Mohammed Khan v. Safeco Surplus Lines, Crawford & Company and Gary Whightsil ( 2014 )

Affirmed and Memorandum Opinion filed August 12, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00024-CV
MOHAMMED KHAN, Appellant
V.
SAFECO SURPLUS LINES, CRAWFORD & COMPANY, AND GARY
WHIGHTSIL, Appellees
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Cause No. 04-DCV-135176
MEMORANDUM OPINION
In this insurance dispute, appellant Mohammed Khan 1 challenges a jury
verdict in favor of appellees Safeco Surplus Lines, Crawford & Company, and
Gary Whightsil. Khan raises many issues on appeal, which we consolidate by
subject matter. After careful review, we affirm the trial court’s judgment.
1
In both the clerk’s and reporter’s record, the name “Khan” is spelled both “Khan” and
“Kahn.” For consistency’s sake, we spell it as it is appears on the notice of appeal and judgment:
Khan.
INTRODUCTION
Khan was represented by counsel below. However, he is acting pro se on
appeal. The record of this multi-day trial contains nineteen volumes, including
numerous volumes of multi-page exhibits. Khan, even though acting pro se on
appeal, is held to the same standard as a licensed attorney and must comply with
all applicable rules of procedure. Canton-Carter v. Baylor Coll. of Med., 271
S.W.3d 928, 930 (Tex. App.—Houston [14th Dist.] 2008, no pet.). We will not
make allowances or apply different standards because a case is presented by a pro
se litigant. Id. Pro se litigants must properly present their cases on appeal because
otherwise they would have an unfair advantage over those parties who are
represented by counsel. See id.Khan’s brief is not well organized, which often makes it difficult to discern
the nature of his arguments. Further, numerous factual assertions are not supported
by record references. See Tex. R. App. P. 38.1(g) (“The brief must state concisely
and without argument the facts pertinent to the issues or points presented. . . . The
statement must be supported by record references.”). His summary of the
argument begins on page 33 of his brief and appears to be a simple repetition of his
issues presented for review. See Tex. R. App. P. 38.1(h) (“This summary must not
merely repeat the issues or points presented for review.”). Many of his arguments
are not supported with citations to authorities. See Tex. R. App. P. 38.1(i) (stating
that the brief must contain “a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record”). With these deficits
hindering our review of this case, we nonetheless begin with a brief background of
the facts.
2
BACKGROUND
In May 2001, Tasneem Khan, Khan’s wife, took out a home equity loan on
the home she and her family lived in located in Sugar Land, Texas (the Property).
Both the loan and the home were in her name only. In July 2002, the home owners
insurance on the Property lapsed. The lender, Option One Mortgage Corporation,
sent Tasneem a letter informing her that, in accordance with the terms of the Deed
of Trust, it was purchasing a force-placed insurance policy issued by Safeco on the
Property. The policy provided $250,000 in structural coverage and $25,000 in
content coverage for the borrower. The named insured under the policy was
Option One. The policy was effective from July 21, 2002 to July 21, 2003.
In late August 2002, the Khans returned home from a multiple-week family
vacation and discovered “[w]ater . . . everywhere in the house” as if there was “no
roof on the home.” On August 26, 2002, Khan reported the matter to Safeco.
According to Khan, the water in the Property came from a single air conditioning
pan leak in the attic.
Safeco assigned the claim to Crawford for adjustment and investigation.
Crawford opened a file and appointed an adjustor to handle it. By September 13,
Safeco had opened ten claims on the Property. The adjustor contacted a plumbing
company to investigate possible leaks and engineer Gary Whightsil to investigate
the loss. Whightsil had extensive investigative experience; he had investigated
nearly 250 water- and mold-damaged houses prior to examining the Property.
Whightsil inspected the Property on September 19. His investigation revealed
numerous sources of water intrusion beyond the air conditioning pan leak.
Whightsil also discovered the presence of mold in several locations in the
Property and performed testing to determine the type and level of contamination.
A microbiologist, Abdolreza Marvdashti, reviewed Whightsil’s report and the
3
results of the mold testing and made changes to the report. Whightsil’s report
indicated that the mold contamination was such that evacuation of the Property
was recommended. Whightsil developed a protocol detailing areas of the Property
to be remediated based on his investigation and report. After several requests for
the report, Khan was given a copy of it in late October. The Khans moved out of
the house in early November 2002.
At some point during Crawford’s investigation of these multiple claims,
Khan became upset with the handling of the claims. He began collecting
information on mold remediation and reconstruction. Based on the Whightsil
protocol report, Crawford obtained an estimate from Belfor Construction to
perform the remediation. Belfor provided an estimate of approximately $80,000 to
remediate and build-back the Property. Khan informed Crawford that he had
obtained estimates for remediation from other contractors that were much higher,
but he refused to provide them to Crawford. 2 Crawford made the decision to pay
the claims to Option One and close them out in December 2002.
During the investigation of the claim, Khan was uncooperative when
Crawford’s personnel came to the Property, delaying meetings with them, refusing
to answer the door, and refusing to allow their experts entry into the Property
during the pendency of the suit. Belfor was prepared to perform the work detailed
in the remediation protocol report, and Safeco, through Option One, provided
Tasneem with over $70,000 to pay the Belfor construction estimate (less the
2
Khan apparently provided them at some time during the pendency of the suit, perhaps
years later, but there is nothing to indicate he provided Crawford or Safeco with copies of these
estimates before Safeco paid the claims and closed the file in December 2002. In fact, as
discussed below, Khan recorded a conversation with Crawford representative Patrick Fahey in
which he stated he was not going to send his estimates to Crawford. Further, as part of this
conversation, the dollar amount of the estimates he stated he had for remediation do not in any
way match the amounts on the estimates that Khan eventually supplied to Safeco personnel.
4
deductibles). Safeco also paid directly to Tasneem $26,000 for damage to the
Khans’ personal property—an amount $1,000 over the policy coverage limit for
content coverage. The Khans did not use the money provided them to remediate
the Property, claiming that it was inadequate to clear the home of the mold.3 They
made no repairs to the home whatsoever with any of the money they received.
In April 2003, the Khans hired counsel and provided formal written
notification to Safeco that it had violated the Texas Insurance Code and the Texas
Deceptive Trade Practices-Consumer Protection Act (the DTPA) in handling the
Khans’ mold claims. In this letter, the Khans alleged that their son, who suffered
from muscular dystrophy, “suffered horribly due to the delay and
misrepresentations of the claim,” and had since passed away. The Khans
demanded the policy limits for their policy coverage for their claims because the
costs of rebuilding the Property exceeded the policy limits. They also sought
actual damages of $750,000 for violations of the DTPA and attorney’s fees.
Safeco refused their settlement demand, listing the following reasons, among
others:
• Crawford and Company obtained a repair estimate from Belfor
Construction for the dwelling and from Coastal Cleaning Services,
Inc. for the personal property based on the scope of repair
determined by the experts. Please note there was some delay in
obtaining these estimates as Mr. Kahn failed to keep scheduled
appointments or refused us entry onto the premises on several
occasions.
• Payment for the dwelling loss was remitted to Option One
Mortgage, the Named Insured, in December 2002. The settlement
amount was based on the estimate of repair from Belfor
Construction. The damage did not exceed limits. To date, Option
3
During his pre-trial depositions and at trial, Khan stated that the Khans used some of the
money to clean their personal property and some of the money for living expenses, and testified
inconsistently about what happened with the remainder of the money.
5
One Mortgage has not expressed any concerns in regard to this
settlement amount.
• Payments for the personal property loss were remitted to the
Kahn’s [sic], as “borrower’s” [sic], in October and December
2002. The final settlement amount was based on the agreement
that was reached with Mr. Kahn for the repair and replacement of
the damaged property in December 2002. The damage did not
exceed the policy limits. . . .
• You state that we have done nothing to rectify the problems. Since
payment was remitted in December 2002, we question why repairs
have not been undertaken.
• You state that the Kahn’s son suffered horribly due to our alleged
delay and misrepresentations of this claim. Based on our
conversations with Mr. Kahn, we understand that their son died
before the loss was reported to us. Given this, we question how
any alleged delay and misrepresentations caused the Kahn’s son to
suffer horribly.
We are now nine months post loss and no repairs have been
undertaken.
***
To the extent Option One Mortgage and/or the Kahn’s [sic] did
not protect the property from further damage or make reasonable
repairs required to protect the property, coverage does not apply.
Based on the above, we believe we have resolved this matter
pursuant to the terms and conditions of Option One Mortgage’s
contract of insurance. Therefore, we reject your settlement demand.
However, if there are damages which you do not believe have been
considered (e.g. damages that were not included in the scope of repair
that are related to this loss), please forward this information to me for
my review.
On August 26, 2003, the Khans filed suit against Safeco and Crawford for
violations of the DTPA and the Texas Insurance Code, common law fraud, and
breach of contract in Harris County. The Khans sought actual and economic
damages, as well as damages for mental anguish, multiple damages under the
6
DTPA, exemplary damages, and attorney’s fees. This suit was transferred to
Dallas County and later non-suited by the Khans. The Khans filed suit in Fort
Bend County and later amended their petition to add Tasneem’s lender, Option
One; microbiologist Marvdashti, who had approved Whightsil’s mold and leak
report and remediation protocol; and Whightsil, as well as adding several other
claims, including civil conspiracy, negligence and gross negligence, and
intentional infliction of emotional distress.
Before being dismissed from the suit, Marvdashti signed an affidavit in
which he stated he had not seen the underlying data when he signed off on
Whightsil’s report. He further stated that he disagreed in several respects with this
report. He and Option One were non-suited by the Khans. This case lingered in
the trial court for years, with various motions for summary judgment filed by
defendants Safeco and Crawford and attempts at mediation and settlement failing.
Ultimately, Crawford and Whightsil successfully moved for summary judgment on
all claims against them except for those under the Texas Insurance Code.
As the case was pending, the Property continued to deteriorate. The home
was damaged by a tornado in October 2003; the Khans received insurance
proceeds for roof repair and mold remediation. Although they repaired the roof,
they did not use the money to make any repairs on the interior of the house or
remediate any mold from this loss. Two hurricanes hit the area during the
pendency of the suit. No one was living in the home, and it continued to be vacant
throughout trial. The case was called for a jury trial on the Khans’ tenth amended
petition in August 2012 against Safeco, Crawford, and Whightsil.
At trial, the jury heard evidence concerning the defendants’ handling of the
August 26, 2002 claims, including reviewing the above-described settlement
demand submitted by the Khans and Safeco’s letter denying it. Khan was the only
7
person from his family to testify concerning the damage to the Property.
Pertinently, Marvdashti testified via video-taped deposition that his disagreements
with Whightsil’s report were “mere difference[s] of opinion” and were not
evidence of deception. Marvdashti stated that the manner in which Whightsil
conducted his testing fell within the norm of the industry. He further stated,
“Based on what I read from Mr. Whightsil’s investigation and interview, his
conclusions and his analysis, I think I established the fact that there were multiple
occurrences of water damage that dated back several years prior - - prior to his
investigation, the date of his investigation.” Marvdashti stated that there would
have been a need for mold remediation even if the air conditioning pan leak that
occurred on August 26, 2002, had not occurred—i.e., there was already mold
present in the house when the leak occurred.
The Khans’ microbiology expert, Paula Vance, opined that the summary
report prepared by Whightsil regarding the levels of mold found in the Property
was inconsistent with the lab results upon which it was based. She also testified
that “back in 2001[,] there were engineers and industrial hygienists that wrote these
kinds of remediation reports, but usually with the help or interpretation of a
microbiologist.” She further stated that she did not believe the protocol contained
in Whightsil’s report would have been “adequate to remediate the house.”
Working with a remediation specialist, Vance developed her own remediation
protocol. She acknowledged that, when she saw the house in 2005, the visible
amount of damage was “probably almost the same, but when you take samples you
know that the destruction has gone further. Wherever the water damage was the
organisms started to grow, and they continued to grow there because they weren’t
remediated.” She further admitted that she based her own remediation protocol on
the leaks identified by Whightsil in his report. She further acknowledged that she
8
had not seen the Property in 2002 and that she had not seen it after Khan had filed
another claim for water damage in 2003.4
Two defense experts also testified regarding the adequacy of Whightsil’s
report, Warren French and Eric LeBrocq. Both agreed that Whightsil’s report
accurately described the location of the leaks in the Property. Warren stated that
the damage in the Property had gotten significantly worse since 2002 and
documented this deterioration for the jury by taking photographs in 2011 and
comparing them to Whightsil’s photographs from 2002. LeBrocq testified that, in
his opinion, if Whightsil’s remediation recommendations had been undertaken by
the Khans in 2002, they would have been sufficient to address the mold issues in
the house:
[Whightsil] identified the areas of water intrusion, therefore, what - -
what needed to be fixed to stop the water intrusion, rule number one.
And then he identified what should be done to remove and replace
mold-ridden materials. I was especially impressed with his detail in
2002. . . . [T]here were no Texas mold rules [then]. There were only
the New York guidelines that we refer to, but he even stated correctly
that furnishings and interior parts of the house, if they did not show
water damage, and if they did not show mold growth, could in fact be
cleaned and reused. Critically important is where he says they could
be cleaned and reused. But the way it was written, he went on to say
“but if it is,” if it is cleaned - - if there is water stains and if there is
mold, visible mold, get rid of it. If it’s a porous material, sofa, chairs.
And if the carpet is wet, get rid of it.
After both sides rested and closed, the trial court conducted the jury charge
conference. The only question to which Khan objected was Question No. 4, a
question relating to whether the Khans failed to protect the Property from further
damages. Otherwise, Khan raised no objections to the jury charge. The jury found
4
Khan hired a contractor to prepare an estimate for repair and remediation of the
Property, which was completed in “late 2011.” This estimate for remediation and build-back of
the Property totaled $429,861.49.
9
in favor of Safeco, Crawford, and Whightsil on all issues submitted. The trial
court entered a take-nothing judgment in favor of the defendants.
The Khans filed a motion for new trial, in which they raised several
objections to the jury charge that were not raised before the charge was submitted
to the jury. They also challenged the factual sufficiency of the evidence to support
the jury’s finding as to Question No. 6. The motion was overruled by operation of
law. Khan appealed pro se; Tasneem’s appeal was dismissed because she did not
timely file her own notice of appeal.
ANALYSIS 5
A. Safeco’s and Crawford’s “Bad Faith” Litigation
Khan first asserts that Safeco and Crawford “repeatedly misled the Court
that there is an absence of coverage for Khan’s underlying insurance claim and
mold is excluded in the Safeco . . . policy.” He argues that, because Safeco paid
his claims, their contentions in the trial court that mold is excluded under the
5
In their appellees’ briefs, Safeco and Crawford and Whightsil challenge Khan’s
standing. Khan asserts he is a third-party beneficiary to the force-placed insurance contract. We
agree. Khan is identified as a “borrower” in the Deed of Trust through which Option One’s right
to purchase the force-placed insurance policy arose. Further, the policy itself refers to a
“Borrower,” which is defined as “the mortgagor or mortgagor of an ‘insured location’ indebted
under a mortgage held or serviced by you. As used in this policy, ‘borrower’ to the ‘insured
location’ on which the ‘borrower’ is the mortgagor.’” The policy also provides for certain rights
and duties directly to the borrower. For example, the policy provides that in case of a loss, either
Option One or the “‘borrower’ must give us or our agent notice of the loss as soon as practicable.
You [Option One] or the ‘borrower’ must protect the property from further damage, make
reasonable repairs required to protect the property, and keep accurate record of repair
expenditures.” Another section provides that Safeco “will adjust all [personal property] losses
with the ‘borrower’. We will pay the ‘borrower’ unless some other person is named by the
‘borrower’ to receive payment.” We thus conclude that there is sufficient evidence that Khan is
an intended third-party beneficiary under this insurance policy. See Basic Capital Mgmt., Inc. v.
Dynex Comm’l, Inc., 348 S.W.3d 894, 899–901 (Tex. 2011); see also Alvarado v. Lexington Ins.
Co., 389 S.W.3d 544, 562–564 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (reversing
summary judgment in favor of insurer because it failed to conclusively establish that mortgagor
was not third-party beneficiary under force-placed insurance policy).
10
policy is “an act of bad faith.” We conclude that Khan waived this issue by failing
to brief it properly.
Khan provides no legal support for his argument. As noted above, Khan
also attempts to incorporate by reference the argument and authorities provided in
his responses to Safeco’s motions for summary judgment filed in the trial court.
But see Tex. R. App. P. 9.7 (“Any party may join in or adopt by reference all or
any part of a brief, petition, response, motion, or other document filed in an
appellate court by another party in the same case.” (emphasis added)). Our rules
of appellate procedure require that the brief contain a clear and concise argument
for the contentions made, with appropriate citations to authorities. Tex. R. App. P.
38.1(i). Khan makes several conclusory statements and cites two cases, cases
relied upon extensively by Appellees, urging that these cases do not apply.
However, Khan advances no applicable authority or analysis in support of his
issue.
Conclusory statements unsupported by legal authority do not meet the
requirements of our briefing rules. See Collins v. Walker, 341 S.W.3d 570, 575
(Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing Tex. R. App. P. 38 and
Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.)). Even
if we construe Khan’s appellate brief liberally, we cannot conclude that he has
briefed this issue adequately. See Tex. R. App. P. 38.1(i); see also Karaali v.
Petroleum Wholesale, L.P., No. 14-11-00577-CV, 2013 WL 6198349, at *6 (Tex.
App.—Houston [14th Dist.] Nov. 26, 2013, no pet.) (mem. op.) (citing San Saba
Energy L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.]
2005, no pet.)).
Further, to the extent that the gravamen of Khan’s complaint is that the
Appellees acted in bad faith because they were bound to afford coverage after
11
making some claim payments, we reject this complaint. That Safeco paid the
Khans’ claims when they were filed does not indicate, ipso facto, Safeco is acting
in bad faith by denying coverage when the Khans filed suit seeking more money
for those claims. This is especially true in light of Fiess and Page, in which the
Texas Supreme Court determined that mold damage to a dwelling is not covered
under certain Texas homeowner’s policies that contain very similar mold
exclusions as found in the force-placed policy in the Khans’ case. See State Farm
Lloyds v. Page, 315 S.W.3d 525, 530–31 (Tex. 2010); Fiess v. State Farm Lloyds,
202 S.W.3d 744 (Tex. 2006). As previously mentioned, Khan rejects these cases
as inapplicable because they are not “retroactive.” But “[i]t is well-established
under Texas law that insurance coverage may not be created by estoppel where
none exists under the plain terms of the policy.” Sharp v. State Farm Fire & Cas.
Ins. Co., 115 F.3d 1258, 1263 n.3 (5th Cir. 1997) (citing Tex. Farmers Ins. Co. v.
McGuire, 744 S.W.2d 602, 602–03 (Tex. 1988)). We need not address any
retroactivity argument, however, because Khan has not raised a coverage issue;
Khan raises a bad faith issue. Khan provides no authority to support any argument
that a party acts in bad faith when it relies upon Texas Supreme Court authority for
its legal position on coverage, particularly where well-established Texas law
forecloses coverage by estoppel.
In sum, because of this inadequate briefing, Khan has waived this issue, and
we overrule it. See Tex. R. App. P. 38.1(i); Collins, 341 S.W.3d at 575; Canton–
Carter, 271 S.W.3d at 930–32.
B. Special Exceptions
In his next issue, Khan asserts that the trial court erred in overruling his pre-
trial special exceptions to Safeco’s coverage, concurrent cause, bona fide dispute,
and no-extra-contractual-liability defenses. These special exceptions urged in the
12
trial court that Safeco’s affirmative defenses misstate the facts and are not
applicable. The special exceptions did not rely upon any authority. And, as with
his first issue, Khan does not cite any authorities supporting these contentions on
appeal. Accordingly, for the same reasons as stated above, we overrule his second
issue.
C. Jury Charge
Khan complains of a “fatally-flawed” jury charge in his third issue. He
asserts that jury question number one, regarding coverage for the air conditioning
pan leak, and its companion damages question were fatally flawed and “infected
the entire jury charge” because the evidence conclusively established that the loss
reported by Khan on August 26, 2002 was a covered loss in the case. He urges that
these questions “impermissibly refer to an ‘air conditioning drain pan leak,’”
which takes “the fact-finding as to whether it was a covered peril out of the hands
of the jury, the correct finder-of-fact in this case, and tell[s] the jury to find a
specific fact that is NOT conclusively established by the evidence in the case.” As
noted above, however, Khan did not object to the jury charge on this basis.
Because these complaints were not raised in the trial court by a charge
objection, it is not preserved. See Tex. R. Civ. P. 274 (“A party objecting to a
charge must point out distinctly the objectionable matter and the grounds of the
objection.”); Kamat v. Prakash, 420 S.W.3d 890, 910 (Tex. App.—Houston [14th
Dist.] 2014, no pet.). We therefore overrule this issue.
E. Sufficiency Challenges
The rest of Khan’s issues are sufficiency complaints. Regarding factual
sufficiency of the evidence, raising such issues in a motion for new trial is a
prerequisite for appellate review. See Tex. R. Civ. P. 324(b)(2), (3); Daniels v.
13
Empty Eye, Inc., 368 S.W.3d 743, 749 (Tex. App.—Houston [14th Dist.] 2012, pet.
denied). Thus, we do not address factual sufficiency issues that were not raised in
Khan’s motion for new trial. In a case tried to a jury, an argument that the
evidence is legally insufficient to support a finding may be preserved for appeal in
one of the following five ways: (1) a motion for directed verdict; (2) a motion for
judgment notwithstanding the verdict; (3) an objection to the submission of the
issue to the jury; (4) a motion to disregard the jury’s answer to a vital fact or issue;
or (5) a motion for new trial. Daniels, 368 S.W.3d at 748–49. We do not address
any of Khan’s legal sufficiency issues that were not raised in one of these ways.
Khan challenges the sufficiency of the evidence to support the jury’s
findings to questions 3, 4, 5, 8, 10, 11, and 13. After careful review of the record,
we find no indication that Khan raised these issues in any way before the trial
court.6 See Tex. R. Civ. P. 324(b)(2), (3); Daniels, 368 S.W.3d at 748–49. Thus,
he has failed to preserve his sufficiency challenges to any of these jury findings.
We overrule his fourth through ninth and eleventh issues.
F. Coverage for the Air-conditioning Pan Leak
In the Khans’ motion for new trial, the following relevant factual sufficiency
challenge was made:
Answers that there is no coverage for the losses and that there
are no damages are against the great weight and preponderance of the
evidence because: (1) the case of Fiess, et ux. v. State Farm Lloyds,
6
Important prudential considerations underlie error preservation rules. In re B.L.D., 113
S.W.3d 340, 350 (Tex. 2003). Our error preservation rules promote such vital concerns as
conserving judicial resources by permitting trial courts the opportunity to correct error before an
appeal proceeds; encouraging fairness among litigants by preventing a party from unfairly
surprising his opponent on appeal by stating his complaint for the first time; increasing accuracy
in judicial decision-making by giving lower courts the chance to first consider and rule on error;
and providing the parties the chance to develop and refine their arguments so that courts of
appeal may focus on and analyze the key issues at issue. See id. (citations omitted).
14
392 F.3d 805 (5th Cir. 2006), certified question answered in 202
S.W.3d 744 (Tex. 2006) is not entitled to retroactive application and
Defendant’s witness testified that before Fiess, this loss was covered
despite the reference to mold in an exclusion; and (2) exclusion (G)
refers to “seepage or leakage” that is of necessity a slow event over
time and the great weigh and preponderance of the evidence is that the
peril was a sudden, catastrophic release of water over a relatively
short period of time. The great weight and preponderance of the
evidence also establishes that the sudden release of water caused
damages which exceeded the amount paid, and the Plaintiffs
introduced evidence that they had a specific equity share in those
damages.
Thus, it appears that the factual sufficiency of the evidence to support the jury’s
finding to question 1 regarding Safeco’s compliance with the policy for the air-
conditioning pan leak, Khan’s tenth appellate issue, was challenged in Khan’s
motion for new trial—albeit not for the same grounds as are raised in his appellate
brief. Thus, we will address the factual sufficiency of the evidence to support this
finding.
To evaluate the factual sufficiency of the evidence, we consider all the
evidence and will set aside the finding only if the evidence supporting the finding
is so weak or so against the overwhelming weight of the evidence that the finding
is clearly wrong and unjust. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07
(Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). In this
question, the jury was instructed that Safeco did not fail to comply with the terms
of the policy if the Khans did not “protect the dwelling or property from further
damage” or “make reasonable and necessary repairs to protect the dwelling or
property.” 7 Also as noted above, the Khans did not object to the submission of
7
This question and the jury’s answer are as follows:
Did Safeco fail to comply with the policy provision to pay for covered accidental
direct physical loss to the dwelling caused by the air conditioning drain pan leak,
which was reported on August 26, 2002?
15
this question to the jury. We conclude that the record is rife with evidence that the
Khans satisfied neither of these duties.
The Khans received approximately $70,000 in payment of the ten claims
that were opened on the Property resulting from the initial claim that was filed on
August 26, 2002. As noted above, Khan testified inconsistently regarding what
had happened to this money; however, he did not detail what amount, if any, had
been spent on repairs to the home. To the contrary, he stated that he had not used
any of this money to make repairs to the Property. Further, the jury heard evidence
that Belfor Construction provided Khan with an estimate to clean up all the
damage to the Property and that Belfor was ready to do the job for the amount of
You are instructed that the policy covers “accidental direct physical loss,”
which is not excluded. You are instructed that covered “accidental direct physical
loss” under the policy for the dwelling does not include:
Continuous or repeated seepage or leakage of water or steam over a period
of time from within a plumbing, heating, air conditioning, or automatic
fire protective sprinkler system or from within a household appliance; or
Loss caused by:
(1) Wear, tear, marring, deterioration;
(2) Inherent vice, latent defect, mechanical breakdown;
(3) Rust, mold, wet or dry rot; or
(4) Settling cracking, shrinking, bulging or expansion of pavements,
patios, foundations, walls, floors, roofs or ceilings.
However, any ensuing loss to the property not excluded in the policy is
covered.
You are instructed that it is not a failure by Safeco to comply with the
terms of the insurance policy if Mohammed and Tasneem Khan did not:
(1) Protect the dwelling or property from further damage;
(2) Make reasonable and necessary repairs to protect the dwelling or
property; or
(3) Give Safeco immediate notice of the facts relating to any loss.
Answer “Yes” or “No.”
Answer: No
16
its bid. Khan admitted that no one ever told him Belfor would not have remediated
the Property for the amount of its bid. The jury could have inferred from this
evidence that Belfor was ready, willing, and able to perform the work as bid.
Khan’s experts testified that the amount of the Belfor bid was too low to
properly remediate the Property. Khan asserts that the Belfor estimate was
inadequate because it was based on the “sham” Whightsil protocol. He claims that
Marvdashti, the microbiologist who signed off on Whightsil’s protocol, later
retracted his approval of the report. However, Marvdashti stated in his deposition
testimony, played for the jury, that the manner in which Whightsil conducted his
investigation and the techniques he used were within the “industry norm.”
Marvdashti further stated that, although he disagreed with many of Whightsil’s
conclusions about the mold levels in the Property, these disagreements were “mere
difference[s] of opinion.” Thus, Marvdashti’s affidavit testimony does not
undermine the Whightsil report, and does not render the evidence that Belfor was
ready, willing, and able to perform the remediation work on the Property so against
the overwhelming weight of the evidence that this implied finding is clearly wrong
and unjust.
Additionally, defense expert Eric LeBrocq testified that, in his opinion, if
Whightsil’s remediation recommendations had been undertaken by the Khans in
2002, they would have been sufficient to address the mold issues in the house.
Both LeBrocq and another expert, Warren French, agreed that Whightsil’s report
accurately described the location of the leaks in the Property. Although Khan
provided testimony from his own experts regarding the levels of mold
contamination and the cost to remediate the Property, these experts were looking at
the Property in the condition it stood at the time of trial. Their opinions did not
negate the contrary evidence of these defense experts, and Whightsil himself, that
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the protocol developed by Whightsil was sufficient to remediate the Property at the
time it was generated in 2002. Finally, the areas photographed by Whightsil were
later photographed by defense experts. The jury was free to compare the state the
Property was in in 2002 to the state the Property was in in 2011 and note the any
deterioration in its condition.
Based on this evidence, the jury could have reasonably found that Khan
failed to undertake any efforts to protect the property from further damage or make
reasonable and necessary repairs to it. The more than adequate evidence that
supports this finding is sufficient to uphold the jury’s “no” answer based on the
unobjected-to instructions given: that the Khans’ failure to protect the Property
from further damage or make reasonable and necessary repairs to protect it means
that “it is not a failure by Safeco to comply with the terms of the insurance policy.”
In other words, the evidence supporting the jury’s finding is not so weak or so
against the overwhelming weight of the evidence that the jury’s finding is clearly
wrong and unjust. Mar. Overseas Corp., 971 S.W.2d at 406–07; Cain, 709 S.W.2d
at 176. For the foregoing reasons, we overrule Khan’s tenth issue.
CONCLUSION
After careful review of the record and the briefing in this appeal, we have
overruled each of Khan’s issues. The judgment of the trial court is affirmed.
/s/ Sharon McCally
Justice
Panel consists of Justices McCally, Busby, and Donovan.
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