COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-17-00319-CV

IN RE ALLSTATE VEHICLE AND 

PROPERTY INSURANCE 

COMPANY

RELATOR

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ORIGINAL PROCEEDING

TRIAL COURT NO. 2017-000323-3

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CONCURRING OPINION

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I agree with the majority that the trial court did not abuse its discretion by 

factually finding and legally concluding that relator Allstate Vehicle and Property 

Insurance Company waived its contractual right to invoke the appraisal clause in 

its policy with real party in interest Deniedra Jackson based on Allstate’s delay 

and intentional conduct inconsistent with its right. I write separately to take issue 

with one of the holdings underlying the majority’s conclusion.
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The majority sets forth a thorough timeline of events leading up to the trial 

court’s order denying Allstate’s August 17, 2017 motion to compel an appraisal 

and motion to abate. In doing so, the majority holds that the point of impasse—

the date the parties had a mutual understanding that neither party would 

negotiate further on the amount of Jackson’s loss—was May 9, 2017, which was 

the date Jackson rejected Allstate’s $4,000 offer and demanded $19,350.42 for 

the third time. See generally In re Universal Underwriters of Tex. Ins., 

345 S.W.3d 404, 408–10 (Tex. 2011) (orig. proceeding) (discussing point of 

impasse to determine whether insurer was entitled to compel appraisal). 

An impasse occurs when there is a mutual understanding that neither party 

will negotiate further—the “breakdown of good-faith negotiations”—and is not

equivalent to a mere disagreement over the amount of the loss. Id. at 408–10. 

“In other words, both parties must be aware that further negotiations will be 

futile.” Id. at 409. Here, I believe the point of impasse occurred on July 26, 

2017, when the trial court held the hearing on Allstate’s motion to compel a 

seventh inspection of Jackson’s property damage. Jackson zealously opposed 

the motion and argued that the request was a form of harassment. Allstate 

asserted that its six previous inspections occurred “when the parties were trying 

to work it out” and countered Jackson’s harassment allegation by claiming that its 

requested inspection, which would be the seventh, was necessary for one 

reason: to prepare its expert witness for trial. At that point, it was clear that both 

parties knew Allstate was refusing to pay Jackson’s claimed loss and was 
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pursuing trial as its single method to dispose of her property-damage claim. See

Scottish Union & Nat’l Ins. v. Clancy, 8 S.W. 630, 632 (Tex. 1888); see also

Skypac Corp. v. Great Lakes Reins. (UK) SE, No. 1:16-CV-115, 2016 WL 

9414096, at *2 (E.D. Tex. Dec. 16, 2016) (order); In re GuideOne Nat’l Ins., 

No. 05-15-00981-CV, 2015 WL 5050233, at *2 (Tex. App.—Dallas Aug. 27, 

2015, orig. proceeding [mand. dism’d]) (mem. op.). Allstate argues that because 

it made another settlement offer to Jackson on August 14, 2017, its right to 

demand an appraisal was resurrected. If that logic were to prevail, neither an 

insured nor an insurer could rely on a waiver of the appraisal clause. The bell 

cannot be unrung.

With these comments, I concur in the court’s denial of Allstate’s petition for 

writ of mandamus. 

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

DELIVERED: May 3, 2018