Opinion
04-22-00010-CV
05-31-2023
Brian A. Jones, Appellant v. ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY, Appellee
From the County Court at Law No. 3, Bexar County, Texas Trial Court No. 2017CV04875 Honorable J. Frank Davis, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Rebeca C. Martinez, Chief Justice
AFFIRMED
This appeal arises from an insurance-coverage dispute. Appellant Brian A. Jones sued appellee Allstate Insurance Company for breach of contract and unfair settlement practices for its handling of a property damage claim in connection with an April 2016 hailstorm (hereinafter the "storm"). The trial court, in accordance with the jury's verdict, signed a take-nothing judgment in Allstate's favor. In three issues, Brian contends that he conclusively established his breach of contract claim and that the jury's rejection of his breach of contract and unfair settlement practices claims is factually insufficient. We affirm.
Brian A. Jones's wife, Ronda Jones, provided testimony below. For clarity and brevity, we will refer to Brian and Ronda by their first names.
I. Background
In December 2015, Allstate issued a property insurance policy on Brian's home in San Antonio, Texas. The property insurance policy covered, among other things, losses caused by windstorm or hail. After his property sustained damage in the storm, Brian filed a claim with Allstate. After an initial inspection of the house, Allstate estimated $4,840.62 in covered damage to a metal patio roof, turbine vents, and metal flashing. After applying a two-thousand-dollar deductible, Allstate paid Brian $2,840.62. Dissatisfied that Allstate did not pay for the entire asphalt roof to be replaced, Brian, an attorney licensed to practice law in Texas, requested a second inspection. Upon a second inspection, Allstate paid an additional $425.26. Allstate, however, maintained that the roof sustained no covered damage, and it refused to pay for the roof's replacement. Approximately sixteen months after the hailstorm, Brian, represented by his brother as legal counsel, sued Allstate on claims for breach of contract and violations of the Texas Insurance Code.
The testimony regarding the amount Allstate paid slightly varies from the exhibits; however, the variance is not dispositive.
At trial, Ronda testified that she was in the family's home when the storm hit. Ronda estimated that the storm lasted approximately fifteen minutes, and it broke the kitchen window. After the storm, Ronda filed a property damage claim with Allstate. She also contacted roofers for repair estimates. Within a month, an inspector affiliated with Allstate conducted an approximately thirty-minute inspection of the property's roof. Afterwards, Allstate remitted a check for $2,840.62, which represented its estimation of the damage less Brian's two-thousand-dollar deductible. Dissatisfied, Ronda and Brian sought a second opinion from a roofer, and they asked Allstate for an additional inspection. During the second inspection, the inspector ascended onto the roof while Ronda remained inside her home with the children. After the second inspection, Allstate remitted a check for $425.29. On cross examination by Allstate, Ronda could not recall the age of the property's roof or seeing any water leaks in the home's interior since the storm. When asked whether Ronda knew how many shingles on the roof were damaged by hail, she answered, "I've never been on the roof."
Brian testified that, before Allstate issued a property insurance policy, it insisted on having the property inspected. After the initial inspection, Allstate requested, according to Brian, that tree limbs near the roof be removed. Brian complied, Allstate arranged for a second inspection, and Allstate issued a property insurance policy for Brian's home in December 2015. Brian testified that, during the storm, he heard a "boom." As Brian's attorney handed him a golf ball and a racquetball, Brian described the hailstones as ranging in size between the two. Similar to Ronda's testimony, Brian recalled that Allstate coordinated two inspections of the property, and he had not observed any interior water leaks that could be attributed to the roof failing to prevent water intrusion since the storm. Brian contended that Allstate provided him with no photographs of damage from the storm. For Brian's part, he offered into evidence only one photograph depicting storm damage that was taken in 2016. In addition to the cost of replacing the roof, Brian maintained that he deserved to be compensated for attorney time that he expended "due to obstruction by [Allstate] and [its] attorneys." He referenced Allstate's removal of the case to federal court and the filing of an "appeal" regarding a discovery dispute as evidence of obstructionism. Allstate's refusal to pay for a new roof prompted Brian to hire Earl Stigler, a claims adjuster, in 2018. In 2021, Brian paid to replace the roof.
Allstate removed the case to federal court, but the federal court remanded the case back to state court. Jones v. Allstate Ins. Co., No. SA-17-CA-1018-XR, 2017 WL 4805112 (W.D. Tex. Oct. 25, 2017). As the case progressed in state court, Allstate sought mandamus relief from an order compelling discovery relating to all April 2016 hailstorm claims within a five-mile radius of the Jones's home. In re Allstate Ins. Co., 551 S.W.3d 798, 799 (Tex. App.-San Antonio 2018, orig. proceeding). We concluded that the discovery order was overly broad and granted conditional mandamus relief. Id. at 801-02.
Stigler testified that he inspected the Jones's roof in February 2018. After reviewing meteorological reports, Stigler opined that the April 2016 hailstorm produced hard - as opposed to "soft" - hailstones that were larger than a golf ball. Soft hailstones more often "pop[] . . . like a water balloon" and do not cause damage. Hard hailstones, according to Stigler, "will really make some damage." Stigler testified that he examined three "test squares" and observed hail "hits" on all of them: seven hits on the left slope of the roof, eight hits on the back slope, and five hits on the front slope. Stigler opined that the roof, several windows, and some of the siding were damaged because of the storm. Stigler estimated that the total cost of repairs from the storm was $45,880.02.
The jury was charged with two liability theories. First, the jury was asked whether Allstate failed "to comply with the insurance policy provisions to pay for physical loss to property owned by Brian A. Jones caused solely by covered events in April of 2016, if any, that you find did occur at the residence?" Second, the jury was asked whether Allstate engaged in any unfair or deceptive act or practice that caused damages to Brian. It defined "unfair or deceptive act or practice" as either failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim under one portion of a policy, for which the insurer's liability has become reasonably clear, or refusing to pay a claim without conducting a reasonable investigation of the claim. The jury answered "no" to both liability questions. The trial court signed a take-nothing judgment in Allstate's favor. Thereafter, Brian filed motions for a judgment notwithstanding the verdict and for a new trial. Both were denied by operation of law. Brian timely appealed from the final judgment.
II. Discussion
A. Standard of Review: Legal and Factual Sufficiency
"When a party attacks the legal sufficiency of an adverse finding on an issue on which it bears the burden of proof, the judgment must be sustained unless the record conclusively establishes all vital facts in support of the issue." Cath. Diocese of El Paso v. Porter, 622 S.W.3d 824, 834 (Tex. 2021) (quoting Shields Ltd. P'ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017)). To determine whether evidence is legally sufficient to support the finding, we review all of the evidence in the light most favorable to the finding, indulging every reasonable inference that would support it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. See id. at 827. To conclusively establish a fact, the evidence must leave no room for ordinary minds to differ as to the conclusion to be drawn from it. Cath. Diocese of El Paso, 622 S.W.3d at 834. Testimony from interested witnesses is conclusive "only if the testimony could be readily contradicted if untrue, and is clear, direct, and positive, and there are no circumstances tending to discredit or impeach it." Lofton v. Tex. Brine Corp., 777 S.W.2d 384, 386 (Tex. 1989); accord Ramco Oil & Gas, Ltd. v. Anglo Dutch (Tenge) L.L.C., 171 S.W.3d 905, 911 (Tex. App.-Houston [14th Dist.] 2005, no pet.).
When reviewing the factual sufficiency of the evidence, we examine the entire record, considering all the evidence both in favor of and contrary to the finding. Vast Constr., LLC v. CTC Contractors, LLC, 526 S.W.3d 709, 723 (Tex. App.-Houston [14th Dist.] 2017, no pet.). When a party attacks the factual sufficiency of an adverse finding on an issue on which it had the burden of proof, the party must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). We consider all the evidence, but we will not reverse the judgment unless "the evidence which supports the [ ] finding is so weak as to [make the finding] clearly wrong and manifestly unjust." Star Enter. v. Marze, 61 S.W.3d 449, 462 (Tex. App.-San Antonio 2001, pet. denied). The amount of evidence necessary to affirm is far less than the amount necessary to reverse a judgment. GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.-Houston [14th Dist.] 2001, pet. denied).
We apply these standards mindful that we are not a fact finder. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The trier of fact is the sole judge of witnesses' credibility and the weight afforded their testimony. GTE Mobilnet, 61 S.W.3d at 615-16; see City of Keller, 168 S.W.3d at 819-20. Therefore, we may not pass upon the witnesses' credibility or substitute our judgment for that of the fact finder, even if the evidence would also support a different result. GTE Mobilnet, 61 S.W.3d at 615-16.
B. Analysis
The focus of the parties' dispute regarding Brian's breach of contract claim is whether Allstate breached the insurance policy by failing to pay Brian for the loss, if any, caused by the storm. See Brooks v. Excellence Mortg., Ltd., 486 S.W.3d 29, 36 (Tex. App.-San Antonio 2015, pet. denied) (providing that the elements of a breach of contract claim are: (1) a valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was damaged as a result of the breach). Relatedly, the focus of the parties' dispute regarding Brian's unfair settlement practices claims is whether Allstate either failed to attempt in good faith to adjust the storm damage claim or refused to pay Brian's storm claim without conducting a reasonable investigation of the claim. See Tex. Ins. Code Ann. § 541.060(a).
Brian references his and Ronda's recollection of the severity of the storm, and he emphasizes Stigler's expert opinion that the storm damaged the roof, several windows, and some of the siding to his home. Brian also emphasizes Stigler's opinion that the cost to complete necessary repairs was $45,880.02. Brian posits that the testimony from these three witnesses constitutes conclusive evidence that Allstate failed to pay Brian for his loss. Allstate counters by highlighting Brian's and Ronda's admission that the roof never leaked following the storm and their ability to produce only one 2016 photograph of damage - that being a wind turbine for which Brian had already received compensation from Allstate.
The jury charge did not define "loss" in relation to the breach of contract claim, and no objection was lodged as to the lack of such definition at the charge conference. Accordingly, we measure the sufficiency of the evidence against the commonly understood meaning of the term "loss." See Romero v. KPH Consol, Inc., 166 S.W.3d 212, 220-21 (Tex. 2005) (stating sufficiency of evidence must be measured by jury charge when there has been no objection to it); see also Kroger Co. v. Brown, 267 S.W.3d 320, 322-23 (Tex. App.-Houston [14th Dist.] 2008, no pet.) (measuring sufficiency of evidence against commonly understood meaning of term not defined in charge); EMC Mortg. Corp. v. Jones, 252 S.W.3d 857, 868-69 (Tex. App.-Dallas 2008, no pet.) (reviewing sufficiency of evidence based on common meaning of undefined term when no objection to charge was asserted at trial); Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc., 201 S.W.3d 272, 283-86 (Tex. App.-Houston [14th Dist.] 2006, no pet.). Webster's Third New International Dictionary defines "loss" as, among other things, "the state or fact of being destroyed or placed beyond recovery," and that this definition is synonymous with "destruction" or "ruin." Loss, Webster's Third New International Dictionary (1961).
We note that neither party has asserted that the term is defined in the insurance policy.
On this record, Brian conclusively established that a hailstorm struck his family's home in April 2016. However, Brian failed to marshal any evidence that his home - particularly his home's roof and siding - was destroyed or placed beyond recovery solely by the storm in excess of Allstate's damage estimate of $5,265.88. Indeed, Stigler neither explained how the storm destroyed or placed beyond recovery Brian's roof and siding nor differentiated the damage Allstate had already reimbursed from the repairs that he suggested. Stigler merely opined, in a conclusory fashion, that the entire roof, among other things, needed to be completely replaced. The jury may have determined that Stigler's observation of hail "hits" spoke to only cosmetic concerns, especially considering Brian's and Ronda's admission that the roof never leaked following the storm and that they made no repairs until 2021. In short, Brian failed to conclusively establish the third and fourth elements of a breach of contract claim because he failed to produce "clear, direct, and positive" evidence that his roof and siding was destroyed or placed beyond recovery above what Allstate had already reimbursed. See Lofton, 777 S.W.2d at 386. Relatedly, Brian has not conclusively established the good faith and reasonable investigation elements of his unfair settlement practices claim. The jury may have determined that Allstate's second inspection and supplemental payment constituted a "reasonable investigation."
Accordingly, after viewing all of the evidence in the light most favorable to the jury's verdict regarding Brain's breach of contract claim, we conclude that the evidence is legally sufficient. We further conclude that any disputed evidence, viewed in light of the entire record, could have been reconciled in favor of the jury's verdict on Brian's breach of contract claim and unfair settlement practices claim or was not so weak as to make the finding clearly wrong and manifestly unjust. Dow Chem. Co., 46 S.W.3d at 242; Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006) (per curiam) (providing that "neither the appellate rules nor this Court require detailed recitations of the evidence when a factual sufficiency complaint is overruled."). Therefore, we hold that the evidence is legally sufficient to support the jury's verdict on Brian's breach of contract claim and factually sufficient to support the jury's verdict on Brian's breach of contract and settlement practices claims. We overrule all three of Brian's issues.
III. Conclusion
We affirm the trial court's judgment.