State Farm Fire & Cas. Co. v. Griffin

• Decision Date: 03 November 1994
• Docket Number: No. 01-93-00889-CV,01-93-00889-CV
• Citation: 888 S.W.2d 150
• Parties: STATE FARM FIRE & CASUALTY COMPANY, Appellant, v. Edward GRIFFIN and Irene Griffin, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 150

888 S.W.2d 150

STATE FARM FIRE & CASUALTY COMPANY, Appellant, v. Edward GRIFFIN and Irene Griffin, Appellees.

No. 01-93-00889-CV.

Court of Appeals of Texas Houston (1st Dist.).

Nov. 3, 1994.

O. Jefferson Dykes, III, Roger Townsend, William J. Boyce, Rebecca J. Cole, Lana S. Shadwick, Houston, for appellant.

John Roberson, Kirk Purcell, Ralphaell V. Wilkins, Houston, for appellees.

Before HUTSON-DUNN and ANDELL, JJ., and PRICE, J., Sitting by Assignment. ^*

OPINION

FRANK C. PRICE, Justice, Sitting by Assignment.

Following a fire at their home, a dispute arose between the Griffins and their homeowner's insurance carrier, State Farm Fire and Casualty Company (State Farm), about the amount due from State Farm to the Griffins on their fire claim. On cross-motions for partial summary judgment, the trial court granted a partial summary judgment for the Griffins on their breach of contract claim. Subsequently, a jury returned a verdict in the Griffins' favor, finding that the cost of repairing the fire damage was $52,529, that State Farm had breached its duty of good faith and fair dealing toward the Griffins, causing the Griffins to suffer mental anguish compensable by $30,000 apiece, and that $440,000 in punitive damages should be assessed against State Farm. In 11 points of error, State Farm contends that the trial court erred by granting that partial summary judgment and denying State Farm's cross-motion (points one and two), and committed various other reversible errors (points three through 10). State Farm also contends that the judgment is void because the amounts pleaded and awarded as actual damages exceed the trial court's jurisdictional limit (point 11). We reject the jurisdictional challenge, and hold that under their insurance contract with State Farm, the Griffins are entitled to the $42,569.23 previously delivered to the Griffins by State Farm on their fire claim, and no more; accordingly, we reverse the judgment of the trial court, and remand the cause to the trial court for entry of a judgment on the Griffins' breach of contract claim consistent with our holding, and a judgment that the Griffins take nothing on their claim for breach of the duty of good faith and fair dealing.

In 1989, the Griffins purchased two insurance policies from State Farm: (1) a homeowners' policy, covering fire risk, inter alia, but expressly excluding damage due to flood; and (2) a policy covering flood risk only, and expressly excluding damage due to fire or any other peril other than flood. On May 18 of that year, the Griffins sustained a flood loss, and were paid $31,999.36 on the ensuing claim for damage to the structure. Nine months later, on February 11, 1990, the Griffins sustained the fire loss at issue here. State Farm's adjuster, Ms. Tousant, inspected the premises two days after the fire, and estimated the amount necessary to repair all then-existing damage to the Griffins' home at $59,547.98. On July 3, 1990, State Farm tendered payment on the Griffins' claim, but the check was for $37,257.18. The accompanying letter from Tousant explained:

The flood policy, as with the homeowners policy, pays the actual cash value of the structure until the repairs are actually completed; only then can the replacement cost benefit be considered. You were paid the actual cash value for repairs. Several items were paid based on a total loss. It is your option to submit receipts once the work is completed in order to receive the replacement cost benefit.

The estimate for your fire loss included the full replacement cost of the damages. Again, only the actual cash value is paid up front. Once an item is totaled you cannot be reimbursed for that item again, since its actual value has been paid. Since you cannot be paid twice, we subtracted the actual cash value portion of the totaled items not completed on the flood estimate from the actual cash value of your fire loss. Again, once the repairs are completed per the policy provisions, the replacement cost benefit can be considered.

Enclosed is a draft in the amount of $37,257.18. This draft represents the fire damage to your structure that was not totaled on the flood loss.

The Griffins rejected that tender. Subsequently, State Farm recalculated the amount of the prior unrepaired flood damage, and tendered an additional $5,312.05, but the Griffins also rejected that offer. This suit followed, focusing upon the $16,978.75 that State Farm deducted from the $59,547.98 figure to arrive at its final tender to the Griffins of $42,569.23.

In point of error 11, State Farm contends that the judgment is void because the amounts pleaded and awarded as actual damages exceed the trial court's jurisdictional limit.

The upper jurisdictional limit in a statutory county court exercising civil jurisdiction concurrent with the constitutional jurisdiction of the county court is $100,000 in controversy as alleged on the face of the petition--excluding interest, statutory or punitive damages and penalties, and attorney's fees and costs. TEX.GOV'T CODE ANN. § 25.0003(c)(1) (Vernon Supp.1994). That limitation is not a limitation on the court's power to render a judgment; so long as the original amount in controversy is within the jurisdictional limit, a county court at law may render judgment for an amount in excess of the statutory jurisdictional limit. See Standard Fire Ins. Co. v. Stigger, 635 S.W.2d 667, 669 (Tex.App.--Dallas 1982, no writ) (so holding under predecessor statute, former TEX.REV.CIV.STAT.ANN. art. 1970a).

State Farm's appellate briefing on this point is limited to a seven-sentence footnote that cites only section 25.0003 and asserts, in conclusory fashion, that the Griffins' seventh amended petition asks for more than $100,000. In their seventh amended petition, the Griffins sought $59,547.98 in insurance benefits plus $40,000 in mental anguish damages, plus unspecified amounts for pre- and post-judgment interest, exemplary damages, and costs of court.

$99,547.98 does not exceed $100,000.

On appeal, the Griffins argue that their live pleading at trial was their pleading styled "Counter-Defendants' Third Amended Original Answer and Third Amended Counterclaim." In that pleading, the Griffins sought $51,761.46 in insurance benefits plus $48,000 in mental anguish damages, plus unspecified amounts for pre- and post-judgment interest, exemplary damages, and costs of court.

$99,761.46 does not exceed $100,000.

Point of error 11 is overruled.

In points of error one and two, State Farm contends that the trial court erred by granting the Griffins' motion for partial summary judgment and denying State Farm's cross-motion.

Under TEX.R.CIV.P. 166a(c) a summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. See Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); Rogers v. R.J. Reynolds Tobacco Co., 761 S.W.2d 788, 793-794 (Tex.App.--Beaumont 1988, writ denied). In a summary judgment proceeding, the burden of proof is on the movant, and all doubts about the existence of a genuine issue of fact are resolved against the movant. Roskey v. Texas Health Facilities Comm'n, 639 S.W.2d 302, 303 (Tex.1982); Rogers, 761 S.W.2d at 795. Once the movant has established a right to a summary judgment, the burden shifts to the non-movant. The non-movant then must respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); United Business Mach. v. Entertainment Mktg., Inc., 792 S.W.2d 262, 264 (Tex.App.--Houston [1st Dist.] 1990, no writ).

A partial summary judgment, interlocutory when first rendered, is reviewable on appeal after it has been merged into a final judgment disposing of the whole case. Pan American Petroleum Corp. v. Texas Pac. Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200, 201 (1959); Waddell v. Huckabee, 807 S.W.2d 455, 459 (Tex.App.--Houston [1st Dist.] 1991, orig. proceeding); Turboff v. Gertner, Aron & Ledet Invs., 763 S.W.2d 827, 828 (Tex.App.--Houston [14th Dist.] 1988, writ denied). The party seeking to uphold a partial summary judgment cannot rely on evidence introduced later in the case; the propriety of granting a partial summary judgment must be determined from the posture of the pleadings and evidence at the time the court granted the motion. Seldon v. S & S Aggregates Co., 410 S.W.2d 231, 234 (Tex.Civ.App.--Eastland 1966, writ ref'd n.r.e.); see also Kendall v. Whataburger, Inc., 759 S.W.2d 751 (Tex.App.--Houston [1st Dist.] 1988, no writ).

Where both parties file motions for summary judgment, and one is granted and one is denied, the denial may be considered by the reviewing court if the appealing party complains of both the granting of the opponent's motion and the denial of his own motion. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988); McGuire v. Post Oak Lane Townhome Owners Ass'n, 794 S.W.2d 66, 67 (Tex.App.--Houston [1st Dist.] 1990, writ denied).

In their motion, the Griffins contended that "as a matter of law, State Farm cannot legally adjust the fire loss claim by subtracting money [paid to the Griffins] from the prior flood loss claim," and sought "a partial summary judgment against State Farm prohibiting them from prorating or deducting any amounts received by plaintiffs from the May 1989 [flood] claim from plaintiffs' February 1990 fire loss claim" and, in the alternative, sought "a partial summary judgment against State Farm by ruling that the flood insurance and homeowners' insurance policies cover different risks." In its motion, styled as a "counter-motion for partial summary judgment," State Farm sought a ruling that, "as a matter of law, [State Farm] properly omitted from the fire loss estimate, an amount representing prior unrepaired flood damage." The trial court granted a partial summary...