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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CONNIE BROOKS MCCALL, §

§

 Plaintiff, §

§

v. § CIVIL ACTION NO. 3:22-CV-1712-B

§

STATE FARM LLOYDS, §

§

 Defendant. §

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant State Farm Lloyds (“State Farm”)’s Motion for Summary 

Judgment (Doc. 22). This case concerns whether an insured, Plaintiff Connie Brooks McCall,

can recover additional damages after her insurer, State Farm, paid an appraisal award in full, plus 

any potential interest. Because McCall has received the full amount of benefits she is entitled to

under her insurance policy, the Court GRANTS the Motion. 

I.

BACKGROUND 

McCall submitted her claim to State Farm on July 25, 2021, after a fallen tree caused 

damage to her property. Doc. 24, Def.’s Mot. App., 5. State Farm inspected the damage on 

August 6, 2021. See id. at 30. Based on the inspection, State Farm issued a claim payment of 

$8,101.73. Id. at 47. After McCall obtained a public adjuster and the adjuster submitted his

report to State Farm, State Farm revised its estimate and issued McCall an additional claim 

payment of $13,477.21 on February 8, 2022. Id. at 23, 55–68. McCall subsequently retained legal 

counsel to dispute State Farm’s decision and sent State Farm a pre-suit demand letter for almost 

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$200,000. See Doc. 27, Resp., Ex. G, 66–69. State Farm denied this demand. See id. at Ex. H, 71–

72. 

On May 11, 2022, McCall invoked the appraisal process under the terms of her policy 

and State Farm responded to this demand on June 6, 2022. Doc. 24, Def.’s Mot. App., 70, 72–76. 

The appraisal provision states, in relevant part, 

Appraisal is only available to determine the amount of the loss of each item in 

dispute. The appraisers and the umpire have no authority to decide: (1) any other 

questions of fact; (2) questions of law; (3) questions of coverage; (4) other 

contractual issues; or (5) to conduct appraisal on a class-wide basis.

Id. at 140. While the appraisal was still pending, McCall filed this suit, alleging breach of 

contract, violations of Chapters 541 and 542 of the Texas Insurance Code, violations of the 

Texas Deceptive Trade Practices Act (“TDTPA”), bad faith insurance practices, and fraud. See

Doc. 1-5, Pet., ¶¶ 36–59.

Upon completion of the appraisal, both parties’ appraisers set the appraisal award at 

$36,053.51 on a replacement cost basis and $29,384.44 on an actual cash value basis.1 Doc. 24, 

Def.’s Mot. App., 86. After receiving notice of the award and subtracting depreciation, McCall’s 

deductible, and the previous claim payments, State Farm issued payment for the remaining 

$5,838.70 owed to McCall. See id. at 88–89. Finally, State Farm issued McCall an interest 

payment of $670.17 “to resolve any potential question or concern about whether State Farm has

met [the Chapter 542] time requirements.” Id. at 91. In making both payments, State Farm 

explicitly stated that the payments should not be construed as an admission of liability. Id. at 89, 

91. The Court considers State Farm’s Motion below. 

1 To receive the replacement cost basis award, McCall’s policy required her to make repairs within 

two years of the loss. See Doc. 24, Def.’s Mot. App., 88 (explaining the policy terms). Both parties agree 

McCall has not yet made any repairs. Doc. 23, Mot. Br., ¶ 22; Doc. 25, Resp., 15. Thus, the maximum 

amount of benefits McCall could receive was the $29,384.44 actual cash value award. 

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II.

LEGAL STANDARD

Summary judgment is proper “if the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). “[T]he substantive law . . . identif[ies] which facts are material,” and only a “dispute[] 

over facts that might affect the outcome of the suit under the governing law will properly 

preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). The Court must view the facts and the inferences drawn from the facts “in the light most 

favorable to the [non-movant].” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

587 (1986).

Once the summary-judgment movant has met its burden, “the non[-]movant must go 

beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.”

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (per curiam) (citing Celotex Corp. v. 

Catrett, 477 U.S. 317, 325 (1986)). A non-movant may not simply rely on the Court to “sift 

through the record” to find a fact issue, but must point to specific evidence in the record and 

articulate precisely how that evidence supports the challenged claim. Ragas v. Tenn. Gas Pipeline 

Co., 136 F.3d 455, 458 (5th Cir. 1998). Moreover, the evidence the non-movant provides must 

raise “more than . . . some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 

586. The evidence must be such that a jury could reasonably find in the non-movant’s favor. 

Anderson, 477 U.S. at 248. If the non-movant is unable to make such a showing, the Court must 

grant summary judgment. Little, 37 F.3d at 1076.

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III.

ANALYSIS

State Farm argues that its payment of the appraisal award and any conceivable interest on 

that award has fully compensated McCall for her loss. See Doc. 23, Mot. Br., ¶¶ 26, 35, 48. 

McCall contends that “a dispute of material fact exists as to whether reasonable attorney’s fees 

should be owed by [State Farm].” Doc. 27, Resp., 1–2. McCall argues that her attorney’s fees are 

additional “actual damages” owed to her, thus foreclosing summary judgment. Id. at 16. Because 

McCall’s position is contrary to well-established case law, the Court GRANTS State Farm’s 

Motion. 

The Court begins with an overview of the appraisal process. The appraisal process has 

been used to “resolve disputes between policy holders and insurers about the amount of loss for a 

covered claim.” Ortiz v. State Farm Lloyds, 589 S.W.3d 127, 131 (Tex. 2019). “Access to the 

appraisal process to resolve disputes is an important tool in the insurance claim context, curbing 

costs and adding efficiency in resolving insurance claims.” Barbara Techs. Corp. v. State Farm 

Lloyds, 589 S.W.3d 806, 814 (Tex. 2019). However, an appraisal does not “determine[] the rights 

and liabilities of the parties;” instead, it “merely binds the parties to have the extent or amount of 

the loss determined in a particular way.” In re Allstate Ins. Co., 85 S.W.3d 193, 195 (Tex. 2002)

(internal quotation omitted). With this background, the Court turns to how State Farm’s 

decision to pay the appraisal award affects McCall’s claims. 

A. Breach of Contract Claim

The Court first addresses McCall’s breach of contract claim. State Farm argues that its 

“payment of the appraisal award estops Plaintiff from maintaining a breach of contract claim.” 

Doc. 23, Mot. Br., 7. Essentially, State Farm asserts that the appraisal determined McCall’s 

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maximum amount of benefits owed and, because State Farm paid the award, McCall has nothing 

left to recover. See id. ¶¶ 18, 26. McCall appears to concede that she is not entitled to any further 

policy benefits and instead maintains her claim survives summary judgment because she is owed 

attorney’s fees. See Doc. 27, Resp., 7–11. McCall claims State Farm’s payment of the award 

“conclusively establishes” that “State Farm is liable for the claim under the policy.” Id. at 8. And 

because State Farm is liable under the policy, McCall asserts she is entitled to recover interest 

and attorney’s fees. Id. at 11. 

In Ortiz, the Texas Supreme Court held an insurer was entitled to summary judgment on 

a breach-of-contract claim after the insurer paid an appraisal award in full. 589 S.W.3d at 129. 

The court determined that “the insurer’s payment of the award bar[red] the insured’s breach of 

contract claim premised on failure to pay the amount of the covered loss.” Id. Given “an 

insurance policy is a contract,” by participating in “the agreed procedure for determining the 

amount of loss” and “pa[ying] that binding amount, State Farm complied with its obligations 

under the policy.” Id. at 133 (internal quotation omitted); see Breshears v. State Farm Lloyds, 155 

S.W.3d 340, 343 (Tex. App.—Corpus Christi-Edinburg 2004, pet. denied) (“The [insureds] may 

not use the fact that the appraisal award was different than the amount originally paid as 

evidence of breach of contract, especially when the contract they claim is being breached 

provides for resolution of disputes through appraisal.”). The Fifth Circuit has followed this 

position, adding that “[t]his rule applies even when the appraisal award values the covered loss in 

an amount greater than the insurer had initially assessed and even when the insurer initially 

denies the insured’s claim.” Randel v. Travelers Lloyds of Tex. Ins. Co., 9 F.4th 264, 268 (5th Cir. 

2021). 

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Here, McCall’s assertion that State Farm is liable for the claim ignores Texas caselaw, the 

language of the insurance policy itself, and State Farm’s statements when paying the appraisal 

award. As stated above, an appraisal does not “determine[] the rights and liabilities of the 

parties.” In re Allstate, 85 S.W.3d at 195. Additionally, “payment of an appraisal award does not 

determine liability.” Barbara Techs. Corp., 589 S.W.3d at 826. And McCall’s insurance policy 

expressly stated the appraisers “ha[d] no authority to decide (1) any other questions of fact; (2) 

questions of law; [or] (3) questions of coverage.” Doc. 24, Def.’s Mot. App., 140. Finally, State 

Farm expressly disclaimed any liability when paying the appraisal award. Id. at 89, 91. Thus, the 

appraisal and State Farm’s subsequent payment of the award did not affect State Farm’s liability

under the claim. The Court cannot conclude State Farm’s payment of the appraisal award 

constituted it accepting liability for McCall’s claims.2 In actuality, McCall’s breach-of-contract 

claim falls squarely within the purview of the Supreme Court of Texas’s decision in Ortiz, which 

forecloses a finding of liability against State Farm, as State Farm, by paying the appraisal award in 

full, fully complied with its contract with McCall. See Doc. 24, Def.’s Mot. App., 88–89. 

Further, apart from liability, McCall’s argument that she is owed damages in the form of 

attorney’s fees is unconvincing. “Texas law is clear that attorney’s fees and costs incurred in the 

prosecution or defense of a claim, although ‘compensatory in that they help make a claimant 

whole,’ are not damages.” Ortiz, 589 S.W.3d at 135 (quoting In re Nalle Plastics Family Ltd. P’ship, 

406 S.W.3d 168, 173 (Tex. 2013)). To recover attorney’s fees, McCall must prevail on her 

claims. Tex. Civ. Prac. Rem. Code § 38.001 (requiring a plaintiff to prevail before awarding 

attorney’s fees); Tex. Ins. Code § 541.152 (same). And because McCall has not shown she is 

2 McCall also did not present any evidence supporting her assertion that State Farm was liable 

under the policy. 

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entitled to any actual damages, McCall cannot prevail on her breach-of-contract claim. See also 

Barbara Techs. Corp., 589 S.W.3d at 827 (stating that an appraisal is merely “a contractual 

mechanism to resolve a dispute as to the amount of loss, an appraisal value . . . is not an award of 

actual damages”). Further, even if McCall could show she prevailed on her claim and was 

entitled to attorney’s fees under Texas Civil Practice and Remedies Code § 38.001 or Texas 

Insurance Code § 541.152, Section 542A.007 of the Texas Insurance Code would limit McCall’s 

attorney’s fees recovery to zero. 

Section 542A.007 allows plaintiffs to recover the lesser of:

(1) the amount of reasonable and necessary attorney’s fees supported at trial by 

sufficient evidence and determined by the trier of fact to have been incurred by 

the claimant in bringing the action;

(2) the amount of attorney’s fees that may be awarded to the claimant under other 

applicable law; or

(3) the amount calculated by:

(A) dividing the amount to be awarded in the judgment to the claimant 

for the claimant’s claim under the insurance policy for damage to or loss of 

covered property by the amount alleged to be owed on the claim for that 

damage or loss in a notice given under this chapter; and

(B) multiplying the amount calculated under Paragraph (A) by the total 

amount of reasonable and necessary attorney’s fees supported at trial by 

sufficient evidence and determined by the trier of fact to have been 

incurred by the claimant in bringing the action.

Tex. Ins. Code § 542A.007(a). Here, McCall is not entitled to any judgment award, as State 

Farm already paid her the full amount of benefits owed. See Ortiz, 589 S.W.3d at 132. Thus, 

under Section 542A.007(3)(A), the amount awarded to McCall is zero, and the attorney’s fees 

calculation will be zero. And because zero will always be less than any calculation under Section

542A.007(1) or (2), McCall is entitled to no attorney’s fees under Section 542A.007. See, e.g.,

Crenshaw v. State Farm Lloyds, 2020 WL 12990985, at *1 (N.D. Tex. Feb. 1, 2020) (O’Connor, 

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J.) (reaching the same conclusion where the insurer was entitled to summary judgment on an 

insured’s breach of contract claim).

In sum, McCall received the full payment she was entitled to under her insurance policy

and therefore cannot show State Farm is liable under the policy or that she is entitled to any 

additional damages. Thus, she cannot maintain a breach-of-contract claim. And because she 

cannot recover breach-of-contract damages, she is not entitled to attorney’s fees. Therefore, as a 

result of State Farm’s payment of the appraisal award, “there is nothing left to litigate on this 

claim.” See Randel, 9 F.4th at 268. Thus, summary judgment is proper, and State Farm’s Motion 

as to McCall’s breach-of-contract claim is GRANTED.

B. Extra-Contractual Claims

The Court next turns to McCall’s extra-contractual claims, including violations of 

Chapters 541 and 542 of the Texas Insurance Code, violations of the Texas Deceptive Trade 

Practices Act, bad faith insurance practices, and fraud. See Doc. 1-5, Pet., ¶¶ 39–59. State Farm 

argues that because McCall has not alleged any damages independent of her claim for policy 

benefits, these claims must fail.3 Doc. 23, Mot. Br., ¶ 27. McCall argues she is entitled to “actual 

damages other than the policy benefits,” namely “attorney’s fees and possibly more interest.” Doc. 

27, Resp., 16. 

The Texas Supreme Court has articulated a general rule and “five distinct but 

interrelated rules that govern the relationship between contractual and extra-contractual claims 

in the insurance context.” USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 489 (Tex. 2018).

3 State Farm also argues in its Motion that McCall “has no evidence that State Farm made any 

actionable misrepresentations.” Doc. 23, Mot. Br., ¶ 50. McCall does not respond to this argument.

Without any facts supporting the existence of an actionable misrepresentation, the Court cannot 

conclude a dispute of material fact exists as to McCall’s fraud claim.

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Generally, “an insured cannot recover policy benefits as actual damages for an insurer’s statutory 

violation if the insured has no right to those benefits under the policy.” Id. at 495. The fourth 

rule, which is applicable here, “derives from the fact that an insurer’s extra-contractual liability is 

distinct from its liability for benefits under the insurance policy.” Id. at 499 (internal quotation

omitted). Thus, to recover under extra-contractual claims, an insured must show “an injury 

independent of the insured’s right to recover policy benefits.” Id. If this injury “[is] predicated on, 

flow[s] from, or stem[s] from policy benefits, the general rule applies and precludes recovery 

unless the policy entitles the insured to those benefits.” Id. at 500 (internal quotations omitted). 

Thus, to survive summary judgment, McCall must show she suffered an injury independent of the 

benefits owed under her insurance policy. 

McCall has not done so here. First, McCall’s extra-contractual claims are all based on 

State Farm’s alleged mishandling of her claim. See Doc. 1-5, Pet., ¶¶ 39–45 (detailing State 

Farm’s unfair settlement practices relating to its handling of McCall’s claim); id. ¶¶ 46–49 

(detailing State Farm’s failure to make prompt payment for McCall’s claim), id. ¶¶ 50–52 

(detailing State Farm’s breach of the duty of good faith and fair dealing by failing to adequately 

investigate McCall’s claim); id. ¶¶ 53–55 (detailing State Farm’s violations of the TDTPA 

resulting from its investigation and conclusion of McCall’s claim); id. ¶¶ 56–59 (detailing State 

Farm’s fraudulent statements in investigating McCall’s claim). And McCall has already received 

all the benefits to which she is entitled under claim through the appraisal.

Second, the only damages McCall asserts are attorney’s fees and additional interest under 

Chapter 542 of the Insurance Code. Doc. 27, Resp., 16. These damages cannot constitute 

independent injury. McCall is not entitled to additional interest under Chapter 542 of the 

Insurance Code or the Texas Prompt Payment of Claims Act (“TPPCA”). This chapter “imposes 

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procedural requirements and deadlines on insurance companies to promote the prompt payment 

of insurance claims” as well as “specific requirements and deadlines for responding to, 

investigating, and evaluating insurance claims.” Barbara Techs. Corp., 589 S.W.3d at 812 (first 

citing Tex. Ins. Code § 542.054 and then citing Tex. Ins. Code § 542.055–.056). To establish a 

violation under the TPPCA, an insured must show “(1) the insurer’s liability under the insurance 

policy, and (2) that the insurer has failed to comply with one or more sections of the TPPCA in 

processing or paying the claim.” Id. at 813. Once an insured establishes a TPPCA violation, she 

may recover “interest on the amount of the claim at the rate of 18 percent a year as damages, 

together with reasonable and necessary attorney’s fees.” Tex. Ins. Code § 542.060(a). 

Here, regardless of whether State Farm is liable under the policy, State Farm’s interest 

payment moots McCall’s TPPCA claim. State Farm issued McCall $670.17 in potential TPPCA 

interest on the same day it paid the appraisal award. Doc. 24, Def.’s Mot. App., 91. This payment 

covered any potential interest owed dating back to August 6, 2021, the date of State Farm’s first 

inspection. See id. at 30. This likely exceeds any interest State Farm owed under the TPPCA, as 

State Farm did not accept the claim and notify McCall of its intent to pay the claim until after 

this date. See Tex. Ins. Code § 542.057 (requiring an insurer to issue payment within five

business days of notifying a claimant of its intent to pay a claim); id. § 542.060 (providing interest 

will begin to accrue “beginning on the date the claim was required to be paid”); Doc. 23, Mot. 

Br., 3 (explaining State Farm accepted the claim and provided written notice to McCall on 

August 17, 2021) (citing Doc. 24, Def.’s Mot. App., 26). Further, McCall does not appear to 

contest this calculation. Instead, she argues she is entitled to additional interest and the 

attorney’s fees State Farm has refused to pay. See Doc. 27. Resp., 14 (“State Farm . . . owed 

interest and attorney’s fees, which was not paid within any fathomable statutory deadline.”). But, 

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McCall has offered no explanation as to why State Farm’s interest payment is insufficient and, as 

discussed below, McCall is not entitled to attorney’s fees and thus cannot base any claim for 

interest on State Farm’s refusal to pay those fees. 

As to attorney’s fees, again, the Texas Supreme Court’s decision in Ortiz forecloses

McCall’s request. See 589 S.W.3d at 135. There, as stated above, the court held that attorney’s 

fees “incurred in the prosecution or defense of a claim” do not constitute damages owed. Id.

(citing In re Nalle Plastics, 406 S.W.3d at 173). Instead, McCall must prevail on her extracontractual claims and recover actual damages before she may request attorney’s fees. See Tex. 

Ins. Code § 541.152(a)(1). She has provided no evidence that she sustained damages other than 

the amount identified by the appraisal award and thus cannot prevail on her extra-contractual 

claims. Therefore, she is not entitled to her attorney’s fees for her extra-contractual claims. 

Because McCall has presented no evidence demonstrating an independent injury to 

sustain her extra-contractual claims, the Court cannot conclude any dispute of material fact 

remains. Thus, the Court GRANTS State Farm’s Motion as to McCall’s extra-contractual 

claims. 

IV.

CONCLUSION

Because McCall has recovered all of the benefits she is entitled to under her insurance 

policy, she cannot maintain a breach of contract claim against State Farm. Further, because she 

has presented no evidence of an injury independent of the recovered policy benefits, she cannot 

maintain her extra-contractual claims against State Farm. For these reasons, the Court 

GRANTS State Farm’s Motion for Summary Judgment (Doc. 22). 

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SO ORDERED.

SIGNED: August 17, 2023. 

_________________________________

JANE J. BOYLE

UNITED STATES DISTRICT JUDGE

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