National Security Fire & Casualty Company v. Rene Lampson and Justina Henriquez ( 2016 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-15-00299-CV
________________
NATIONAL SECURITY FIRE & CASUALTY COMPANY, Appellant
V.
RENE LAMPSON AND JUSTINA HENRIQUEZ,
Appellees
__________________________________________________________________
On Appeal from the 136th District Court
Jefferson County, Texas
Trial Cause No. D-187,954
__________________________________________________________________
MEMORANDUM OPINION
We issued a memorandum opinion affirming the trial court’s judgment in
this cause on October 20, 2016. Appellant National Security Fire and Casualty
Company (“National”) timely filed a motion for rehearing, which we denied on
November 9, 2016. However, we now withdraw our previous memorandum
opinion and judgment issued on October 20, 2016, and substitute the following
memorandum opinion and judgment in their place. See Tex. R. App. P. 19.1(b)
1
(stating that our plenary power over a judgment expires thirty days after all timely
filed motions for rehearing are overruled).
National appeals the trial court’s judgment in favor of Rene Lampson and
Justina Henriquez following a jury trial. In seven appellate issues, National
challenges Lampson’s standing to sue; Lampson’s alleged lack of full ownership of
the subject property; the trial court’s admission of expert testimony over National’s
objection; the trial court’s refusal to include a jury instruction on spoliation; the
legal and factual sufficiency of the damages verdict; the trial court’s alleged failure
to require appellees to elect a remedy; and the award of attorney’s fees to
appellees. We affirm the trial court’s judgment.
PROCEDURAL BACKGROUND
Appellees Rene Lampson and his wife, Justina Henriquez, sued National,
alleging that when Hurricane Ike occurred, 1 their home in Jefferson County, Texas,
was damaged. 2 Appellees contended that during the hurricane, their “roof was
damaged resulting in interior water damage throughout the residence.” In addition,
appellees asserted that the house sustained damage to the sheetrock, exterior
bricks, and windows, “as well as walls, cabinets[,] and insulation throughout the
1
Hurricane Ike struck Texas on September 13, 2008.
2
Appellees also sued claims examiner Renee Snellgrove, but Snellgrove is
not a party to this appeal.
2
entire house.” According to appellees, the home also shifted during the storm,
causing the foundation to be unlevel and the ceilings and walls to crack. Appellees
further claimed that their personal property inside the home was damaged and they
lost food.
Appellees asserted that they filed a claim for the damages with their
insurance company, National, immediately after the storm. According to appellees,
National wrongfully denied their claim for repairs, even though their policy
provided coverage for losses such as theirs, and National underpaid some of their
claims “by not providing full coverage for the damages sustained by Plaintiffs, as
well as under-scoping the damages during its investigation.” Appellees asserted
claims for fraud, conspiracy to commit fraud, breach of contract, unfair settlement
practices, failure to promptly pay as required by the Texas Insurance Code, and
breach of the common law duty of good faith and fair dealing. Appellees also
sought to recover attorney’s fees.
The jury found that National failed to comply with the terms of the insurance
policy; awarded appellees $50,000 for failure to comply with the coverage for
physical damage to the structure, $950 for failure to comply with the personal
property provisions of the policy, $750 for failure to comply with the coverage for
reasonable repairs, and $5000 for failure to comply with the loss of use provisions,
3
for a total past damages award of $56,700. The jury also found that National
knowingly engaged in an unfair or deceptive act or practice that caused damages to
Lampson and Justina by failing in good faith to effectuate a prompt, fair, and
equitable settlement when liability had become reasonably clear, failed to provide
appellees a reasonable explanation of the factual and legal basis in the policy for its
denial of their claim, and refused to pay their claim without conducting a
reasonable investigation. The jury awarded damages for the unfair practices in the
same amounts it had found pursuant to the question on failure to comply with the
terms of the policy and also awarded $100,000 damages because the unfair or
deceptive practice was committed knowingly.
In addition, the jury found that National failed to comply with its duty of
good faith and fair dealing by failing to effectuate a prompt, fair, and equitable
settlement when liability became clear and by refusing to pay the claim without
conducting a reasonable investigation. The jury awarded $10,000 for appellees’
loss of use and enjoyment of their property caused by National’s failure to comply
with its duty of good faith and fair dealing and found that National committed
fraud against appellees. The jury also awarded Lampson and Justina attorney’s fees
of $152,000 for representation in the trial court, $50,000 for representation in the
Court of Appeals, $10,000 for representation at the petition for review stage in the
4
Supreme Court, $15,000 for merits briefing at the Supreme Court, and $10,000 for
oral argument and completion of proceedings in the Supreme Court.
The trial court signed a final judgment in which it found that Lampson and
Justina were entitled to recover $56,700 for past damages, $10,000 for National’s
failure to comply with its duty of good faith and fair dealing, and $100,000
because National knowingly committed deceptive acts or practices. The trial
court’s final judgment awarded the Lampson’s attorney’s fees of $152,000 for trial
representation. In addition, the trial court’s judgment awarded $50,000 for
representation in the Court of Appeals, $10,000 for the petition for review stage in
the Supreme Court, $15,000 for merits briefing in the Supreme Court, and $10,000
for oral argument and completion of proceedings in the Supreme Court, with each
award being conditioned upon Lampson and Justina’s success during the appellate
process. National then filed this appeal from the trial court’s judgment.
THE EVIDENCE
Lampson testified 3 that he married Justina 4 on March 20, 1966, and they
have five children. Lampson explained that he purchased the home for $46,000 in
3
Lampson testified via an interpreter.
4
Justina testified that she became a permanent resident of the United States
eight years ago. Prior to that time, she traveled back and forth between Nicaragua
and the United States. Justina was in Nicaragua when Hurricane Ike struck.
5
1998 by obtaining a ten-year mortgage, and Lampson explained that he had paid
off the mortgage by approximately 2008. Lampson testified that his daughter’s
name was on the deed during 2007 and 2008. Lampson explained that he put his
daughter’s name on the deed when he purchased the home because his wife was in
Nicaragua at that time, and “anything could happen[,]” and he put his wife’s name
on the deed when she returned to the country.
In 2007, Lampson purchased an insurance policy from National that
provided coverage of $50,000, and he paid the premiums on the policy. Lampson
testified that National inspected the home in 2007, before Hurricane Ike occurred.
According to Lampson, Hurricane Ike caused some new cracks in the home’s
brick, broke six windows, caused the floor to become unlevel and to crack, and
caused the roof to leak. In addition, the garage door sustained wind damage, and
water entered the home. Lampson testified that he had to replace a sofa and a
refrigerator. In addition, Lampson and his family evacuated to Lufkin, where they
stayed in a hotel for approximately one week. According to Lampson, after his
home was inspected, National sent him a letter denying his claim. After National
denied Lampson’s claim, Lampson contacted Southeast Texas Regional Planning
Commission (“SETRPC”), and SETRPC paid to tear down Lampson’s home and
build a new house. Lampson testified that any photographs he had of his home
6
before Hurricane Ike struck were no longer in his possession, and he did not recall
whether he removed the pictures from the house before SETRPC demolished it.
Shanna Burke, the director of SETRPC’s Disaster Recovery Division
Program, testified that Lampson applied for assistance in March of 2010. As part
of the application, Lampson signed a subrogation agreement. SETRPC sent an
inspector to the home in October of 2010, and the inspector concluded that “[d]ue
to high winds, there was extensive foundation, structural, electrical, plumbing,
mold, and roof damage.” SETRPC determined that the cost of repairing Lampson’s
home would exceed SETRPC’s $85,000 cap, so SETRPC decided to demolish the
home and build a new one.
Almus Shively, claims manager for National during the aftermath of
Hurricane Ike, testified that National provided insurance to Lampson in the amount
of $50,000 for the dwelling, $5000 for other structures, $20,000 for personal
property on the premises, and $1000 for personal property off the premises. As part
of the underwriting process, National inspected and photographed Lampson’s
property. According to Shively, a June 2007 “photo report” in National’s file
indicated that there was a four-foot crack “on exterior wall on right[,]” windows at
the rear of the house were boarded, and there was “possible mildew” on the siding
on the front and left side of the house. National decided to provide coverage to
7
Lampson. Shively testified that after the hurricane, there were additional cracks
and broken windows that were not present in the photos from the underwriting file.
National memorialized Lampson’s claim in a written Property Loss Notice,
dated September 29, 2008. After Hurricane Ike occurred, National utilized an
outside adjusting firm, IAS Claims Service, Inc., to handle claims, including
Lampson’s. Jack Fielder, an independent adjuster from IAS, inspected Lampson’s
home on October 14, 2008, and provided a written report to National. In the report,
Fielder stated that three windows were broken; the garage door was damaged; the
roof was in good condition, and there was no evidence that it leaked; and there
were “some large cracks in the brick veneer that appear new, but [Fielder] could
not be sure if they [were] related to the wind storm.” Fielder’s report also
recommended that the file be closed without any payment being made because the
loss, which Fielder estimated as $572.66, did not exceed Lampson’s $1000
deductible. According to Shively, Fielder’s report also stated that any roof leaks
were due to flashing that was not installed, but Shively testified that there was
nothing in the underwriting file regarding a lack of flashing on the roof. Shively
testified that Fielder’s report was transmitted to National’s claims examiner.
According to Fielder, he noted in his report the insured claimed the house
was unlevel. Fielder observed cracks that appeared to be new, and noted in his
8
report, “if you wish to pursue this matter further, . . . I leave it to your discretion.”
Fielder explained that he is “not qualified” to determine whether the cracks in the
brick were due to hurricane-force winds. When asked whether he went inside the
home to see if there was water damage, he responded, “I don’t remember, but I
went in the house.” Fielder testified that he only photographed the bathroom area.
Fielder did not recall going into any area inside the home except the bathroom.
Fielder explained that he got onto the roof of the home, “went underneath” the
tarp, and took approximately six photographs. Fielder testified that he did not
photograph the area where water came in and was observed inside the house, and
he testified “I don’t know” when asked whether water came inside the house from
the area underneath the tarp. Fielder testified that he merely noted in his report that
there was a lack of flashing, and he did not attribute the damage to the lack of
flashing. Fielder explained that he did not document whether there was interior
water damage as a result of the broken windows.
After receiving Fielder’s report, National denied Lampson’s claim in a letter,
dated October 24, 2008. The letter stated, “We have learned from our adjuster’s
report that the cost to repair the damage to your dwelling will be less than the
deductible in your policy. Under the circumstances, no payment can be made for
this claim. . . . We will be glad to consider anything you would like to submit[.]”
9
Shively testified that he approved the issuance of the denial letter, which was
signed by claims examiner Renee Snellgrove.
Phil Spotts testified as an expert witness regarding claims adjusting and
handling. Spotts testified that he is a part owner of an insurance claims consulting
company, which he founded in 1991. Spotts explained that he has worked in the
adjusting field for thirty-five years. Spotts testified that for twenty-five years, he
has held an all-lines Texas adjuster’s license, which allows him to handle any type
of claim. Spotts also “studied and received designations from the Insurance
Institute of America, including associate in claims, associate in risk management
and chartered underwriter, which is considered to be the highest designation in the
insurance industry.” According to Spotts, CPCU (chartered property casualty
underwriter) is the highest level of specialized education in the field of insurance
adjusting, and Spotts had to take ten rigorous exams over a period of several years
to achieve that designation. Spotts testified that he received the CPCU designation
in 1993.
Spotts explained that he has been involved in adjusting insurance claims
from eighteen hurricanes, has trained over one hundred adjusters, and has an
extensive background in claims handling. Spotts estimated that he has been
involved in the handling or supervision of over 100,000 claims. Spotts testified:
10
A claims adjuster is really the only advocate that the homeowner has.
I mean, if you think about it he has a little bit of conflict of interest
because he is getting paid by the insurance company, but it’s his job to
make sure that he analyzes all of the damage that could have occurred
in a hurricane, right? If not him then who, right? So it’s critically
important for the claims adjuster to know the coverage, be a great
communicator, know how to estimate the costs of any repairs . . .
based on whatever the going rate in that town is at that time and then
communicate that with the insured. Those are critical elements in any
claim adjustment. . . . He is the only one really who can help the
insured in a time of distress after a hurricane and it’s critically
important that he take enough time to properly do his job and analyze
all the damage at that property.
According to Spotts, an adjuster should question an insured about such
issues as whether he had to evacuate, where he went, how long he was gone, how
the house looked when the insured returned, whether the power was off and for
how long, and whether the insured lost food. Spotts explained that the claim file “is
meant to document all of the activities on a claim and so it should read like a
book.” Spotts testified, “I should be able to pick up this claim file two years later
and understand exactly what happened on this claim. And if I can’t do that, then
this claim file is not very well documented[.]” Spotts testified, “in reading this
claim file it didn’t answer very many of my questions, but it sure asked a whole lot
more questions that we’re trying to find the answers to here[.]”
Spotts explained that he was asked to review and provide an opinion on the
claims handling in Lampson’s case. According to Spotts, the claims file does not
11
reflect that a full copy of Lampson’s insurance policy was ever provided to Fielder,
and Spotts testified that the policy may contain coverage information that is not
reflected on the declarations page. Spotts testified that Lampson’s policy has
additional endorsements and other additions that Fielder could not know about
without reading the policy. According to Spotts, Fielder’s level of communication
with Lampson could not have been very effective due to the language barrier, and
Spotts testified, “my review of the claim file . . . did not indicate a very high level
of communication or understanding between the adjuster and the homeowner.”
Spotts explained that when an independent adjuster encounters someone who does
not speak English well, the adjuster should inform the insurance company that he
is unable to communicate with the insured and ask for either a hired interpreter or a
family member of the insured to assist him.
Spotts noted that Fielder’s report stated that the loss was due to hail rather
than a hurricane, and he opined that such an error “just goes to attention to detail,
being in a hurry.” Spotts explained that Lampson had reported four areas of
concern to National: roof damage, leaking inside the home, damaged windows, and
the fact that the home was unlevel. According to Spotts, the adjuster “should be
inspecting those and determining whether those things were legitimately damaged
by the hurricane. That’s his job.” Spotts opined that Fielder did not adequately
12
investigate any of those four areas. Spotts saw no evidence that Fielder did a
thorough inspection underneath the tarp on Lampson’s roof. According to Spotts,
Fielder should have taken “an extra special look at that area of the roof to see if
any of those shingles have been detached by wind in a hurricane, maybe laid back
down, or if there is another problem up there that could have created this leaking
inside the house.”
When asked what Fielder concluded with respect to the leak, Spotts testified,
“I didn’t see that he actually investigated the leak inside the house because there
weren’t any photos.” Spotts explained that the only photographs from inside the
home were two photographs of the bathroom, and he testified that there are no
scope notes, activity records, or photographs to indicate that Fielder inspected the
leak on the ceiling. According to Spotts, an adjuster’s job is to find the spot on the
ceiling where water is coming in and then figure out where it is coming from, and
nothing in the file indicates that Fielder did so. Spotts testified that Fielder should
have tested some shingles in a representative area by seeing if he could lift them
up. Spotts explained that although a roof may appear undamaged, it may be
unsealed.
With respect to the broken windows, Spotts testified that Fielder allowed
Lampson $55.44 for each broken window, and he explained:
13
I don’t have a problem with the price of the glass. The issue I have,
based on my experience, . . . these are 50-year old windows that aren’t
in the world’s greatest condition to begin with, so to think that you
can replace the glass in these wood windows without replacing the
window sash is, in my opinion, unreasonable. It just can’t be done.
You[’ve] got to take that wood off to put the glass in and put new
wood back and then you have to paint it to match what it looked like
before. He didn’t pay for any of that, plus Mr. Lampson boarded up
the windows, which he is required to do under the terms of the policy
to protect the house from further rain and [Fielder] didn’t pay for that
either. And how much damage did that cause that had to be repaired
that was never paid for or considered? So maybe he got the glass part
right, but he missed on all the other stuff that . . . should have gone
with that.
According to Spotts, Fielder did not investigate or photograph the inside of the
windows that broke in the hurricane to determine whether there was water damage.
With respect to the house being unlevel and having cracks, Spotts testified that “an
adjuster is not qualified, in my opinion, to make coverage determinations on
foundation issues that are this complicated.” In addition, Spotts explained that the
claim file does not indicate that Fielder’s estimate was ever provided to Lampson.
Spotts opined that Fielder “was in a hurry” and “didn’t take enough time to do his
job.” Spotts testified:
[T]ypically what I found through studying fee schedules is that the
most efficient fee schedule for an adjuster to make the most money is
that first layer. Going out, looking at a loss quickly, closing the claim
quickly[,] and getting paid for it quickly provides the greatest
incentive for the adjuster [to] get paid quickly. Unfortunately, it
doesn’t provide the greatest incentive of service to the insured because
14
when you are working and you are in a hurry, you are going to make
mistakes[.]
Spotts explained that there is an economic incentive for field adjusters to hurry to
complete a claim, and that fact “doesn’t lead to great service.” When asked
whether Lampson failed to do anything that National required of him, Spotts
testified, “According to my review of the claim file and all the other documents I
have been provided, I saw no evidence that Mr. Lampson did anything in violation
of the insurance policy[;] in fact, he went further by providing those temporary
repairs . . . to prevent further damage[.]”
Engineer Terry Shipman of the Fittz and Shipman engineering firm in
Beaumont testified that he has a Master of Science degree in civil engineering, and
he explained that his firm provides “general civil engineering, land survey, and
structural engineering services.” 5 According to Shipman, structural engineering is
a subset of civil engineering. Shipman explained that the structural division of his
firm does “the foundation design and the structural frame for buildings that
[architects] are designing, anywhere from residential to multi-story buildings.”
Shipman testified that any opinions about which he would testify would be based
5
Before Shipman’s testimony, National’s counsel stated, “it’s our belief that
the trial court cannot re-visit our Daubert/Robinson challenge of Mr. Terry
Shipman pursuant to the multi-district litigation rules and we want the record to
reflect that we re[-]urge it but it’s our belief that the trial court . . . cannot re-visit
it.”
15
on his education and training as a structural engineer and would be based on
reasonable engineering probabilities.
Lampson’s attorneys retained Shipman to inspect the home after Hurricane
Ike, and Shipman provided a report. Shipman testified that “rather than sending an
engineer or myself . . . to inspect the property, we had our field inspector, Don
Burrell, go out and inspect the property, [and] generate the report for my review
and signature.” Burrell inspected the property on December 14, 2010. Shipman
explained that it is less expensive to send Burrell than if Shipman personally did
the inspection, but if Shipman felt it was necessary to investigate further, his
agreement with Lampson’s counsel permitted him to do so. Shipman estimated that
he has handled more than one hundred files by sending an inspector. Shipman
testified that he believed he discussed Burrell’s report with Burrell before signing
it, but he could not “say for certain.”
Shipman explained that Burrell inspected the home, took photographs, and
reported back to Shipman. According to Shipman, Burrell has an associate degree
in construction science technology, and Burrell previously worked for the City of
Beaumont’s code enforcement department for twenty-two years, and for “either 6
or 8 of those years he was the building official with the City of Beaumont.”
Shipman explained that before Burrell became the building official, “he did go out
16
and inspect properties for code compliance. After he became the building official,
in addition to doing some of that, he would inspect properties that were damaged
and would recommend to the city council that they be condemned and
demolished.”
According to Shipman, Burrell noted that there were broken window panes
and cracks in the brick façade of Lampson’s home. Shipman explained,
[T]here’s a brick wainscot around a portion of the house and the brick
wainscot shifted during the hurricane event and there were new cracks
in the brick wainscot that were not there prior to the hurricane event.
And that is just an indication that the foundation shifted during the
event.
Shipman testified that Burrell also noted that a door was no longer functioning, and
according to Shipman, “[t]hat means the foundation has shifted. The frame has
become out of align relative to the door. Therefore, the door is either stuck shut or
it’s very difficult to open and close.” Shipman testified that Burrell’s observation
that the kitchen floor noticeably sloped toward the middle of the structure also
indicates that the foundation has shifted and the floor has become unlevel.
Shipman explained that when the foundation has shifted and the floor has become
unlevel, interior sheetrock cracks occur and doors may not work properly.
When asked to explain how a pier and beam home such as Lampson’s could
be shifted by a hurricane, Shipman testified:
17
[T]he storm didn’t last just a few minutes. It was the long-term storm.
. . . There was also a significant amount of rainfall which softened the
soils; and during the worst part of the storm, about every 3 seconds or
5 seconds, a gust of wind would hit the house. The house would
shudder. It would shake. Due to the softened soils, pressures would be
put on the piers that were supporting the foundation and they would
sink a little bit. And every few seconds another gust would hit it and
little bit more would go down. The house would shudder, shake,
possibly become distorted a little bit as the wind pressure hit it,
depending on the angle and the magnitude of the wind.
Shipman explained that the storm caused the cracks in the wainscot around the
house, and that he had reviewed data from the National Weather Service in
formulating his opinion. In addition, Shipman testified that he used a site-specific
wind analysis made by CompuWeather for another house he analyzed, which was
located approximately one mile from Lampson’s house. According to Shipman,
CompuWeather is an online weather service that has a forensic division which,
when provided with an address, will perform a forensic analysis of the weather
events at that address. Shipman explained that said data was relevant to Lampson’s
home, and he testified:
[T]he data from CompuWeather indicated that the house experienced
a maximum gust of 97 miles per hour. The wind[s] exceeded Category
1 hurricane force winds for 4 hours. The winds exceeded tropical
storm force winds for 22 hours, and it also indicated 6.5 inches of rain
in a 23-hour period.
Shipman also explained that, “[b]ased on the 97 [m]ile per hour maximum
gust that CompuWeather reported, the wind pressures on the Lampson property
18
varied from 32 to 75 pounds per square foot.” According to Shipman, the pressures
at the corners, ridge lines, and eaves are higher, and the pressure on the interior
portion of the walls is lower. In addition, Shipman explained that pressures from
thirty-two to seventy-five pounds per square foot are of sufficient magnitude to
structurally move Lampson’s pier and beam home. Shipman explained that, after
providing his report, he saw pre-Hurricane Ike photographs of Lampson’s home
from National’s underwriting file, and he explained that the additional photographs
confirmed his opinion. Shipman also testified that the findings of the inspector
from SETRPC matched Shipman’s own observations and conclusions regarding
the home.
Additionally, Shipman testified that one of Burrell’s photographs from the
December 2010 inspection showed what appeared to be a new crack, and Shipman
explained that he believed the crack was new because there was “not debris build
up in the crack. The brick had been painted. There was no paint in the crack. The
edges of the mortar where the mortar had cracked was sharp. The crack looked
fresh.” Shipman also noted in his report that at least seven panes had blown out of
windows in the home, which indicates significant wind pressure as well as flying
debris. Shipman also testified that the broken panes indicate that “the outside
19
envelope of the house was broken. Therefore, wind was able to enter the house.
Pressures tend to go up when that happens.”
Attorney Randy Cashiola testified regarding Lampson’s attorney’s fees.
Cashiola explained that Lampson’s attorneys could only recover their fees if
Lampson prevails in the lawsuit. Cashiola testified that the rates charged are
reasonable, reflective of the risk involved in taking the case, and are commensurate
with the lawyers’ skills. According to Cashiola, the rates are reasonable for the
area of first-party insurance law, as well as for the Jefferson County area.
Cashiola explained that after the case was filed in Jefferson County, it was
moved to Harris County for a time during the pretrial phase as part of the
multidistrict litigation (MDL) pretrial procedure,6 which necessitated more travel
time for the attorneys. In addition, Cashiola testified that taking Lampson’s case
precluded Lampson’s attorneys from accepting some other cases. Cashiola testified
that $160,145 in attorney’s fees had been incurred, and he explained that attorney’s
fees were accruing during trial at the rate of approximately $6000 per day.
Cashiola explained that appellate attorneys charge approximately $500 per hour,
and he anticipated that fees for an appeal to this Court would be $50,000, and fees
for an appeal to the Texas Supreme Court would be $10,000 for the petition for
6
The case was transferred to the MDL court pursuant to National’s motion
requesting the transfer. See Tex. R. Jud. Admin. 13.3.
20
review stage, $15,000 for the briefing stage and $5000 for oral argument. National
did not call any witnesses, and both National and Lampson rested at the conclusion
of Lampson’s evidence.
ISSUE TWO
In issue two, National argues that Lampson lacks standing to sue National
because he “assigned all rights of recovery, including the National Security
insurance policy, to the [SETRPC][.]” Because this issue, if sustained, would result
in reversal of the trial court’s judgment and dismissal of the appeal, we address it
first. See Tex. R. App. P. 47.1; Heckman v. Williamson Cty., 369 S.W.3d 137, 149-
50 (Tex. 2012); Speer v. Stover, 685 S.W.2d 22, 23 (Tex. 1985).
Although Lampson questions whether National, as a stranger to the contract,
has standing to assert SETRPC’s rights, we will address Lampson’s standing as
briefed by National in issue two rather than ruling upon National’s standing.
National presented its motion to dismiss to the MDL court in Harris County, in
which it asserted that the Lampsons lack standing, and after the MDL Court denied
the motion to dismiss, National re-urged the motion before the trial court. The trial
court signed an order denying National’s motion to dismiss. In its order, the trial
court stated, “In an effort to circumvent an emergency interlocutory appeal filing
on the day of trial, it is this Court’s opinion that the MDL Court’s denial of
21
Defendant’s Motion to Dismiss for Lack of Jurisdiction be reiterated in the trial
court.”
As discussed above, Lampson and SETRPC entered into a “Subrogation and
Assignment Agreement[.]” The agreement identified Lampson as the borrower and
SETRPC as the “Subrecipient[,]” and stated that Lampson “hereby assigns to
[SETRPC] all of [Lampson’s] future rights to reimbursement and all payments
received under any policy of casualty or property damage insurance . . . for
physical damage to the Structure[.]” The agreement also provided: “Borrower
agrees to assist and cooperate with the Subrecipient should the Subrecipient elect
to pursue any of the claims Borrower has against the Insurers for reimbursement
under any such policies. Borrower’s assistance and cooperation shall include
allowing suit to be brought in Borrower’s name(s)[.]”
To determine whether Lampson had standing to bring his claims against
National, we must examine the subrogation and assignment agreement. We
construe the subrogation and assignment agreement by giving the language therein
its plain meaning. Phoenix Network Techs. (Europe) Ltd. v. Neon Sys., Inc., 177
S.W.3d 605, 615 (Tex. App.—Houston [1st Dist.] 2005, no pet.). In construing a
contract, we must consider the instrument as a whole rather than give controlling
22
effect to a single provision. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229
(Tex. 2003).
If the written instrument is so worded that it can be given a certain or
definite legal meaning or interpretation, then it is not ambiguous and
the court will construe the contract as a matter of law. A contract,
however, is ambiguous when its meaning is uncertain and doubtful or
it is reasonably susceptible to more than one meaning. Whether a
contract is ambiguous is a question of law for the court to decide by
looking at the contract as a whole in light of the circumstances present
when the contract was entered.
Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex. 1983) (citations omitted).
We conclude that the plain language of the subrogation and assignment
agreement indicates that Lampson was assigning to SETRPC the funds recovered
from his insurance policy with National (as well as from any other sources, such as
FEMA). The agreement gave SETRPC the right to bring a lawsuit in Lampson’s
name, but not the exclusive right to do so, and nowhere does the agreement refer to
assignment of a cause of action by Lampson. See generally id. Applying the rules
of contract construction and reading the agreement as a whole, we conclude that
the agreement’s purpose was to insure that SETRPC would recoup the money it
spent on Lampson’s property from any money Lampson received from National or
other sources. Because Lampson did not assign the exclusive right to assert a cause
of action regarding the property to SETRPC, the trial court did not err by denying
National’s motion to dismiss. Accordingly, we overrule issue two.
23
ISSUE ONE
In issue one, National argues that the jury “necessarily” answered several
questions of the charge incorrectly because, according to National, Lampson only
owned a one-half interest in the insured structure. Specifically, National asserts
that because Lampson’s daughter’s name appears on a deed, dated November 19,
2010, in which she conveyed an unspecified interest in the property to Lampson
for “Ten dollars ($10.00) cash and other good and valuable consideration[,]”
Lampson only owned one half of the property before that date. In addition,
National contends that Lampson’s wife “clearly has no ownership, has no claim on
which damages can be awarded[,] and is not entitled to an award of attorney’s
fees.”
As explained below, National’s argument contradicts well-established
principles of community property law, as well as the evidence adduced at trial.
Lampson testified that he married his wife in 1966 and purchased the home in
1998. No evidence to the contrary was introduced. The 1998 deed simply reflects
that Lampson and his daughter Chirly were the purchasers of the property and that
they had paid $26,000 to the sellers via two promissory notes. Lampson testified
that he added his daughter to the deed to his home because his wife was living in
Nicaragua and “anything could happen[,]” and Lampson explained that he changed
24
the title to reflect Justina’s name when she returned to the country. There was no
evidence adduced to indicate that Lampson intended to convey any interest to
Chirly when he put her name on the deed.
There is a presumption under Texas law that property possessed or acquired
by either spouse during the marriage is community property, and to prove that
particular property is separate property requires clear and convincing evidence.
Tex. Fam. Code Ann. § 3.003 (West 2006); see Gameson v. Gameson, 162 S.W.
1169, 1171 (Tex. Civ. App.—Austin 1913, no writ). As discussed above, the
evidence established that Lampson purchased the home during the marriage, and
there was no evidence that Lampson intended to convey any interest to Chirly or
that Chirly contributed any funds toward the purchase of the home. The evidence
adduced at trial was insufficient to rebut the presumption that the house was
community property. See Tex. Fam. Code Ann. § 3.003; Gameson, 162 S.W. at
1171. Therefore, because the home was community property, Lampson and Justina
each owned an interest in the home. See generally Patterson v. Twaddell, 301
S.W.2d 680, 683 (Tex. Civ. App.—Amarillo 1957, writ ref’d n.r.e.).
In its brief, National also quotes a portion of the insurance policy, which
states that it will not be liable to the insured for more than the amount of the
insured’s interest at the time of the loss. As discussed above, Lampson and Justina
25
owned the home as community property when Hurricane Ike struck. For the same
reasons discussed above, we reject National’s argument and overrule issue one.
ISSUE THREE
In issue three, National complains that the trial court erred by allowing
Shipman to testify because Shipman did not inspect the property, take any
photographs, and “did not even write his ‘own’ expert report.” National asserts that
it was “substantially prejudiced” by the admission of Shipman’s testimony over its
objection.
Under Rule 702 of the Texas Rules of Evidence, the party seeking to admit
expert testimony must establish that (1) the expert is qualified to render an opinion
on the subject matter and (2) the testimony is relevant to the issue in the case. Tex.
R. Evid. 702; TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 234 (Tex. 2010).
Expert testimony must rely on sufficient data and proper methodology.
Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 905-06 (Tex. 2004); Kerr-
McGee Corp. v. Helton, 133 S.W.3d 245, 257 (Tex. 2004). “An expert may base
an opinion on facts or data in the case that the expert has been made aware of,
reviewed, or personally observed.” Tex. R. Evid. 703.
“An expert’s bare opinion will not suffice.” Ramirez, 159 S.W.3d at 906. If
the analytical gap between the offered opinion and the underlying data is too great,
26
the expert testimony is unreliable. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 39
(Tex. 2007); see Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726
(Tex. 1998). A trial court must act as a gatekeeper to screen out unreliable expert
evidence. Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 590 (Tex. 1999); see
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556-57 (Tex. 1995).
The examination of an expert’s methodology, technique, or foundational data is a
task for the trial court in its role as gatekeeper. Coastal Transp. Co., Inc. v. Crown
Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004). A Robinson
determination is “not an analysis that should be undertaken for the first time on
appeal.” Id. Requiring the trial court to first address the issue insures that a full
record will be developed and an appellate court will be able to evaluate the
sufficiency of the evidence without looking beyond the appellate record. Id.
Shipman testified regarding his credentials, as well as those of Burrell, and
he stated that all of his testimony would be based upon his training as a structural
engineer, as well as reasonable engineering probabilities. As discussed above,
Shipman estimated that he has handled more than one hundred files by sending an
inspector, such as Burrell, to the site. Burrell photographed and described in the
report the damage to Lampson’s home, and Shipman explained how he used data
from CompuWeather to calculate the range of wind pressures to which Lampson’s
27
property was exposed during the hurricane. Shipman testified regarding the
damage depicted in Burrell’s photographs, and he explained how the length and
force of the storm, as well as the amount of rain, caused the house to shake and
“possibly become distorted[.]” Shipman further explained the basis for his belief
that the cracks in the brick were new, and he testified that the broken windows
indicated significant wind pressure and flying debris.
We conclude that Shipman’s testimony did not merely consist of his bare
opinion; rather, it was supported by sufficient data and proper methodology and
was not conclusory. See Ramirez, 159 S.W.3d at 905-06; Helton, 133 S.W.3d at
257. In addition, we conclude that National’s complaint that Shipman did not
personally inspect the property, photograph it, or personally write the report is
without merit. See Tex. R. Evid. 702; Schronk v. City of Burleson, 387 S.W.3d
692, 716 (Tex. App.—Waco 2009, pet. denied) (holding that a testifying expert
need not have personally inspected an object before offering testimony about the
object). For all of these reasons, we overrule issue three.
ISSUE FOUR
In issue four, National contends that the trial court abused its discretion by
refusing to submit the spoliation instruction National requested. National argues
that the condition of the property before and after Hurricane Ike was “critical
28
physical evidence[,]” yet Lampson “allowed the structure to be demolished,
together with photographs of the [structure’s] pre and post Hurricane Ike
condition[.]”
In Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014), the Texas
Supreme Court held that because a spoliation instruction is based on a presumption
of wrongdoing rather than mere negligence, “a party must intentionally spoliate
evidence in order for a spoliation instruction to constitute an appropriate remedy.”
Aldridge, 438 S.W.3d 9, 23-24. The Supreme Court explained that “[b]y
‘intentional’ spoliation, often referenced as ‘bad faith’ or ‘willful’ spoliation, we
mean that the party acted with the subjective purpose of concealing or destroying
discoverable evidence.” Id. at 24. Accordingly, the Court held that “a trial court’s
finding of intentional spoliation . . . is a necessary predicate to the proper
submission of a spoliation instruction to the jury.” Id. at 25. The Supreme Court
qualified its broader holding by providing a means for the trial court to give a
spoliation instruction “if the act of spoliation, although merely negligent, so
prejudices the nonspoliating party that it is irreparably deprived of having any
meaningful ability to present a claim or defense.” Id. at 25-26.
The record reflects that Lampson filed a claim with National for his damages
from Hurricane Ike on September 29, 2008, applied for assistance from SETRPC
29
on March 5, 2010, filed suit against National on September 3, 2010, and SETRPC
demolished the home in May of 2012. Nothing in the record before us suggests that
Lampson intentionally spoliated any evidence by allowing SETRPC to demolish
the house, nor does the record suggest that the alleged spoliation deprived National
of any meaningful ability to present a claim or defense; rather, the record reflects
that National vigorously defended itself, and that National had inspected and
photographed the home in 2007 during the underwriting process. We conclude that
the trial court did not err by refusing to submit National’s requested spoliation
instruction. In addition, we note that National has not established that the refusal of
the instruction probably led to the rendition of an improper judgment. See Tex. R.
App. P. 44.1(a)(1). For all of these reasons, we overrule issue four.
ISSUE FIVE
In issue five, National appears to argue that the evidence was legally and
factually insufficient to support the damages verdict. National briefs the issue by
asserting its challenges to the sufficiency of the evidence concurrently with
complaints about the denial of its requested jury questions on causation, policy
defenses, and spoliation. National also includes in its discussion of issue five an
oddly-placed argument regarding Lampson’s alleged failure to fulfill his duties
under the policy to (1) provide prompt written notice of the facts relating to the
30
claim, (2) protect the property from further damage, (3) make reasonable and
necessary repairs to protect the property, (4) keep an accurate record of the repair,
(5) allow National access to the property as often as National reasonably requires,
and (6) provide pertinent documents and records upon request.
National does not discuss the standards of review for legal and factual
sufficiency of the evidence or explain how the evidence was insufficient. See Tex.
R. App. P. 38.1(i). National does not explain how its arguments regarding the jury
charge relate to its challenge to the legal and factual sufficiency of the evidence as
to damages; rather, National seems to make a separate argument regarding the
refusal of its requested instructions regarding causation, Lampson’s duties under
the policy, and spoliation.
In a legal sufficiency review, we are to “credit favorable evidence if
reasonable jurors could, and disregard contrary evidence unless reasonable jurors
could not.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evidence is
legally sufficient if it “would enable reasonable and fair-minded people to reach
the verdict under review.” Id. We will sustain a legal sufficiency challenge if the
record shows one of the following: (1) a complete absence of evidence of a vital
fact; (2) rules of law or rules of evidence bar the court from giving weight to the
only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital
31
fact is no more than a mere scintilla; or (4) the evidence conclusively establishes
the opposite of the vital fact that is at issue in the appeal. Id. at 810. “Evidence
does not exceed a scintilla if it is ‘so weak as to do no more than create a mere
surmise or suspicion’ that the fact exists.” Kroger Tex. Ltd. P’Ship v. Suberu, 216
S.W.3d 788, 793 (Tex. 2006) (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d
598, 601 (Tex. 2004)). The jury is the sole judge of the credibility of the witnesses
and is responsible for resolving any conflicts in the evidence, weighing the
evidence, and drawing reasonable inferences from basic facts to ultimate facts. City
of Keller, 168 S.W.3d at 819-21; Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625
(Tex. 2004).
In a factual sufficiency review, we consider and weigh all of the evidence,
and we will set aside the verdict only if the evidence is so weak or the finding is so
against the great weight and preponderance of the evidence that it is clearly wrong
and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). As long
as the evidence falls within the zone of reasonable disagreement, we cannot
substitute our judgment for that of the factfinder. City of Keller, 168 S.W.3d at
822.
National argues that the only causation testimony came from Shipman, and
National also complains that because Hurricane Rita damaged Lampson’s house
32
prior to Hurricane Ike, the trial court erred by refusing its requested jury question
regarding whether Hurricane Ike caused the damage to Lampson’s property. As
previously discussed, after Hurricane Rita occurred,7 National inspected Lampson’s
home and photographed it, and National’s underwriters decided to insure the
property.
In addition to Shipman’s testimony, which we will not reiterate here, the
jury also heard evidence from Lampson regarding the damage Hurricane Ike
inflicted upon the property. Specifically, Lampson testified that Hurricane Ike
caused new cracks in the brick, broke six windows, caused the floor to become
unlevel and to crack, caused the roof to leak, damaged the garage door, and
allowed water to enter the home. Lampson also testified regarding items he had to
replace, as well as his family’s evacuation to a hotel for about one week. Lampson
testified that he had to spend one week in a hotel during the evacuation, had to
replace a refrigerator and a sofa, and that he lost food. In addition, Lampson
testified that his home cost $46,000 when he purchased it in 1998, and Burke
testified that SETPRC determined that it was more cost efficient to demolish the
home and rebuild rather than to repair it because the repair cost would have
exceeded SETRPC’s $85,000 cap. The jury also heard Shively testify that there
7
Hurricane Rita made landfall on September 24, 2005.
33
were cracks and broken windows in the post-hurricane photos that did not appear
in the photographs National took in 2007.
With respect to the award of damages for National’s knowingly committing
unfair or deceptive trade practices, the jury heard evidence from Spotts that
National’s claim file was not well documented; National apparently did not give
Fielder a copy of Lampson’s insurance policy; Fielder did not communicate
effectively with Lampson or seek assistance from an interpreter; Fielder did not
adequately investigate any of the four areas of concern reported by Lampson; and
Fielder was in a hurry and did not take sufficient time to do his job. The jury heard
evidence that National accepted Fielder’s report and denied Lampson’s claim
without further investigation.
Crediting favorable evidence if reasonable jurors could, and disregarding
contrary evidence unless reasonable jurors could not, we conclude that the
evidence would enable reasonable and fair-minded people to reach the damages
verdict and, therefore, is legally sufficient. See City of Keller, 168 S.W.3d at 827.
Furthermore, considering and weighing all of the evidence, we conclude that the
evidence is not so weak nor is the finding so against the great weight and
preponderance of the evidence as to be clearly wrong and unjust. See Francis, 46
34
S.W.3d at 242. Therefore, the evidence is factually sufficient. Accordingly, we
overrule the legal and factual sufficiency challenges raised in issue five.
We now turn to the charge error arguments alleged within issue five. The
trial court shall submit instructions and definitions as shall be proper to enable the
jury to reach a verdict and which are raised by the written pleadings and the
evidence. Tex. R. Civ. P. 277, 278. We review alleged jury charge error under an
abuse of discretion standard. Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647,
649 (Tex. 1990) (op. on reh’g); Lake Conroe Med. Ctr., Ltd. v. KMT Bldg. Co.,
290 S.W.3d 541, 548 (Tex. App.—Beaumont 2009, no pet.). We may not reverse
for charge error unless the error “probably caused the rendition of an improper
judgment[.]” Tex. R. App. P. 44.1(a)(1); Shupe v. Lingafelter, 192 S.W.3d 577,
579 (Tex. 2006). To determine whether an alleged error in the jury charge is
reversible, we consider the pleadings of the parties, the evidence presented at trial,
and the charge in its entirety. Island Recreational Dev. Corp. v. Rep. of Tex. Sav.
Ass’n, 710 S.W.2d 551, 555 (Tex. 1986). “Charge error is generally considered
harmful if it relates to a contested, critical issue.” Columbia Rio Grande
Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009). To be included in
the charge, a question or instruction must be supported by the pleadings and the
35
evidence. See Tex. R. Civ. P. 278; Thota v. Young, 366 S.W.3d 678, 693 (Tex.
2012).
National’s first charge complaint in issue five concerns the rejection of its
proposed jury question, which inquired whether Hurricane Ike caused the alleged
windstorm damage. National asserts that because Lampson’s home had been
previously damaged in Hurricane Rita, the charge on causation was required. As
discussed above, Lampson testified that Hurricane Ike damaged his home and
explained in detail the extent of the damage, and National had in its underwriting
file pictures of the home’s condition in 2007, which was after Hurricane Rita but
before Hurricane Ike. Shipman testified in detail regarding the forces to which
Lampson’s home was exposed during the storm and the resulting damages to the
structure. No witnesses testified that Hurricane Ike did not damage Lampson’s
home.
We conclude that the proposed instruction was not supported by the
evidence, and the trial court therefore did not abuse its discretion by refusing to
submit it. See Tex. R. Civ. P. 278; Thota, 366 S.W.3d at 693. In addition, National
has not demonstrated that the trial court’s refusal of its requested instruction
probably caused the rendition of an improper judgment. See Tex. R. App. P.
44.1(a)(1); Shupe, 192 S.W.3d at 579.
36
In its next charge error argument, National complains of the trial court’s
refusal to submit its proposed question that set forth all of Lampson’s duties
pursuant to the insurance policy and asked the jury to determine whether Lampson
had fulfilled those duties. The evidence established that National had received
notice of Lampson’s claim by September 29, 2008, and denied Lampson’s claim
on October 24, 2008, after receiving Fielder’s report. In addition, Spotts testified
that Lampson did not violate the insurance policy, and that Lampson made
temporary repairs to prevent further damage to the property. National’s proposed
question inquired about issues upon which there was no evidence, such as
Lampson allowing National access to the property until its demolition, providing
prompt notice, and providing documents upon request. Because National’s
proposed issue included issues not supported by the evidence, the trial court did
not abuse its discretion by refusing to submit it. See Tex. R. Civ. P. 278; Thota,
366 S.W.3d at 693. In addition, National has not demonstrated that the trial court’s
refusal of its requested instruction on Lampson’s obligations under the policy
probably caused the rendition of an improper judgment. See Tex. R. App. P.
44.1(a)(1); Shupe, 192 S.W.3d at 579.
In its final charge error argument, National again contends that the trial court
erred by refusing its requested instruction on spoliation. We have already
37
addressed the refusal of a spoliation instruction in our analysis of issue four, and
we need not repeat that analysis here. For the same reasons discussed in issue four,
we overrule National’s argument in issue five regarding the trial court’s refusal to
submit National’s proposed spoliation charge. Having addressed all of the
multifarious arguments raised in issue five, we overrule issue five.
ISSUE SIX
In issue six, National asserts that the trial court failed to require Lampson to
elect a remedy, and that Lampson cannot recover “under both his statutory claims
and his breach of contract claim.” As discussed above, the jury awarded actual
damages totaling $56,700 in response to both Question 2, which dealt with breach
of contract, and Question 5, which dealt with unfair or deceptive acts by National.
The record reflects that appellees filed a motion for entry of final judgment on
March 2, 2015, with which they submitted a proposed final judgment. Appellees’
proposed final judgment included a single finding of past damages of $56,700, as
well as $10,000 for National’s failure to comply with its duty of good faith and fair
dealing and $100,000 for National’s knowing engagement in unfair or deceptive
acts or practices. The trial court signed its final judgment in accordance with the
requests made in appellees’ proposed final judgment. Therefore, appellees did not
recover twice for the same injury. Cf. Waite Hill Servs. v. World Class Metal
38
Works, Inc., 959 S.W.2d 182, 184-85 (Tex. 1998) (holding that when technically
differing acts cause the same injury, the one satisfaction rule prohibits the plaintiff
from recovering the same damages twice).
National also complains that appellees “failed to segregate the covered from
the uncovered losses.” National’s brief contains no explanation of what losses
National contends were not covered; therefore, said argument is inadequately
briefed, and we need not address it. See Tex. R. App. P. 38.1(i). For all of these
reasons, we overrule issue six.
ISSUE SEVEN
In issue seven, National argues that the attorney’s fees award was “wholly
unsupported in fact and law and amounted to a recovery based on ipse dixit
testimony[,]” and National also asserts that the trial court erred by overruling its
objections to jury Question 10, which dealt with attorney’s fees. National
complains that appellees’ “proof of attorney’s fees . . . was a reconstituted
spreadsheet itemizing the time performed on specific tasks[,]” and points out that
Cashiola testified that appellees’ counsel did not keep contemporaneous time
records.
We generally review an attorney’s fee award for an abuse of discretion.
Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 163 (Tex. 2004). “Even though
39
the appropriate standard of review is abuse of discretion, we may nevertheless
review a fee award for sufficiency of the evidence.” Cordova v. Sw. Bell Yellow
Pages, Inc., 148 S.W.3d 441, 446 (Tex. App.—El Paso 2004, no pet.). The lodestar
method of determining what constitutes a reasonable attorney’s fee involves two
steps: (1) determining the reasonable hours spent by counsel and a reasonable
hourly rate for such work, and (2) multiplying the number of such hours by the
applicable rate, “the product of which is the base fee or lodestar.” El Apple I, Ltd.
v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012). “[A] party applying for an award of
attorney’s fees under the lodestar method bears the burden of documenting the
hours expended on the litigation and the value of those hours.” Id. at 761.
Sufficient evidence should include, “at a minimum, documentation of the services
performed, who performed them and at what hourly rate, when they were
performed, and how much time the work required.” Id. at 764. Contemporaneous
evidence may be unavailable, but it is permissible for attorneys to reconstruct their
work to provide the factfinder with sufficient information. Long v. Griffin, 442
S.W.3d 253, 256 (Tex. 2014).
As Cashiola acknowledged during his testimony, the Supreme Court has set
forth a list of eight factors that the factfinder should consider when determining the
reasonableness of attorney’s fees. Arthur Andersen & Co. v. Perry Equip. Corp.,
40
945 S.W.2d 812, 818 (Tex. 1997). In Arthur Andersen, the Supreme Court held
that the factors the factfinder should consider are:
1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill required to perform the legal service properly;
2) the likelihood . . . that the acceptance of the particular employment
will preclude other employment by the lawyer;
3) the fee customarily charged in the locality for similar legal services;
4) the amount involved and the results obtained;
5) the time limitations imposed by the client or by the circumstances;
6) the nature and length of the professional relationship with the client;
7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
8) whether the fee is fixed or contingent on results obtained or
uncertainty of collection before the legal services have been rendered.
Id. (quoting Tex. Disciplinary R. Prof’l Conduct R. 1.04, reprinted in Tex. Gov’t
Code Ann., tit. 2, subtit. G, app. A (West 2013) (Tex. State Bar R., art. X, § 9)).
National asserts that Cashiola’s testimony was legally insufficient to prove Arthur
Andersen factors one, four, and eight. A party need not prove all of the Arthur
Andersen factors for the evidence supporting an attorney’s fee award to be
sufficient. Arthur J. Gallagher & Co. v. Dieterich, 270 S.W.3d 695, 706 (Tex.
App.—Dallas 2008, no pet.).
41
Cashiola testified that the rates charged per hour by appellees’ attorneys are
reasonable, reflective of the risk of taking the case, and commensurate with the
attorneys’ skills, and he explained that the rates are reasonable for the area of first-
party insurance law, as well as for the Jefferson County area. Cashiola further
explained that appellees’ attorneys had to travel more after the case was moved to
Harris County as part of the MDL procedure. In addition, Cashiola explained that
appellees’ attorneys would only recover their fees if Lampson won the lawsuit, and
“there is no guarantee here of any kind of recovery.” Cashiola also testified that
appellate attorneys charge approximately $500 per hour, and he used that figure in
estimating appellate attorney’s fees.
Cashiola testified that appellees’ attorneys had created a fee report in
spreadsheet format, which reflected their work up to two days before Cashiola’s
testimony, and the report was admitted into evidence without objection. As
previously discussed, Cashiola testified that $160,145 in attorney’s fees had been
incurred, and he explained that attorney’s fees were accruing during trial at the rate
of approximately $6000 per day. The fee report lists the services performed, who
performed them, the hourly rate for the services, when they were performed, and
how much time the work required. On this record, we conclude that the evidence
was sufficient to support the attorney’s fees awarded. See Long, 442 S.W.3d at
42
256; Olivas, 370 S.W.3d at 764. Accordingly, we overrule issue seven. Having
overruled all of National’s issues, we affirm the trial court’s judgment.
AFFIRMED.
_____________________________
STEVE McKEITHEN
Chief Justice
Submitted on May 19, 2016
Opinion Delivered December 1, 2016
Before McKeithen, C.J., Kreger and Johnson, JJ.
43