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Click here for the full text of this decision FACTS:The relator, State Farm Lloyds Inc., seeks a writ of mandamus directing the trial court to enforce a contractual appraisal provision. A fire damaged the home of Ruby Johnson, the real party in interest, and many of her belongings. She immediately notified her insurance company, State Farm. The policy included coverage for damage or loss to personal property and coverage for loss of use of the home while the home is “wholly or partially untenantable.” Johnson made a claim for living expenses under her loss of use coverage and claimed damages to personal items which had been destroyed or damaged in the fire. Johnson did not accept State Farm’s offers related to her personal property and living expenses. Consequently, State Farm invoked the policy’s appraisal provision. By letter dated June 25, 2003, State Farm requested that Johnson’s attorney identify her appraiser and it further requested clarification on Johnson’s waiver claim. Johnson’s attorney made it clear that Johnson would not participate in the appraisal process. Johnson had filed a breach of contract suit against State Farm approximately one week earlier, but she did not serve State Farm until Oct. 8, 2003. In that suit, she alleged State Farm breached the insurance contract by “failing to compensate Plaintiff for the damaged and destroyed personal items and failing to pay for Plaintiff’s loss of use of her home . . . .” On Feb. 5, 2004, State Farm filed its motion to sever the breach of contract claim, enforce the policy’s appraisal provision, and abate the proceedings until the appraisal process had been completed. The trial judge heard State Farm’s motion on June 16, 2004. At the hearing, Johnson argued that State Farm had waived its right to enforce the appraisal provision but she did not offer any evidence in support of her assertions. The court subsequently signed an order denying relief on Nov. 16, 2004. State Farm seeks mandamus relief from the court’s refusal to enforce the appraisal provision. HOLDING:Conditionally granted. Absent some compelling reason to not enforce the appraisal provision, the trial court had no discretion to refuse State Farm’s request to enforce the appraisal provision. Johnson contends that State Farm waived its right to invoke the appraisal provision because it did not comply with other provisions in the contract. She argues that State Farm failed to 1. request a sworn proof of loss from Johnson; 2. notify her in writing whether the claim would be paid or had been denied or whether more information was needed; and 3. failed to give its reason for denying the claim or its reason for requiring more time to process the claim. For support, Johnson cites Black v. Victoria Lloyds Insurance Co., 797 S.W.2d 20 (Tex. 1990). Because Black does not hold that an insurer’s failure to comply with one provision in an insurance policy waives its right to enforce a separate provision, the opinion is inapplicable, the court finds. Johnson also relies on In Re: Clarendon Insurance Company, No. 2-04-305-CV, 2004 WL 2984916 (Tex.App. � Fort Worth December 23, 2004, orig. proceeding)(not reported). Rather than supporting Johnson’s argument, Clarendon undercuts it, the court decides. Waiver is the intentional relinquishment of a known right. It is an affirmative defense and the party asserting it bears the burden of proof. In order to defeat State Farm’s motion to enforce the appraisal provision on the ground of waiver, Johnson had the burden to show that State Farm’s alleged failure to comply with these other policy provisions constituted an intentional relinquishment of its right to seek an appraisal, or as stated in Scottish Union & National Insurance Co. v. Clancey, 18 S.W. 439 (1892), evidenced an intent to dispense with the policy’s requirements which would enable State Farm to arrive at the amount of loss. Johnson did not offer any evidence to establish her assertions that State Farm failed to comply with any of the policy provisions or that it intentionally relinquished its right to enforce the appraisal provision. For this reason alone, the trial court had no discretion to refuse State Farm’s request to enforce the appraisal provision. Even assuming that Johnson had introduced some evidence to support her assertions, State Farm’s alleged failure to request a sworn proof of loss from Johnson, notify her in writing whether the claim would be paid or had been denied or whether more information was needed, and its alleged failure to give its reason for denying the claim or its reason for requiring more time to process the claim does not evidence an intent to dispense with the policy’s requirements which would enable State Farm to arrive at the amount of loss. To the contrary, the record shows that State Farm was undertaking to ascertain the amount of loss. The trial court abused its discretion by refusing State Farm’s request to enforce the appraisal provision, the court holds. OPINION:McClure, J.; Barajas, C.J., McClure, and Ables, JJ.

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