Preview
FILED
4/23/2021 3:41 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Margaret Thomas DEPUTY
CAUSE NO. DC-21-01938
IN RE: POLICY OF INSURANCE NO. IN THE DISTRICT COURT OF
101 PKG 0166731-00 BY AND
BETWEEN
COLONY INSURANCE COMPANY,
INSURER, DALLAS COUNTY, TEXAS
AND
THE KEIFFON GROUP, JNSURED
162N? JUDICIAL DISTRICT
MOTION TO VACATE AND SET ASIDE ORDER APPOINTING UMPIRE AND
TO ABATE IN FAVOR OF PRIOR APPOINTMENT OF UMPIRE FOR APPRAISAL
TO THE HONORABLE JUDGE MOORE:
COMES NOW, The Keiffon Group (Keiffon) and files this its Motion to Vacate and Set
Aside the March 10, 2021, Order Appointing Umpire and To Abate in Favor of the January 18,
2021 Appointment of Umpire by Judge McFarlin and would respectfully show the Court as
follows:
I BACKGROUND
1 This matter arises out of a dispute between an insurance carrier, Colony Insurance
Company (Colony), and its insured, Keiffon, related to storm damages that occurred on or about
April 19, 2020 and under that certain Colony issued insurance Policy No. 101 PKG 0166731-00
(Policy). The Policy provides for coverage on two Dallas County properties, being: 1) 3014 North
1-35 East and 2) 3016 North I-35 East in Lancaster, Dallas 75134 (Properties).
Motion to Vacate and Set Aside Order Appointing Umpire and Abate in Favor of Appraisal
Page 1 of 4
2. Subsequent to the date of loss, Keiffon made claims for the Properties which were
collectively assigned claim number P-099-1025324 (Claim) by Colony for damages and loss
Keiffon sustained.
3 Thereafter, a dispute arose between Keiffon and Colony over the extent of the storm
damages and the amount and value of the loss and Keiffon invoked the appraisal provision of the
insurance policy issued by Colony.
IL. JUDGE MCFARLIN APPOINTED UMPIRE IN THIS DISPUTE 2 MONTHS
PRIOR, ON JANUARY 18, 2021
4 Approximately 2 months prior to This Court signing an Order appointing an
umpire, Judge McFarlin had already appointed an umpire for this very same dispute. See attached,
signed Appointment of Umpire by Judge McFarlin issued on January 18, 2021 as Exhibit A and
incorporated for all purposes.
5 As either party could request a court of jurisdiction to appoint an umpire, and, in
light of the fact the Judge McFarlin had already appointed an umpire almost 2 months prior, the
Order appointing an umpire in this cause number, DC-21-01938, is duplicative, unnecessary and,
in fact, was already determined by another Dallas County Judge with authority to do the same.
6 The Policy states:
2. Appraisal
a. If we and you disagree on the value of the property
or the amount of loss, either may make a written
demand for appraisal of the loss. In this event, each
party will select a competent and impartial appraiser.
The two appraisers will select an umpire. If they
cannot agree, either may request that selection be
made by a judge of a court having jurisdiction.
The appraisers will state separately the value of the
property and amount of loss. If they fail to agree, they
will submit their differences to the umpire. A
Motion to Vacate and Set Aside Order Appointing Umpire and Abate in Favor of Appraisal
Page 2 of 4
decision agreed to by any two will be binding. Each
party will:
(a) Pay its chosen appraiser; and
(b) Bear the other expense of the appraisal and
umpire equally.
See Exhibit B, Policy of Insurance issued to Keiffon by Colony and incorporated
for all purposes.
ci Since the Honorable Judge McFarlin has already appointed Stephen C. Free as
umpire on January 18, 2021, the Order issued by This Court, almost 2 months later, on March 10,
2021 should be vacated, set aside, and abated. See the March 10, 2021 Order attached as Exhibit
ie
8 Judge McFarlin’s appointment is valid under the policy. Therefore, Keiffon
requests the second, later appointment of Jim Jordan in this cause be vacated and set aside to allow
the appraisal to proceed with Mr. Free.
9. Additionally, Keiffon requests this matter be abated in favor of appraisal, which “is
intended to take place before suit is filed.” State Farm Loyds v. Johnson, 290 S.W.3d 886, 894
(Tex. 2009). As the Texas Supreme Court noted in State Farm Lloyds v. Johnson, “... when an
indivisible injury to property may have several causes, appraisers can assess the amount of damage
and leave causation up to the courts. When divisible losses are involved, appraisers can decide the
cost of repair to each without deciding who must may for it.” Johnson, 290 S.W.3d 894.
10. For the reasons set forth herein, Keiffon respectfully requests the Order appointing
Jim Jordan be vacated and set aside, and the appraisal proceed with Judge McFarlin’s first
appointed umpire, Stephen C. Free, and, that this matter be abated until the conclusion of appraisal.
For the reasons above, the Order Appointing an Umpire in this cause should be vacated, set aside
and abated in favor of Judge McFarlin’s prior appointment of the umpire at Exhibit A.
Motion to Vacate and Set Aside Order Appointing Umpire and Abate in Favor of Appraisal
Page 3 of 4
Respectfully submitted,
/s/ Todd M. Hurd
Todd M. Hurd
State Bar No. 24025443
Email: t.hurd@texasattorneylaw.com
TODD HURD & ASSOCIATES
PO Box 1741
Burleson, Texas 76097
Telephone: 817.426.4529
Facsimile: 817.426.8159
AND
Christopher G. Lyster
State Bar No. 12746250
Email: chris@lysterlaw.com
LYSTER & ASSOCIATES, PLLC
6300 Ridglea Place, Suite 610
Fort Worth, Texas 76116
Telephone: 817.738.7000
Facsimile: 817.900.3331
ATTORNEYS FOR THE KEIFFON GROUP
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been forwarded
to the following counsel of record via EFile Texas on the 23rd day of April 2021:
/s/Todd M. Hurd
Todd M. Hurd
Motion to Vacate and Set Aside Order Appointing Umpire and Abate in Favor of Appraisal
Page 4 of 4
Exhibit A
Buy y ster aw
& Associates ruc
Christopher G. Lyster
chris@lysterlaw.com
January 15, 2021
The Honorable Sheryl Day McFarlin
Dallas County District Court Associate Judge
George Allen Courts Building
600 Commerce Street
Dallas, Texas 75202
Re: In Re: Policy of Insurance No. 101 PKG 0166731-00 by and between Colony
Insurance Company, Insurer, and The Keiffon Group, Insured
Dear Judge McFarlin:
This firm has been retained by The Keiffon Group (“Keiffon”) and asked by our client’s
appraiser, Bryan Drewes, to seek your assistance in the selection and appointment of an Umpire,
pursuant to the appraisal provision of an insurance contract between the Keiffon and Colony
Insurance Company, (“Colony”).
Colony issued an insurance policy to Keiffon, policy number 101 PKG 0166731-00 (the
“Policy”). A true and correct copy of the policy is attached to my affidavit as Exhibit 1-A, which
is being submitted with this letter.
Keiffon submitted a claim for damages to Colony under the Policy, resulting from a
wind/hailstorm on or about April 19, 2020, at the properties located at 3014-3016 N 135 E,
Lancaster, Dallas, TX 75134 (the Property). Colony assigned claim numbers P-099-1025328 and
P-099-1025324 to that claim. Colony unilaterally adjusted and valued Keiffon’s claim_at
$59,875.36 on an Actual Cash Value (“ACV”) basis.
A disagreement subsequently arose between Colony and Keiffon regarding the amount of
Keiffon’s loss attributable to the storm in question. Accordingly, Keiffon then demanded appraisal,
in writing, pursuant to the appraisal provision from the Policy and therein, named its appraiser. A
true and correct copy of the letter demanding appraisal from Keiffon to Colony is attached to my
affidavit at Exhibit 1-B. Colony appointed Larry Hokaj with JSHeld as its appraiser. Since then,
the two appraisers have been in contact with each other since November 17, 2020.
The appraisal provision from the Policy reads as follows:
“2. Appraisal
If we and you disagree on the value of the property or the amount of loss, either may make
written demand for an appraisal of the loss. In this event, each party will select a
LYSTER & ASSOCIATES, PLLC | 6300 Ridglea Place, Suite 610 | Fort Worth, Texas 761 16 | Phone: (817) 738-7000 |Fax: (817) 900-3331
ee
The Honorable Sheryl Day McFarlin
January 15, 2021
Page 2
competent and impartial appraiser. The two appraisers will select and umpire. If they
annot agree, either may request that selection be made by a judge of a court having
jurisdiction. The appraisers will state separately the value of the property and amount of
loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed
to by any two will be binding.
Each party will:
(1) Pay its chosen appraiser; and
(2) Bear the other expenses of the appraisal and umpire equally.
See, Exhibit 1A — Policy; page 71 of 108, page 9 of 15) (Emphasis Added).
No agreement regarding the selection of an umpire has been reached between the two
appraisers, despite the fact that the appraisers first made contact with each other on November 17,
2020. Therefore, since 59 days have passed, which is more than a reasonable time, either Colony
or Keiffon are now entitled to request that a judge ofa court having jurisdiction select an umpire.
Accordingly, since all conditions precedent have been met, have occurred or have been waived,
on behalf
of Keiffon we ask that you select and appoint an umpire so that the appraisal process can
move forward.
Appraisal clauses, commonly found in homeowners, automobile, and property policies in
Texas, provide a means to resolve disputes about the amount of loss for a covered claim without
the need for attorneys, lawsuit, pleadings, subpoenas, or hearings. Jn re Universal Underwriters
of Tex. Ins. Co., 345 S.W.3d 404, 406-407 (Tex. 2011), citing State Farm Lloyds v. Johnson, 290
S.W.3d 886, 888 and 894 (Tex. 2009).
When appointment of an umpire is necessary, either party may request a judge of a court
of record to perform this role. The “selection of an umpire by a judge in accordance with the terms
of [an insurance policy] does not require the filing of a lawsuit or invoking the subject matter
jurisdiction of a court.” Texas Mun. League Joint Self-Insurance Fund v. Hous. Auth. of the City
of Alice, No. 04-15-00069-CV, 2015 WL 5964182 at *2 (Tex.App.—San Antonio Oct. 14, 2015,
no pet.) (memo. op.). Thus, appointment of an umpire is an extrajudicial action that may be
completed by a judge outside of the judicial system, without pleadings, discovery, and hearings.
Therefore, as provided under the Policy, Keiffon and its appraiser ask that you appoint a
competent and disinterested umpire to oversee the appraisal process. Keiffon is aware that the
individuals identified in the resumes of potential umpire candidates included with this letter would
be willing and able to serve in the capacity of umpire for this dispute, if appointed by this Court,
all of whom are competent and impartial, as required by the policy.
Please provide the name and contact information of the umpire selected in the space
provided below. I will immediately provide this information to the insurance carrier and its
i eeeeeeee
The Honorable Sheryl Day McFarlin
January 15, 2021
Page 3
appointed appraiser as well as my client’s appointed appraiser. Thank you for your attention to
this matter.
Cordially,
/s/ Christopher G. Lyster
Christopher G. Lyster
ephe C. Free
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FILED 4/23/2021 3:41 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Margaret Thomas DEPUTY CAUSE NO. DC-21-01938 IN RE: POLICY OF INSURANCE NO. IN THE DISTRICT COURT OF 101 PKG 0166731-00 BY AND BETWEEN COLONY INSURANCE COMPANY, INSURER, DALLAS COUNTY, TEXAS AND THE KEIFFON GROUP, JNSURED 162N? JUDICIAL DISTRICT MOTION TO VACATE AND SET ASIDE ORDER APPOINTING UMPIRE AND TO ABATE IN FAVOR OF PRIOR APPOINTMENT OF UMPIRE FOR APPRAISAL TO THE HONORABLE JUDGE MOORE: COMES NOW, The Keiffon Group (Keiffon) and files this its Motion to Vacate and Set Aside the March 10, 2021, Order Appointing Umpire and To Abate in Favor of the January 18, 2021 Appointment of Umpire by Judge McFarlin and would respectfully show the Court as follows: I BACKGROUND 1 This matter arises out of a dispute between an insurance carrier, Colony Insurance Company (Colony), and its insured, Keiffon, related to storm damages that occurred on or about April 19, 2020 and under that certain Colony issued insurance Policy No. 101 PKG 0166731-00 (Policy). The Policy provides for coverage on two Dallas County properties, being: 1) 3014 North 1-35 East and 2) 3016 North I-35 East in Lancaster, Dallas 75134 (Properties). Motion to Vacate and Set Aside Order Appointing Umpire and Abate in Favor of Appraisal Page 1 of 4 2. Subsequent to the date of loss, Keiffon made claims for the Properties which were collectively assigned claim number P-099-1025324 (Claim) by Colony for damages and loss Keiffon sustained. 3 Thereafter, a dispute arose between Keiffon and Colony over the extent of the storm damages and the amount and value of the loss and Keiffon invoked the appraisal provision of the insurance policy issued by Colony. IL. JUDGE MCFARLIN APPOINTED UMPIRE IN THIS DISPUTE 2 MONTHS PRIOR, ON JANUARY 18, 2021 4 Approximately 2 months prior to This Court signing an Order appointing an umpire, Judge McFarlin had already appointed an umpire for this very same dispute. See attached, signed Appointment of Umpire by Judge McFarlin issued on January 18, 2021 as Exhibit A and incorporated for all purposes. 5 As either party could request a court of jurisdiction to appoint an umpire, and, in light of the fact the Judge McFarlin had already appointed an umpire almost 2 months prior, the Order appointing an umpire in this cause number, DC-21-01938, is duplicative, unnecessary and, in fact, was already determined by another Dallas County Judge with authority to do the same. 6 The Policy states: 2. Appraisal a. If we and you disagree on the value of the property or the amount of loss, either may make a written demand for appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A Motion to Vacate and Set Aside Order Appointing Umpire and Abate in Favor of Appraisal Page 2 of 4 decision agreed to by any two will be binding. Each party will: (a) Pay its chosen appraiser; and (b) Bear the other expense of the appraisal and umpire equally. See Exhibit B, Policy of Insurance issued to Keiffon by Colony and incorporated for all purposes. ci Since the Honorable Judge McFarlin has already appointed Stephen C. Free as umpire on January 18, 2021, the Order issued by This Court, almost 2 months later, on March 10, 2021 should be vacated, set aside, and abated. See the March 10, 2021 Order attached as Exhibit ie 8 Judge McFarlin’s appointment is valid under the policy. Therefore, Keiffon requests the second, later appointment of Jim Jordan in this cause be vacated and set aside to allow the appraisal to proceed with Mr. Free. 9. Additionally, Keiffon requests this matter be abated in favor of appraisal, which “is intended to take place before suit is filed.” State Farm Loyds v. Johnson, 290 S.W.3d 886, 894 (Tex. 2009). As the Texas Supreme Court noted in State Farm Lloyds v. Johnson, “... when an indivisible injury to property may have several causes, appraisers can assess the amount of damage and leave causation up to the courts. When divisible losses are involved, appraisers can decide the cost of repair to each without deciding who must may for it.” Johnson, 290 S.W.3d 894. 10. For the reasons set forth herein, Keiffon respectfully requests the Order appointing Jim Jordan be vacated and set aside, and the appraisal proceed with Judge McFarlin’s first appointed umpire, Stephen C. Free, and, that this matter be abated until the conclusion of appraisal. For the reasons above, the Order Appointing an Umpire in this cause should be vacated, set aside and abated in favor of Judge McFarlin’s prior appointment of the umpire at Exhibit A. Motion to Vacate and Set Aside Order Appointing Umpire and Abate in Favor of Appraisal Page 3 of 4 Respectfully submitted, /s/ Todd M. Hurd Todd M. Hurd State Bar No. 24025443 Email: t.hurd@texasattorneylaw.com TODD HURD & ASSOCIATES PO Box 1741 Burleson, Texas 76097 Telephone: 817.426.4529 Facsimile: 817.426.8159 AND Christopher G. Lyster State Bar No. 12746250 Email: chris@lysterlaw.com LYSTER & ASSOCIATES, PLLC 6300 Ridglea Place, Suite 610 Fort Worth, Texas 76116 Telephone: 817.738.7000 Facsimile: 817.900.3331 ATTORNEYS FOR THE KEIFFON GROUP CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been forwarded to the following counsel of record via EFile Texas on the 23rd day of April 2021: /s/Todd M. Hurd Todd M. Hurd Motion to Vacate and Set Aside Order Appointing Umpire and Abate in Favor of Appraisal Page 4 of 4 Exhibit A Buy y ster aw & Associates ruc Christopher G. Lyster chris@lysterlaw.com January 15, 2021 The Honorable Sheryl Day McFarlin Dallas County District Court Associate Judge George Allen Courts Building 600 Commerce Street Dallas, Texas 75202 Re: In Re: Policy of Insurance No. 101 PKG 0166731-00 by and between Colony Insurance Company, Insurer, and The Keiffon Group, Insured Dear Judge McFarlin: This firm has been retained by The Keiffon Group (“Keiffon”) and asked by our client’s appraiser, Bryan Drewes, to seek your assistance in the selection and appointment of an Umpire, pursuant to the appraisal provision of an insurance contract between the Keiffon and Colony Insurance Company, (“Colony”). Colony issued an insurance policy to Keiffon, policy number 101 PKG 0166731-00 (the “Policy”). A true and correct copy of the policy is attached to my affidavit as Exhibit 1-A, which is being submitted with this letter. Keiffon submitted a claim for damages to Colony under the Policy, resulting from a wind/hailstorm on or about April 19, 2020, at the properties located at 3014-3016 N 135 E, Lancaster, Dallas, TX 75134 (the Property). Colony assigned claim numbers P-099-1025328 and P-099-1025324 to that claim. Colony unilaterally adjusted and valued Keiffon’s claim_at $59,875.36 on an Actual Cash Value (“ACV”) basis. A disagreement subsequently arose between Colony and Keiffon regarding the amount of Keiffon’s loss attributable to the storm in question. Accordingly, Keiffon then demanded appraisal, in writing, pursuant to the appraisal provision from the Policy and therein, named its appraiser. A true and correct copy of the letter demanding appraisal from Keiffon to Colony is attached to my affidavit at Exhibit 1-B. Colony appointed Larry Hokaj with JSHeld as its appraiser. Since then, the two appraisers have been in contact with each other since November 17, 2020. The appraisal provision from the Policy reads as follows: “2. Appraisal If we and you disagree on the value of the property or the amount of loss, either may make written demand for an appraisal of the loss. In this event, each party will select a LYSTER & ASSOCIATES, PLLC | 6300 Ridglea Place, Suite 610 | Fort Worth, Texas 761 16 | Phone: (817) 738-7000 |Fax: (817) 900-3331 ee The Honorable Sheryl Day McFarlin January 15, 2021 Page 2 competent and impartial appraiser. The two appraisers will select and umpire. If they annot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will: (1) Pay its chosen appraiser; and (2) Bear the other expenses of the appraisal and umpire equally. See, Exhibit 1A — Policy; page 71 of 108, page 9 of 15) (Emphasis Added). No agreement regarding the selection of an umpire has been reached between the two appraisers, despite the fact that the appraisers first made contact with each other on November 17, 2020. Therefore, since 59 days have passed, which is more than a reasonable time, either Colony or Keiffon are now entitled to request that a judge ofa court having jurisdiction select an umpire. Accordingly, since all conditions precedent have been met, have occurred or have been waived, on behalf of Keiffon we ask that you select and appoint an umpire so that the appraisal process can move forward. Appraisal clauses, commonly found in homeowners, automobile, and property policies in Texas, provide a means to resolve disputes about the amount of loss for a covered claim without the need for attorneys, lawsuit, pleadings, subpoenas, or hearings. Jn re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d 404, 406-407 (Tex. 2011), citing State Farm Lloyds v. Johnson, 290 S.W.3d 886, 888 and 894 (Tex. 2009). When appointment of an umpire is necessary, either party may request a judge of a court of record to perform this role. The “selection of an umpire by a judge in accordance with the terms of [an insurance policy] does not require the filing of a lawsuit or invoking the subject matter jurisdiction of a court.” Texas Mun. League Joint Self-Insurance Fund v. Hous. Auth. of the City of Alice, No. 04-15-00069-CV, 2015 WL 5964182 at *2 (Tex.App.—San Antonio Oct. 14, 2015, no pet.) (memo. op.). Thus, appointment of an umpire is an extrajudicial action that may be completed by a judge outside of the judicial system, without pleadings, discovery, and hearings. Therefore, as provided under the Policy, Keiffon and its appraiser ask that you appoint a competent and disinterested umpire to oversee the appraisal process. Keiffon is aware that the individuals identified in the resumes of potential umpire candidates included with this letter would be willing and able to serve in the capacity of umpire for this dispute, if appointed by this Court, all of whom are competent and impartial, as required by the policy. Please provide the name and contact information of the umpire selected in the space provided below. I will immediately provide this information to the insurance carrier and its i eeeeeeee The Honorable Sheryl Day McFarlin January 15, 2021 Page 3 appointed appraiser as well as my client’s appointed appraiser. Thank you for your attention to this matter. Cordially, /s/ Christopher G. Lyster Christopher G. Lyster ephe C. Free