2176 

MAH~Ot:D ABALLA. 

v. 

F.~V.SRS fNSURA!'!CE 

EXCHA'.'JOE 

FEDEX OFFICE 0807 

~ 1 - Cause No. 153-2619:20 B . 11?. 

3 ·~· _, ..., ;;, ~ ,-:,7"'- ~- I 

§ rN THE DrSTRlCT COURT 

§ 

s 

§ 

§ 

§ 

§ 

AW ARD OF UMPLT{E 

TAR.RANTCOUNTY,TEXA.S 

I 5 / 11 JUDrClAL DISTRlCT 

PAGE 

-~~' I·• 

Previously, the parties invoked the appraisal process in th.is matter. Because the parties, 

02 

\j~ 

l 

through their designated appraisers, were unable to agree on an lndividua.l to serve as Umpire, the / 

Court duly appointed the undersigned to serve as Umpire in accordance with the applicable 

poiicy of insurance affecting the damaged property. 

The appraisers have completed their assignments of appnisal. Thus. this A ward of 

Umpire is submitted to the Court for filing and to conclude this proces5. This appraisal process 

resulted from the pa:ties · v.Tittcn agreement 

Attached to th:s A ward is a documen: ~'I1ti~:ed "Appraisal Award" prepared by one of the 

duly selected appra:sers. namely, Kyie P. Albrig.ilt, Sr., IA, CGA. FCLS. P.O. Box 16026, 

Gaiveston. TX. 77552-6026. 

Tilis appraisal is evidenced by the document attached to th.is award. 

I~ is :he Umpire's considered opinion that the Albright appraisal of an actual cash value 

loss amount of $345,664.21 (three bundred forty-five thousand, s.x hundred sixty-four dollars 

and twenty-one cents) is the more sound and well supported appmi.sal. Accordingly, the Umpire 

J-,:ld f~ I, ~o,f 

Page 1 of 2 

---- 01,-JJ.+"{5 ·--·- -·-·--···-···-----. 

Farmers/Mahmoud 

8000290825 

3483 

472 TAB C
153-269720-13

10/0S/2814 12:52 817-989-2176 FEDEX OFFICE 0807 PAGE 03 

hereby awards this sum of money to make whole the damages ,:auscd to the subject property. 

Awarded and signed this 81

~ day of October, 2014. 

Page 2 of 2 

Charles BJeil, Umpire 

Farmers/Mahmoud 

6000290625 

3464 

473 TAB C