Opinion issued November 26, 2019




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-17-00881-CV
                          ———————————
  CERTAIN UNDERWRITERS AT LLOYD’S, LONDON, SYNDICATE
  NUMBERS 2020, 1084, 2001, 457, 510, 2791, 2987, 3000, 1221, 5000 AND
      NAVIGATORS INSURANCE COMPANY UK, Appellants
                                       V.
              PRIME NATURAL RESOURCES, INC., Appellee


                   On Appeal from the 129th District Court
                            Harris County, Texas
                      Trial Court Case No. 2015-51137


                                 OPINION

      This oil and gas insurance dispute originated in 2005, when a well (the H-2

Well) and platform (the H-Platform) owned in part by appellee Prime Natural

Resources, Inc., were damaged during Hurricane Rita. Shortly after the storm, on
September 29, 2005, Prime informed its insurance providers, appellants Certain

Underwriters at Lloyd’s, London, Syndicate Numbers 2020, 1084, 2001, 457, 510,

2791, 2987, 3000, 1221, 5000, and Navigators Insurance Company UK

(collectively, Underwriters), of its losses.

      Prime made a claim on its policy with Underwriters, and Underwriters paid a

portion of that claim—$1,125,000, which includes the policy limits for the loss of

the H-Platform. In September 2007, Prime filed it first lawsuit seeking

approximately $4.7 million in remaining unpaid expenses under the policy. In

December 2007, Underwriters made a partial payment of approximately

$2,880,866 “for covered claims arising from pipeline damage and debris removal,

as well as well-redrill operations.” See Prime Nat. Res., Inc. v. Certain

Underwriters at Lloyd’s, London, No. 01-11-00995-CV, 2015 WL 1457534, at *2

(Tex. App.—Houston [1st Dist.] Mar. 26, 2015, no pet.) (mem. op.) (hereinafter,

Prime I). In Prime I, the trial court and this Court construed the terms of the policy

and ruled in favor of Underwriters that the portion of the policy covering the H-2

Well did not cover expenses for the H-Platform. Id. at *4.

      After Prime I issued, Prime filed the current lawsuit seeking approximately

$1.8 million in unpaid policy benefits for expenses it incurred related to redrilling

and recompleting the H-2 Well and making the H-2 Well safe from the risk of a

blowout or loss of control due to the damage caused by Hurricane Rita. Prime also


                                           2
alleged that Underwriters committed unfair or deceptive acts or practices in

violation of Insurance Code Chapter 541, and that Underwriters violated Insurance

Code Chapter 542’s Prompt Payment Act resulting in Underwriters owing Prime

statutory and prejudgment interest, including interest on the partial payment made

in December 2007. Underwriters counterclaimed, alleging that they had overpaid

Prime’s claim and seeking approximately $1.8 million in damages as a result of the

overpayment.

      The jury found in favor of Prime, finding that Underwriters had failed to

comply with the policy and that Prime was entitled to $1.8 million in unpaid policy

benefits. The jury further found violations of the Insurance Code based on

Underwriters’ unfair practices, it found that Underwriters committed those

violations knowingly, and it found that the December 2007 partial payment was

made conditionally, entitling Prime to statutory interest. The trial court entered

judgment on the jury’s award and Prime’s election of remedies for a total of

$19,562,960.94.

      On appeal, Underwriters challenge this judgment in three issues, arguing

that: (1) because Prime’s evidence of covered expenses was not based on the

correct interpretation of the policy and Prime I, Prime failed to prove that

Underwriters owed Prime additional policy benefits; (2) damages awarded under

Chapter 541 for unfair or deceptive acts or practices should be reversed; and


                                        3
(3) the trial court incorrectly awarded Chapter 542 interest and prejudgment

interest on Underwriters’ December 2007 partial payment. We conclude that the

trial court properly instructed the jury on the interpretation of the policy and there

was sufficient evidence to support the jury’s findings of actual damages. We

further conclude, however, that there was no evidence that Underwriters acted

knowingly, and we hold that the tender of the December 2007 partial payment was

unconditional. Accordingly, we affirm in part and reverse and remand in part for

further proceedings consistent with this opinion.

                                    Background

      Prime owns certain oil and gas drilling interests in the Gulf of Mexico,

including a fifty-percent interest in the H-2 Well. The H-2 Well is part of a larger

installation located about seventy-five miles south-southeast of Morgan City off

the Louisiana coast in an area called Ship Shoal Block 148 (SS 148). The H-2 Well

is a single well that stands alone adjacent to the H-Platform, a production platform.

The owner of the remaining fifty-percent interest in the H-2 Well is W&T

Offshore, Inc., which serves as the operator for the well installation.

      Underwriters issued a “Wellsure Energy Package” insurance policy (the

Policy) to insure, in part, Prime’s interest in the H-2 Well and the H-Platform.

Underwriters issued a substantially similar policy to W&T covering its interest in

the H-2 Well and H-Platform. The Policy is divided into three sections. Section I


                                           4
covers wells, with specific provisions in Section IA for “Control of Well

Insurance” and an additional endorsement for “Making Wells Safe.” Section IB

addresses the “Expense of Redrilling/Recompletion” of wells. Section II covers

platforms, caissons, pipelines, and flowlines.

      On September 23, 2005, Hurricane Rita swept through the Gulf and

damaged the H-2 Well. The windstorm toppled the H-Platform away from the H-2

Well and damaged the attached pipeline. Prime’s expert described the damage to

the H-2 Well and H-Platform as “catastrophic.” An aerial survey completed shortly

after the storm revealed that the H-2 Well and H-Platform were both missing and

were no longer visible above the surface of the water. W&T and Prime later

discovered that the outer thirty-inch conductor pipe that provided support for the

entire well apparatus had a seven-foot crack in it and was bent to a ninety-degree

angle about seven feet above the seabed. Control lines to subsurface controls and

the wellhead were damaged. The H-2 Well was buried underneath debris,

including some debris from the H-Platform. Prime’s expert further indicated that

due to the bend in the conductor pipe, the other casing strings—the smaller pipes

located inside the conductor pipe—had failed, which was especially concerning

because the H-2 Well had a history of corrosion that left the Well vulnerable to a

sudden unintended release of hydrocarbons even though it was not yet leaking in

the aftermath of the storm.


                                          5
      On September 29, 2005, Ken Reed with Prime emailed Alan Ammentorp, an

employee of Matthews Daniel (MattDan), the firm responsible for adjusting

Underwriters’ claims. Reed informed Underwriters that the H-Platform and H-2

Well had been lost. Around that same time, W&T, as the H-2 Well’s operator,

placed Andy Scott in charge of overseeing the repairs to the Well, coordinating

with the necessary contractors and governmental entities, communicating with and

submitting bills to Prime as the co-owner of the Well, and communicating with

Underwriters regarding insurance coverage through MattDan.

      By November 2005, notes and emails from Ammentorp indicate that he,

and, thus, MattDan, were aware that the H-Platform and the H-2 Well were on the

sea floor. On November 28, 2005, Ammentorp wrote a report to Underwriters

indicating that there was a constructive total loss of the H-Platform, and he

recommended that Underwriters reserve $1,375,000—including $1,125,000 in

platform Policy limits and $250,000 in pipeline limits—to pay this claim.

      By the end of January 2006, Prime began requesting partial payment based

on the total loss of the H-Platform. Around that same time in June 2006, W&T was

finally able to commence repairs, which had been delayed because Hurricanes Rita

and Katrina had struck within weeks of each other and had damaged hundreds of

platforms, wells, and pipelines in the Gulf. W&T prioritized repairs to its wells that

were actively leaking in the weeks after the storm, and it experienced numerous


                                          6
delays caused by overburdened work crews, limited repair resources, and the

lengthy permitting process dictated by the U.S. Department of the Interior’s

Mineral Management Service.

      On June 16, 2006, Underwriters agreed to pay Prime the Policy limits for the

loss of the H-Platform, and Underwriters subsequently issued a payment of

$1,125,000 on July 5, 2006.

      W&T continued making repairs, including cleaning up wreckage and debris;

recompleting and restoring the H-2 Well, which, according to Scott—who oversaw

the repairs and who later testified on behalf of Prime—required replacing the

wellhead and the production tree;1 reestablishing pipeline connections to the H-2

Well; and rebuilding the H-Platform. Scott further testified that W&T had regained

control of the H-2 Well and had rendered it “safe” by September 10, 2006.

      Over the next two months, W&T finished recompletion of the H-2 Well by

installing a permanent Christmas tree and preparing to stimulate the Well. The total

repair costs exceeded $17.5 million; Prime was required to pay half of that amount.

      By January 2007, W&T had submitted to MattDan all the repair costs and

supporting documentation, and W&T was paid on its claim in early March 2007 as


1
      Experts at trial explained that the wellhead is defined as the top of the well or the
      “surface termination of the wellbore that incorporates facilities for installing
      casing hangers during the well construction phase.” Experts stated that the
      “Christmas tree” or “production tree” is the part of the well that allows the
      operator to regulate pressures within the well.
                                            7
part of a negotiated settlement with Underwriters that covered W&T’s interest in

numerous oil and gas installments throughout the Gulf of Mexico, including the H-

2 Well and H-Platform.

      Prime likewise submitted its claim using identical costs and supporting

documentation, but it was not paid for its costs incurred in repairing and

recompleting the damaged H-2 Well at the same time as W&T. Prime argued that

it had submitted its final proof of loss on May 29, 2007. Nevertheless, on August

31, 2007, Underwriters agreed to make a partial payment of $2,820,866 for

“actual” well costs, but only if Prime provided the “proper” proof of loss.

      Prime became concerned that Underwriters was deliberately not paying its

claims. Accordingly, Prime filed its initial lawsuit, Prime I, in September 2007,

seeking recovery of its unpaid costs, which it alleged totaled approximately $4.7

million.

      In December 2007, after Prime I was filed, Underwriters made a partial

payment of $2,820,866 on what it characterized as Prime’s “well claim.” The

remainder of Prime’s claim was still unpaid, however, and the parties disputed

whether any additional expenses were covered under the Policy. Eventually, the

litigation in Prime I focused on platform-related costs and whether the costs

incurred beyond the Policy limits of Section IIA (covering expenses related to the

platforms and caissons) could be paid under other portions of the Policy.


                                          8
      In 2011, the trial court in Prime I rendered a declaratory judgment that:

      a. Coverage under Section II of the Policy (for Physical Loss and
      Physical Damage to the H platform) is limited in an amount to the
      Policy’s scheduled limits for platforms/caissons, pipelines and debris
      removal. Costs incurred by Prime to repair/refurbish the H platform or
      remove the platform debris in excess of the Policy limits are not
      covered under Section II.

      b. Section IB of the Policy (Expense of Redrilling/Recompleting) does
      not provide coverage for costs incurred to replace, repair or refurbish
      the H platform or platform equipment or to remove H platform debris;
      and

      c. Section IA (specifically, the Making Wells Safe Endorsement) does
      not provide coverage for costs to replace, repair or refurbish the H
      platform or remove H platform debris.

Prime I, 2015 WL 1457534, at *3. This Court affirmed the trial court’s Prime I

judgment as to paragraphs b and c, and Prime did not challenge the declaration of

paragraph a. See id.

      After Prime I was resolved, Prime filed the underlying lawsuit. It sought

unpaid benefits under Section IA’s Making Wells Safe Endorsement and under

Section IB for unpaid costs incurred in recompleting and making safe the H-2

Well—an amount Prime alleged was approximately $1.8 million dollars. Prime

also alleged that Underwriters committed unfair or deceptive acts or practices in

violation of Insurance Code Chapter 541, and that Underwriters owed it statutory

prejudgment interest for violations of Insurance Code Chapter 542’s Prompt

Payment Act in connection with the December 2007 partial payment. Underwriters


                                         9
counterclaimed, asserting that as a result of its $2.7 million partial payment in

December 2007, it had overpaid Prime by $1.86 million.

      During a lengthy trial, Prime and Underwriters presented numerous

witnesses regarding the nature of the damage to the H-2 Well and H-Platform, the

nature of the repairs that W&T undertook to restore the Well and Platform, the

nature of the coverage included in the Policy, and details of the insurance claims

process, including communications, investigation, and payments between Prime

and Underwriters. Scott in particular discussed the repairs made to the H-2 Well at

length, identifying specific invoices that went unpaid.

      The trial court instructed the jury on which types of expenses were covered

under various provisions of the Policy. The jury found that Underwriters failed to

comply with the Policy and that Prime’s resulting damages were $1,820,180.92.

The jury further found that Underwriters engaged in various unfair and deceptive

practices that resulted in damages to Prime, also in the amount of $1,820,180.92.

      The jury also found that Underwriters received notice of Prime’s claim on

September 29, 2005 and that Underwriters “fail[ed] to request from Prime all

items, statements, and forms that Underwriters reasonably believed, at that time,

would be required from Prime within 60 days of” September 29, 2005. Finally, the

jury found that “Underwriters fail[ed] to unconditionally tender the second partial

payment of $2,820,866 to Prime” made in December 2007.


                                         10
      The trial court rendered judgment based on the jury’s verdict and Prime’s

election of remedies, as follows:

      a. Actual damages of $1,820,180.92 as awarded by the jury;

      b. Prejudgment interest on the actual damages, at five percent simple
      interest per annum, accruing from March 28, 2006, in the amount of
      $2,706,104.85;

      c. Insurance Code [Chapter] 542 Prompt Payment damages, at 18
      percent simple interest per annum, accruing from November 26, 2005,
      in the amount of $9,932,726.87;

      d. Additional damages for Underwriters’ knowing violations of Texas
      Insurance Code [Chapter] 541 in the amount of $3,640,361.84; [and]

      e. Attorney’s fees of $1,463,586.46 as awarded by the jury for the
      necessary services of Prime’s attorneys in the trial court;

The trial court further awarded prejudgment interest on attorney’s fees incurred

before entry of judgment, conditional appellate attorney’s fees, costs, and

postjudgment interest on the entire amount of the judgment.

                            Additional Policy Benefits

      In their first issue, Underwriters argue that Prime’s evidence of covered

expenses was not based on a correct interpretation of the Policy or of Prime I and,

therefore, Prime failed to prove that Underwriters owed any additional Policy

benefits.




                                        11
A.    Standards of Review and Relevant Law

      This issue encompasses Underwriters’ complaint that the trial court

misinterpreted the Policy, that stare decisis compels a different interpretation of the

Policy than the one used to instruct the jury, and that the charge was erroneous and

unsupported by sufficient evidence.

      1.     Interpreting the Policy

      We construe insurance policies “using ordinary rules of contract

interpretation.” Nassar v. Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 257 (Tex.

2017) (per curiam) (quoting Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d

828, 831 (Tex. 2009)). When doing so, we must start with the policy’s language to

determine the parties’ intent “as reflected in the terms of the policy itself.” Id. at

257–58; see also Prime I, 2015 WL 1457534, at *4 (holding that “[t]he rules

governing interpretation of contracts, in general, apply to interpreting insurance

policies” and that our “primary concern” in construing them “is to give effect to

the written expression of the parties’ intent”) (citing Gilbert Tex. Constr. L.P. v.

Underwriters at Lloyd’s, London, 327 S.W.3d 118, 125 (Tex. 2010), and Mid-

Continent Cas. Co. v. Global Enercom Mgmt., Inc., 323 S.W.3d 151, 154 (Tex.

2010)). We review a trial court’s construction of an unambiguous contract de novo.

MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650–51 (Tex.

1999).


                                          12
      We must “examine the entire agreement and seek to harmonize and give

effect to all provisions so that none will be meaningless.” Nassar, 508 S.W.3d at

258 (quoting Gilbert Tex. Constr., 327 S.W.3d at 126); see Prime I, 2015 WL

1457534, at *4. No phrase, sentence, or section should be isolated from its setting

and considered apart from other contractual provisions. Id. (citing Forbau v. Aetna

Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994)). Unless the policy itself dictates

otherwise, we “give words and phrases their ordinary and generally accepted

meaning, reading them in context and in light of the rules of grammar and common

usage.” Id. (quoting RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 118 (Tex.

2015)). When construing an insurance policy, we should read the policy and its

endorsements together “unless they are so much in conflict they cannot be

reconciled.” TIG Ins. Co. v. N. Am. Van Lines, Inc., 170 S.W.3d 264, 271 (Tex.

App.—Dallas 2005, no pet.).

      We “give policy language its plain, ordinary meaning unless something else

in the policy shows the parties intended a different, technical meaning.” Tanner,

289 S.W.3d at 831; see Prime I, 2015 WL 1457534, at *4. If the contract can be

given an exact or certain legal interpretation, it is not ambiguous, and we must

interpret the insurance policy’s meaning and intent from its four corners. TIG Ins.

Co., 170 S.W.3d at 268; see also Prime I, 2015 WL 1457534, at *4 (“If an

insurance policy uses unambiguous language, we must enforce it as written.”).


                                        13
       2.     Applying Stare Decisis and Law of the Case

       “Generally, the doctrine of stare decisis dictates that once the Supreme Court

announces a proposition of law, the decision is considered binding precedent.” Sw.

Bell Tel. Co. v. Mitchell, 276 S.W.3d 443, 447 (Tex. 2008). Stare decisis governs

the determination of questions of law and its observance does not depend upon

identity of parties. Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964). “After a

principle, rule or proposition of law has been squarely decided by the Supreme

Court, or the highest court of the State having jurisdiction of the particular case,

the decision is accepted as a binding precedent by the same court or other courts of

lower rank when the very point is again presented in a subsequent suit between

different parties.” Id.

       “Considerations in favor of stare decisis are at their acme in cases involving

property and contract rights, where reliance interests are involved[.]” Pearson v.

Callahan, 555 U.S. 223, 233 (2009) (quoting Payne v. Tennessee, 501 U.S. 808,

828 (1991)); see Mitchell, 276 S.W.3d at 447–48; see also West Orange-Cove

Consol. Indep. Sch. Dist. v. Alanis, 107 S.W.3d 558, 604 (observing that stare

decisis grew out of “the necessity for a uniform and settled rule of property, and

definite basis for contracts and business transactions”); City of San Antonio v.

Tenorio, 543 S.W.3d 772, 799 (Tex. 2018) (Boyd, J., dissenting) (“Stare decisis

applies with particular force when the precedent at issue governs land titles,


                                         14
contracts, insurance policies, or common-law rules upon which parties have

probably relied in conducting their personal, family, and business affairs.”)

(internal quotations omitted). The doctrine, however, “is not absolute”: “[W]e

adhere to our precedents for reasons of efficiency, fairness, and legitimacy,” and

“when adherence to a judicially-created rule of law no longer furthers these

interests, and ‘the general interest will suffer less by such departure, than from a

strict adherence,’ we should not hesitate to depart from a prior holding.” Mitchell,

276 S.W.3d at 447. “[U]pon no sound principle do we feel at liberty to perpetuate

an error, into which either our predecessors or ourselves may have unadvisedly

fallen, merely upon the ground of such erroneous decision having been previously

rendered.” Id.

      Similar to stare decisis, the law-of-the-case doctrine is the “principle under

which questions of law decided on appeal to a court of last resort will govern the

case throughout its subsequent stages.” Loram Maint. of Way, Inc. v. Ianni, 210

S.W.3d 593, 596 (Tex. 2006); see Entergy Corp. v. Jenkins, 469 S.W.3d 330, 336

(Tex. App.—Houston [1st Dist.] 2015, pet. denied).

      Under the law-of-the-case doctrine, a court of appeals will ordinarily be

bound by its initial decision if there is a subsequent appeal in the case. Briscoe v.

Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003) (“By narrowing the issues in

the successive stages of the litigation, the law of the case doctrine is intended to


                                         15
achieve uniformity of decision as well as judicial economy and efficiency.”);

Jenkins, 469 S.W.3d at 336–37. This doctrine is based on public policy and is

aimed at bringing finality to litigation. Jenkins, 469 S.W.3d at 337. A decision

rendered on an issue by an appellate court does not, however, absolutely bar

reconsideration of the issue on a second appeal. Id. The doctrine does not

necessarily apply when either the issues or the facts presented in successive

appeals are not substantially the same as those involved in the first trial. Id.

         3.    Reviewing Charge Error

         The trial court shall submit instructions and definitions as shall be proper to

enable the jury to reach a verdict and that are raised by the written pleadings and

the evidence. TEX. R. CIV. P. 277, 278.

         We review a trial court’s decision to submit or refuse a particular instruction

under an abuse-of-discretion standard. Shupe v. Lingafelter, 192 S.W.3d 577, 579

(Tex. 2006). “One way in which a trial court abuses its discretion is by failing to

follow guiding rules and principles.” Columbia Rio Grande Healthcare, L.P. v.

Hawley, 284 S.W.3d 851, 856 (Tex. 2009) (citing Bocquet v. Herring, 972 S.W.2d

19, 21 (Tex. 1998)). In preparing the charge, trial courts have no discretion to

misstate the law. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 525 & n.32 (Tex.

2003).




                                            16
       A judgment will not be reversed for charge error unless the error was

harmful because it probably caused the rendition of an improper verdict or

probably prevented the petitioner from properly presenting the case to the appellate

courts. TEX. R. APP. P. 44.1; Hawley, 284 S.W.3d at 856. Charge error is generally

considered harmful if it relates to a contested, critical issue. Hawley, 284 S.W.3d at

856.

       4.    Reviewing Sufficiency of the Evidence

       A legal-sufficiency challenge will be sustained only if: (1) there is a

complete absence of evidence of a vital fact; (2) the court is barred by rules of law

or of evidence from giving weight to the only evidence offered to prove a vital

fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla;

or (4) the evidence conclusively establishes the opposite of a vital fact. City of

Keller v. Wilson, 168 S.W.3d 810, 810, 822 (Tex. 2005). In our review, we are

mindful that jurors are the sole judges of the credibility of the witnesses and the

weight to be given their testimony. Id. at 819. We review the evidence presented at

trial in the light most favorable to the jury’s verdict, crediting favorable evidence if

reasonable jurors could and disregarding contrary evidence unless reasonable

jurors could not. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 770 (Tex.

2010).




                                          17
B.    Analysis of Claim for Additional Policy Benefits

      Prime’s central claim was that it was owed additional Policy benefits for

costs it incurred in making the H-2 Well safe and in redrilling and recompleting the

H-2 Well. Prime claimed that it was owed these additional Policy benefits under

either the Making Wells Safe Endorsement found in Section IA of the Policy or

under the coverage for redrilling and recompletion in Section IB.

      1.     Language of the Policy

      Section I of the Policy covers wells, specifically “Control of the Well(s)”

and “Redrilling/Recompletion” of the covered well(s). Under the general

conditions in Section I of the Policy, in paragraph 16, the Policy describes when

coverage attaches and terminates. In this section, the Policy provides that coverage

for wells insured “during drilling only” shall terminate “upon either total and/or

complete abandonment or completion of such well(s), which shall include the

setting of the ‘Christmas Tree,’ pumping equipment or well head equipment or the

dismantling or removal of the drilling equipment from the drill site, or the

termination of the Assured’s responsibility under contract. . . .”

      Section I’s Policy limits for Prime’s interest in the H-2 Well was

$25,000,000 per occurrence.

      Section IA contains “Control of Well Insurance” provisions. Under

“Coverage,” it provides, in relevant part, that Underwriters would reimburse Prime


                                          18
“for actual costs and/or expenses incurred . . . in regaining control of all well(s)

insured hereunder which get out of control” and “for removal of wreckage and/or

debris of property of [Prime], owned or leased in whole or in part, resulting from a

loss insured [under this section] provided removal and/or destruction is required by

a legal or contractual obligation of [Prime].” The Policy further stated that “from

any such claim for costs and/or expenses shall be deducted the value of any

property salvaged or recovered inuring finally and irrevocably to [Prime’s]

benefit.”

      Section IA defined “Well Out of Control”:

      A well(s) shall be deemed to be out of control when there is a
      continuous unintended, uncontrolled flow of drilling fluid, oil, gas
      and/or water from the well, above the surface of the earth and/or
      waterbottom or when it is declared to be out of control by the
      appropriate regulatory authority.

Section IA also specifically defined covered expenses and provided for termination

of expenses once the well “can be reentered for salvage, fishing or cleaning

operations or to resume drilling”; “brought under control above the surface of the

ground (or waterbottom in the case of a well located in water)”; “is plugged and

abandoned; whichever shall first occur”; or “upon the approval of the appropriate

regulatory authority.” And Section IA expressly excludes certain costs, including

“damage to any part of contractor’s drilling rig and equipment, loss or damage to

property, . . . and all expense of conditional well(s) to resume drilling operations.”


                                          19
      Section IA of the Policy further included a “Making Wells Safe

Endorsement” that provided as follows:

      In respect of wells insured hereunder and in consideration of payment
      of an additional premium . . . , Section IA of this Certificate is
      endorsed to cover reimbursement to the Assured for the actual costs
      and expenses incurred in preventing the occurrence of a loss insured
      hereunder when the drilling and/or workover and/or production
      equipment has been directly lost or damaged by . . . windstorm . . . but
      only when, in accordance with all regulations, requirements and
      normal and customary practices in the industry, is it necessary to re-
      enter the original well(s) in order to continue operations or restore
      production from or plug and abandon such well(s).
             Underwriters’ liability for costs and expenses incurred by
      reason of this endorsement shall cease at the time that:
         (1) operations or production can be safely resumed, or
         (2) the well is or can be safely plugged and abandoned,
         whichever shall first occur.

      Section IB of the Policy provides additional well coverage, addressing the

“Expense of Redrilling/Recompletion.” It provides coverage for:

      actual expenses incurred by [Prime] including all in-hole equipment
      (including casing) owned by the Assured in redrilling, recompletion,
      washover, fishing and/or any other salvage operations as may be
      necessary to recover or restore any well which may be lost or
      damaged as a result of . . . windstorm . . . and which cannot be
      recovered or restored by means other than redrilling and/or
      recompletion. Actual expenses for redrilling or recompletion shall be
      limited to the depth of the well and comparable condition that existed
      prior to the loss.

      Section IB further provides that Underwriters’ liability terminates “when a

lost or damaged well is restored to the original depth and comparable condition




                                         20
that existed prior to the well becoming out of control, on fire or lost or damaged”

as a result of a covered peril, such as a windstorm.

      Section IIA of the Policy is referred to as the “London Standard Platform

Form.” The “Platforms/Caissons” associated with the SS 148 installation was

specifically listed on the “Schedule of Property Insured.” It insured “against all

risks of direct physical loss to the property insured,” including loss attributable to

windstorm. The “sum insured” of the SS 148 installation was listed in the schedule

as $900,000.

      Section IIB of the Policy is referred to as the “Pipeline Form.” This form

insured the enumerated Pipelines/Flowlines, including the “SS148 to SS 149” for

up to $200,000.

      2.       Jury Charge and Jury Findings

      The trial court instructed the jury as follows:

      1. Coverage under Section II of the Policy (for Physical Loss and
      Physical Damage to the H Platform and removal of the debris of the H
      platform) is limited in an amount to the Policy’s scheduled limits for
      platforms/caissons, pipelines and debris removal. Costs incurred by
      Prime to repair/refurbish the H platform or remove the platform debris
      in excess of the Policy limits are not covered under Section II.

      2. Section IB of the Policy (Expense of Redrilling/Recompletion) does
      not provide coverage for costs incurred to replace, repair or refurbish
      the H platform or platform equipment or to remove H platform debris.

      3. Section IA (specifically, the Making Wells Safe Endorsement) does
      not provide coverage for costs to replace, repair or refurbish the H
      platform or remove the H platform debris.

                                          21
      4. Section IB of the Policy is not limited to recompletion costs that
      Prime incurred for work inside the borehole. Section IB of the Policy
      provides coverage for all recompletion costs, including, but not
      limited to, repairing and replacing the H2 wellhead, the H2 Christmas
      tree, and the 30” and 48” inch pipes that supported the H2 wellhead
      and H2 Christmas tree.

      5. The Making Wells Safe Endorsement is not limited to costs that
      Prime incurred for work inside the borehole to make the well safe.
      The Making Wells Safe Endorsement provides coverage for the actual
      costs and expenses that Prime incurred to prevent the occurrence of a
      continuous, unintended, uncontrolled flow of drilling fluid, oil, gas,
      and/or water from the H2 well, above or below the surface of the earth
      and/or water bottom.

The charge then asked the jury generally, “Did Underwriters fail to comply with

the Policy.” The jury found that it did, awarding Prime $1,820,180.92 as actual

damages.

      Underwriters challenge jury instruction numbers four and five, which state

that coverage under the Making Wells Safe Endorsement of Section IB “is not

limited to costs that Prime incurred for work inside the borehole.” Underwriters

argue that this instruction is contradicted by the Policy terms and this Court’s

previous interpretation of the Policy in Prime I.

      3.     Instructions on the Policy Language

      Underwriters objected to the instruction that “Section IB of the Policy is not

limited to recompletion costs that Prime incurred for work inside the borehole” but

also includes “all recompletion costs, including, but not limited to, repairing and

replacing the H2 wellhead, the H2 Christmas tree, and the 30” and 48” inch pipes

                                          22
that supported the H2 wellhead and H2 Christmas tree.” Underwriters further

tendered their own proposed instructions, which were rejected by the trial court.

Relevant here, Underwriters sought a jury instruction stating that the term “well”

“does not include a production platform or other appurtenances associated with the

well itself.” Underwriters further sought an instruction that “‘Well’ means the hole

made by the drilling bit, which can be open, cased or both, also called a borehole,

hole, or wellbore.”

      Underwriters further argue that Prime failed to prove that Underwriters

owed it additional Policy benefits under the Making Wells Safe endorsement

because its evidence was “untethered” from the language of the Policy. Again, we

construe this, in part, as an assertion that the jury instruction stating that Making

Wells Safe coverage was not limited to costs incurred for work inside the borehole

was erroneous.

      On appeal, Underwriters argue that Prime I held that neither Section IA’s

Making Wells Safe Endorsement nor Section IB covered costs to restore items

outside the borehole and that the trial court failed to provide the jury with a correct

interpretation of the Policy. This argument, however, is based on an overly broad

reading of Prime I. We agree that, under the principles of law of the case and stare

decisis, the courts are bound to follow the legal rulings set out in Prime I. But




                                          23
Prime I considered a narrow set of legal questions that are distinct in several key

ways from the questions at issue in this appeal.

      In Prime I, this Court affirmed the trial court’s judgment declaring that:

      b. Section IB of the Policy (Expense of Redrilling/Recompleting) does
      not provide coverage for costs incurred to replace, repair or refurbish
      the H platform or platform equipment or to remove H platform debris;
      and

      c. Section IA (specifically, the Making Wells Safe Endorsement) does
      not provide coverage for costs to replace, repair or refurbish the H
      platform or remove H platform debris.

2015 WL 1457534, at *3, 9, 11. In reaching this conclusion, the Court construed

various aspects of the Policy.

      Regarding Section IB, covering redrilling and recompletion costs, Prime I

held, “The plain language of Section IB covered expenses incurred in recompletion

efforts and salvage operations to restore an insured ‘well’ that was lost or damaged

by specified perils, including windstorm, to its pre-loss condition,” and that,

although the term “well” was not defined in the Policy:

      it is commonly understood to mean “the hole made by the drilling bit,
      which can be open, cased or both. Also called borehole, hole, or
      wellbore.” Thus, the term “well” is not commonly understood, in the
      industry or otherwise, to include a production platform or other
      “appurtenances” associated with the well itself, as asserted by Prime.

Id. at *8 (internal citations omitted). Prime I further stated:

      Section IB expressly obligated Underwriters to only “reimburse
      [Prime] for actual expenses incurred by [Prime] including all in-hole
      equipment (including casing) owned by [Prime].” (Emphasis added).

                                           24
      As Underwriters’ counsel argued to the trial court, restoring the actual
      “well” to its comparable, pre-loss condition, simply involved restoring
      the well’s internal components, i.e., the type, kind and location of the
      casing set, the number of liners, and any sand screens.

Id. Prime I further considered definitions for terms like “debris” and “salvage”

before concluding that “the trial court did not err in granting summary judgment by

declaring that ‘Section IB of the Policy (Expense of Redrilling/Recompleting) does

not provide coverage for costs incurred to replace, repair or refurbish the [H-

Platform] or platform equipment or to remove [H-Platform] debris.” Id. at *8–9.

      Regarding the Making Wells Safe Endorsement, in Prime I, Prime attempted

to frame the issue broadly, arguing that it presented summary-judgment evidence

demonstrating that it had incurred substantial costs to ensure the H-2 Well did not

become out of control and, therefore, the trial court erred to the extent it

determined Prime did not incur costs covered by Section IA and Making Wells

Safe Endorsement. Id. at *9. This Court, however, observed that the trial court’s

judgment “simply and narrowly declared” that “Section IA (specifically, the

Making Wells Safe Endorsement) does not provide coverage for costs to replace,

repair or refurbish the H-Platform or remove H-Platform debris.” Id. at *10.

Regarding the scope of the issues decided, Prime I stated:

      Although Prime frames its issue in terms of whether it incurred certain
      costs, the trial court made no determination, either explicitly or
      implicitly, as to whether Prime actually incurred such costs. Nor did it
      make any determination about how Underwriters had classified
      Prime’s costs. As is readily apparent from the express language of the

                                        25
      trial court’s judgment, it merely declared that certain specific costs—
      described as costs to replace, repair, or refurbish the H-Platform, or
      remove the H-Platform debris—were not covered under Section IA or
      the Making Wells Safe Endorsement.

Id. Prime I construed that language of Section IA of the Policy and the Making

Wells Safe Endorsement, specifically holding:

      [T]he “Making Wells Safe Endorsement,” which applied to Section
      IA, provided Prime additional coverage for “actual costs and
      expenses” incurred in “preventing” a blowout or well out of control
      “when the drilling and/or workover and/or production equipment has
      been directly lost or damaged” by specifically enumerated risks,
      including windstorm. However, it applied “only when, in accordance
      with all regulations, requirements and normal and customary practices
      in the industry, it [was] necessary to reenter the original well(s) in
      order to continue operations or restore production from or plug and
      abandon such well(s).” And Underwriters’ liability for such costs and
      expenses incurred by reason of the endorsement ceased at the time
      that (1) “operations or production [could] be safely resumed” or (2)
      “the well is or [could] be safely plugged and abandoned,” whichever
      occurred first.

Id. Prime I further observed that Prime did not direct the Court “to any summary-

judgment evidence demonstrating that the H-Platform’s replacement, repair, or

refurbishment, or the removal of the H-Platform’s debris was necessary to prevent

the H-2 Well from blowing out or becoming out of control.” Id. at *11.

Accordingly, Prime I concluded:

      Focusing on the actual wording of the trial court’s judgment
      concerning Section IA and the Making Wells Safe Endorsement, we
      conclude that its declaration is consistent with the express language of
      the section and the endorsement, especially when read in the context
      of the entire Policy. Accordingly, we hold that the trial court did not
      err in declaring that “Section IA (specifically, the Making Wells Safe

                                        26
      Endorsement) does not provide coverage for costs to replace, repair or
      refurbish the H-Platform or remove H-Platform debris.”

Id.

      Notably, the trial court in the underlying proceeding provided jury

instructions consistent with the holdings in Prime I, informing jurors that:

      1. Coverage under Section II of the Policy (for Physical Loss and
      Physical Damage to the H Platform and removal of the debris of the H
      platform) is limited in an amount to the Policy’s scheduled limits for
      platforms/caissons, pipelines and debris removal. Costs incurred by
      Prime to repair/refurbish the H platform or remove the platform debris
      in excess of the Policy limits are not covered under Section II.

      2. Section IB of the Policy (Expense of Redrilling/Recompletion) does
      not provide coverage for costs incurred to replace, repair or refurbish
      the H platform or platform equipment or to remove H platform debris.

      3. Section IA (specifically, the Making Wells Safe Endorsement) does
      not provide coverage for costs to replace, repair or refurbish the H
      platform or remove the H platform debris.

      Prime I, however, did not address what actions or components would be

involved in “recompleting” the covered well or making the well safe, nor did

Prime I address whether items such as the wellhead, Christmas tree, or conductor

casings would be considered part of the H-2 Well or part of the H-Platform.

      Because Prime I did not provide a thorough construction of what Section IA,

the Making Wells Safe Endorsement, or Section IB do cover—it held only that

they do not cover costs incurred to replace, repair, or refurbish the H-platform or

remove platform debris—these legal questions were left for further construction. In


                                         27
fact, Prime I expressly disclaimed making any determination regarding which

expenses might be covered by the various Policy provisions, stating, “The question

of whether the costs and expenses actually incurred by Prime can be classified as

falling within one or more of these excluded types of costs was not before the trial

court and is not before this Court on appeal.” Id. at *9 n.5.

       Looking to the plain language of the Policy itself, there is support for the

trial court’s further instructions that:

       4. Section IB of the Policy is not limited to recompletion costs that
       Prime incurred for work inside the borehole. Section IB of the Policy
       provides coverage for all recompletion costs, including, but not
       limited to, repairing and replacing the H2 wellhead, the H2 Christmas
       tree, and the 30” and 48” inch pipes that supported the H2 wellhead
       and H2 Christmas tree.

       As we held in Prime I, “The plain language of Section IB covered expenses

incurred in recompletion efforts and salvage operations to restore an insured ‘well’

that was lost or damaged by specified perils, including windstorm, to its pre-loss

condition.” Id. at *8. Specifically, the Policy provides that

       Underwriters agree . . . to reimburse [Prime] for actual expenses
       incurred by [Prime] including all in-hole equipment (including casing)
       owned by [Prime] in redrilling, recompletion, washover, fishing
       and/or any other salvage operations as may be necessary to recover or
       restore any well which may be lost or damaged as a result of . . .
       windstorm . . . and which cannot be recovered or restored by means
       other than redrilling and/or recompletion. Actual expenses for
       redrilling or recompletion shall be limited to the depth of the well and
       comparable condition that existed prior to the loss.



                                           28
By this plain language, the Policy contemplates more than just redrilling or

restoring the borehole—otherwise, the use of the additional term “recompletion” or

the explanation “including all in-hole equipment (including casing)” would not

have been necessary.

      While “recompletion” is not expressly defined in the Policy, the general

provisions of Section I include a statement that “completion” of wells insured

during drilling only “shall include the setting of the ‘Christmas Tree,’ pumping

equipment or well head equipment or the dismantling or removal of the drilling

equipment from the drill site.” This explanation of “completion” in the Policy

supports a conclusion that “recompletion” likewise includes repeating those same

steps. Accordingly, the trial court’s instruction on Section IB does not conflict with

either Prime I or the language of the Policy.

      Nor does it appear that instructing the jury, as Underwriters suggest, that

“[t]he term ‘well’ does not include a production platform or other appurtenances

associated with the well itself,” or that “‘[w]ell’ means the hole made by the

drilling bit, which can be open, cased or both, also called a borehole, hole, or

wellbore,” would have properly construed Section IB of the Policy or have aided

the jury in determining what was meant by “redrilling” or “recompletion” of the

covered well. See TEX. R. CIV. P. 277; Hawley, 284 S.W.3d at 855–56 (holding




                                         29
that for instruction to be proper, it must: (1) assist jury; (2) accurately state law;

and (3) find support in pleadings and evidence).

      Underwriters argue that the instruction given by the trial court does not

comport with the scope of the Making Wells Safe Endorsement. However, the

Making Wells Safe Endorsement provides:

      Section IA of this Certificate is endorsed to cover reimbursement to
      [Prime] for the actual costs and expenses incurred in preventing the
      occurrence of a loss insured hereunder when the drilling and/or
      workover and/or production equipment has been directly lost or
      damaged by . . . windstorm . . . but only when, in accordance with all
      regulations, requirements and normal and customary practices in the
      industry, is it necessary to re-enter the original well(s) in order to
      continue operations or restore production from or plug and abandon
      such well(s).
             Underwriters’ liability for costs and expenses incurred by
      reason of this endorsement shall cease at the time that:
         (1) operations or production can be safely resumed, or
         (2) the well is or can be safely plugged and abandoned,
         whichever shall first occur.

Section IA further provides an explanation of the type of occurrence of a loss that

is covered by the Making Wells Safe Endorsement by defining “Well Out of

Control” as follows:

      A well(s) shall be deemed to be out of control when there is a
      continuous unintended, uncontrolled flow of drilling fluid, oil, gas
      and/or water from the well, above the surface of the earth and/or
      waterbottom or when it is declared to be out of control by the
      appropriate regulatory authority.

      The trial court’s instruction comports with the plain language of the Policy,

which does not limit costs to those incurred within the borehole itself, but

                                         30
expressly states that it applies when “the drilling and/or workover and/or

production equipment has been directly lost or damaged by . . . windstorm.” The

remainder of the jury instruction given tracks the language of the Policy.

      Furthermore, to the extent that Underwriters are attempting to argue that the

trial court should have instructed the jury on the Policy provisions that the Making

Wells Safe endorsement only applies “when, in accordance with all regulations,

requirements and normal and customary practices in the industry, is it necessary to

re-enter the original well(s) in order to continue operations or restore production

from or plug and abandon such well(s)” or the conditions that resulted in

Underwriters’ liability ceasing, they did not present alternative jury questions

providing any such explanation. And it was reasonable for the trial court to

consider the answers to those questions—i.e., whether reentering the well was

necessary and when operations or production could safely be resumed or the well

could safely be plugged and abandoned—as being fact questions left to the jury’s

discretion in determining whether Underwriters complied with the Policy.

      4.     Sufficiency of the Evidence

      Underwriters argue that Prime failed to prove under the correct

interpretation of Section IB that Underwriters owed any additional Policy benefits,

stating in its reply brief, “[I]f the trial court’s instructions were correct, there is

evidence of damages under Section IB; but . . . if the instructions were wrong, and


                                          31
Section IB covers only the restoration of the well and its internal components,

there is no evidence Underwriters failed to pay any covered expenses.”

      As outlined above, we have already determined that the trial court did not err

in instructing the jury. We further conclude that the testimony and other evidence

admitted through Prime’s expert, Andy Scott, presents legally and factually

sufficient evidence that could have been credited by the jury on this question. Scott

oversaw the entire repair process on behalf of W&T and was later retained by

Prime to investigate and explain the discrepancy between what Underwriters paid

W&T and what it paid Prime on identical work and invoices.

      Scott provided detailed testimony regarding both general industry practice

and the original construction of SS 148 formation, specifically the H-2 Well and

H-Platform. Scott testified extensively regarding the damage to the H-2 Well and

H-Platform, the danger posed by the severely damaged H-2 Well, and the nature of

the repairs that were necessary to restore the H-2 Well and H-Platform.

      Scott pointed out that the H-2 Well itself did not have a platform. He also

testified that the H-Platform was “just a little simple unmanned production facility

and the only thing that’s located up here is a test separator” used for conducting

government-required testing of the H-2 Well’s production. He said that, ordinarily,

production from the H-2 Well would flow directly to SS 149, a nearby full

production unit.


                                         32
      Scott reviewed the 688 invoices generated in connection with Prime’s loss.

He opined that Prime incurred costs for recompleting the H-2 Well and for making

the Well safe in excess of the $2.7 million that Underwriters had already paid, and,

after reviewing the Final Statement of Claim prepared by Craig Nelson at

MattDan, Underwriters still owed Prime more than $1.8 million. He identified

approximately 221 invoices that Underwriters had not yet paid that were, in whole

or in part, incurred for repairs to make the H-2 Well safe and restore it to its pre-

loss condition. He presented this evidence to the jury by testimony and in a

spreadsheet.

      Underwriters further argue that Prime failed to provide evidence supporting

any jury finding in its favor under the Making Wells Safe Endorsement, asserting

that Prime’s proof was “untethered” from the language of Policy. However, Scott

testified that, in accordance with industry standards and customs, it was necessary

to reenter the H-2 Well to prevent a loss of control of it. He further itemized for the

jury the costs that Prime incurred in making the H-2 Well safe. While Underwriters

contest Scott’s testimony regarding the extent and nature of Prime’s loss and

provided expert witnesses of their own to contradict Prime’s account of the

necessary repairs, the jury was entitled to disbelieve Underwriters’ evidence, to

believe Prime’s expert, and to credit Prime’s evidence. See Wilson, 168 S.W.3d at

819 (we must be mindful that jurors are sole judges of witnesses’ credibility and


                                          33
weight to be given their testimony); Del Lago Partners, 307 S.W.3d at 770 (we

review evidence in light most favorable to jury’s verdict, crediting favorable

evidence if reasonable jurors could and disregarding contrary evidence unless

reasonable jurors could not).

      We overrule Underwriters’ first issue.2

                         Insurance Code Ch. 541 Findings

      In their second issue, Underwriters argue that Prime failed to establish its

entitlement to damages under Insurance Code Chapter 541 for Underwriters’

alleged unfair or deceptive acts or practices.

A.    Law Governing Chapter 541

      The Texas Insurance Code authorizes a private action against an insurer that

commits “an unfair or deceptive act or practice in the business of insurance.” TEX.

2
      Underwriters make a Casteel argument, asserting that we must reverse if the
      instructions for either Section IB or the Making Wells Safe endorsement were
      erroneous. Underwriters also argue that, because the charge erroneously expanded
      the Policy’s coverage, Prime failed to properly segregate covered and non-covered
      repairs. We have concluded, however, that there was no error in the charge
      regarding either Policy provision. See, e.g., Crown Life Ins. Co. v. Casteel, 22
      S.W.3d 378, 389 (Tex. 2000) (“When a single broad-form liability question
      erroneously commingles valid and invalid liability theories and the appellant’s
      objection is timely and specific, the error is harmful when it cannot be determined
      whether the improperly submitted theories formed the sole basis for the jury’s
      finding.”); Comsys Info. Tech. Servs., Inc. v. Twin City Fire Ins. Co., 130 S.W.3d
      181, 198 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (“[W]hen covered
      and non-covered perils combine to create a loss, the insured is entitled to recover
      that portion of the damage caused solely by the covered peril,” and “the burden of
      segregating the damage attributable solely to the covered event is a coverage issue
      for which the insured carries the burden of proof”). As discussed above, Prime
      provided evidence of its covered losses that the jury was entitled to credit.
                                          34
INS. CODE § 541.151; Barbara Techs. Corp. v. State Farm Lloyds, No. 17-0640,

2019 WL 2710089, at *14 (Tex. June 28, 2019); see also TEX. INS. CODE

§ 541.152 (providing that prevailing plaintiff may obtain actual damages plus court

costs and reasonable attorney’s fees, and, when complained-of act was done

knowingly, may be awarded up to three times amount of actual damages); Ortiz v.

State Farm Lloyds, No. 17-1048, 2019 WL 2710032, at *5 (Tex. June 28, 2019). If

an insurer fails to pay the full amount of the claim as a result of an unfair claim-

settlement practice under the Insurance Code, the insured may elect to recover its

damages under either a breach-of-contract or a statutory-violation theory. Waite

Hill Servs, Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 185 (Tex.

1998); USAA Tex. Lloyd’s Co. v. Griffith, No. 13-17-00337-CV, 2019 WL

2611015, at *8 (Tex. App.—Corpus Christi–Edinburg June 26, 2019, no pet.)

(mem. op.); see Barbara Techs., 2019 WL 2710089, at *14.

      Prime alleged that Underwriters engaged in various statutorily prohibited

unfair settlement practices, including refusing to pay Prime’s claim without

conducting a reasonable investigation of the claim, failing to affirm or deny the

claim within a reasonable time, failing to provide a prompt explanation for the

basis of the denial, misrepresenting the coverage at issue, failing to settle in good

faith once its liability had become reasonably clear, and failing to settle in good

faith a claim under one portion of the Policy to influence Prime to settle another


                                         35
claim under another portion of the Policy. See TEX. INS. CODE § 541.060(a)(1)–(4),

(7).

       An insured’s claim for breach of an insurance contract “is distinct and

independent from a claim that an insurer violated the Insurance Code.’” Barbara

Techs., 2019 WL 2710089, at *14 (quoting USAA Tex. Lloyds Co. v. Menchaca,

545 S.W.3d 479, 489 (Tex. 2018)). In Ortiz, the supreme court clarified that

“although a breach of contract finding is not a prerequisite to recovery for a

statutory violation that ‘caused’ the insured’s damages, the ‘general rule’ is that ‘an

insured cannot recover policy benefits as actual damages for an insurer’s statutory

violation if the insured has no right to those benefits under the policy.” 2019 WL

2710032, at *5 (quoting Menchaca, 545 S.W.3d at 495). The corollary to this rule

is that “an insured who establishes a right to benefits under the policy can recover

those benefits as actual damages resulting from a statutory violation.” Id.; see also

Menchaca, 545 S.W.3d at 496 (“If an insurer’s wrongful denial of a valid claim for

benefits results from or constitutes a statutory violation, the resulting damages will

necessarily include ‘at least the amount of policy benefits wrongfully withheld.’”).

“And regardless of whether an insured is entitled to benefits under the policy, he

may recover damages for a statutory violation that causes an injury ‘independent

from the loss of the benefits.’” Ortiz, 2019 WL 2710032, at *5.




                                          36
      An insurer does not breach its common law duty of good faith merely by

erroneously denying a claim. Griffith, 2019 WL 2611015, at *8 (citing US Fire Ins.

Co. v. Williams, 955 S.W.2d 267, 268 (Tex. 1997) (per curiam)). Nor does

evidence showing only a bona fide coverage dispute, by itself, demonstrate bad

faith. Id.; see Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 67 (Tex. 1997) (“[A]

simple disagreement among experts about whether the cause of the loss is one

covered by the policy will not support a judgment for bad faith.”).

      On the other hand, an insurer’s reliance on an expert report, standing alone,

will not necessarily shield the insurer if there is evidence that the report was not

objectively prepared or the insurer’s reliance on the report was unreasonable.

Griffith, 2019 WL 2611015, at *8 (citing State Farm Lloyds v. Nicolau, 951

S.W.2d 444, 448 (Tex. 1997)). Whether an insurer acted in bad faith because it

denied or delayed payment of a claim after its liability became reasonably clear is a

question for the fact-finder. Giles, 950 S.W.2d at 56; Pena v. State Farm Lloyds,

980 S.W.2d 949, 955 (Tex. App.—Corpus Christi–Edinburg 1998, no pet.).

B.    Relevant Jury Findings

      The jury found that Underwriters engaged in the following unfair or

deceptive acts that caused damage to Prime:

      (1) Refusing to pay Prime’s claim without conducting a reasonable
      investigation of the claim;



                                         37
      (2) Failing to affirm or deny coverage of Prime’s claim within a
      reasonable time;

      (3) Failing to promptly provide Prime a reasonable explanation of the
      factual and legal basis in the policy for Underwriters’ denial of the
      claim;

      (4) Misrepresenting to [Prime] a material fact or policy provision
      relating to the coverage at issue;

      (5) Failing to attempt in good faith to effectuate a prompt, fair, and
      equitable settlement of Prime’s claim when Underwriters’ liability had
      become reasonably clear; [and]

      (6) Failing to attempt in good faith to effectuate a prompt, fair, and
      equitable settlement of a claim under one portion of a policy, for
      which Underwriters’ liability had become reasonably clear, to
      influence Prime to settle another claim under another portion of the
      coverage.

For each of these enumerated unfair or deceptive acts, the jury determined that

Prime’s damages were $1,820,180.92—the amount of additional Policy benefits to

which Prime was entitled.

      The jury also found that Underwriters engaged in the conduct enumerated in

numbers (2) through (6) knowingly. The jury determined that Prime was entitled to

$5,460,542.76 in additional damages because of the knowing conduct, and the trial

court reduced that award to the statutory maximum of $3,640,361.84.

C.    Actual Damages

      Underwriters first argue, relying on Menchaca, that an insurer does not

violate Chapter 541 by failing to pay the benefits unless an insured is entitled to


                                        38
benefits under the Policy. See Menchaca, 545 S.W.3d at 494–95; see also Ortiz,

2019 WL 2710032, at *5 (“[A]lthough a breach of contract finding is not a

prerequisite to recovery for a statutory violation that ‘caused’ the insured’s

damages, the ‘general rule’ is that ‘an insured cannot recover policy benefits as

actual damages for an insurer’s statutory violation if the insured has no right to

those benefits under the policy.”). Underwriters argue, “Accordingly, if Prime is

not entitled to additional policy benefits, it is not entitled to any recovery under

Chapter 541,” and they argue that “Prime presented no evidence of damages other

than the failure to pay additional policy benefits.” Because we have already held

that the jury did not err in finding that Prime was entitled to additional benefits

under the Policy, we reject this argument. See Ortiz, 2019 WL 2710032, at *5,

Menchaca, 545 S.W.3d at 494–95.

      Underwriters also argue that Prime presented no evidence that any of the

alleged Chapter 541 violations caused the denial of the disputed Policy benefits.

Prime relies on Menchaca’s statement that “an insurer’s statutory violation permits

an insured to receive only those ‘actual damages’ that are ‘caused by’ the

violation,” 545 S.W.3d at 495, in arguing that “[t]he difference between the

amount Underwriters paid [in its partial payments] and the amount Prime sought at

trial was not caused by any of the statutory violations found by the jury.” Rather,

Underwriters argue that the unpaid amounts were the subject of “the dispute


                                        39
between Underwriters and Prime about differing policy interpretations.” This

argument, however, does not undermine the causation of actual damages.

      The existence of a bona fide coverage dispute does not excuse Underwriters’

failure to, for example, conduct a reasonable investigation of Prime’s claim or to

promptly provide Prime a reasonable explanation of the factual and legal basis in

the Policy for Underwriters’ denial. The jury found that Underwriters engaged in

this unfair or deceptive conduct, and it found that Prime’s damages as a result of

these violations was the underpayment of the claim by $1,820,180.92—the amount

of additional benefits to which Prime was entitled under the Policy.

      In discussing the proof of causation in the context of a statutory violation

that resulted in an insured failing to receive benefits the insured was due under its

policy, the court in Menchaca stated that “what matters for purposes of causation

under the statute is whether the insured was entitled to receive benefits under the

policy”:

      While an insured cannot recover policy benefits for a statutory
      violation unless the jury finds that the insured had a right to the
      benefits under the policy, the insured does not also have to prevail on
      a separate breach-of-contract claim based on the insurer’s failure to
      pay those benefits. . . . [I]f the jury finds that the policy entitles the
      insured to receive the benefits and that the insurer’s statutory violation
      resulted in the insured not receiving those benefits, the insured can
      recover the benefits as “actual damages . . . caused by” the statutory
      violation.




                                         40
545 S.W.3d at 494. The supreme court ultimately concluded, “If an insurer’s

wrongful denial of a valid claim for benefits result from or constitutes a statutory

violation, the resulting damages will necessarily include “at least the amount of

policy benefits wrongfully withheld.” Id. at 496; see also Vail v. Tex. Farm Bureau

Mut. Ins. Co., 754 S.W.2d 129, 136 (Tex. 1988) (“[A]n insurer’s unfair refusal to

pay the insured’s claim causes damages as a matter of law in at least the amount of

the policy benefits wrongfully withheld.”).

      The jury found that Underwriters engaged in deceptive or unfair practices or

acts and that those acts resulted in Underwriters’ failure to pay the full amount

owed to Prime under the Policy. As we concluded in connection with

Underwriters’ first issue, the jury properly found that Prime was entitled to

additional benefits under the Policy. Thus, based on the jury’s findings that

Underwriters’ denial of benefits owed under the Policy was wrongful, Prime was

entitled to the resulting damages in the amount of the Policy benefits wrongfully

withheld. See Menchaca, 545 S.W.3d at 496; Vail, 754 S.W.2d at 136.

      Underwriters further argue that there was legally insufficient evidence of the

underlying violations because Underwriters’ liability had not become reasonably

clear due to the existence of a bona fide coverage dispute. This argument, however,

is relevant only to two of the jury’s findings: that Underwriters failed “to attempt

in good faith to effectuate a prompt, fair, and equitable settlement of Prime’s claim


                                         41
when Underwriters’ liability had become reasonably clear” and that Underwriters

failed “to attempt in good faith to effectuate a prompt, fair, and equitable

settlement of a claim under one portion of a policy, for which Underwriters’

liability had become reasonably clear, to influence Prime to settle another claim

under another portion of the coverage.” Underwriters do not challenge the other

four violations found by the jury, namely that Underwriters refused to pay Prime’s

claim without conducting a reasonable investigation, that Underwriters failed to

affirm or deny coverage of the claim within a reasonable time, that Underwriters

failed to promptly provide Prime a reasonable explanation for the claim’s denial,

and that Underwriters misrepresented a material fact or Policy provision relating to

the coverage at issue. Any one of these four unchallenged findings supports the

award of actual damages under Chapter 541, even if a bona fide coverage dispute

existed.

      We overrule Underwriter’s challenge to actual damages awarded under the

jury’s Chapter 541findings.

D.    Treble Damages

      Underwriters also argue in the alternative that, even if Prime were entitled to

recover additional Policy benefits, it is not entitled to additional damages under

Chapter 541.




                                         42
      When an insurer’s violations of Chapter 541 cause the denial of benefits, an

insured may recover additional damages of up to three times the amount of actual

damages when the complained-of act or acts were done knowingly. See TEX. INS.

CODE § 541.152(b); Ortiz, 2019 WL 2710032, at *5. Thus, the award of statutory

treble damages requires more than just a wrongful denial of policy benefits—it

requires that the violations were committed knowingly. See TEX. INS. CODE

§ 541.152(b); cf. Giles, 950 S.W.2d at 54, 57 (recognizing that, under common law

bad-faith tort, “even if an insurer is liable for bad faith, a plaintiff may not recover

punitive damages on that basis alone,” but may recover additional damages “[o]nly

when accompanied by malicious, intentional, fraudulent, or grossly negligent

conduct”).

      The Insurance Code defines “knowingly” as “actual awareness of the falsity,

unfairness, or deceptiveness of the act or practice on which a claim for damages

under Subchapter D is based.” TEX. INS. CODE § 541.002(1); St. Paul Surplus Lines

Ins. Co. v. Dal-Worth Tank Co., 974 S.W.2d 51, 53 (Tex. 1998) (per curiam).

“Actual awareness may be inferred if objective manifestations indicate that a

person acted with actual awareness.” TEX. INS. CODE § 541.002(1); Dal-Worth

Tank Co., 974 S.W.2d at 53. The Texas Supreme Court has described the type of

awareness that will establish this type of “knowing” conduct:

      “Actual awareness” does not mean merely that a person knows what
      he is doing; rather, it means that a person knows that what he is doing
                                          43
      is false, deceptive, or unfair. In other words, a person must think to
      himself at some point, Yes, I know this is false, deceptive, or unfair to
      him, but I’m going to do it anyway.

Dal-Worth Tank Co., 974 S.W.2d at 53–54.

      Relevant here, Underwriters assert that Prime presented no evidence that

Underwriters’ conduct was committed knowingly. Underwriters argue that the

evidence established instead the existence of a bona fide coverage dispute, and

Underwriters argue that, because they had a reasonable basis for denying the

disputed portion of Prime’s claim, Prime cannot show that Underwriters knew that

the denial was false or unfair but did it anyway. See generally WIlson, 168 S.W.3d

at 810, 822 (courts will sustain no-evidence point when there is no evidence of

essential fact or when evidence conclusively established opposite of vital fact).

      Underwriters rely on the formulation for determining when liability is

reasonably clear set out by the Texas Supreme Court in Rocor International, Inc. v.

National Union Fire Insurance Co., 77 S.W.3d 253 (Tex. 2002), in which the court

considered this question in the context of an insurer’s statutory duty to attempt

settlement. The Rocor court held that an insurer’s liability become reasonably clear

and triggers its statutory duty to attempt settlement when (1) the policy covers the

claim, (2) the insured’s liability is reasonably clear, (3) the claimant has made a

proper settlement demand within policy limits, and (4) the demands terms are such

that an ordinarily prudent insurer would accept it. 77 S.W.3d at 262; McDonald v.


                                         44
Home State Cty. Mut. Ins. Co., No. 01-09-00838-CV, 2011 WL 1103116, at *4

(Tex. App.—Houston [1st Dist.] Mar. 24, 2011, pet. denied) (mem. op.). Although

the present case does not involve Underwriters’ statutory duty to settle with a third

party, we find helpful this formulation of when an insurer’s liability is reasonably

clear.

         Underwriters argue that their liability for the unpaid amounts was not

reasonably clear because the proper construction of the Policy and the correct

categorization of Prime’s various expenses were the subject of an ongoing dispute

that ultimately resulted in a declaratory judgment by the trial court in

Underwriters’ favor in Prime I, a subsequent appeal of Prime I that was also

decided in Underwriters’ favor, and the underlying litigation. Underwriters

continued to assert in this appeal that the Policy did not cover the additional

amounts demanded by Prime, and, although we disagree, we cannot say that this

was a patently unreasonable legal position. The evidence indicates that

Underwriters denied the portion of Prime’s claim that they believed was not

covered by the Policy, and, therefore, Underwriters believed that Prime’s claims

for payment were not within the Policy’s limits and Prime’s demand was not such

that an ordinarily prudent insurer would have accepted it. See Rocor, 77 S.W.3d at

262.




                                         45
      In light of the evidence that Underwriters believed that the Policy did not

cover the disputed amounts, and the fact that Underwriters did in fact make two

partial payments for the non-contested amounts, including a payment of the Policy

limits for damage to the H-Platform and more than two millions dollars toward the

H-2 Well expenses, we cannot conclude that Prime established that Underwriters

acted with “actual awareness of the falsity, unfairness, or deceptiveness of the act

or practice on which a claim for damages under Subchapter D is based.” See TEX.

INS. CODE § 541.002(1); Dal-Worth Tank Co., 974 S.W.2d at 53–54.

      Prime argues that the jury’s finding is supported by evidence that, while

Underwriters paid the majority of W&T’s claim for the same invoices under a

substantially similar policy, Underwriters paid roughly half of Prime’s claim.

Prime also asserts that Underwriters were aware that they were liable to pay the

disputed amounts as early as March 30, 2007, when Ammentorp reported to

Underwriters that Prime’s non-operating interest in the H-2 Well would be affected

by W&T’s “recent, compromised, ‘global’ settlement.” Ammentorp described the

nature of the repairs briefly, stating, “This resulted in the majority of the Ship

Shoal [148] expenditures as attributable to the well restoration category.” He

recommended that Underwriters increase the reserve to pay Prime’s remaining

claims to $3.1 million “based [in part] upon the settlement of the Operator’s

[W&T] claim.” Ammentorp was subsequently fired and replaced by an executive


                                        46
with Underwriters who testified that he did not “recall reviewing any invoices at

all.” He instead relied on the review of the invoices completed by Craig Nelson.

      This is insufficient to demonstrate that Underwriters were actually aware of

the unfair nature of Prime’s treatment. Ammentorp’s isolated statement that

Prime’s interest in the H-2 Well would be affected by W&T’s global, negotiated

settlement is no evidence that Underwriters affirmatively decided that W&T’s

claims were covered by W&T’s substantially similar policy. Rather, it constitutes

evidence that Underwriters’ paid W&T’s claims as part of a negotiated settlement

of many different claims, at least in part for business reasons that were not based

on a strict legal interpretation of any insurance policy, and Underwriters’

recognition of the fact that the non-operating partner of W&T would be impacted

by that settlement. There was no evidence of what portion of W&T’s claim for the

H-2 Well and H-Platform that Underwriters considered covered by the Policy.

      Prime also construes Underwriters’ argument that there was a bona fide

coverage dispute as “post hoc rationalization.” Prime presented evidence that

Underwriters denied its claim in October 2007 but then later made the $2.7 million

partial payment in December 2007, after Prime had filed suit in Prime I, based on

an adjustment prepared by MattDan. Prime asserts that, when its claim was denied

in October 2007, Underwriters had no valid basis for determining that there was a




                                        47
coverage dispute and instead withheld payment under the well claims as leverage

to force Prime to settle the platform claims in Prime I.

      We agree with Prime that Underwriters’ basis for denying coverage “must

be judged by the facts before the insurer at the time it denied the claim.” See

Aleman v. Zentih Ins. Co., 343 S.W.3d 817, 823–24 (Tex. App.—El Paso 2011, no

pet.) (holding same in context of determining whether insurer’s liability was

reasonably clear) (citing Viles v. Security Nat’l Ins. Co., 788 S.W.2d 566, 567

(Tex. 1990)); see also Provident Am. Ins. Co. v. Castaneda, 988 S.W.2d 189, 197

(Tex. 1998) (“[T]he facts existing at the time of denial are dispositive.”). We are

also mindful, however, that insurers are entitled to rely on reasons for denying a

claim that existed at the time the claim was denied, even if those reasons were not

originally communicated to the insured as the basis for denial of the claim. See

Castaneda, 988 S.W.2d at 197 (citing Republic Ins. Co. v. Stoker, 903 S.W.2d 338,

340–41 (Tex. 1995)).

      Underwriters paid the Policy limits under the portion of the Policy that

covered damages for the H-Platform, and shortly after Prime filed Prime I,

Underwriters made an additional partial payment for the amounts it believed was

due under the Policy for damage to the H-2 Well. This payment two months into

the Prime I litigation over platform expenses does not support an inference that

Underwriters withheld the payment for well expenses to coerce Prime to settle.


                                          48
And the fact that there were internal conflicts at Underwriters regarding the nature

and extent of coverage, or that there were disputes between Prime’s and

Underwriters’ experts regarding the extent of Prime’s coverage, demonstrates, at

most, that Underwriters were wrong in denying Prime a portion of its Policy

benefits. It does not prove that Underwriters were actually aware that denial of a

portion of the claim was deceptive or unfair, but chose to do it anyway. Cf. Giles,

950 S.W.2d at 67 (“[A] simple disagreement among experts about whether the

cause of the loss is one covered by the policy will not support a judgment for

[common law] bad faith.”); Griffith, 2019 WL 2611015, at *8 (evidence showing

only bona fide coverage dispute, by itself, is insufficient to demonstrate bad faith).

      Finally, Prime points to evidence that Underwriters did not make a good-

faith effort to objectively investigate Prime’s claim. Prime presented evidence that

the adjusters used by MattDan, including Craig Nelson, were unqualified and made

numerous errors that Underwriters relied upon. See Griffith, 2019 WL 2611015, at

*8 (holding that insurer’s reliance on expert report, standing alone, will not

necessarily shield carrier if there is evidence that report was not objectively

prepared or insurer’s reliance on report was unreasonable) (citing Nicolau, 951

S.W.2d at 448). Again, although this evidence could properly be credited by the

jury as proof of a mismanaged investigation or even a negligent one, it does not

rise to the level of supporting an inference that Underwriters acted knowingly as


                                          49
set out under the statute. See Dal-Worth Tank Co., 974 S.W.2d at 54–55

(concluding that there was evidence that St. Paul acted negligently and in violation

of statute, but no evidence that St. Paul was actually aware its actions toward Dal-

Worth were false, deceptive, or unfair).

      Reviewing the evidence in the light most favorable to the jury’s verdict, we

nevertheless conclude that there was no evidence that a jury could reasonably

credit to support an inference that Underwriters acted knowingly in light the

ongoing coverage dispute. See Del Lago Partners, 307 S.W.3d at 770 (we review

evidence in light most favorable to jury’s verdict, crediting favorable evidence if

reasonable jurors could and disregarding contrary evidence unless reasonable

jurors could not); Rocor, 77 S.W.3d at 262 (discussing method for evaluating when

insurer’s liability is reasonably clear).

      We sustain Underwriters’ second issue as to the jury’s finding that the

violations of Chapter 541 were done knowingly and reverse the portion of the trial

court’s judgment awarding treble damages.

            Prompt Payment Act Interest and Prejudgment Interest

      In their third issue, Underwriters argue that the trial court erred in awarding

Prime interest under Insurance Code Chapter 542 and in awarding prejudgment

interest. It argues, “Prime’s calculation of its proposed judgment, which the trial

court signed without modification, shows both Chapter 542 and prejudgment


                                            50
interest were calculated, not only on actual damages, but on the amounts of

Underwriters’ prior payments to Prime in 2006 and 2007.”

A.       Law Governing Chapter 542

         The Texas Prompt Payment Claims Act (TPPCA), codified in Insurance

Code Chapter 542, imposes procedural requirements and deadlines on insurance

companies to promote the prompt payment of insurance claims. See TEX. INS.

CODE §§ 542.051–.061; see also id. § 542.054 (“This subchapter shall be liberally

construed to promote the prompt payment of insurance claims.”). “Though the

TPPCA’s purpose relates specifically to prompt payment of claims, the TPPCA

also contains specific requirements and deadlines for responding to, investigating,

and evaluating insurance claims.” Barbara Techs., 2019 WL 2710089, at *3 (citing

TEX. INS. CODE §§ 542.055–.056). “Both the payment deadlines and the non-

payment deadlines and requirements are enforceable under the TPPCA, and

damages can be imposed for any violation.” Id. (citing TEX. INS. CODE §§ 542.058,

.060).

         The supreme court summarized the TTPCA as follows:

         Taken together, the TPPCA imposes several key requirements on
         insurers: (1) the insurer must acknowledge receipt of the claim,
         commence any investigation of the claim, and request any items,
         statements, or forms required from the claimant within fifteen days of
         its receipt of notice of the claim; (2) the insurer must notify the
         claimant of acceptance or rejection of the claim no later than fifteen
         business days after the insurer receives all items, statements, and
         forms required to secure final proof of loss; (3) if the insurer notifies

                                            51
       the insured that it will pay all or part of the claim, it must pay it by the
       fifth business day after the date of notice of acceptance of the claim;
       (4) if the insurer delays payment of a claim for more than the
       applicable statutory period or sixty days, the insurer shall pay TPPCA
       damages; and (5) an insurer that is liable for a claim under an
       insurance policy and violates a TPPCA provision is liable for TPPCA
       damages in the form of 18% interest on the amount of the claim per
       year, with attorney’s fees. See TEX. INS. CODE §§ 542.055(a)(1)–(3),
       .056(a), .057(a), .058(a), 060(a). Thus, the TPPCA has three main
       components—non-payment requirements and deadlines, deadlines for
       paying claims, and enforcement. See generally id. §§ 542.055–.060.

Id. at *4.

       In Republic Underwriters Insurance Co. v. Mex-Tex, Inc., the supreme court

construed the predecessor statute to Chapter 542 and concluded that the TPPCA

penalty interest should be assessed “if an insurer’s tender of partial payment of a

claim is not unconditional.” 150 S.W.3d 423, 426 (Tex. 2004).

       Generally speaking, a “[v]alid tender is an unconditional offer of and actual

production of funds by a debtor to pay a sum not less than the amount due on a

debt or obligation.” Anglo-Dutch Petrol. Int’l, Inc. v. Greenberg Peden, P.C., 522

S.W.3d 471, 489 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (citing

Baucum v. Great Am. Ins. Co., 370 S.W.2d 863, 866 (Tex. 1963), and Bray v.

Cadle Co., 880 S.W.2d 813, 818 (Tex. App.—Houston [14th Dist.] 1994, writ

denied)). A tender must be unconditional to defeat a claim for interest on the

obligation accruing after the date of the tender, and the party asserting a valid

tender has the burden of proving it. Id. “The effect of tender of the amount owed is


                                           52
that it stops the accrual of interest on the debt.” Id. (quoting Bray, 880 S.W.2d at

818). A tender “that requires the creditor to release its claims against the debtor, to

give up a legal right, or to otherwise perform an act that the debtor has no right to

demand is conditional and does not constitute a valid tender.” Note Inv. Grp., Inc.

v. Assocs. First Capital Corp., 476 S.W.3d 463, 488 (Tex. App.—Beaumont 2015,

no pet.).

B.    Analysis

      Underwriters assert that the December 2007 partial payment was

unconditional. The December 2007 partial payment was not tendered on the

condition that Prime give a full release of its claim. No such release or other

condition was conveyed with the tender at the time it was made. To the contrary,

the tender was accompanied by a notice that the payment was “partial,” written

recognition that Prime “intends to make additional claims with respect to this loss,”

and an express statement that “acceptance of this payment is without prejudice to

[Prime’s] rights to make such further claims.” We further observe that the litigation

went on for more than a decade after the tender was made by Underwriters and

accepted by Prime without Underwriters ever raising the issue that Prime had

accepted the 2007 payment as satisfaction of its claim. Furthermore, the evidence

at trial established that Underwriters actually produced the funds to Prime and that




                                          53
Prime accepted and had full use of the funds at the time of tender. See Anglo-Dutch

Petrol., 522 S.W.3d at 489.

      We conclude, therefore, that Underwriters’ tender was unconditional and

thereby defeated Prime’s claim for interest on the obligation accruing after the date

of the tender. See id.; see also Mex-Tex, Inc., 150 S.W.3d at 426 (holding that

TPPCA penalty interest should be assessed only “if an insurer’s tender of partial

payment of a claim is not unconditional”).

      Prime argues that, because Underwriters paid $2.7 million as a partial

payment, but then pursued a counterclaim for a large portion of that amount ($1.8

million), the payment was not unconditional. It cites Texas courts that have “found

that a debtor who deposits funds into the registry of the court, but who

simultaneously files a claim for affirmative relief to recover all or a portion of the

deposited funds, does not make an unconditional tender.” Note Inv. Grp., Inc., 476

S.W.3d at 488; see Weisfeld v. Tex. Land Fin. Co., 162 S.W.3d 379, 383 (Tex.

App.––Dallas 2005, no pet.) (concluding that debtor did not make unconditional

tender when it deposited funds into court’s registry, but at same time filed

counterclaim against creditor for usurious interest and sought to recover portion of

deposited funds).

      This case is materially distinguishable. There is no evidence that

Underwriters’ partial tender was not unconditional at the time it was tendered. See


                                         54
Mex-Tex, Inc., 150 S.W.3d at 426. Unlike Weisfeld, in which the counterclaim was

filed at the same time as the purported tender, Underwriters did not file a

counterclaim simultaneously with the tender of the December 2007 payment. The

counterclaim was not filed until many years later, in 2015, when Prime filed the

underlying lawsuit. And we observe that Underwriters made the 2007 payment to

Prime, and Prime accepted the funds. This is, again, unlike Weisfeld and the other

cases relied upon by Prime, in which the “tendered” funds were paid into the

registry of the court rather than being made available to the insured. Underwriters’

counterclaim filed years after the fact was not a condition on the partial payment,

but an attempt to exercise its legal rights in the subsequent litigation.

      We conclude that Underwriters provided conclusive proof that the December

2007 tender was unconditional. See Dow Chem. Co. v. Francis, 46 S.W.3d 237,

241 (Tex. 2001) (party challenging legal sufficiency of adverse finding on issue on

which party bore burden of proof at trial must demonstrate that evidence

conclusively established all vital facts in support of issue, as matter of law).

C.    Prejudgment Interest

      Underwriters also argue that the trial court erred by awarding prejudgment

interest on the December 2007 partial payment for the period after it was made.

Underwriters point out that, although the final judgment states that it awarded

prejudgment interest only on “actual damages,” the amount actually calculated by


                                           55
the trial court necessarily had to include prejudgment interest on the December

2007 partial payment.

      Prejudgment interest is awarded to fully compensate the injured party, not to

punish the defendant. Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 812

(Tex. 2006). Prejudgment interest is “compensation allowed by law as additional

damages for lost use of the money due as damages during the lapse of time

between the accrual of the claim and the date of judgment.” Id. (internal quotations

omitted).

      We have already concluded that the December 2007 partial payment was

tendered unconditionally. The payment was made to Prime, Prime accepted the

payment, and it had the use of the money from the time of the tender. Accordingly,

any award of prejudgment interest on the amount of the December 2007 partial

payment was erroneous.

      We sustain Underwriters’ third issue with regard to statutory and

prejudgment interest for the December 2007 partial payment.




                                        56
                                    Conclusion

      We reverse the portion of the trial court’s judgment awarding treble

damages, i.e. “additional damages for . . . knowing violations of the Texas

Insurance Code,” and any interest related to that award. We further reverse the

portion of the judgment awarding “Insurance Code 542 Prompt Payment damages,

at 18 percent simple interest per annum” on the December 2007 partial payment

and any related prejudgment interest. We affirm the remainder of the trial court’s

judgment.

      We remand the case to the trial court to allow Prime to make new elections

in accordance with our opinion and to recalculate the proper amounts of interest.

See Boyce Iron Works, Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988)

(holding that “[a] party may seek recovery under an alternative theory if the

judgment is reversed on appeal.”); Jang Won Cho v. Kun Sik Kim, 572 S.W.3d

783, 816 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (remanding to trial court

for recalculation of interest in accordance with opinion).




                                              Richard Hightower
                                              Justice

Panel consists of Justices Kelly, Hightower, and Countiss.



                                         57
