Jerlene Tippett v. Safeco Insurance Company of Indiana

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00152-CV
___________________________

JERLENE TIPPETT, Appellant

V.

SAFECO INSURANCE COMPANY OF INDIANA, Appellee

On Appeal from the 67th District Court
Tarrant County, Texas
Trial Court No. 067-294418-17

Before Sudderth, C.J.; Bassel and Wallach, JJ.
Memorandum Opinion by Justice Bassel
 MEMORANDUM OPINION

This appeal concerns the effect, if any, of an umpire’s note that made findings

applying an insurance policy’s cosmetic-damage exclusion in connection with an

appraisal on the amount an insurer must pay to estop an insured’s contract claim.

Appellee Safeco Insurance Company of Indiana moved for a traditional summary

judgment claiming that its post-appraisal award payment negated the breach and

injury elements to Appellant Jerlene Tippett’s contract claim and, consequently,

disposed of her remaining claims as a matter of law. Safeco contended that it had

paid the amount owed under the appraisal award, despite not paying the full amount

of the loss determined by the panel, because it applied the umpire’s findings to

establish the applicability of a cosmetic-damage exclusion, thus reducing the amount

owed.

In her first issue, Tippett appeals the trial court’s order granting summary

judgment dismissing all of her claims and denying Tippett’s cross-motion for partial

summary judgment on her prompt-payment claim. We conclude that neither party

met its summary-judgment burden. Safeco failed to meet its burden to prove the

applicability of the exclusion because (1) it did not conclusively establish that two

members of the panel adopted the umpire’s findings and (2) the umpire’s findings

constituted a liability determination, which the panel had no authority to make.

Tippett failed to establish that Safeco was liable for a claim under the policy and that

Safeco violated the prompt-payment provisions of the Insurance Code as a matter of

2
law. Neither Safeco’s invoking the appraisal process nor the appraisal award

established such liability as a matter of law, as she contended in the trial court.

In her second issue, Tippett argues that the trial court erred by granting

Safeco’s no-evidence motion for summary judgment because she presented more than

a scintilla of evidence to support the challenged elements of the claims at issue.

Because we conclude that Safeco’s no-evidence motion was contingent upon it

establishing that it had paid the full amount of the appraisal award as a matter of law,

we do not reach this question because our resolution of Tippett’s first issue is

dispositive.

Accordingly, we affirm the trial court’s denial of Tippett’s motion for partial

summary judgment but reverse the trial court’s grant of summary judgment on all of

Tippett’s claims.

BACKGROUND

Tippett submitted a claim under her homeowner’s-insurance policy with Safeco

for hail damage to her home from a March 17, 2016 storm. The policy contains an

exclusion for “Cosmetic Damage to Metal Roofing” that excludes “cosmetic loss or

damage, meaning any loss that is limited to the physical appearance of a metal roof

surface” from the property losses that the policy covers. Safeco’s adjuster inspected

Tippett’s home and shed and prepared an estimate that totaled $4,268.14 (replacement

cost value) (RCV) and $3,401.01 (actual cash value) (ACV). Safeco sent Tippett a

letter stating that “it is unable to pay for a portion of [her] claim because [her] policy

3
does not provide coverage for part of the loss.” Specifically, it “found scuffs and

dents that are cosmetic from hail and do not affect the function or expected life cycle

of the metal roof system. The only functional damage found on the metal roof was

on the front slope where limbs hit [the] roof.” Because the covered loss was less than

the policy’s $3,453.00 deductible, Safeco paid Tippett nothing.

Over a year later, Tippett hired a public adjuster who inspected the property

and prepared an estimate totaling $76,937.48 (ACV). Upon receiving notice of

representation from Tippett’s public adjuster, Safeco retained an engineering company

to re-inspect the property. Based on its engineer’s report, Safeco prepared a revised

estimate totaling $7,070.96 (RCV) and $5,752.28 (ACV). Safeco sent Tippett a letter

advising her of its coverage position, again denying coverage for cosmetic damage to

the metal roofs. After deducting for depreciation and the deductible, Safeco paid

Tippett $2,299.28.

Tippett filed suit asserting claims against Safeco for breach of contract, unfair

settlement practices in violation of Chapter 541 of the Insurance Code, violations of

the Prompt Payment of Claims provisions of Chapter 542 of the Insurance Code

(TPPCA), breach of the duty of good faith and fair dealing, violations of the Texas

Deceptive Trade Practices Act (DTPA), and fraud. 1

1
Tippett also sued Safeco’s insurance adjuster but nonsuited those claims
shortly after filing suit.

4
 Safeco subsequently invoked the policy’s appraisal provision. Safeco and

Tippett each picked an appraiser, and then their appraisers picked an umpire.

Safeco’s appraiser and the umpire signed an “Agreement Award” (the Appraisal

Award) and determined that the amount of loss was $59,794.89 (RCV) and $56,612.82

(ACV). Tippett’s appraiser did not agree to the Award.

The summary-judgment record also reflects the existence of an umpire

“Appraisal Estimate.” The Appraisal Estimate described twenty-three different

appraisal categories (e.g., “Remove Aluminum shake/slate-including felt-color finish,”

“R&R Window screen, 1 – 9 SF,” and “Window labor minimum[]”) and RCV and

ACV calculations for each. Two sections of the Appraisal Estimate contained the

identical “umpire’s note,” which stated,

UMPIRE’S NOTE:
IT IS MY OPINION THAT HAIL DID NOT DAMAGE THE
ALUMIN[UM] SHAKE ROOF IN A MANNER THAT CAUSED OR
CONTRIBUTED TO ANY INTERIOR LEAKING.
THERE IS EVIDENCE OF HAIL DENTING ON THE
ALUMINUM SHAKES ACROSS THE ROOF. MY OPINION IS
THAT THIS HAIL DENTING WILL NOT CAUSE A LOSS OF
THE INTENDED WATER-SHEDDING FUNCTIONALITY OF
THE ALUMINUM SHAKES.
Following the appraisal, Safeco prepared a revised estimate totaling $8,693.74

(ACV). Safeco, relying upon the umpire’s note, excluded losses relating to Tippett’s

dwelling and shed roofs from coverage and then, after subtracting the deductible and

its prior payment, paid Tippett $2,941.46, reserving its rights, remedies, and defenses

5
at law and under the policy. Safeco noted that “[a]lthough the panel did not identify

any functional damage to the metal roof shakes, . . . Safeco previously paid for repairs

to the dwelling roof. Therefore, those repairs [were] included in Safeco’s revised

estimate.”

Within a few months, Safeco filed a combined traditional and no-evidence

motion for summary judgment, arguing that it had paid the full amount owed under

the Appraisal Award and thus conclusively negated the breach and injury elements to

Tippett’s contract claim as a matter of law. Without a contract claim, Safeco reasoned

that Tippett’s extra-contractual claims failed as a matter of law absent a showing by

Tippett of an independent injury; and it argued that Tippett could not show any

independent injury. Safeco further requested a no-evidence summary judgment on all

of Tippett’s claims.

Shortly thereafter, Tippett filed a motion for partial summary judgment arguing

that she had established her claim against Safeco under the TPPCA as a matter of law.

The trial court denied Tippett’s motion, granted Safeco’s motion, and

dismissed the lawsuit with prejudice. Tippett now appeals both of the trial court’s

rulings.

PRELIMINARY MATTER

As a preliminary matter, we must determine whether Safeco asserted, in

substance, traditional and no-evidence grounds for summary judgment on each of

Tippett’s claims so that we may review the trial court’s rulings under the proper

6
standard. No-evidence and traditional grounds for summary judgment may be

combined in a single motion. Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004).

Because the trial court did not state the grounds for granting summary judgment, we

will uphold the summary judgment if it can be sustained under either traditional or

no-evidence grounds. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

When a party moves for summary judgment under both traditional and no-evidence

grounds, we normally first review the trial court’s judgment under the no-evidence

grounds. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). But we may

address the traditional grounds for summary judgment first when they are dispositive.

See D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d 217, 225 n.7 (Tex.

App—Fort Worth 2013, no pet.) (addressing traditional summary judgment first

because movant’s affirmative defense was dispositive).

On appeal, Tippett argues that this court need not review the no-evidence

motion first “because both motions ultimately turn” on the issue of whether the

Appraisal Award estops her claims. We agree that we need not review the no-

evidence motion first because Safeco made its no-evidence motion contingent upon it

prevailing on its traditional grounds for summary judgment.

In Safeco’s summary-judgment motion, it expressly argued, among other

similar statements, that “Plaintiff has no evidence to support any of her causes of

action now that Safeco has timely paid all amounts owed under the appraisal award.” [Emphasis

added.] In its summary-judgment reply, Safeco again argued, “the sole issue for the

7
Court is one of law: whether the Appraisal Award . . . estops Plaintiff’s breach of

contract claim and her extra-contractual claims – contingent, as they are, on the contract

claim absent a showing of an independent injury.” [Emphases added.]

Safeco made its challenge that Tippett had no evidentiary support for specific

elements to her claims contingent upon its contention that it had paid all amounts

owed under the Appraisal Award as a matter of law. Safeco argued that its payment

negated various elements to Tippett’s claims, such as breach, damages, the wrongful

denial of benefits, bad faith, and detrimental reliance.2 On appeal, Safeco asserts no

argument challenging whether Tippett met her burden, if any, to produce more than a

scintilla of probative evidence to support any element of any claim that Safeco

2
Tippett also argues on appeal that Safeco’s no-evidence motion on the TPPCA
claim was legally insufficient. Because Safeco’s request for no-evidence summary
judgment on the TPPCA claim was only a statement that Tippett had “no evidence to
support one or more of the elements” of the claim, we agree. Rule 166a(i) does not
authorize general no-evidence challenges or conclusory motions. Tex. R. Civ. P.
166a(i) & 1997 cmt.; see also Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d
671, 695 (Tex. 2017); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); P.C.
as next friend of C.C. v. E.C., No. 02-18-00389-CV, 2019 WL 4010222, at *4 (Tex.
App.—Fort Worth Aug. 26, 2019, no pet.) (citing Dyer v. Accredited Home Lenders, Inc.,
No. 02-11-00046-CV, 2012 WL 335858, at *3–5 (Tex. App.—Fort Worth Feb. 2,
2012, pet. denied) (mem. op.)). We conclude that Safeco failed to meet its initial
burden to file a legally sufficient no-evidence motion with respect to Tippett’s TPPCA
claim. Safeco’s traditional request for summary judgment on this claim was based
solely on its contention that payment of the full amount of the Appraisal Award
disposed of the TPPCA claim; we will discuss that argument below.

8
challenged in its no-evidence motion. Nor does it contend that we should review its

no-evidence grounds for summary judgment first or even at all. 3

We conclude that the substance of Safeco’s no-evidence arguments was merely

a rephrasing of its traditional motion for summary judgment; Safeco’s no-evidence

arguments were all contingent upon it establishing as a matter of law that it had paid

all amounts owed under the Appraisal Award. See Coleman v. Prospere, 510 S.W.3d 516,

518–19 (Tex. App.—Dallas 2014, no pet.) (holding that the substance of a motion

and not its form or the attachment of evidence determines whether it is a

no-evidence, traditional, or combined motion) (citing Binur, 135 S.W.3d at 650–51).

Accordingly, we will review Safeco’s motion for summary judgment on Tippett’s

claims under only the traditional summary-judgment standard.

THE TRIAL COURT ERRED BY GRANTING SAFECO’S MOTION FOR SUMMARY
JUDGMENT BECAUSE SAFECO FAILED TO MEET ITS SUMMARY-JUDGMENT
BURDEN TO CONCLUSIVELY NEGATE AN ELEMENT OF TIPPETT’S CLAIMS

A. Standard of review

We review a traditional summary judgment de novo. Travelers Ins. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light

most favorable to the nonmovant, crediting evidence favorable to the nonmovant if

reasonable jurors could, and disregarding evidence contrary to the nonmovant unless

3
Safeco’s sole “responsive issue presented” was “[w]hether the trial court erred
when it granted a take-nothing summary judgment, finding as a matter of law that
Tippett has been paid all benefits to which she was entitled pursuant to the findings
of the appraisal panel, and that she has not demonstrated an injury independent of her
right to policy benefits.”

9
reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289

S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any

doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.

2008).

A defendant that conclusively negates at least one essential element of a

plaintiff’s cause of action is entitled to summary judgment on that claim. Frost Nat’l

Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).

Once the defendant produces sufficient evidence to establish the right to summary

judgment, the burden shifts to the plaintiff to come forward with competent

controverting evidence that raises a fact issue. Van v. Peña, 990 S.W.2d 751, 753 (Tex.

1999). If a movant does not meet its summary-judgment burden, the burden does not

shift to the nonmovant, and the nonmovant does not need to respond or present any

evidence. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex.

2014). In a summary-judgment case, the issue on appeal is whether the movant met

the summary-judgment burden by establishing that no genuine issue of material fact

exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P.

166a(c); Mann Frankfort, 289 S.W.3d at 848.

B. The function of appraisal provisions in insurance policies is to appraise
the insured’s loss.

Appraisal clauses are included in most property insurance policies. Barbara

Techs. Corp. v. State Farm Lloyds, 589 S.W.3d 806, 814 (Tex. 2019). They provide a

10
mechanism to resolve disputes between insureds and insurers about the amount of

loss for a covered claim. Ortiz v. State Farm Lloyds, 589 S.W.3d 127, 131 (Tex. 2019).

The appraisal process can provide a less expensive, more efficient alternative to

litigation. See In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d 404, 407 (Tex.

2011) (orig. proceeding).

“[I]n every property damage claim, someone must determine the ‘amount of

loss,’ as that is what the insurer must pay.” See Barbara Techs., 589 S.W.3d at 814.

Appraisers determine the amount of damage resulting to the property submitted for

their consideration. Wells v. Am. States Preferred Ins. Co., 919 S.W.2d 679, 685 (Tex.

App.—Dallas 1996, writ denied). The appraisal mechanism allows the parties to

“contractually resolve” a dispute about “the amount of the covered loss.” Ortiz, 89

S.W.3d at 132. The appraisal process binds the parties to the extent or amount of the

loss, but “leav[es] the question of liability for such loss to be determined, if necessary,

by the courts.” State Farm Lloyds v. Johnson, 290 S.W.3d 886, 889 (Tex. 2009) (citing

Scottish Union & Nat’l Ins. Co. v. Clancy, 8 S.W. 630, 631 (Tex. 1888)); see also Ortiz, 589

S.W.3d at 132 (“[A]n enforceable appraisal award . . . is binding on the parties with

respect to that amount.”). The “effect of an appraisal decision is to estop one party

from contesting the issue of the value of damages in a suit on the insurance contract.”

Allison v. Fire Ins. Exch., 98 S.W.3d 227, 253 (Tex. App.—Austin 2002, pet. granted,

judgm’t vacated w.r.m.); see also Amine v. Liberty Lloyds of Tex. Ins. Co., No. 01-06-

11
00396-CV, 2007 WL 2264477, at *3 (Tex. App.—Houston [1st Dist.] Aug. 9, 2007, no

pet.) (mem. op.).

Texas courts have long held that appraisal awards made pursuant to the

provisions of an insurance contract are binding and enforceable in the absence of

fraud, accident, or mistake. See Johnson, 290 S.W.3d at 888; Barnes v. W. Alliance Ins.

Co., 844 S.W.2d 264, 267 (Tex. App.—Fort Worth 1992, writ dism’d by agr.) (“An

award entered by appraisers and an umpire can be disregarded in only two instances:

(1) if the award was made without authority; or (2) if the award was made as the result

of fraud, accident, or mistake.”).

Generally, under Texas law, by making payment of the full amount of an

appraisal award after the appraisal process has been invoked, an insurer complies with

every requirement of the contract, and such payment bars an insured’s breach of

contract claim premised on the failure to pay the amount of the covered loss. See

Ortiz, 589 S.W.3d at 129 (holding insurer’s payment of full amount of appraisal award

barred insured’s contract claim that was premised on the fact that the appraisal award

valued the covered loss in an amount greater than the insurer had initially assessed);

Nat’l Sec. Fire & Cas. Co. v. Hurst, 523 S.W.3d 840, 845 (Tex. App.—Houston [14th

Dist.] 2017) (stating that “[g]enerally, tender of the full amount owed pursuant to the

conditions of an appraisal clause is all that is required to estop the insured from

raising a breach of contract claim” and that an “insured’s rejection of [the insurer’s

full and timely] payment [of the appraisal award] does not prevent estoppel”), pet.

12
denied, No. 17-0719, 2019 WL 6972241 (Tex. Dec. 20, 2019); Anderson v. Am. Risk Ins.

Co. Inc., No. 01-15-00257-CV, 2016 WL 3438243, at *4 (Tex. App.—Houston [1st

Dist.] June 21, 2016, no pet.) (mem. op.) (holding that insurer fulfilled its obligations

under the contract by its payment of appraisal award after accounting for the

deductible, prior payments, and policy limits); Franco v. Slavonic Mut. Fire Ins., 154

S.W.3d 777, 786–87 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (holding that

appraisal award estopped insureds’ contract claim against insurer when insurer paid

the amount of appraisal award, less the deductible, and the insureds accepted the

payment).

Although every reasonable presumption will typically be made in favor of an

appraisal award, when reviewing a summary-judgment proceeding, that rule must yield

to the degree its application conflicts with the presumptions required to be made in

favor of a nonmovant. Wells, 919 S.W.2d at 683.

C. Safeco did not conclusively prove that it had paid the amount of the
Appraisal Award. By reducing its payment, Safeco had the burden to
establish the applicability of the cosmetic-damage exclusion as a matter
of law; the umpire’s note was not conclusive evidence of the exclusion’s
application.

Safeco’s request for summary judgment was premised on its contention that it

had paid the full amount owed under the Appraisal Award and that this disposed of

each of Tippett’s claims as a matter of law.4 But Safeco did not contend that it paid

Specifically, Safeco argued that by paying the full amount owed under the
4

Appraisal Award, it negated the breach and injury elements to Tippett’s contract claim

13
the amount of loss determined by the appraisal panel. Rather, Safeco contends that it

paid the full amount of the covered loss because it applied the cosmetic-damage

exclusion to reduce the amount it claimed it owed under the Appraisal Award. Safeco

relied upon the umpire’s note as conclusively establishing the applicability of the

cosmetic-damage exclusion.

In her first issue on appeal, Tippett challenges whether Safeco’s payment

barred her from recovering on her contractual and extra-contractual claims as a matter

of law. According to Tippett, Safeco had the burden to establish the applicability of

the exclusion. Safeco relied upon the umpire’s note to exclude “cosmetic” damage

from coverage, but the policy did not authorize the panel to determine issues other

than the amount of loss, and appraisal awards do not establish liability. Estoppel

applies only when an insurer pays the full amount of the award; but Safeco made only

a partial payment. Thus, there is no evidence that Safeco paid the full Appraisal

Award. We agree with Tippett on all of these points.

as a matter of law. Safeco argued that because Tippett had no contract claim, Tippett
had to show an independent injury in order to sustain her extra-contractual claims,
which she could not do. It further sought summary judgment on Tippett’s TPPCA
claim, arguing that its timely payment of the Appraisal Award disposed of the claim.
Likewise, it argued that its payment of the Appraisal Award disposed of Tippett’s
fraud claim because such payment negated detrimental reliance. We need not address
whether Tippett was required to demonstrate an independent injury to maintain her
extra-contractual claims or whether Safeco’s post-Appraisal Award payment negated
any element to Tippett’s claims because our ruling on whether Safeco met its burden
to prove that it paid the full amount owed under the Appraisal Award is dispositive.
See Tex. R. App. P. 47.4.

14
 1. As the insurer, Safeco bore the burden to establish why Tippett’s
claim was excluded from coverage.

An insured has the burden of establishing coverage under the terms of the

policy. JAW The Pointe, L.L.C. v. Lexington Ins. Co., 460 S.W.3d 597, 603 (Tex. 2015).

As Tippett points out, to avoid liability, the insurer then has the burden to plead and

prove that the loss falls within an exclusion to the policy’s coverage.5 Id. If the

insurer proves that an exclusion applies, then the burden shifts back to the insured to

show that an exception to the exclusion brings the claim back within coverage. Id.

Safeco’s summary-judgment motion did not challenge whether the policy provided

coverage for the loss to Tippett’s property generally. Rather, its motion focused on

the applicability of the cosmetic-damage exclusion.

The question presented is whether Safeco met its burden to prove the

applicability of the cosmetic-damage exclusion based solely on the umpire’s note.

Tippett disputes whether the umpire’s finding is even attributable to the panel and

also argues that the policy did not authorize the panel to determine issues other than

the amount of loss. Safeco argues that appraisers may allocate damages between

5
In her response to the summary-judgment motion, Tippett argued that if
Safeco disputed the amount of the award, then the award necessitated a determination
of liability to find the amount owed; that the policy did not define “cosmetic” damage;
that there was a fact question as to whether the damages to her roofs were cosmetic;
and that there was a fact question as to whether the umpire exceeded the scope of his
authority by giving his opinion about the damages to the roof. We conclude that her
arguments in the trial court are sufficiently similar to her arguments on appeal to
preserve them for our review. See Tex. R. App. P. 33.1.

15
covered and excluded perils and that Safeco’s appraiser adopted the umpire’s findings.

The following explains why we agree with Tippett.

2. Why the umpire’s note was not conclusive evidence to carry
Safeco’s burden.
For both evidentiary and legal reasons, we conclude that Safeco did not

conclusively establish the applicability of the cosmetic-damage exclusion. Safeco did

not conclusively establish that the appraisal panel adopted the findings in the umpire’s

note. Even if it did, the appraisal panel did not have authority to construe the policy

and conclusively determine Safeco’s liability under the policy.

a. Safeco did not conclusively establish that the findings in the
umpire’s note were findings made by the appraisal panel.
The appraisal clause requires two of the three members of the appraisal panel

to agree to the award in writing. It states, “An award in writing, so itemized, of any

two of these three, when filed with the company shall determine the amount of loss.”

Because Safeco relied upon the findings in the umpire’s note to establish the

applicability of the cosmetic-damage exclusion to reduce the amount owed under the

Appraisal Award, and assuming this was a finding the panel had authority to make,

Safeco bore the initial burden to conclusively prove that the umpire and one other

member of the panel adopted the umpire’s findings in the Appraisal Estimate and

incorporated them into the Appraisal Award. See Tex. R. Civ. P. 166a(c).

Safeco’s appraiser and the umpire both signed the one-page Appraisal Award.

But the Appraisal Award does not contain the umpire’s note. Rather, the umpire’s

16
note is in the separate umpire Appraisal Estimate, which is not signed. The Appraisal

Award does not mention or incorporate by reference the Appraisal Estimate, and the

amount of the award was for the full amount of the loss found by Safeco’s appraiser

and the umpire without any reduction that would result from application of the

cosmetic-damage exclusion. Thus, Safeco’s appraiser’s signature on the Appraisal

Award is not conclusive evidence that he adopted the findings in the umpire’s note.

Safeco argues that its appraiser adopted the umpire’s findings in an email that

he sent to the umpire and Tippett’s appraiser. Safeco’s appraiser stated, “I am in

agreement with the award, as long as the umpire breakdown is attached as an integral

part of the award package. I have attached the award with my signature and await

execution of the form.” This email does not fill the gap in Safeco’s summary-

judgment evidence.6

6
On appeal, Tippett argues that Safeco’s appraiser’s email is “a far cry from
‘expressly stat[ing]’ that the hail damage did not affect the roof’s proper function.
Contrary to Safeco’s representation, two of the three appraisers did not expressly find
that the damage would not affect the roof’s function.” We liberally construe this
argument as a challenge to the legal sufficiency of Safeco’s summary-judgment
evidence, which may be raised for the first time on appeal. See Tex. R. App. P. 38.1(f),
.9; Old Am. Ins. Co. v. Lincoln Factoring, LLC, 571 S.W.3d 271, 276 n.7 (Tex. App.—
Fort Worth 2018, no pet.); see also Speedy Stop Food Stores, Ltd. v. Reid Road Mun. Util.
Dist., 282 S.W.3d 652, 655 (Tex. App.—Houston [14th Dist.] 2009) (liberally
construing appellant’s brief to include challenge to trial court’s order striking
summary-judgment affidavit even though the appellant did not expressly state this
argument but instead argued the affidavit raised a genuine issue of material fact), aff’d,
337 S.W.3d 846 (Tex. 2011).

17
 Safeco’s appraiser does not mention the umpire’s note in his email. 7 At most,

the evidence gives rise to an inference that the “breakdown” that Safeco’s appraiser

referenced was the Appraisal Estimate, that the Appraisal Estimate contained the

umpire’s note at that time, that Safeco’s appraiser reviewed the umpire’s note, that

Safeco’s appraiser agreed with the umpire’s note, and that Safeco’s appraiser intended

his email to constitute his written incorporation of the findings in the umpire’s note

into the Appraisal Award. This does not satisfy Safeco’s summary-judgment burden.

A motion for summary judgment that depends on “a mere ground of inference” (or,

as in here, many inferences) should not be granted. See Great Am. Reserve Ins. Co. v. San

Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965); see also State v. Durham, 860

S.W.2d 63, 66 (Tex. 1993) (stating that summary judgment could not be based on

inferences from the evidence urged by movants); Nixon v. Mr. Prop. Mgmt. Co., Inc.,

690 S.W.2d 546, 549 (Tex. 1985) (“Every reasonable inference must be indulged in

favor of the non-movant and any doubts resolved in its favor.”); Fieldtech Avionics &

Instruments, Inc. v. Component Control.Com, Inc., 262 S.W.3d 813, 833 (Tex. App.—Fort

Worth 2008, no pet.) (“Speculation is not evidence.”) (citing Joe v. Two Thirty Nine Joint

Venture, 145 S.W.3d 150, 164 (Tex. 2004)).

In fact, we can draw reasonable inferences contrary to those drawn by Safeco

from the appraiser’s email. See Nixon, 690 S.W.2d at 549. First, although the

7
Safeco’s summary-judgment evidence also did not include the attachment to
its appraiser’s email.

18
Appraisal Estimate describes twenty-three different items and itemizes loss estimates

relative to each, the Appraisal Award also contains the following breakdown:

Thus, it is reasonable to draw an inference contrary to the one that Safeco advocates

and to infer that the “breakdown” is the itemization included in the Appraisal Award

and not some other breakdown that the appraiser did not endorse with his signature.

Second, directly below that breakdown, the panel disclaimed making any

findings about coverage in the Appraisal Award, stating,

Limitations – The above[-]referenced conclusions remain subject to
applicable policy language and exclusions, as well as deductible
obligations of the insured. . . . In no way are these findings opinions
about coverage, or coverage terms, which may be determined or applied
by others.
The Appraisal Estimate likewise includes the following chart entitled, “Coverage,” for

all property submitted for the panel’s consideration:

19
By contrast, the umpire’s note stated findings solely in terms of the umpire’s personal

opinion, not in terms of the panel’s opinion (“It is my opinion that hail did not

damage the alumin[um] shake roof in a manner that caused or contributed to any

interior leaking,” and “My opinion is that [the] hail denting will not cause a loss of the

intended water-shedding functionality of the aluminum shakes.” [Emphasis added.]).

The panel did not reduce the amount of the loss determined by the panel in the

Appraisal Award based on the findings in the umpire’s note in any way. Even if the

Appraisal Estimate was the “breakdown” that Safeco’s appraiser referenced in his

email, it is reasonable to infer that Safeco’s appraiser assumed that the umpire’s

findings were superfluous and not attributable to the panel, that he did not adopt

those findings, and that the findings were not part of the Appraisal Award that he

signed.

The affidavit testimony submitted by Safeco did not close the loop and

conclusively prove that Safeco’s appraiser adopted the umpire’s note. In the trial

court, Safeco submitted the Affidavit of Michael Diksa, a Safeco attorney, who

testified that he “received an email from Safeco’s appraiser forwarding a copy of an

Agreement Award and Appraisal Estimate.” Diksa attached a copy of the transmittal

email, the Appraisal Award, and the Appraisal Estimate. But Diksa did not receive

the email forwarding the Appraisal Award from Safeco’s appraiser; rather, he received

it from someone else in the appraiser’s office who stated, “[Safeco’s appraiser] is

traveling today, but asked me to send you the executed award we received after

20
business hours yesterday. Please let us know if you have any questions.” Safeco’s

appraiser is copied on the email. Diksa’s affidavit does not conclusively establish that

two members of the panel adopted the findings in the umpire’s note because it, at

most, leads to a mere inference that Safeco’s appraiser opened the attachment, saw

the umpire’s note in the Appraisal Estimate, and understood those findings to be part

of the Appraisal Award, among other things. This does not satisfy Safeco’s summary-

judgment burden. See Nixon, 690 S.W.2d at 549; see also Ford Motor, 135 S.W.3d at 601

(“Evidence that is so slight as to make any inference a guess is in legal effect no

evidence.”); Great Am. Reserve Ins. Co., 391 S.W.2d at 47. A contrary but reasonable

inference is that Safeco’s appraiser merely saw that he received the email from the

umpire after hours stating that he attached the signed award, and that Safeco’s

appraiser asked a staff member to forward the email with the award without opening

the attachment to verify its contents.

Indulging all reasonable inferences and resolving all doubts in Tippett’s favor,

we conclude that Safeco failed to meet its initial summary-judgment burden to

conclusively establish that two members of the appraisal panel adopted the umpire’s

findings in writing. Safeco’s request for summary judgment, which it based upon its

contention that it had paid the full amount owed under the Appraisal Award, hinged

upon establishing this fact. Accordingly, we conclude that the trial court erred by

granting Safeco’s summary-judgment motion, even if we assume that the panel had

authority to make the determination of coverage allegedly contained in the umpire’s

21
note. See Durham, 860 S.W.2d at 66; Nixon, 690 S.W.2d at 548–49; Great Am. Reserve

Ins. Co., 391 S.W.2d at 47; Fieldtech, 262 S.W.3d at 833.

b. The appraisal panel did not have authority to construe the
policy and make liability determinations.
Even if we assume that Safeco’s appraiser adopted the findings in the umpire’s

note, we conclude that the panel did not have authority to conclusively determine any

issues other than the amount of the loss; in other words, it made a coverage

determination that was outside its authority.

Appraisal awards may be disregarded when they do not comply with policy

terms; the award must be construed and applied in compliance with the policy even if

no party seeks to disregard an appraisal award. Tex. Windstorm Ins. Ass’n v. Dickinson

Indep. Sch. Dist., 561 S.W.3d 263, 276 (Tex. App.—Houston [14th Dist.] 2018, pet.

filed) (op. on reh’g); see also Franco, 154 S.W.3d at 786 (“[A]n otherwise binding

appraisal may be disregarded: (1) when the award was made without authority; (2)

when the award was made as a result of fraud, accident, or mistake; or (3) when the

award was not in compliance with the requirements of the policy.”); MLCSV10 v.

Stateside Enters., Inc., 866 F. Supp. 2d 691, 704–07 (S.D. Tex. 2012) (setting aside

portions of award in part because appraisers made impermissible coverage decision

based on a determination that “no covered event caused the ductwork damage”);

Amtrust Ins. Co. of Kan., Inc. v. Starship League City, L.P., No. 4:11-CV-00672, 2012 WL

2996489, at *4 (E.D. Tex. June 4, 2012) (stating that appraisal process does not

22
replace judicial process; a party still has the right to ask the court to interpret its rights

and obligations under a policy).

i. The policy did not authorize the appraisal panel to
determine liability questions.
Safeco does not argue that the panel’s authority to make the findings in the

umpire’s note arises from the policy. Rightly so. The appraisal clause provides that a

party may invoke the appraisal process if the parties “do not agree on the amount of

the loss.”8 The resulting written award then “determine[s] the amount of the loss.”

Here, the policy provision that Safeco relies on does not provide that cosmetic

damage is not a loss; it provides that cosmetic damage is a loss that is excluded from

coverage:

PROPERTY LOSSES WE DO NOT COVER

....

18. Cosmetic loss or damage, meaning any loss that is limited to
the physical appearance of a metal roof surface.
The policy contains many examples of “losses” that are excluded from coverage. For

example, it identifies “liability losses we do not cover”; and it provides coverage for “loss

by direct force of windstorm” or “hail” but states that these perils do not include

“loss” to certain personal property, watercraft, and greenhouses, among other things.

We construe insurance policies in Texas according to the rules governing
8

contract construction. Tex. Farm Bureau Mut. Ins. Co. v. Sturrock, 146 S.W.3d 123, 126
(Tex. 2004).

23
[Emphases added.] In the section entitled, “Property Losses We Do Not Cover,” the

policy states,

We do not cover loss caused directly or indirectly by any of the following
excluded perils. Such loss is excluded regardless of the cause of loss or any
cause or event contributing concurrently or in any sequence to the loss.
These exclusions apply whether or not the loss event results in
widespread damage or affects a substantial area. [Emphases added.]
Applying the four-corners rule, the parties did not intend “loss” in the appraisal

clause to mean only losses for which coverage exists. See Thompson v. Geico Ins. Agency,

Inc., 527 S.W.3d 641, 644 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“[W]e

ascertain the parties’ intent by looking to only the four corners of the policy to see

what the policy states without considering what the parties allegedly meant.”). Rather,

when determining “the amount of the loss,” appraisers may both appraise losses that

Safeco agrees are covered and losses that Tippett claims are covered (but that Safeco

claims are excluded) when the parties value such losses differently. See Wells, 919

S.W.2d at 685 (“[T]he function of the appraisers is to determine the amount of

damage resulting to the property submitted for their consideration.”). And here, the

summary-judgment record reflects that the parties had both a valuation dispute 9 and a

coverage dispute—namely, whether a portion of the loss fell within the cosmetic-

9
This is evidenced by the fact that the parties’ pre-appraisal estimates reflected
different estimates (including different unit prices) for some of the same work. In the
trial court, Tippett argued that the appraisal award disposed of only the valuation
dispute and not the coverage issue or liability. We conclude that her arguments in the
trial court are sufficiently similar to her arguments on appeal to preserve them for our
review. See Tex. R. App. P. 33.1, 38.1(f).

24
damage exclusion. Nothing in the plain language of the policy authorized the

appraisers to determine whether hail damage was purely cosmetic or affects the

functionality of a metal roof. This is not a determination on the amount of the loss

(damages); it is a liability determination, as we explain below.

ii. Under Texas law, appraisal panels do not make
liability determinations.
Safeco relies upon State Farm Lloyds v. Johnson as the authority for the appraisal

panel to “allocate damages between covered and excluded perils,” which, in this case,

conclusively determines whether the cosmetic-damage exclusion applies. We disagree

with Safeco’s reading of Johnson. Though Johnson may be read to expand the powers of

appraisers to make causation determinations, it does not empower appraisers to make

legal determinations that construe and apply policy exclusions.10

In Johnson, the issue before the Texas Supreme Court was whether the

summary-judgment record established that an appraisal sought by an insured would

exceed the permissible scope of appraisal. 290 S.W.3d at 888. The appraisal had not

yet taken place. Id. The insured had filed a claim for hail damage, claiming that her

entire roof needed replacement. Id. at 887. The insurer contended that hail damaged

only the roof’s ridgeline. Id. When the insured invoked the appraisal provision, the

10
See Timothy Gray, G. Brian Odom, Shannon M. O’Malley, Benefits, Pitfalls, and
Trends in Property Insurance Appraisal, 44-SPG Brief 20, 25 (2015) (“Since Johnson,
appraisals in Texas have expanded exponentially to involve determinations by the
appraisers and umpire of whether damage was caused by a covered or a noncovered
peril, as well as various other disputes traditionally considered to be coverage
questions outside the purview of the appraisal provision.”).

25
insurer refused to participate, arguing that the parties’ dispute involved causation and

not “amount of loss” so the dispute did not fall within the scope of the appraisal

clause. Id. at 888. After the insured filed a declaratory judgment action seeking to

compel appraisal, the parties filed cross-motions for summary judgment. Id. The trial

court agreed with the insurer that no appraisal was warranted, and the court of

appeals reversed, holding that appraisal was required. Id. The Texas Supreme Court

concluded that the record did not establish that an appraisal would exceed the

permissible scope of appraisal. Id. at 887.

The court explained the distinction between damages questions for appraisers

and liability questions for the courts. Id. at 889. An appraisal “binds the parties to

have the extent or amount of the loss determined in a particular way, leaving the

question of liability for such loss to be determined, if necessary, by the courts.” Id. at

889 (quoting Scottish Union, 8 S.W. at 631); see also Ortiz, 589 S.W.3d at 131. The word

“appraisal” generally means “[t]he determination of what constitutes a fair price;

valuation; estimation of worth.” Johnson, 290 S.W.3d at 890. The “scope of appraisal

is damages, not liability.” Id.

The Texas Supreme Court was clear about what powers appraisers do not hold:

“[t]he policy directs the appraisers to decide the ‘amount of loss,’ not to construe the

26
policy or decide whether the insurer should pay.” Id.11 What Johnson wrestled with

was whether appraisal should deal with questions of causation, and it determined the

answer by asking whether causation involved an issue of the amount of loss or

damages (which is within the purview of appraisers) or an issue of liability turning on

an interpretation of the policy (which is not within the purview of appraisers). Id. at

890–93. The question of causation falls within an appraiser’s role because “appraisers

must always consider causation, at least as an initial matter.” Id. at 893. This role is

dictated by the fact that “[a]n appraisal is for damages caused by a specific occurrence,

not every repair a home might need.” Id. Thus, when assessing hail damage,

“appraisers look only at damage caused by hail; they do not consider leaky faucets or

remodeling the kitchen.” Id. “Any appraisal necessarily includes some causation

element, because setting the ‘amount of loss’ requires appraisers to decide between

11
After making this statement, the court quoted both a commentator and one
of the amicus briefs in the case, noting:

See 15 COUCH ON INSURANCE § 213.44: (“An appraiser can make
no legal determinations.”); Br. of Tex. Windstorm Ins. Ass’n as Amicus
Curiae Supporting Pet’rs at 8 (“In actual practice, appraisers and umpires
are frequently unqualified to make complex liability determinations
under an insurance policy. There is no requirement that they be
licensed. Umpires are often lawyers or mediators with no particular
experience or expertise in property insurance coverage or claims.
Appraisers are often contractors who may be familiar with repair costs
but are not qualified to make policy interpretations or to determine cause
and origin of the damage being claimed. There is no explicit
requirement that the appraisers and umpire inspect the property or read
the policy, and many do not.”).

Johnson, 290 S.W.3d at 890, n.23.

27
damages for which coverage is claimed from damages caused by everything else.” Id.

(emphasis added).

As Johnson noted, causation can implicate questions of both loss (or damage) or

liability, and the line between which question causation impacts is not always clear. Id.

at 890. Although the question of whether causation impacts damages or liability is

difficult to answer in the abstract, “in actual cases, causation usually falls into one

category or the other.” Id. at 892. For instance, appraisers can decide the cost of

repairs when different causes are alleged for a single injury to property, but they

cannot decide causation questions if their decision would displace the court’s role to

determine legal questions that impact liability. Id. Thus, “[b]y contrast, 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.” Id. In that

context, “courts can decide whether water or mold damage is covered,” for example,

“but if they can also decide the amount of damage caused by each, there would be no

damage questions left for the appraisers.” Id.

The court explained that “whether the appraisers have gone beyond the

damage questions entrusted to them will depend on the nature of the damage, the

possible causes, the parties’ dispute, and the structure of the appraisal award.” Id. at

893. The court provided the following additional guidance on distinguishing between

damages questions for appraisers and liability questions for the courts:

28
 [W]hen an indivisible injury to property may have several causes,
appraisers can assess the amount of damage and leave causation up to
the courts. When divisible losses are involved, appraisers can decide the
cost to repair each without deciding who must pay for it. When an insurer
denies coverage, appraisers can still set the amount of loss in case the insurer turns out
to be wrong. And when the parties disagree whether there has been any
loss at all, nothing prevents the appraisers from finding “$0” if that is
how much damage they find.
Id. at 894 (emphasis added) (footnotes omitted).

Indeed, the Fourteenth Court of Appeals recently surveyed the case law

interpreting Johnson; it cited cases holding that Johnson should not be read as giving

appraisers the power to make legal determinations:

Several cases decided since Johnson confirm that, although courts afford
appraisal awards due deference, appraisals do not supplant the judicial
process. See, e.g., [Sec. Nat’l Ins. Co. v.] Waloon [Inv., Inc.], 384 S.W.3d
[901,] 905 [(Tex. App.—Houston [14th Dist.] 2012, no pet.)] (appraisal
award, standing alone, does not determine the merits of a breach of
contract claim; appraisal is limited to determining amount of loss, not
whether an insurer should pay); see also MLCSV10 v. Stateside Enters., Inc.,
866 F. Supp. 2d 691, 704-07 (S.D. Tex. 2012) (applying Johnson and
setting aside portions of award in which appraisers made impermissible
coverage decision based on determination that “no covered event caused
the ductwork damage”); Amtrust Ins. Co. of Kan., Inc. v. Starship League City,
L.P., No. 4:11-CV-00672, 2012 WL 2996489 (E.D. Tex. June 4, 2012),
(appraisal process does not replace judicial process; party still has the
right to ask a court to interpret its rights and obligations under policy);
Glenbrook Patiohome, Owners Ass’n v. Lexington Ins. Co., No. H-10-2929,
2011 WL 666517, at *10 (S.D. Tex. Feb. 14, 2011) (loss-valuation issues
should be determined by appraisal, but coverage disputes should be
determined by the court).
Tex. Windstorm Ins. Ass’n, 561 S.W.3d at 276. Just last year, the Texas Supreme Court

again confirmed that “appraisal awards do not serve to establish a party’s liability (or

lack thereof).” Ortiz, 589 S.W.3d at 132.

29
 iii. The appraisal panel made a liability determination.
Unlike Johnson, the instant case involves no dispute about causation. The

appraisers did not distinguish damages caused by hail from pre-existing damages or

from damages caused by anything else. Safeco acknowledges that “hail-caused dents

. . . are present on Tippett’s metal roofs.” This is a dispute about whether any of the

damages, the cause of which is undisputed, are purely cosmetic. Safeco has denied

coverage because it believes that some of the damage did not affect the functionality

of the metal roofs.

Applying the principles of Johnson to the facts of this case, we conclude that the

appraisers could determine only the amount of the loss (the loss attributed to hail

damage for all property submitted for their consideration), leaving the question of

liability for such losses (including the application of the cosmetic-damage exclusion)

for the courts “in case [Safeco] turns out to be wrong” about its coverage position.

See Johnson, 290 S.W.3d at 894; see also Lundstrom v. United Servs. Auto. Ass’n-CIC, 192

S.W.3d 78, 89 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (holding that trial

court erred in granting declaratory summary judgment in favor of insurer and entering

take-nothing summary judgment against insureds because appraiser and umpire

exceeded their authority when they determined that a plumbing leak did not cause the

insured’s loss); Wells, 919 S.W.2d at 684–85 (“[A]ppraisers have no power or authority

to determine questions of causation, coverage, or liability . . . . [A]ppraisers are not

30
arbitrators. They have no power to arbitrate disputes between the property owner

and the insurance company, other than to value the property damage.”).

Although Safeco tries to shoehorn the facts of this case into Johnson’s holding,

that attempt fails. Safeco overreads two sentences in Johnson where the court stated

that if “appraisers can never allocate damages between covered and excluded perils,

then appraisers can never assess hail damage unless a roof is brand new. That would

render appraisal clauses largely inoperative, a construction we must avoid.” 290

S.W.3d at 892–93 (footnote omitted). Therefore, Safeco argues, “the appraisal panel

could assess whether the hail-caused dents, which all sides acknowledge are present

on Tippet’s metal roofs, resulted in damage that affected the roofs’ proper function.

An appraisal award without such an assessment would be of little use to the parties.”

Safeco, however, is quoting Johnson out of context.

When stating that appraisers can allocate damages between covered and

excluded perils, the court was commenting on the wear-and-tear exclusions in most

policies. Id. at 892. In that context, appraisers may need to resolve a causation

question when separating losses caused by a covered event (hail) from a property’s

pre-existing condition (wear and tear). Id. If appraisers were prohibited from

distinguishing between hail damage and pre-existing wear-and-tear damage, then

appraisal clauses would become inoperative unless a roof was brand new and had no

pre-existing damage. See id. at 892–93. The summary-judgment record in this case

does not reflect that the parties had a dispute about hail-caused damages and pre-

31
existing wear-and-tear damage. Thus, the court’s discussion in Johnson about the

appraisers’ ability to “allocate damages between covered and excluded perils” is

inapplicable.

Safeco’s position is also in direct conflict with the Texas Supreme Court’s

emphasis that “[t]he policy directs the appraisers to decide the ‘amount of loss,’ not to

construe the policy or decide whether the insurer should pay.” Id. at 890 (emphasis

added); see also Amine, 2007 WL 2264477, at *5 (stating that the appraisal process

“does not resolve coverage issues”); Johnson v. State Farm Lloyds, 204 S.W.3d 897, 902

(Tex. App.—Dallas 2006), aff’d, 290 S.W.3d 986 (Tex. 2009) (“It is certainly not [the

appraisers’] function to resolve questions of coverage and interpret provisions of the

policy.”). Appraisers cannot rewrite the policy. See Johnson, 290 S.W.3d at 893.

Here, the cosmetic-damage exclusion excluded property losses consisting of

“cosmetic loss or damage, meaning any loss that is limited to the physical appearance

of a metal roof surface.” In a message informing Tippett of its amendment to the

policy to include the exclusion, Safeco stated, “Damage to a metal roof that alters the

appearance of the roof, but not the functionality is now specifically excluded.” The

policy does not define “cosmetic” damage or provide any standard for “functionality”

of a metal roof. The umpire determined that “hail did not damage the . . . roof in a

manner that caused or contributed to any interior leaking” and that “hail denting will

not cause a loss of the intended water-shedding functionality of the aluminum

shakes.” Safeco argued that this constituted a finding that the hail denting

32
“constituted non-functional/cosmetic damage only.” But the cosmetic-damage

exclusion says nothing about damage that causes or contributes to “interior leaking”

or a “loss of the intended water-shedding functionality of the aluminum shakes.” For

the appraisers to make any findings about whether any damage was cosmetic or

functional, they necessarily had to construe (or rewrite) the policy, contrary to Johnson.

See 290 S.W.3d at 890.

Safeco argued that the cosmetic-damage exclusion is not ambiguous, claiming

that courts interpreting cosmetic-damage exclusions have held that damage that

affects the roof’s proper function is not cosmetic while damage that only affects its

appearance is. But the definition offered by Safeco still leaves unanswered the

question of what constitutes damage that affects a metal roof’s “proper function.”12

12
We note that Safeco’s own summary-judgment evidence included letters from
Safeco and a report from an engineer hired by Safeco that identified multiple aspects
of purported “functional” damage that are not addressed by the umpire’s note,
including damage that affects the “expected life cycle of the metal roof system,” the
“useful service life” of the shingles, or the “integrity” of the metal roof covering.
Additionally, Safeco’s own summary-judgment evidence reflected that pre-appraisal, it
had determined that at least some of the hail damage to Tippett’s dwelling roof was
not excluded by the cosmetic-damage exclusion and had paid Tippett $2,299.28 after
“advising [Tippett] of Safeco’s coverage position.” Yet the umpire’s note applied to
all hail damage to Tippett’s dwelling roof, according to Safeco. Thus, for these
additional reasons, Safeco’s own summary-judgment evidence established the
existence of a genuine issue of material fact on the applicability of the cosmetic-
damage exclusion, making summary judgment improper. See Tex. R. Civ. P. 166a(c);
Armbruster v. Mem’l Sw. Hosp., 857 S.W.2d 938, 941 (Tex. App.—Houston [1st Dist.]
1993, no writ) (“The movant’s own evidence may establish the existence of a genuine
issue of material fact on the plaintiff’s claim.”).

33
 Here, for some reason not included in the record, the umpire included a note

that Safeco essentially used in an attempt to estop litigation on the applicability of the

cosmetic-damage exclusion. But it is well established that appraisal serves only to

estop litigation on the amount of the loss, not liability. Johnson, 290 S.W.3d at 889.

Safeco’s post-appraisal payment does not reflect a resolution to accept the panel’s

determination on the amount of Tippett’s loss. See Barbara Techs., 589 S.W.3d at 820

(“An insurer’s payment [following appraisal, often without admitting or specifically

disclaiming liability, is similar to a settlement and presumably] results from a

calculated risk assessment that paying the appraisal value will ultimately be less risky

or costly than litigating the claims to determine liability.”). Rather, Safeco made a

second payment on the losses that it did not dispute based on the amounts

determined by the panel—and continued to deny liability (and refuse payment) for the

rest based on the exclusion.

Applying the principles set forth in Johnson to the instant case, we conclude that

the parties’ dispute about whether the hail damages affected the functionality of

Tippett’s metal roofs was a liability question for the courts and not a damages

question for the appraisers. Safeco could not invest the appraisers with the power to

make judicial determinations by invoking the appraisal process and obtaining a finding

on the applicability of the cosmetic-damage exclusion.

On the facts presented and in the context of this dispute at issue, and assuming

that Safeco’s appraiser adopted the findings in the umpire’s note, after indulging all

34
reasonable inferences and resolving all doubts in the nonmovant’s favor, we hold that

the panel exceeded its authority when it made findings about whether the hail damage

caused or contributed to any interior leaking or will cause a loss of the intended water-

shedding functionality of the aluminum shakes. See Tex. Windstorm Ins. Ass’n, 561

S.W.3d at 276; Franco, 154 S.W.3d at 786. The appraisers could determine the amount

to repair or replace Tippett’s roofs, but by determining whether any hail damage

affected the functionality of the roofs it left no liability question for the courts,

contrary to Johnson. See 290 S.W.3d at 892–93.

Accordingly, the trial court erred by granting summary judgment based on

Safeco’s reliance upon the umpire’s note to prove the applicability of the

cosmetic-damage exclusion when claiming it had paid the full amount owed under the

Appraisal Award as a matter of law. Safeco did not conclusively prove that it paid the

full amount of the Appraisal Award and thus did not meet its summary-judgment

burden to conclusively negate the breach and injury elements to Tippett’s contract

claim. Thus, Safeco also did not establish that it was entitled to judgment as a matter

of law on Tippett’s contract and extra-contractual claims, and the trial court erred by

granting summary judgment dismissing Tippett’s claims. We sustain Tippett’s first

issue with respect to Safeco’s traditional summary-judgment motion.

35
 c. Our resolution of Tippett’s first issue regarding Safeco’s
traditional motion is dispositive of her second issue
regarding Safeco’s no-evidence motion.
Tippett’s second issue on appeal is whether she “presented more than a scintilla

of evidence to support the challenged elements of her claims for breach of contract

and unfair settlement practices under the Texas Insurance Code.” We do not reach

Tippett’s second issue because, as we explain above, Safeco made its no-evidence

motion contingent upon establishing that it had paid the full amount owed under the

Appraisal Award. Our ruling on Tippett’s first issue is dispositive of her second issue.

See Tex. R. App. P. 47.4; D.R. Horton-Tex., 416 S.W.3d at 225 n.7.

THE TRIAL COURT DID NOT ERR BY DENYING TIPPETT’S MOTION FOR PARTIAL
SUMMARY JUDGMENT BECAUSE SHE FAILED TO CONCLUSIVELY PROVE HER
TPPCA CLAIM AS A MATTER OF LAW
A. Standard of review

Within her first issue, Tippett argues that the trial court erred by denying her

cross-motion for partial summary judgment on her TPPCA claim.

When both parties move for summary judgment and the trial court grants one

motion and denies the other, the reviewing court should review both parties’

summary-judgment evidence and determine all questions presented. Mann Frankfort,

289 S.W.3d at 848. We should then render the judgment that the trial court should

have rendered. See Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n, 300 S.W.3d 746, 753

(Tex. 2009); Mann Frankfort, 289 S.W.3d at 848. A plaintiff is entitled to summary

judgment on a cause of action if it conclusively proves all essential elements of the

36
claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.

1986). Our standard of review is governed by the same principles set forth above.

B. The trial court did not err by denying Tippett’s motion for partial
summary judgment on her TPPCA claim.

Safeco argues that the trial court did not err by denying Tippett’s request for

summary judgment because she did not meet her summary-judgment burden. We

agree.

To prevail under a TPPCA claim, an insured must establish (1) the insurer’s

liability under the insurance policy and (2) that the insurer has failed to comply with

one or more sections of the TPPCA in processing or paying the claim. Barbara Techs.,

589 S.W.3d at 813 (citing Tex. Ins. Code Ann. § 542.060(a)). “If the insured fails to

establish either that the insurer is liable for the claim or that the insurer failed to

comply with a provision of the TPPCA, the insured is not entitled to TPPCA

damages.” Id. “Thus, the basis for liability for TPPCA damages is that the requisite

time has passed and the insurer was ultimately found liable for the claim.” Id.

(quotation marks omitted).

In seeking summary judgment on her TPPCA claim, Tippett argued that Safeco

violated Section 542.058 of the Texas Insurance Code, which concerns delayed

payment of claims, see Tex. Ins. Code Ann. § 542.058, and that she is entitled to an

award of actual damages in the amount of the Appraisal Award, statutory interest, and

attorneys’ fees. See id. § 542.060. Tippett argued that “the [A]ppraisal [A]ward stands

37
as evidence in fact that [Safeco] violated the TPPCA by failing to pay the amount due

under the policy for which [it was] ultimately liable.”

As Tippett herself points out on appeal, we recently addressed a similar case in

Lambert v. State Farm Lloyds, No. 02-17-00374-CV, 2019 WL 5792812 (Tex. App.—

Fort Worth Nov. 7, 2019, pet. filed) (mem. op.). In that case, the Lamberts submitted

a claim for damages under their homeowner’s-insurance policy for hail and wind

damages following a storm. Id. at *1. After State Farm’s initial inspection, it

determined that the damages were below the policy’s deductible and paid nothing. Id.

The Lamberts asked State Farm to re-inspect their home, which State Farm did. Id.

State Farm’s second inspection found more damages and netted the Lamberts $1,700

after subtracting depreciation and the deductible. Id. The Lamberts sued State Farm

for, among other things, violations of the TPPCA. Id. State Farm invoked the

appraisal process and the appraisal panel ultimately set the amount of loss to the

Lamberts’ home at $99,112.72 (RCV) and $70,965.54 (ACV). Id. State Farm

deducted depreciation and the past payment and paid the Lamberts $63,404.63. Id.

The parties in Lambert filed competing summary-judgment motions, and the

trial court ultimately denied the Lamberts’ motion and granted State Farm’s motion in

its entirety. Id. at *2. On appeal to this court, the Lamberts argued that State Farm

failed to follow the TPPCA’s prompt-payment deadlines and that they were entitled

to statutory interest and attorney’s fees. Id. at *3. We disagreed. We explained that in

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Barbara Technologies, the Texas Supreme Court offered guidance on addressing how the

appraisal process affects the TPPCA’s timing guidelines. Id.

In Barbara Technologies, State Farm twice denied its insured’s claim for storm-

related damages because the damages did not exceed the insured’s deductible. Barbara

Techs., 589 S.W.3d at 809. When Barbara Technologies sued, State Farm invoked the

appraisal provision and paid the amount of the Appraisal Award. Id. at 809–10.

Barbara Technologies nonetheless claimed that State Farm had failed to comply with

the TPPCA’s 60-day time limit for payment. Id. at 810. But the court determined that

because State Farm had not accepted liability under the policy and had not yet had its

liability adjudicated one way or another, Barbara Technologies was not entitled to

TPPCA damages as a matter of law. Id. at 827. However, it also concluded that State

Farm’s invoking appraisal and promptly paying the resulting award did not

automatically exempt it from TPPCA damages either. Id. For those reasons, the

court remanded the case for the trial court to first determine liability and then sort

through TPPCA timing requirements. Id. at 828.

Based on the analysis in Barbara Technologies, we concluded that Lambert was “in

the same procedural posture” and should be remanded for the same reasons. Lambert,

2019 WL 5792812, at *4. The same analysis applies here.

Like in Lambert, Tippett submitted a claim for damages under her

homeowner’s-insurance policy for hail damages following a storm. After Safeco’s

initial inspection, it determined that the damages were below the policy’s deductible

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and paid nothing. After Safeco received a notice of representation from Tippett’s

public adjuster, Safeco re-inspected Tippett’s property. Safeco’s second inspection

netted Tippett $2,299.28 after subtracting depreciation and the deductible.

Dissatisfied, Tippett sued Safeco for, among other things, violations of the TPPCA.

Safeco invoked the appraisal process, and the appraisal panel ultimately set the

amount of loss to Tippett’s property at $59,794.89 (RCV) and $56,612.82 (ACV).

This is procedurally the same as Lambert and Barbara Technologies. The fact that

Safeco’s post-appraisal payment was not for the full amount of the appraisal award

does not alter the analysis.13

Applying the same reasoning in Lambert, and in accordance with Barbara

Technologies, we conclude that Tippett failed to meet her summary-judgment burden to

prove that Safeco was liable for a claim under the policy and to prove that Safeco

violated a TPPCA provision as a matter of law. See Barbara Techs., 589 S.W.3d at 813,

826–27; Lambert, 2019 WL 579812, at *3–4. Thus, the trial court did not err by

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Tippett argues on appeal that Safeco accepted liability when it paid her policy
benefits. But Tippett did not argue in the trial court, as a ground for establishing her
entitlement to judgment on her TPPCA claim as a matter of law, that liability under
the policy was conclusively established because Safeco accepted the claim, like she
does on appeal. Rather, she argued that it can be inferred from Safeco’s invocation of the
appraisal process that it believed itself to be liable under the policy. We cannot reverse a
trial court’s denial of a summary-judgment motion on grounds not raised in the trial
court. See Tex. R. App. P. 33.1. And the Texas Supreme Court recently made it clear
in Barbara Technologies that merely invoking the contractual appraisal processes does
not determine liability on a claim. 589 S.W.3d at 827.

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denying Tippett’s motion for partial summary judgment. We overrule Tippett’s first

issue with respect to the ruling on her motion.

CONCLUSION

Having sustained Tippett’s first issue with respect to Safeco’s motion; having

overruled her first issue with respect to Tippett’s own motion; and having not reached

her second issue; we affirm the trial court’s denial of Tippett’s motion for partial

summary judgment and reverse the summary judgment for Safeco on Tippett’s claims

for breach of contract, breach of the duty of good faith and fair dealing, fraud, and

her claims for violations of Chapter 541 of the Insurance Code, the DTPA, and the

TPPCA; and we remand this case to the trial court for proceedings consistent with

this opinion.

/s/ Dabney Bassel

Dabney Bassel
Justice

Delivered: February 20, 2020

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