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Laas v. State Farm Mutual Automobile Insurance Co.8/10/2000
of Subsection (f) of this section shall not apply in such case. TEX. INS. CODE ANN. art. 21.55, ยง 1(5), 3(g) (Vernon Supp. 2000).
If the insurer fails to comply with the deadlines in Article 21.55 for commencing investigation, acceptance or rejection of the claim, and payment of the claim, then the insurer liable under the policy of insurance can be held liable for damages under section 6. In their brief, appellants contend they filed a claim under their policy in April 1992, and refer to their exhibits 23 and 24. Exhibit 23 is appellants' letter dated July 2, 1993, to State Farm, and the only mention of an April filing of any claim is: "Mr. Lee's insurance has paid the policy limits of $10,000 on April 2, 1993 whereby I am requesting reimbursement under Mrs. Laas's under-insured coverage." Appellants assertion that they gave "notice of claim" in April 1992 is unsupported by any evidence in this record. In their brief, appellants make no reference to any place in the record to support their argument that State Farm has violated the statute. Appellants argument concludes that they submitted their claim immediately after the accident and State Farm failed to process the claim timely. Appellants do not explain how State Farm violated the statute, nor do they make reference to the record where these notices can be found other than assert that exhibits 23 & 24 somehow provide the basis of their claim. Appellants do not demonstrate how the letters from them to and from State Farm in anyway violate the statute. This point is waived for failure to cite to the record where there is evidence to support their allegations, and failure to furnish argument other than conclusions to demonstrate that the statute was somehow violated. TEX. R. APP. P. 38.1(h); Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 305 (Tex. App.--Houston [14th Dist.] 1995, no writ). Point of error nine is overruled.
In point ten, appellants contend the trial court erred by severing their 21.55 claim under rule 41, Texas Rules of Procedure. There is nothing in the record to indicate that appellants in any way objected to State Farm's motion for severance; there is no written reply to the motion for severance by State Farm; the motion for severance mentioned in the order granting severance is not in the record; and there is no ruling by the trial court on any complaint by appellants to the motion for severance. Appellants have not preserved error on this contention. TEX. R. APP. P. 33.1; McCallister v. Samuels, 857 S.W.2d 768, 779 (Tex. App.-Houston [14th Dist.] 1993, no writ). Appellants' point of error ten is overruled.
In point eleven, appellants assert that the trial court abused its discretion in entering a take nothing judgment on their article 21.55 claims because that portion of the case had been severed. Appellants argue that the trial court lacked jurisdiction of the article 21.55 claim; therefore, the trial court erred in dismissing the claim because the 21.55 claim was a separate case, and not within the trial court's jurisdiction. Point eleven is waived because appellants cite no authority and no argument to support this contention. TEX. R. APP. P. 38.1(h); Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 305 (Tex. App.--Houston [14th Dist.] 1995, no writ). Point of error eleven is overruled.
BREACH OF CONTRACT CLAIM
In points twelve and thirteen, appellants contend the trial court erred in failing to allow evidence and a jury issue on appellants' breach of contract claim.
In point twelve, appellants assert that the trial court erred in not allowing Mr. Laas to testify about his filing of a claim with the State Farm agent. Appellants' attorney asked Mr. Laas if he ever notifie
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