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Click here for the full text of this decision FACTS:Southwest Portfolio held two insurance policies on a vacant building called Westridge Mall. The policies were issued by American Protection Insurance Co. and Aetna Life & Casualty and each effectively covered 50 percent of the loss. After discovering hail damage to the roof of the building, Southwest made a claim under the Aetna policy. Unaware of the American policy, Aetna paid 100 percent of the loss. Aetna paid Southwest $268,445 for the actual cash value (ACV) of the loss, and retained $444,167 for the cost of replacement, for a total of $712,612. Southwest’s insurance broker notified American of the claim. American sent acknowledgements to the broker and to Aetna and assigned Dana McDade to adjust the claim. Working in conjunction with the Aetna adjuster, McDade reimbursed Aetna for half of the ACV. After receiving the ACV, but before any repairs were made, Southwest sold the building to G. L. Harris. The sales agreement included an assignment clause for rights to the insurance claim “paid or payable” to Southwest resulting from the hail damage.” At closing, Harris was credited with the total amount of the ACV payment. The claim assigned to Harris was based on an approved proposal from Gary Boyd, the roofing contractor who discovered the damage. Harris, however, did not hire Boyd but instead hired Mike Wright to make repairs for an estimated $690,000. Wright replaced the roof, though he did not install a recovery board underneath as previously discussed. Harris notified Aetna that it had cost $690,000 to replace the roof, even though he actually only paid $375,000. Aetna paid the $690,000, minus the prior ACV and the $25,000 policy deductible. Aetna then asked American to reimburse it for half of the replacement costs. American postponed the reimbursement, because it was unsure what its liability was for payments made directly to Harris instead of Southwest, which remained American’s named insured. American did eventually pay Aetna for half of the replacement costs. Therefore, Harris received a total of $680,260 for the hail damage, in ACV and replacement costs. American reimbursed Aetna for half of that amount. Several months later, Harris’ private adjuster filed a supplemental proof of loss with Aetna for $1.8 million. Aetna refused to pay and forwarded the claim to American. American asked for further documentation, but when none was forthcoming, did not act on the claim. Harris sued Aetna a month later and eventually added American as a party. Aetna eventually settled with Harris. Harris alleged that American breached the insurance contract and violated Insurance Code Articles 21.55 and 21.21, 4(10). He argued that American owed him $175,000 for the hail damage claim (Harris added 50 percent of the ACV and 50 percent of the true replacement cost, minus the deductible and ACV to arrive at this number). Upon learning that Harris spent only $375,000 on the roof repair, American filed a counterclaim for fraud. At trial, the trial court granted a directed verdict against American on its fraud counterclaim. On Harris’ Insurance Code violations, the jury found American did not violate Article 21.21 and that Harris’ negligence caused the damages. The trial court entered a take nothing judgment against Harris. Both sides appeal. HOLDING:Affirmed. The court rejects Harris’ argument that American owed him $175,000. It agreed with American that it satisfied its liability for the hail damage by paying Aetna $340,130 because Aetna became subrogated to Harris’ right to recover 50 percent of his loss from American, when Aetna paid 100 percent of the original claim. Furthermore, if Harris is to receive any additional benefits, it will be an impermissible double recovery since he was fully compensated by Aetna. The court then considers whether the trial court erred by not including breach-of-contract questions to be submitted to the jury. The court finds that Harris did not produce evidence to support submission of the questions. Though there is some evidence that American was contractually liable for half of the hail damages, there is no evidence that American breached that contract or that Harris suffered any damages. The court next turns to Harris’ Article 21.55 claim, which is intended to ensure prompt payment of insurance claims. Because Harris failed to prove that American was liable to him for the hail damage claim, the court holds that the trial court did not err in denying Harris’ motion for a directed verdict on this claim. The court then considers Harris’ Article 21.21 claim, which Harris bases on American’s failure to confirm or deny its coverage of the hail damage and supplemental claim in a reasonable time. Article 21.21 addresses unfair settlement practices by insurers, but the court finds no evidence of unfair practices by American. For starters, neither Southwest nor Harris made a claim for hail damage under the American policy. American and Aetna worked out American’s obligation through its subrogation rights. This procedure for settling with Aetna satisfied American’s duty to effectual a prompt and reasonable settlement of the hail damage claim. As for American’s response to the supplemental claim, the court points out that Harris’ sale agreement with Southwest did not include an assignment of future claims for insurance payments. Because Harris failed to prove that he was an American policyholder, he did not establish that American had a duty to him to confirm or deny its liability for the supplemental claim. The court adds that, even if American violated Article 21.21 with respect to the supplemental claim, Harris did not plead or prove any damages that can be recovered under that statute. For example, Harris did not prove that American’s handling of the supplemental claim caused the roof damage that necessitates such repairs. The court also next determines that the jury’s finding of Harris’ negligence was not against the great weight and preponderance of the evidence. And, in any event, the negligence finding had no bearing on the verdict. Finding that Harris’ negligence did not cause the damages would not affect his recovery, because the jury failed to assign any proportion of the liability for damages to American, and the court has also held that the jury’s findings in favor of American are not against the great weight and preponderance of the evidence. Finally, the court affirms the trial court’s directed verdict against American on its fraud claim because the claim was barred by limitations. Furthermore, a directed verdict for American could not be supported on any other basis. OPINION:Cayce, C.J.; Cayce, C.J.; Dauphinot and Gardner, JJ.

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