In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00173-CV
__________________
TEXAS WINDSTORM INSURANCE ASSOCIATION, Appellant
V.
KEVIN KELLY AND TIFFANY KELLY, Appellees
__________________________________________________________________
On Appeal from the 136th District Court
Jefferson County, Texas
Trial Cause No. D-203,415
__________________________________________________________________
OPINION
The Court’s opinion and judgment of September 21, 2023 are withdrawn and
the following opinion is substituted in its place. Texas Windstorm Insurance
Association’s (TWIA) Motion for Partial Rehearing is denied. 1 This is a permissive
interlocutory appeal from a “Summary Judgment Order With Permission to Appeal”
1In its motion for rehearing, TWIA requests that the Court revise or amend its
Opinion to render a take-nothing summary judgment in TWIA’s favor. However, we
cannot render judgment because all the parties are not before the Court in this appeal.
1
(the Order), granting Plaintiffs’/Appellees’ summary judgment and denying the
TWIA Defendant’s/Appellant’s summary judgment. The Order included the
following controlling questions of law: (1) whether section 2210.208 of the Texas
Insurance Code requires TWIA to provide wind-driven rain coverage in its basic
residential policy and prohibits the provision of wind-driven rain coverage through
an endorsement; (2) whether TWIA’s failure to provide such wind-driven rain
coverage in its basic residential policy constitutes a breach of the common-law duty
of good faith and fair dealing that is actionable against TWIA notwithstanding the
prohibition of common-law claims against TWIA in Chapter 2210 of the Texas
Insurance Code; and (3) whether TWIA’s failure to provide wind-driven rain
coverage in its basic residential policy constitutes an “unfair or deceptive act or
practice” in violation of the Texas Deceptive Trade Practices-Consumer Protection
Act (DTPA) that is actionable against TWIA notwithstanding the prohibition of
DTPA claims against TWIA in Chapter 2210 of the Texas Insurance Code. See Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(d); Tex. Ins. Code Ann. § 2210.028.
On appeal, TWIA argues that the trial court erred in granting Kevin Kelly’s
and Tiffany Kelly’s (the Kellys) motion for summary judgment, and the trial court
erred in denying TWIA’s motion for summary judgment. In three appellate issues,
TWIA argues: (1) the Kellys have no viable claims against TWIA under the Texas
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Windstorm Insurance Act (the Act) because TWIA complied with the Act “by
offering coverage for wind-driven rain damage through a commissioner-approved
endorsement[,]” which the Kellys didn’t purchase; (2) the Kellys’ common law and
DTPA claims, which resulted from TWIA’s denial of the claim the Kellys submitted
when their property was damaged by wind-driven rain, were barred by the Act; and
(3) there was a fact issue precluding the granting of the Kellys’ motion for summary
judgment.
We hold that even though section 2210.208 of the Texas Insurance Code
requires Windstorm and Hail Insurance policies issued by TWIA to include coverage
for wind-driven rain, that coverage may be made available through an endorsement
that requires the insured to pay an additional premium to the carrier to compensate
the carrier for insuring against the additional risk of covering the property against
the casualty of being damaged by wind-driven rain. Furthermore, we hold that since
the Insurance Code limits a claimant’s recovery to a remedy under their policy, the
Act necessarily prohibits insureds, like the Kellys, from suing TWIA on claims
alleging a breach of the duty of good faith and fair dealing and violating the DTPA
3
when the Legislature did not expressly authorize claimants to bring those types of
claims against TWIA under the Act. 2 See Tex. Ins. Code Ann. § 2210.576.
We reverse the trial court’s interlocutory Order granting summary judgment
in favor of the Kellys, we reverse the trial court’s interlocutory Order denying
TWIA’s summary judgment, and we instruct the trial court to grant summary
judgment for TWIA that the Kellys take nothing. We remand this case back to the
trial court for the entry of an order denying the Kellys’ motion for summary
judgment and the entry of an order granting TWIA’s motion for summary judgment,
which grants TWIA a take-nothing judgment against the Kellys on their claims. 3
2In supplemental briefing, Appellees urge us to reverse and remand this case
for assignment to a judge appointed by the judicial panel on multidistrict litigation.
To support their argument, Appellees rely on Pruski v. Tex. Windstorm Ins. Ass’n,
667 S.W.3d 460, 464–67 (Tex. App.–Corpus Christi 2023, pet. filed), which held
that a presiding judge who was not appointed to hear cases by the judicial panel of
multidistrict litigation (MDL) did not have the power to grant summary judgment,
and thus the judgment was void, even though the insured did not timely request
appointment of an MDL judge. Opinions from our sister courts “are not binding on
this Court.” Rhinoceros Ventures Grp., Inc. v. TransCanada Keystone Pipeline, L.P.,
388 S.W.3d 405, 409 (Tex. App.—Beaumont 2012, pet. denied). Therefore, we
decline to follow Pruski to the extent that Pruski could be interpreted to require
appointment of a judge by an MDL panel under the circumstances that resulted in
this appeal.
3At this time a summary judgment order granting TWIA a take-nothing
judgment on the Kellys’ claims would be interlocutory since the Kellys still have
claims pending that are not resolved against Defendant “McFerrin Insurance
Agency, Inc.,” which is not a party to this appeal.
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BACKGROUND
Tiffany Kelly and Kevin Kelly live in Port Arthur, Texas. In 2017, the Kellys
purchased a windstorm and hail insurance policy to cover their residential property
from TWIA through their insurance agent, McFerrin Insurance Agency, Inc. The
policy insures the property “against direct loss resulting from the perils of
Windstorm and Hail only[.]” The policy specifically excluded the following loss to
the covered property:
6. Rain. We do not cover loss or damage caused by or resulting from
rain, whether driven by wind or not, unless direct force of wind or hail
makes an opening in a roof or wall and rain enters through this opening
and causes the damage.
The Kellys’ home was damaged by Hurricane Harvey on or about August 29,
2017. On September 1, the Kellys filed a notice of claim with TWIA. The adjuster
hired by TWIA completed a loss report that same month, finding both covered and
non-covered damage. The adjuster made the following findings: (1) the Kellys’
property sustained covered damage to the garage door tracks, (2) damage to the roof
was not caused by wind or hail, and (3) water damage to the interior of the property
did not result from a wind or hail created opening in the roof or walls, as required
for coverage under the policy. TWIA issued a Notice of Claim Acceptance in Part
and Denial in Part, accepting coverage for damage to the tracks on the detached
garage but denying coverage from rainwater intrusion.
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After TWIA denied that the policy it issued to the Kellys covered damage
caused by the intrusion of the rain, the Kellys sued TWIA and McFerrin Insurance
Agency for breach of the common law duty of good faith and fair dealing (i.e., “bad
faith”), breach of contract, and violations of the DTPA. The Kellys complained that
TWIA denied coverage for their interior water damage caused by wind-driven rain.
The Kellys asserted that under Texas Insurance Code section 2210.208, every TWIA
windstorm policy must contain wind-driven rain coverage. According to the Kellys’
Original Petition, since they paid their insurance premiums, wind-driven rain
damage must have been included under the policy they purchased from TWIA.
TWIA filed a combined no-evidence and traditional motion for summary
judgment. In response, the Kellys filed a traditional cross-motion for summary
judgment. Both motions rely on the language in Texas Insurance Code section
2210.208. That section, which is titled “Windstorm and Hail Insurance: Coverage
for Certain Indirect Losses,” provides:
(a) Except as provided by Subsections (e) and (f), a windstorm and hail
insurance policy issued by the association for a dwelling, as that term
is defined by the department or a successor to the department, must
include coverage for:
(1) wind-driven rain damage, regardless of whether an opening is
made by the wind;
(2) loss of use; and
(3) consequential losses.
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(b) A windstorm and hail insurance policy issued by the association for
tenant contents of a dwelling or other residential building must include
coverage for loss of use and consequential losses.
(c) The coverage required under Subsection (a) or (b) must be made:
(1) according to forms approved by the commissioner; and
(2) for a premium paid by the insured based on rates established by
commissioner rule.
(d) The association shall provide coverage under this section as directed
by commissioner rule.
(e) The association is not required to offer coverage for indirect losses
as provided by Subsection (a) or (b) unless that coverage was excluded
from a companion policy in the voluntary market.
(f) The association is not required to provide coverage for:
(1) loss of use, if the loss is loss of rent or loss of rental value; or
(2) additional living expenses, if the insured property is a secondary
or a nonprimary residence.
The parties’ dispute centers on whether the “must include coverage for” clause
is satisfied by TWIA offering their insureds the opportunity to purchase a
Department of Insurance approved endorsement, which extends the basic coverage
in TWIA’s windstorm and hail policy to damages caused by wind-driven rain. In its
motion, TWIA argued the mandatory requirement in section 2210.208 was satisfied
because the Kellys had the opportunity to purchase a wind-driven rain endorsement
to their policy, which they declined. On the other hand, the Kellys argued the statute
requires wind-driven rain coverage to be included with every TWIA windstorm and
hail policy.
According to TWIA, it discharged its statutory obligations to the Kellys by
making wind-driven rain coverage available to them through the purchase of a 320
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Endorsement, an endorsement that had been approved by the Commissioner of
Insurance. More specifically, the 320 Endorsement contains a provision that states,
“In consideration of an included additional premium, the policy is extended to
provide the following coverages: … Wind-Driven Rain Coverage: We cover loss to
the dwelling and personal property caused by wind-driven rain whether or not an
opening is made in the dwelling by the direct force of wind or hail.” The Kellys had
the option to purchase the 320 Endorsement by paying an additional premium, but
they failed to do so. Since the Kellys weren’t covered for damages to their property
caused by wind-driven rain, TWIA argued, TWIA acted properly in denying their
claim. And because the statute limited claimants to whether TWIA’s denial of
coverage was proper and limited the damage to the losses payable under the policy,
prejudgment interest and attorney’s fees, the Kellys could not bring non-statutory
claims alleging TWIA acted in bad faith or claim that TWIA had violated the DTPA.
See Tex. Ins. Code Ann. §§ 2210.572, 2210.576.
After a hearing on the cross-motions for summary judgment, the trial court
signed a “Summary Judgment Order With Permission to Appeal.” The order granted
the Kellys’ motion for summary judgment and denied TWIA’s motion for summary
judgment. The trial court found that (1) the TWIA policy issued to the Kellys
improperly and ineffectively omits coverage for wind-driven rain in violation of
8
section 2210.208, and (2) the Kellys have stated actionable claims against TWIA for
breach of the duty of good faith and fair dealing and for violations of the DTPA
based on TWIA’s omission of coverage from such policy. After concluding that its
order involved a controlling question of law on which there was a substantial ground
for difference of opinion, the trial court granted TWIA permission to file an
interlocutory permissive appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d).
In the exercise of our discretion, we accepted the appeal. Id. § 51.014(f); see also
Tex. R. App. P. 28.3.
Again, in its Order, the trial court identified three controlling questions of law
on which there are substantial grounds for difference of opinion:
• (1) whether section 2210.208 of the Texas Insurance Code requires TWIA to
provide wind-driven rain coverage in its basic residential policy and prohibits
the provision of wind-driven rain coverage through an endorsement;
• (2) whether TWIA’s failure to provide such wind-driven rain coverage in its
basic residential policy constitutes a breach of the common-law duty of good
faith and fair dealing that is actionable against TWIA notwithstanding the
prohibition of common-law claims against TWIA in Chapter 2210 of the
Texas Insurance Code; and
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• (3) whether TWIA’s failure to provide wind-driven rain coverage in its basic
residential policy constitutes an “unfair or deceptive act or practice” in
violation of the DTPA that is actionable against TWIA notwithstanding the
prohibition of DTPA claims against TWIA in Chapter 2210 of the Texas
Insurance Code.
STANDARD OF REVIEW
“On cross-motions for summary judgment, each party bears the burden of
establishing that it is entitled to judgment as a matter of law.” Miles v. Tex. Cent.
R.R. & Infrastructure, Inc., 647 S.W.3d 613, 619 (Tex. 2022) (quoting City of
Garland v. Dall. Morning News, 22 S.W.3d 351, 356 (Tex. 2000)). When the trial
court grants one motion and denies the other, as is the case here, we “‘determine all
questions presented’” and “‘render the judgment that the trial court should have
rendered.’” Id. (quoting City of Garland, 22 S.W.3d at 356).
We construe statutory language de novo. Crosstex Energy Servs., L.P. v. Pro
Plus, Inc., 430 S.W.3d 384, 389 (Tex. 2014). Our goal is to determine and give effect
to the Legislature’s intent. Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex.
2012). We look to and rely on the plain meaning of a statute’s words as expressing
legislative intent unless a different meaning is supplied, is apparent from the context,
or the plain meaning of the words leads to absurd or nonsensical results. Crosstex
10
Energy Servs., L.P., 430 S.W.3d at 389-90. We read words and phrases in a statute
“in context and construed according to the rules of grammar and common
usage.” Tex. Gov’t Code Ann. § 311.011. We construe the language of a statute so
that each part has meaning and no part is left out. Columbia Med. Ctr. of Las Colinas,
Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008) (“The Court must not interpret the
statute in a manner that renders any part of the statute meaningless or
superfluous.”). We presume “the Legislature chooses a statute’s language with care,
including each word chosen for a purpose, while purposefully omitting words not
chosen.” TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.
2011). A court must take a statute as it finds it, and it must refrain from rewriting the
Legislature’s chosen text. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433,
443 (Tex. 2009); Pedernal Energy, LLC v. Bruington Eng’g, LTD., 536 S.W.3d 487,
491-92 (Tex. 2017).
ANALYSIS
In the trial court, the Kellys argued that the plain language of section
2210.208(a) obligated TWIA to issue windstorm and hail insurance policies that
included coverage for damage caused by wind-driven rain. Specifically, they relied
on the phrase “must include coverage” in the statute to support their argument that
the Legislature mandated TWIA’s policies include coverage for wind-driven rain.
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TWIA, on the other hand, argued that the Kellys’ interpretation of the statute
erroneously focused only on subsection (a). TWIA points to subsection (c) of the
statute, which it argued allowed TWIA to comply with the statute by offering to
cover wind-driven rain through an endorsement on a form approved by the Texas
Commissioner of Insurance, which is what the summary judgment evidence TWIA
attached to its motion shows it did.
In TWIA’s first issue, it argues that it complied with the Act by offering to
cover losses caused by wind-driven rain through an endorsement to the basic
windstorm and hail policy that it issued to the Kellys, an endorsement the Kellys did
not obtain. To determine whether TWIA could comply with the Act by offering
coverage through an endorsement rather than under the terms of its basic policy, we
start with the plain language of the Act. Although the Act does not define
“windstorm and hail insurance,” it does define “Texas windstorm and hail
insurance” as
deductible insurance against: (A) direct loss to insurable property
incurred as a result of windstorm or hail, as those terms are defined and
limited in policies and forms approved by the department; and (B)
indirect losses resulting from the direct loss.
Id. § 2210.003(13). “When used in a statute, the term “must” creates or recognizes
a condition precedent.” Helena Chem. Co., 47 S.W.3d at 493; Tex. Gov’t Code Ann.
§ 311.016(3). “While Texas courts have not interpreted ‘must’ as often as ‘shall,’
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both terms are generally recognized as mandatory, creating a duty or obligation.” Id.
(citing Tex. Gov’t Code Ann. § 311.016(2), (3)) (other citations omitted). “The word
‘must’ is given a mandatory meaning when followed by a noncompliance penalty.”
Id. (citation omitted). “However, we have held language that appears to impose a
mandatory duty to be only directory when this interpretation is most consistent with
the Legislature’s intent.” Id. (citations omitted).
“To determine whether the Legislature intended a provision to be mandatory
or directory, we consider the plain meaning of the words used, as well as the entire
act, its nature and object, and the consequences that would follow from each
construction.” Id. at 494. “When a statute is silent about the consequences of
noncompliance, we look to the statute’s purpose to determine the proper
consequences.” Id.
The Kellys interpret section 2210.208(a)’s “must include clause” in a vacuum
without considering how the other subsections within the same section of the statute
affect the statute’s intended meaning. See Tex. Ins. Code Ann. § 2210.208. For
example, when read in context, the Kellys’ interpretation of the “must include
clause” would render other provisions in the statute meaningless. See id. For
example, subsection (e) of the statute provides that TWIA “is not required to offer
coverage for indirect losses as provided by Subsection (a) or (b) unless that coverage
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was excluded from a companion policy in the voluntary market.” Id. § 2210.208(e).
Thus, the statute clearly provides circumstances under which indirect losses caused
by wind-driven rain would not be covered under TWIA’s former windstorm and hail
policies.
Likewise, subsection (c) states that the coverage “required by Subsection (a)
or (b) must be made: (1) according to forms approved by the commissioner; and (2)
for a premium paid by the insured based on rates established by commissioner rule.”
Tex. Ins. Code Ann. § 2210.208(c). When reading subsections (a) and (c) of the
statute together, they mean that an insured must pay a premium based on rates
established by commissioner rule to obtain an endorsement to a policy that covers
damage to the insured’s property caused by wind-driven rain. See id. § 2210.208(a),
(c). Importantly, the Legislature didn’t specify that the coverage for wind-driven rain
couldn’t be offered to an insured through an endorsement applicable to the policy’s
basic terms. Finally, we note the Act imposes no non-compliance penalty on TWIA
but instead allows it to comply with the statute by offering its insureds the
opportunity to obtain an endorsement that covers damage caused by wind-driven
rain by paying an additional premium approved by the commissioner when
purchasing a windstorm and hail policy. This suggests the Legislature’s intent was
to create a market that required TWIA to offer insureds the opportunity to purchase
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coverage for wind-driven rain, not that each policy’s basic form language was
required to include that coverage (which would have required all insureds to pay a
premium commensurate with the risk) had such coverage been intended as
mandatory. Id. § 2210.208(c); see Helena Chem. Co., 47 S.W.3d at 494.
Our reading of the statute supports the policy that led to the enactment of the
windstorm statute. The Texas Legislature passed the Act to provide “an adequate
market for windstorm and hail insurance in the seacoast territory of this state.” Tex.
Ins. Code Ann. § 2210.001. When the Legislature created TWIA, it intended that
TWIA “serve as a residual insurer of last resort for windstorm and hail insurance in
the seacoast territory.” Id. In carrying out its mission, the Legislature provided that
TWIA “function in such a manner as to not be a direct competitor in the private
market[,] and provide windstorm and hail insurance coverage to those who are
unable to obtain that coverage in the private market.” Id.
“Under well-established rules of statutory interpretation, we may not interpret
one portion of a statute so as to render another portion of the statute meaningless.”
Harris Cty. Appraisal Dist. v. Tex. Gas Transmission Corp., 105 S.W.3d 88, 98
(Tex. App.—Houston [1st Dist.] 2003, pet. denied). Interpreting Section 2210.208
as the Kellys propose – that every single policy sold by TWIA include wind-driven
rain coverage, regardless of whether an opening is made by the wind – would ignore
15
both subsection (c) and subsection (e) of the statute, which gives the commissioner
the ability to offer such coverage to insureds in certain circumstances and to
determine how to issue such coverage. See Tex. Ins. Code Ann. § 2210.208(c), (e).
Accordingly, we hold that TWIA complied with the requirements of section
2210.208 by offering the Kellys the opportunity to obtain coverage for damage
caused by wind-driven rain through the purchase of an endorsement that, if
purchased, would have provided coverage for losses caused by wind-driven rain. We
sustain TWIA’s first issue.
In its second issue, TWIA argues that the Kellys do not have valid claims
against it for allegedly breaching its duty of good faith or for violating the DTPA
because their claims are limited by section 2210.576 of the Act to certain claims, a
claim over whether TWIA’s denial “was proper[,]” a claim to recover the amount of
damages recoverable under the policy for the loss less the amount, if any, already
paid, and a claim for prejudgment interest and attorney’s fees. Tex. Ins. Code Ann.
§ 2210.576. In response, the Kellys argue that Chapter 2210 of the TWIA Act sets
out the general remedy and the damages they may recover but does not limit them
to the statutory claims listed in the Act.
We review statutory interpretation de novo and use the same principles of
statutory interpretation we used in deciding issue one. City of Rockwall v. Hughes,
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246 S.W.3d 621, 625 (Tex. 2008). In 2011, the Texas Legislature passed House Bill
No. 3 (“H.B. 3”), which made significant changes to Chapter 2210, including the
addition of restrictions on policyholders’ remedies and specific procedural
requirements. See Act of June 28, 2011, 82nd Leg., 1st C.S., ch. 2, § 41, 2011 Tex.
Gen. Laws 5180, 5192–98 (current version at Tex. Ins. Code Ann. § 2210.572(a));
Tex. Windstorm Ins. Ass’n v. Jones, 512 S.W.3d 545, 549 (Tex. App.—Houston [1st
Dist.] 2016, no pet.). Section 2210.572(a) now provides the exclusive remedies for
a claim against TWIA under the Act. See Tex. Ins. Code Ann. § 2210.572(a). Section
2210.14(a) provides that “[a] person may not bring a private action against [TWIA],
including a claim against an agent or representative of [TWIA], under Chapter 541
[(unfair settlement practices)] or Chapter 542 [(prompt payment of claims)].” See id.
§ 2210.014(a). Section 2210.572(c) provides that “[TWIA], and an agent or
representative of [TWIA], may not be held liable for damage under Chapter 17 of
the Business & Commerce Code (the DTPA), or, except as otherwise provided
specifically by this chapter, under any provision of any law providing for additional
damages, punitive damages, or a penalty. See id. § 2210.572(c). Subject to Section
2210.576, TWIA “may not be held liable for any amount other than covered losses
payable under the terms of the association policy.” Id. § 2210.572(b).
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When the Legislature creates a statutory cause of action and remedy for its
enforcement dealing with an administrative agency, such as TWIA, rather than by
common law, the statutory provisions are mandatory and exclusive. See Tex.
Catastrophe Prop. Ins. Ass’n v. Council of Co-Owners of Saida II Towers Condo
Ass’n, 706 S.W.2d 644, 645-46 (Tex. 1986), abrogated on other grounds by Dubai
Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000); Housing & Cmty. Servs., Inc.
v. Tex. Windstorm Ins. Ass’n, 515 S.W.3d 906, 909 (Tex. App.—Corpus Christi,
2017, no pet.). Since section 2210.576 of the Act limits claimants to a claim over
whether TWIA’s denial was proper and limits claimants to claims that seek damages
to covered losses under the policy (less the amount already paid), prejudgment
interest, court costs, and reasonable and necessary attorney’s fees, we agree with
TWIA that the Kellys did not have causes of action for TWIA’s alleged breach of
its duty of good faith or for TWIA’s alleged violations of the DTPA. We therefore
sustain TWIA’s second issue.
In its third issue, TWIA argues that there was a fact issue precluding the
granting of the Kellys’ summary judgment, because Section 2210.208(a) does not
apply “unless the coverage was excluded from a companion policy in the voluntary
market.” See id. § 2210.208(e). However, having sustained issues one and two, the
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third issue raised would not result in greater relief, so it is not necessary that we
address it. Tex. R. App. P. 47.1.
CONCLUSION
Having decided the controlling questions of law in TWIA’s favor, we reverse
the trial court’s interlocutory Order granting summary judgment in favor of the
Kellys, we reverse the trial court’s interlocutory Order denying TWIA’s summary
judgment, and we instruct the trial court to grant summary judgment for TWIA that
the Kellys take nothing. We remand this case back to the trial court for the entry of
an order denying the Kellys’ motion for summary judgment and the entry of an order
granting TWIA’s motion for summary judgment, which grants TWIA a take-nothing
judgment against the Kellys on their claims.
REVERSED AND REMANDED.
W. SCOTT GOLEMON
Chief Justice
Submitted on November 4, 2022
Opinion Delivered October 19, 2023
Before Golemon, C.J., Horton and Wright, JJ.
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