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Filed 13 October 29 A9:53
Chris Daniel - District Clerk
Harris Coun!
ED101) 017793719
By: deandra mosley
CAUSE NO. 2010
GPM HOUSTON PROPERTIES, LTD.
TRIYAR COMPANIES, INC. (f/k/a IN THE DISTRICT COURT
TRIYAR COMPANIES, LLC.),
TRIYAR COMPANIES, LLC,
SJM REALTY, LTD.
Plaintiffs
vs. JUDICIAL DISTRICT
FIREMAN’S FUND INSURANCE HARRIS COUNTY, TEXAS
COMPANY
Defendant JURY TRIAL REQUESTED
MOTION FOR ENTRY OF FINAL JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
Following
a two week bench trial in which the Court tried the issue of whether SJM
Realty, Ltd. (“SJM Realty”) and GPM Houston Properties, Ltd. (“GPM Houston Properties”)
could bring suit under the Fireman's Fund Insurance Company Policy (“FFIC”), the Court
that SJM Realty and GPM Houston Properties were covered under the FFIC Policy and
convened ajuryto try the remaining issues.
After a five week jury trial, the jury retumed averdict in favor of SJM Realty and GPM.
ouston Properties. See attached exhibit A. The jury found that FFIC violated the
ODE 541.060 and the Prompt Payment of Claims Act, ODE 542.060. The jury
also found that FFIC “knowingly” violated the Insurance Code and assessed additional damages.
The jury answered
the questions as follows:
Did Fireman's Fund fail to attempt in good faith to settle(Question No. 2(B)):
Greenspoint Mall “Yes”
San Jacinto Mall “Yes”
Replacement C ost(Question No. 3(1))
Greenspoint
Mall $5,500,500.00
San Jacinto Mall $11,000
Actual Cash Value(Question 3(2))
Greenspoint Mall $2,200,000.00
San Jacinto Mall $4,400,000.00
Business Income L oss(Question 3(3))
Greenspoint Mall $250,000.00
San Jacinto Mall $250,000.00
Temporary Repairs(Q uestion 3(4))
Greenspoint Mall $550,000.00
San Jacinto Mall $700,000.00
Additional damages(Q uestion 5)
Greenspoint Mall $2,500,000.00
San Jacinto Mall $2,500,000.00
Did Fireman's Fund notify Triyar within 30 days? (Question No. 6)
Greenspoint Mall “No”
San Jacinto Mall “No”
Was Triyar’s failure to comply with replacement cost condition excused because
FFIC made compliance impossible(Q uestion No. 11)
Greenspoint Mall “Y es”
San Jacinto Mall “Yes”
Did Triyar commit fraud, concealment or misrepresentation? (Question No. 12
Greenspoint Mall “No”
San Jacinto Mall “No”
The jury found that FFIC did not notify Triyar in writing of the acceptance or rejection of
its claim not later than the 30 siness day after the date FFIC received all items, statements
and forms required by FFIC to require a final proof of loss. (Question No. 6). This is a violation
of the Prompt Payment of Claims Act, ODE The undisputed evidence
proved
that the proofs of loss were submitted on February 25, 2010. Thirty days after
that date is
March 27, 2010. FFIC did not reject the Proofs until April 20, 2010. Therefore, the 18% penalty
runs from that March 27, 2010
In Question No. 11, the jury found that FFIC made it impossible for Plaintiffs to comply
with the replacement cost provision in the Policy. Therefore, any failure to repair by Plaintiffs is
excused and Plaintiffs are entitled to recover replacement cost. The replacement cost is
calculated by subtracting the undisputed amount paid by FFIC and the deductible from the
replacement cost awarded by the jury in Question no. 3(1). r Greenspoint Mall that amount is
$3,272.844.44. Add $550,000.00 for temporary repairs and the amount is $3,822,844.44. GPM
Houston Properties is entitledto 18% per annum penalty on this amount from March 27, 2010 as
well as 5% pre judgment
interest ODE 1045 & 304.003. This calculates to
per diem. Thus, the total damages for awarded to GPM Houston Properties for
Greenspoint Mall are as follows:
Greenspoint Mall:
2.844.44 for replacement cost and temporary repairs
$250,000.00 business income loss
$2,500,000.00 additional damages
penaltie s through October 8, 2013
total
For SJM Realty, the amount of replacement cost is $5,123,577.70. Add $700,000.00 for
temporary repairs and the amount of damages is $5,823,577.70. The penalties are $ per
diem. Thus, the total damages for San Jacinto Mall are as follows:
San Jacinto Mall:
$5,823,577.70 for replacement cost and temporary repair
$250,000.00 for business income loss
$2,500,000.00 for additional damages
penalties through October 8,
total
Post judgment interest on the full amount of the judgment accrues at the rate of 5%,
compounded annually, beginning on the day after the day this judgment is signed. The total
amount of this Judgment against Fireman's Fund is along with any accrued pre
judgment interest as provided herein.
The total amount of past damages for which FFIC is liable is $2,993,843.10. The Court
should award post judgment interest on the full amount of the judgment including pre judgment
interest at the rate of 5%, compounded annually. See IN ODE
In addition, under ODE 541.060 and 542.060, Plaintiffs are entitled to
stipulated reasonable and necessary attomeys fees through trial of , and through
appeal of $120,000.00.
Unfair Claims Act Claim Independent and Cumulative:
The remedies provided by Chapter 541 shall be “ berally construed .” ODE
A claim under ODE 541.060 of the Insurance Code is independent
of a
breach ofcontract
claim, and is a cumulativemethod
of recovery FFIC’s argument
that a finding
of no breach of contract (a legal issue) precludes recovery under Chapter 541 renders the
cumulative and independent nature of the statute wholly superfluous. According to FFIC the
statute is neither cumulative nor independent, but ratheris dependent on and duplicative of other
claims, specifically a breach of contract claim. FFIC’s argument contradicts the express language
of the statute, andis the antithesis of a “liberal” construction of the statute.
Plaintiffs e Entitled to Recover Actual Damages
Under ODE Plaintiffs are entitled to recover actual damages, costs,
attomeys’ fees and additional damages for a “knowing” violation ODE
There is no prerequisite in the statute that Plaintiffs also prove a breach of contract in order to be
titledto damages under
the Texas Insurance Code. Obviously, if FFIC failedto pay the claims
when liability
was reasonably clear, the damages would be the amount of the claims that were
not paid.
Prompt Payment of Claims Act;
e PPCA provides that it hall be liberally construedto promote the prompt payment of
insurance claims.” ODE542.054. The statute also provides that
If an insurer that is liable for a claim under an insurance policy is not in compliance
with this subchapter, the insurer is liable to pay the holder of the policy or the
beneficiary making the claim under the policy, in addition to the amount of the claim,
interest on the amount of the claim at the rate of 18 percent a year as damages, together
with reasonable attomey's fees.
ODE 542.060. In this case, the jury found that Fireman's Fund violated the PPCA
(Question 6) and that FFIC was “liable for a clai by finding that FFIC violated
ODE (Question The jury found the amount of the claim as well (Question 3(1)
Therefore, under the plain language of the statute, Plaintiffs are entitled to recover damages
under the PPCAin the amount of 18% per annum.
Plaintiffs Are Entitled To A Declaratory Judgment
On July 12, 2012, Mr. Tim McWatt, on behalf of FFIC, served a letter on Plaintiffs
declaring that the FFIC Policy was void because of alleged fraud, misrepresentation and
concealment. In their Petitions, Plaintiffs have requested a declaration from the court that the
Policy is not void. The jury answered Question No. 12 in favor of Plaintiffs and found that
Plaintiffs did not commit fraud, misrepresentation or concealment. Therefore, Plaintiffs are
entitled to a declaration that the FFIC Policy is not void, and that Plaintiffs are entitles to
stipulated reasonable and necessary attomeys’ fees.
Plaintiffs respectfully request that the Court sign and enter a Final Judgment against FFIC
in the amounts specified herein, and for any such further relief as to which Plaintiffs are entitled.
Respectfully submitted,
/s/ James L. Comell
James L. Comell
Comell & Pardue
State Bar No. 04834800
948 Columbia
Houston, Texas 770008
Telephone (713) 862 2399
Facsimile(1 281) 715 4777
jcomell@comell pardue.net
Brendan K. McBride
State Bar No. 24008900
Brendan.mcbride@att.net
RIDE AW _ IRM of Counsel
RAVELY EARSON
425 Soledad, Suite 600
San Antonio, Texas 78205
Telephone (210) 227 1200
Facsimile (210) 881 6752
Brendan. mcbride@att.net
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the above and foregoing document was
served on all counsel of record
via hand delivery, U.S. mail, ovemight delivery, fax, and/or e
filing, on this the 29thday of October
/s/ James L. Comell
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Filed 13 October 29 A9:53 Chris Daniel - District Clerk Harris Coun! ED101) 017793719 By: deandra mosley CAUSE NO. 2010 GPM HOUSTON PROPERTIES, LTD. TRIYAR COMPANIES, INC. (f/k/a IN THE DISTRICT COURT TRIYAR COMPANIES, LLC.), TRIYAR COMPANIES, LLC, SJM REALTY, LTD. Plaintiffs vs. JUDICIAL DISTRICT FIREMAN’S FUND INSURANCE HARRIS COUNTY, TEXAS COMPANY Defendant JURY TRIAL REQUESTED MOTION FOR ENTRY OF FINAL JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: Following a two week bench trial in which the Court tried the issue of whether SJM Realty, Ltd. (“SJM Realty”) and GPM Houston Properties, Ltd. (“GPM Houston Properties”) could bring suit under the Fireman's Fund Insurance Company Policy (“FFIC”), the Court that SJM Realty and GPM Houston Properties were covered under the FFIC Policy and convened ajuryto try the remaining issues. After a five week jury trial, the jury retumed averdict in favor of SJM Realty and GPM. ouston Properties. See attached exhibit A. The jury found that FFIC violated the ODE 541.060 and the Prompt Payment of Claims Act, ODE 542.060. The jury also found that FFIC “knowingly” violated the Insurance Code and assessed additional damages. The jury answered the questions as follows: Did Fireman's Fund fail to attempt in good faith to settle(Question No. 2(B)): Greenspoint Mall “Yes” San Jacinto Mall “Yes” Replacement C ost(Question No. 3(1)) Greenspoint Mall $5,500,500.00 San Jacinto Mall $11,000 Actual Cash Value(Question 3(2)) Greenspoint Mall $2,200,000.00 San Jacinto Mall $4,400,000.00 Business Income L oss(Question 3(3)) Greenspoint Mall $250,000.00 San Jacinto Mall $250,000.00 Temporary Repairs(Q uestion 3(4)) Greenspoint Mall $550,000.00 San Jacinto Mall $700,000.00 Additional damages(Q uestion 5) Greenspoint Mall $2,500,000.00 San Jacinto Mall $2,500,000.00 Did Fireman's Fund notify Triyar within 30 days? (Question No. 6) Greenspoint Mall “No” San Jacinto Mall “No” Was Triyar’s failure to comply with replacement cost condition excused because FFIC made compliance impossible(Q uestion No. 11) Greenspoint Mall “Y es” San Jacinto Mall “Yes” Did Triyar commit fraud, concealment or misrepresentation? (Question No. 12 Greenspoint Mall “No” San Jacinto Mall “No” The jury found that FFIC did not notify Triyar in writing of the acceptance or rejection of its claim not later than the 30 siness day after the date FFIC received all items, statements and forms required by FFIC to require a final proof of loss. (Question No. 6). This is a violation of the Prompt Payment of Claims Act, ODE The undisputed evidence proved that the proofs of loss were submitted on February 25, 2010. Thirty days after that date is March 27, 2010. FFIC did not reject the Proofs until April 20, 2010. Therefore, the 18% penalty runs from that March 27, 2010 In Question No. 11, the jury found that FFIC made it impossible for Plaintiffs to comply with the replacement cost provision in the Policy. Therefore, any failure to repair by Plaintiffs is excused and Plaintiffs are entitled to recover replacement cost. The replacement cost is calculated by subtracting the undisputed amount paid by FFIC and the deductible from the replacement cost awarded by the jury in Question no. 3(1). r Greenspoint Mall that amount is $3,272.844.44. Add $550,000.00 for temporary repairs and the amount is $3,822,844.44. GPM Houston Properties is entitledto 18% per annum penalty on this amount from March 27, 2010 as well as 5% pre judgment interest ODE 1045 & 304.003. This calculates to per diem. Thus, the total damages for awarded to GPM Houston Properties for Greenspoint Mall are as follows: Greenspoint Mall: 2.844.44 for replacement cost and temporary repairs $250,000.00 business income loss $2,500,000.00 additional damages penaltie s through October 8, 2013 total For SJM Realty, the amount of replacement cost is $5,123,577.70. Add $700,000.00 for temporary repairs and the amount of damages is $5,823,577.70. The penalties are $ per diem. Thus, the total damages for San Jacinto Mall are as follows: San Jacinto Mall: $5,823,577.70 for replacement cost and temporary repair $250,000.00 for business income loss $2,500,000.00 for additional damages penalties through October 8, total Post judgment interest on the full amount of the judgment accrues at the rate of 5%, compounded annually, beginning on the day after the day this judgment is signed. The total amount of this Judgment against Fireman's Fund is along with any accrued pre judgment interest as provided herein. The total amount of past damages for which FFIC is liable is $2,993,843.10. The Court should award post judgment interest on the full amount of the judgment including pre judgment interest at the rate of 5%, compounded annually. See IN ODE In addition, under ODE 541.060 and 542.060, Plaintiffs are entitled to stipulated reasonable and necessary attomeys fees through trial of , and through appeal of $120,000.00. Unfair Claims Act Claim Independent and Cumulative: The remedies provided by Chapter 541 shall be “ berally construed .” ODE A claim under ODE 541.060 of the Insurance Code is independent of a breach ofcontract claim, and is a cumulativemethod of recovery FFIC’s argument that a finding of no breach of contract (a legal issue) precludes recovery under Chapter 541 renders the cumulative and independent nature of the statute wholly superfluous. According to FFIC the statute is neither cumulative nor independent, but ratheris dependent on and duplicative of other claims, specifically a breach of contract claim. FFIC’s argument contradicts the express language of the statute, andis the antithesis of a “liberal” construction of the statute. Plaintiffs e Entitled to Recover Actual Damages Under ODE Plaintiffs are entitled to recover actual damages, costs, attomeys’ fees and additional damages for a “knowing” violation ODE There is no prerequisite in the statute that Plaintiffs also prove a breach of contract in order to be titledto damages under the Texas Insurance Code. Obviously, if FFIC failedto pay the claims when liability was reasonably clear, the damages would be the amount of the claims that were not paid. Prompt Payment of Claims Act; e PPCA provides that it hall be liberally construedto promote the prompt payment of insurance claims.” ODE542.054. The statute also provides that If an insurer that is liable for a claim under an insurance policy is not in compliance with this subchapter, the insurer is liable to pay the holder of the policy or the beneficiary making the claim under the policy, in addition to the amount of the claim, interest on the amount of the claim at the rate of 18 percent a year as damages, together with reasonable attomey's fees. ODE 542.060. In this case, the jury found that Fireman's Fund violated the PPCA (Question 6) and that FFIC was “liable for a clai by finding that FFIC violated ODE (Question The jury found the amount of the claim as well (Question 3(1) Therefore, under the plain language of the statute, Plaintiffs are entitled to recover damages under the PPCAin the amount of 18% per annum. Plaintiffs Are Entitled To A Declaratory Judgment On July 12, 2012, Mr. Tim McWatt, on behalf of FFIC, served a letter on Plaintiffs declaring that the FFIC Policy was void because of alleged fraud, misrepresentation and concealment. In their Petitions, Plaintiffs have requested a declaration from the court that the Policy is not void. The jury answered Question No. 12 in favor of Plaintiffs and found that Plaintiffs did not commit fraud, misrepresentation or concealment. Therefore, Plaintiffs are entitled to a declaration that the FFIC Policy is not void, and that Plaintiffs are entitles to stipulated reasonable and necessary attomeys’ fees. Plaintiffs respectfully request that the Court sign and enter a Final Judgment against FFIC in the amounts specified herein, and for any such further relief as to which Plaintiffs are entitled. Respectfully submitted, /s/ James L. Comell James L. Comell Comell & Pardue State Bar No. 04834800 948 Columbia Houston, Texas 770008 Telephone (713) 862 2399 Facsimile(1 281) 715 4777 jcomell@comell pardue.net Brendan K. McBride State Bar No. 24008900 Brendan.mcbride@att.net RIDE AW _ IRM of Counsel RAVELY EARSON 425 Soledad, Suite 600 San Antonio, Texas 78205 Telephone (210) 227 1200 Facsimile (210) 881 6752 Brendan. mcbride@att.net Attorneys for Plaintiffs CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the above and foregoing document was served on all counsel of record via hand delivery, U.S. mail, ovemight delivery, fax, and/or e filing, on this the 29thday of October /s/ James L. Comell