I often hear from insureds that have been negotiating with their insurance company for a period of time when the insurer suddenly demands appraisal. The insureds do not want to go to appraisal and the first question is always, “Can the insurance company do that?” followed by “This claim has been going on for months, isn’t it too late?” My usual answer is that in Texas the insurance company can force appraisal before litigation if it is part of the insurance policy. However, when an insurance company demands appraisal while in litigation the answer often depends on the facts of the case.

Last week the Court of Appeals of Texas, Fort Worth, denied mandamus and found that a trial court that denied Allstate’s motion to compel appraisal did not abuse its discretion.1 The appellate court looking at the facts of the case had to decide if Allstate had waived the right to appraisal. The insured had to establish that Allstate had engaged in intentional conduct inconsistent with claiming the right to appraisal.

The court noted that simply a delay in invoking appraisal can be one aspect, or factor, of a wavier-by-conduct analysis. The court looked at the fact that Allstate had wrongfully removed the action to Federal Court; conducted six inspections of the property at issue—four by Allstate adjusters and two by Allstate’s experts; Allstate had agreed to a trial date; Allstate then moved to compel a seventh inspection by another expert for the express purpose of the new expert testifying at trial; Allstate’s attorneys then sought an extension for expert designations for the new expert witness.2

The appellate court then addressed Allstate’s conduct regarding the timing of an impasse regarding the party positions on the amount of loss in the claim. The insured argued the impasse was reached, at the latest, on May 9, 2017, when Allstate made a Texas Rule of Civil Procedure 167 offer of $4,000, and the insured rejected the offer and for the third time stated the loss to be over $19,0000. Allstate argued that no impasse was reached until August 14, 2017, because Allstate sent a settlement offer of $24,000 to the insured to settle all claims and give a full release. The court pointed out that Allstate was essentially arguing that despite its litigation conduct it may at any point trigger a new point of litigation by simply making a settlement offer that is requested. The court rejected this argument and agreed with the trial court that, rather than talking settlement, Allstate was “doing tactical maneuvering in the lawsuit.” The court pointed out the distinction between settlement negotiations as a lawsuit strategy and negotiations about the amount of loss.3

Ultimately the court held that Allstate cannot make a settlement offer to pay money in exchange for the dismissal with prejudice of the insured’s claims and then argue that its settlement offer constituted “good faith negotiations concerning the amount of loss suffered by the insured.”4

Waving the right to appraisal will continue to be a fact intensive analysis once litigation has commenced, but in this case Allstate’s eleventh-hour demand was deemed too late.
1 In Re Allstate Vehicle and Property Ins. Co., No. 02-17-00319, 2018 WL 2069185 (Tex. App.—Fort Worth, May 3, 2018).
2 Id.
3 Id.
4 Id. citing Universal Underwriters of Tex. Ins. Co., 345 S.W.3d 404 (Tex. 2011).