Safeco Ins. Co. of Am. v. Clear Vision Windshield Repair, LLC

• Decision Date: 27 November 2018
• Docket Number: NO. 14-17-00103-CV,14-17-00103-CV
• Citation: 564 S.W.3d 913
• Parties: SAFECO INSURANCE COMPANY OF AMERICA, Appellant v. CLEAR VISION WINDSHIELD REPAIR, LLC, Elizabeth Dutson, Bruce Houck, Greg Hineman, Matthew O'Neill, and James McCubbin, Appellees
• Court: Texas Court of Appeals

564 S.W.3d 913

SAFECO INSURANCE COMPANY OF AMERICA, Appellant

v.CLEAR VISION WINDSHIELD REPAIR, LLC, Elizabeth Dutson, Bruce Houck, Greg Hineman, Matthew O'Neill, and James McCubbin, Appellees

NO. 14-17-00103-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed November 27, 2018

J. Brett Busby, Justice

This case concerns waiver of anti-assignment clauses in insurance policies. Appellee Clear Vision Windshield Repair, LLC repaired chips in the windshields of appellant Safeco Insurance Company’s insureds, the individual appellees. Clear Vision submitted invoices to Safeco for the cost of the windshield repairs. Clear Vision asserted it was entitled to payment because Safeco’s insureds had assigned their right to payment under their insurance policies to Clear Vision. When Safeco refused to pay four of Clear Vision’s invoices, Clear Vision sued Safeco alleging numerous causes of action, including breach of contract. During the resulting bench trial, Safeco argued Clear Vision did not have standing because the insurance policies at issue contained anti-assignment clauses. Clear Vision responded that it had standing because, among other reasons, Safeco had waived enforcement of the clauses. The trial court agreed with Clear Vision and signed a final judgment in its favor.

Safeco challenges that judgment in four issues. We need only address Safeco’s third issue because it is dispositive. In that issue, Safeco argues that the evidence is legally and factually insufficient to support the trial court’s finding that it had waived enforcement of the anti-assignment clauses in the insurance policies. Because we conclude sufficient evidence supports the trial court’s waiver finding, we overrule Safeco’s third issue and affirm the trial court’s judgment.

BACKGROUND

Safeco is an automobile insurance company operating in Texas and other states. Safeco designates an exclusive third-party administrator, Safelite, to handle its insureds' claims of automobile glass damage nationwide. Safeco authorizes Safelite to pay glass repair vendors directly. Despite having an exclusive third-party administrator, Safeco will also handle and pay directly any glass repair claims submitted to it rather than to Safelite. Julian Winfield, Safeco’s only witness at trial, testified that Safelite does not have the authority to enforce an anti-assignment clause for any glass repair claim submitted to it for payment. Winfield also testified that during his time at Safeco, he had never experienced the anti-assignment clause being enforced as to any glass repair claim.

Clear Vision is in the business of repairing chips in automobile windshields. Clear Vision conducts business inside automobile dealership repair shops. When a customer with a chipped windshield comes into a dealership where Clear Vision operates, a Clear Vision representative asks if the customer would like the windshield repaired.

Clear Vision charges a flat rate of $150 to repair a chipped windshield. If the customer agrees to the repair and has insurance, Clear Vision verifies the insurance information from the customer’s insurance card. Clear Vision does not confirm insurance coverage with Safeco before performing the repairs. Clear Vision makes the repair after the customer signs an assignment of his right to payment under the policy, as well as any cause of action he might have if the insurance company fails to pay. Once the repair is completed, Clear Vision submits an invoice to each customer’s insurance company seeking direct payment for the repair. Because Clear Vision does not contact the insurance company before it makes a windshield repair, Clear Vision knows it runs the risk that it might not be paid when it takes an assignment of rights from its customers.

According to Douglas Stroh, president of Clear Vision, Clear Vision has submitted thousands of glass repair claims to Safeco since 2011. Clear Vision does not have a contractual relationship with Safeco as a preferred provider or otherwise. As a result, for each windshield Clear Vision repairs, its first contact with Safeco is when it sends an invoice for the completed repair. Stroh estimated that when Clear Vision submits invoices directly to Safeco, Safeco pays those invoices about eighty-five percent of the time despite the lack of a contractual relationship between Clear Vision and Safeco. Safeco usually pays the full amount of the invoice. As to the unpaid invoices, Safeco did not give the anti-assignment clause as the reason for non-payment. When Clear Vision submits invoices to Safelite, Safelite typically does not pay the full amount. According to Stroh, Safelite has never informed Clear Vision that it could not pay Clear Vision’s invoices. Nor has Safelite raised the anti-assignment clause as a reason to not pay a Clear Vision invoice. Safeco does not dispute that it sometimes pays Clear Vision’s invoices directly, but it asserts that it does so only as a convenience to its insureds.

Clear Vision repaired chips in the windshields of automobiles owned by individual appellees Elizabeth Dutson, Bruce Houck, Matthew O'Neill, and James McCubbin. It is undisputed that Safeco issued automobile insurance policies to these four individual appellees, the policies were in effect on the dates of loss and provided coverage for windshield repairs, and this coverage was not subject to a deductible. Each of the insureds' policies contained the following anti-assignment clause: "Your rights and duties under the policy may not be assigned without our [i.e., Safeco’s] written consent." All four of the insureds signed documents assigning to Clear Vision their right to payment for the windshield repairs, as well as their causes of action in the event Safeco failed to pay for the repairs. It is undisputed that Safeco did not consent in writing to any of the insureds' assignments. It is also undisputed that Clear Vision did not contact Safeco seeking permission for an assignment of the insureds' policy benefits.

After Clear Vision had repaired the insureds' windshields, Clear Vision submitted invoices directly to Safeco for payment. The invoices included the assignments from the insureds. Safeco eventually paid Clear Vision $150 each on the invoices for the Dutson, Houck, and McCubbin repairs. Safeco did not pay the O'Neill invoice. The trial court found that Safeco rejected the O'Neill invoice because it did not include sales tax. Safeco did not notify Clear Vision that it was refusing to pay the O'Neill invoice because of the anti-assignment clause in O'Neill’s policy.

Clear Vision filed suit on its own behalf and on behalf of the individual insureds against Safeco, alleging breach of contract.

Regarding the invoices Safeco paid, Clear Vision argued Safeco had breached the insurance policies because the payments were not timely. The dispute went to trial before the bench. At the conclusion of the one-day bench trial, the trial court signed a final judgment in favor of Clear Vision. The judgment awarded Clear Vision damages of $150, prejudgment and post-judgment interest, and $14,000 in attorney’s fees.

The trial court subsequently filed findings of fact and conclusions of law. Among other findings, the trial court found that Safeco had waived enforcement of the anti-assignment clauses in the insurance policies at issue here. It also found that the four Safeco insureds had assigned to Clear Vision their right to insurance benefits available for their windshield repairs, as well as their causes of action for any failure by Safeco to pay for the repairs. The trial court also concluded that Safeco had failed to comply with the four individual plaintiffs' insurance policies. This appeal followed.

ANALYSIS

Safeco raises four issues on appeal. Because we ultimately conclude that Safeco waived enforcement of the anti-assignment clauses, we need only address Safeco’s third issue, which challenges the legal and factual sufficiency of the evidence supporting the trial court’s waiver finding.¹

I. Standard of review

When a trial court makes specific findings of fact and conclusions of law following a bench trial and a reporter’s record is before the appellate court, the findings will be sustained if there is evidence to support them, and the appellate court will review the legal conclusions drawn from the facts found to determine their correctness. Trelltex, Inc. v. Intecx, L.L.C. , 494 S.W.3d 781, 789 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Findings of fact have the same force and dignity as a jury’s verdict and are reviewable under the same standards of legal and factual sufficiency. Foley v. Capital One Bank, N.A. , 383 S.W.3d 644, 646 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

When an appellant attacks the legal sufficiency of an adverse finding on an issue on which it did not have the burden of proof, it must demonstrate on appeal that there is no evidence to support the adverse finding. Univ. Gen. Hosp., L.P. v. Prexus Health Consultants, LLC , 403 S.W.3d 547, 550 (Tex. App.—Houston [14th Dist.] 2013, no pet.). In conducting a legal sufficiency review, we consider the evidence in the light most favorable to the appealed finding and indulge every reasonable inference that supports it. Id. at 550–51 (citing City of Keller v. Wilson , 168 S.W.3d 802, 821–22 (Tex. 2005) ). The evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the decision under review. Id. at 551. This Court must credit favorable evidence if a reasonable trier of fact could and disregard contrary evidence unless a reasonable trier of fact could not. Id. The trier of fact is the sole judge of the witnesses' credibility and the weight to be given their testimony. Id. If there is more than a scintilla of evidence supporting a finding of fact, we will overrule a legal sufficiency challenge. CA Partners v. Spears , 274 S.W.3d 51, 69 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).

When a party challenges the factual...