Last Thursday, the Houston Court of Appeals, 14th District affirmed the trial court's take nothing judgment against Fireman's Fund Insurance in a lawsuit seeking over $100 million in damages related to a Hurricane Ike property damage claim. In Triyar Companies, LLC v. Fireman's Fund Insurance Company, 2017 WL 536641 (Tex. App. - Houston [14th Dist.] February 9, 2017), Triyar claimed damage to Greenspoint Mall and San Jacinto Mall from Hurricane Ike. Fireman's Fund investigated the claim, found storm related damage to both malls totaling $8,103,576. And after applying deductibles totaling $4,026,820, Fireman's Fund paid $4,076,756 based on Actual Cash Value. Triyar filed suit alleging breach of contract, breach of the duty of good faith and fair dealing and statutory violations under the Texas Insurance Code. After a one month jury trial, the jury found that the insurer did not breach the contract or violate the insurance code but answered other questions that were in conflict with these answers. On Fireman's Fund's motion, the trial court disregarded the contradictory findings and entered a take-nothing judgment in favor of Fireman's Fund. Triyar appealed the judgment and Fireman's Fund filed cross-points.

To address the issues on appeal, the Houston Court of Appeals presumed, without deciding, that the trial court erred in granting Fireman's Fund's motion to disregard and addressed the matter by analyzing the issues as raised in the insurer's first cross-point. The court examined multiple legal sufficiency and fact based issues and concluded that the take-nothing judgment was "appropriate based on some of Fireman's Fund's arguments under its first cross-point." Based on the jury's findings, Fireman's Fund: overpaid the amount owed for Actual Cash Value by $1.5 million; there was legally insufficient evidence to support a jury finding that the insurer's actions made it impossible for Triyar to repair or replace the damaged property; Triyar was not entitled to Replacement Cost Value; the evidence was legally insufficient to support any lost Business Income; and because "Fireman's Fund paid more than the amount of the only legally viable damage findings made by the jury, there is no basis for awarding the Triyar Parties any actual damages based on any of the bad-faith claims..." Accordingly, the court sustained Fireman's Fund's first cross-point, affirmed the trial court's take-nothing judgment against them and, ordered Triyar to pay all costs incurred in the appeal.

Editor's Note: Christopher Martin with Martin, Disiere, Jefferson & Wisdom, LLP had the privilege of defending Fireman's Fund in the trial court and takes this opportunity to congratulate Fireman’s Fund on this significant win.

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