SAN ANTONIO APPELLATE COURT JUSTICE ENCOURAGES SUPREME COURT TO REVIEW LYND V. RSUI INDEMNITY OPINION

January 17, 2013

Last April, we reported an opinion from the San Antonio Court of Appeals in a Hurricane Rita case that rendered judgment of $7.5 million against an insurer of a number of apartment complexes.  In Lynd Co. v. RSUI Indem. Co., 2012 WL 1030343 (Tex. App.—San Antonio March 28, 2012), the court held that the insurer was required to use the same method to calculate damages to various properties caused by one “occurrence,” i.e., the storm.  Accordingly, the court of appeals recalculated damages based on the parties stipulations and rendered judgment in that amount.

 Late last month, the court of appeals denied the insurer’s motion for en banc reconsideration.  However, one justice dissented from the denial.  Justice Rebecca Simmons would have held that the policy in question was a “scheduled” policy and not a “blanket” policy, and therefore would have followed the insurer’s proposed interpretation.  A second justice, while voting to deny reconsideration, wrote separately to state that Justice Simmons’ analysis “has substantial merit,” and that the Texas Supreme Court should review the panel opinion and dissent to resolve the disagreement.