Fort Worth insurance attorneys will advise their clients to carefully read the exclusions in their homeowners policy. A 2006, Houston Court of Appeals [14th Dist.] case illustrates why. The opinion is styled, Fire Insurance Exchange v. Sullivan.
The insured brought suit against Fire Insurance Exchange for breach of contract, bad faith, violations of the DTPA and the Texas Insurance Code. A pipe in the attic had burst at the home of the insured, to which the carrier’s claims adjuster assessed the repairs at $2,944.75. The insured obtained a second estimate which was an additional $5,000. The insured hired an attorney who sent a written claim to the carrier, and after claiming they did not receive a satisfactory response from the carrier, the insured hired a contractor. The contractor found several additional leaks, which the insured reported to the carrier. The carrier assigned a second claims adjuster who concluded nearly the entire house had mold growth. Subsequently, the carrier issued two checks to the insured, totaling $82,430.57. The insured was unsatisfied with this amount and brought suit alleging the delay and mishandling of the claims by the carrier resulted in the deterioration of the home. In the trial court, the jury found that the carrier had breached the dwelling coverage portion of the policy, but not the personal property and additional living expenses coverage provisions. However, the jury awarded costs for mold remediation and repair of the home, as well as property damage. Ultimately, the trial court concluded that the insured was entitled to: (1) recover damages on the breach of contract and DTPA claims; (2) recover penalty under the Prompt Payment of Claims Act; and recover reasonable attorney fees. The trial court awarded $85,864.78 in total damages. The carrier appealed.
This Court reversed the trial court judgment in favor of the insured and rendered judgment that the insured take nothing on the claims against the carrier. The court improperly disregarded the jury’s finding that accidental leakage or discharge caused only 45% of cost of mold remediation; the trial court should have disregarded the jury finding on cost to clean or replace personal property since the policy provided no coverage for that loss; the cost to remediate damage to personal property could not be awarded to insureds under the DTPA or the Prompt Payment of Claims Act; any liability for interest stopped when the insurer tendered more than the amount it owed prior to trial; the insureds could not recover attorney fees on claims for breach of contract or DTPA; and the parties stipulation limited liability for attorney fees to 40% of interest. The potential total liability of carrier to the insured was $64,534.50, which was less than the amount the carrier had previously tendered to the insured. The court also noted that the jury did not find that the carrier breached the personal property portion of the policy and failed to attribute any cause of the damage to the covered causes. Therefore, the jury’s award for damages for that breach under the Prompt Payment Act should have been disregarded. Finally, the court found that the carrier’s unconditional payments should have been applied before assessing attorney’s fees and interest.
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