                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-17-00319-CV


IN RE ALLSTATE VEHICLE AND                                               RELATOR
PROPERTY INSURANCE
COMPANY




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                           ORIGINAL PROCEEDING
                       TRIAL COURT NO. 2017-000323-3

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                          CONCURRING OPINION

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      I agree with the majority that the trial court did not abuse its discretion by

factually finding and legally concluding that relator Allstate Vehicle and Property

Insurance Company waived its contractual right to invoke the appraisal clause in

its policy with real party in interest Deniedra Jackson based on Allstate’s delay

and intentional conduct inconsistent with its right. I write separately to take issue

with one of the holdings underlying the majority’s conclusion.
      The majority sets forth a thorough timeline of events leading up to the trial

court’s order denying Allstate’s August 17, 2017 motion to compel an appraisal

and motion to abate. In doing so, the majority holds that the point of impasse—

the date the parties had a mutual understanding that neither party would

negotiate further on the amount of Jackson’s loss—was May 9, 2017, which was

the date Jackson rejected Allstate’s $4,000 offer and demanded $19,350.42 for

the third time.    See generally In re Universal Underwriters of Tex. Ins.,

345 S.W.3d 404, 408–10 (Tex. 2011) (orig. proceeding) (discussing point of

impasse to determine whether insurer was entitled to compel appraisal).

      An impasse occurs when there is a mutual understanding that neither party

will negotiate further—the “breakdown of good-faith negotiations”—and is not

equivalent to a mere disagreement over the amount of the loss. Id. at 408–10.

“In other words, both parties must be aware that further negotiations will be

futile.” Id. at 409. Here, I believe the point of impasse occurred on July 26,

2017, when the trial court held the hearing on Allstate’s motion to compel a

seventh inspection of Jackson’s property damage. Jackson zealously opposed

the motion and argued that the request was a form of harassment. Allstate

asserted that its six previous inspections occurred “when the parties were trying

to work it out” and countered Jackson’s harassment allegation by claiming that its

requested inspection, which would be the seventh, was necessary for one

reason: to prepare its expert witness for trial. At that point, it was clear that both

parties knew Allstate was refusing to pay Jackson’s claimed loss and was

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pursuing trial as its single method to dispose of her property-damage claim. See

Scottish Union & Nat’l Ins. v. Clancy, 8 S.W. 630, 632 (Tex. 1888); see also

Skypac Corp. v. Great Lakes Reins. (UK) SE, No. 1:16-CV-115, 2016 WL

9414096, at *2 (E.D. Tex. Dec. 16, 2016) (order); In re GuideOne Nat’l Ins.,

No. 05-15-00981-CV, 2015 WL 5050233, at *2 (Tex. App.—Dallas Aug. 27,

2015, orig. proceeding [mand. dism’d]) (mem. op.). Allstate argues that because

it made another settlement offer to Jackson on August 14, 2017, its right to

demand an appraisal was resurrected. If that logic were to prevail, neither an

insured nor an insurer could rely on a waiver of the appraisal clause. The bell

cannot be unrung.

      With these comments, I concur in the court’s denial of Allstate’s petition for

writ of mandamus.



                                                   /s/ Lee Gabriel
                                                   LEE GABRIEL
                                                   JUSTICE

DELIVERED: May 3, 2018




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