Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00365-CV
WELLINGTON INSURANCE COMPANY and Richard Barkkume,
Appellants
v.
Victor BANUELOS,
Appellee
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2014CVF001922D3
Honorable Rebecca Ramirez Palomo, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Irene Rios, Justice
Delivered and Filed: January 31, 2018
REVERSED AND RENDERED
In this permissive appeal, appellants Wellington Insurance Company and Richard
Barkkume ask us to review the denial of their motion for summary judgment. The sole issue
presented is whether an insured’s breach of contract and extra-contractual claims survive a timely-
paid appraisal award. Based on this court’s decision in Ortiz v. State Farm Lloyds, No. 04-17-
00252-CV, 2017 WL 5162315 (Tex. App.—San Antonio Nov. 8, 2017, pet. filed) (mem. op.), we
hold they do not, and therefore the trial court erred in denying the motion for summary judgment.
04-17-00365-CV
We reverse the trial court’s order denying the motion for summary judgment and render judgment
granting Wellington’s and Barkkume’s motion for summary judgment.
BACKGROUND
Victor Banuelos submitted a claim to Wellington for damages to his property resulting
from a storm. Richard Barkkume of J&D Claim Services, Inc. inspected the property on behalf of
Wellington and estimated that damage to the furnace vents, ventilation turbine, a furnace rain cap,
and rear elevation totaled $902.40. Wellington denied coverage for the damage to the roof and
shed. Barkkume recommended the claim be closed without payment because the loss did not
exceed the homeowner insurance policy’s deductible.
Banuelos then filed suit against Wellington and Barkkume for breach of contract, breach
of the duty of good faith and fair dealing, violations of the prompt payment and unfair settlement
provisions of the Texas Insurance Code, and violations of the Texas Deceptive Trade Practices
Act. Thereafter, Wellington invoked the appraisal clause in Banuelos’s policy. Through the
appraisal process, it was determined that Banuelos suffered property damage, including damage
to the roof and shed, in the amount of $10,797.62. After deducting for depreciation and the
policy’s deductible, the net appraisal award due was $8,946.70, which Wellington paid to
Banuelos.
In response to Banuelos’s pending lawsuit, Wellington and Barkkumme filed a traditional
motion for summary judgment, arguing Wellington’s timely payment of the appraisal award
estopped Banuelos from recovering under his breach of contract and extra-contractual claims. The
trial court denied the motion for summary judgment. Appellants also filed a motion for
reconsideration in which they relied on this court’s recent decision in Garcia v. State Farm Lloyds,
514 S.W.3d 257 (Tex. App.—San Antonio 2016, pet. denied), to urge the trial court to reconsider
its denial of the motion for summary judgment. Wellington then asked the trial court to allow it
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04-17-00365-CV
to take a permissive appeal. The trial court found there is substantial ground for differences of
opinion as to the following controlling question of law:
In light of the 4th Court of Appeals’ opinion in Garcia v. State Farm Lloyds, 514
S.W.3d 257 (Tex. App.—San Antonio 2016, pet. denied), Barbara Technologies
Corp. v. State Farm Lloyds, No. 04-16-00420-CV, 2017 WL 1423714 (Tex. App.—
San Antonio Apr. 19, 2017, pet. filed), and the arguments and authorities set forth
in Defendants’ Motion for Summary Judgment, does the timely payment of an
appraisal award in compliance with the insurance policy extinguish all of Plaintiff’s
claims including breach of contract and all extra-contractual claims.
The trial court found that an immediate appeal of the order denying the motion for summary
judgment would materially advance the ultimate termination of the litigation, and granted
permission to appeal. This court granted Wellington’s and Barkkume’s petition for permission to
appeal the interlocutory order.
ANALYSIS
In Ortiz, we recognized that under our decision in Garcia, an insurer’s payment of an
appraisal award entitles the insurer to summary judgment on an insured’s contractual and extra-
contractual claims. Ortiz, 2017 WL 5162315 at *1–2 (citing Garcia, 514 S.W.3d at 264–65, 276–
79). We then analyzed the supreme court’s decision in USAA Tex. Lloyds Co. v. Menchaca, 60
Tex. Sup. Ct. J. 672, 2017 WL 1311752 (Tex. Apr. 7, 2017 reh’g granted Dec. 15, 2017), to
determine whether it required us to revisit our holding in Garcia. After analyzing Menchaca, we
held: (1) it does not involve the payment of an appraisal award, and (2) nothing in the “five distinct
but interrelated rules that govern the relationship between contractual and extra-contractual claims
in the insurance context” required us to revisit Garcia or to reverse the summary judgment in favor
of the insurer. Id. at *2–3 (quoting Menchaca, 2017 WL 1311752, at *4). Thus, we held Menchaca
did not require us to revisit our decision in Garcia. See id. We now hold our decision in Ortiz —
holding that Menchaca does not change our prior holding in Garcia — controls this appeal and
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compels us to conclude that the trial court erred in denying the motion for summary judgment. See
id.
CONCLUSION
Because Wellington timely paid the appraisal award in this case, and Banuelos has failed
to assert any ground for setting aside the appraisal award or present evidence of an act so extreme
that it caused him injury independent of his claim under the policy, we hold the trial court erred in
denying the motion for summary judgment. See Garcia, 514 S.W.3d at 265, 278–79. Accordingly,
we reverse the judgment of the trial court and render judgment granting Wellington’s and
Barkkume’s motion for summary judgment.
Rebeca C. Martinez, Justice
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