This week TCJL filed an amicus curiae brief in the Fourteenth Court of Appeals [Houston] in a case involving claims against the Texas Windstorm Insurance Association (TWIA) arising from Hurricane Ike in 2008. In this case the Dickinson Independent School District filed claims for wind damage to several school facilities, which TWIA adjusted and settled with the district. The district then made an additional claim against TWIA, which was likewise adjusted and settled. In both cases, the district provided to TWIA a sworn Proof of Loss establishing that the district’s total losses had been paid. The district subsequently filed suit against TWIA in 2012, four years after the storm and more than two years after TWIA initially settled the claim.

As our brief points out, the facts of this case “read like a catalogue of abuses specifically addressed in H.B. 3,” the TWIA reform legislation enacted by the Legislature in 2011. These include the appointment of an unqualified appraiser and possibly biased appraisal umpire, serious irregularities in the appraisal process (the inspections for which occurred more than five years after the storm), an appraisal award that exceeded the amount of damages claimed by the district by more than ten times, and the refusal of the trial judge to permit TWIA to introduce evidence of causation at trial in violation of the Texas Supreme Court’s decision in State Farm Lloyds v. Johnson, 290 S.W.3d 886 (Tex. 2009).

TCJL argues that the Court of Appeals should view this appeal in light of the policy decisions made by the Legislature in 2011. In the face of overwhelming evidence of litigation abuses arising from TWIA litigation, the Legislature specifically addressed precisely the kind of gamesmanship and manipulation of the process that occurred in this case. As we state in our brief, “Although the law may have changed since this lawsuit was filed, the responsibility of the appellate courts to ensure that trial courts do not engage in practices that undermine the public’s faith in the basic fairness and impartiality of the civil justice system has not. Here the trial court refused to inquire into a plainly inappropriate appraisal process and directed TWIA to sit down and shut up. As the Earl of Leicester said to Elizabeth II about the botched execution of Mary, Queen of Scots, things were done there that should not have been done. It is up to this court to set them to right.”

The case is set for oral argument in Houston in the coming weeks.