Payment of Appraisal Award Defeats Claim of Bad Faith
Post 5163
Read the full article at https://lnkd.in/dNpKKcYx, see the full video at https://lnkd.in/dNgwRP8q and at https://lnkd.in/dA9dvd-D, and at https://zalma.com/blog plus more than 5150 posts.
Hurricane Damage to Dwelling Established by Appraisal Award
In Homeowners Of America Insurance Company v. Emilio Menchaca, No. 01-23-00633-CV, Court of Appeals of Texas, First District (July 31, 2025) after a hurricane Homeowners of America Insurance Company (“HAIC”) estimated that the cost of covered repair to Menchaca’s house was $3,688.54, which was less than his deductible, and therefore no payment would be made.
FACTS
After Menchaca retained counsel HAIC advised that, under the terms of the policy, Menchaca was required to first invoke the appraisal process prior to filing suit, and that HAIC reserved the right to request that Menchaca and any adjuster hired on his behalf submit to an Examination Under Oath (“EUO”).
On August 23, 2018, Menchaca’s counsel sent a demand notice letter to HAIC stating that Menchaca had sustained $48,757.98 in economic damages based on an estimate prepared by Henry Sienema, Vice President of Case Strategies Group. The letter demanded that HAIC pay $48,757.98 in actual damages, $2,400 in attorney’s fees, and $2,000 in expenses, totaling $53,157.98, to resolve the matter without litigation.
HAIC Invoked the Appraisal Process
HAIC’s appraiser and the agreed umpire signed an appraisal award setting the amount of loss for Menchaca’s claim. On June 4, 2021, without admitting liability, HAIC issued a check to Menchaca in the amount of $7,085.86- the actual cash value of $13,145.86 assigned by the appraisers minus the $6,060 deductible under Menchaca’s policy.
Trial began and the jury returned a verdict for Menchaca. The trial court rendered final judgment on the jury’s verdict on May 31, 2023, ordering that Menchaca recover from HAIC $300,000 in mental anguish damages, $250,000 for his reasonable and necessary attorney’s fees, and $93,000 in pre- judgment interest. This appeal followed.
KEY POINTS OF CASE
- Initial Claim and Appraisal:
Menchaca’s initial claim was denied as the estimated repair cost was less than his deductible . Menchaca then demanded $48,757.98 in damages, leading HAIC to invoke the appraisal process .
- Legal Proceedings:
HAIC filed for declaratory judgment, questioning the qualifications of Menchaca’s appraiser and requesting an Examination Under Oath (EUO) from Menchaca . Menchaca counterclaimed, alleging violations of the Texas Insurance Code, fraud, breach of contract, and bad faith .
- Jury Verdict:
The jury found in favor of Menchaca, awarding him $300,000 in mental anguish damages, $250,000 in attorney’s fees, and $93,000 in pre-judgment interest .
- Appeal:
HAIC appealed, arguing that it had complied with its obligations under the policy by paying the appraisal award and that Menchaca’s mental anguish damages were not recoverable as an “independent injury”. The Court of Appeals agreed with HAIC, reversing the trial court’s judgment and ruling that Menchaca take nothing on his counterclaims.
DISCUSSION
The only actual damages Menchaca sought were lost policy benefits which HAIC paid when it paid the appraisal award. The only “actual damages” Menchach sought are the policy benefits wrongfully withheld, and those benefits have already been paid pursuant to the policy. The trial court erred in rendering judgment in favor of Menchaca on his contractual and extracontractual claims and awarding him $300,000 in mental anguish damages.
HAIC discharged its liability under the policy by paying the appraisal amount in full, along with statutory interest, and complied with its obligations under the policy. Because HAIC has paid the full appraisal award and any possible statutory interest, Menchaca cannot recover attorney’s fees and the trial court erred in awarding him such. The Court of Appeals also sustained HAIC’s claims that trial court’s May 31, 2023 final judgment was erroneous and rendered judgment that Menchaca take nothing on his counterclaims against HAIC.
ZALMA OPINION
It is axiomatic that an appraisal award sets the amount of loss in accordance with the terms and conditions of the contract of insurance. The jury was either improperly instructed or ignored the law when it was established that the insurer paid the full amount of the appraisal award in full with interest. An insurer that pays everything it owes under the terms of the policy cannot be held for tort and bad faith damages.
(c) 2025 Barry Zalma & ClaimSchool, Inc.
Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.
Subscribe to my substack at https://barryzalma.substack.com/subscribe
Go to X @bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/account/content?type=all; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://lnkd.in/gwEYk.
The Largest Residential Burglary of All Time
Post 5407
Fraud & the Fear of Bad Faith Suits
Posted on July 22, 2026 by Barry Zalma
See the full video at https://lnkd.in/gWQQEySW and at https://lnkd.in/gyhdK6wv
This is a Fictionalized True Crime Story of Insurance Fraud explaining why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is one of a collection designed to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime.
This is a Fictionalized True Crime Story of Insurance Fraud explaining why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is one of a collection designed to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime.
After ...
Chutzpah is not Enough
Post 5397
Posted on July 20, 2026 by Barry Zalma
See the video and at https://lnkd.in/gNUs2XzT and at https://lnkd.in/g2MawyzX
Magistrate Issues a Search Warrant if there is a Fair Probability that Contraband or Evidence of a Crime will be Found in a Particular Place.
In United States Of America v. Frank Suess, et al., CRIMINAL No. 3:24-308, United States District Court, M.D. Pennsylvania (July 16, 2026) a federal grand jury indicted Frank Suess, Melissa Driscoll, and others in a 55-count health care fraud and anti-kickback prosecution arising from an alleged scheme involving medically unnecessary prescription “foot baths.”
As part of the investigation, the FBI obtained an August 19, 2022 warrant to search Driscoll’s Sterling Pharmacy Yahoo email account for emails from January 1, 2018 through December 31, 2020. Driscoll moved to suppress the resulting evidence, arguing that the warrant lacked probable cause, was overbroad, and rested on material misstatements and omissions.
LAW:
The ...
Fraud Shouldn’t Pay
Post 5396
See the video and at https://rumble.com/v7ctgmq-the-great-jewel-theft.html at https://youtu.be/aRbQ2sJfGwA
This is a Fictionalized True Crime Story of Insurance Fraud explaining why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is one of a collection designed to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the ¬¬¬Perpetrators than any Other Crime.
The Insured purchased, for the first time in his life, a policy of Personal Articles Floater Insurance (PAF) scheduling $125,000 worth of ladies jewelry. He advised the insurer that the jewelry was always kept in a class E safe at his residence. He also told the insurer that he was employed full time as the owner of a gasoline service station and that he had never been canceled or suffered a previous loss.
One month after the policy was ...
Day Care Owner Loses Subsidies Because She Criticized State
Post 5421
Posted on August 11, 2026 by Barry Zalma
First Amendment Right Will be Allowed to Go to Trial
In Betsey J. Grant v. Maine State Department Of Heath And Human Services, No. 1:25-cv-00490-JAW, United States District Court, D. Maine (August 6, 2026), Betsey J. Grant, a licensed childcare provider and operator of Tiny Tikes Daycare in Trenton, Maine, sued Maine DHHS and several employees after she publicly criticized DHHS before Maine’s Government Oversight Committee and alleged that officials retaliated against her.
She claimed DHHS imposed and extended a conditional license, published stigmatizing information, interfered with subsidies and program funding, removed her from a food program, rescinded an expansion grant, and used biased or falsified evidence in licensing proceedings. Following the March 10, 2023, GOC testimony, Ms. Grant alleges that foster children's subsidies (approximately $30,000) were withheld; she was removed from the ...
Rescission for Material Misrepresentation
Post 5418
Posted on August 5, 2026 by Barry Zalma
An Insurer May Rescind An Insurance Policy Where The Applicant Made A Material Misrepresentation In The Application.
In Union Mutual Fire Insurance Company v. 844 Knickerbocker, LLC, et al. No. 2024-10359, Index No. 602824/22, 2026 NY Slip Op 04789, Supreme Court of New York, Second Department (July 29, 2026) Union Mutual Fire Insurance Company issued commercial insurance policies to 844 Knickerbocker, LLC, and Sanjaya Mallick based on applications stating that the insured property contained two apartment units. After an underlying personal injury action was filed, Union Mutual determined that the property actually contained three apartment units and rescinded the policies on the ground that the defendants had made a material misrepresentation in the applications.
LAW:
A misrepresentation is material if the insurer would not have issued the same policy, or would have issued it only on different terms, had the true ...
Rescission for Material Misrepresentation
Post 5418
Posted on August 5, 2026 by Barry Zalma
An Insurer May Rescind An Insurance Policy Where The Applicant Made A Material Misrepresentation In The Application.
In Union Mutual Fire Insurance Company v. 844 Knickerbocker, LLC, et al. No. 2024-10359, Index No. 602824/22, 2026 NY Slip Op 04789, Supreme Court of New York, Second Department (July 29, 2026) Union Mutual Fire Insurance Company issued commercial insurance policies to 844 Knickerbocker, LLC, and Sanjaya Mallick based on applications stating that the insured property contained two apartment units.
LAW:
A misrepresentation is material if the insurer would not have issued the same policy, or would have issued it only on different terms, had the true facts been disclosed. To establish materiality as a matter of law, the insurer must submit documentation of its underwriting practices, such as manuals, guidelines, bulletins, or rules addressing similar risks.
DISCUSSION/ANALYSIS:
As a result, the...
