COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00319-CV
IN RE ALLSTATE VEHICLE AND RELATOR
PROPERTY INSURANCE
COMPANY
----------
ORIGINAL PROCEEDING
TRIAL COURT NO. 2017-000323-3
----------
CONCURRING OPINION
----------
I agree with the majority that the trial court did not abuse its discretion by
factually finding and legally concluding that relator Allstate Vehicle and Property
Insurance Company waived its contractual right to invoke the appraisal clause in
its policy with real party in interest Deniedra Jackson based on Allstate’s delay
and intentional conduct inconsistent with its right. I write separately to take issue
with one of the holdings underlying the majority’s conclusion.
The majority sets forth a thorough timeline of events leading up to the trial
court’s order denying Allstate’s August 17, 2017 motion to compel an appraisal
and motion to abate. In doing so, the majority holds that the point of impasse—
the date the parties had a mutual understanding that neither party would
negotiate further on the amount of Jackson’s loss—was May 9, 2017, which was
the date Jackson rejected Allstate’s $4,000 offer and demanded $19,350.42 for
the third time. See generally In re Universal Underwriters of Tex. Ins.,
345 S.W.3d 404, 408–10 (Tex. 2011) (orig. proceeding) (discussing point of
impasse to determine whether insurer was entitled to compel appraisal).
An impasse occurs when there is a mutual understanding that neither party
will negotiate further—the “breakdown of good-faith negotiations”—and is not
equivalent to a mere disagreement over the amount of the loss. Id. at 408–10.
“In other words, both parties must be aware that further negotiations will be
futile.” Id. at 409. Here, I believe the point of impasse occurred on July 26,
2017, when the trial court held the hearing on Allstate’s motion to compel a
seventh inspection of Jackson’s property damage. Jackson zealously opposed
the motion and argued that the request was a form of harassment. Allstate
asserted that its six previous inspections occurred “when the parties were trying
to work it out” and countered Jackson’s harassment allegation by claiming that its
requested inspection, which would be the seventh, was necessary for one
reason: to prepare its expert witness for trial. At that point, it was clear that both
parties knew Allstate was refusing to pay Jackson’s claimed loss and was
2
pursuing trial as its single method to dispose of her property-damage claim. See
Scottish Union & Nat’l Ins. v. Clancy, 8 S.W. 630, 632 (Tex. 1888); see also
Skypac Corp. v. Great Lakes Reins. (UK) SE, No. 1:16-CV-115, 2016 WL
9414096, at *2 (E.D. Tex. Dec. 16, 2016) (order); In re GuideOne Nat’l Ins.,
No. 05-15-00981-CV, 2015 WL 5050233, at *2 (Tex. App.—Dallas Aug. 27,
2015, orig. proceeding [mand. dism’d]) (mem. op.). Allstate argues that because
it made another settlement offer to Jackson on August 14, 2017, its right to
demand an appraisal was resurrected. If that logic were to prevail, neither an
insured nor an insurer could rely on a waiver of the appraisal clause. The bell
cannot be unrung.
With these comments, I concur in the court’s denial of Allstate’s petition for
writ of mandamus.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
DELIVERED: May 3, 2018
3
in Re Allstate Vehicle and Property Insurance Company
Combined Opinion