Vanessa Anderson v. American Risk Insurance Company, Inc. ( 2015 )

ACCEPTED
2012-68212
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/25/2015 10:34:36 AM
CHRISTOPHER PRINE
CLERK
Case No. 01-15-00257-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE HOUSTON, TEXAS
FIRST DISTRICT OF TEXAS 11/25/2015 10:34:36 AM
CHRISTOPHER A. PRINE
Clerk
VANESSA ANDERSON,
Plaintiff/Appellant,
v.
AMERICAN RISK INSURANCE COMPANY, INC.,
Defendant/Appellee.
ON APPEAL FROM CAUSE NO. 2012-68212
295TH DISTRICT, HARRIS COUNTY, TEXAS
BRIEF OF APPELLANT
Prepared and Submitted by:
Scott G. Hunziker
The Voss Law Firm, P.C.
26619 Interstate 45 South
The Woodlands, Texas 77380
(713) 861-0015 Telephone
(713) 861-0021 Facsimile
Scott@VossLawFirm.com
Attorney for Plaintiff/Appellant
ORAL ARGUMENT REQUESTED
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CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed
individuals and entities have an interest in the outcome of this case.
APPELLANT:
Vanessa Anderson
APPELLANT’S TRIAL AND APPELLATE ATTORNEY:
Scott G. Hunziker
The Voss Law Firm, P.C.
26619 Interstate 45 South
The Woodlands, Texas 77380
Email: Scott@VossLawFirm.com
Telephone: (713) 861-0015
Facsimile: (713) 861-0121
APPELLEE: American Risk Insurance Company, Inc.
APPELLEE’S TRIAL AND APPELLATE ATTORNEY:
George Arnold
Thompson, Coe, Cousins & Irons, L.L.P.
One Riverway Ste. 1600
Houston, Texas 77056
Telephone: (713) 403-8210
Facsimile (713)403-8299
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SUMMARY OF THE CASE AND
REQUEST FOR ORAL ARGUMENT
The outcome of this appeal will genuinely affect the lives of policyholders
across Texas who own homes and businesses alike. Appellant, Vanessa Anderson,
suffered incredible structural damage to her residential property (the "Property")
due to a tree falling upon and literally splitting her home in half. Worse yet,
although Appellee, her own carrier, systematically collected premiums from Ms.
Anderson, it nevertheless underpaid policy proceeds and abandoned its own
insured when tragedy struck and coverage was clear. Adding to the above,
payment was (and remains) desperately needed by Appellant to repair the Property,
which still has not been fully restored as a result of Appellee’s conduct.
From the outset of Appellant’s claim, Appellee not only delayed and denied
payment to Ms. Anderson on her loss, but then sought to additionally deny justice
to its insured once more through a hollow motion for summary judgment, aimed at
all of Appellant’s claims and causes of action. This was filed immediately after the
completion of the appraisal process, which Appellee conveniently waited to invoke
until after Appellant was forced to hire a lawyer, incur undue costs, and initiate a
lawsuit in order to survive. However, as can be seen from the evidence supplied to
the Trial Court during the summary judgment process, material issues of fact
existed, and summary judgment was granted in error. The same must now be
reversed if justice is to prevail.
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TABLE OF CONTENTS
Certificate of Interested Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Summary of the Case and Request for Oral Argument ........ 3
Table of Authorities & Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statement of the Jurisdiction ............................. 6
Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statement of the Issues ................................... 7
Statement of the Case ................................... 8
Summary of the Argument .............................. 9
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. Applicable Standard of Review Demonstrates Summary
Judgment Must be Reversed . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
B. The Trial Court Erred in Granting Summary Judgment in
Favor of the Appellee, as Material Issues of Fact Clearly
Existed in this Matter as to all Appellant’s Claims and Causes
of Action . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
C. The Trial Court Erred in Granting Summary Judgment in
Favor of the Appellee, as Texas Law Has Recognized that
Payment of an Appraisal Award Does Not at all Preclude a
Policy Holder From Proceeding to Trial on Certain of the
Claims Within the Subject Litigation . . . . . . . . . . . . . . . . . . . . 16
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .... 23
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TABLE OF AUTHORITIES
Cases
Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997) . . . . . 10
City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005) . . . . . . . . . 10, 12
Cmty. Initiatives, Inc. v. Chase Bank, 153 S.W.3d 270, 280
(Tex. App.–El Paso 2004, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150, 157 (Tex. 2004)(emphasis supplied) . . . . . . . . . . . . . 10
Lowe’s Home Ctrs., Inc. v. GSW Mktg., Inc., 293 S.W.3d 283, 287
(Tex. App.–Houston [14th Dist.] 2009, pet. denied). . . . . . . . . . . . . . . 11
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006) . . 12
Valence Opera-ting Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) . 11
Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907
(Tex. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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STATEMENT OF THE JURISDICTION
The present appeal arises from a state court matter, originally pending
before the 295th District of Harris County, Texas. As such, and because it was
appealed directly to the Court of Appeals for the First District, this matter is
properly before this Honorable Court.
PROCEDURAL BACKGROUND
As stated in Appellant’s Original Petition, Ms. Anderson sued at the Trial
Court level for both contractual and extra-contractual remedies, due to the severe
and continuing damages suffered by her, and specifically to her property, which
made basis of said lawsuit. Appellant’s present causes of action included contractual
and extra-contractual claims for (1) breach of contract; (2) violations of the Texas
Deceptive Trade Practices Act; (3) violations of the Texas Insurance Code; and (4)
breach of the duty of good faith and fair dealing. As the Texas law supplied below
will show, Appellant’s extra-contractual claims against Appellee exist
independently of its contractual cause of action, and are well-founded based upon
Appellee’s abhorrent conduct in this matter.
Specifically, after attempting yet failing to resolve this matter on her own,
Appellant was forced to retain legal representation. Nevertheless, Appellee
thereafter not only continued to delay and deny payment to Appellant, which
endured for more than a year after the date of loss, but then predictably sought to
invoke appraisal after an unsuccessful mediation. Notably, no other efforts by
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Appellee to resolve this claim had been attempted since this matter was made, until
after suit was filed and subsequent to an unsuccessful mediation. Appellee then
filed the baseless motion for summary judgment, asking the Trial Court to to
disregard its pattern of bad faith conduct. Accordingly, the resulting Court Order
granting the same, and the accompanying Judgment reflecting this ruling, was a
product of error and must be reversed.
STATEMENT OF THE ISSUES
The following issues are subject of the present appeal, and require reversal
of the Trial Court’s Order granting summary judgment, as well as the resulting
Final Judgment, as both were clearly derived in error:
A. The Trial Court erred in granting summary judgment in favor of the
Appellee, as material issues of fact clearly existed in this matter as to all
Appellant’s contractual and extra-contractual claims and causes of action, based
upon Appellant’s own sworn testimony, which speaks directly to the untoward
conduct of the Appellee; and
B. The Trial Court erred in granting summary judgment in favor of the
Appellee, as Texas law has recognized that payment of an appraisal award does not
at all preclude a policy holder from proceeding to trial on certain of its remaining
claims within the subject litigation.
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STATEMENT OF THE CASE
This appeal involves a very simple matter, which is unencumbered by
peripheral and unrelated issues. Simply put, a policy holder endured horrible
conditions leading up to the underlying litigation, as to which she was forced to
hire counsel to pursue. After her lawsuit began, the insurance company attempted
to unduly preclude the ability of this Appellant to have her day in court by making
an untimely invocation of the appraisal process. The same was ultimately allowed
by the Trial Court, a finding which was erroneous in itself, yet the process ensued
and ultimately, an award of additional funds was derived.
After the above exercises took place, the award funds were paid by the
Appellee carrier, who then quickly moved for a summary judgment as to not only
the contractual parts of Appellant’s lawsuit, but also as to all extra-contractual
causes of action, including but not limited to allegations under the Texas Insurance
Code, Deceptive Trade Practices Act, as well as violations of the duties of good
faith and fair dealing, to which it was incumbent upon the Appellee to adhere (both
during the original claims process and throughout the litigation to follow).
Summary Judgment was ultimately granted, in the face of the evidence showing
what horrific circumstances led up to the same, thereby making this appeal
necessary. Based upon the above-referenced facts, as well as existing opinions to
the contrary by Texas courts, the Trial Court’s Order granting summary judgment
in favor of the Appellee must be reversed.
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SUMMARY OF THE ARGUMENT
The Trial Court’s Order granting summary judgment on all contractual and
extra-contractual claims advanced by the Appellant in this matter was derived in
error due, to the circumstances leading up to the appraisal process. All of the same
took place after Appellant was forced to hire counsel and proceed into litigation.
Essentially, Appellant was treated horribly at worst, and unprofessionally at best,
by its own insurance company, during the months subsequent to a large tree
literally falling onto her home and cutting her residence in two. All such facts
show that this matter must proceed to trial as to both contractual and extra-
contractual portions of this case.
Moreover, recent opinions from the United States District Court for the
Northern District of Texas - Dallas Division, agree that even upon payment of an
appraisal award in full, certain of Appellant’s causes of action survive. In the
present case, claims were made under these exact tenents of Texas Law, including
the Deceptive Trade Practices Act and the Texas Insurance Code. As the
referenced opinion speaks to these exact causes of action, the same should be
allowed to proceed to trial, and the Trial Court’s Order granting summary judgment
to these specific parts of the litigation must be reversed in its entirety, and
remanded to the Trial Court for a full trial on the merits.
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ARGUMENT
As will be shown below, the rudiments of Texas law in regard to the granting
of sumamry judgment, taken in light of the facts at issue in the presnt matter, make
it clear that no summary judgment should ever have been granted in this case.
Accordingly, both the Order granting the same, as well as the final Judgment based
thereon, were derived at in error and now must be reversed as to the causes of
action specified and addressed below.
A. The Applicable Standard of Review Demonstrates That Summary
Judgment Must be Reversed.
Under Texas law, regardless of whether a movant seeks summary judgment
on a traditional basis or on no-evidence grounds, the reviewing court is to apply the
standard of review appropriate for each type of summary judgment, taking as true
all evidence favorable to the non-movant and indulging every reasonable inference
and resolving any doubts in the non-movant’s favor. See Joe v. Two Thirty Nine
Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004)(emphasis supplied). In a
traditional motion for summary judgment, the movant has the burden of showing
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); Am. Tobacco Co. v. Grinnell, 951 S.W.2d
420, 425 (Tex. 1997).
Specifically, to be entitled to traditional summary judgment, a Defendant
must conclusively negate at least one essential element of each of the Plaintiff’s
causes of action or conclusively establish each element of an affirmative defense.
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Id. Moreover, evidence is conclusive only if reasonable people could not differ in
their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
Once the Defendant establishes its right to summary judgment as a matter of law,
the burden shifts to the Plaintiff to present evidence raising a genuine issue of
material fact. Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907
(Tex. 1982). Finally, rulings on summary judgments are reviewed de novo on
appeal. Valence Opera-ting Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)
(emphasis added).
In a no-evidence summary judgment, the movant must show that there is
absolutely no evidence of one or more essential elements of the claims for which
the non-movant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i); Lowe’s
Home Ctrs., Inc. v. GSW Mktg., Inc., 293 S.W.3d 283, 287 (Tex. App.–Houston
[14th Dist.] 2009, pet. denied). A no-evidence summary judgment may be granted
when (a) there is a complete absence of evidence of a vital fact, (b) the court is
barred by rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more
than a mere scintilla, or (d) the evidence conclusively establishes the opposite of
the vital fact. Lowe’s, 298 S.W.3d at 287-88 (citing Merrell Dow Pharms., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
“Evidence does not exceed a scintilla if it is ‘so weak as to do no more than
create a mere surmise or suspicion’” that the challenged fact exists. Akin, Gump,
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Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106,
115 (Tex. 2009) (quoting Kroger Tex. L.P. v. Subaru, 216 S.W.3d 788, 793 (Tex.
2006). Once again, within this particular context, rulings on summary judgments
are reviewed de novo on appeal. Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005) (emphasis added).
Continuing, a non-moving party is “not required to marshal its proof; its
response need only point out evidence that raises a fact issue on the challenged
elements.” Tex. R. Civ. P. 166a (Notes & Comments 1997). The non-movant must
only point to some, but not all, evidence supporting challenged elements. Cmty.
Initiatives, Inc. v. Chase Bank, 153 S.W.3d 270, 280 (Tex. App.–El Paso 2004, no
pet.). In addition, a no-evidence summary judgment motion is essentially a motion
for a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82
(Tex. 2006). The reviewing court is required to apply the same legal sufficiency
standard of review that is applied when reviewing a directed verdict. City of Keller
v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005).
Further, the reviewing court is required to review a no-evidence summary
judgment for evidence that would enable reasonable and fair-minded jurors to
differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d at 425, 426 (Tex.
2008) (citing City of Keller, 168 S.W.3d at 822). Ultimately, the court views the
summary judgment evidence in the light most favorable to the party against whom
summary judgment is sought, crediting evidence favorable to that party if
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reasonable jurors could, and disregarding contrary evidence unless reasonable
jurors could not. See Mack Trucks, 206 S.W.3d at 582; City of Keller, 168 S.W.3d
at 822.
B. The Trial Court Erred in Granting Summary Judgment in Favor
of the Appellee, as Material Issues of Fact Clearly Existed in this
Matter as to all Appellant’s Claims and Causes of Action.
The affidavit testimony of Vanessa Anderson shows exactly why summary
judgment must be reversed. On June 12, 2012 at approximately 5:30 p.m.,
Appellant called the American Risk Insurance Company claims department after
receiving a call from her father informing her that a tree fell through her house.
When the stormed happened, Appellant’s brother, Sean Anderson, was present in
Appellant’s son’s room, just before an enormous tree literally crashed through that
exact room. Sean was able to make it to the hallway safely and saw water gushing
out of the hallway bathroom because it too, had been crushed.
After several attempts, Sean was unable to reach Appellant because there
was no cellular service. Appellant’s brother was finally able to reach Appellant’s
father, Michael Anderson. Appellant’s father then called to let Appellant know her
house was damaged. Appellant called her insurance company to report the claim,
but reached an answering service. A representative informed Appellant that
someone would be in contact with her. See Tab “1” para. 2. On June 12, 2012 at
approximately 7:00 p.m. Appellant arrived at her house and it was still raining.
Her neighbor, Cathy Vantreese, already had a tree company removing the tree that
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had punctured her garage and already had a tarp in place to cover the holes to
prevent further damage. See Tab “1” at para. 2.
June 12, 2012, at approximately 7:30 p.m., Appellant called the claims
department again to tell them that she had no running water or electricity, and
asked what she was suppose to do. Appellant, who is a single mom and did not
have the funds to relocate, expressed her frustration with the situation and the fact
that she was faced with an emergency, and still was not able to talk to anyone at
American Risk. Despite the damage suffered to Appellant’s home, her house did
not get tarped that evening, but instead it remained open, risking both further
structural damage as well as the possibility of having her property stolen. See Tab
“1” at para. 4.
On June 13, 2012, and after not receiving a return call from American Risk,
Appellant called their office once they opened and she spoke to Chad Pleasant.
Mr. Pleasant was not even aware that Appellant had event called the answering
service the night before with an emergency. Mr. Pleasant didn’t ask Appellant if
she was okay, and never informed her of what steps were required to protect the
home. Mr. Pleasant told Appellant that someone would be out to the home in a few
days. See Tab “1” at para. 5.
Appellant also inquired about money to secure a temporary place to live
since her home was so badly damage. She told Mr. Pleasant that she was a single
mother who didn’t have the money to cover the unexpected expenses. Appellant
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was told she would have to submit any receipts and that she would be held
responsible for any further damage to her property. Mr. Pleasant told Appellant he
would call her back right away, but he did not promptly return her call, as
promised. Accordingly, despite all her referenced efforts, Appellant still had no
answers from the insurance company, still had a tree though the roof of her home
and nowhere to live. See Tab “1” at para. 5.
Appellant submitted receipts to her insurance carrier as requested. However,
the reimbursements were severely delayed and caused a financial strain on her and
her family. Had she been told this from the beginning, and after having been
displaced from her home for four (4) months, she could have rented an apartment
that was affordable. Accordingly, Appellant was finally forced to sign a short term
lease at The Marquis at The Woodlands from August 11, 2012 until October 10,
2012. During this time, Appellant accrued late fees because American Risk was
slow to reimburse her, although she was very prompt in submitting her receipts.
See Tab “1” at para. 6 and 7.
Appellant also submitted e-mails containing the date and time of alternative
living expenses, pictures of the damage to the house and personal belongings, and
a video of damage done to her home, which showed that her neighbor had workers
tarping the garage. She also videoed that no was was working at her property on
that day. Appellant was not able to reach a live person at American Risk on the day
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of the damage, and was merely told by the answering service that she would
receive a return call. See Tab “1” at para. 8.
Ultimately, Appellant received very little to no response from American
Risk. There are still unpaid debts owed to relatives for loans, to the apartment
complex, and to the utility companies. Clearly, Ms. Anderson has outstanding debt
from Appellee’s conduct, and now, her credit is in jeopardy. See Tab “1” at para. 9.
Based upon the abundance of proper and timely evidence submitted above, it
is clear that material issues of fact exist regarding Appellant’s claims. Appellee
was therefore not entitled to summary judgment relief granted by the Trial Court.
Accordingly, and based upon the arguments and authority set forth below, the Trial
Court’s granting of Appellee’s Summary Judgment must be reversed in its entirety.
C. The Trial Court Erred in Granting Summary Judgment in Favor
of the Appellee, as Texas Law has Recognized That Payment of an
Appraisal Award Does Not Preclude a Policy Holder From
Proceeding to Trial on Certain of the Claims Within the Subject
Litigation.
Clearly, Appellant has made a colorable claim for extra-contractual damages
in this matter, under both the Deceptive Trade Practices Act, and pursuant to both
Chapters 541 and 542 of the Texas Insurance Code, based upon the evidence
submitted herewith. Under the strict provisions of the DTPA, as it relates to
violations under the Texas Insurance Code, the law provides that “[i]n an action for
violation of chapter 541, the Appellant can recover additional damages. See Sec.
541.152(b), Tex. Ins. Code. Specifically, “[t]he total damages may amount to up to
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three times the amount of actual damages. See id. Moreover, “[i]n an action for
violation of chapter 542, the Appellant can recover statutory damages of 18% per
year on the amount of the claim. See Sec. 542.060(b), Tex. Ins. Code.
Moving forward, the same arguments, couched in long-standing case law,
applies to the extra-contractual and penalty-based remedies also sought by
Appellant. Under the strict provisions of the DTPA, as it relates to violations under
the Texas Insurance Code, the law provides that “[i]n an action for violation of
chapter 541, the Appellant can recover additional damages. See Sec. 541.152(b),
Tex. Ins. Code. Specifically, “[t]he total damages may amount to up to three times
the amount of actual damages. See id. Moreover, “[i]n an action for violation of
chapter 542, the Appellant can recover statutory damages of 18% per year on the
amount of the claim. See Sec. 542.060(b), Tex. Ins. Code.
Moving forward, Appellant contends that Appellee breached their duty of
good faith and fair dealing by failing to take many of the actions required by the
Texas Insurance Code. As discussed above, in this case, Appellant has at least
raised a fact issue as to Appellee’s breach of the Policy, numerous statutory
violations, and bad faith. This is, at a minimum, certain evidence of bad faith and
unreasonable investigation practices by Appellee, which defeats summary
judgment. As Appellant has presented proper evidence of Appellee’s breach of the
duty of good faith and fair dealing, Appellee was never entitled to summary
judgment, and the same must be reversed accordingly.
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Adding to the above, Under Texas law, Section 542.054 of the Texas
Insurance Code states “this Subchapter shall be liberally construed to promote the
prompt payment of insurance claims.” See Tex. Ins. Code Ann. § 542.054 (Vernon
Supp. 2010). Specifically, Chapter 542 requires insurers to promptly investigate
claims, promptly request additional information, promptly make payments, and
promptly provide explanations for non payment within the time periods prescribed
by the rules. See id.; See also Tex. Ins. Code §§ 542.055, 542.056, 542.057.
Based on both the letter and the spirit of the above, it is absolutely patently
unreasonable for an insurer to argue that it is in compliance with a prompt payment
provision of the Insurance Code if it has failed to make any payments after
conducting an investigation and evaluation. Appellee was therefore not in
compliance with the liberal construction of Subchapter 542, especially if read in
conjunction with the “fair and equitable” requirements of Chapter 541, which is
also to be liberally construed. In fact, Appellee failed to make any payments to
Appellant until the completion of the appraisal process. Therefore, the evidence
presented in this matter clearly raises genuine issues of material fact as to whether
Appellee violated these provisions. Accordingly, this Court must reverse the Trial
Court’s granting of Appellee’s Summary Judgment in its entirety.
Regarding Appellant’s claims for attorneys fees, “in an action for deceptive
insurance practices, the [Appellant] . . . can recover attorneys fees.” See Sec.
541.152(a)(1), Tex. Ins. Code. Finally, in an action for violation of Section 542 of
18
the Texas Insurance Code, the Appellant can also recover reasonable attorneys fees.
See Sec. 542.060(b), Tex. Ins. Code. As evidence exists in the present matter to
allow for all such causes of action to proceed past summary judgment, the Trial
Court’s granting of Appellees’ motion must be reversed in this regard.
Objectively, all such claims allow for an Appellant to recover attorneys fees
and penalty damages. “In an action for breach of contract, the parties may be
entitled to reasonable attorney fees . . . .” See Sec. 18.001, Tex. Civ. Prac. & Rem.
Code. Moreover, “under the DTPA, each prevailing Appellant must be awarded
reasonable and necessary attorney fees and costs . . . .” See Sec. 17.50(c), Tex.
Bus. & Com. Code.
In addition to the above, this issue was also squarely addressed in the matter
of Kenneth Graber vs. State Farm Lloyds, Case No. 3:13-cv-2671-B, pending
before the Honorable Jane J. Boyle, in the United States District Court for the
Northern District of Texas - Dallas Division. In Graber, State Farm argued that
because it timely paid an appraisal award in full, that all contractual and extra-
contractual damages were eliminated as a matter of course. However, the Court
disagreed, concluding “that State Farm’s fully and timely payment of the appraisal
award” does not preclude certain of Appellant’s remaining claims. The Court
further concluded that State Farm’s payment of the appraisal award also fails to
preclude Appellant from continuing to trial on certain of its extra-contractual
claims, including “Appellant’s claims under §541.061 of the Insurance Code,
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§§17.50(a)(1) and (3) of the DPTA and the TPPCA. See Graber Memorandum
Opinion and Order at pp. 18 and 19; see also Graber Order denying State Farm’s
Motion for Reconsideration. All such authority demonstrates that Appellant, who
suffered miserably at the hands of Appellee, is due her day in Court.
CONCLUSION
Appellant in this matter has brought forth an abundance of proper and timely
summary judgment evidence to show that material issues of fact exist regarding all
her causes of action under theories of contract, as well as bad faith and deceptive
trade practices. Essentially, there are a litany of considerations to be made by a
finder of fact as to each and every claim lodged by the Appellant in this matter
against Appellee.
In light of all the above, and due to such abounding issues, it is simply an
unjust and unfair outcome for Appellant to be deprived of a trial regarding the
damages she suffered due to the actions (or inaction) of the Appellee. All such
extra-contractual causes of action should therefore be allowed to proceed, and be
presented to a jury of Appellant’s peers, so that all such issues can be resolved
justly and appropriately. Because of the same, based upon the well-founded Texas
case law cited above, and as material issues of fact exist regarding all such claims,
summary judgment in this matter must be reversed completely.
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WHEREFORE, Appellant prays that this Honorable Court reverse the Trial
Court’s Final Judgment, and that this matter remanded to the Trial Court level for a
full proceeding on the merits, and for all such further relief to which Appellant may
be justly entitled.
Respectfully submitted,
/s/ Scott G. Hunziker
Scott G. Hunziker
Attorney-in-Charge
Texas Bar No. 24032446
Federal I.D. No. 38752
OF COUNSEL:
The Voss Law Firm, P.C.
26619 Interstate 45
The Woodlands, Texas 77380
Telephone: (713) 861-0015
Facsimile: (713) 861-0021
scott@vosslawfirm.com
ATTORNEYS FOR APPELLATE
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CERTIFICATE OF COMPLIANCE WITH FED.R.APP.P. 32(a)
This brief complies with the type-volume limitation of Fed.R.App.P. 2(a) (7)
(B)(iii) because this brief contains 4,775 words, excluding the parts of the brief
exempted by Fed.R.App.P. 32(a)(7) (B)(iii).
This brief complies with the preface requirements of Fed.R.App.P. 32(a) (5)
and the type style requirements of Fed.R.App.P. 32(a)(6) because this brief has
been prepared in a proportionally spaced typeface using Microsoft Word 2003 in
14-point Times New Roman font.
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CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument has
been served upon the following counsel of record in accordance with the Texas
Rules of Civil Procedure on this 25th day of November, 2015.
George Arnold
Thompson, Coe, Cousins & Irons, L.L.P.
One Riverway Ste. 1600
Houston, Texas 77056
Via Facsimile (713)403-8299
/s/ Scott G. Hunziker
____________________________________
Scott G. Hunziker
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