Louis Rosales, Sr. v. Allstate Vehicle and Property Insurance Company ( 2023 )

Affirm and Opinion Filed May 16, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00676-CV
LOUIS ROSALES, SR., Appellant
V.
ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY,
Appellee
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-06737
OPINION
Before Justices Molberg, Pedersen, III, and Miskel
Opinion by Justice Miskel
Louis Rosales, Sr. appeals a summary judgment that disposed of all his claims,
including his claim for attorney’s fees under the Texas Prompt Payment of Claims
Act (TPPCA).1 Rosales’s main argument in favor of attorney’s fees concerns the
recent opinion Barbara Technologies Corp. v. State Farm Lloyds, 589 S.W.3d 8061
Courts sometimes refer to this statute in plain language as the “Prompt Payment Act.” See, e.g.,
Ortiz v. State Farm Lloyds, 589 S.W.3d 127 (Tex. 2019); Tex. Fair Plan Ass’n v. Ahmed, 654 S.W.3d 488(Tex. App.—Houston [14th Dist.] 2022, no pet.). In this opinion, we use the acronym the Texas Supreme
Court used in Barbara Technologies Corp. v. State Farm Lloyds, 589 S.W.3d 806 (Tex. 2019).
(Tex. 2019). According to Rosales, Barbara Technologies forecloses the reasoning
that Allstate Insurance Company relied on in its summary judgment motion: that its
preemptive payment of TPPCA damages blocked his claim for attorney’s fees.
But unlike Barbara Technologies, this case is governed by Chapter 542A of
the Insurance Code. That chapter provides a distinctive damage formula that
precludes any award of attorney’s fees in cases like this one, where the defendant
has paid the full amount that could be awarded under the policy. We therefore affirm
the summary denial of Rosales’s claim for attorney’s fees, which is the only aspect
of the summary judgment that Rosales has challenged on appeal.
I. BACKGROUND
On October 28, 2020, a hailstorm hit Mesquite, Texas, where Rosales owned
property. A few days later, Rosales filed an insurance claim with Allstate for
damage to his property. On November 5, 2020, Allstate’s adjuster determined that
the covered damage amounted to only $474.07. Because this amount was less than
Rosales’s deductible, Allstate denied payment on the claim.
On November 13, 2020, Rosales’s contractor provided Allstate with an
estimate to replace the entire roof of Rosales’s property as well as photographs of
the damage. On November 25, 2020, another Allstate adjuster reviewed the
photographs and revised the damage estimate upward to $862.83. This amount was
still less than Rosales’s deductible, so Allstate paid Rosales nothing.
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Rosales filed suit on May 27, 2021, alleging breach of contract, bad-faith
violations, and breach of the TPPCA. On October 8, 2021, Rosales invoked the
appraisal clause in his policy. The case was abated pending the outcome of the
appraisal.
The appraisers found the actual cash value of the loss was $14,869.68.
Allstate received the appraisal award on January 7, 2022, and on January 10, 2022,
Allstate issued payment for $11,751.68—the full actual cash value minus Rosales’s
deductible. At the same time, Allstate also issued a check for $1,408, which, in
Allstate’s words, was intended “to cover any additional interest you could possibly
allege to be owed” under the TPPCA. Rosales has not disputed that the amount of
the interest payment is sufficient under the statute.
In March, Allstate filed a hybrid motion for summary judgment. Allstate
moved for—and ultimately obtained—a traditional summary judgment on Rosales’s
contract and bad-faith claims, and Rosales does not challenge those rulings on
appeal.
With regard to Rosales’s TPPCA claim, Allstate argued on traditional grounds
that because it paid all that could be owed on the claim (i.e., the full appraisal award
plus any possible TPPCA interest), Rosales was not entitled to any money judgment
on this claim. Allstate further reasoned that because Rosales was not entitled to a
money judgment, this cut off Rosales’s right to recover attorney’s fees under Chapter
542A, which makes the amount of attorney’s fees dependent on the amount of the
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money judgment. Allstate also moved for no-evidence summary judgment on
Rosales’s TPPCA claim, arguing that Rosales had produced no proof that Allstate
violated any TPPCA deadline or was liable on the claim.
The trial court granted a final summary judgment in Allstate’s favor without
stating the grounds on which its ruling was based. Rosales appeals with respect to
only his TPPCA claim.
II. DISCUSSION
In his first and second issues, Rosales contends that the trial court erred to the
extent that it granted traditional summary judgment on his TPPCA claim. He makes
essentially the same argument in both issues: that Allstate’s “gratuitous” payment of
what it characterized as any interest that could be owed under the TPPCA did not
establish Allstate’s right to summary judgment on his claim for attorney’s fees.
According to Rosales, several authorities—including Barbara Technologies and
multiple federal decisions interpreting Chapter 542A—dictate that Allstate cannot
prevail.
In his third issue, Rosales challenges the summary judgment to the extent that
it was granted on no-evidence grounds. Because Rosales’s first and second issues
are dispositive, we do not consider his third issue.
A. Summary Judgment Standard
We review a grant of summary judgment de novo. Trial v. Dragon, 593
S.W.3d 313, 316 (Tex. 2019). If no grounds are specified for the ruling, we must
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affirm if any of the grounds on which judgment is sought are meritorious. Merriman
v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). We credit evidence
favorable to the nonmovant if reasonable jurors could, and we disregard evidence
contrary to the nonmovant unless reasonable jurors could not. Timpte Indus. v. Gish,
286 S.W.3d 306, 310 (Tex. 2009).
In a traditional motion, the movant has the burden to show there is no genuine
issue of material fact and the movant is entitled to judgment as a matter of law.
Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130 (Tex. 2018). A defendant
is entitled to summary judgment if it conclusively negates at least one element of the
plaintiff’s claim, id., or if it conclusively proves all elements of an affirmative
defense, Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).
When a party files a hybrid motion for summary judgment, we generally first
review the summary judgment under the no-evidence standard of review. Rico v. L-
3 Commc’ns Corp., 420 S.W.3d 431, 438–39 (Tex. App.—Dallas 2014, no pet.).
However, if the court is required to affirm the trial court’s ruling on traditional
grounds, then we need only address those grounds. Gibson v. Stonebriar Mall, LLC,
No. 05-17-01242-CV, 2019 WL 494068, at *5 (Tex. App.—Dallas Feb. 8, 2019, no
pet.) (mem. op.).
B. Applicable Law: The TPPCA and Chapter 542A’s New Limits
The TPPCA imposes several requirements on insurers, one of which is that if
the insurer delays payment of a claim for more than the applicable statutory period
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or sixty days, the insurer shall pay TPPCA damages. Barbara Techs., 589 S.W.3d
at 812–13 (citing, inter alia, TEX. INS. CODE. § 542.058(a)). Those damages include
statutory interest on the claim along with reasonable and necessary attorney’s fees.
TEX. INS. CODE § 542.060(a).
On September 1, 2017, significant changes to the Texas Insurance Code took
effect that were aimed at limiting TPPCA damages and attorney’s fees in cases of
natural disaster. Morakabian v. Allstate Vehicle & Prop. Ins. Co., No. 4:21-CV-
00100-SDJ-CAN, 2022 WL 17501024, at *5 (E.D. Tex. Dec. 6, 2022) (quoting
White v. Allstate Vehicle & Prop. Ins. Co., No. 6:19-CV-00066, 2021 WL 4311114,
at *9 (S.D. Tex. Sept. 21, 2021)). “Codified as Chapter 542A, the recent
amendments apply to any first-party claim ‘made by an insured under an insurance
policy providing coverage for real property’ that ‘arises from damage to or loss of
covered property caused’ by hail, wind, or a rainstorm.” Id. (quoting TEX. INS. CODE
§ 542A.001(2)).
Chapter 542A limits a policyholder’s ability to recover attorney’s fees and
statutory interest in connection with delayed payments. Id. “Previously, Chapter
542 fixed the statutory interest penalty at 18% annually; under Chapter 542A, an
insurer liable for violation of Chapter 542 owes statutory interest at a rate equal to
5% plus the amount of the current interest rate as defined by the Texas Finance
Code . . . .” Id. (citing TEX. INS. CODE § 542.060(a), (c)). Chapter 542A limits the
available attorney’s fees by applying the following formula:
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(a) Except as otherwise provided by this section, the amount of
attorney’s fees that may be awarded to a claimant in an action to which
this chapter applies is 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) (emphasis and formatting added). In other words, if
the amount to be awarded in the judgment is less than the amount the insured
demanded before filing suit, the insured’s attorney’s fees will be reduced. See TEX.
INS. CODE §§ 542A.003, .007.
C. In this Case, the Insurer’s Preemptive Payment of the Appraisal Award
Eliminated the Insured’s Ability to Collect Statutory Attorney’s Fees
Rosales concedes that Chapter 542A applies to his property insurance claim
because it arose from damage caused by a hailstorm. Also, he does not dispute
Allstate’s assertion that it has already paid him the full amount of the appraisal award
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and an amount sufficient to cover any interest that he could be owed under the
TPPCA. Rather, he disputes whether this preemptive payment of all potential
damages under the TPPCA bars him from recovering attorney’s fees under section
542A.007. He asserts that the Texas Supreme Court’s opinion in Barbara
Technologies precludes such an outcome.
1. Texas Supreme Court and Barbara Technologies
In Barbara Technologies, the issue was whether an insured’s claim for prompt
pay damages under the TPPCA survives the insurer’s payment in full of the amount
of loss determined by an appraisal process. 589 S.W.3d at 810–11. The court
reasoned that the essential ingredients for a TPPCA claim were “that the requisite
time has passed and the insurer was ultimately found liable for the claim,” id. at 813,
but that an insurer’s payment of an appraisal award was “neither an acknowledgment
of liability under the policy nor an award of actual damages.” Id. at 809. The court
saw “no way under the language of the TPPCA” that an insurer could be liable on a
claim absent (1) a voluntary acceptance of full or partial liability on the claim or (2)
an adjudication of liability—and it held that payment of an appraisal award qualified
as neither. Id. at 819. The court overruled several intermediate court cases which
had held that payment of an appraisal award eliminated a policyholder’s ability to
collect TPPCA damages: it disapproved these opinions to the extent they “could be
read to excuse an insurer liable under the policy from having to pay TPPCA damages
merely because it tendered payment based on an appraisal award, or to foreclose any
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further proceedings to determine the insurer’s liability under the policy.” Id.
“Nothing in the TPPCA would excuse an insurer from liability for TPPCA damages
if it was liable under the terms of the policy but delayed payment beyond the
applicable statutory deadline, regardless of use of the appraisal process.” Id.
2. Chapter 542A’s New Formula for Attorney’s Fees
We agree with Rosales that one holding of Barbara Technologies is that the
payment of an appraisal award alone does not preclude a claim for TPPCA interest
and attorney’s fees. But Rosales asks us to extend this holding one step further: that
the payment of an appraisal award and any possible TPPCA interest does not
preclude a claim for attorney’s fees. However, as Allstate points out, Barbara
Technologies was not decided under Chapter 542A, and the case is thus wholly
distinguishable.
Where Chapter 542A applies, if an insurer is not in compliance with the
TPPCA, the insurer is liable to pay the insured (1) the amount of the claim, (2)
interest, and (3) reasonable and necessary attorney fees.2 TEX. INS. CODE
§ 542.060(c). Each of these is determined as follows:
(1) For parties who have invoked the appraisal process, the appraisal award
is binding as to the amount of the claim. See Barbara Techs., 589
S.W.3d at 823 n.14, 827.
2
Under Texas law, attorney’s fees, although compensatory, are not “damages.” Ortiz, 589 S.W.3d
at 135.
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(2) Section 542.060(c) determines the amount of interest that will be
awarded as statutory damages.
(3) Section 542A.007 provides that the award of reasonable and necessary
attorney’s fees can be reduced according to a specific statutory formula,
which involves the amount to be awarded in the judgment for a claim
under the policy for damage to or loss of covered property.
In this case, Allstate has already paid the appraisal award, which is binding as
to the maximum amount of the damage to or loss of Rosales’s property. Therefore,
there remains no “amount to be awarded in the judgment” to Rosales for his “claim
under the insurance policy for damage to or loss of covered property” in the
attorney’s fees formula in 542A.007(a)(3)(A). Because the amount to be awarded
in a TPPCA judgment for a covered loss is presently zero dollars, and because the
amount of attorney’s fees is a multiple of that amount, Chapter 542A’s formula must
result in an award of zero attorney’s fees.3
The existence of statutory damages for interest does not affect Chapter 542A’s
calculation of attorney’s fees. In interpreting statutes, we must look to the plain
language. Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019). If the
statute’s plain language is unambiguous, we interpret its plain meaning, presuming
3
The formula’s denominator is the amount demanded in a notice from the plaintiff before suit.
Although the clerk’s record indicates that a presuit notice was sent, the amount alleged to be owed was not
a part of our record. Nevertheless, because the numerator is zero, it is not necessary to our analysis to
calculate the denominator.
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that the Legislature intended for each of the statute’s words to have a purpose and
that the Legislature purposefully omitted words it did not include. Id. Under a plain
reading of section 542A.007(a)(3)(A), the interest defined as statutory damages by
section 542.060(c) is not an amount to be awarded for a “claim under the insurance
policy for damage to or loss of covered property.” Interest is an amount to be
awarded as damages under the TPPCA, but it is not an amount to be awarded under
the insurance policy, so interest is not a part of section 542A.007’s formula for
attorney’s fees.
Ultimately, Allstate has paid (1) the amount of the claim as determined by the
binding appraisal, (2) the maximum amount of interest owed as statutory damages
under 542.060(c), and (3) reasonable and necessary attorney’s fees of zero as
calculated by 542A’s formula. Rosales could not recover any more damages,
interest, or attorney’s fees on his TPPCA claim. Pursuant to Chapters 542 and 542A,
we agree that Allstate has satisfied all of its TPPCA liability and is entitled to
summary judgment.
3. A Majority of Federal Courts Support this Conclusion
A majority of federal courts have held that the formula prescribed by section
542A.007 precludes any award of attorney’s fees—and an insurer is entitled to
summary judgment on a TPPCA claim—when it preemptively pays both the
appraisal award and any possible interest:
 Morakabian v. Allstate Vehicle & Prop. Ins. Co., No. 4:21-CV-100-
SDJ, 2023 WL 2712481, at *5 (E.D. Tex. Mar. 30, 2023) (“The plain
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language of Section 542A.007(a) makes clear that payment of the
appraisal award extinguishes a plaintiff’s right to attorney’s fees under
the TPPCA.”);
 Arnold v. State Farm Lloyds, No. CV H-22-3044, 2023 WL 2457523,
at *5 (S.D. Tex. Mar. 10, 2023) (“[T]he numerator for the calculation
provided in subsection (a)(3)(A) is 0. Any division of 0 is 0, which is
less than .2, meaning that there are no attorney’s fees to award.”);
 Kahlig Enters., Inc. v. Affiliated FM Ins. Co., No. SA-20-CV-01091-
XR, 2023 WL 1141876, at *8 (W.D. Tex. Jan. 30, 2023) (“An insurer
that violates the TPPCA may still be entitled to summary judgment if
it paid the insured the full amount of interest that the insured could
claim under the TPPCA.”);
 Royal Hosp. Corp. v. Underwriters at Lloyd’s London, No. 3:18-CV-
00102, 2022 WL 17828980, at *10 (S.D. Tex. Nov. 14, 2022) (“Thus,
the amount to be awarded to Royal in a judgment on its TPPCA claim
is zero dollars, which would result in an award of no attorney’s fees
under § 542A.007(a)(3).”);
 Rodriguez v. Safeco Ins. Co. of Ind., No. 5:20-CV-168-C, 2022 WL
6657888, *1 (N.D. Tex. Oct. 3, 2022) (holding that the insurer’s
payment of appraisal award plus interest entitles it to summary
judgment on a TPPCA claim and absolves the insurer from paying
attorney’s fees that would be due under the Act);
 Atkinson v. Meridian Sec. Ins. Co., No. SA-21-CV-00723-XR, 2022
WL 3655323, at *8 (W.D. Tex. Aug. 24, 2022) (“[T]he amount to be
awarded in a judgment on Atkinson’s TPPCA claim is zero dollars,
resulting in an award of no attorney’s fees.”);
 White v. Allstate Vehicle & Prop. Ins. Co., No. 6:19-cv-00066, 2021
WL 4311114, at *10 (S.D. Tex. Sept. 21, 2021) (stating more
generally that, because the insured is not entitled to recover damages
under the TPPCA as a matter of law, he is not entitled to an award of
attorney fees);
 Trujillo v. Allstate Vehicle & Prop. Ins. Co., No. H-19-3992, 2020 WL
6123131, at *6 (S.D. Tex. Aug. 20, 2020) (“[T]he amount to be
awarded to Trujillo in a judgment on her TPPCA claim is zero dollars,
which results in an award of no attorney’s fees under
§ 542A.007(a)(3).”);
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 Gonzalez v. Allstate Vehicle & Prop. Ins. Co., 474 F. Supp. 3d 869,
876 (S.D. Tex. 2020) (granting summary judgment on the TPPCA
claim due to payment of appraisal amount and interest, without
expressly addressing attorney fees);
 Pearson v. Allstate Fire & Cas. Ins. Co., No. 19-CV-693-BK, 2020
WL 264107, at *4 (N.D. Tex. Jan. 17, 2020) (holding the insurer’s
payment of appraisal award and all possible interest “results in the
lowest fee award possible—zero dollars—because there is no money
judgment in Plaintiff’s favor”).
D. Review of Contrasting Authorities
Courts are not unanimous on this issue. Several federal courts have instead
held that payment of the appraisal award and statutory interest will not defeat a claim
for attorney’s fees. See Ahmad v. Allstate Fire & Cas. Ins. Co., No. 4:18-CV-4411,
2021 WL 2211799, at *4 (S.D. Tex. June 1, 2021); Martinez v. Allstate Vehicle &
Prop. Ins. Co., No. 4:19-CV-2975, 2020 WL 6887753, at *2 (S.D. Tex. Nov. 20,
2020); Gonzalez v. Allstate Fire & Cas. Ins. Co., No. SA-18-CV-00283-OLG, 2019
WL 13082120, at *6 (W.D. Tex. Dec. 2, 2019). The only Texas opinion discussing
this issue held that an insurer who paid the appraisal award and statutory interest was
not entitled to summary judgment on a TPPCA claim. Tex. Fair Plan Ass’n v.
Ahmed, 654 S.W.3d 488, 493–94 (Tex. App.—Houston [14th Dist.] 2022, no pet.).
However, that case was not decided under the new Chapter 542A, so it is
distinguishable and does not answer the question presented here.
These courts have stated various rationales for their holdings, which have
generally revolved around (1) the view that prepaying damages in this fashion is an
impermissible attempt to unilaterally settle the case, see, e.g., Ahmad, 2021 WL
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2211799, at *4, and (2) the perceived unfairness of allowing a party to zero out one
variable of the damage equation by eliminating, through a strategic concession,
another variable on which it depends and, in so doing, preventing the party pursuing
attorney’s fees from being made whole, see, e.g., Martinez, 2020 WL 6887753, at
*2 n.1. We respond as follows.
1. Prepaying Damages Does Not Constitute an Involuntary, Unilateral
Settlement
We disagree with the first rationale. There is nothing about paying all possible
liquidated damages before judgment that creates a settlement. See Royal Hosp.
Corp. v. Underwriters at Lloyd’s London, No. 3:18-CV-102, 2022 WL 17828980,
at *9 (S.D. Tex. Nov. 14, 2022). A “settlement” is an agreement ending a dispute
or lawsuit, Settlement, BLACK’S LAW DICTIONARY (11th ed. 2019), and neither party
here has argued that Allstate somehow forced Rosales to agree to terminate his
TPPCA claim. Instead, the prepayment is a tactical attempt to offset the eventual
judgment obligation—as has been recognized by three of the four cases upon which
Rosales relies. See Ahmad, 2021 WL 2211799, at *5 n.22; Martinez, 2020 WL
6887753, at *2; Ahmed, 654 S.W.3d at 494. Allstate’s prepayment of all possible
damages does not create an involuntary, unilateral settlement of claims, but rather it
is an effort to extinguish the underlying obligation.
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2. Texas Law Allows Prepayment of Damages to Offset a Statute’s
Formula-Based Calculation of Penalties
Which brings us to these courts’ second rationale: distaste for the apparent
gamesmanship of allowing one party to affect the other’s recovery by preemptively
paying a part of the judgment. To be sure, this is not the first time that courts have
rejected what they perceived as unfairness of this kind. The most prominent example
of a case in this vein—in which a court rebuffed a party’s attempt to use the payment
of damages to avoid a statutory penalty based on a multiple of the damages—comes
from the United States Supreme Court. See U.S. v. Bornstein, 423 U.S. 303, 314–
17 (1976).
However, we interpret this Texas statute under Texas law, and when faced
with a highly similar set of arguments to Bornstein, the Texas Supreme Court instead
resolved those arguments in favor of the defendant’s position: that its prepayment of
damages should allow it to avoid a statutory liability that depended on judgment
damages. See JCB, Inc. v. Horsburgh & Scott Co., 597 S.W.3d 481, 485–90 (Tex.
2019). In that case, unpaid sales commissions were subject to an additional
recovery—treble damages. Id. at 484. While the case was pending, the defendant
paid all the remaining unpaid commissions plus interest, then moved for summary
judgment in an effort to avoid the treble damages. Id. at 483. The Texas Supreme
Court allowed this strategic maneuver, stating,
As a general matter, it almost goes without saying that
damages typically are calculated by the factfinder based
on what is required to compensate the plaintiff at the time
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of verdict or judgment . . . . The question for the factfinder
is how much the defendant owes the plaintiff today. The
question is typically not how much the defendant owed the
plaintiff at some date in the past. Nor is it how much the
defendant would have owed the plaintiff if the defendant
had not already paid. The usual question for the factfinder
is how much the defendant owes the plaintiff at the time
the factfinder assesses liability.
Id. at 486 (cleaned up). The court further reasoned that the default rule in the
relevant context of contract law was to permit mitigation of damages; the predicate
damages thus should not be “locked in and trebled at the time of breach, [with]
nothing either party can do to mitigate or reduce the damages.” Id. at 487. Contract
law requires mitigation of damages before trial and encourages defendants to pay
what is owed to avoid litigation. Id. “From the perspective of contract law,” when
damages have been fully mitigated, the plaintiff “has been made whole and has
nothing else to litigate, besides perhaps attorney’s fees and interest.” Id. The
plaintiff suggested that the statutory claim was “more akin to a strict liability tort
with statutorily defined damages that punish [a] breach,” but the court noted that,
even in tort cases, plaintiffs have an obligation to mitigate damages before trial, and
defendants have the ability to reduce their liability by paying the claimed damages
before trial. Id. The plaintiff also protested that such a construction of the statute
would “deprive” the statute “of any real effect,” but the JCB court disagreed: “[the
statute] is by no means useless under our construction. If the defendant fails to pay
all or part of the commissions prior to a judicial determination of the ‘unpaid
commission due,’ he must pay treble damages.” Id. at 488. “The threat of such
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punitive judgments provides added encouragement for principals to pay their sales
representative the disputed commission.” Id. at 488–89.
Here, the Texas Supreme Court’s reasoning in a recent case controls this issue
of state law rather than Bornstein, a federal precedent that is nearly fifty years old,
and that deals with a federal statute which the Texas Supreme Court has previously
deemed “not probative” when construing other areas of Texas law. See In re Xerox
Corp., 555 S.W.3d 518, 535 (Tex. 2018) (orig. proceeding). Textually, the
calculation of attorney’s fees depends on “the amount to be awarded in the
judgment,” TEX. INS. CODE § 542A.007(a)(3)(A), and the amount of the judgment is
calculated at the time of judgment, JCB, 597 S.W.3d at 486.
Like JCB, this case arises from the context of contract law because “[a]n
insurance policy is a contract that establishes the respective rights and obligations to
which an insurer and its insured have mutually agreed.” In re Farmers Tex. Cnty.
Mut. Ins. Co., 621 S.W.3d 261, 270 (Tex. 2021) (orig. proceeding). It therefore
follows that TPPCA plaintiffs have a duty to mitigate their damages, and TPPCA
defendants are encouraged to pay what is owed before trial, which would affect the
amount to be awarded in a TPPCA judgment. See JCB, 597 S.W.3d at 487.
Finally, quoting Gonzalez, Rosales protests that allowing Allstate to avoid
paying attorney’s fees by paying the predicate interest early would effectively “read
attorney’s fees out of [the] statute for all practical purposes.” 2019 WL 13082120,
at *6. Not so under the reasoning of JCB: the threat of punitive judgments under the
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statutory framework provides added encouragement for insurers to pay their insureds
the disputed amounts before trial. See 597 S.W.3d at 489.
We follow JCB and the majority of cases interpreting Chapter 542A so far,
and we disagree with Gonzalez, Martinez, and Ahmad.
III. CONCLUSION
We therefore hold that Allstate established there is no genuine issue of
material fact as to its remaining liability under the TPPCA, and it is entitled to
summary judgment on traditional grounds. See Painter, 561 S.W.3d at 130. We
overrule Rosales’s first and second issues. Because these issues fully dispose of the
appeal, it is unnecessary to consider Rosales’s third issue concerning the no-
evidence grounds. See Gibson, 2019 WL 494068, at *5.
We affirm the summary judgment in favor of Allstate.
/Emily Miskel/
Molberg, J., dissents without opinion. EMILY MISKEL
220676f.p05 JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LOUIS ROSALES, SR., Appellant On Appeal from the 193rd Judicial
District Court, Dallas County, Texas
No. 05-22-00676-CV V. Trial Court Cause No. DC-21-06737.
Opinion delivered by Justice Miskel.
ALLSTATE VEHICLE AND Justices Molberg and Pedersen, III
PROPERTY INSURANCE participating.
COMPANY, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee ALLSTATE VEHICLE AND PROPERTY
INSURANCE COMPANY recover its costs of this appeal from appellant LOUIS
ROSALES, SR.
Judgment entered this 16th day of May 2023.
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