NO. 07-01-0396-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 19, 2003
______________________________
REPUBLIC UNDERWRITERS INSURANCE COMPANY,
Appellant
v.
MEX-TEX, INC.,
Appellee
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 86,842-E; HON. ABE LOPEZ, PRESIDING
_______________________________
OPINION
_______________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
“Oh, but if we could just say what we mean and mean what we say.” The dispute
before the court involves the interpretation of an insurance policy and the insurer’s liability
for purportedly failing to abide by it. The players consist of the insured, Mex-Tex, Inc.
(Mex-Tex), and the insurer, Republic Underwriters Insurance Company (Republic). The
former sued the latter for breach of contract, breach of the duty of good faith and fair
dealing, committing unfair claim settlement practices, and failing to settle the claim within
statutorily prescribed limits. The damages sought included the sum it believed it was
entitled to under the insurance policy, a sum necessary to recompense the corporation’s
mental anguish, and a statutory penalty of 18% of the amount payable under the policy.
The dispute was tried to the court, which body entered judgment for Mex-Tex. As made
manifest by its ensuing findings of fact and conclusions of law, the trial court determined
that Republic had indeed breached its contract, violated its duty to act in good faith and
deal fairly, attempted to fully settle a claim through a partial payment, and failed to comply
with statutory time limits in settling the claim.1
Republic attempts to overturn or modify the judgment entered against it via eight
issues. Through them, it contends that the evidence was insufficient to support the
findings of breached contract, of breached duty of good faith, of an improper attempt to
enforce a full and final release by making only a partial payment, and of violating art.21.55
of the Texas Insurance Code. Also attacked are the methods by which the trial court
calculated 1) the 18% statutory penalty per art. 21.55 of the Insurance Code and 2)
prejudgment interest. We review the issues in their logical order and, upon doing so, affirm
the judgment.
Background
The circumstances that gave rise to the suit began with a leaking roof atop a mall
housing various businesses and retail establishments. It had previously leaked but had
undergone repair. Furthermore, Mex-Tex was contemplating its replacement when a hail
1
Though damages were awarded, it does not appear that the sum included an amount to recompense
the corp oration for its purp orted m enta l angu ish. Ho we ver, M ex-T ex does not co m plain about tha t on appeal.
2
storm passed through the area on May 25, 1999. This storm further damaged the roof.
Oral notice of the claim was forwarded to Republic within a day or so of the occurrence.
Thereafter, a question arose as to whether the storm itself caused the damage or whether
it pre-existed the squall. Nonetheless, both parties eventually agreed that the roof would
be replaced and that the insurance company would pay for it. Yet, that did not end the
controversy.
By the time the two parties agreed that the roof should be replaced, Mex-Tex had
already replaced it. It believed it needed to be expedient to avoid delay and further injury
to its tenants which could arise from other rains; evidence indicated that the Summer of
1999 was quite wet for West Texas. Furthermore, the cost exceeded $200,000. Yet, upon
deducting the cost of insulation included in the total expense, Mex-Tex only submitted a
claim for $179,000 to Republic. The latter refused to pay that sum because it concluded
that it could replace the roof with one of identical make (but new of course) for
approximately $145,000.2 And, therein fomented the dispute presented to the trial court
and to us. The trial court concluded that the $179,000 claim fell within the terms of the
policy. We are asked to determine if it was right.
Pertinent to the resolution of the dispute are the following provisions of the
insurance contract. The first states:
E. LOSS CONDITIONS
The following conditions apply in addition to the Common Policy Conditions
and the Commercial Property Conditions.
2
Evidence indicates that the difference in cost was attributable to the speed with which the roof was
installed (the contractor apparen tly m ade it a priority item and cha rged for doing so) and the cost of an
insulation sepa rator.
3
* * *
3. Duties in the Event of Loss or Damage
a. You must see that the following are done in the event of loss
or damage to Covered Property:
* * *
4. Take all reasonable steps to protect the Covered
Property from further damage by a Covered Cause of
Loss. If feasible, set the damaged property aside and
in the best possible order for examination. Also keep a
record of your expenses for emergency and temporary
repairs, for consideration in the settlement of the claim.
This will not increase the Limit of Insurance.
* * *
4. Loss Payment
a. In the event of loss or damage covered by this Coverage Form,
at our option, we will either:
1. Pay the value of lost or damaged property;
2. Pay the cost of repairing or replacing the lost or
damaged property;
3. Take all or any part of the property at an agreed or
appraised value; or
4. Repair, rebuild or replace the property with other
property of like kind and quality.
b. We will give notice of our intentions within 30 days after
we receive the sworn proof of loss.
c. We will not pay you more than your financial interest in
the Covered Property.
* * *
f. We will pay for covered loss or damage within 30 days after we
receive the sworn proof of loss if:
1. You have complied with all of the terms of this
Coverage Part; and,
4
2. (a) We have reached agreement with you on the
amount of loss; or
(b) An appraisal award has been made.
The second states:
G. OPTIONAL COVERAGES
If shown in the Declarations, the following Optional Coverages apply
separately to each item.
* * *
3. Replacement Cost
a. Replacement Cost (without deduction for depreciation)
replaces Actual Cash Value in the Loss Condition, Valuation
of this Coverage Form.
* * *
c. You may make a claim for loss or damage covered by this
insurance on an actual cash value basis instead of on a
replacement cost basis. In the event you elect to have loss or
damage settled on an actual cash value basis, you may still
make a claim for the additional coverage this Optional
Coverage provides if you notify us of your intent to do so within
180 days after the loss or damages.
d. We will not pay on a replacement cost basis for any loss or
damage:
1. Until the lost or damaged property is actually repaired
or replaced; and,
2. Unless the repairs or replacement are made as soon as
reasonably possible after the loss or damage.
e. We will not pay more for loss or damage on a replacement
cost basis than the least of:
1. The Limit of Insurance applicable to the lost or
damaged property;
5
2. The cost to replace, on the same premises, the lost or
damaged property with other property:
a. Of comparable material and quality; and
b. Used for the same purpose; or
3. The amount you actually spend that is necessary to
repair or replace the lost or damaged property.
Issue One — Breach of Contract and the Sufficiency of the Evidence
In its first issue, Republic contends that the trial court erred by finding that it had
breached its insurance contract. The company, in effect, is merely attacking the sufficiency
of the evidence underlying the trial court’s determination. Moreover, it apparently believes
the evidence to be insufficient because it agreed to pay the “amount necessary for the
replacement of the . . . roof with an identical roof” instead of the “more expensive roof
installed by Mex-Tex . . . .” We overrule the issue.
Standard of Review
The standard of review applicable to the issue before us is well-settled and need not
be repeated. Instead, we refer the parties to Lewelling v. Lewelling, 796 S.W.2d 164
(Tex.1990) (involving no-evidence claims).
Application of Standard
In construing an insurance policy, we must remember several rules. The first
obligates us to strictly interpret the agreement in a manner favoring the insured if its terms
are susceptible to more than one reasonable construction. Puckett v. U.S. Fire Ins. Co.,
678 S.W.2d 936, 938 (Tex. 1984). Next, we must afford the words written in it their plain
6
meaning when they contain no ambiguity.3 Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936,
938 (Tex. 1984). So too must we enforce the contract as written, unless it is ambiguous.
State Farm Fire & Cas. Co. v. Reed, 873 S.W.2d 698, 699 (Tex. 1993). With this said, we
now turn to the policy to resolve the dispute before us.
As previously stated, two provisions of the policy dictate the extent of Republic’s
liability. Republic acknowledges this in its brief. Furthermore, those two provisions are
found under the headings “Loss Conditions . . . Loss Payment” and “Optional Coverage
. . . Replacement Cost.” The former grants the insurer four options to satisfy its obligation.
They include the right to 1) pay the value of lost or damaged property, 2) pay the cost of
repairing or replacing the lost or damaged property, 3) take all or any part of the property
at an agreed or appraised value, or 4) repair, rebuild or replace the property with other
property of like kind and quality. However, if the insured acquired optional coverage then
additional payment options are available. And, among these choices is that of the insured
to “make a claim for loss or damage covered . . . on an actual cash value basis instead of
on a replacement cost basis.” Here, it is clear that the insured, Mex-Tex, pursued
replacement, as opposed to the payment of the actual cash value of the property. Similarly
clear is that while Republic may have initially vacillated on what it cared to do, it
nonetheless agreed to pay for the replacement of the roof. Given these circumstances,
we conclude that two of the various provisions mentioned above came into play and control
the outcome.
3
No one contends that any part of the insurance contract at bar is ambiguous. Nor do we find it so.
7
The first provision is found under “E. Loss Conditions,” paragraph 4(a)(4), while the
second appears at “G. Optional Coverages,” paragraph 3(e)(2)(a). Via the former,
Republic agreed to replace the property “with other property of like kind and quality.”
Through the second, it bound itself to pay the cost to replace the damaged property with
property “[o]f comparable material and quality.” Yet, what is meant by “like kind and
quality” or “comparable material and quality” goes undefined in the policy. Nevertheless,
and as previously noted, a rule of construction obligates us to assign each word and
phrase in the policy their plain meaning. Puckett v. U.S. Fire Ins. Co., supra. To facilitate
this endeavor, we turn to the dictionary for assistance.
According to Webster’s, the word “like” can mean “same or nearly the same,” “equal
or nearly equal,” or “something similar.”4 Webster’s Third International Dictionary (1993).
We are also informed that it is “a general word indicating resemblance or similarity ranging
from virtual identity in all characteristics to a chance resemblance in only one.” Id.
Additionally, several of its many synonyms include “similar,” “analogous,” “comparable,”
and “identical.” So, as can be seen, these descriptions hardly denote specificity. Again,
the plain meaning of “like” can range anywhere from identical to a mere resemblance, and
that is indeed quite a spectrum. Nevertheless, Republic itself provides us reason to narrow
that spectrum when the term is used in an insurance contract like that at bar. As the
insurer argued in its brief, when replacing damaged or lost property, “in some cases an
identical substitute cannot be found.” “In such a case the insurance company cannot pay
for an exact replacement but must find something substantially similar,” says the insurer.
4
In Black’s Law D ictionary, it is defined as “equal in quantity, quality, or degree,” “corresponding
exactly,” or “similar or substantially similar.” Black’s Law D ictionary (1999).
8
That makes sense. If an insurer were obligated to replace damaged property with identical
property and the quantum of identical property were small or non-existent, then it may not
be able to perform its commitment or could only do so at an unexpected economic
hardship. To mitigate against this result, logic would dictate that we construe “like” to have
parameters less restrictive than those inherent in the word “identical.”
Moreover, the propriety of our conclusion is further supported by Republic’s later
use of the word “comparable” in §G(3)(e)(2)(a) of the policy. Again, there it describes the
extent of the insurer’s liability when damaged property is to be replaced. And, according
to pertinent authority, that word “indicates a likeness on one point or a limited number of
points which permit a limited or casual comparison or matching together.” Webster’s Third
International Dictionary, supra. Other definitions of it include “capable of being compared,”
“having enough like characteristics or qualities to make a comparison appropriate,”
“permitting or inviting comparison often in one salient point,” “suitable for matching,
coordinating, contrasting,” “equivalent,” or “similar.” Id. In other words, “comparable”
establishes a greater range of likeness or similarity than that implicit in “identical.” See
Southwest Bell Tel. Co. v. Ramsey, 542 S.W.2d 466, 476 (Tex. Civ. App.–Tyler 1976, writ
ref’d n.r.e.) (remarking that the term “comparable” established a “vague standard”). So,
given that Republic opted to use “comparable” when specifying the extent of its monetary
liability under §G(3)(e)(2)(a), we hold it appropriate to assess its performance under
§G(3)(e)(2)(a) by the greater range of choice inherent in that word.5 See Great Texas Cty
5
To the exten t Republic incorporate d a word into the policy which established a somewhat vague
standard or range of liability, our duty is to interpret the word in a m ann er favoring the ins ured , i.e. Mex-Tex.
Pucke tt v. U.S. Fire Ins. Co., 678 S.W .2d 936, 938 (Tex. 1984). Our construction of “like” and “comparable”
doe s that.
9
Mut. Ins. Co. v. Lewis, 979 S.W.2d 72, 74 (Tex. App.–Austin 1998, no pet.) (involving auto
insurance and stating that the “qualifying words ‘of like kind and quality’ permit but do not
require an engine of similar age, use, condition or . . . value”).
Next, Mex-Tex alleged that Republic breached its contractual obligation because
the former replaced the damaged roof with a comparable one, and the latter refused to pay
for it. To support its contention, evidence was offered illustrating that both the old and new
roof were “EPDM” roofing systems and that though they were “basically the same,” they
differed in the manner by which they were affixed to the top of the building. For instance,
both consisted of the installation of an inch of insulation, a 45-millimeter membrane,
flashing, drainage crickets, and roof scuppers. However, while the membrane of the old
roof was affixed by rock and the force of gravity kept it on the top of the building, the new
roof was mechanically fastened to the building. Furthermore, installation of the new roof
did not require removal of the old. Instead, the ballast or rock was removed and the new
membrane was placed atop the existing. And, though the cost of the mechanically
fastened system was “a little higher” than “your [rock] ballast system,” according to the
roofing contractor who testified, the labor incident to installing it “is less.” This led the
witness to opine that “[t]hey generally come out pretty close to the same” and “one roof to
the other is comparable.”
Next, the difference in price, according to the same witness, was attributable to the
“time of getting it done” and the cost of the insulation separator.6 However, the estimate
tendered into evidence and describing the installation of the $179,000 roof does not
6
Moreo ver, the actua l roo f contracto r testified that the rep lacem ent roof was of “lik e, k ind and quality”
as the previous roof.
10
distinguish between the amount of money attributable to each. Nonetheless, the insurance
policy imposed on Mex-Tex the duty to “[t]ake all reasonable steps to protect the Covered
Property from further damage by a Covered Cause of Loss” and to undertake “the repairs
or replacement . . . as soon as reasonably possible after the loss or damage” as a
condition of being paid. These provisions, coupled with the fact that its tenants suffered
damage from rain seeping through the defective roof and would continue to so suffer,
provided Mex-Tex with both contractual and practical basis for acting while Republic
debated what to do. And, upon Mex-Tex requesting payment for the “comparable” roof,
Republic refused.
Thus, we have before us some evidence illustrating that the damaged property was
replaced by property of “comparable material and quality,” i.e. by similar property. So too
do we find of record evidence that Republic failed to pay the cost of the replacement. In
short, we have sufficient evidence before us to support the trial court’s finding of a
breached contract.
Nevertheless, Republic would have us hold otherwise because it purportedly agreed
to pay for a roofing system “identical” to that replaced, i.e. one ballasted by rock not
mechanically fastened to the building. Admittedly, this evidence would be of import if
Republic’s liability were controlled by the word “identical.” Yet, as we have previously
discussed, it is not. Again, the insurer defined the scope of its liability through the use of
words providing greater leeway or choice in the type of property which could be used to
replace that which was damaged. Thus, its duty was not to simply pay for an identical roof.
Rather, it committed, pursuant to §§E(4)(a)(4) and G(3)(e)(2)(a), to pay for a comparable
one. While an identical roof may fall within the scope of a comparable roof, the scope of
11
comparable is not dictated by the meaning of identical. Southwest Bell Tel. Co. v. Ramsey,
542 S.W.2d at 476 (involving evidence of comparable sales). And, since there exists some
evidence illustrating that while the roof installed by Mex-Tex may not have been the same
or identical to that replaced, it was nonetheless comparable. So, Republic was duty bound
to pay for it.
In sum, if an insurer cares to limit its exposure it can write a contract that expressly
does so. Here, that could have easily been done by modifying the phrases “like kind and
quality” and “comparable material and quality.” Instead of using them as written, it could
have stated that if available, identical property had to be used to replace the damaged
item, otherwise comparable property could be used. Or, some similar, though not identical,
phraseology could have been adopted. But, it did not, and it was not. Words of a less
definitive nature twice were used, and those words make it possible to both restrict or
broaden its liability depending upon the circumstances of the case. And, having included
them in the contract, it is bound by them. Again, the Texas Supreme Court requires us to
enforce the contract as written. State Farm Fire & Cas. Co. v. Reed, supra. Again, it
obligates us to give those words their “plain, grammatical meaning unless doing so would
clearly defeat the intentions of the parties.” Anadarko Petroleum Co. v. Thompson, 94
S.W.3d 550, 554 (Tex. 2002). And, we do not believe that our construction of the policy
at bar “clearly defeat[s] the intentions of the parties” when Republic itself explains, in its
brief, why leeway is needed. As previously said, one should say what they mean and
mean what they say.
12
Issues Two and Three - Extra Expense and Mitigation Cost
In its second and third issues, Republic contends that the difference in cost between
the price of an identical roof and the one actually installed could not be justified as an extra
expense or an expense related to the cost of mitigating damage. Given our disposition of
issue one, we need not address these issues.
In short, Republic was obligated to pay for a roof of comparable material and quality.
The trial court found that the roof Mex-Tex installed fell within that scope. Therefore,
Republic was duty bound to pay for it. So, whether the cost difference was justifiable as
an extra expense or an expense incident to mitigation (when the policy itself obligated Mex-
Tex to mitigate damage and act as quickly as reasonably possible) matters not, and we
overrule Republic’s second and third issues.
Issue Six – Violation of Art. 21.55 of the Insurance Code
Next, Republic argues the trial court erred when it found that art. 21.55 of the Texas
Insurance Code was violated. This is allegedly so because it complied with the time
periods mandated by the statute, and Mex-Tex’s claim was invalid, i.e. it did not seek
payment for a comparable roof. Construing the issue to be an attack upon the sufficiency
of the evidence underlying the finding, we overrule it.
Standard of Review
The applicable standard of review was discussed under issue one. We refer the
parties to it.
Application of Standard
Article 21.55 of the Insurance Code establishes deadlines by which an insurer must
act to avoid the imposition of statutory penalties. For instance, an insurer is obligated
13
thereunder to notify the insured of its decision to accept or reject a claim no later than 15
business days after receiving “all items, statements, and forms required by the insurer.”
TEX . INS. CODE ANN . art. 21.55 §3(a) (Vernon Supp. 2003). If the insurer then decides that
the claim will be paid, it must do so within five business days. Id. at art. 21.55, §4.
Similarly, §3(f) of the article also establishes a pertinent time period. It states that “if an
insurer delays payment of a claim following its receipt of all items, statements, and forms
reasonably requested and required . . . for more than 60 days, the insurer shall pay
damages and other items as provided for in Section 6 of this article.” T EX . INS. CODE ANN .
art. 21.55, §3(f). With this said, we turn to the arguments proffered by Republic.
As to the contention that art. 21.55 was inapplicable because Mex-Tex lacked a
valid claim, we refer the parties to our discussion and conclusion under issue one. There
exists evidence of record supporting the trial court’s decision that it had a valid claim which
went unpaid. Thus, Republic is mistaken in suggesting that art. 21.55 is inapplicable for
the reason stated.
Next, to the extent Republic argues that it complied with each provision, we again
note that it failed to pay the claim of $179,000. Since it did not, it breached the terms of
the insurance policy. Having done that, it also violated §3(f) of art. 21.55. Cater v. United
Serv. Auto. Ass’n, 27 S.W.3d 81, 84 (Tex. App.–San Antonio 2000, pet. denied), quoting
Higginbotham v. State Farm Mut. Auto. Ins. Co., 103 F.3d 456 (5th Cir. 1997); Oram v.
State Farm Lloyds, 977 S.W.2d 163, 167 (Tex. App.–Austin 1998, no pet.). 7
7
More importantly, whether the insurer acted in go od o r bad faith m atters not. Cater v. United Serv.
Auto. Ass’n, 27 S.W .3d 81, 84 (Tex . App.–San A ntonio 2000, pet. denied).
14
Simply put, Mex-Tex averred that Republic “delayed payment of [its] claim . . . in
violation of Article 21.55 . . . .” Since Republic did not ever pay the claim, there appears
of record some evidence that supports the finding of liability under art. 21.55. Thus, we
cannot say that the trial court erred in so adjudging.
Issues Four and Five – Good Faith and Full Settlement via Partial Payment
In issues four and five, Republic argues that the trial court erred in finding that it
acted in bad faith and in improperly attempting to enforce a full release of a claim by
making only a partial payment. The import of these findings is questionable. Though the
trial court found that Republic acted in bad faith and attempted to so obtain a full release
of the claim, it did not expressly find that those acts caused Mex-Tex any damage. Nor did
it use them as basis for awarding any damages or any other recovery against Republic.8
Moreover, the latter has not explained how it was harmed by the findings or how our
consideration of issues four and five will in any way affect its liability to Mex-Tex, given the
absence of any concomitant findings of damage.
We recognize our obligation to address each issue raised and necessary to a final
disposition of the appeal. TEX . R. APP. P. 47.1; Texas Disposal Sys., Inc. v. Perez, 80
S.W.3d 593, 594 (Tex. 2002). Yet, having rejected Republic’s attack upon issues one and
six (which involved the only choses-in-action upon which the judgment is founded), we do
not see how either sustaining or overruling issues four and five would alter the trial court’s
judgment or affect the finality of ours. Consequently, they are not necessary to the final
disposition of the appeal, and we will not consider them.
8
The damages at bar were awarded so lely for breached contract and violation of art. 21.55 of the
Insu ranc e Code .
15
Issue Seven – Calculation of Penalty
Next, Republic argues that the trial court erred in awarding Mex-Tex $35,223.51 as
a penalty for violating art. 21.55. This is supposedly error because its calculation failed to
consider Republic’s tender of the cost for replacing the roof with an identical one, i.e.
$145,000, in August of 1999. Thus, the penalty should be calculated only upon the
difference between the amount tendered and the amount awarded by the trial court for
breach of contract, according to the insurer. We overrule the issue for several reasons.
First, Republic cites no authority in support of its contentions. Same was required
by Texas Rule of Appellate Procedure 38.1(h). Having failed to abide by that rule, it
waived the contention. In re Williams, 998 S.W.2d 724, 730 (Tex. App.–Amarillo 1999, no
pet.).
Second, §6 of art. 21.55 states that “[i]n all cases where a claim is made pursuant
to a policy . . . and the insurer liable therefor is not in compliance with the requirements of
this article, such insurer shall be liable to pay the holder of the policy . . . 18 percent of the
amount of such claim, together with reasonable attorney’s fees.” T EX . INS. CODE ANN . art.
21.55, §6 (emphasis added). As can be seen, in specifying the amount upon which the
18% penalty is to be calculated, the legislature expressly referred the amount of the
“claim.” Here, the “claim” submitted by Mex-Tex was for $179,000, not the difference
between $179,000 and $145,000. Thus, to use some number other than the actual
amount of the “claim” in calculating the penalty would be to ignore the words of the statute;
that we cannot do. Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000).
16
Third, and assuming arguendo that the effect a tender of payment has upon the
accrual of interest is the same as that on the accrual of a penalty (which we believe
Republic to be suggesting), the amount tendered must be that actually owed. Bray v.
Cadle Co., 880 S.W.2d 813, 818 (Tex. App.–Houston [14th Dist.] 1994, writ denied). Since
the tender of a lesser amount does not toll the accrual of interest, Hoxie Implement Co. v.
Baker, 65 S.W.3d 140, 156 (Tex. App.–Amarillo 2001, pet. denied), logic dictates that it
has the same effect (or lack thereof) on the accrual of a penalty. Consequently, Republic
was obligated to tender the entire $179,000 sum, and because it did not, the offer to simply
pay $145,000 did not prevent the penalty from accruing on the entire amount owed.
Issue Eight – Prejudgment Interest
In its final point of error, Republic contends that the trial court erred in awarding
Mex-Tex the amount of prejudgment interest it awarded. We overrule the issue for the
following reasons.
First, it argues that the sum upon which the interest should have been calculated
was the difference between the amount it tendered in August of 1999 ($145,000) and the
amount of the claim ($179,000). However, as discussed under issue seven, tender of less
than the amount owed does not stop interest from accruing. Hoxie Implement Co. v.
Baker, supra. Since Republic tendered less than the entire $179,000, the prejudgment
interest did not stop accruing on the entire sum due.
Next, the contention that §304.105 of the Texas Finance Code effectively stopped
the accrual of interest during the period in which Mex-Tex had to accept the $145,000 is
misplaced. Republic concedes that it never asserted this before the trial court. Having
17
failed in that respect, it also failed to preserve it for review. Haley v. GPM Gas, Corp., 80
S.W.3d 114, 119-20 (Tex. App.–Amarillo 2002, no pet.); TEX . R. APP. P. 33.1(a)(1). Yet,
even if it had been preserved, we see that §304.105 applies only to suits for wrongful
death, personal injury, and property damage. TEX . FIN . CODE ANN . §304.101 (Vernon
Supp. 2003). A suit against an insurer for breaching its contract with its insured (like that
at bar) does not fall within any of those categories. Head Indus. Coatings & Serv., Inc. v.
Maryland Insurance Co., 981 S.W.2d 305, 311 (Tex. App.–Texarkana 1998, pet. denied).
Thus, the provision has no application at bar.
We affirm the judgment of the trial court.
Brian Quinn
Justice
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