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, Clerkii 

## T ABLE OF 

## C ONTENTS

I SSUES P RESENTED ................................................................................................. viii

S TATEMENT OF F ACTS ................................................................................................ 1

S TANDARD OF R EVIEW ............................................................................................... 6

A RGUMENT ................................................................................................................. 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

C ONCLUSION AND P RAYER ....................................................................................... 25iii 

## T ABLE OF 

## A UTHORITIES Cases Amine v. Liberty Lloyds of Tex. Ins.,. No.	01‐06‐00396‐CV,	2007	WL2264477	(Tex.App.—Houston	[1 st Dist.] 2007,	no	pet.)	................................................

............................................................... .....	16,	17
Anderson v. Am. Risk Ins. Co., Inc., 2016	WL3438243	(Tex.App.—Houston	[1 st 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.	200 5)	...................................

.............................................................. 7
Davis v. Nat. Lloyds Ins. Co., 484	S.W.3d	459	(Tex.App.—Houston	[1 st Dist.]	2015,	pet.	filed)	.......................	19
Douglas v. State Farm Lloyds 37	F.Supp.2d	532	(S .D.	Tex.	1 999)

............................ ....................................................... 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)

....................................................... ......................................... ....... . 8,9,10,11,12,16,1 7iv Gardner v. State Farm Lloyds , 76	S.W.3d	140	(Tex.App.—Houston	[1 st Dist],	no	pet.)	..........................................	14
In re Slavonic Mut. Fire Ins. Ass'n , 308	S.W.3d	556	(Tex.App.—Houston	[14 th 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	2258 243	(Tex.	App.—Houston	[14 th Dist.] 2017,	no	pet.	h.)

............................................. ...................................................... 15,16,2 1 ,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.	de nied)

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

.............................................................. 19v 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.	200 5)	...................................

.............................................................. 6
Wells v. Am. States Preferred Ins. Co. , 919	S.W.2d	679	(Tex.App.—Dallas	1996,	writ	denied)	........... ...............................	14 Statutes T EX
. I NS
. C ODE §541. 151

...................................................... ......................................................	21 T EX
. I NS
. C ODE § 542.056( a)

................................................... ............................................ ....... 18 T EX
. I NS
. C ODE § 542. 058

...................................................... ................................................ 17, 18 T EX
. I NS
. C ODE §542. 060

...................................................... ......................................................	18 Rules T EX
. R. C IV
. P. 166a(c )	....................................................... ............................................................	6vi 

## R ECORD 

## R EFERENCES CR2 Clerk’s	Record	page	2vii 

## S TATEMENT OF THE 

## C ASE
Nature of the Case: Property insurance suit filed by Plaintiff Mahmoud Abdalla against his insurer, Farmers Insurance Exchange, claiming damages after a wate r 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 

## I SSUES 

## P RESENTED
Whether the trial court erred in re fusing to vacate the appraisal
award.
Whether the trial court erred in granting Appellee’s motion for summary judgment.


## S TATEMENT 

## R EGARDING 

## O RAL 

## A RGUMENT Appellee believes this case can be decided on the briefs without oral argument. Nevertheless, Appellee wo uld be pleased to present oral argument should the Court request it.1 

## S TATEMENT OF 

## F ACTS 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	assigned2 the	 claim	 to	 an	 adjuster	 named	 Tonya	 Stillwell	 who	 proceeded	 wi th 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	tha t	both	sides’	appraisers	had	co mpleted their	 assignments,	 and	 that	 he	 was	 submitting	 his	 award	 to	 conc lude	 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	apprais al 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	th e	terms	of	the	policy	( Tab A, CR438

‐ 439 ). On	October	15,	2014,	seven	days	after	the	Award	of	Umpire	was	i ssued, Appellee	 tendered	 payment	 to	 Plaintiff	 for	 $76,125.81	 (building coverage) and	 $5,855.98	 (business	 personal	 property	 coverage)	 which	 refle cted	 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	elap sing	within the	same	time	period. Dissatisfied	 with	 the	 award,	 Appellant	 moved	 for	 vacation	 of	 t he 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,	 App ellee moved	 for	 summary	 judgment	 on	 October	 21,	 2015	 and	 argued	 that the5 timely	payment	of	the	Award	meant	there	was	no	genuine	issue	of material fact	on	Plaintiff’s	causes	of	action	for	breach	of	contract,	br each	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	Ap ril	6,	2016 and	 re‐opened	 discovery	 with	 regard	 to	 the	 extra‐contractual	 ca uses	 of action	( CR305 ). Following	 the	 trial	 court’s	 April	 6,	 2016	 rulings,	 Mr.	 Abdalla h	 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	se rve	as	a	basis for	his	extra‐contractual	causes of	action,	Appellee	again	asse rted	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	 cause s	 of	 action until	Tonya	Stillwell, Appellee’s	claims	ad juster,	could	be	dep osed	( CR643 ).6 Ms.	Stillwell	was	presented	for	deposition	on	September	15,	20 16,	and Appellee	reset	its	motion	 for	summary	judgment	 for	hearing	on	N ovember 11,	 2016	 ( CR527

‐ 49 ).	 	 The	 trial	 court	 granted	 summary	 judgment	 on	 all remaining	 causes	 of	 action	 and	 on	 December	 5,	 2016	 the	 Court	 re ndered judgment	that	Appellant	take	nothing	and	that	Appellee	recover its	costs	of court	in	the	amount	of	$1,276.10	( CR641 ).


## S TANDARD OF 

## R EVIEW 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	disre garded	if:	(1) the	award	was	made	without	autho rity;	(2)	the	award	was	issued as	a	result	of fraud,	 accident,	 or	 mistake;	 or	 (3)	 the	 award	 was	 not	 made	 in	 s ubstantial compliance	with	the	terms	of	the	policy. Id. at	875‐76. The trial court’s summary judgme nt is reviewed de novo. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). On its traditional motion for summary judgment, Appell ee 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). Appellat e courts view the eviden ce 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).


## S UMMARY OF 

## A RGUMENT The trial court properl y 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,	t he	Award of	 Umpire	 was	 not	 the	 result	 of	 mistake,	 accident,	 or	 fraud,	 an d	 Appellee promptly	 and	 timely	 tendered	 payment	 of	 the	 amount	 owed.	 	 The	 t imely payment	of	the	Award	precludes	l iability	under	the	contract	and established that	Appellant	 had	 no	 further	 right	 to	 recovery	 of	 policy	 benef its.	Without any	further	right	to	policy	benefits,	Appellant	has	no	independ ent	injury	to serve	as	a	basis	for	damages	und er	extra	contractual	causes	of action. The	evidence	submitted	by	Appellee	to	the	trial	court	shows	th at	there was	no	genuine	issue	of	material	fact	as	to	whether	it	failed	t o	timely	tender8 payment	of	the	Award,	or	whether	Appellant	suffered	an	independ ent	injury that	would	support	extra‐con tractual	causes	of	action. Alternatively,	 the	 evidence	 submitted	 to	 the	 trial	 court	 by	 Ap pellant was	legally	and	factually	insu fficient	to	support	a	breach	of	c ontract,	or	extra‐ contractual	causes	of	action. The	judgment	of	the	trial	court	must	be	affirmed.


## A RGUMENT

I. The Appraisal Award was not Rendered as the Result of Mistake or Accident An	appraisal	award	made	pursuant	 to	 the	provisions	of	an	insura nce 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	A ppellant. Garcia , 514	S.W.3d	at	264‐65.		There	are	three	grounds	upon	which	an	ap praisal	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 ;	or9 3. The	award	was	not	made	in	compliance	with	the	requirements	of	t he 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	s et	aside	on	the basis	of	accident	or	mistake	“upon	a	showing	that	the	award	doe s	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	appraise rs	and umpire	were	laboring	under	a	mistake	of	fact	by	which	their	app raisal	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	 refl ect	 the intent	of	the	appraisers	or	the	umpire.		Appellant	relied	predo minantly	on	the Affidavit	 of	Max	 Judge	which	 detailed	 differences	 between	 his	 a ppraisal	and that	of	Mr.	Albright’s,	but	wholly	failed	to	identify	the	inten t	of	the	appraisers or	the	umpire.	( CR39

‐ 41 ).		The	intent	of	Judge	Bleil	and	Appellee’s	appraiser	is clear	in	the	Award,	and	the	Awar d	was	consistent	with	that	inte nt:10 It	is	the	Umpire’s	considered	opinion	that	the	Albright	apprais al 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	appraise rs	and	the umpire	do	not	mean	the	Award	was	the	result	of	mistake	or	accid ent,	and	that a	decision	by	an	umpire	 to	use	one	estimate	over	another	does	n ot	establish mistake	or	accident. See Garcia ,	514	S.W.3d	at	270. The	 affidavit	 takes	 issue	 with	 Defendant’s	 appraiser’s	 method	 o f 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	differen ces to	the umpire,	so	in	instances	where	an	umpire	is	appointed	a	disagree ment	between the	 appraisers	 is	 a	 necessity.	 	 In	 fact,	 the	 whole	 purpose	 of	 t he	 Court’s appointment	of	an	Umpire	is	to	resolve	disagreements	between	th e	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	t o	agree,	there	would be	nothing	 to	submit	 to	 the	umpire	and	nothing	upon	which	he	co uld	act. Id

.11 Appellant’s	argument	that	disagreement	between	the	appraisers	c onstitutes	a mistake	contradicts	the	purpose	of	appointing	an	umpire. The	 Affidavit	 argues	 that	 the	 Aw ard	 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	betwe en an	appraisal	award	and	pre‐appraisal	estimates	is	evidence	the award	does	not reflect	the	appraiser’s	intent	and	held	that	the	policy’s	appra isal	clause	did	not specify	the	manner	in	which	the	appraisers	were	to	set	the	amou nt	of	loss	nor did	it	require	the	appraisers	to	rely	on	or	refer	to	prior	dama ge	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	 appr aisers	 and umpire	should	employ	in	determining	the	amount	of	the	loss,	nor is	there	an instruction	 to	 consider	 or	 disregard	 estimates	 or	 engineering	 r eports 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	e ngineer’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	 mis take	 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	 relia ble	 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	o r 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	p rovided	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	 betwee n	 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	beca use	 there	isn’t13 even	an	allegation	 of	a	 disagreement	 regarding	 an	 objectively	 v erifiable	 fact (such	as	a	roof	measurement).	In	the	present	case,	there	was	pu rely	a	difference of	 opinion	 between	 the	 appraisers	 that	 was	 resolved	 by	 the	 umpi re.	 This	is exactly	how	the	appraisal	pr ocess	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	c oncerning	the value	of	damages	to	the	property	based	on	the	reliance	of	certa in	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	 J udge	 Bleil,	 he considered	 Mr.	 Albright’s	 appraisal	 to	 be	 a	 sounder	 and	 better supported appraisal	and	the	Award	issued	was	consistent	with	that	decisio n.		Appellant has	 not	 carried	 his	 burden	 to	 set	 aside	 the	 appraisal	 award	 bec ause	 he	 has presented	 no	 evidence	 of	 mistake,	 accident,	 or	 contrary	 intent. Every reasonable	 presumption	will	 be	indulged	 to	 sustain	 the	 Award,	 a nd	 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	 c ontract. 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	fo r	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	invoki ng	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	 estoppe d	 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	app raisal	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	t hat	the	Award was	dated	October	8,	2014	and	payment	was	 tendered	 on	October	1 5,	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	sho uld	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	an d	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	aw ard, tender	of	the	amount	owed	pursuant	to	the	conditions	of	the	app raisal	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	 WL16 2258243	 *3‐4	 (Tex.App

. —Houston	 [14 th 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	ne eded	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	precl ude	a	breach	of contract	 cause	 of	 action. Id. Further,	 Appellant	 introduced	 no	 evidence	 of mistake	or	accident	that	justifi es	the	vacation	of	the	Award. Accordingly,	as	a	matter	of	law,	there	is	no	breach	of	contra ct,	and	the Trial	Court’s	summary	judgment	on	Appellant’s	breach	of	contrac t	claim	was properly	rendered.

IV. Timely Payment of the Appraisal Award Precludes Chapter 542 Liability Full	and	timely	payment	of	an	appraisal	award	precludes	liabili ty	under Chapter	542. 1 There	is	no	provisio n	in	Chapter	542	that	establishes	a	deadl ine 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	 thir ty

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	awa rd,	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	t he	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	w as	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	appra isal	award,	an insurer	 should	 still	 be	 liable	 for	 prompt	 payment	 of	 claims	 vio lations	 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	pre cludes	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	 apprais al,	 Appellant would	not	be	liable	in	this	case.		Appellant	argues	that	Appell ee	did	not	accept or	reject	the	claim	until	March	20,	2012	which	was	greater	than 15	business18 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	establi sh	the date	Appellant	received	the	necessary	information	to	secure	fin al	proof	of	loss. Ms.	 Stillwell	 testified	 in	 her	 deposition	 that	 the	 date	 Appella nt	 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	no t	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	iss ue	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 Ex change’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	paymen t. Upon	the	issuance	of	the	Award	of	Umpire,	Defendant	tendered	p ayment 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	Appell ee	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	o f	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	unde rl ying
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	acco mpanied	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	a nd	DTPA	with a	bad	faith	claim,	all	asserting	a	wrongful	denial	of	policy	be nefits,	if	there	is no	merit	to	the	bad	faith	claim,	there	can	be	no	liability	on	e ither	statutory20 claim.” 3 Appellee	moved	for	summary	judgment	on	these	extra‐contractua l causes	of	action	on	the	grounds that	there	was	no	underlying	br each	of	the insurance	 contract	 and	 that	 there	 was	 no	 evidence	 or	 genuine	 is sue	 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	in voked the	policy’s	appraisal	clause,	and	Appellee	timely	paid	the	Awa rd. 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	 a ny benefits	under	the	policy	that	could	serve	as	a	basis	for	damag es	under	an	extra‐ contractual	theory	of	recovery.		Without	a	basis	for	further	re covery	of	policy benefits,	Appellant’s	only	avenue to	damages	under	an	extra‐con tractual	cause of	 action	 is	 by	 establishing	 an	 independent	 injury. USAA Tex. Lloyds Co. v. Menchaca ,	___S.W.3d	___	2017	WL	13 11752	*4‐12	(Tex.	2017).

3 Anderson v. Am. Risk. Ins. Co., Inc. , 2016 WL 3438243 *7 (Tex.App.—Houston [1 st 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 Summ it 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, a ll 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.	 	 T he Appellant	had	an	opportunity	to	present	evidence	of	an	independ ent	injury during	his	deposition	but	confir med	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,	Appell ant	failed	to do	 so.	 	 Appellant	 also	 opted	 to	 attach	 no	 evidence	 to	 his	 respo nses	 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	 cour t	 properly granted	summary	judgment	on	causes	of	action	for	violations	of Chapter	541, the	DTPA,	and	the	duty	of	go od	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	statu tory	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	14 th 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	met hod	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	th e	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‐contract ual damages	 because	 the	 only	 rule	 that	 applies	 to	 Appellant	is	 the independent23 injury	 rule	 and	 Appellant	 has	 no	 evidence	 of	 an	 independent	 inj ury. 5 The independent	injury	rule	in Menchaca has	 two	aspects:	 (1)	when	an	insurer’s 541	violation	causes	an	injury	independent	of	policy	benefits	t he	insured	may recover	damages	 for	the	injury	even	if	the	insured	is	not	entit led	to	benefits; and	 (2)	 an	 insurer’s	 violation	 of	 541	 does	 not	 permit	 the	 recov ery	 of	 any damages	other	than	policy	benefits	unless	there	is	an	injury	in dependent	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	amoun ts	owed	under the	policy	( CR504 ).

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

5 The	first	rule	(an	in sured	cannot	recover	policy	benefits	for a	statutory	violation	if	there	is no	right	to	the	benefits	under	t he	policy)	does	not	apply	becau se	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	t he	loss	of	a	benefit)	does	not apply	 because	 the	 timely	 payment of	 the	 appraisal	 award	 means	 n o	 benefits	 were	 lost. Menchaca ,	2017	WL	1311752 at	*7‐9.		The	third	rule	(an	insu red	can	recover	policy	benefit s 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	appr aisal	award. Menchaca ,	2017 WL	 1311752	 at	 *9‐10.	 The	 fifth	 rul e	 (that	 no	 damages	 can	 be	 rec overed	 for	 a	 statutory violation	unless	 the	insured	proves	a	right	 to	benefits	under	 t he	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	stat utory violation	must	cause	an	independent	injury;
2. that	an	independent	injury	is	rare	and	no	Texas	court	has	encou ntered one;	and
3. that	timely	tender	of	an	appraisal	award	afforded	the	insured	a ll	policy benefits	he	was	entitled	to	and	that	there	was	no	independent	i njury that	 would	 entitle	 the	 insured	 to	 recover	 under	 extra	 contractu al 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	in itial	payment was	too	low. Id. The	substance	of	that	testimony	is	identical	to	that	of	Appella nt ( CR504 ).	The Hurst Court’s	application	of Menchaca is	correct	and	applies	 to this	case	because	both	Hurst	and	Appellant	are	owed	no	policy	b enefits	 that could	serve	as	a	measure	of	damages	under	the	Texas	Insurance	C ode,	DTPA, or	duty	of	good	faith	and	fair	dealing,	and	neither	Hurst	nor	A ppellant	had	any evidence	 of	 an	 independent	 injury	 that	 would	 serve	 as	 a	 basis	 f or	 extra‐ contractual	damages.	Therefore,	there	is	no	genuine	issue	of	ma terial	fact	as	to whether	Appellant	is	owed	policy	benefits	or	suffered	an	indepe ndent	injury. The	 trial	 court	 was	 correct	in	 granting	 summary	judgment	 on	 the causes	 of25 action	pled	under	Chapter	541,	the	DTPA,	and	the	common	law	dut y	of	good faith	and	fair	dealing.


## C ONCLUSION AND 

## P RAYER 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	EXCHANGE26 

## C ERTIFICATE OF 

## C OMPLIANCE I	hereby	certify	that	the	number	of	words	contained	in	this	Ap pellee’s Brief	is	5914.
s/ Scot G. Doyen Scot	G.	Doyen


## C ERTIFICATE OF 

## S ERVICE I	 hereby	 certify	 that	 on	 July	 5,	 2017,	 true	 and	 correct	 copies of	 the above	and	foregoing	instrument	have	been	e‐served	on	the	follow ing	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 

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
"! :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
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

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

!"# $% &'( )(*+*,- ##"!. /# $%&!# 012) # 34 5 6,78'*9:+; <-=>'?-@A /A'B*@A= 344*@A; <-@C; D*+: *+= 7A'E*==*,- /# $%")F& 153-269720-13

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

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

!"#$%&' ()*+ ' ,- . /012345678 9:;<3=:>? ?3@4>?; ,--4>?8 9:>A8 B476 47; 1?3C4;;40: "&D!"#$ %3E +E4740: !!D&F 153-269720-13!"#!#"$%#& #' $() *#+$ $# ")!,%" #" ")!-,*) $() -#+$ #" .,/,0). !"#!)"$12 ,'$)" ,!!-%*,$%#& #' $() .).3*$%4-) ,&. 5%$(#3$ .).3*$%#& '#" .)!")*%,$%#&6 7(%+ !"#!#"$%#& 5%-- )83,- $() ",$%# #' $() ,!!-%*,4-) 9%/%$ #' :&+3",&*) $# ;<= #' $() '3-- ")!-,*)/)&$ *#+$ #' $() !"#!)"$1 %//).%,$)-1 4)'#") $() -#++6 !!"

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

:$ 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
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

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==134 153-269720-13

### !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-.

- ', 

# .

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

### . 

## .

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,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 3479153-269720-13
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 

# fUtUt~**~** Tonya Stilwell Senior Commercial Property General Adjuster (512)619-2475

V624VRN4 Farmers/Mahmoud 8000290825 3480153-269720-13

V624VRN4 CC: CARNAHAN AND THOMAS Check(s): 1607496704, 1607497 616 Enclosure(s): Gen Supporting Documents

Farmers/Mahmoud 8000290825 3481153-269720-13 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 3482153-269720-13
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 3483153-269720-13
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 8 1 ~ day of October, 2014.

Page 2 of 2 Charles BJeil, Umpire

Farmers/Mahmoud 6000290625 3464