Texas Farmers Insurance Company v. Susan Solis Minjarez

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
TEXAS FARMERS INSURANCE No. 08-12-00272-CV
COMPANY, §
Appeal from the
Appellant, §
County Court at Law No. 5
v. §
of El Paso County, Texas
SUSAN SOLIS MINJAREZ, §
(TC# 2011-DCV06049)
Appellee. §
MEMORANDUM OPINION
Texas Farmers Insurance Company filed a petition for permissive appeal from the trial
court’s interlocutory order requiring Texas Farmers to proceed to appraisal to determine the
amount of loss from its insured’s claim. See TEX.CIV.PRAC.&REM.CODE ANN. §
51.014(d)(West Supp. 2012)(trial court may permit appeal from an interlocutory order that would
not otherwise be appealable under certain prescribed circumstances); see also TEX.R.APP.P.
28.3(a)(requiring party seeking to pursue permissive appeal of interlocutory order to petition court
of appeals for permission to appeal). Because Texas Farmers has failed to establish that it is
entitled to a permissive appeal, we deny the petition.
To be entitled to a permissive appeal, a party must establish that: (1) the order to be
appealed involves a controlling question of law as to which there is a substantial ground for
difference of opinion; and (2) an immediate appeal from the order may materially advance the
ultimate termination of the litigation. TEX.CIV.PRAC.&REM.CODE ANN. § 51.014(d);
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TEX.R.APP.P. 28.3(e)(4). We strictly construe statutes authorizing interlocutory appeals. Bally
Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001).
The proper scope of a permissive appeal is the determination of controlling legal issues,
about which there are legitimate disagreements, necessary to the resolution of the case. See
Diamond Prods. Int’l v. Handsel, 142 S.W.3d 491, 494 (Tex.App.--Houston [14th Dist.] 2004, no
pet.)(construing predecessor statute); see also House Comm. on Civil Practices, Bill Analysis,
Tex. H.B. 978, 77th Leg., R.S. (2001) (explaining that the addition of the predecessor statute
would promote judicial efficiency by “allowing the trial court to certify a question for appeal”
when “the trial court rules on an issue that is pivotal in a case but about which there is legitimate
disagreement”).
In this case, the controlling legal issue is whether an insurer is required to proceed to
appraisal to determine the amount of loss if it has not been established that the loss at issue is a
covered loss. The insured sustained hail damage to the roof of her home. When she discovered
additional damage to the patio and interior, the insured filed a claim with Texas Farmers, which
denied the claim on the basis that the additional damage was not caused by the hail storm.
Dissatisfied with Texas Farmers’s findings, the insured requested an appraisal pursuant to her
homeowner’s policy. Texas Farmers refused and the insured sought a declaratory judgment that
Texas Farmers was required to proceed to appraisal to determine the amount of loss. Texas
Farmers contends that it is not required to proceed to appraisal to determine the amount of loss
claimed by its insured because its liability for the loss has not been established. However, when,
as here, the dispute between an insurer and its insured involves both damage and liability
questions, an appraisal should not be prohibited as an initial matter, notwithstanding that liability
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for the damage claimed by the insured remains unresolved. See State Farm Lloyds v. Johnson,
290 S.W.3d 886, 887, 891-95 (Tex. 2009)(holding that in a dispute about hail damage to a
homeowner’s roof, the insurer could not avoid appraisal by arguing that appraisal is not warranted
whenever causation factors into the award because, when different types of damage occur to
different items of property, appraisers may have to decide the damage caused by each before the
courts can decide liability). It was thus unnecessary for the insured in this case to establish that
her loss was a covered loss before Texas Farmers was required to proceed to appraisal.
Accordingly, Texas Farmers has failed to establish that there is a substantial difference of opinion
regarding the controlling question of law in this case. We therefore deny Texas Farmers’s
petition for permissive appeal.
October 31, 2012
CHRISTOPHER ANTCLIFF, Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
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