Reversed and remanded and Memorandum Opinion filed April 30, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00082-CV

ARMAN A. SHAFIGHI, Appellant

V.

TEXAS FARMERS INSURANCE COMPANY, Appellee

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 2009-69062

M E M O R A N D U M O P I N I O N

Arman A. Shafighi sued Texas Farmers Insurance Company (Farmers) when 

it denied his claim for fire damage to his house. The trial court granted summary

judgment to Farmers, concluding that Shafighi could not recover because he failed 

to participate in a sworn examination as part of Farmers’ investigation. Because 

the insurance policy at issue permits Farmers to abate the case until Shafighi 

complies with the relevant policy provisions, but does not entitle it to summary 
2

judgment under these circumstances, we reverse and remand. 

BACKGROUND

Farmers insured a house in Houston that Shafighi owned. When fire 

damaged the building, Shafighi sought to collect on his policy. The insurance 

policy assigned certain “duties after loss” to Shafighi, among which were 

“cooperat[ing] with [the insurer’s] investigation” and “submit[ting] to 

examinations under oath.”

Over approximately six months, Shafighi and Farmers unsuccessfully

attempted to schedule Shafighi’s examination under oath. The parties’ 

correspondence states that Shafighi lived in California following the fire and feared 

returning to Houston because he believed the man responsible for burning his 

house would do him harm. Shafighi asked to conduct the examination in 

California; this was not acceptable to Farmers. Shafighi’s lawyer eventually 

suggested a “telephonic statement,” but Farmers believed proceeding 

telephonically would interfere with the exchange and identification of exhibits. 

Notwithstanding the parties’ inability to agree on a suitable examination 

location, Farmers scheduled two examinations in Houston. It is unclear from the 

record whether Shafighi agreed to these examinations, but it is undisputed that he 

did not attend them. Farmers also communicated to Shafighi’s lawyer that it 

“t[ook] exception . . . to” the untimely “proof-of-loss” form that Shafighi 

submitted. In a faxed letter, the insurer stated that, among other things, portions of 

the form were left blank and Shafighi “did not present a total amount being 

claimed.”

Approximately six months after first contacting Shafighi for an examination,

Farmers denied coverage. According to Farmers, the denial resulted from, among 
3

other things, Shafighi’s “[f]ailure to provide his examination under oath” and 

“failure to provide a timely and sufficient inventory [of losses].” 

Shafighi later sued Farmers, alleging several causes of action. Farmers 

moved for traditional summary judgment, arguing that Shafighi’s failure to 

participate in an examination under oath and “submit[ ] a properly completed 

‘Proof of Loss’”1constituted the failure of conditions precedent to Farmers’ 

performance, which relieved it of the obligation to pay Shafighi’s claim. 

Shafighi’s response argued that the reasonableness of his refusal to be examined in 

Houston raised fact questions precluding summary judgment. 

The trial court granted summary judgment in a detailed order, concluding as 

a matter of law that the disputed facts upon which Shafighi relied, even if true,

“d[id] not amount to sufficient defense or excuse for failing to sit for an 

[examination].” Accordingly, the court found that Shafighi “failed to comply with 

a condition precedent to suit,” and it granted Farmers summary judgment on that 

basis. 

In a motion for new trial, Shafighi pointed out that even if he failed to 

comply with the examination-under-oath requirement, under well-established 

Texas law, “[t]he insurer’s proper remedy to enforce the examination under oath 

condition precedent is abatement rather than bar” (internal quotation marks and 

brackets omitted). The trial court denied the new trial motion, and Shafighi 

appealed the grant of summary judgment. 

 

1

Shafighi argues that Farmers’ summary judgment motion failed to raise his allegedly 

insufficient proof of loss as a basis for summary judgment. For purposes of our analysis, we 

assume, without deciding, that the motion sufficed to raise this ground.
4

ANALYSIS

In his first and second issues on appeal, Shafighi argues that under the policy 

terms, the remedy for noncompliance with the examination-under-oath requirement 

is abatement until he complies, not summary judgment. Because the great weight 

of authority construes such provisions as supporting only abatement, we agree. 

We also reject Farmers’ argument that Shafighi’s failure to urge this interpretation 

of the policy when initially opposing summary judgment precludes us from 

adopting it on appeal. Finally, with respect to Shafighi’s fourth issue, we conclude 

that the allegedly inadequate proof-of-loss form that Shafighi submitted does not 

entitle Farmers to summary judgment. For these reasons, the summary judgment 

must be reversed, and we need not reach Shafighi’s other issues.

I. Standard of review

We review a trial court’s order granting traditional summary judgment de 

novo. Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007). To be 

entitled to summary judgment, the movant must demonstrate that no genuine issues 

of material fact exist and that he is entitled to judgment as a matter of law. Tex. R. 

Civ. P. 166a(c). If the movant does so, the burden shifts to the non-movant to 

produce evidence sufficient to raise a fact issue. Walker v. Harris, 924 S.W.2d 

375, 377 (Tex. 1996). When reviewing a summary judgment motion, we cannot 

read between the lines or infer from the pleadings or evidence any grounds for 

summary judgment other than those expressly set forth before the trial court. 

Olmstead v. Napoli, 383 S.W.3d 650, 652 (Tex. App.—Houston [14th Dist.] 2012, 

no pet.)
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II. Because the policy does not bar Shafighi’s recovery for failure to 

comply with the examination-under-oath requirement, but merely 

allows Farmers to abate the case until Shafighi complies, the trial court 

erred in granting summary judgment.

Insurance policies are contracts, and we construe them using ordinary rules 

of contract interpretation. Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 

828, 831 (Tex. 2009). Our cardinal concern is determining the parties’ intent as 

reflected in the terms of the policy itself. Id. Accordingly, we give policy 

language its plain, ordinary meaning unless something else in the policy shows the 

parties intended a different, technical meaning. Id. 

Here, the policy provides that, “as often as [Farmers] reasonably require[s],” 

the insured must “submit to examinations under oath.” The parties agree that the 

policy’s penalty for breach of the examination-under-oath requirement is as 

follows: 

No suit or action can be brought against us, our agents or our

representatives unless there has been full compliance with all the 

terms of this policy. Action brought against us, our agents or our 

representatives must be started within two years and one day after the 

cause of action accrues.

Farmers construes this provision to mean that “failure to comply with the 

condition precedent of submitting to an Examination under Oath is a reasonable

basis for denying an insured’s claim.”

2

 Shafighi counters that such a provision 

 

2

Farmers points to language from two cases addressing an insurer’s remedy for the 

insured’s failure to cooperate with defending a third-party claim. See Universal Auto. Ins. Co. v. 

Culberson, 86 S.W.2d 727, 728, 731 (Tex. 1935) (insured “refused to co-operate with the 

company in making a full and fair defense of the action; and had colluded with [third party] in 

such manner as to permit the judgment to go against [insured]”); Empl’rs Liab. Assurance Corp. 

v. Mosley, 460 S.W.2d 201 (Tex. Civ. App.—Houston [14th Dist.] 1970, no writ) (fact issues 

surrounding whether insured cooperated with investigation precluded summary judgment in third 

party’s suit against insurer). These cases do not support Farmers’ construction because neither

turned upon a “no-suit-until” or “no-suit-unless” clause like the one at issue here.
6

forbids the insured from bringing suit prior to compliance, but it does not permit 

the insurer to deny coverage altogether. He argues that the only remedy available 

to Farmers is abatement, which it has not yet requested.

For the better part of a century, Texas courts have interpreted similarly

phrased provisions as Shafighi suggests. These provisions mean that “[i]f the 

insured refuses to submit to the examination . . . he only delays the time when he 

can recover on his policy.” Humphrey v. Nat’l Fire Ins. Co., 231 S.W. 750, 752 

(Tex. Comm’n App. 1921, judgm’t adopted). Thus, “a failure or refusal to submit 

to examination after loss does not bar recovery, but merely suspends the right of 

recovery until the examination is complied with.” Phila. Underwriters’ Agency of 

Fire Ins. Ass’n v. Driggers, 238 S.W. 633, 635 (Tex. 1922). Because failure to 

comply merely “suspends the right of recovery,” the insurer’s remedy is to abate 

the case until it obtains the required compliance, not to deny coverage entirely.

3

 

See id.; see also In re Slavonic Mut. Fire Ins. Ass’n, 308 S.W.3d 556, 565 (Tex. 

App.—Houston [14th Dist.] 2010, no pet.) (“An insurer’s remedy to enforce a 

condition precedent in its policy is abatement of the case.”). 

In Humphrey, for example, the policy provided: “No suit or action on this 

policy for the recovery of any claim shall be sustainable in any court of law or 

equity until after full compliance by the insured with all the foregoing 

requirements, [including examination under oath,] nor unless commenced within 

two years next after the fire.” 231 S.W. at 752 (internal quotation marks omitted). 

The commission of appeals interpreted this provision to make examination a 

condition precedent to bringing suit. See id. Thus, the effect of failure to comply 

 

3 We note that abatement to comply with a condition precedent does not permit a matter 

to linger on the docket forever. To the contrary, “it is well-settled law that, if a trial court 

discovers that the plaintiff has failed to correct a defect or impediment to suit after an abatement 

has been granted, the trial court may properly dismiss the plaintiff’s case.” 3V, Inc. v. JTS 

Enterprises, Inc., 40 S.W.3d 533, 540 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
7

was “not to forfeit or avoid the policy and bar recovery on it, but to suspend the 

right of payment or recovery until the answers are given in compliance with the 

condition.” Id. Failure to comply with the provision therefore supported “a plea in 

abatement, rather than one in bar.” Id.

We have given the same effect to policies providing that “‘[n]o suit or action 

on this policy for the recovery of any claim shall be sustainable . . . unless all the 

requirements of this policy shall have been complied with.’” In re Slavonic Mut. 

Fire Ins. Ass’n, 308 S.W.3d at 559, 564–65 (discussing appraisal provision). Other 

courts of appeals that have interpreted identical or substantially similar language

agree. State Farm Gen. Ins. Co. v. Lawlis, 773 S.W.2d 948, 949 (Tex. App.—

Beaumont 1989, no writ) (identical language); In re Cypress Tex. Lloyds, No. 13-

11-00248-CV, 2011 WL 3631314, at *10–*11 (Tex. App.—Corpus Christi Aug. 

15, 2011, orig. proceding) (mem. op.) (phrase “‘[n]o suit or action can be brought 

unless the policy provisions have been complied with’” meant “the remedy [for 

noncompliance with examination provision] is abatement of the case”). Federal 

district courts applying Texas law are also in accord. See, e.g., Brown v. State 

Farm Lloyds, No. V-10-63, 2012 WL 1077668, at *3–*4 (S.D. Tex. Mar. 29, 

2012); Rossco Holdings, Inc. v. Lexington Ins. Co., No. H-09-CV-04047, 2011 WL 

1363799, at *4 (S.D. Tex. Apr. 11, 2011) (“[I]t is well-settled law in Texas that 

abatement rather than exclusion or barring of a claim is the insurer’s appropriate 

remedy for enforcement of an insured’s conditions precedent to coverage.”).

Farmers attempts to distinguish some of the above-cited cases, but it does 

not argue that the terms of this policy differ materially from the terms construed in 

those cases. Nor does it argue that abatement would be futile, a circumstance in 

which some authorities have rejected abatement as a remedy in other contexts. Cf.

Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 197 (Tex. 2004) 
8

(Jefferson, J., concurring) (arguing that abatement was improper remedy when 

evidence established that it would accomplish nothing). Accordingly, we adhere to

the well-established interpretation that failure to comply with such policy terms

supports only an abatement. 

For these reasons, we decline Farmers’ invitation to follow Perrotta v. 

Farmers Insurance Exchange, 47 S.W.3d 569 (Tex. App.—Houston [1st Dist.] 

2001, no pet.). In that case, an insured completed an examination under oath, but 

his failure to sign and swear to it violated policy provisions. Id. at 574. The court

held that the insured’s “breach of the policy precludes him from maintaining suit 

for breach of contract” and affirmed the grant of summary judgment for the 

insurer. Id. at 574–75.

Perrotta makes no mention of a “no-suit-until” or “no-suit-unless” provision 

like the ones discussed above. Perhaps the policy in Perrotta contained no such 

provision, or perhaps there was such a provision, but the court and the parties 

overlooked it. Whatever the reason, Perrotta did not address the policy language 

that controls our analysis here, so it does not support Farmers’ position. The 

policy at issue here only entitles Farmers to an abatement, and the trial court erred 

by granting it summary judgment based on Shafighi’s failure to comply with the 

examination-under-oath requirement. 

III. Shafighi’s failure to request abatement when opposing summary 

judgment below does not waive this construction of the policy. 

Farmers also contends that Shafighi waived the construction of the policy we 

adopt above by failing to argue for it when opposing summary judgment in the trial 

court. We disagree.

Although the “answer or response [to a summary judgment] motion must 

fairly apprise the movant and the court of the issues the non-movant contends 
9

should defeat the motion,” this rule does not “shift[ ] the burden of proof that exists 

in summary judgment proceedings.” City of Houston v. Clear Creek Basin Auth., 

589 S.W.2d 671, 678 (Tex. 1979). To the contrary, even if the non-movant fails to 

respond altogether, the movant must establish an entitlement to summary judgment 

as a matter of law. Id. In this way, “[s]ummary judgments must stand on their 

own merits, and the non-movant’s failure to answer or respond cannot supply by 

default the summary judgment proof necessary to establish the movant’s right.” 

Id.

Here, the insurer moved for summary judgment based on the policy’s 

examination-under-oath provision, which it contended excused its performance 

because Shafighi never submitted to an examination. As just discussed, however, 

Shafighi’s alleged noncompliance did not excuse the insurer’s performance

entirely, but only prevented Shafighi from maintaining a lawsuit until he complied. 

Thus, the policy terms upon which Farmers relied for summary judgment only 

entitle it to an abatement. Shafighi’s failure to identify this fact initially does not

alter the contract’s terms or otherwise supply the summary judgment proof lacking 

from Farmers’ motion. See Gary E. Patterson & Assocs. v. Holub, 264 S.W.3d 

180, 195 n.6 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (failure to assert 

particular statutory construction in summary judgment response did not bar 

construction on appeal). 

Because Farmers never met its summary judgment burden, the burden never 

shifted to Shafighi and he was not required to explain the correct policy 

construction. See City of Houston, 589 S.W.2d at 678. We therefore reject 

Farmers’ argument that Shafighi’s failure to argue initially for a correct 

construction of the insurance policy precludes us from correctly construing it on 

appeal. Because the correct construction shows that Farmers is not entitled to 
10

summary judgment based on Shafighi’s failure to comply with the examination 

requirement, we sustain Shafighi’s first and second issues, reverse the summary 

judgment, and remand for further proceedings.4

IV. Shafighi’s allegedly insufficient proof-of-loss statement does not entitle 

Farmers to summary judgment.

Turning to Shafighi’s fourth issue, although Farmers arguably raised 

Shafighi’s failure to provide a “sufficient” proof of loss as one of the grounds in its 

summary judgment motion, the trial court specified the basis for its decision and 

did not rule on this ground. As a result, although we may address this ground on 

appeal, we are not required to do so. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 

623, 625 (Tex. 1996). Having decided to remand the case, however, we will 

address this ground in the interest of judicial economy. See id.

Based upon our review of the record, it appears that Farmers did not file the 

proof-of-loss form it believes to be insufficient as part of its summary judgment 

evidence. The only evidence of the form’s alleged inadequacy is an unsworn fax 

from Farmers’ lawyer to Shafighi’s lawyer describing why Farmers “t[ook] 

exception” to certain parts of the proof of loss. Farmers’ lawyer filed a sworn 

affidavit stating that he wrote the fax, but he did not swear to the truth of its 

contents. Farmers appears to argue that this proof established its entitlement to 

judgment as a matter of law.5

 

4 Given this disposition, it is not necessary for us to reach Shafighi’s third issue, in which 

he argues that a fact question regarding whether Farmers’ terms for the examination were 

reasonable precludes summary judgment. We express no opinion on that issue. We also do not 

reach Shafighi’s fifth issue, in which he argues that at minimum, summary judgment was 

improper on certain claims that he contends are independent of the parties’ contractual 

obligations.

5

Farmers also argues that Shafighi may not oppose this summary judgment ground 

because his summary judgment response in the trial court failed to address it. We disagree for 

the reasons discussed in the previous section.
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Even if we assume, without deciding, that Shafighi submitted an inadequate 

proof of loss, the proof-of-loss “duty” appears in the same contract section as the 

examination-under-oath “duty.” As discussed above, the policy provides that the 

consequence of breaching either duty is that Shafighi cannot bring suit until he 

complies. Therefore, even assuming that Shafighi failed to comply, Farmers’

remedy is not summary judgment but abatement. In re Cont’l Cas. Co., 14-10-

00709-CV, 2010 WL 3703664, at *5 (Tex. App.—Houston [14th Dist.] Sept. 23, 

2010, orig. proceeding) (mem. op.) (where “[t]he insurance policy . . . provides 

that all requirements precedent to coverage must be met before suit is filed,” 

“insurer’s remedy to enforce a condition precedent in its policy is abatement of the 

case”). We therefore reject Farmers’ argument that flaws in Shafighi’s proof-ofloss form can support summary judgment.

CONCLUSION

For these reasons, the trial court erred in granting Farmers summary 

judgment. We therefore reverse and remand for further proceedings.

/s/ J. Brett Busby

Justice

Panel consists of Chief Justice Hedges and Justices Brown and Busby.