                             Fourth Court of Appeals
                                    San Antonio, Texas
                               MEMORANDUM OPINION

                                       No. 04-17-00365-CV

               WELLINGTON INSURANCE COMPANY and Richard Barkkume,
                                 Appellants

                                                v.

                                       Victor BANUELOS,
                                             Appellee

                    From the 341st Judicial District Court, Webb County, Texas
                               Trial Court No. 2014CVF001922D3
                       Honorable Rebecca Ramirez Palomo, Judge Presiding

Opinion by:      Rebeca C. Martinez, Justice

Sitting:         Sandee Bryan Marion, Chief Justice
                 Rebeca C. Martinez, Justice
                 Irene Rios, Justice

Delivered and Filed: January 31, 2018

REVERSED AND RENDERED

           In this permissive appeal, appellants Wellington Insurance Company and Richard

Barkkume ask us to review the denial of their motion for summary judgment. The sole issue

presented is whether an insured’s breach of contract and extra-contractual claims survive a timely-

paid appraisal award. Based on this court’s decision in Ortiz v. State Farm Lloyds, No. 04-17-

00252-CV, 2017 WL 5162315 (Tex. App.—San Antonio Nov. 8, 2017, pet. filed) (mem. op.), we

hold they do not, and therefore the trial court erred in denying the motion for summary judgment.
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We reverse the trial court’s order denying the motion for summary judgment and render judgment

granting Wellington’s and Barkkume’s motion for summary judgment.

                                          BACKGROUND

       Victor Banuelos submitted a claim to Wellington for damages to his property resulting

from a storm. Richard Barkkume of J&D Claim Services, Inc. inspected the property on behalf of

Wellington and estimated that damage to the furnace vents, ventilation turbine, a furnace rain cap,

and rear elevation totaled $902.40. Wellington denied coverage for the damage to the roof and

shed. Barkkume recommended the claim be closed without payment because the loss did not

exceed the homeowner insurance policy’s deductible.

       Banuelos then filed suit against Wellington and Barkkume for breach of contract, breach

of the duty of good faith and fair dealing, violations of the prompt payment and unfair settlement

provisions of the Texas Insurance Code, and violations of the Texas Deceptive Trade Practices

Act. Thereafter, Wellington invoked the appraisal clause in Banuelos’s policy. Through the

appraisal process, it was determined that Banuelos suffered property damage, including damage

to the roof and shed, in the amount of $10,797.62. After deducting for depreciation and the

policy’s deductible, the net appraisal award due was $8,946.70, which Wellington paid to

Banuelos.

       In response to Banuelos’s pending lawsuit, Wellington and Barkkumme filed a traditional

motion for summary judgment, arguing Wellington’s timely payment of the appraisal award

estopped Banuelos from recovering under his breach of contract and extra-contractual claims. The

trial court denied the motion for summary judgment.          Appellants also filed a motion for

reconsideration in which they relied on this court’s recent decision in Garcia v. State Farm Lloyds,

514 S.W.3d 257 (Tex. App.—San Antonio 2016, pet. denied), to urge the trial court to reconsider

its denial of the motion for summary judgment. Wellington then asked the trial court to allow it
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to take a permissive appeal. The trial court found there is substantial ground for differences of

opinion as to the following controlling question of law:

       In light of the 4th Court of Appeals’ opinion in Garcia v. State Farm Lloyds, 514
       S.W.3d 257 (Tex. App.—San Antonio 2016, pet. denied), Barbara Technologies
       Corp. v. State Farm Lloyds, No. 04-16-00420-CV, 2017 WL 1423714 (Tex. App.—
       San Antonio Apr. 19, 2017, pet. filed), and the arguments and authorities set forth
       in Defendants’ Motion for Summary Judgment, does the timely payment of an
       appraisal award in compliance with the insurance policy extinguish all of Plaintiff’s
       claims including breach of contract and all extra-contractual claims.

The trial court found that an immediate appeal of the order denying the motion for summary

judgment would materially advance the ultimate termination of the litigation, and granted

permission to appeal. This court granted Wellington’s and Barkkume’s petition for permission to

appeal the interlocutory order.

                                             ANALYSIS

       In Ortiz, we recognized that under our decision in Garcia, an insurer’s payment of an

appraisal award entitles the insurer to summary judgment on an insured’s contractual and extra-

contractual claims. Ortiz, 2017 WL 5162315 at *1–2 (citing Garcia, 514 S.W.3d at 264–65, 276–

79). We then analyzed the supreme court’s decision in USAA Tex. Lloyds Co. v. Menchaca, 60

Tex. Sup. Ct. J. 672, 2017 WL 1311752 (Tex. Apr. 7, 2017 reh’g granted Dec. 15, 2017), to

determine whether it required us to revisit our holding in Garcia. After analyzing Menchaca, we

held: (1) it does not involve the payment of an appraisal award, and (2) nothing in the “five distinct

but interrelated rules that govern the relationship between contractual and extra-contractual claims

in the insurance context” required us to revisit Garcia or to reverse the summary judgment in favor

of the insurer. Id. at *2–3 (quoting Menchaca, 2017 WL 1311752, at *4). Thus, we held Menchaca

did not require us to revisit our decision in Garcia. See id. We now hold our decision in Ortiz —

holding that Menchaca does not change our prior holding in Garcia — controls this appeal and



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compels us to conclude that the trial court erred in denying the motion for summary judgment. See

id.

                                           CONCLUSION

       Because Wellington timely paid the appraisal award in this case, and Banuelos has failed

to assert any ground for setting aside the appraisal award or present evidence of an act so extreme

that it caused him injury independent of his claim under the policy, we hold the trial court erred in

denying the motion for summary judgment. See Garcia, 514 S.W.3d at 265, 278–79. Accordingly,

we reverse the judgment of the trial court and render judgment granting Wellington’s and

Barkkume’s motion for summary judgment.


                                                  Rebeca C. Martinez, Justice




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