Angela Brooks-Brown v. USAA Texas Lloyd's Company ( 2015 )

No. 03'15'00451'CV
IN THE FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
THIRD COURT OF APPEALS 10/27/2015 10:49:03 AM
AT AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
ANGELA BROOKS'BROWN,
Appellant,
v.
USAA TEXAS LLOYD’S COMPANY,
Appellee.
Appealed from the 146TH Judicial District Court of
Bell County, Texas
________________________________________________________________
APPELLANT’S BRIEF
________________________________________________________________
Danny Ray Scott
State Bar No. 24010920
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 833'5400
Facsimile: (409) 833'5405
danny@scottlawyers.com
Attorney for Appellant
No. 03'15'00451'CV
IN THE
THIRD COURT OF APPEALS
AT AUSTIN, TEXAS
ANGELA BROOKS'BROWN,
Appellant,
v.
USAA TEXAS LLOYD’S COMPANY,
Appellee.
IDENTITIES OF PARTIES AND COUNSEL
Appellant: Angela Brooks'Brown
Appellee: USAA Texas Lloyd’s Company
Counsel for Appellant: Danny Ray Scott
State Bar No. 24010920
350 Pine Street, Suite 300
Beaumont, Texas 77701
409.833.5400
409.833.5405
danny@scottlawyers.com
Counsel for Appellee: Lisa A. Songy
State Bar No. 00793122
2811 McKinney Avenue, Suite 250 W
Dallas, Texas 75204
214.665.0100
214.665.0199
ii
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL .....................................................ii
TABLE OF CONTENTS .......................................................................................iii
INDEX OF AUTHORITES ...................................................................................iv
STATEMENT OF THE CASE............................................................................... 1
ISSUES PRESENTED FOR REVIEW ................................................................... 2
STATEMENT OF FACTS...................................................................................... 3
SUMMARY OF THE ARGUMENT..................................................................... 6
ARGUMENT .......................................................................................................... 8
CONCLUSION & PRAYER................................................................................ 11
CERTIFICATION................................................................................................. 14
CERTIFICATE OF COMPLIANCE ................................................................... 14
CERTIFICATE OF SERVICE .............................................................................. 15
iii
INDEX OF AUTHORITES
CASES
Dolenz v. Continental Nat’l Bank of Fort Worth, 620 S.W.2d 572, 575 (Tex.
1981)...................................................................................................................... 8
Tel. Equip. Network, In. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 607 (Tex.
App.—Houston [1st Dist.} 2002, no pet.)........................................................ 10
TMC Worldwide L.P. v. Gray, 178 S.W.3d 29, 36 (Tex. App.—Houston [1st
Dist.] 2005, no pet.) ....................................................................................... 9, 10
Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247 (Tex. 1998). ......................... 8
iv
STATEMENT OF THE CASE
Nature of the case. Appellant, Angela Brooks'Brown, originally sued
Appellee, USAA Texas Lloyd’s Company, for breach of contract, breach of
the duty of good faith and fair dealing, fraud, violations of the Texas
Deceptive Trade Practice Act and violations of the Texas Insurance Code.
Appellant subsequently amended her petition to include only the breach of
contract claim. Appellee filed a general denial. Appellant will be referred
to as “Appellant” or “Plaintiff.” Appellee will be referred to as “Appellee,”
“Defendant” or “USAA.”
Course of the proceedings. Appellant demanded appraisal of her
insurance claim pursuant to the provisions of the insurance policy.
Appellant subsequently filed a nonsuit of her claims without prejudice.
After filing the nonsuit, and Appellant asked a judge in Jefferson County,
Texas (the “Jefferson County Lawsuit” or “Jefferson County action”) to
appoint an umpire in the appraisal proceeding. Appellee then asked the
Bell County trial court to appoint an umpire and filed an application for
temporary injunction asking the Bell County court to enjoin Appellant
1
from proceeding on her Petition to Appoint Umpire in Appraisal
Proceeding that she filed in Jefferson County. Appellant then filed a plea
in abatement asking the Bell County Court to abate the Bell County
proceeding and to allow the Jefferson County court to appoint an umpire
in the appraisal proceeding.
Trial court disposition. The trial court denied Appellant’s plea in
abatement, granted Appellee’s motion for appointment of umpire and
granted Appellee’s application for temporary injunction.
ISSUES PRESENTED FOR REVIEW
1. The trial court erred when it denied Plaintiff’s Plea in Abatement to
Defendant’s Motion for Appointment of Umpire for Insurance Appraisal
Proceeding.
2. The trial court erred when it granted Defendant USAA Texas
Lloyd’s Company’s Application for Temporary Injunction.
3. The trial court’s order granting Defendant USAA Texas Lloyd’s
Company’s Motion for Appointment of Umpire for Insurance Appraisal
Proceeding is void.
2
STATEMENT OF FACTS
Appellant purchased homeowner insurance policy number 0242343 40
74 90A from Appellee. (CR 272). The insurance policy insured Appellant’s
property located at and provided
coverage for damage caused by wind and hail. (CR 582). On or about May
12, 2014, Plaintiff’s property sustained windstorm and hail damage. (CR
272). Plaintiff’s roof sustained extensive damage during the storm
including damage to the shingles, roof jack, drip edge, chimney and other
structural parts of the roof. (CR 272). Plaintiff’s property also sustained
exterior damage to the cornice and siding, dryer vent, windows, fence,
garage door and a/c unit. (CR 273). After the storm, Plaintiff filed a claim
with her insurance company, USAA, for the damages to her home caused
by the storm. (CR 272).
Plaintiff submitted claims to USAA against the Policy for damage
caused to the property as a result of the fire and the wind and hail. (CR
272). Plaintiff asked USAA to cover the cost of repairs to the Property
pursuant to the Policy and any other available coverages under the Policy.
3
(CR 272). USAA assigned claim number 024234074'3 to Plaintiff’s fire
claim and claim number 024234074'4 to Plaintiff’s wind and hail claim.
(CR 273).
Appellant sued Appellee for breach of contract in Bell County, Texas.
(CR 275). Appellant’s petition did not ask the Bell County court to appoint
an appraisal umpire. Appellant presented documentation of damages to
the property caused by fire and hail, the value of which substantially
exceed the amount USAA originally paid Appellant for the damage caused
by the hailstorm (CR 20'24, 84'99). Appellant demanded appraisal of the
loss. (CR 432). The parties appointed appraisers and the appraisers did
not come to an agreement as to the amount of loss. (CR 434, 436).
Furthermore, the appraisers did not agree upon the appointment of an
umpire to determine the amount of loss.
The insurance policy at issue contained the following provision:
“If you and we fail to agree on the amount of loss, either may demand an
appraisal of the loss. In this event, each party will choose a competent and
impartial appraiser within 20 days after receiving a written request from
4
the other. The two appraisers will choose an umpire. If they cannot agree
upon an umpire within 15 days, you or we may request that the choice be
made by a judge of a court of record in the state where the “residence
premises” is located. (CR 605). The appraisers will separately set the
amount of the loss. (CR 605). If the appraisers submit a written report of
an agreement to us, the amount agreed upon will be the amount of loss.
(CR 605). If they fail to agree, they will submit their differences to the
umpire. (CR 605). A decision agreed to by any two will set the amount of
loss. (CR 605).”
Appellant nonsuited her claims in Bell County, Texas and filed a
petition in Jefferson County, Texas. (CR 418, 640). The Jefferson County
petition only asked that court to appoint an umpire in the appraisal
proceeding. (CR 640). The Jefferson County petition did not include any of
the causes of action or allegations asserted in the previously filed and
nonsuited Bell County petition.
Appellee then asked the Bell County trial court to appoint an umpire
and filed an application for temporary injunction asking the Bell County
5
court to enjoin Appellant from proceeding on her Petition to Appoint
Umpire in Appraisal Proceeding that she filed in Jefferson County. (CR
420, 569). Appellant then filed a plea in abatement asking the Bell County
Court to abate the Bell County proceeding and to allow the Jefferson
County court to appoint an umpire in the appraisal proceeding. (CR 687).
The trial court denied Appellant’s plea in abatement, granted Appellee’s
motion for appointment of umpire and granted Appellee’s application for
temporary injunction. (CR 927, 948).
SUMMARY OF THE ARGUMENT
Appellant’s first argument challenges the trial court’s denial of
Appellant’s plea in abatement. Appellee unilaterally drafted an insurance
contract that gave the parties the right to ask any judge in the state of Texas
to appoint an appraisal umpire. (CR 605). Appellant first asked the
Jefferson County court to appoint an umpire and the Jefferson County
action was therefore already pending when the Appellee asked the Bell
County court to appoint an appraisal umpire. (CR 640) The Bell County
court was therefore required to abate Appellee’s request to have the Bell
6
County court appoint an umpire and to allow the Jefferson County action
to proceed.
Appellant’s second argument challenges the trial court’s grant of
Appellee’s Application for Temporary Injunction. To be entitled to
injunctive relief, the applicant must plead a cause of action recognized by
Texas courts. Because Appellee did not plead a viable cause of action, the
trial court had no authority to enjoin Appellant from proceeding in the
Jefferson County action.
Appellant’s third argument challenges the trial court’s grant of
Appellee’s Motion for Appointment of Umpire for Insurance Appraisal
Proceeding. Because Appellant first asked the Jefferson County court to
appoint an umpire and that request was pending prior to Appellee’s filing
of its request for the Bell County court to do the same, the trial court should
have abated the Bell County action and should not have appointed an
umpire.
7
ARGUMENT
Issue 1: The trial court erred when it denied Plaintiff’s Plea in
Abatement to Defendant’s Motion for Appointment of Umpire for
Insurance Appraisal Proceeding.
ARGUMENT & AUTHORITIES
When an inherent interrelationship of the subject matter exists in two
pending lawsuits, a plea in abatement in the second action must be
granted. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247 (Tex. 1998). In
reviewing a trial court’s ruling on a plea in abatement, an appeals court
must consider whether an identity exists between the issues in the two
causes. Dolenz v. Continental Nat’l Bank of Fort Worth, 620 S.W.2d 572, 575
(Tex. 1981).
The insurance policy that USAA sold to appellant provided that either
party could ask any judge in the State of Texas to appoint an appraisal
umpire. (CR 605). The insured property is located in the state of Texas.
(CR 582). The Jefferson County Lawsuit only asked the Jefferson County
court to appoint an umpire. (CR 640). After appellant filed her lawsuit in
8
Jefferson County for the appointment of an appraisal umpire, USAA filed a
motion in Bell County asking that court to appoint an appraisal umpire.
(CR 420). USAA never filed a lawsuit in Bell County and USAA did not
have any pending requests for affirmative relief in Bell County when
Appellant filed the Jefferson County lawsuit. Because the second motion to
appoint an appraisal umpire shared an inherent relationship with the
subject matter of the Jefferson County Lawsuit, the Bell County court was
required to abate the Bell County lawsuit while the Jefferson County
lawsuit was pending.
Issue 2: The trial court erred when it granted Defendant USAA Texas
Lloyd’s Company’s Application for Temporary Injunction.
A temporary injunction’s purpose is to preserve the status quo of the
litigation’s subject matter pending a trial on the merits. TMC Worldwide
L.P. v. Gray, 178 S.W.3d 29, 36 (Tex. App.—Houston [1st Dist.] 2005, no
pet.). A temporary injunction is an extraordinary remedy and does not
issue as a matter of right. Id. To obtain a temporary injunction, the
applicant must plead and prove three specific elements: (1) a cause of
9
action against the defendant, (2) a probable right to the relief sought; and
(3) a probable, imminent, and irreparable injury in the interim. Id. .) A
probable right to recovery to the relief sought is shown by alleging a cause
of action and presenting evidence that tends to sustain it. Tel. Equip.
Network, In. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 607 (Tex. App.—
Houston [1st Dist.} 2002, no pet.).
In seeking its temporary injunction against Appellant, USAA never filed
a lawsuit against Appellant seeking any type of affirmative relief and did
not assert a cause of action against Appellant. Therefore, USAA failed to
satisfy the first and second elements for temporary injunctive relief. The
trial court was therefore required to deny USAA’s application and it
abused its discretion by failing to do so.
Issue 3: The trial court’s order granting Defendant USAA Texas Lloyd’s
Company’s Motion for Appointment of Umpire for Insurance Appraisal
Proceeding is void.
The trial court erred in denying Appellant’s plea in abatement. The
granting of Appellant’s plea in abatement would have halted the Bell
10
County umpire proceeding and would have allowed the Jefferson County
Lawsuit to address the umpire appointment. The trial court’s error in
denying Appellant’s plea in abatement therefore renders the Bell County
umpire appointment void.
CONCLUSION & PRAYER
The Jefferson County Lawsuit and the Bell County Lawsuit each asked
those respective courts to appoint an umpire in the appraisal proceeding
governing Appellant’s insurance claim. The Jefferson County Lawsuit
requested that court to appoint an umpire prior to USAA requesting the
same in the Bell County Lawsuit. Therefore, the trial court was required to
grant Appellant’s plea in abatement and refrain from appointing an umpire
for the appraisal proceeding.
In seeking it temporary injunction, USAA never alleged a cause of
action against Appellant and therefore never proved its probable right to
recovery to any relief sought. Because USAA failed to satisfy two essential
elements to obtaining temporary injunctive relief, the trial court erred in
granting the application.
11
For these reasons, Appellant asks this Court to reverse the trial court’s
denial of Appellant’s plea in abatement, reverse the trial court’s grant of
USAA’s application for temporary injunction and remand this proceeding
for further action consistent with this Court’s ruling. In addition,
Appellant asks this court to render the trial court’s order appointing an
umpire in the appraisal proceeding void.
12
Respectfully Submitted,
SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 833'5400
Facsimile: (409) 833'5405
______________________________
/s/ Danny Ray
Danny Ray Scott
State Bar No. 24010920
Email: danny@scottlawyers.com
SEAN M. PATTERSON
State Bar No. 24073546
Email: sean@scottlawyers.com
VIRGINIA IZAGUIRRE
State Bar No. 24083230
Email: virginia@scottlawyers.com
Attorneys for Appellant
13
CERTIFICATION
I certify that I have reviewed the petition and have concluded that
every factual statement made in the petition is supported by competent
evidence included in the appendix or the record.
/s/Danny Ray Scott
Danny Ray Scott
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using
Microsoft Word and contains 2,397 words, as determined by the computer
software’s word'count function, excluding sections of the document listed
in Texas Rule of Appellate Procedure 9.4(i)(l).
/s/ Danny Ray
______________________________
Danny Ray Scott
14
CERTIFICATE OF SERVICE
I certify that on October 19, 2015, I served a copy of Appellant’s Brief on
the parties listed below by electronic service and that the electronic
transmission was reported as complete. My email address is
danny@scottlawyers.com.
Lisa A. Songy
TOLLEFSON BRADLEY MITCHELL & MELENDI, LLP
2811 McKinney Ave., Suite 250 West
Dallas, Texas 75204
E'mail Address: lisas@tbmmlaw.com
/s/ Danny Ray
______________________________
Danny Ray Scott
15
No. 03-15-00451-CV
IN THE
THIRD COURT OF APPEALS
AT AUSTIN, TEXAS
ANGELA BROOKS-BROWN,
Appellant,
v.
USAA TEXAS LLOYD’S COMPANY,
Appellee.
Appealed from the 146TH Judicial District Court of
Bell County, Texas
APPENDIX TO APPELLANT’S BRIEF
Appellant, Angela Brooks0Brown, submits the following documents in
support of her appellant’s brief.
LIST OF DOCUMENTS
1. Plaintiff’s Third Amended Original Petition, dated May 19, 2015.
2. Defendant USAA Texas Lloyd’s Company’s Answer and Jury
Demand, dated October 2, 2014.
3. Plaintiff’s Original Petition for Appointment of Appraisal Umpire,
dated June 8, 2015.
4. Defendant USAA Texas Lloyd’s Company’s Motion for Appointment
of Umpire for Insurance Appraisal Proceeding, dated June 9, 2015.
5. Defendant USAA Texas Lloyd’s Company’s Verified Application for
Temporary Injunction Against Plaintiff, dated June 26, 2015.
6. Plaintiff’s Plea in Abatement to Defendant’s Motion for Appointment
of Umpire for Insurance Appraisal Proceeding, dated July 9, 2015.
7. Plaintiff’s Response to Defendant’s Verified Application for
Temporary Injunction Against Plaintiff, dated July 9, 2015.
8. Order on Defendant USAA Texas Lloyd’s Company’s Motion for
Appointment of Umpire for Insurance Appraisal Proceeding, dated
July 10, 2015.
9. Order Granting Defendant USAA Texas Lloyd’s Company’s Verified
Application for Temporary Injunction Against Plaintiff, dated June
15, 2015.
10. Order on Plaintiff’s Plea in Abatement to Defendant’s Motion for
Appointment of Umpire for Insurance Appraisal Proceeding, dated
July 27, 2015.
Respectfully Submitted,
SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 833d5400
Facsimile: (409) 833d5405
______________________________
/s/ Danny Ray Scott
Danny Ray Scott
State Bar No. 24010920
Email: danny@scottlawyers.com
SEAN M. PATTERSON
State Bar No. 24073546
Email: sean@scottlawyers.com
VIRGINIA IZAGUIRRE
State Bar No. 24083230
Email: virginia@scottlawyers.com
Attorneys for Plaintiff
Filed 5/19/2015 4:53:11 PM
Joanna Staton, District Clerk
District Court - Bell County, TX
by Lacey Martindale , Deputy
CAUSE NO. 272,6930B
ANGELA BROOKS0BROWN § IN THE DISTRICT COURT
§
§
v. § 146th JUDICIAL DISTRICT
§
§
USAA TEXAS LLOYD’S COMPANY § BELL COUNTY, TEXAS
PLAINTIFF’S THIRD AMENDED ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES ANGELA BROOKS0BROWN (herein after referred to as “Plaintiff”),
complaining of Defendant, USAA TEXAS LLOYD’S COMPANY, (hereinafter referred to as
“USAA”) and hereby respectfully shows unto the Court and Jury as follows:
DISCOVERY CONTROL PLAN
1. Plaintiff intends for discovery to be conducted under Level 3 of Rule 190 of the
Texas Rules of Civil Procedure. This case involves complex issues and will require extensive
discovery. Therefore, Plaintiff asks the Court to order that discovery be conducted in
accordance with a discovery control plan tailored to the particular circumstances of this suit.
PARTIES
2. Plaintiff, ANGELA BROOKS0BROWN, is an individual and resident of Bell
County and citizen of the state of Texas.
3. Defendant, USAA TEXAS LLOYD’S COMPANY, hereinafter “USAA,” is a
domestic insurance carrier, incorporated and engaging in the business of insurance in the State
of Texas. Defendant USAA has been served and is properly before the court.
Page 1 of 6
JURISDICTION AND VENUE
4. This Court has Jurisdiction over this case in that the amount in controversy
exceeds the minimum jurisdictional limits of this Court.
5. Venue is mandatory and proper in Bell County, Texas, because all or a
substantial part of the events giving rise to the lawsuit occurred in this county (see Tex. Civ.
Prac. & Rem. Code § 15.002).
CONDITIONS PRECEDENT
6. All conditions precedent to recovery have been performed, waived, or have
occurred.
FACTS
7. Plaintiff is the owner of a homeowner insurance policy, policy number 0242343
40 74 90A, issued by the Defendant (hereinafter referred to as the “Policy”).
8. Plaintiff owned the insured property that is specifically located at
(hereinafter referred to as the “Property”).
9. Defendant or its agent sold the Policy, insuring the property, to Plaintiff.
10. On or about April 4, 2014, Plaintiff’s property sustained fire damage, specifically
to the fence. Plaintiff filed a claim with her insurance company, USAA for the damages to her
property caused by the fire.
11. On or about May 12, 2014, Plaintiff’s property sustained windstorm and hail
damage. Plaintiff’s roof sustained extensive damage during the storm including damage to the
shingles, roof jack, drip edge, chimney and other structural parts of the roof. Plaintiff’s
property also sustained exterior damage to the cornice and siding, dryer vent, windows, fence,
Page 2 of 6
garage door and a/c unit. After the storm, Plaintiff filed a claim with her insurance company,
USAA, for the damages to her home caused by the storm.
12. Plaintiff submitted claims to USAA against the Policy for damage caused to the
property as a result of the fire and the wind and hail. Plaintiff asked USAA to cover the cost of
repairs to the Property pursuant to the Policy and any other available coverages under the
Policy. USAA assigned claim number 02423407403 to Plaintiff’s fire claim and claim number
02423407404 to Plaintiff’s wind and hail claim.
13. On or about April 15, 2014, Gene Swanson (“SWANSON”), on behalf of USAA,
inspected the property in question pursuant to Plaintiff’s fire claim. The fire caused significant
damage to the fence, which required that it be removed and replaced. SWANSON did not
conduct a thorough inspection and only allowed the minimum cost to repair the fence. As a
result of SWANSON’s unreasonable and brief investigation, Plaintiff was wrongly denied the
full cost to replace the fence.
14. On or about May 16, 2014, Steen Schumacher (“SCHUMACHER”), on behalf of
USAA, inspected the property in question pursuant to Plaintiff’s wind and hail claim. The
storm caused significant damage to the roof, including pitting and loss of granules to the
shingles. The hail pitting damage bruised the shingles, while removing and crushing the
granules. Wind damage uplifted and detached shingles, which would not allow the shingles to
reseal to prevent water intrusion.
15. The storm caused extensive damage to the exterior of the property. Specifically,
it caused damage to the cornice and siding, dryer vent, windows, fence, garage door, and a/c
unit. SCHUMACHER did not conduct a thorough exterior inspection and only allowed the
Page 3 of 6
minimum cost to repair the windows and seal and paint the garage door opening and trim. As a
result of SCHUMACHER’s unreasonable exterior investigation, Plaintiff was wrongly denied
the full cost to repair the damage to the exterior of the property. SCHUMACHER also denied
Plaintiff the full cost for construction cleanup, debris removal, a job permit, and temporary
utilities, although all of the cost was covered under the Policy.
16. Despite documenting extensive damage to the roof, SCHUMACHER failed to
conduct a reasonable exterior inspection of the Property. SCHUMACHER failed to give Plaintiff
an allowance for obvious damage caused by the storm to the fence, garage door, a/c unit, dryer
vent, cornice and siding. SCHUMACHER conducted an insufficient inspection and prematurely
closed Plaintiff’s claim. At the time if the investigation, premature closing of claims was part of
a pattern and practice of claims handling by USAA.
17. USAA failed to properly adjust the claims and Defendant has denied at least a
portion of the claims without an adequate investigation, even though the Policy provided
coverage for losses such as those suffered by Plaintiff. Furthermore, USAA underpaid portions
of Plaintiff’s claims by not providing full coverage for the damages sustained by Plaintiff, as
well as under0scoping the damages during its investigation.
18. To date, USAA continues to delay in the payment for the damages to the
Property. As such, Plaintiff’s claim(s) still remain unpaid and Plaintiff still has not been able to
properly repair the Property.
19. Defendant failed to perform its contractual duty to adequately compensate
Plaintiff under terms of the policy. Specifically, Defendant failed and refused to pay any of the
proceeds of the Policy, although due demand was made for proceeds to be paid in an amount
Page 4 of 6
sufficient to cover the damaged Property and all conditions precedent to recovery upon the
Policy had been carried out and accomplished by Plaintiff. Defendant’s conduct constitutes a
breach of the insurance contract between Defendant and Plaintiff.
COUNT ONE: BREACH OF CONTRACT
20. Plaintiff incorporates paragraphs 10019 herein.
21. At the time of the April 4, 2014 and May 12, 2014 incidents, Plaintiff had in place
a policy issued by USAA. The premiums were current. All conditions precedent to recovery
were made. Defendant wrongfully failed to comply with the terms of the contract. Defendant
is, therefore, in breach of the contract of insurance issued to Plaintiff.
22. Defendant’s conduct constitutes a breach of contract resulting in damages to the
Plaintiff.
DAMAGES
23. The exact amount of Plaintiff’s damages are unknown. Based on the information
currently available to Plaintiffs, Plaintiff seeks only monetary relief of $ 100,000 or less,
including damages of any kind, penalties, costs, expenses, pre0judgment interest, and attorney
fees. Plaintiff reserves the right to decrease or increase this amount as further information
becomes available.
JURY DEMAND
24. Plaintiff previously requested a trial by jury and paid the jury fee.
PRAYER
25. For these reasons, Plaintiff asks that she have judgment against Defendant for
her economic damages and all other relief to which Plaintiff may show herself entitled.
Page 5 of 6
Respectfully Submitted,
SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 83305400
Facsimile: (409) 83305405
/s/Danny Ray Scott
__________________________
Danny Ray Scott
State Bar No. 24010920
danny@scottlawyers.com
Virginia Izaguirre
State Bar No. 24083230
virginia@scottlawyers.com
Sean M. Patterson
State Bar No. 24073546
sean@scottlawyers.com
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing has been
forwarded to the following counsel of record in compliance with the Texas Rules of Civil
Procedure on this the 19th day of May, 2014.
Via Facsimile: (214) 665G0199
Lisa A. Songy
TOLLEFSON BRADLEY MITCHELL & MELENDI, LLP
2811 McKinney Ave., Suite 250 West
Dallas, Texas 75204
Telephone: (214) 66500107
Email: lisas@tbmmlaw.com
/s/ Danny Ray Scott
DANNY RAY SCOTT
Page 6 of 6
CAUSE NO. 272,693-B
ANGELA BROOKS-BROWN, § IN THE DISTRICT COURT OF
§
Plaintiff §
§
v. § BELL COUNTY, TEXAS
§
USAA TEXAS LLOYD’S COMPANY §
§
Defendant §
§ 146TH JUDICIAL DISTRICT
DEFENDANT USAA TEXAS LLOYD’S COMPANY’S
ANSWER AND JURY DEMAND
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant, USAA TEXAS LLOYD’S COMPANY (“USAA”) files this Answer and Jury
Demand as follows:
I.
GENERAL DENIAL
Pursuant to TEXAS RULE OF CIVIL PROCEDURE 92, USAA generally denies the allegations
contained in Plaintiff’s Original Petition and demands strict proof by a preponderance of the
evidence of all Plaintiff’s allegations.
II.
DEFENSES
Policy Defenses
Some or all of Plaintiff’s claims are excluded or limited by applicable policy terms,
conditions, and exclusions of the policy issued to Plaintiff by USAA and in effect on May 12, 2014,
USAA will more specifically identify which particular policy terms, condition and exclusions
USAA’S ANSWER AND JURY DEMAND PAGE 1
exclude or limit some or all of Plaintiff’s claims within a reasonable time after Plaintiff discloses
what specific damage Plaintiff alleges USAA failed to cover.
Payment
Plaintiff’s claims have been fully adjusted and appropriate payment tendered.
Limit of Liability
Plaintiff’s damages, if any, must be limited by the amount set forth in the policy limitations
provisions of the applicable policy.
Failure of Conditions Precedent to Coverage
Pursuant to Rule 54 of the TEXAS RULES OF CIVIL PROCEDURE, USAA specifically denies
that Plaintiff satisfied one or more conditions precedent to recovery. Plaintiff failed to cooperate in
the investigation and settlement of the claim as required by the applicable policy. Cooperation as
required by the contract is a condition precedent to USAA’s obligations under the contract.
Therefore, USAA is excused from performing under the contract. Accordingly, Plaintiff has no
cause of action against USAA for which relief can be granted. Additionally, and in the alternative,
USAA has fully performed any obligations owed to Plaintiff.
Offset and/or Credit
Plaintiff’s damages, if any, must be offset by the amount of applicable policy deductibles.
Further, any award to Plaintiff must be offset by all prior payments tendered by USAA regarding
the claims that form the basis of Plaintiff’s lawsuit and by all payments and credits otherwise
available.
Due Process
To the extent that Plaintiff prays for exemplary damages, USAA invokes its rights under the
due process clause of the Fifth Amendment of the United States Constitution as applied to the states
through the Fourteenth Amendment of the United States Constitution. USAA affirmatively pleads
USAA’S ANSWER AND JURY DEMAND PAGE 2
that Plaintiff’s pleading of exemplary damages is violative of the due process clauses of the Fifth
and Fourteenth Amendments inasmuch as exemplary damages can be assessed:
1. In an amount left to the discretion of the jury and judge;
2. In assessing such penalty or exemplary awards, Plaintiff need only prove the
theory of gross negligence on a “clear and convincing evidence” standard
and not “beyond a reasonable doubt” standard as should be required in
assessing a punishment award;
3. The assessment of such a punishment and/or exemplary award is not based
upon a clearly defined statutory enactment setting forth a specific means
requirement and/or the prerequisites of criminal fine and in effect, allow the
assessment of such awards even though there are no special standards, limits
or other statutory requirements set forth that define the means and scope and
limit of such awards. Therefore, the awards are unduly vague and do not
meet with requirements of due process; and
4. In essence, USAA is subject to all of the hazards and risks of what amounts
to a fine, and in fact, such awards often exceed normal, criminal fines, but
USAA receives none of the basic rights accorded to a criminal USAA when
being subjected to possible criminal penalties.
Equal Protection
To the extent Plaintiff prays for punitive, exemplary, or otherwise enhanced damages, such
request should be denied because it violates the equal protection rights guaranteed by the Fifth and
Fourteenth Amendments to the Constitution of the United States and the provisions of the Eighth
Amendment to the Constitution of the United States.
Punitive Damage Limitation
With respect to Plaintiff’s claims for damages, any award of punitive damages must be
limited to the greater of: (1) two times the amount of economic damages plus an amount equal to
any non-economic damages found by the jury, not to exceed $750,000; or (2) $100,000, pursuant to
the statutory mandates of Chapter 41 of the TEXAS CIVIL PRACTICES AND REMEDIES CODE. USAA
reserves the right to seek a bifurcation of any punitive damage issues at the trial of this case as
permitted by Chapter 41 of the TEXAS CIVIL PRACTICES AND REMEDIES CODE.
USAA’S ANSWER AND JURY DEMAND PAGE 3
Damages Limitation
By way of affirmative defense, if such be necessary, Plaintiff has specifically pled that her
damages do not exceed $74,500 inclusive of damages of any kind, penalties, costs, expenses,
prejudgment interest and attorney’s fees. Thus, pursuant to TEXAS RULE OF CIVIL PROCEDURE
169(b), Plaintiff’s damages are limited as set forth by the statute.
Liability Not “Reasonably Clear”
Under Texas law, an insured bringing an action against its insurer for an alleged breach of a
duty of good faith and fair dealing must carry the burden of proof to establish that the insurer
unreasonably denied or delayed payment of an insurance claim when the insurer’s liability had
become reasonably clear. At all times material to this lawsuit, USAA’s liability was not “reasonably
clear.”
Lack of Written Notice to Trigger the Prompt Payment Statute
Plaintiff’s claims under Section 542 of the TEXAS INSURANCE CODE (“Prompt Payment of
Claims”) are barred, in whole or in part, because Plaintiff did not provide a written notice of claim
reasonably apprising USAA of the facts relating to the claim or delayed in providing such notice.
III.
JURY DEMAND
USAA requests a jury in this case. The jury fee has been paid.
PRAYER
USAA, Defendant, respectfully prays that Angela Brooks-Brown, Plaintiff, take nothing by
reason of her suit herein, and that USAA recover its costs.
USAA’S ANSWER AND JURY DEMAND PAGE 4
Respectfully submitted,
/ s / Lisa A. Songy
Lisa A. Songy
State Bar No. 00793122
lsongy@shannongracey.com
Crystal L. Vogt
State Bar No. 24048768
cvogt@shannongracey.com
SHANNON, GRACEY, RATLIFF & MILLER LLP
Bank of America Plaza
901 Main Street, Suite 4600
Dallas, Texas 75202
Telephone 214.245.3090
Facsimile 214.245.3097
ATTORNEYS FOR DEFENDANT USAA
TEXAS LLOYD’S COMPANY
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of has been served upon counsel of record via
facsimile on this 2nd day of October, 2014.
Danny Ray Scott
danny@scottlawyers.com
Virginia Izaguirre
virginia@scottlawyers.com
Sean M. Patterson
sean@scottlawyers.com
Scott Law Offices
350 Pine Street, Suite 300
Beaumont, Texas 77701
Facsimile 409.833.5405
/ s / Lisa A. Songy
Lisa A. Songy
USAA’S ANSWER AND JURY DEMAND PAGE 5
FILED FOR RECORD
Carolyn L. Guidry
6/8/2015 12:00:00 AM
COUNTY CLERK
JEFFERSON COUNTY
0127771
CAUSE NO. ______________________
0127771
ANGELA BROOKS-BROWN § IN THE COUNTY COURT
§
§
v. § AT LAW NO. 1
§
§
USAA TEXAS LLOYD’S COMPANY § JEFFERSON COUNTY, TEXAS
PLAINTIFF’S ORIGINAL PETITION FOR APPOINTMENT OF APPRAISAL UMPIRE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES ANGELA BROOKS-BROWN (herein after referred to as “Plaintiff”),
complaining of Defendant, USAA TEXAS LLOYD’S COMPANY, (hereinafter referred to as
“USAA”) and hereby respectfully show unto the Court as follows:
DISCOVERY CONTROL PLAN
1. Plaintiff intends for discovery to be conducted under Level 1 of Rule 190 of the
Texas Rules of Civil Procedure.
PARTIES
2. Plaintiff, ANGELA BROOKS-BROWN, is an individual and resident of Bell
County and citizen of the state of Texas.
3. Defendant, USAA TEXAS LLOYD’S COMPANY, hereinafter “USAA,” is a
domestic insurance carrier, incorporated and engaging in the business of insurance in the State
of Texas, and may be served with process by serving its President, Laura M. Bishop, 9800
Fredericksburg Road, San Antonio, Texas 78288.
VENUE
4. Venue is proper in Jefferson County, Texas, because the insurance contract
Page 1 of 4
hj
drafted by the defendant grants the parties the right to petition a judge of a court of record in
the state where the “residence premises” is located to appoint an appraisal umpire.
FACTS
5. Plaintiff is the owner of a homeowner insurance policy, policy number 0242343
40 74 90A, issued by the Defendant (hereinafter referred to as the “Policy”).
6. Plaintiff owned the insured property that is specifically located at
(hereinafter referred to as the “Property”).
7. Defendant or its agent sold the Policy, insuring the property, to Plaintiff.
8. On or about April 4, 2014, Plaintiff’s property sustained fire damage, specifically
to the fence. Plaintiff filed a claim with her insurance company, USAA for the damages to her
property caused by the fire.
9. On or about May 12, 2014, Plaintiff’s property sustained windstorm and hail
damage. Plaintiff’s roof sustained extensive damage during the storm including damage to the
shingles, roof jack, drip edge, chimney and other structural parts of the roof. Plaintiff’s
property also sustained exterior damage to the cornice and siding, dryer vent, windows, fence,
garage door and a/c unit. After the storm, Plaintiff filed a claim with her insurance company,
USAA, for the damages to her home caused by the storm.
10. Plaintiff submitted claims to USAA against the Policy for damage caused to the
property as a result of the fire and the wind and hail. Plaintiff asked USAA to cover the cost of
repairs to the Property pursuant to the Policy and any other available coverages under the
Policy. USAA assigned claim number 024234074-3 to Plaintiff’s fire claim and claim number
024234074-4 to Plaintiff’s wind and hail claim.
Page 2 of 4
11. On March 5, 2015, plaintiff communicated to defendant that plaintiff disagreed
with defendant’s determination of the amount of loss with respect to plaintiff’s insurance claim.
Plaintiff also communicated to defendant that plaintiff wished to invoke the insurance policy’s
appraisal clause.
12. The insurance policy’s appraisal clause states the following: “If you and we fail
to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each
party will choose a competent and impartial appraiser within 20 days after receiving a written
request from the other. The two appraisers will choose an umpire. If they cannot agree upon
an umpire within 15 days, you or we may request that the choice be made by a judge of a court
of record in the state where the “residence premises” is located. The appraisers will separately
set the amount of the loss. If the appraisers submit a written report of an agreement to us, the
amount agreed upon will be the amount of loss. If they fail to agree, they will submit their
differences to the umpire. A decision agreed to by any two will set the amount of loss.”
13. The requisite period of time has expired and the appraisers have not agreed
upon an umpire. Plaintiff therefore requests that this Court select an umpire in accordance with
and as allowed by the policy’s provisions.
PRAYER
14. For these reasons, Plaintiff asks that this Court appoint an umpire for the
insurance appraisal. Plaintiff also asks the Court to issue orders as necessary to validate any
decision the umpire makes and to issue any orders necessary to conclude this matter at the
appropriate time.
Page 3 of 4
Respectfully Submitted,
SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 833-5400
Facsimile: (409) 833-5405
/s/Danny Ray Scott
__________________________
Danny Ray Scott
State Bar No. 24010920
danny@scottlawyers.com
Virginia Izaguirre
State Bar No. 24083230
virginia@scottlawyers.com
Sean M. Patterson
State Bar No. 24073546
sean@scottlawyers.com
Attorneys for Plaintiff
Page 4 of 4
CAUSE NO. 272,693-B
ANGELA BROOKS-BROWN, § IN THE DISTRICT COURT OF
§
Plaintiff §
§
v. § BELL COUNTY, TEXAS
§
USAA TEXAS LLOYD’S COMPANY §
§
Defendant §
§ 146TH JUDICIAL DISTRICT
DEFENDANT USAA TEXAS LLOYD’S COMPANY’S MOTION FOR APPOINTMENT
OF UMPIRE FOR INSURANCE APPRAISAL PROCEEDING
Comes Now, Defendant USAA Texas Lloyd’s Company (“USAA Texas Lloyd’s”), and
respectfully files this Motion for Appointment of Umpire for Insurance Appraisal Proceeding
and in support, respectfully shows the following:
I.
BACKGROUND
A. Plaintiff’s Request for Appraisal.
This is a residential property insurance dispute involving Angela Brooks-Brown
(“Plaintiff”). Plaintiff is the property owner of a home located at
(the “Property”). The Property is alleged to have been damaged by a wind and hail storm
(which occurred on or about May 12, 2014), as well as a fire (which occurred on or about April
4, 2014). See Pltf’s Original Pet. ¶¶ 10, 11.
Plaintiff is the policy holder insured pursuant to the terms of USAA Texas Lloyd’s
homeowner insurance policy number LLYD 02423 40 74 90A (the “Policy”), which was in
effect on the date of losses. See Policy Declaration Page and Appraisal Provision, Ex. A.
DEFENDANT USAA TEXAS LLOYD’S COMPANY’S MOTION FOR APPOINTMENT OF UMPIRE FOR
INSURANCE APPRAISAL PROCEEDING 1
On or about March 5, 2015, Plaintiff invoked her right to an appraisal pursuant to Section
I “Conditions,” Paragraph 8 of the Policy (the “Appraisal Provision”). See Mar. 5, 2015 letter
from Pltf’s counsel, Ex. B. Plaintiff then designated Darrell Quinney to serve as her appraiser on
or about April 20, 2015. See Apr. 20, 2015 letter from Pltf’s counsel, Ex. C. Mr. Quinney’s
company, Loss Solutions, provided the estimate which forms the basis of Plaintiff’s alleged
damages in this lawsuit and has been retained by Plaintiff as a testifying expert. As such, USAA
Texas Lloyd’s objected to Mr. Quinney serving as an appraiser. 1 See Apr. 23, 2015 letter from
USAA Texas Lloyd’s counsel, Ex. D. Nonetheless, in compliance with the Policy, USAA
Texas Lloyd’s designated Mark West as its appraiser. See id.
The appraisers met, inspected the property, and exchanged estimates, but have been
unable to agree upon a scope and pricing with respect to the conditions observed. Both appraisers
inspected the property but they have fundamental disagreements on what constitutes storm
damage and fire damage, as well as the costs to repair same. Thus, an umpire is necessary to
resolve the differences. USAA Texas Lloyd’s now seeks the appointment of a competent and
impartial umpire to complete the appraisal process which was initiated by Plaintiff.
B. The Policy’s Appraisal Provision and Umpire Requirement.
While the parties have chosen their respective appraisers, no umpire has been selected
pursuant to the Policy. Specifically, the relevant portion of the Appraisal Provision provides:
Appraisal. If [Plaintiff] and [USAA Texas Lloyd’s] fail to agree on
the amount of loss, either may demand an appraisal of the loss. In
this event, each party will choose a competent and impartial
appraiser within 20 days of receiving a written request from the
other. The two appraisers will choose an umpire. If they cannot
agree upon an umpire within 15 days, [Plaintiff] or [USAA
Texas Lloyd’s] may request that the choice be made by a judge
1
USAA Texas Lloyd’s reserves it right to challenge whether Mr. Quinney is impartial and competent to serve as an
appraiser, as required by the Policy.
DEFENDANT USAA TEXAS LLOYD’S COMPANY’S MOTION FOR APPOINTMENT OF UMPIRE FOR
INSURANCE APPRAISAL PROCEEDING 2
of a court of the record in the state where the “residence
premises” is located.
***
See Ex. A. (emphasis added).
USAA Texas Lloyd’s appraiser, Mr. West, reached out to Plaintiff’s appraiser numerous
times to discuss the issue. Mr. West has nominated the following umpires2:
Ret. Judge Carolyn Marks Johnson;
Ret. Judge Don Wittig;
Ret. Judge Rick Morris;
Mr. Cecil Parker, I.A.; and
Mr. Jim Beneke, S.P.P.A.
See Apr. 13, 2015 email from Mr. West, Ex. E. Each of Mr. West’s proposed umpires is
competent to handle the matter involved. See, e.g., Curriculum vitae of Ret. Judge Morris, Ex.
F; biography of Ret. Judge Wittig, Ex. G; biography Mr. Beneke, Ex. H. However, to date, no
umpire has been agreed upon by Mr. West and Mr. Quinney. As such, USAA Texas Lloyd’s
now requests that the Court appoint an umpire pursuant to the Policy.
II.
ARGUMENT AND AUTHORITIES
A. A Court-Appointed Umpire is Proper under the Policy and Texas law.
In order for the parties to complete the appraisal process as outlined in the Policy, a court
-appointed umpire is required. The procedures established in the Appraisal Provision are
enforceable and favored under Texas law. See In re Universal Underwriters of Texas Ins. Co.,
345 S.W.3d 404, 406-07 (Tex. 2011) (orig. proceeding). Pursuant to the Appraisal Provision,
2
Mr. West and Mr. Quinney have been designated as appraisers in multiple lawsuits filed by Plaintiff’s counsel in
Bell County, Texas. Mr. West proposed these umpires to Mr. Quinney in all USAA matters in Bell County.
DEFENDANT USAA TEXAS LLOYD’S COMPANY’S MOTION FOR APPOINTMENT OF UMPIRE FOR
INSURANCE APPRAISAL PROCEEDING 3
USAA Texas Lloyd’s and Plaintiff’s appraisers were required to agree upon and select an umpire
by May 8, 2015—i.e., 15 days after the last appraiser was designated, which was on April 23,
2015. See Ex. A. Despite USAA Texas Lloyd’s appraiser’s efforts to reach an agreement with
Plaintiff’s appraiser, the umpire selection process has ended at an impasse. Plaintiff’s appraiser,
Mr. Quinney, rejected every umpire proposed by Mr. West. Therefore, under the unambiguous
language of the Policy, USAA Texas Lloyd’s may now request judicial intervention for the
selection of an umpire. See Ex. A (“If [the appraisers] cannot agree upon an umpire within 15
days, [Plaintiff] or [USAA] may request that the choice be made by a judge…”). As such,
USAA Texas Lloyd’s now seeks to exercise its right under the Policy to have the Court appoint
an umpire and commence the appraisal process.
Additionally, USAA Texas Lloyd’s requests that the Court appoint one of the following
umpires:
Ret. Judge Carolyn Marks Johnson;
Ret. Judge Don Wittig;
Ret. Judge Rick Morris;
Mr. Cecil Parker, I.A.; and
Mr. Jim Beneke P.A.
These individuals were previously nominated by Mr. West and are highly qualified. See,
e.g., Ex. E-H.
III.
CONCLUSION
As shown above, USAA Texas Lloyd’s is entitled to a court-appointed umpire to
commence the appraisal process. The appointment of an umpire is supported by the Policy and
DEFENDANT USAA TEXAS LLOYD’S COMPANY’S MOTION FOR APPOINTMENT OF UMPIRE FOR
INSURANCE APPRAISAL PROCEEDING 4
Texas law. USAA Texas Lloyd’s therefore, respectfully requests that the Court grant this
Motion and appoint either Judge Carolyn Marks Johnson, Judge Don Wittig, Judge Rick Morris,
Mr. Cecil Parker, I.A., or Mr. Jim Beneke, S.P.P.A. as umpire, as well as all other relief the
Court deems just and equitable.
Respectfully submitted,
/s/ Lisa A. Songy
Lisa A. Songy
State Bar No. 00793122
LisaS@tbmmlaw.com
Donnie M. Apodaca, II
State Bar No. 24082632
DonnieA@tbmmlaw.com
TOLLEFSON BRADLEY MITCHELL & MELENDI, LLP
2811 McKinney Avenue, Suite 250 West
Dallas, Texas 75204
(214) 665-0100 Telephone
(214) 665-0199 Facsimile
ATTORNEYS FOR DEFENDANT USAA
TEXAS LLOYD’S COMPANY
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of has been served upon counsel of record via
electronic service and facsimile on this 9th day of June, 2015.
Attorneys for Plaintiff
Danny Ray Scott
danny@scottlawyers.com
Virginia Izaguirre
virginia@scottlawyers.com
Sean M. Patterson
sean@scottlawyers.com
Scott Law Offices
350 Pine Street, Suite 300
Beaumont, Texas 77701
Facsimile 409.833.5405
/ s / Lisa A. Songy
Lisa A. Songy
DEFENDANT USAA TEXAS LLOYD’S COMPANY’S MOTION FOR APPOINTMENT OF UMPIRE FOR
INSURANCE APPRAISAL PROCEEDING 5
EXHIBIT
0901119c9008fad1
0901119c9008fad1
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
RICK MORRIS
Senior District Judge P.O. Box 1163
Mediator and Arbitrator Salado, Texas 76571
Cell: (254) 718-3388
Phone: (254) 947-1023
www.judgerickmorris.com Rick.Morris@JudgeRickMorris.com
JUDICIAL EXPERIENCE
Judicial Judge, 146th Judicial District of Texas 1989 – 2013
Elected six times without opposition. The 146th District Court is a court of general jurisdiction.
Docket consists of one-half of all civil cases, 25% of all domestic relations cases, assistance with
criminal cases, as needed, and the entire Texas Department of Protective and Regulatory Services,
Child Protective Services docket. Presided over civil cases involving personal injury, legal and
medical malpractice, commercial, banking, employment, consumer, real estate, contract,
governmental, products liability, DTPA, all aspects of family law and criminal law.
LEGAL EXPERIENCE
Assistant United States Attorney March, 1989 - May, 1989
U.S. Department of Justice, United States Attorney's Office, Gulf Coast Drug Task Force,
Southern District of Texas.
Private Practice of Law, Killeen Texas May, 1975 - February, 1989
Engaged in private practice of law in Killeen, Texas; general civil practice, with emphasis in later
years on real estate, construction, corporate, banking and general civil litigation. Earlier years of
practice included the above, as well as criminal law and domestic relations.
Licensed to practice law in the State of Texas May, 1975
Admitted to practice in Federal Court, Western District of Texas.
EDUCATION
Juris Doctorate Degree, Baylor University School of Law, Waco, Texas May 1975
Dean's Honor List - Summer and Fall 1974
Bachelor of Business Administration, University of Texas, Austin, Texas December 1972
Major: Finance
Dean's Honor List - Summer 1972
Killeen High School, Killeen, Texas 1969
RICK MORRIS, Senior District Judge
Page 2
PROFESSIONAL AFFILIATIONS, HONORS AND SERVICES
o State Bar of Texas
o Judicial Section, State Bar of Texas
o Arbitrator – JWA Arbitrations (Judicial Workplace Arbitrations, Inc.)
o Alternative Dispute Resolution Section; Family Law Section; Litigation Section;
Consumer and Commercial Law Section
o Local Administrative District Judge, 1995 – 2012 - Bell County District Courts
o Judge, Bell County Drug Court; 2009 to present
o President, Bell County Bar Association, 2009-2010; President–Elect: 2008-2009;
Secretary-Treasurer: 2007-2008; Board of Directors: 2003-2007
o Bell County Public Sector Lawyer of the Year - 2012
o Bell County Public Sector Lawyer of the Year - 2007
o Director, Judicial Section, State Bar of Texas, 2008-2011
o Director, Texas Center for the Judiciary, Inc., 1994-1997
o Texas College of Judicial Studies Graduate – 2004
o Basic Mediation Certification: University of Texas School of Law – Center for Public
Policy Dispute Resolution-2012
o Advanced Family Mediation Training – Alternative Dispute Resolution, Worklife
Institute-2012
o Drug Court Judicial Training, The National Drug Court Institute, National Judicial
College, Reno, NV
o Bell-Lampasas Counties Community Justice Council – 1995 to 2012
o Bell County Juvenile Board – 1989 to 2012
o The College of the State Bar of Texas
o Pre-Trial Judge for 3rd, 6th and 7th Administrative Judicial Regions, 1999-2000, Benlate
cases
o Texas Supreme Court Advisory Committee on Child Support and Visitation Guidelines
(1992-1993)
o Bell-Lampasas-Mills Counties Bar Association (President, 1982; President-Elect, 1981;
Secretary-Treasurer 1979-1980) Board of Directors 2004-2008;
o District 8-C Grievance Committee of the State Bar of Texas (1982-1989)
o Texas Bar Foundation
o Commission Director, Greater Killeen Chamber of Commerce (1984-1987);
Vice-President (1987)
o Selective Service Commission (1987-1989)
SPEECHES AND ARTICLES
o An Evening with the Judges, 1999 – “What judges look for in Motions & Briefs”;
“Common Mistakes of Lawyers”
o Fall Bench Bar Conference, 2002 – “Court’s Charge Update”
o Fall Bench Bar Conference, 2007 – “Civil Legislation Update”
o Law Office 101, 2008 – “Practice in the District Courts”
o Spring Bench Bar – 2009;; “DWOP’s, Motions to Withdraw and Discovery Control Plans”
PERSONAL INFORMATION
Born: September 20, 1950, Killeen, Texas
Married: July 16, 1971
Spouse: Karen Boydstun Morris;
University of Mary-Hardin Baylor graduate; teacher, Harker Heights High School
Two children and four grandchildren
Hobbies: Fly Fishing and Golf
EXHIBIT
Don Wittig Page 1 of 2
WELCOME APPOINTMENTS LEO C. SALZMAN DON WITTIG
CHARL E WILLETTE FEE SCHEDULE DIRECTIONS CONTACT US
LEGAL EXPERIENCE
- 37 years trial and appellate experience as advocate and judge including:
- 3 years as Justice, 14th Court of Appeals
- 11 years as Judge, 125th District Court
- 23 years as trial lawyer including 3 years in United States Marine Corps
LEGAL EDUCATION
- United States Naval Academy, 1960, 1961
- B A , with Honors, St Mary's University, 1963
- J D , The School of Law, St Mary's University, 1965
- United States Naval Justice School, with Honors
- Post Graduate Studies: Economics (33 hours); Theology (12 hours); Judicial Studies
(15 hours); and Advanced studies in Mediation and Arbitration
PROFESSIONAL ACTIVITIES
- A B A Certified Mediator/Arbitrator, 2001 to present
- Senior Appellate Justice, over five years combined service on 14th, 13th, 12th, 10th,
9th, 8th, and 3rd Courts of Appeals
- Senior State District Judge, eleven years service on 125th District Court
- Twenty two years trial practice
- First State District Judge in Texas to be Double Board Certified
- Former Deputy Chief Prosecutor, First Marine Division, RVN
HONORS
- Joe C Bettencourt Award, Best All Around Student
- Associate Editor, The Paduan
- Editor in-Chief, St Mary's University School of Law, Barrister News
- Author of over 500 Texas Appellate Opinions
http://www.leosalzman.com/Don_Wittig.html 5/20/2015
Don Wittig Page 2 of 2
- Author and Speaker on Multiple CLE Presentations
- Author: One Hundred and Two Ways to Survive Big City Life
- Pi Gamma Mu, National Honor Society in Government
- Omicron Dela Epsilon, National Honor Society in Economics
- Who's Who in American Law
- Navy Achievement Medal with Combat "V"
CONTENT COPYRIGHT 2015. LEO C. SALZMAN. ALL RIGHTS RESERVED.
http://www.leosalzman.com/Don_Wittig.html 5/20/2015
EXHIBIT
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CAUSE NO. 272,693-B
ANGELA BROOKS-BROWN, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § BELL COUNTY, TEXAS
§
USAA TEXAS LLOYD’S COMPANY §
§
Defendant. § 146TH JUDICIAL DISTRICT
DEFENDANT USAA TEXAS LLOYD’S COMPANY’S
VERIFIED APPLICATION FOR TEMPORARY INJUNCTION AGAINST PLAINTIFF
Comes Now, Defendant USAA Texas Lloyd’s Company (“USAA Texas Lloyd’s”), and
files this, its Verified Application for Temporary Injunction against Plaintiff Angela Brooks-
Brown (“Brooks-Brown”), and respectfully shows the Court as follows:
A. PARTIES
1. Plaintiff is Angela Brooks-Brown. Brooks-Brown is a resident of Bell County, Texas
and a citizen of the State of Texas. Brooks-Brown has appeared in this matter through
her counsel of record.
2. Defendant is USAA Texas Lloyd’s Company. Defendant has appeared in this matter
through its counsel of record.
B. JURISDICTION & VENUE
3. Jurisdiction exists and venue is proper because:
a. Brooks-Brown filed the underlying lawsuit in this Court;
DEFENDANT USAA TEXAS LLOYD’S COMPANY’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF 1
b. No order of dismissal has been signed by this Court;
c. The Court’s plenary power has not expired;
d. Prior to a final judgment, a trial court, in the exercise of its plenary power, can
issue an anti-suit injunction;
e. The Court has dominant jurisdiction for the appointment of an umpire;
f. The property in question (located at 707 Aries Ave., Killeen, Texas 76542) is in
Bell County, Texas (the “Property”);
g. A substantial part of the events or omissions giving rise to this claim occurred in
Bell County, Texas; and
h. The appraisal at issue is occurring in Bell County, Texas.
C. FACTS
4. On or about September 11, 2014, Brooks-Brown filed the underlying insurance lawsuit
seeking damages from USAA Texas Lloyd’s.
5. Brooks-Brown’s lawsuit generally alleges the following:
a. Brooks-Brown is the owner of a homeowner insurance policy, policy number
0242343 40 74 90A (the “Policy”);
b. Brooks-Brown owned the insured property that is specifically located at
;
c. On or about April 4, 2014, the Property sustained fire damage. Brooks-Brown
filed a claim with USAA Texas Lloyd’s related to this fire;
d. On or about May 12, 2014, the Property sustained windstorm and hail damage.
Brooks-Brown filed a claim with USAA Texas Lloyd’s related to this occurrence;
DEFENDANT USAA TEXAS LLOYD’S COMPANY’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF 2
e. Brooks-Brown’s property damage is covered by the Policy; and
f. USAA Texas Lloyd’s has not properly calculated the amount owed Plaintiff under
the Policy.
6. The Policy at issue has an appraisal clause, which provides, in part, as follows:
DEFENDANT USAA TEXAS LLOYD’S COMPANY’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF 3
See Plaintiff’s Insurance Policy, Ex. A.
7. On or about March 5, 2015, Brooks-Brown invoked her right to an appraisal pursuant to
Section I “Conditions,” Paragraph 8 of the Policy. See Ex. B.
8. Brooks-Brown then designated Darrell Quinney to serve as her appraiser on or about
April 20, 2015. Mr. Quinney’s company, Loss Solutions, provided the estimate which
forms the basis of Brooks-Brown’s alleged damages in this lawsuit and has been retained
by Brooks-Brown as a testifying expert. As such, USAA Texas Lloyd’s objected to Mr.
Quinney serving as an appraiser. See Ex. C.
9. Nonetheless, in compliance with the Policy, USAA Texas Lloyd’s designated Mark West
as its appraiser. See Ex. D.
10. The appraisers met, inspected the property, and exchanged estimates, but have been
DEFENDANT USAA TEXAS LLOYD’S COMPANY’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF 4
unable to agree upon a scope and pricing with respect to the conditions observed.
Further, the appraisers exchanged names of potential umpires but have been unable to
agree on an umpire to resolve their differing opinions regarding the scope and pricing for
repairs to the property.
11. On or about June 9, 2015, pursuant to the Policy, USAA Texas Lloyd’s filed a Motion for
Appointment of Umpire for Insurance Appraisal Proceeding.
12. Brooks-Brown filed a Notice of Non-Suit without Prejudice in the above-referenced
lawsuit on June 8, 2015.
13. Brooks-Brown then filed a new lawsuit in Jefferson County regarding the same parties
and subject matter as this lawsuit. See Ex. E.
14. Jefferson County is not a proper venue under the Texas venue provisions or the Policy.
15. Upon information and belief, this Court has not signed a dismissal order.
16. Upon information and belief, this Court’s plenary power has not expired.
17. USAA Texas Lloyd’s attaches an affidavit as Exhibit F that proves the allegations in this
application for injunctive relief and incorporates it by reference.
D. APPLICATION FOR TEMPORARY INJUNCTION
18. USAA Texas Lloyd’s application for a temporary injunction is authorized by Texas law.
19. USAA Texas Lloyd’s asks the court to enjoin Brooks-Brown and Brooks-Brown’s
counsel from seeking the appointment of an umpire from any other court and from
proceeding any further with an umpire appointed by another court.
20. The appraisal will set the amount of damages subject to the terms and conditions of the
policy after this Court appoints an umpire.
DEFENDANT USAA TEXAS LLOYD’S COMPANY’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF 5
21. If USAA Texas Lloyd’s application is not granted, harm is imminent because USAA
Texas Lloyd’s will have to appear and respond in a mirror lawsuit and there is the risk of
two umpires being appointed in two different courts (one of which is not a proper venue).
22. The harm that will result if the temporary injunction is not issued is irreparable.
23. Additionally, by filing her Jefferson County Lawsuit and seeking relief which is outside
of the terms of the Policy, Brooks-Brown has breached the Policy.
24. This anti-suit injunction is appropriate for the following reasons:
a. the Jefferson County court is a threat to this Court's jurisdiction and final
judgments;
b. public policy (and the Texas venue statutes) requires that umpires be appointed by
judges sitting in the same county as the insured property;
c. To prevent a multiplicity of court appointed umpires and court proceedings; and
d. To protect USAA Texas Lloyd’s from Brooks-Brown’s vexatious and harassing
litigation.
25. Additionally, this Court has dominant jurisdiction because appraisal was first invoked in
this lawsuit in Bell County, Texas, and appraisal has been proceeding within the confines
of this lawsuit.
26. USAA Texas Lloyd’s has no adequate remedy at law.
27. USAA Texas Lloyd’s is willing to post bond.
DEFENDANT USAA TEXAS LLOYD’S COMPANY’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF 6
E. REQUEST FOR TEMPORARY INJUNCTION
28. USAA Texas Lloyd’s asks this Court to set its application for temporary injunction for a
hearing and, after the hearing, issue a temporary injunction against Brooks-Brown.
29. USAA Texas Lloyd’s has joined all indispensable parties under Texas Rule of Civil
Procedure 39.
F. PRAYER
30. For these reasons, USAA Texas Lloyd’s asks that Brooks-Brown be cited to appear and
answer and, on final trial, that USAA Texas Lloyd’s be awarded a judgment against
Brooks-Brown for a temporary injunction and all other relief to which USAA Texas
Lloyd’s is entitled.
Respectfully submitted,
/s/ Lisa A. Songy
Lisa A. Songy
State Bar No. 00793122
LisaS@tbmmlaw.com
Donnie M. Apodaca, II
State Bar No. 24082632
DonnieA@tbmmlaw.com
TOLLEFSON BRADLEY MITCHELL & MELENDI, LLP
2811 McKinney Avenue, Suite 250 West
Dallas, Texas 75204
(214) 665-0100 Telephone
(214) 665-0199 Facsimile
ATTORNEYS FOR DEFENDANT USAA
TEXAS LLOYD’S COMPANY
DEFENDANT USAA TEXAS LLOYD’S COMPANY’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF 7
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of has been served upon counsel of record via
electronic service and facsimile on this 26th day of June, 2015.
Attorneys for Plaintiff
Danny Ray Scott
danny@scottlawyers.com
Virginia Izaguirre
virginia@scottlawyers.com
Sean M. Patterson
sean@scottlawyers.com
Scott Law Offices
350 Pine Street, Suite 300
Beaumont, Texas 77701
Facsimile 409.833.5405
/ s / Lisa A. Songy
Lisa A. Songy
DEFENDANT USAA TEXAS LLOYD’S COMPANY’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF 9
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
STATE OF TEXAS §
COUNTY OF DALLAS §
AFFIDAVIT OF LISA SONGY
BEFORE ME, the undersigned authority, on this day personally appeared Lisa Songy,
who swore and affirmed to tell the truth and stated as follows:
1. “My Name is Lisa Songy. I am over the age of 18 years and of sound mind and
capable of making this sworn statement. I have personal knowledge of the facts written in this
statement, and these statements are true and correct.
2. I am counsel of record for USAA Texas Lloyd’s in this matter.
3. Danny Ray Scott, Jr. represents Angela Brooks-Brown in the following lawsuits:
(1) Angela Brooks-Brown v. USAA Texas Lloyd’s Company; Cause No. 272,693-
B; In the 146th Judicial District Court Bell County, Texas; and
(2) Angela Brooks-Brown v. USAA Texas Lloyd’s Company; Cause No. 0127771;
In the County Court at Law No. 1, Jefferson County, Texas.
4. According to the file-stamped copy of Plaintiff’s Original Petition, Angela
Brooks-Brown filed her first lawsuit (the “Bell County Lawsuit”) on September 11, 2014. A true
and correct copy of the Original Petition filed in the Bell County Lawsuit is attached hereto as
Exhibit A.
5. According to the file-stamped copy Plaintiff’s Original Petition for Appointment
of Umpire, Angela Brooks-Brown filed her second lawsuit (the “Jefferson County Lawsuit”) on
June 8, 2015. A true and correct copy of the Jefferson County Lawsuit is attached hereto as
Exhibit B.
6. Both lawsuits involve Angela Brooks-Brown’s residence, which is located at
1
. Further, both lawsuits concern the occurrence of two events.
The first event was a fire, which Angela Brooks-Brown alleges occurred on April 4, 2014. The
Second event was a wind and hailstorm, which Angela Brooks-Brown alleges occurred on May
12, 2014.
7. On or about March 5, 2015, I received a letter from Danny Ray Scott, Jr.,
invoking the Appraisal Provision of Angela Brooks-Brown’s homeowner insurance, Policy
Number LLYD 02423 40 74 90A (the “Policy”). A true and correct copy of the letter is attached
hereto as Exhibit C.
8. On or about April 20, 2015, I received a letter from Danny Ray Scott, Jr.’s
Paralegal, Jo Ann Haynes, designating Darrell Quinney of Loss Solutions as Angela Brooks-
Browns’ appraiser for the insurance appraisal proceeding. A true and correct copy of the letter is
attached hereto as Exhibit D.
9. On or about April 23, 2015, I sent Danny Ray Scott Jr. a letter objecting to his use
of Darrell Quinney as an appraiser and designating Mark West as USAA Texas Lloyd’s
Company’s appraiser for the insurance appraisal proceeding. A true and correct copy of the
letter is attached hereto as Exhibit E.
10. Mark West and Darrell Quinney have been unable to agree on an umpire for the
insurance appraisal proceeding.
11. On or about June 9, 2015, on behalf of USAA Texas Lloyd’s Company, I filed a
Motion for Appointment of Umpire for Insurance Appraisal Proceeding because the appraisers
were unable to agree on an umpire.
12. On or about June 10, 2015, I received a letter from Danny Ray Scott, Jr.
demanding that I withdraw the Motion for Appointment of Umpire for Insurance Appraisal
2
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
EXHIBIT
Filed 7/9/2015 3:07:09 PM
Joanna Staton, District Clerk
District Court - Bell County, TX
/s/ Bonnie Sather
CAUSE NO. 272,6930B
ANGELA BROOKS0BROWN § IN THE DISTRICT COURT
§
v. § 146TH JUDICIAL DISTRICT
§
USAA TEXAS LLOYD’S COMPANY § BELL COUNTY, TEXAS
PLAINTIFF’S PLEA IN ABATEMENT TO DEFENDANT’S MOTION FOR APPOINTMENT
OF UMPIRE FOR INSURANCE APPRAISAL PROCEEDING
Plaintiff, Angela Brooks0Brown, asks the Court to abate defendant USAA Texas Lloyd’s
Company’s motion for appointment of umpire for insurance appraisal proceeding because the
matter is already pending in another forum.
INTRODUCTION & BACKGROUND
1. Plaintiff, Angela Brooks0Brown, sued defendant, USAA Texas Lloyd’s Company
(“USAA”), for breach of contract, violations of the Texas Insurance Code, violation of the Texas
Deceptive Trade Practices Act, and common law fraud.
2. On March 5, 2015, plaintiff invoked the insurance policy’s appraisal provision and
notified defendant in accordance with the policy’s requirements. See Exhibit A. On June 6, 2015,
plaintiff’s counsel filed a notice of nonsuit of all of plaintiff’s claims. See Exhibits B and C.
3. The contract of insurance that governs plaintiff’s claim is a contract that defendant USAA
Texas Lloyd’s Company unilaterally drafted and sold to plaintiff. In this insurance contract, USAA
Texas Lloyd’s Company granted express permission to plaintiff to ask any judge in the state of
Texas to appoint an umpire in the appraisal proceeding. See Exhibit D (Bates No. UTLC000110).
4. On June 6, 2015, plaintiff’s counsel filed a petition in Jefferson County, Texas asking a
Jefferson County judge to appoint an umpire in the appraisal. See Exhibits E and F. Although
FWD TO CC 7/10/15 7/10/2015
Page 1 of 5
plaintiff filed the petition on Saturday, June 6, 2015, the clerk did not file stamp the document until
midnight on June 8, 2015. Id. Simultaneously with the filing of the petition, plaintiff asked the
Jefferson County Clerk to serve USAA Texas Lloyd’s Company with the petition and plaintiff paid
the fees associated with that request. See Exhibit E. After plaintiff filed the petition in Jefferson
County asking a court to appoint an appraisal umpire, on June 8, 2015, defendant filed its motion
in this Court asking the court to appoint an umpire for appraisal. See Defendant’s Motion.
ARGUMENT & AUTHORITIES
A. THE COURT SHOULD ABATE DEFENDANT’S MOTION BECAUSE THE JEFFERSON COUNTY COURT
HAS DOMINANT JURISDICTION
5. The Court should abate defendant’s motion because plaintiff has already filed a petition
in Jefferson County, Texas asking a court to appoint an appraisal umpire, giving that court
dominant jurisdiction. Dominant jurisdiction belongs to the first court in which suit is properly
filed. In re Puig, 351 S.W.3d 301, 305 (Tex. 2011); Wyatt v Shaw Plumbling Co., 760 S.W.2d 245, 248
(Tex. 1988). When the subject matter of two suits is inherently interrelated, the court where the
second suit was filed must grant a motion to abate. In re Puig, 351 S.W.3d at 3050306. Any
subsequent suit involving the same parties and the same controversy must be dismissed if a party
to that suit calls the second courtfs attention to the pendency of the prior suit by a plea in
abatement. In re Sims, 88 S.W.3d 297, 302 (Tex. App.—San Antonio 2002, no pet.).
6. In State Farm Lloyds v. Johnson and Gilbert Texas Construction v Underwriters at Lloyds, the
Supreme Court of Texas emphasizes the contractual nature of the appraisal right. See State Farm
Lloyds v. Johnson, 290 S.W.3d 886 (Tex. 2009); Gilbert Texas Const., L.P. v. Underwriters at LloydCs
London, 327 S.W.3d 118, 126 (Tex. 2010). The Court states, “The principles courts use when
Page 2 of 5
interpreting an insurance policy are well established. Those principles include construing the
policy according to general rules of contract construction to ascertain the partiesf intent. First, we
look at the language of the policy because we presume parties intend what the words of their
contract say.” Gilbert Texas Const., L.P. v. Underwriters at LloydCs London, 327 S.W.3d at 895. The
Court urges courts to honor the partiesf agreement and not remake their contract by reading
additional provisions into it. Id. Like any other contractual provision, appraisal clauses should be
enforced. State Farm Lloyds v. Johnson, 290 S.W.3d at 895.
7. Defendant, USAA Texas Lloyd’s Company drafted and granted plaintiff express
permission to ask any judge of a court of record in the state where the “residence premises” is
located to appoint an appraisal umpire. Specifically, the insurance policy’s appraisal clause
states the following: “If you and we fail to agree on the amount of loss, either may demand an
appraisal of the loss. In this event, each party will choose a competent and impartial appraiser
within 20 days after receiving a written request from the other. The two appraisers will choose
an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the
choice be made by a judge of a court of record in the state where the “residence premises” is
located. See Exhibit D (Bates No. UTLC000110).
8. Exercising this right granted to plaintiff by defendant, on June 6, 2015, plaintiff’s
counsel filed a petition in Jefferson County, Texas asking a Jefferson County judge to appoint an
umpire in the appraisal. Later, on June 8 2015, defendant filed a motion in this Court to appoint an
appraisal umpire. Since plaintiff has previously asked a Jefferson County court to appoint an
appraisal umpire, the Jefferson County court has dominant jurisdiction over the issue of the
appointment of an appraisal umpire. The policy, written by defendant, expressly grants plaintiff
Page 3 of 5
the right to ask any court in this state to appoint an umpire for appraisal. As a court notes, Texas
does not have a statue that exclusively vest jurisdiction to appoint an appraisal umpire in the
county where the loss occurred. Fire AssCn of Philadelphia v. Ballard, 112 S.W.2d 532, 534 (Tex.
App.— Waco 1938, no pet.).
CONCLUSION
9. Plaintiff has filed a petition in Jefferson County asking the court to appoint an umpire
for appraisal. Defendant expressly granted plaintiff the right to ask any court in the state to
appoint an appraisal umpire. Since plaintiff requested a court in Jefferson County to appoint an
umpire before defendant, the Jefferson County court has dominant jurisdiction.
PRAYER
10. For these reasons, plaintiff asks the Court, after a hearing, to abate defendant’s motion
for appointment of an appraisal umpire.
Respectfully submitted,
SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 83305400
Facsimile: (409) 83305405
/s/Danny Ray Scott
__________________________
DANNY RAY SCOTT
State Bar No. 24010920
danny@scottlawyers.com
VIRGINIA IZAGUIRRE
State Bar No. 24083230
virginia@scottlawyers.com
SEAN M. PATTERSON
Page 4 of 5
State Bar No. 24073546
sean@scottlawyers.com
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing has been served on
all counsel of record in accordance with the Texas Rules of Civil Procedure on July 9, 2015.
/s/ Danny Ray Scott
DANNY RAY SCOTT
Page 5 of 5
Filed 6/8/2015 12:00:00 AM
Joanna Staton, District Clerk
District Court - Bell County, TX
by Bonnie Sather , Deputy
CAUSE NO. 272,693-B
ANGELA BROOKS-BROWN § IN THE DISTRICT COURT
§
§
v. § 146th JUDICIAL DISTRICT
§
§
USAA TEXAS LLOYD’S COMPANY § BELL COUNTY, TEXAS
PLAINTIFF’S NOTICE OF NON-SUIT WITHOUT PREJUDICE
Plaintiff, Angela Brooks-Brown, files this Notice of Non-suit without Prejudice.
At this time, Plaintiff does not desire to pursue the claims in this cause against
Defendant USAA Texas Lloyd’s Company. Texas Rule of Civil Procedure 162 provides that “at
any time before the plaintiff has introduced all of its evidence…, the plaintiff may dismiss a
case, or take a non-suit, which shall be entered in the minutes. Notice of the dismissal or non-
suit shall be served…without necessity of court order.” Plaintiff hereby exercises the right to
non-suit USAA Texas Lloyd’s Company without prejudice from the claims asserted in this
specific case.
For these reasons, Plaintiff hereby nonsuits plaintiff’s claims against defendant USAA
Texas Lloyd’s Company without prejudice to the refiling of plaintiff’s claims at a later date.
6/8/2015
Page 1 of 2
FWD TO CC 6/8/15
Respectfully submitted,
SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 833-5400
Facsimile: (409) 833-5405
/s/ Danny Ray Scott
DANNY RAY SCOTT
State Bar No. 24010920
VIRGINIA IZAGUIRRE
State Bar No. 24083230
SEAN M. PATTERSON
State Bar No. 24073546
ATTORNEYS FOR PLAINTIFF
Page 2 of 2
7/4/2015 ProDoc® eFiling 2 - Filing Details
Petition
Filing Fees Filing Information
Copies -­ Service ($1.00 x 4) $4.00 Current Status: accepted
Issue Citation -­ Certified Mail $4.00 Accepted Date/Time: 6/8/2015 8:18:26 AM
Service -­ Constable -­ All Other $65.00 Filing Description: Petition to Appoint Appraisal Umpire
Total Filing Fees: $73.00 Reference Number: Angela Brooks-­Brown
Comments for Clerk:
Document Information
Document(s) Filed:
Lead Document:
Original -­ Angela Brooks-­Brown Pet to Appoint Umpire.docx.pdf [Exhibit -­ Angela Brooks-­Brown Petition
Document Description:
Contains sensitive data] to Appoint Umpire.pdf
Transmitted -­ Angela Brooks-­Brown Pet to Appoint Umpire.docx.pdf Angela Brooks-­Brown Petition
Document Description:
[Exhibit -­ Contains sensitive data] to Appoint Umpire.pdf
Attachments:
Angela Brooks-­Brown Cover sheet.pdf [Exhibit -­ Contains sensitive Angela Brooks-­Brown
Document Description:
data] Cover_sheet.pdf
Transmitted -­ Angela Brooks-­Brown Cover sheet.pdf [Exhibit -­ Contains Transmitted -­ Angela Brooks-­
Document Description:
sensitive data] Brown Cover_sheet.pdf
-­
This site and all contents Copyright ©2003-­2015 Thomson Reuters. All rights reserved.
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FILED FOR RECORD
Carolyn L. Guidry
6/8/2015 12:00:00 AM
COUNTY CLERK
JEFFERSON COUNTY
0127771
CAUSE NO. ______________________
0127771
ANGELA BROOKS-BROWN § IN THE COUNTY COURT
§
§
v. § AT LAW NO. 1
§
§
USAA TEXAS LLOYD’S COMPANY § JEFFERSON COUNTY, TEXAS
PLAINTIFF’S ORIGINAL PETITION FOR APPOINTMENT OF APPRAISAL UMPIRE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES ANGELA BROOKS-BROWN (herein after referred to as “Plaintiff”),
complaining of Defendant, USAA TEXAS LLOYD’S COMPANY, (hereinafter referred to as
“USAA”) and hereby respectfully show unto the Court as follows:
DISCOVERY CONTROL PLAN
1. Plaintiff intends for discovery to be conducted under Level 1 of Rule 190 of the
Texas Rules of Civil Procedure.
PARTIES
2. Plaintiff, ANGELA BROOKS-BROWN, is an individual and resident of Bell
County and citizen of the state of Texas.
3. Defendant, USAA TEXAS LLOYD’S COMPANY, hereinafter “USAA,” is a
domestic insurance carrier, incorporated and engaging in the business of insurance in the State
of Texas, and may be served with process by serving its President, Laura M. Bishop, 9800
Fredericksburg Road, San Antonio, Texas 78288.
VENUE
4. Venue is proper in Jefferson County, Texas, because the insurance contract
Page 1 of 4
hj
drafted by the defendant grants the parties the right to petition a judge of a court of record in
the state where the “residence premises” is located to appoint an appraisal umpire.
FACTS
5. Plaintiff is the owner of a homeowner insurance policy, policy number 0242343
40 74 90A, issued by the Defendant (hereinafter referred to as the “Policy”).
6. Plaintiff owned the insured property that is specifically located at
(hereinafter referred to as the “Property”).
7. Defendant or its agent sold the Policy, insuring the property, to Plaintiff.
8. On or about April 4, 2014, Plaintiff’s property sustained fire damage, specifically
to the fence. Plaintiff filed a claim with her insurance company, USAA for the damages to her
property caused by the fire.
9. On or about May 12, 2014, Plaintiff’s property sustained windstorm and hail
damage. Plaintiff’s roof sustained extensive damage during the storm including damage to the
shingles, roof jack, drip edge, chimney and other structural parts of the roof. Plaintiff’s
property also sustained exterior damage to the cornice and siding, dryer vent, windows, fence,
garage door and a/c unit. After the storm, Plaintiff filed a claim with her insurance company,
USAA, for the damages to her home caused by the storm.
10. Plaintiff submitted claims to USAA against the Policy for damage caused to the
property as a result of the fire and the wind and hail. Plaintiff asked USAA to cover the cost of
repairs to the Property pursuant to the Policy and any other available coverages under the
Policy. USAA assigned claim number 024234074-3 to Plaintiff’s fire claim and claim number
024234074-4 to Plaintiff’s wind and hail claim.
Page 2 of 4
11. On March 5, 2015, plaintiff communicated to defendant that plaintiff disagreed
with defendant’s determination of the amount of loss with respect to plaintiff’s insurance claim.
Plaintiff also communicated to defendant that plaintiff wished to invoke the insurance policy’s
appraisal clause.
12. The insurance policy’s appraisal clause states the following: “If you and we fail
to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each
party will choose a competent and impartial appraiser within 20 days after receiving a written
request from the other. The two appraisers will choose an umpire. If they cannot agree upon
an umpire within 15 days, you or we may request that the choice be made by a judge of a court
of record in the state where the “residence premises” is located. The appraisers will separately
set the amount of the loss. If the appraisers submit a written report of an agreement to us, the
amount agreed upon will be the amount of loss. If they fail to agree, they will submit their
differences to the umpire. A decision agreed to by any two will set the amount of loss.”
13. The requisite period of time has expired and the appraisers have not agreed
upon an umpire. Plaintiff therefore requests that this Court select an umpire in accordance with
and as allowed by the policy’s provisions.
PRAYER
14. For these reasons, Plaintiff asks that this Court appoint an umpire for the
insurance appraisal. Plaintiff also asks the Court to issue orders as necessary to validate any
decision the umpire makes and to issue any orders necessary to conclude this matter at the
appropriate time.
Page 3 of 4
Respectfully Submitted,
SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 833-5400
Facsimile: (409) 833-5405
/s/Danny Ray Scott
__________________________
Danny Ray Scott
State Bar No. 24010920
danny@scottlawyers.com
Virginia Izaguirre
State Bar No. 24083230
virginia@scottlawyers.com
Sean M. Patterson
State Bar No. 24073546
sean@scottlawyers.com
Attorneys for Plaintiff
Page 4 of 4
Filed 7/9/2015 2:57:10 PM
Joanna Staton, District Clerk
District Court - Bell County, TX
/s/ Melissa Wallace
CAUSE NO. 272,6930B
ANGELA BROOKS0BROWN § IN THE DISTRICT COURT
§
v. § 146TH JUDICIAL DISTRICT
§
USAA TEXAS LLOYD’S COMPANY § BELL COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO DEFENDANT’S VERIFIED APPLICATION FOR TEMPORARY
INJUNCTION AGAINST PLAINTIFF
Plaintiff, Angela Brooks0Brown, asks the Court to deny defendant USAA Texas Lloyd’s
Company’s application for temporary injunction against plaintiff because defendant has failed to
show it has a right to the relief sought.
INTRODUCTION & BACKGROUND
1. Plaintiff, Angela Brooks0Brown, sued defendant, USAA Texas Lloyd’s Company
(“USAA”), for breach of contract, violations of the Texas Insurance Code, violation of the Texas
Deceptive Trade Practices Act, and common law fraud.
2. On March 5, 2015, plaintiff invoked the insurance policy’s appraisal provision and
notified defendant in accordance with the policy’s requirements. See Exhibit A. On June 6, 2015,
plaintiff’s counsel filed a notice of nonsuit of all of plaintiff’s claims. See Exhibits B and C.
3. The contract of insurance that governs plaintiff’s claim is a contract that defendant USAA
Texas Lloyd’s Company unilaterally drafted and sold to plaintiff. In this insurance contract, USAA
Texas Lloyd’s Company granted express permission to plaintiff to ask any judge in the state of
Texas to appoint an umpire in the appraisal proceeding. See Exhibit D (Bates No. UTLC000110).
4. On June 6, 2015, plaintiff’s counsel filed a petition in Jefferson County, Texas asking a
Jefferson County judge to appoint an umpire in the appraisal. See Exhibits E and F. Although
Page 1 of 7
plaintiff filed the petition on Saturday, June 6, 2015, the clerk did not file stamp the document until
midnight on June 8, 2015. Id. Simultaneously with the filing of the petition, plaintiff asked the
Jefferson County Clerk to serve USAA Texas Lloyd’s Company with the petition and plaintiff paid
the fees associated with that request. See Exhibit E. After plaintiff filed the petition in Jefferson
County asking a court to appoint an appraisal umpire, on June 8, 2015, defendant filed its motion
in this Court asking the court to appoint an umpire for appraisal. See Defendant’s Motion for
Appointment Umpire for Insurance Appraisal Proceeding. Now defendant files an application for
temporary injunction against plaintiff, asking this Court to restrict plaintiff from exercising the
contractual right defendant expressly granted to plaintiff.
ARGUMENT & AUTHORITIES
5. The purpose of a temporary injunction is to preserve the status quo of the litigationes
subject matter pending a trial on the merits. Butnari v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.
2002). A temporary injunction is an extraordinary remedy and does not issue as a matter of
right. Id. An applicant for temporary injunction must plead and prove (1) a cause of action
against the defendant, (2) a probable right to the relief sought, and (3) a probable, imminent,
and irreparable injury in the interim. Id. An injury is irreparable if the injured party cannot be
compensated adequately in damages or if the damages cannot be measured by any certain
pecuniary standard. Id. To demonstrate probable injury or harm, an applicant must show an
injury for which there can be no real legal measure of damages or none that can be determined
with a sufficient degree of certainty. Marketshare Telecom, L.L.C. v. Ericsson, Inc., 198 S.W.3d 908,
9250926 (Tex. App.0Dallas 2006, no pet.). At a temporary injunction hearing, the trial court
considers whether the applicant has shown a probability of success and irreparable injury. Id. at
Page 2 of 7
922. Defendant’s application should be denied because defendant has failed to show it has a
right to the relief sought.
A. Defendant Expressly Granted Plaintiff the Right to Request a Jefferson County Judge to
Appoint an Umpire for the Appraisal Process.
6. Plaintiff has a contractual right to request a Jefferson County judge to appoint an
umpire. Defendant, USAA Texas Lloyd’s Company drafted and granted plaintiff express
permission to ask any judge of a court of record in the state where the “residence premises” is
located to appoint an appraisal umpire. Specifically, the insurance policy’s appraisal clause
states the following: “If you and we fail to agree on the amount of loss, either may demand an
appraisal of the loss. In this event, each party will choose a competent and impartial appraiser
within 20 days after receiving a written request from the other. The two appraisers will choose
an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the
choice be made by a judge of a court of record in the state where the “residence premises” is
located. See Exhibit D (Bates No. UTLC000110). Exercising this right granted to plaintiff by
defendant, on June 6, 2015, plaintiff’s counsel filed a petition in Jefferson County, Texas asking a
Jefferson County judge to appoint an umpire in the appraisal.
7. In State Farm Lloyds v. Johnson and Gilbert Texas Construction v Underwriters at Lloyds, the
Supreme Court of Texas emphasizes the contractual nature of the appraisal right. See State Farm
Lloyds v. Johnson, 290 S.W.3d 886 (Tex. 2009); Gilbert Texas Const., L.P. v. Underwriters at LloydEs
London, 327 S.W.3d 118, 126 (Tex. 2010). The Court states, “The principles courts use when
interpreting an insurance policy are well established. Those principles include construing the
policy according to general rules of contract construction to ascertain the partiese intent. First, we
Page 3 of 7
look at the language of the policy because we presume parties intend what the words of their
contract say.” Gilbert Texas Const., L.P. v. Underwriters at LloydEs London, 327 S.W.3d at 895. The
Court urges courts to honor the partiese agreement and not remake their contract by reading
additional provisions into it. Id. Like any other contractual provision, appraisal clauses should be
enforced. State Farm Lloyds v. Johnson, 290 S.W.3d at 895.
8. Because the insurance contract was drafted by USAA provided express contractual
language authorizing plaintiff to ask a judge in Jefferson County to appoint an umpire, plaintiff
has the contractual authority to request a judge in Jefferson County to appoint an umpire.
Defendant has not produced any evidence that plaintiff waived this contractual right.
B. Dominant Jurisdiction
9. Defendant incorrectly argues that this Court has dominant Jurisdiction. Plaintiff
demanded appraisal pursuant to the terms of the insurance policy. On March 5, 2015, plaintiff
invoked appraisal pursuant to the terms of the insurance policy. See Exhibit A. On June 6, 2015,
plaintiff’s counsel filed a notice of nonsuit of all of plaintiff’s claims. See Exhibits B and C. On June
6, 2015, plaintiff’s counsel filed a petition in Jefferson County, Texas asking a Jefferson County
judge to appoint an umpire in the appraisal. See Exhibits E and F. Although plaintiff filed the
petition on Saturday, June 6, 2015, the clerk did not file stamp the document until midnight on
June 8, 2015. Simultaneously with the filing of the petition, plaintiff asked the Jefferson County
Clerk to serve USAA Texas Lloyd’s Company with the petition and plaintiff paid the fees
associated with that request. See Exhibit E. After plaintiff filed the petition in Jefferson County
asking a court to appoint an appraisal umpire, on June 8, 2015, defendant filed its motion in this
Court asking the court to appoint an umpire for appraisal.
Page 4 of 7
10. Dominant jurisdiction belongs to the first court in which suit is properly filed. In re Puig,
351 S.W.3d 301, 305 (Tex. 2011); Wyatt v Shaw Plumbling Co., 760 S.W.2d 245, 248 (Tex. 1988). Since
plaintiff has previously asked a Jefferson County court to appoint an appraisal umpire, the
Jefferson County court has dominant jurisdiction over the issue of the appointment of an appraisal
umpire.
C. Venue is Proper in Jefferson County
11. As stated above, the policy drafted by USAA expressly grants plaintiff the right to
request a Jefferson County judge to appoint an umpire for appraisal. Strangely, defendant does not
mention the policy provision that granted plaintiff this right in its motion. Defendant has not
shown any evidence that plaintiff waived this right, which was granted to plaintiff by defendant.
Since the policy expressly stated that plaintiff could request “a judge of court of record in the state
where the “residence premises” is located” to appoint an appraisal umpire, venue is proper in
Jefferson County. In exchange for monetary insurance premium payments, USAA gave plaintiff
the right to ask any judge in the state of Texas to appoint an umpire. If USAA wished to restrict
umpire0appointing authority to judges located in Bell County, it could have easily drafted a
contract that would have contained that restriction. Now that plaintiff has availed herself of the
privileges afforded her under that contract of insurance, USAA now seeks to punish her and/or
her attorneys for taking an action that is expressly allowed by the contract.
12. Defendant also erroneously argues that public policy and Texas venue statutes
requires that umpires be appointed by judges sitting in the same county as the insured
property. Defendant offers no authority to support this contention. Defendant deliberately
confuses the issues of (1) the proper venue for plaintiff’s contractual and extra0contractual
Page 5 of 7
claims contained in plaintiff’s original petition filed in Bell County; and (2) the proper venue for
the appointment of an umpire in the appraisal proceeding. It is obvious that the proper venue
for plaintiff’s contractual and extra0contractual claims contained in her original petition is Bell
County, Texas. However, the contract that defendant USAA Texas Lloyd’s Company drafted
and for which it accepted financial compensation from plaintiff in exchange for insuring
plaintiff’s property, granted plaintiff express permission to ask any judge in any one of 254
Texas counties to appoint an umpire in the appraisal proceeding. See Exhibit D (Bates No.
UTLC000110). As a court notes, Texas does not have a statue that exclusively vest jurisdiction to
appoint an appraisal umpire in the county where the loss occurred. Fire AssEn of Philadelphia v.
Ballard, 112 S.W.2d 532, 534 (Tex. App.— Waco 1938, no pet.).
PRAYER
13. For these reasons, plaintiff asks the Court to deny defendant’s application for
temporary injunction.
Respectfully submitted,
SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 83305400
Facsimile: (409) 83305405
/s/Danny Ray Scott
__________________________
DANNY RAY SCOTT
State Bar No. 24010920
danny@scottlawyers.com
VIRGINIA IZAGUIRRE
State Bar No. 24083230
virginia@scottlawyers.com
SEAN M. PATTERSON
State Bar No. 24073546
Page 6 of 7
sean@scottlawyers.com
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing has been served on
all counsel of record in accordance with the Texas Rules of Civil Procedure on July 9, 2015.
/s/ Danny Ray Scott
DANNY RAY SCOTT
Page 7 of 7
Filed 6/8/2015 12:00:00 AM
Joanna Staton, District Clerk
District Court - Bell County, TX
by Bonnie Sather , Deputy
CAUSE NO. 272,693-B
ANGELA BROOKS-BROWN § IN THE DISTRICT COURT
§
§
v. § 146th JUDICIAL DISTRICT
§
§
USAA TEXAS LLOYD’S COMPANY § BELL COUNTY, TEXAS
PLAINTIFF’S NOTICE OF NON-SUIT WITHOUT PREJUDICE
Plaintiff, Angela Brooks-Brown, files this Notice of Non-suit without Prejudice.
At this time, Plaintiff does not desire to pursue the claims in this cause against
Defendant USAA Texas Lloyd’s Company. Texas Rule of Civil Procedure 162 provides that “at
any time before the plaintiff has introduced all of its evidence…, the plaintiff may dismiss a
case, or take a non-suit, which shall be entered in the minutes. Notice of the dismissal or non-
suit shall be served…without necessity of court order.” Plaintiff hereby exercises the right to
non-suit USAA Texas Lloyd’s Company without prejudice from the claims asserted in this
specific case.
For these reasons, Plaintiff hereby nonsuits plaintiff’s claims against defendant USAA
Texas Lloyd’s Company without prejudice to the refiling of plaintiff’s claims at a later date.
6/8/2015
Page 1 of 2
FWD TO CC 6/8/15
Respectfully submitted,
SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 833-5400
Facsimile: (409) 833-5405
/s/ Danny Ray Scott
DANNY RAY SCOTT
State Bar No. 24010920
VIRGINIA IZAGUIRRE
State Bar No. 24083230
SEAN M. PATTERSON
State Bar No. 24073546
ATTORNEYS FOR PLAINTIFF
Page 2 of 2
7/4/2015 ProDoc® eFiling 2 - Filing Details
Petition
Filing Fees Filing Information
Copies -­ Service ($1.00 x 4) $4.00 Current Status: accepted
Issue Citation -­ Certified Mail $4.00 Accepted Date/Time: 6/8/2015 8:18:26 AM
Service -­ Constable -­ All Other $65.00 Filing Description: Petition to Appoint Appraisal Umpire
Total Filing Fees: $73.00 Reference Number: Angela Brooks-­Brown
Comments for Clerk:
Document Information
Document(s) Filed:
Lead Document:
Original -­ Angela Brooks-­Brown Pet to Appoint Umpire.docx.pdf [Exhibit -­ Angela Brooks-­Brown Petition
Document Description:
Contains sensitive data] to Appoint Umpire.pdf
Transmitted -­ Angela Brooks-­Brown Pet to Appoint Umpire.docx.pdf Angela Brooks-­Brown Petition
Document Description:
[Exhibit -­ Contains sensitive data] to Appoint Umpire.pdf
Attachments:
Angela Brooks-­Brown Cover sheet.pdf [Exhibit -­ Contains sensitive Angela Brooks-­Brown
Document Description:
data] Cover_sheet.pdf
Transmitted -­ Angela Brooks-­Brown Cover sheet.pdf [Exhibit -­ Contains Transmitted -­ Angela Brooks-­
Document Description:
sensitive data] Brown Cover_sheet.pdf
-­
This site and all contents Copyright ©2003-­2015 Thomson Reuters. All rights reserved.
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FILED FOR RECORD
Carolyn L. Guidry
6/8/2015 12:00:00 AM
COUNTY CLERK
JEFFERSON COUNTY
0127771
CAUSE NO. ______________________
0127771
ANGELA BROOKS-BROWN § IN THE COUNTY COURT
§
§
v. § AT LAW NO. 1
§
§
USAA TEXAS LLOYD’S COMPANY § JEFFERSON COUNTY, TEXAS
PLAINTIFF’S ORIGINAL PETITION FOR APPOINTMENT OF APPRAISAL UMPIRE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES ANGELA BROOKS-BROWN (herein after referred to as “Plaintiff”),
complaining of Defendant, USAA TEXAS LLOYD’S COMPANY, (hereinafter referred to as
“USAA”) and hereby respectfully show unto the Court as follows:
DISCOVERY CONTROL PLAN
1. Plaintiff intends for discovery to be conducted under Level 1 of Rule 190 of the
Texas Rules of Civil Procedure.
PARTIES
2. Plaintiff, ANGELA BROOKS-BROWN, is an individual and resident of Bell
County and citizen of the state of Texas.
3. Defendant, USAA TEXAS LLOYD’S COMPANY, hereinafter “USAA,” is a
domestic insurance carrier, incorporated and engaging in the business of insurance in the State
of Texas, and may be served with process by serving its President, Laura M. Bishop, 9800
Fredericksburg Road, San Antonio, Texas 78288.
VENUE
4. Venue is proper in Jefferson County, Texas, because the insurance contract
Page 1 of 4
hj
drafted by the defendant grants the parties the right to petition a judge of a court of record in
the state where the “residence premises” is located to appoint an appraisal umpire.
FACTS
5. Plaintiff is the owner of a homeowner insurance policy, policy number 0242343
40 74 90A, issued by the Defendant (hereinafter referred to as the “Policy”).
6. Plaintiff owned the insured property that is specifically located at
(hereinafter referred to as the “Property”).
7. Defendant or its agent sold the Policy, insuring the property, to Plaintiff.
8. On or about April 4, 2014, Plaintiff’s property sustained fire damage, specifically
to the fence. Plaintiff filed a claim with her insurance company, USAA for the damages to her
property caused by the fire.
9. On or about May 12, 2014, Plaintiff’s property sustained windstorm and hail
damage. Plaintiff’s roof sustained extensive damage during the storm including damage to the
shingles, roof jack, drip edge, chimney and other structural parts of the roof. Plaintiff’s
property also sustained exterior damage to the cornice and siding, dryer vent, windows, fence,
garage door and a/c unit. After the storm, Plaintiff filed a claim with her insurance company,
USAA, for the damages to her home caused by the storm.
10. Plaintiff submitted claims to USAA against the Policy for damage caused to the
property as a result of the fire and the wind and hail. Plaintiff asked USAA to cover the cost of
repairs to the Property pursuant to the Policy and any other available coverages under the
Policy. USAA assigned claim number 024234074-3 to Plaintiff’s fire claim and claim number
024234074-4 to Plaintiff’s wind and hail claim.
Page 2 of 4
11. On March 5, 2015, plaintiff communicated to defendant that plaintiff disagreed
with defendant’s determination of the amount of loss with respect to plaintiff’s insurance claim.
Plaintiff also communicated to defendant that plaintiff wished to invoke the insurance policy’s
appraisal clause.
12. The insurance policy’s appraisal clause states the following: “If you and we fail
to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each
party will choose a competent and impartial appraiser within 20 days after receiving a written
request from the other. The two appraisers will choose an umpire. If they cannot agree upon
an umpire within 15 days, you or we may request that the choice be made by a judge of a court
of record in the state where the “residence premises” is located. The appraisers will separately
set the amount of the loss. If the appraisers submit a written report of an agreement to us, the
amount agreed upon will be the amount of loss. If they fail to agree, they will submit their
differences to the umpire. A decision agreed to by any two will set the amount of loss.”
13. The requisite period of time has expired and the appraisers have not agreed
upon an umpire. Plaintiff therefore requests that this Court select an umpire in accordance with
and as allowed by the policy’s provisions.
PRAYER
14. For these reasons, Plaintiff asks that this Court appoint an umpire for the
insurance appraisal. Plaintiff also asks the Court to issue orders as necessary to validate any
decision the umpire makes and to issue any orders necessary to conclude this matter at the
appropriate time.
Page 3 of 4
Respectfully Submitted,
SCOTT LAW OFFICES
350 Pine Street, Suite 300
Beaumont, Texas 77701
Telephone: (409) 833-5400
Facsimile: (409) 833-5405
/s/Danny Ray Scott
__________________________
Danny Ray Scott
State Bar No. 24010920
danny@scottlawyers.com
Virginia Izaguirre
State Bar No. 24083230
virginia@scottlawyers.com
Sean M. Patterson
State Bar No. 24073546
sean@scottlawyers.com
Attorneys for Plaintiff
Page 4 of 4
Filed 7/27/2015 2:49:26 PM
Joanna Staton, District Clerk
District Court - Bell County, TX
/s/ Lacey Martindale
CAUSE NO. 272,693-B
ANGELA BROOKS-BROWN § IN THE DISTRICT COURT
§
§
v. § 146TH JUDICIAL DISTRICT
§
§
USAA TEXAS LLOYD’S COMPANY § BELL COUNTY, TEXAS
ORDER ON PLAINTIFF’S PLEA IN ABATEMENT TO DEFENDANT’S MOTION FOR
APPOINTMENT OF UMPIRE FOR INSURANCE APPRAISAL PROCEEDING
On July 10, 2015 came on to be heard Plaintiff’s Plea in Abatement to Defendant’s
Motion for Appointment of Umpire for Insurance Appraisal Proceeding. The Court, having
carefully considered the Plea in Abatement, any responses or replies of the parties, and the
arguments of counsel herein, finds that it should be DENIED.
_______________________________________
JUDGE PRESIDING
7/28/2015
FWD TO CC 7/27/15