The Corpus Christi Court of Appeals has affirmed a summary judgment in favor of an insurer in a homeowner’s policy dispute, including an award of appellate attorney’s fees.
Jaime Lopez and Silvia Rodriguez Lopez v. State National Insurance Company and Wellington Risk Insurance Agency, Inc. (No. 13-24-00041-CV; September 25, 2025) arose from an insurance coverage dispute. The insurer denied the Lopezes’ claim for water damage after its investigation determined that the damage was caused by repeated leakage around the bathtub (for which the policy excluded coverage), not from a pressurized water line. Plaintiffs nevertheless made repairs to their home, totalling $23,715, and allowed the policy to expire. Two years later, Plaintiffs submitted a sworn proof of loss and filed suit, alleging fraud and breach of contract. The insurer filed a traditional motion for summary judgment, contending that Plaintiffs’ claim was time-barred. Undeterred, Plaintiffs pursued allegations of material misrepresentation, claiming that the insurer had told them that their claim would not be denied or accepted until the sworn proof of loss requirement was met. Plaintiffs maintained that they relied on the representation that their claim was covered and would be paid. The trial court granted the motion for summary judgment, and awarded costs and appellate attorney’s fees to appellees. Plaintiffs appealed.
In an opinion by Chief Justice Tijerina, the court of appeals affirmed as modified. Plaintiffs objected to the insurer’s summary judgment evidence, but waived the issue because its appellate brief failed to “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record” (citations omitted). In their absence, Justice Tijerina observed, “[w]e will not fashion an appellate argument for appellants.”
Next, Plaintiffs argued that the trial court erred by granting the insurer’s motion for summary judgment based on limitations. In accordance with the § 2301.010, Insurance Code, the policy provided that any cause of action related to the policy must have been filed within two years after the claim was accepted or rejected. Here the summary judgment evidence showed that Plaintiffs filed their claim on September 7, 2018, the insurer denied it on September 24, 2018, and Plaintiffs filed suit on February 3, 2021, “well past the limitations period.” it states that any cause of action that arose from the policy must have been filed within the statutory two year window. Plaintiffs responded that they had not “knowingly or voluntarily” accepted any such provision, and submitted the affidavit of an attorney averring that the policy’s language was “ambiguous or fatally inconsistent.” The court rejected this ridiculous contention, holding that if this affidavit was not at odds with reality, it was at least at odds with the written record.
As for the fraud claim, the insurer argued that it made no misrepresentation, thus defeating Plaintiffs’ fraud claim at the outset. The record showed that the written exchanges informed Plaintiffs that: (1) a signed sworn proof of loss claim was required within 91 days, and (2) their claim would not be covered. These written documents trumped Plaintiffs’ affidavit claiming that the insurer’s inspector told Mr. Lopez that the damage would be covered, prompting him to pay for repairs. The insurer, consequently, the insurer conclusively established that Plaintiffs could not have justifiably relied on any alleged misrepresentations. Contrary to Plaintiffs’ argument to the contrary, “the summary judgment evidence in this case provided that [the insurer] diligently informed [Plaintiffs] that their claim was denied and the reasons why.”
Finally, Plaintiffs argued that the trial court erred by awarding appellate attorney fees to to the insurer without condition. The court agreed, observing that “the award of appellate attorney’s fees must be conditioned upon the appellant’s unsuccessful appeal,” which the trial court failed to do. Still, the evidence before the trial court was legally sufficient to support the award of appellate attorney’s fees, so the court modified the judgment to make the award of appellate fees contingent upon the insurer’s success on appeal (which happened). In a cross appeal, the insurer argued that the trial court erred in denying its request for attorney’s fees pursuant to § 37.009, CPRC. The statute, however, does not entitle the insurer attorney’s fees as a matter of law, and the court could not conclude that the trial court abused its discretion in declining to award them.
TCJL Intern Satchel Williams researched and prepared the first draft of this article.
