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Delay of seven days will not support finding of waiver of right to appraisal.

According to the Court of Appeals of Texas, a seven-day delay of communications between parties will not result in a finding of waiver of the right to an appraisal.

Property owner Joseph Hayden alleged that his house was damaged by a hail and windstorm that occurred on April 4, 2012. On April 10, 2012, the Texas Windstorm Insurance Association (TWIA) began an investigation into Hayden's claim. TWIA's investigation found that there was no damage to his property caused by hail, but that there was wind damage. However, because the cost of repair did not exceed his deductible, Hayden was told that no insurance payment would be made.

On October 31,2012, Hayden informed TWIA of his intention to file suit Subsequently, on November 7, 2012, TWIA demanded an appraisal, citing the appraisal provision in the insurance policy. Hayden refused to participate in the appraisal and filed suit on January 3, 2012. TWIA moved to compel appraisal.

Hayden argued that the motion to compel appraisal should be denied because the dispute concerned coverage--not the amount of loss and that TWIA waived its right to compel appraisal when TWIA waited until seven days after he declared his intent to file suit to cite the appraisal provision. On March 8,2013 following these arguments, the district court denied TWIA's motion to compel appraisal.

On July 24, 2013, while proceedings were still taking place, TWIA filed a petition for a writ of mandamus with the Court of Appeals of Texas. The writ asked the appellate court to vacate the district court's order denying TWIA's motion to compel appraisal.

The appellate court addressed Hayden's waiver argument, noting "(w)aiver is either the intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right." Further, the court stated that, "(i)f one party genuinely believes negotiations to be ongoing, it cannot have intended to relinquish its right to appraisal unless it expressly waives that right." Finding that seven days was not a delay of sufficient length to support a finding of waiver, the Court of Appeals determined that TWIA had not waived its right to appraisal.

The Court of Appeals addressed Hayden's coverage argument noting that the "fact that a dispute implicates coverage in addition to the amount of loss does not automatically preclude appraisal." Accordingly, the court granted TWIA's petition for a writ of mandamus and directed the trial court to grant TWIA's motion to compel appraisal.

In re Texas Windstorm Insurance Assn.

Court of Appeals of Texas, Houston

September 10, 2013

2013 WL 4806996

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Title Annotation:Recent Court Decisions
Publication:Appraisal Journal
Geographic Code:1U7TX
Date:Jan 1, 2014
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