ACCEPTED

04-19-00443-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
10/28/2019 2:19 PM

No. 04-19-00443-CV
FILED IN
In the 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
10/28/19 2:19:35 PM
COURT OF APPEALS
FOURTH DISTRICT OF TEXAS
San Antonio, Texas

ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY,

Appellant,

v.

PETER REININGER,
Appellee.

On Appeal from Cause No. 2016-CI-21617

in the 288th District Court of Bexar County, Texas
Honorable Cynthia Marie Chapa, Presiding Judge

APPELLANT’S BRIEF

Gino J. Rossini Robert E. Valdez

State Bar No. 24007953 State Bar No. 20428100
Roger D. Higgins Adan A. Gonzalez, III
State Bar No. 09601500 State Bar No. 08122350
Shelby G. Hall VALDEZ &TREVIÑO, P.C.
State Bar No. 24086717 8023 Vantage Dr., Suite 700
THOMPSON, COE, COUSINS & IRONS, San Antonio, TX 78230
L.L.P. Telephone: (210) 598-8686
700 North Pearl Street, 25th Floor Facsimile: (210) 598-8797
Dallas, Texas 75201 E-mail: revaldez@valdeztrevino.com
Telephone: (214) 871-8200 E-mail
Facsimile: (214) 871-8209 agonzalez@valdeztrevino.com
E-mail: rhiggins@thompsoncoe.com
E-mail: grossini@thompsoncoe.com
E-mail: shall@thompsoncoe.com
Attorneys for Appellant Allstate Vehicle and Property Insurance Company

ORAL ARGUMENT REQUESTED

 IDENTITY OF PARTIES AND COUNSEL

In order to assist the Court in identifying grounds for recusal or

disqualification, Allstate Vehicle and Property Insurance Company certifies that the

following is a complete list of the names and addresses of the parties to this appeal

and in the trial court and their counsel:

1. Appellant Allstate Vehicle and Property Insurance Company

Trial Counsel: Robert E. Valdez
Adan A. Gonzalez, III
Valdez & Treviño, P.C.
8023 Vantage Dr., Suite 700
San Antonio, TX 78230
Telephone: (210) 598-8686
Facsimile: (210) 598-8797

Appellate Counsel: Roger Higgins

Gino J. Rossini
Shelby Hall
Thompson, Coe, Cousins & Irons, L.L.P.
700 North Pearl St., 25th Floor
Dallas, Texas 75201
Telephone: (214) 871-8200
Facsimile: (214) 871-8209

2. Defendant Kevin Phillips (not party to the appeal)

Trial Counsel: Robert E. Valdez
Adan A. Gonzalez, III
Valdez & Treviño, P.C.
8023 Vantage Dr., Suite 700
San Antonio, TX 78230
Telephone: (210) 598-8686
Facsimile: (210) 598-8797

ii
3. Appellee Peter Reininger
Trial and Appellate Richard D. Daly
Counsel: John S. Black
James W. Willis
David L. Bergen
Daly & Black, P.C.
2211 Norfolk St., Suite 800
Houston, Texas 77098
Telephone: (713) 655-1405
Facsimile: (713) 655-1587

iii
 FOR THE COURT’S CONVENIENCE

The following glossary of terms indicates abbreviations used throughout

Allstate’s Brief to refer to the parties and key terms:

Allstate Allstate Vehicle and Property Insurance Company was a

Defendant in the trial court and is an Appellant herein.
Throughout this brief, “Allstate” refers to Allstate
Vehicle and Property Insurance Company.
Phillips Kevin Phillips was a Defendant in the trial court. He was
dismissed in the trial court, is not referenced in the
Judgment, and is not a party to this appeal. Throughout
this brief, “Phillips” refers to Kevin Phillips.
Reininger Peter Reininger was the Plaintiff in the trial court and is
the Appellee herein.
Property “Property” refers to the home of Reininger and his wife,
Nancy Reininger, at 3 Stoneleigh Way, San Antonio,
Texas, 78218-1718. Nancy Reininger is not a party to
this action.
Policy “Policy” refers to the Allstate policy number 836 419
523 issued to Reininger and his wife, Nancy Reininger.
Claim “Claim” refers to the claim against the Policy made by
Reininger for wind and/or hail damage to the Property
associated with an April 12, 2016 storm event. The
Claim was assigned claim number 0411384258 by
Allstate. The Claim is the subject of Reininger’s suit
against Allstate and this appeal.
Cosmetic “Cosmetic Damage Exclusion” means the Metal Roof
Damage Surfaces Cosmetic Damage Exclusion Endorsement - A
Exclusion VP166-1.

iv
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ......................................................................... ii

FOR THE COURT’S CONVENIENCE ..............................................................................iv

TABLE OF CONTENTS .................................................................................................. v

INDEX OF AUTHORITIES..............................................................................................xi

STATEMENT OF THE CASE ...................................................................................... xvii

STATEMENT REGARDING ORAL ARGUMENT ......................................................... xviii

ISSUES PRESENTED ...................................................................................................xix

STATEMENT OF FACTS................................................................................................. 1

I. The policy’s Cosmetic Damage Exclusion. .......................................... 1

II. Allstate’s handling of the Claim............................................................ 2

III. Reininger’s lawsuit against Allstate. ..................................................... 5

IV. Trial, verdict, and judgment in the trial court. ...................................... 6

SUMMARY OF ARGUMENT ........................................................................................... 7

ARGUMENT ............................................................................................................... 10

I. ISSUE ONE: The trial court erred by submitting Question 1

addressing whether the Cosmetic Damage Exclusion was part of
the Policy, because the evidence conclusively established that it
was part of the Policy and the submission was not supported by
the pleadings regardless. ..................................................................... 10

A. Standards for reviewing charge error........................................ 11

B. Evidence conclusively establishes that the Cosmetic

Damage Exclusion was part of the Policy. ............................... 12

v
 C. The binder sent to Reininger is no evidence that the
Policy lacks a Cosmetic Damage Exclusion. ............................ 14

1. Under Texas law, the binder is not the full

insurance policy. ............................................................. 15

2. Under the terms of the binder itself, it is not the

full Policy........................................................................ 15

D. Question 1 was erroneously submitted because it was not

supported by the pleadings........................................................ 18

E. Instructions accompanying Question 1 also are

erroneous. .................................................................................. 19

F. These errors were harmful, requiring reversal of the

judgment.................................................................................... 19

II. ISSUE TWO: The Court erred when it refused to submit

Allstate’s requested question and instruction regarding whether
the Reininger’s claimed damage to his metal roof fell within the
Cosmetic Damage Exclusion. ............................................................. 20

A. Allstate’s requested charge submission regarding

application of the Cosmetic Damage Exclusion was
supported by the pleadings and the language of the
Policy......................................................................................... 20

B. Allstate’s requested charge submission regarding

application of the Cosmetic Damage Exclusion was
supported by the pleadings, the evidence, and the Policy. ....... 21

1. The only actual evidence presented by Reininger’s

expert, Earl Stigler, establishes that the claimed
damages to the metal roof were mere indentations,
dents, distortions, scratches, or marks. ........................... 22

2. Allstate’s experts, Mark Kubena and Alan

Berryhill, confirm that Reininger’s claimed
damages were indentations, dents, distortions,
scratches, or marks. ........................................................ 26

vi
 3. Allstate’s independent adjuster, Kevin Phillips,
established that Reininger’s claimed storm-caused
damages were mere indentations, dents,
distortions, scratches, or marks. ..................................... 27

4. Reininger’s testimony fails to establish that any

claimed wind or hail damage created a hole, tear,
or perforation in the roof. ............................................... 28

C. The trial court’s error in not submitting Allstate’s

requested question and instruction was harmful. ...................... 28

III. ISSUE THREE: The trial court erred by submitting Question 2

and accompanying instructions because they were improperly
conditioned on an affirmative answer to Question 1. ......................... 29

IV. ISSUE FOUR: The judgment’s award of actual damages is

erroneous because there is no legally and factually sufficient
evidence supporting the liability finding and the finding does not
otherwise support the actual damages award because of charge
error. .................................................................................................... 30

A. There is no evidence that Allstate committed an unfair or

deceptive act or practice in its handling and settlement of
the Claim. .................................................................................. 30

1. Reininger is not entitled to Policy benefits on his

Claim, precluding any statutory cause of action
regarding Allstate’s handling and settlement of the
Claim. .............................................................................. 32

a. Reininger would not be entitled to benefits

on his Claim if the binder were the entire
policy, which it is not. .......................................... 33

b. Reininger is not entitled to benefits on his

Claim under the Policy. ........................................ 33

c. Reininger is not entitled to benefits

regardless, because he has failed to
segregate his damages between those due to
covered and non-covered perils............................ 34

vii
 2. Conclusive evidence shows that Allstate’s denial
of the Claim was based on a bona fide coverage
dispute. ............................................................................ 36

3. There is no evidence that Allstate refused to pay

the Claim without conducting a reasonable
investigation.................................................................... 37

4. There is no evidence that Allstate committed any

other alleged claim handling violation. .......................... 37

5. There is no evidence of loss of Policy benefits

“caused by” any Allstate Insurance Code violation. ...... 39

6. The trial court erred in submitting Allstate’s

alleged statutory claim handling violations for
determination by the jury (Questions 5 and 6). .............. 40

B. There is no evidence that Allstate made an actionable

misrepresentation in its sale of the Policy to Reininger, or
that any alleged misrepresentation caused Reininger
damages, and there is no jury finding as to
misrepresentation in the sale of the Policy regardless. ............. 42

1. There is no evidence that Allstate made a statutory

misrepresentation in the sale of the Policy. .................... 43

2. There is no evidence that any alleged

misrepresentation made by Allstate proximately
caused Reininger’s damages........................................... 47

V. ISSUE FIVE: The evidence is factually and legally insufficient to

support any finding regarding Allstate’s “knowing” Insurance
Code violation sufficient to support an award of additional
statutory damages. ............................................................................... 48

VI. ISSUE SIX: The trial court committed harmful error in admitting
irrelevant evidence regarding other insurance claims involving
other policies and other insureds. ........................................................ 49

viii
 A. The trial court omitted harmful error by admitting
evidence that neighbors received new roofs following the
storm in question. ...................................................................... 50

B. The trial court committed harmful error in admitting

testimony and documents regarding TDI complaints
against Allstate that were not relevant to Reininger’s
Claim. ........................................................................................ 53

1. The trial court erred by admitting testimony and

allowing publication of materials regarding the
TDI complaints as impeachment evidence over
Allstate’s objections. ...................................................... 54

2. The trial court erred by admitting testimony

regarding Allstate’s responses to the TDI
complaints as impeachment evidence. ........................... 56

C. Each of these evidentiary errors was harmful........................... 57

VII. ISSUE SEVEN: The cumulative effect of the trial court’s

multiple evidentiary, charge, and other errors is harmful and
requires reversal of the judgment. ....................................................... 58

PRAYER ..................................................................................................................... 59

CERTIFICATE OF COMPLIANCE .................................................................................. 62

CERTIFICATE OF SERVICE .......................................................................................... 62

ix
 APPENDIX

Final Judgment
(CR:685-686) ............................................................................................... Tab A

Charge of the Court

(CR:589-610) ............................................................................................... Tab B

Defendants’ Proposed Jury Charge Question [and Instructions]

(CR:561-562) ............................................................................................... Tab C

Plaintiff’s Second Amended Petition

(CR:248-259) ............................................................................................... Tab D

Policy Declarations
(RR11:8-13, PX1 (excerpt), Reininger 0239-0244) (emphasis added) ....... Tab E

Metal Roof Surfaces Cosmetic Damage Exclusion Endorsement - AVP166-1

(RR11:47, PX1 (excerpt), Reininger 0278) (emphasis added).................... Tab F

x
 INDEX OF AUTHORITIES

CASES

Abilene Nat. Bank v. Fina Supply, Inc.,

706 S.W.2d 737 (Tex. App.—Eastland 1986), aff’d in part,
disapproved in part on other grounds, 726 S.W.2d 537 (Tex. 1987) ...........18

Allison v. Fire Ins. Exch.,

98 S.W.3d 227 (Tex. App.—Austin 2002, review granted, judgment
vacated and remanded by agreement) ...........................................................35

Alvarez v. Missouri-Kansas-Texas R. Co.,

683 S.W.2d 375 (Tex. 1984) .........................................................................19

Benson v. Chalk,
536 S.W.3d 886 (Tex. App.—Houston 2017, pet. denied) .................... 56, 57

Cherokee Water Co. v. Forderhause,

741 S.W.2d 377 (Tex. 1987) .........................................................................18

Columbia Mut. Ins. Co. v. Kerrville Prof’l Properties, Ltd.,

SA-16-CA-00973-XR, 2017 WL 7805755 (W.D. Tex. July 12, 2017) ........17

Dallas Nat’l Ins. Co. v. Calitex Corp.,

458 S.W.3d 210 (Tex. App.—Dallas 2015, no pet.) .....................................34

Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co.,

267 S.W.3d 20 (Tex. 2008) ...........................................................................34

Dunn v. Bank-Tec S.,

134 S.W.3d 315 (Tex. App.—Amarillo 2003, no pet.) .................................58

E.R. Dupuis Concrete Co. v. Penn Mut. Life Ins. Co.,

137 S.W.3d 311 (Tex. App.—Beaumont 2004, no pet.) ........................ 13, 19

Ford Motor Co. v. Ledesma,

242 S.W.3d 32 (Tex. 2007) ...........................................................................47

xi
Gainsco County Mut. Ins. Co. v. Martinez,
27 S.W.3d 97 (Tex. App.—San Antonio 2000, pet. dism’d by agr.) ..... 58, 59

Gamma Group, Inc. v. Transatlantic Reinsurance Co.,

242 S.W.3d 203 (Tex. App.—Dallas 2007, pet. denied) ....................... 15, 45

Garcia v. Lloyds,
514 S.W.3d 257 (Tex. App.—San Antonio 2016, pet. denied) ....................36

Garrison Contractors, Inc. v. Liberty Mut. Ins. Co.,

927 S.W.2d 296 (Tex. App.—El Paso 1996),
aff’d, 966 S.W.2d 482 (Tex. 1998) ................................................................13

Garza v. Southland Corp.,

836 S.W.2d 214 (Tex. App.—Houston [14th Dist.] 1992, no writ)..............19

Gen. Motors Corp. v. Iracheta,

161 S.W.3d 462 (Tex. 2005) .........................................................................24

Great Am. Ins. Co. v. Cantu,

438 S.W.2d 127 (Tex. 1969) ............................................................ 51, 56, 57

Gutierrez v. State Farm Lloyds,

Civ. A. No. 7:14-CV-430, 2015 WL 13188353
(S.D. Tex. Jan. 22, 2015) ...............................................................................51

Howard v. Burlington Ins. Co.,

347 S.W.3d 783 (Tex. App.—Dallas 2011, no pet.) .................. 12, 17, 19, 44

Ins. Network of Texas v. Kloesel,

266 S.W.3d 456 (Tex. App.—Corpus Christi 2008, pet. denied) .................13

Keene Corp. v. Gardner,

837 S.W.2d 224 (Tex. App.—Dallas 1992, writ denied) ..............................54

Kish v. Van Note,

692 S.W.2d 463 (Tex. 1985) .........................................................................32

Kulow v. State,
524 S.W.3d 383 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) ..........54

xii
La.-Pac. Corp. v. Knighten,
976 S.W.2d 674 (Tex. 1998) .........................................................................12

Manion v. Security Nat’l Ins. Co.,

No. 13-01-248-CV, 2002 WL 34230861
(Tex. App.—Corpus Christi Aug. 15, 2002, no pet.) ............................. 13, 48

Med. Care Am., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Penn.,
341 F.3d 415 (5th Cir. 2003) .................................................................. 15, 45

Minnesota Life Ins. Co. v. Vasquez,

192 S.W.3d 774 (Tex. 2006) .........................................................................36

Moore v. Whitney-Vaky Ins. Agency,

966 S.W.2d 690 (Tex. App.—San Antonio 1998, no pet.) .................... 39, 44

In re Nat’l Lloyds Ins. Co.,

449 S.W.3d 486 (Tex. 2014) ...................................................... 50, 51, 56, 57

Natural Gas Pipeline Co. of Am. v. Justiss,

397 S.W.3d 150 (Tex. 2012) .........................................................................23

Nissan Motor Co. v. Armstrong,

145 S.W.3d 131 (Tex. 2004) .................................................................. 50, 57

Nwaigwe v. Prudential Prop. & Cas. Ins. Co.,

27 S.W.3d 558 (Tex. App.—San Antonio 2000, pet. denied) ............... 39, 44

Provident Am. Ins. v. Castañeda,

988 S.W.2d 189 (Tex. 1998) .................................................................. 47, 48

Ranger County Mut. Ins. Co. v. Chrysler Credit Corp.,

501 S.W.2d 295 (Tex. 1973) .........................................................................15

Regent Care Ctr. of San Antonio, L.P. v. Detrick,

567 S.W.3d 752 (Tex. App.—San Antonio 2018, pet. filed) ........................23

Republic Ins. Co. v. Stoker,

903 S.W.2d 338 (Tex. 1995) .........................................................................32

xiii
Rife v. Kerr,
513 S.W.3d 601 (Tex. App.—San Antonio 2016, pet. denied) ....................23

Roland v. Transamerica Life Ins. Co.,

570 F. Supp.2d 871 (N.D. Tex. 2008) ...........................................................48

Serv. Corp. Int’l v. Guerra,

348 S.W.3d 221 (Tex. 2001) .................................................................. 50, 57

Sideman v. Farmers Group, Inc.,

748 Fed. App’x 599 (5th Cir. 2018) ..............................................................17

St. Joseph Hospital v. Wolff,

94 S.W.3d 513 (Tex. 2002) ...........................................................................31

State Farm Fire & Cas. Co. v. Rodriguez,

88 S.W.3d 313 (Tex. App.—San Antonio 2002, pet. denied),
abrogated on other grounds by Don’s Bldg. Supply, Inc. v.
OneBeacon Ins. Co., 267 S.W.3d 20 (Tex. 2008) .........................................34

State Farm Lloyds, Inc. v. Polasek,

847 S.W.2d 279 (Tex. App.—San Antonio 1992, writ denied) ....................36

Steenbergen v. Ford Motor Co.,

814 S.W.2d 755 (Tex. App.—Dallas 1991, writ denied) ..............................13

Surredin v. State,
165 S.W.3d 751 (Tex. App.—San Antonio 2005, no pet.) ...........................54

Telepak v. United Servs. Auto Ass’n,

887 S.W.2d 506 (Tex. App.—San Antonio 1994, writ denied) ....................22

Thota v. Young,
366 S.W.3d 678 (Tex. 2012) ............................................................ 12, 19, 28

Travelers Indem. Co. v. McKillip,

469 S.W.2d 160 (Tex. 1971) .........................................................................34

xiv
TXI Transp. Co. v. Hughes,
306 S.W.3d 230 (Tex. 2010) .........................................................................54

USAA Tex. Lloyds Co. v. Menchaca,

545 S.W.3d 479 (Tex. 2018) ........................................................ 9, 32, 33, 39

Varme v. Gordon,
881 S.W.2d 877 (Tex. App.—Houston [14th Dist.] 1994, writ denied) .......29

In re V.L.K.,
24 S.W.3d 338 (Tex. 2000) ...........................................................................12

Wallis v. United Servs. Auto. Ass’n,

2 S.W.3d 300 (Tex. App.—San Antonio 1999, pet. denied).........................35

Wal-Mart Stores, Inc. v. Merrell,

313 S.W.3d 837 (Tex. 2010) .........................................................................24

Washington v. Reliable Life Ins.,

581 S.W.2d 153 (Tex. 1979) .........................................................................30

Weidner v. Sanchez,
14 S.W.3d 353 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ................59

Whirlpool Corp. v. Camacho,

298 S.W.3d 631 (Tex. 2009) .........................................................................23

STATUTES

Tex. Ins. Code §541.151 ................................................................................... 32, 39

Tex. Ins. Code §549.001 ................................................................................... 15, 45

Tex. Ins. Code §541.002(1) .....................................................................................49

Tex. Ins. Code §541.060(a)......................................................................... 31, 42, 43

Tex. Ins. Code §541.152(a)......................................................................................30

Tex. Ins. Code §541.152(b) .....................................................................................49

xv
RULES

Tex. R. App. P. 44.1.......................................................................................... 12, 19

Tex. R. App. P. 44.1(a) ............................................................................................28

Tex. R. Civ. P. 277 ...................................................................................................19

Tex. R. Evid. 403 .............................................................................................. 56, 57

Tex. R. Evid. 404(b).................................................................................................56

Tex. R. Evid. 901(a) .................................................................................................13

xvi
 STATEMENT OF THE CASE

Nature of the Case: This is a residential property insurance dispute arising from
Reininger’s Claim against the Policy for damages to the
Property’s metal roof following an April 12, 2016 storm
event. The parties dispute whether a Cosmetic Damage
Exclusion to the Policy is part of the Policy and precludes
Reininger’s recovery on the Claim. Reininger brought
claims against Allstate1 for breach of contract, fraud, and
violations of the Texas Insurance Code and Texas
Deceptive Trade Practices Act (DTPA). (App. Tab D,
CR:248-259)2

Course of The case went to trial. On March 19, 2019, the jury
Proceedings: answered “no” when asked if Reininger and Allstate
“intend[ed] to bind themselves to” the Cosmetic Damage
Exclusion. The jury found that Allstate violated the Texas
Insurance Code when handling the Claim. The jury
awarded damages and additional statutory damages based
on Allstate’s “knowing” violation of the statute. The jury
also found for Reininger on his contract and fraud causes of
action against Allstate. (App. Tab B, CR:589-610)

Trial Court’s On April 12, 2019, the trial court entered final judgment on
Disposition: Reininger’s claim that Allstate violated the Texas Insurance
Code when handling the Claim. (App. Tab A, CR:685-686)
No judgment was entered on Reininger’s causes of action
for breach of contract or fraud. Allstate filed a motion for
judgment notwithstanding the verdict and motion for new
trial. (CR:708-1264) Both were denied by operation of law.
Allstate timely filed a notice of appeal. (CR:1286-1293)

1
Reininger dismissed his claims against Phillips and, in any event, no judgment was entered
against Phillips. (CR:685-686)
2
The Clerk’s Record will be cited in this Brief as “CR:[page number].” The Reporter’s Record
will be cited as RR[volume number]:[page number].

xvii
 STATEMENT REGARDING ORAL ARGUMENT

This case presents multiple issues on appeal of a judgment in excess of

$551,400.00 plus interest on a residential roof claim. The record is voluminous and

includes a 13-volume reporter’s record. The verdict and judgment against Allstate

are not supported by the record or relevant case law. The verdict and judgment lack

legally and factually sufficient evidentiary support, and the trial court committed

reversible charge and harmful evidentiary errors. Accordingly, Allstate requests

oral argument and believes it would assist the Court.

xviii
 ISSUES PRESENTED

I. ISSUE ONE: The trial court erred by submitting Question 1 addressing

whether the Cosmetic Damage Exclusion was part of the Policy, because the
evidence conclusively established that it was part of the Policy and the
submission was not supported by the pleadings regardless.

II. ISSUE TWO: The Court erred when it refused to submit Allstate’s requested
question and instruction regarding whether the Reininger’s claimed damage
to his metal roof fell within the Cosmetic Damage Exclusion.

III. ISSUE THREE: The trial court erred by submitting Question 2 and
accompanying instructions because they were improperly conditioned on an
affirmative answer to Question 1, they misstate applicable policy language,
and they misstate controlling law.

IV. ISSUE FOUR: The judgment’s award of actual damages is erroneous

because there is no legally and factually sufficient evidence supporting the
liability finding and the finding does not otherwise support the actual
damages award because of charge error.

V. ISSUE FIVE: The evidence is factually and legally insufficient to support

any finding regarding Allstate’s “knowing” Insurance Code violation
sufficient to support an award of additional statutory damages.

VI. ISSUE SIX: The trial court committed harmful error in admitting irrelevant
evidence regarding other insurance claims involving other policies and other
insureds.

VII. ISSUE SEVEN: Alternatively, the cumulative effect of the trial court’s
multiple evidentiary, charge, and other errors is harmful and requires
reversal of the judgment.

xix
 STATEMENT OF FACTS

This appeal arises from Reininger’s Claim under his Policy following an

April 12, 2016 hail storm. Central to the appeal’s resolution is a determination of

whether the Cosmetic Damage Exclusion supported Allstate’s denial of

Reininger’s claimed hail damage to his metal roof. At trial, Reininger challenged

the Exclusion by arguing that it did not apply because the damage was more than

cosmetic, and that the Exclusion was not part of the Policy.

I. The policy’s Cosmetic Damage Exclusion.

The Cosmetic Damage Exclusion is specifically referenced on the Policy’s

declarations page. (App. Tab E, RR11:8-13) The Exclusion reads:

Metal Roof Surfaces Cosmetic Damage

Exclusion Endorsement – AVP166-1

In Section 1—Your Property, under Losses We Do Not Cover Under

Coverages A, B, C, the following item is added to paragraph D:

Cosmetic damage caused by hail to a metal roof surface, including

but not limited to, indentations, dents, distortions, scratches, or
marks that change the appearance of a metal roof surface.

We will not apply this exclusion to sudden and accidental direct

physical damage to a metal roof surface caused by hail that results
in water leaking through the metal roof surface.

(App. Tab F, RR11:47 (emphasis altered)) Thus, hail damage to metal roof

surfaces is excluded from coverage if it is “cosmetic,” as defined in the Exclusion,

and an exception to the Exclusion allows coverage if damage is sudden and

1
accidental and the metal roof leaks as a result. (Id.)

On June 14, 2015, Reininger’s Allstate insurance agent sent him a six-page

insurance binder. (RR11:676, 672-677) The binder does not contain insuring

language, identify covered perils or set out coverages, or state how claims are

adjusted or losses are paid. (RR11:672-677) The binder expressly states:

Any insurance bound hererunder shall otherwise be subject in all

respects to the terms and conditions of the regular policy forms of the
Company at present in use and to the statements in this application.

(RR11:676)

Reininger was sent the full Policy, including the Cosmetic Damage

Exclusion, by mail dated July 1, 2015, well before the April 12, 2016 loss

occurred. (RR9:64-65, 9:69-70) Reininger also had access to all of his policy

documents, including the Cosmetic Damage Exclusion, via an online account that

he created as of December 7, 2015. (RR8:48-49, 8:68) At trial, Reininger

introduced a complete copy of the Policy at issue, including the Cosmetic Damage

Exclusion, as Plaintiff’s Exhibit 1. (RR11:47)

II. Allstate’s handling of the Claim.

After Reininger reported a Claim on April 13, 2016 following the hail storm,

Allstate assigned Kevin Phillips to investigate the Claim. (RR4:55-57) Philips

inspected the property on May 2, 2016, for between 45 and 90 minutes, including

getting up on the roof, inspecting the roof, and taking pictures of the roof.

2
(RR4:57, 4:147, 6:160, 8:212-213, 11:78) Reininger did not ask for an inspection

of the interior, stating it would not be necessary as there was no interior damage.

(RR3:119, 5:32, 6:161, 6:194, 8:207, 8:210, 11:78) Philips found other damage,

that is, damage to areas other than the metal roof, but that damage was below the

Policy’s deductible. (RR8:209, RR3:122) Immediately after the inspection, and

again in a call on May 5, 2016, Philips told Reininger that damage to the metal

roof was cosmetic and excluded by the Cosmetic Damage Exclusion, that other

damage was below the Policy deductible, and that no payment would be issued.

(RR11:79, 3:113, 6:161-162, 6:169, 6:197-198, 8:208-209, 8:214-216) Reininger

told Phillips that he disagreed regarding the amount of damage and whether it was

under the deductible. (RR6:162-163) However, Reininger did not at this time

dispute that the Policy had a Cosmetic Damage Exclusion or that damage, if

cosmetic, would not be covered. (RR5:13, 5:15-16, 8:209-210, see RR6:162)

Reininger sent an email on June 17, 2016 to his insurance agent in which

Reininger stated that Philips had told him the damage to the roof was cosmetic, and

Reininger asked for another inspection “so he can really see the damage done to

the roof.” (RR11:779) His agent prepared an email on June 17, 2016, stating that

“the insured is very concerned that he has roof damage and the first adjuster

missed it.” (RR11:84) Reininger also called on June 17, 2016 to request a second

inspection, stating that the first adjuster told him his damages were only cosmetic.

3
(RR11:82) There is no record of Reininger complaining at the time that his Policy

should not have a Cosmetic Damage Exclusion or that the claim should not be

denied if the damage was found to be cosmetic. (RR11:84) Allstate arranged for a

re-inspection of the property, but Reininger chose to cancel the re-inspection and it

never occurred. (RR6:164, 11:84)

Later, Reininger found leaked water in three areas: the entryway (two

spots),3 utility room, and garage. (RR6:166-167, 6:179) At trial, Reininger stated

that no one yet had determined the source of the leaks. (RR6:200, 6:202-203)

Reininger’s counsel sent Allstate a three-page letter dated December 19,

2016, detailing Reininger’s complaint regarding Allstate’s handling of the Claim

and alleged “failure to adequately pay his claim.” (RR11:87-89) The letter listed

multiple alleged Insurance Code violations. (RR11:87-89) However, despite the

fact that Philips had informed Reininger on two occasions that his metal roof

damage was not covered under the Cosmetic Damage Exclusion (RR11:79, 3:113,

6:161-162, 6:169, 6:197-198, 8:208-209, 8:214-216), nowhere in the letter did

Reininger’s counsel claim that (1) the Policy did not or should not include the

Cosmetic Damage Exclusion, (2) Reininger had requested a Policy that provided

coverage for cosmetic damage to the metal roof, or (3) anyone at Allstate ever

3
Because Reininger identified 2 spots of water damage in the entry, at times testimony states
that there were 4 leaks. Because Reininger identified water damage in 3 rooms, at times the
testimony states that there were 3 leaks or 3 areas of claimed water damage.

4
made a misrepresentation about the Cosmetic Damage Exclusion. (RR11:87-89) In

the letter, Reininger claimed $84,592.45 in actual damages, approximately

$3,900.00 in expenses, and $30,000.00 in attorney’s fees to date. (RR11:88-89)

III. Reininger’s lawsuit against Allstate.

Reininger subsequently sued Allstate,4 bringing claims for (1) breach of

contract, (2) misrepresentations and statutory “bad faith” under the DTPA and

Texas Insurance Code, and (3) violation of the prompt payment provisions of

Chapter 542 of the Texas Insurance Code. (RR11:95-98) The Petition recited

boilerplate allegations regarding an alleged “unreasonable” and “outcome-

oriented” investigation that “led to the underpayment of Plaintiff’s claim.”

(RR11:95) Reininger did not allege that (1) the Policy did not or should not include

a Cosmetic Damage Exclusion, (2) he had requested a Policy that provided

coverage for cosmetic damage to the metal roof, or (3) anyone at Allstate ever

made any misrepresentation that the Policy included the Exclusion. (RR11:93-98)

Over 20 months after first filing suit, Reininger filed has Second Amended

Petition. (CR:248-259) This was Reininger’s live pleading at trial, and included

causes of action purportedly supported by two basic premises—(1) the Policy did

not include a Cosmetic Damage Exclusion, and (2) Allstate conducted an improper

investigation and adjustment of Reininger’s claim. (CR:248-259) As a summary of

4
Reininger also sued adjuster Kevin Phillips but nonsuited all claims against him. The judgment
does not award damages to Reininger against Phillips. (App. Tab A, CR:685-686)

5
the crux of Reininger’s claims, he alleges that Allstate “appears to have used a

cosmetic roof damage endorsement that Mr. Reininger never purchased as a basis

for not paying Mr. Reininger for hail damage to his roof.” (CR:251)

IV. Trial, verdict, and judgment in the trial court.

After an eight day trial, the jury found for Reininger on his contract, fraud,

and statutory claims. (App. Tab B, CR:589-610) Judgment was entered on

Reininger’s statutory claims. (App. Tab A, CR:685-686) The Judgment awarded:

 actual damages of $67,882.77 under Texas Insurance

Code §541.152(a);

 additional statutory damages of $135,765.54 under Texas

Insurance Code §541.152(b);

 statutory interest of $32,776.92 under Texas Insurance

Code chapter 542 (Texas’ Prompt Pay Act); and

 attorney’s fees, prejudgment and post-judgment interest.

(CR: 685-686)5

Allstate timely moved for judgment notwithstanding the verdict and, in the

alternative, new trial. (CR:708-1264) These motions were overruled by operation

of law, and Allstate timely brought this appeal. (CR: 1286-1293)

5
Although judgment was not entered on the jury’s findings regarding fraud and breach of
contract, those jury findings were not supported by the evidence for the same reasons that the
statutory findings were not supported, and because the trial court committed harmful charge error
in submitting Reininger’s fraud and breach of contract causes of action.

6
 SUMMARY OF ARGUMENT

This lawsuit addresses Allstate’s denial of coverage for cosmetic damage to

Reininger’s metal roof. Reininger was mailed the Policy and provided on-line

access to all Policy documents. The declarations state that the Policy does not

provide coverage for cosmetic damage caused by hail to a metal roof surface.

(App. Tab E) The Policy’s Cosmetic Damage Exclusion is included among the

Policy endorsements and expressly excludes from coverage hail-caused cosmetic

damage to a metal roof surface. (App. Tab F)

The trial court erred by submitting Question 1, which asked if Reininger and

Allstate “intend to bind themselves to” the Cosmetic Damage Exclusion. The

evidence conclusively established that the Exclusion was part of the Policy and

Question 1 was not supported by the pleadings regardless. Reininger bought and

received a policy that excludes coverage of cosmetic damage to his metal roof, and

then wanted the jury to give him a different policy that provided more coverage

than he bought and paid for. Reininger’s evidentiary theory that he was somehow

promised coverage for cosmetic hail damage to his roof because he wanted

coverage like his former policy is unsupported by the facts or law. When procuring

the Policy, Reininger did not expressly ask for coverage of cosmetic damage to his

metal roof, nor did his insurance agent state that the Policy would provide such

coverage. Although he claimed that he wanted a policy like his former policy, he

7
never provided Allstate (or the jury) his former policy and never even told Allstate

that the former policy covered cosmetic hail damage to his roof. And Reininger

was provided the full Policy well before the claimed date of loss, including the full

Cosmetic Damage Exclusion and reference to it on the declarations pages. He even

introduced the entire Policy—including the Cosmetic Damage Exclusion—into

evidence at trial as Exhibit 1. The Cosmetic Damage Exclusion is conclusively part

of the Policy and Reininger is bound by it. Submitting Question 1 to the jury was

error and was harmful because it deprived Allstate of its main coverage defense.

The trial court also erred in refusing to submit Allstate’s requested,

correctly-worded question and instruction asking whether the claimed damage to

Reininger’s metal roof fell within the Cosmetic Damage Exclusion. This was a key

defensive issue for Allstate, closely contested by the parties, and supported by the

evidence. Allstate’s submission was correctly worded based on the terms of the

Policy and Exclusion and consistent with Texas law. On these grounds, the error in

failing to submit the requested question and instruction to the jury was harmful.

The trial court further erred in conditioning the jury’s responses to other

questions—including Question 2 which addresses whether the metal-roof damage

in this case fell within the Cosmetic Damage Exclusion—on the jury’s response to

Question 1. After erroneously finding that that the parties did not “intend to bind

themselves” to the Cosmetic Damage Exclusion in response to Question 1, the jury

8
was erroneously instructed not to answer and did not answer the question of

whether the claimed damage to Reininger’s metal roof fell within the Exclusion.

This error was harmful and, at the very least, requires reversal of the judgment and

remand.

Moreover, the judgment erroneously awards Policy benefits as damages

under the Texas Insurance Code, based on the jury’s damages finding to Question

6 and liability finding in Question 5. The latter question submitted statutory

violations including (1) misrepresenting a material fact or policy provision relating

to the coverage at issue, and (2) failing to attempt in good faith to effectuate a

prompt, fair, and equitable settlement of a claim when Allstate’s liability has

become reasonably clear.

The trial court’s submission of Question 5 was erroneous for multiple,

independent reasons. First, because Reininger is not entitled to Policy benefits in

light of the Cosmetic Damage Exclusion, he is barred under Texas law from

receiving Policy benefits on his statutory cause of action.6 Second, Allstate’s

claims determination was based on a bona fide coverage dispute, barring statutory

6
If the insurer violates a statutory provision, that violation—at least generally—cannot cause
damages in the form of lost policy benefits that the insured in fact has no right to receive under
the policy. USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 490–494 (Tex. 2018). Some
exceptions to this general rule exist, such as in cases where: (1) even though the insured had no
right to recovery under the policy, the insurer’s conduct caused the insured to lost that
contractual right to policy benefits; or (2) the insurer commits some act, so extreme, that it
caused injury independent of the policy claim. Menchaca, 545 S.W.3d at 495–500. No evidence
introduced in this case implicates these exceptions, nor has Plaintiff pleaded any independent
injury or loss of a contractual right to policy benefits.

9
liability. Third, there is factually and legally insufficient evidence for Reininger to

meet his burden of establishing any of the five insurance code violations submitted

to the jury. Fourth, there is factually and legally insufficient evidence of

Reininger’s loss of Policy benefits “caused by” an Allstate Insurance Code

violation. Fifth, to the extent that Reininger seeks to support the judgment based on

Allstate’s alleged statutory misrepresentation of Policy terms, there is no legally or

factually sufficient evidence of any statutory misrepresentation by Allstate and no

evidence that any alleged misrepresentation caused Reininger’s claimed damages.

The judgment awards $135,765.54 in additional statutory damages under

Texas Insurance Code section 541.152(b) based on the jury’s finding in response to

Question 7 that that Allstate violated the Insurance Code “knowingly.” (CR:599)

In addition to the lack of evidence to support any Insurance Code violation, the

record shows legally insufficient evidence, or, alternatively, factually insufficient

evidence of any “knowing” Insurance Code violation by Allstate.

The trial court also committed harmful evidentiary error cumulative error, as

discussed below.

ARGUMENT

I. ISSUE ONE: The trial court erred by submitting Question 1 addressing

whether the Cosmetic Damage Exclusion was part of the Policy, because
the evidence conclusively established that it was part of the Policy and
the submission was not supported by the pleadings regardless.

Reininger bought and received a policy that excludes coverage of cosmetic

10
damage to his metal roof surface, and yet Reininger wanted the jury to give him a

different policy, one that provided more coverage than he bought and paid for.

Question 1 asks: “Did Peter Reininger and Allstate intend to bind themselves to a

Metal Roof Surfaces Cosmetic Damage Exclusion Endorsement - A VP166-1?”

The court erred by submitting Question 1 to the jury. Evidence introduced at trial,

together with basic contract law, conclusively establishes that Reininger’s policy

included the Cosmetic Damage Exclusion. The submission regarding whether the

parties “intend[ed] to bind themselves” to the exclusion therefore was improper

and irrelevant. Moreover, the submission was not supported by the pleadings.

Over Allstate’s objection,7 the court submitted the following to the jury:

(CR:593)

A. Standards for reviewing charge error.

A trial court’s decision to submit or refuse a particular question or

7
(RR12:12-14)

11
instruction is reviewed under an abuse of discretion standard. Thota v. Young, 366

S.W.3d 678, 687 (Tex. 2012); In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000). The

trial court has discretion to determine proper jury instructions, and “[i]f an

instruction might aid the jury in answering the issues presented to them, or if there

is any support in the evidence for an instruction, the instruction is proper.” La.-

Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998). “An instruction is

proper if it (1) assists the jury, (2) accurately states the law, and (3) finds support in

the pleadings and evidence.” Thota, 366 S.W.3d at 687. Accordingly, a question or

instruction is not proper if it does not assist the jury, fails to accurately state the

law, is not supported by the pleadings, or is not supported by the evidence. See id.

Charge error is grounds for reversal if it “probably caused the rendition of an

improper judgment” or “probably prevented the petitioner from properly

presenting the case to the appellate courts.” Tex. R. App. P. 44.1. “Charge error is

generally considered harmful if it relates to a contested, critical issue.” Thota, 366

S.W.3d at 687. An improper instruction is especially likely to be harmful when the

trial is contested and the evidence sharply conflicting. Id.

B. Evidence conclusively establishes that the Cosmetic Damage

Exclusion was part of the Policy.

Texas law is clear that an insured has a duty to read the policy and, failing to

do so, is charged with knowledge of its conditions and coverage. Howard v.

Burlington Ins. Co., 347 S.W.3d 783, 792 (Tex. App.—Dallas 2011, no pet.); E.R.

12
Dupuis Concrete Co. v. Penn Mut. Life Ins. Co., 137 S.W.3d 311, 320 (Tex.

App.—Beaumont 2004, no pet.); Manion v. Security Nat. Ins. Co., No. 13-01-248-

CV, 2002 WL 34230861, at *3 (Tex. App.—Corpus Christi Aug. 15, 2002, no

pet.). Moreover, Texas courts have declined to impose on an insurance agent a

duty to explain policy terms to an insured. Ins. Network of Texas v. Kloesel, 266

S.W.3d 456, 467 (Tex. App.—Corpus Christi 2008, pet. denied); Garrison

Contractors, Inc. v. Liberty Mut. Ins. Co., 927 S.W.2d 296, 300 (Tex. App.—El

Paso 1996), aff’d, 966 S.W.2d 482 (Tex. 1998).

A complete copy of the Policy, including declarations pages and the

Cosmetic Damage Exclusion, was entered into evidence by Reininger as Plaintiff’s

Exhibit 1. (RR11:47) Reininger can only seek admission of an exhibit he claims is

authentic, precluding any argument by Reininger that the Exclusion is not in the

Policy. See Tex. R. Evid. 901(a); see also Steenbergen v. Ford Motor Co., 814

S.W.2d 755, 761 (Tex. App.—Dallas 1991, writ denied).

In addition, the evidence establishes that Reininger was sent the full Policy,

including declarations and endorsements, by mail on July 1, 2015, well before the

2016 loss occurred. (RR9:64-65, 9:69-70) Allstate would have noted if the Policy

had been returned as undeliverable or otherwise, and it was not. (RR9:64)

Reininger separately had access to all Policy materials through the online account

13
that he created as of December 7, 2015.8 (RR8:48-49, 8:68) Based on the mailing

and Reininger’s on-line access, he had access to the full Policy, including the

Cosmetic Damage Exclusion, well before the claimed date of loss.

C. The binder sent to Reininger is no evidence that the Policy lacks a

Cosmetic Damage Exclusion.

In an attempt to circumvent the unequivocal evidence that the Policy

contained the Cosmetic Damage Exclusion, Reininger argued at trial that the

binder sent to him by his insurance agent on June 14, 2015 constituted the entire

Policy. According to Reininger’s after-the-fact rationalization, because the binder

was sent to him attached to an email stating it was the “policy,” and because it did

not expressly include the Cosmetic Damage Exclusion, the June 14, 2015 email

and attachments constitutes the whole “policy” precluding the addition of any extra

terms (such as exclusions) contained in the Policy.

Reininger’s evidentiary theory that the binder supports recovery of cosmetic

hail damage to the roof is incorrect and no evidence in support of the judgment.

Indeed, the binder itself unequivocally states that the terms of the full Policy

control. (RR11:676) Texas law also holds that a binder is not the insurance policy,

and does not need to contain all of the exclusions of the policy. Reininger’s attempt

to enforce the binder as if it were the full policy is contrary to Texas law and the

8
After this evidence was introduced, Reininger testified as a rebuttal witness to address other
issues, but did not rebut the evidence that Allstate sent him the entire Policy in 2015 and also
made the entire Policy available to him online in 2015, before the 2016 loss. (RR9:74-76)

14
facts of the case. Moreover, Reininger’s argument that the binder is his entire

agreement with Allstate is patently unreasonable because the binder does not

contain insuring language, nor does it identify covered perils or set out coverages,

or include language regarding how a claim is paid.

1. Under Texas law, the binder is not the full insurance policy.

In effect, Reininger seeks to nullify Texas law concerning insurance binders,

and undermine the very purpose of a binder, by imposing a novel requirement that

the binder set out all policy terms. As a matter of Texas law, a binder is not the

policy, and when the policy is issued,9 it controls over the binder. See Tex. Ins.

Code § 549.001 (stating that an “insurance binder” is a contract that provides

insurance pending issuance of an original policy); see also Gamma Group, Inc. v.

Transatlantic Reinsurance Co., 242 S.W.3d 203, 206 n.3 (Tex. App.—Dallas

2007, pet. denied). Thus, an insurance binder provides coverage according to the

terms and provisions of the ordinary form of the policy. Med. Care Am., Inc. v.

Nat’l Union Fire Ins. Co. of Pittsburgh, Penn., 341 F.3d 415, 420–422 (5th Cir.

2003) (citing Ranger County Mut. Ins. Co. v. Chrysler Credit Corp., 501 S.W.2d

295, 298 (Tex. 1973)).

2. Under the terms of the binder itself, it is not the full Policy.

By treating the binder as if it were the full policy, Reininger also ignores the

9
Uncontroverted testimony established that the insurance agency issues the binder, with Allstate
then sending out the full policy. (RR8:64-65, 8:70-71)

15
language of the binder itself. The email from Reininger’s agent Justin Lozoya

references a “policy” attachment (RR11:664), but the attached document makes

plain that it is an application and binder. (RR11:665-677) For example, it states

that if the initial premium payment is not honored, “this Binder (and any policy

delivered to you pursuant to this application) shall be deemed void from its

inception.” (RR11:668) And the email notes that the “BINDER PROVISION”

contained therein states: “In reliance on the statements in these application pages,

including any attachments hereto, and subject to the terms and conditions of the

policy authorized for the Company’s issuance to the applicant, the Company

named above binds the insurance company for effective: 12:01 AM 07/02/2015.”

(RR11:668 (emphasis added); see also RR11:676) Moreover, while not expressly

setting out the Cosmetic Damage Exclusion in full, the part of the binder

addressing the homeowners policy references it by stating:

Any insurance bound hererunder shall otherwise be subject in all

respects to the terms and conditions of the regular policy forms of
the Company at present in use and to the statements in this
application.

(RR11:676) Thus, the emailed binder itself pointed to the full policy as controlling

over the binder. (RR11:676) Reininger cannot simply write these words out of the

binder by ignoring them, or create a full policy out of the binder based on his own

personal misconception or after-the-fact desire.

Based on uncontroverted testimony, Allstate homeowner policies that insure

16
metal roofs such as Reininger’s always contain a Cosmetic Damage Exclusion.

(RR8:77) Thus, when the binder here stated that is subject to the terms and

conditions of the policy forms of the company at present in use (RR11:668,

11:676), the Cosmetic Damage Exclusion is included.10

Additionally, it is unreasonable to consider Reininger’s six-page binder the

entire agreement between Reininger and Allstate. The binder does not contain

insuring language, identify covered perils or set out coverages, or state how claims

are adjusted or losses are paid. (RR11:672-677) Thus, if the binder were really the

Policy, the binder would not permit any recovery.

In summary, based on Texas law and the wording of the binder itself, the

binder is no evidence that the Policy lacks a Cosmetic Damage Exclusion. The

Policy, not the binder, constitutes the binding contract between Reininger and

Allstate. And Reininger was charged as a matter of law with knowledge of the

Policy’s terms whether he read the Policy or not. See e.g., Howard, 347 S.W.3d at

792. Reininger also introduced the Policy with the Cosmetic Damage Exclusion

into evidence. Reininger’s argument that he did not know about the Cosmetic

10
Moreover, it is with good reason that metal roofs are not insured for cosmetic damage. It
stands to reason that an insurance policy that covers dents and dings to a metal roof takes on
more risk than one with a Cosmetic Damage Exclusion as written in the Policy, and thus would
be more expensive, particularly in areas such as Texas that are more prone to hail damage. See,
e.g., Columbia Mut. Ins. Co. v. Kerrville Prof’l Properties, Ltd., SA-16-CA-00973-XR, 2017
WL 7805755 (W.D. Tex. July 12, 2017) (discussing a differently worded metal-roof cosmetic
damage exclusion in the context of a discovery dispute); Sideman v. Farmers Group, Inc., 748
Fed. App’x 599, 600 (5th Cir. 2018) (addressing a time-barred claim involving a metal-roof
cosmetic damage exclusion).

17
Damage Exclusion is, therefore, meritless and, regardless, not relevant to whether

the Cosmetic Damage Exclusion is part of the Policy. In light of the evidence and

applicable law, the trial court erred in submitting Question 1.

D. Question 1 was erroneously submitted because it was not supported

by the pleadings.

Question 1 also is not supported by the pleadings because it effectively seeks

reformation of the contract, yet Reininger failed to plead for a reformation. By

suing on the Policy but also seeking to exclude the Cosmetic Damage Exclusion

from the Policy, Reininger effectively seeks a reformation. But he cannot do so

here because he did not plead for reformation. Reformation is an equitable

doctrine. Cherokee Water Co. v. Forderhause, 741 S.W.2d 377, 380 (Tex. 1987).

Reformation and a claim for damages on a contract are inconsistent remedies that

must be pleaded separately. Cf. Abilene Nat. Bank v. Fina Supply, Inc., 706 S.W.2d

737, 739 (Tex. App.—Eastland 1986), aff’d in part, disapproved in part on other

grounds, 726 S.W.2d 537 (Tex. 1987). In this case, Reininger pleaded for damages

on the Policy but did not plead reformation. (CR:248-259) Thus, Question 1 is not

supported by the pleadings and is erroneous for this reason alone.11

11
In the alternative, Reininger failed to present legally or factually sufficient evidence as to each
required element of reformation, making its submission erroneous for this reason as well. To
obtain contract reformation, the movant must prove that there was an original agreement between
the parties, and there was a mistake in reducing the original agreement to writing—either a
mutual mistake or a unilateral mistake accompanied by fraud and made after the original
agreement. Cherokee Water Co., 741 S.W.2d at 379.

18
 E. Instructions accompanying Question 1 also are erroneous.

Question 1 was submitted with an erroneous instruction that also constitutes

charge error. Again reflecting its fundamentally flawed approach to the Policy and

Texas insurance law, the trial court instructed the jury “that silence and inaction

cannot be construed as assent to an offer.” This is incorrect. As established above,

the Exclusion is part of the Policy. Reininger had a duty to read the Policy and was

bound by its terms. See Howard, 347 S.W.3d at 792; E.R. Dupuis Concrete Co.,

137 S.W.3d at 320. Thus, his silence upon receiving the entire Policy is not

relevant. Accordingly, the instruction places an incorrect and higher burden on

Allstate than recognized under Texas law, and thus was harmful. See Tex. R. Civ.

P. 277; Alvarez v. Missouri-Kansas-Texas R. Co., 683 S.W.2d 375, 377 (Tex.

1984); Garza v. Southland Corp., 836 S.W.2d 214, 220 (Tex. App.—Houston

[14th Dist.] 1992, no writ).

F. These errors were harmful, requiring reversal of the judgment.

These errors were harmful, probably caused the rendition of an improper

judgment, and probably prevented Allstate from properly presenting the case. See

Tex. R. App. P. 44.1; Thota, 366 S.W.3d at 687. These errors relate to the

contested, critical issue of the Cosmetic Damage Exclusion, which was central to

Allstate’s defense. Accordingly, the error was harmful. At the very least, reversal

and remand is appropriate. Moreover, judgment should be rendered for Allstate

19
due to conclusive evidence that (1) the Exclusion was part of the Policy and, as

discussed below, because (2) the claimed damage to the metal roof was cosmetic,

and (3) Reininger failed to segregate covered from non-covered damages.

II. ISSUE TWO: The Court erred when it refused to submit Allstate’s
requested question and instruction regarding whether the Reininger’s
claimed damage to his metal roof fell within the Cosmetic Damage
Exclusion.

Allstate properly requested, and the court erroneously refused to submit, a

question and instructions regarding application of the Cosmetic Damage

Exclusion. (CR:561-562) The trial court erred because the requested submission

addressed a critical, contested issue relevant to Allstate’s defenses to each cause of

action asserted by Reininger, tracked the language of the Cosmetic Damage

Exclusion, and was supported by the pleadings and evidence.

A. Allstate’s requested charge submission regarding application of the

Cosmetic Damage Exclusion was supported by the pleadings and the
language of the Policy.

The submission of this question and instruction would have properly

instructed the jury on the controlling language of the Cosmetic Damage Exclusion,

something that Reininger’s requested submission, give to the jury in error as

Question 2, certainly did not do.12 Allstate requested the following submission:

12
See section III, below.

20
(CR:561-562) As discussed above, the Policy contained the Cosmetic Damage

Exclusion.13 (RR11:47 (emphasis altered) (Reininger 0278)) Allstate’s requested

submission appropriately tracked the applicable Policy language, including the

Cosmetic Damage Exclusion and the definition of “roof surface.”

B. Allstate’s requested charge submission regarding application of the

Cosmetic Damage Exclusion was supported by the pleadings, the
evidence, and the Policy.

The evidence conclusively established that the claimed damage to

Reininger’s metal roof fell within the Cosmetic Damage Exclusion. The damage to

Reininger’s roof was limited to “indentations, dents, distortions, scratches, or

marks” that did nothing more than “change the appearance” of Reininger’s roof.

This evidence includes the testimony of (1) Reininger’s expert, Earl Stigler; (2)

13
The Policy defines “roof surface” consistent with this instruction. (RR11:18, Plaintiff’s Exhibit
1 (Reininger 0249))

21
Allstate’s experts, Mark Kubena and Alan Berryhill; (3) Kevin Phillips, Allstate’s

adjuster; and (4) Reininger himself and his wife, Nancy Reininger. All of this

testimony supports the conclusion that the damage to the roof was cosmetic.14 At

the very least, the evidence created a fact issue appropriate for the jury to decide.

1. The only actual evidence presented by Reininger’s expert,

Earl Stigler, establishes that the claimed damages to the
metal roof were mere indentations, dents, distortions,
scratches, or marks.

Although Reininger’s expert, Earl Stigler, testified that the hail damage to

the metal roof was more than cosmetic, this testimony was conclusory and

therefore no evidence at all. (RR5:162-163) Indeed, Stigler conceded that he was

unable to point to any photograph of the roof that showed anything other than

indentations, dents, distortions, scratches, or marks. (RR5:224-225) Thus, the

damage falls within the plain terms of the Cosmetic Damage Exclusion.

Stigler’s only stated basis for alleging that any damage to the roof was more

than cosmetic was his speculation that, over time, the dints, dings, and marks that

are expressly excluded will, eventually, lead to pooling, rust, and leaks. (RR5:165-

167) Stigler is not certain if these future leaks will develop one, three, five, or ten

years down the road. (RR5:167) In fact, he admitted there is no way for him to
14
In addition, it was Reininger’s burden to prove the exception to the exclusion, namely, that the
April 12, 2016 storm caused “sudden and accidental direct physical damage to a metal roof
surface caused by hail that results in water leaking through the metal roof surface.” See Telepak
v. United Servs. Auto Ass’n, 887 S.W.2d 506, 507–508 (Tex. App.—San Antonio 1994, writ
denied). Reininger presented no evidence that the exception to the exclusion applies. Further, he
failed to request a finding, and the Court did not submit a question, on this exception.

22
know when such a leak would eventually develop. (RR5:167) Nevertheless,

Stigler’s opinion is that the Exclusion does not apply because, eventually, leaks

will develop. (RR5:167)

There are three fundamental flaws with Stigler’s opinion. First, it is mere

conclusory speculation, and thus no evidence. Second, by assuming that any dent,

ding, distortion, or scratch of the metal roof will eventually (not suddenly, as the

exception requires) cause a leak, Stigler’s opinion is based on his own unsupported

interpretation of the Cosmetic Damage Exclusion, effectively re-writing the

Exclusion out of existence. Third, Stigler’s own testimony establishes that none of

the damage to the Reininger’s roof is anything more than indentations, dents,

distortions, scratches, or marks. (See RR5:224-225)

Conclusory or speculative opinion testimony is not relevant because it does

not tend to make the existence of material facts more or less probable and thus is,

in effect, no evidence. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 637 (Tex.

2009). Expert testimony is conclusory when it is based on guesswork or

conjecture, when the expert “simply state[s] a conclusion without any

explanation.” Natural Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156

(Tex. 2012); see Regent Care Ctr. of San Antonio, L.P. v. Detrick, 567 S.W.3d

752, 760 (Tex. App.—San Antonio 2018, pet. filed); Rife v. Kerr, 513 S.W.3d 601,

615 (Tex. App.—San Antonio 2016, pet. denied). Expert testimony is also

23
conclusory when “[a]n expert’s failure to explain or adequately disprove

alternative theories of causation makes his or her own theory speculative and

conclusory.” Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 840 (Tex. 2010);

see Gen. Motors Corp. v. Iracheta, 161 S.W.3d 462, 470 (Tex. 2005).

Stigler walked the jury through several photographs showing hail damage to

the roof from the 2016 hail storm. (RR5:126-157, RR5:221-225) Specifically,

Stigler stated that the water leaks seen from the interior were a result of the 2016

hail storm, but that he cannot tell whether the leaks occurred before or after

another, later storm. (RR5:190-191) Stigler also stated that he is not qualified to

say, and cannot definitively state, that the 2016 hail storm caused the observed

interior water leaks.15 (RR5:215-219) None of this is surprising, as Stigler did not

inspect the roof until June 2018, around two years and two months after the

claimed date of loss. (RR5:188190) Stigler did not rule out any of the alternate

causes specifically identified and discussed by Allstate’s designated expert.16

In failing to rule out other plausible causes of the leaks, Stigler’s testimony

regarding the cause of leaks is conclusory. See Merrell, 313 S.W.3d at 840; see

also Gen. Motors Corp. v. Iracheta, 161 S.W.3d 462, 470 (Tex. 2005) (“[The

expert] eliminated the obvious possibility that fuel or vapors from the tank filler

15
Reininger testified at deposition that no one had determined the source of the leaks. (RR6:203)
At trial, he confirmed that no one had determined the source of the leaks. (RR6:200)
16
Mark Kubena went through each area of water damage and pinpointed the source (none of
which was a storm created hole, tear, opening, or perforation). (RR7:121-126, 128-131, 133-153)

24
neck ignited only by saying so, offering no other basis for his opinion. Such a bare

opinion was not enough.”).

Moreover, on cross-examination Stigler was forced to concede that all of the

photographs he took of Reininger’s roof showed nothing other than dents,

indentations, scratches or marks:

Q (BY MR. VALDEZ) Please point me to the photograph that

shows something other than dents, indentations, scratches or
marks.

A There are none.

(RR5:225 (emphasis added))

Absent evidence of a single hole or perforation in the roof, and failing to rule

out alternative causes of the leaks, Stigler’s opinions are merely conclusory. Stigler

attempted to side-step this problem by opining that the dents he photographed on

Reininger’s roof would “over time” rust and become holes through which water

would penetrate into Reininger’s home “in the future.” (RR5:166-167) As for

when the future rust, holes and penetration would occur, Stigler conceded he could

not say. (RR5:165-167) This sleight-of-hand is not proof that the damage was

anything other than “mere indentations, dents, distortions, scratches, or marks.”

Thus, even if the Court looks exclusively Reininger’s own expert witness, the

damage was only dents, indentations, scratches, or marks. This is exactly the type

of damage that is expressly excluded by the Cosmetic Damage Exclusion.

25
 2. Allstate’s experts, Mark Kubena and Alan Berryhill,
confirm that Reininger’s claimed damages were
indentations, dents, distortions, scratches, or marks.

After inspecting the roof,17 licensed professional engineer Mark Kubena

confirmed that there were no holes, perforations, or tears of any kind in

Reininger’s roof, and that this roof damage was cosmetic, in addition to damage

due to normal weathering and lack of maintenance. (RR7:106, 7:121-153,

RR7:159) Moreover, Kubena identified each source of water leaking in the

Reininger’s home, and testified that none of these sources were related to a storm-

created hole, perforation, or tear in the Reininger’s roof. (RR7:121-126, 128-131,

133-153) Kubena identified as sources of the leaks a hot water heat vent

penetrating the roof surface, lack of proper maintenance, and weathered caulking

on roof flashing.18 (RR7:133-149, 149-153) Kubena stated his opinion, based on

observation and experience, that the water leaks were not the result of any storm-

created opening. (RR7:144-153)

Furthermore, Alan Berryhill testified as an expert adjuster for Allstate.

Berryhill reviewed photographs, depositions, and estimates. (RR8:117-118,

RR8:133-135, RR8:141-144) He determined that Stigler’s estimate was excessive

17
Kubena’s inspection involved chalking the metal roof panels, measuring the dents and panels,
photographing the panels, and looking at the different metal types and components (RR7:111-
112, RR7:117, RR7:119-153)
18
Reininger stated that he “possibly” did the caulking. (RR6:204)

26
and erroneously provided for a full roof replacement.19 (RR8:149-155) Berryhill

opined that the metal roof panels do not need to be replaced, expressly agreeing

with Phillips’ characterization of the roof and estimate. (RR8:133-139, R8:154)

Berryhill confirmed that the metal roof had no storm-created holes, tears or

perforations. (RR8:128-131, R8:136-148, RR8:156-158) He also walked the jury

through photographs of Reininger’s caulking efforts and photographs of leak

sources, and none involved a storm-created opening. (RR8:131-132, R8:141-148)

3. Allstate’s independent adjuster, Kevin Phillips, established

that Reininger’s claimed storm-caused damages were mere
indentations, dents, distortions, scratches, or marks.

Allstate’s independent adjuster, Kevin Phillips, likewise testified that the

damage to the roof was cosmetic. Phillips performed an inspection on May 2,

2016. (RR8:208-216) At this inspection he physically got onto Reininger’s roof,

where he only observed dents, scratches, and indentations; Phillips observed no

perforations, holes or tears. (RR8:209-216) And Phillips testified that Reininger

told him twice that there was no need to conduct an interior inspection because

there were no interior leaks or damage. (RR8:210- 212)

19
Reininger testified that he had four different roofers walk on and inspect the roof, and he
received estimates of repairs from them. (RR6:195-197) Reininger conceded that he did not send
any of those estimates to Allstate, and they were not in evidence at trial. (RR6:195-197)

27
 4. Reininger’s testimony fails to establish that any claimed
wind or hail damage created a hole, tear, or perforation in
the roof.

While Reininger testified that he observed dents on his roof, he did not

assert that he observed any hole, tear, or perforation in the roof. (RR6:160) And

Reininger confirmed that he twice told Phillips that there was no need for an

interior inspection. (RR6:187, RR6:193-194)

As discussed above, evidence conclusively established that the damages fell

squarely within the Exclusion, precluding coverage. (RR11:47) Thus, the jury was

not free to make a contrary finding. At the very least, the evidence supported

submission of Allstate’s requested submission regarding cosmetic damage.

Because it was supported by the pleadings and evidence, the trial court erred in

refusing to submit Allstate’s proposed submission to the jury.

C. The trial court’s error in not submitting Allstate’s requested

question and instruction was harmful.

This error was harmful. The submission requested by Allstate addressed a

sharply contested issue that went to the heart of Allstate pleaded defense to each of

Reininger’s damages claims. See, e.g., Thota, 366 S.W.3d at 686; Tex. R. App. P.

44.1(a). Failure to submit this question and instruction unduly prejudiced Allstate

by depriving it of its main coverage defense and thereby misled the jury about the

Policy’s coverage. For each of these reasons, the court’s error led to the rendition

of an improper judgment. The judgment should be reversed on these grounds and,

28
at the very least, the case remanded for a new trial. Moreover, in light of the

conclusive evidence that (1) the Exclusion was part of the Policy and (2) the

claimed damage to the metal roof was cosmetic and within the Exclusion, and

because (3) Reininger failed to segregate covered from non-covered damages,

judgment should be rendered for Allstate.

III. ISSUE THREE: The trial court erred by submitting Question 2 and
accompanying instructions because they were improperly conditioned
on an affirmative answer to Question 1.

The trial court erred by submitting Question 2 and accompanying

instructions. Over objection, the Court submitted the following:

(CR:594)

Submission of Question 2 was improperly conditioned on an affirmative

answer to Question 1. Conditional submission of a question in the jury charge is

erroneous when improper conditioning language deprives a party of an element of

a ground of recovery or defense. Varme v. Gordon, 881 S.W.2d 877, 881 (Tex.

App.—Houston [14th Dist.] 1994, writ denied); see Washington v. Reliable Life

29
Ins., 581 S.W.2d 153, 160 (Tex. 1979). The fact that the damage to Reininger’s

roof fell within the Exclusion is a defense to coverage and each cause of action

against Allstate. Conditioning any jury finding on this defensive issue vital to

Allstate upon answering “yes” to Question 1 (which, as explained above, should

not have been submitted to the jury) was erroneous and harmful.20

IV. ISSUE FOUR: The judgment’s award of actual damages is erroneous

because there is no legally and factually sufficient evidence supporting
the liability finding and the finding does not otherwise support the
actual damages award because of charge error.

The Judgment awards actual $67,882.77 in actual damages under Texas

Insurance Code § 541.152(a), which provides that a plaintiff “who prevails in an

action under this subchapter” may obtain actual damages. Tex. Ins. Code

§541.152(a). Because there is no evidence to support the jury’s finding that

Allstate violated the Texas Insurance Code and caused damage to Reininger, this

award is erroneous.21 Accordingly, the judgment should be reversed.

A. There is no evidence that Allstate committed an unfair or deceptive

act or practice in its handling and settlement of the Claim.

The only jury finding consistent with any “unfair method of competition or

an unfair or deceptive act or practice in the business of insurance” that would

20
Had the jury reached Question 2, it was erroneously submitted because the question and
instruction mislead the jury, contradict the established doctrine of concurrent causation, and
unduly prejudice Allstate by incorrectly placing a burden on it to prove that all damage to the
roof was cosmetic. In contrast, it was Reininger’s burden to segregate covered from non-covered
damages, as discussed in section IV.A.1.c,
21
Similarly, the judgment errs in awarding Reininger statutory interest, attorney’s fees,
prejudgment interest, post-judgment interest, and costs. (CR:685686)

30
conceivably support the Judgment’s award of actual damages is found in Question

5 regarding Allstate’s handling and settlement of the Claim. Although the jury

answered Question 5 in the affirmative, the evidence is factually and legally

insufficient to support the finding.22 Question 5 reads:

(CR:597) The instruction parrots five specific subsections of Insurance Code §

541.060, which enumerates “unfair settlement practices with respect to a claim by

an insured or beneficiary.” Tex. Ins. Code §541.060(a). The evidence is factually

and legally insufficient to support a finding under any of these five theories.

22
See St. Joseph Hospital v. Wolff, 94 S.W.3d 513 (Tex. 2002) (holding that the sufficiency of
the evidence is measured by the charge given to the jury, even if erroneous, unless a proper
objection to the charge was made) As discussed herein, proper objections were made to the
predicate questions, and an alternative, correct submission was requested.

31
 1. Reininger is not entitled to Policy benefits on his Claim,
precluding any statutory cause of action regarding
Allstate’s handling and settlement of the Claim.

As a general rule, any cause of action based on alleged Insurance Code

violations must fail when the record shows that the insurer denied a claim that is,

in fact, not covered. USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 490–

494 (Tex. 2018); see also Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 340–41

(Tex. 1995) (“As a general rule there can be no claim for bad faith when an insurer

has promptly denied a claim that is in fact not covered.”). This general rule derives

from the fact that the Insurance Code only allows an insured to recover actual

damages “caused by” the insurer’s statutory violation. Id. at 493–494 (citing Tex.

Ins. Code § 541.151). “Actual damages” are the common-law damages the insured

sustains “as a result of” statutory violation. Id. (citing Kish v. Van Note, 692

S.W.2d 463, 466 (Tex. 1985)). If the insurer violates a statutory provision, that

violation generally cannot cause damages in the form of lost policy benefits that

the insured in fact has no right to receive under the policy. Id.23 Thus, “[w]hen an

insured seeks to recover damages that ‘are predicated on,’ ‘flow from,’ or ‘stem

from’ policy benefits, the general rule applies and precludes recovery unless the

23
Exceptions to this general rule exist when: (1) even though the insured had no right to
recovery under the policy, the insurer’s conduct caused the insured to lost that contractual right
to policy benefits; or (2) the insurer commits some act, so extreme, that it caused injury
independent of the policy claim. Menchaca, 545 S.W.3d at 495–500. No evidence introduced in
this case implicates these exceptions, nor has Plaintiff pleaded any independent injury or loss of
a contractual right to policy benefits.

32
policy entitles the insured to those benefits.” Id. at 500.

a. Reininger would not be entitled to benefits on his Claim

if the binder were the entire policy, which it is not.

Reininger presented the theory at trial that he is entitled to insurance benefits

under the six-page homeowners insurance binder sent by Lozoya, effectively

claiming that the binder was the entire agreement between himself and Allstate.

This theory is not supported by the evidence or the law, as discussed above.

Regardless, Reininger has not shown himself entitled to coverage under the binder.

The binder does not contain insuring language, identify covered perils or set out

coverages, or state how claims are adjusted or losses are paid. (RR11:672-677) The

binder, alone, simply does not obligate Allstate to pay on the loss. Accordingly,

Reininger has not met his burden of showing entitlement to payment on his Claim

under the binder, even assuming it was the parties’ entire agreement. Reininger

also is not entitled to insurance benefits under the binder because he failed to

segregate damages due covered from uncovered perils, as discussed below.

b. Reininger is not entitled to benefits on his Claim under

the Policy.

Conclusive evidence shows that the Policy, introduced by Plaintiff as

Plaintiff’s Exhibit 1, is the insurance agreement between the parties. Reininger has

failed to show himself entitled to benefits under the Policy. As demonstrated, the

damage to Reininger’s metal roof and claimed interior damage are not covered

33
under the Policy. Also as demonstrated, the remainder of Reininger’s claimed

damages do not exceed the Policy’s deductible. (See, e.g., RR6:162-163.)

Accordingly, Reininger has no right to recover Policy benefits and the award based

on the jury’s finding that Allstate committed unfair or deceptive acts or practices is

unsupported by legally or factually sufficient evidence and cannot stand.

c. Reininger is not entitled to benefits regardless, because

he has failed to segregate his damages between those due
to covered and non-covered perils.

Whether under Reininger’s baseless theory that the binder was the entire

insurance agreement, or under the Policy, Reininger has failed to show that he is

entitled to insurance benefits because he has failed to present any evidence to allow

the jury to segregate damages due to covered from uncovered perils.

An insurer has no duty to indemnify its insured if the policy at issue does not

provide coverage for the claim. Dallas Nat’l Ins. Co. v. Calitex Corp., 458 S.W.3d

210, 222 (Tex. App.—Dallas 2015, no pet.). Under the long-established doctrine of

concurrent causation, when covered and non-covered perils combine to create a

loss, the insured only is entitled to recover that portion of the damage caused solely

by the covered peril. Travelers Indem. Co. v. McKillip, 469 S.W.2d 160, 163 (Tex.

1971); State Farm Fire & Cas. Co. v. Rodriguez, 88 S.W.3d 313, 320-21 (Tex.

App.—San Antonio 2002, pet. denied), abrogated on other grounds by Don’s

Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20 (Tex. 2008).

34
 As discussed above, Allstate presented conclusive, or at least some, evidence

that Reininger’s clamed damage, including claimed water damage to the interior,

was caused by non-covered perils. Because the burden is on the insured to prove

coverage, Reininger had to present some evidence upon which the jury could

allocate the damages attributable to the covered peril, as opposed to any non-

covered peril. See e.g., Wallis v. United Servs. Auto. Ass’n, 2 S.W.3d 300, 302–03

(Tex. App.—San Antonio 1999, pet. denied). This doctrine is not an affirmative

defense or an avoidance issue but rather a rule embodying the basic principle that

insureds are not entitled to recover under their insurance policies unless they prove

the damage is covered by the policy. See, e.g., Allison v. Fire Ins. Exch., 98

S.W.3d 227, 258 (Tex. App.—Austin 2002, review granted, judgment vacated and

remanded by agreement). Thus, failure to segregate covered and non-covered

perils is fatal to the insured’s recovery. Id. at 259.

Even assuming that the April 2016 hail storm caused some hail damage to

the metal roof that was more than cosmetic and thus covered, Reininger failed to

present any evidence upon which the jury could segregate the damage attributable

solely to such a “covered peril” from damage attributable to non-covered perils.

This failure is fatal to his claims. See id. Accordingly, and for this reason alone,

Reininger failed to show that he is entitled to insurance benefits. As discussed

above, this failure is fatal to his Insurance Code claim.

35
 2. Conclusive evidence shows that Allstate’s denial of the
Claim was based on a bona fide coverage dispute.

Additionally, conclusive evidence establishes Allstate’s defense of a bona

fide coverage dispute. If an insurer such as Allstate has a reasonable basis for

denying or delaying a claim, it does not commit an unfair or deceptive act or

practice even if the insurer’s decision is ultimately held to be wrong. Garcia v.

Lloyds, 514 S.W.3d 257, 277 (Tex. App.—San Antonio 2016, pet. denied) (“An

insured claiming bad faith must prove that the insurer had no reasonable basis for

denying or delaying payment of the claim, and that it knew or should have known

that fact.”); see also Minnesota Life Ins. Co. v. Vasquez, 192 S.W.3d 774, 774

(Tex. 2006); State Farm Lloyds, Inc. v. Polasek, 847 S.W.2d 279, 282 n. 2 (Tex.

App.—San Antonio 1992, writ denied). As this Court has recognized, proof of

some evidence of unreasonableness on the part of the insurance company is not

sufficient to support a bad faith cause of action. Polasek, 847 S.W.2d at 285–288

(reasoning that bad faith actions should be reserved for cases of flagrant denial or

delay of payment where no reasonable basis existed).

Reininger did not meet this burden. Allstate cannot be liable for breach of

the Texas Insurance Code (or the DTPA) because Reininger only proved, at most,

that he had a bona fide dispute with Allstate regarding insurance coverage. See id.

Allstate presented conclusive evidence that it had a reasonable basis to conclude

36
the Exclusion was part of the Policy, and that the claimed damage to the metal roof

fell within it. Thus, Reininger cannot recover on his statutory claims.

3. There is no evidence that Allstate refused to pay the Claim

without conducting a reasonable investigation.

There is no evidence that Allstate failed to conduct a reasonable

investigation of the Claim. Less than three weeks after Reininger made the Claim,

Phillips inspected the Property on behalf of Allstate. (RR4:55-57) Phillips’

inspection lasted between 45 and 90 minutes, and included getting up on the roof,

inspecting the roof, and taking pictures of the roof. (RR4:57, 4:147, 6:160, 8:212-

213, 11:78) Reininger did not ask for an inspection of the interior, stating it would

not be necessary as there was no interior damage. (RR3:119, 5:32, 6:161, 6:194,

8:207, 8:210, 11:78) Philips found other damage—that is, damage to areas other

than the metal roof surface—but that damage was below the Policy’s deductible.

(RR8:209, 3:122) Reininger’s only allegation as to the unreasonableness of the

investigation is that it accounted for the Cosmetic Damage Exclusion, which he

claims is not part of the Policy. However, as discussed and demonstrated above,

the Cosmetic Damage Exclusion was part of the Policy and all of the damage to the

metal roof surface fell within it.

4. There is no evidence that Allstate committed any other

alleged claim handling violation.

Given that the Cosmetic Damage Exclusion was part of the Policy as shown

37
above in section I, there is legally and factually insufficient evidence that Allstate

made any misrepresentation to Reininger regarding coverage. Likewise, there is no

evidence that Allstate failed to attempt in good faith to effectuate a prompt, fair,

and equitable settlement of “a claim with respect to which the insurer’s liability has

become reasonably clear” because Reininger’s claimed damage to the metal roof

surface is not covered under the Policy and thus Allstate’s liability never became

reasonably clear. Even if the Exclusion were not part of the Policy, which it was as

discussed above, Phillips had a reasonable basis to conclude that it was and thus

the conclusion cannot support a claim handling violation, as discussed above in

section IV.A.2.

There also is no evidence that Allstate failed to promptly provide Reininger

a reasonable explanation of the basis of its decision to deny the claim for damage

to the metal roof. And the evidence establishes that Allstate denied coverage of the

damage to the metal roof within a reasonable time. Immediately after the

inspection on May 2, 2016, and again in call on May 5, 2016, Philips told

Reininger that damage to the metal roof was cosmetic and excluded by the

Exclusion, that other damage was below the Policy deductible, and that no

payment would be issued. (RR11:79, 3:113, 6:161-162, 6:169, 6:197-198, 8:208-

209, 8:214-216) These statements are correct and not misrepresentations, as

discussed above. Although Reininger disagreed with Philips regarding the amount

38
of damage and whether it was under the deductible, Reininger did not state at the

time that he disputed Phillips’ assertion that the Policy had a Cosmetic Damage

Exclusion or that any damage to the metal roof, if cosmetic, was excluded.

(RR5:13, 5:15-16, 6:162-163, 8:209-210, see RR6:162)

Reininger’s subjective beliefs regarding the amount of damages and whether

they were covered also constitute no evidence of coverage and do not make Phillis’

statements incorrect. See, e.g., Moore v. Whitney-Vaky Ins. Agency, 966 S.W.2d

690, 692–693 (Tex. App.—San Antonio 1998, no pet.) (“[A] claim based solely on

mistaken belief would fail under the Insurance Code.”); Nwaigwe v. Prudential

Prop. & Cas. Ins. Co., 27 S.W.3d 558, 560 (Tex. App.—San Antonio 2000, pet.

denied) (same). For each of these reasons, the evidence does not support the jury’s

finding that “Allstate engage[d] in any unfair or deceptive act or practice that

caused damages to Peter Reininger,” and there is no support for the Judgement’s

award of actual damages under section 541.152(a).

5. There is no evidence of loss of Policy benefits “caused by”

any Allstate Insurance Code violation.

To recover actual damages under section 541.151 of the Texas Insurance

Code, Reininger was required to prove that the damages were “caused by”

Allstate’s violation. See Tex. Ins. Code § 541.151; Menchaca, 545 S.W.3d at 494–

495. Based on the jury’s finding in response to Question 6, Reininger recovered

39
lost Policy benefits “caused by” Allstate’s “unfair or deceptive acts or practices.”24

(CR:598) But there is no evidence that any statutory violation found by the jury

caused Reininger to lose Policy benefits.

For example, the jury found that Allstate “Fail[ed] to provide promptly to

Peter Reininger a reasonable explanation of the factual and legal basis in the policy

for Allstate's denial of the claim.”25 (CR:597) But there is no evidence that any

alleged delay in providing a reasonable explanation caused the loss of Policy

benefits. Nor is there any evidence that an alleged failure to affirm or deny

coverage within a reasonable time caused a loss of Policy benefits. Indeed, there is

no evidence that any of the conduct found by the jury in Question 5—as opposed

to a lack of coverage under the Policy—caused a loss of Policy benefits. Because

there is no evidence that any of Allstate’s alleged Insurance Code violations caused

the loss of Policy benefits, Reininger cannot recover damages under section

541.151 as awarded in the Judgment. (CR:685)

6. The trial court erred in submitting Allstate’s alleged

statutory claim handling violations for determination by the
jury (Questions 5 and 6).

The trial court committed charge error in submitting Questions 5 and 6 to the

jury for determination because they were not supported by legally or factually

24
The jury was instructed that the following element of damages should be considered, if any,
and none other: “The reasonable and necessary cost to repair or replace Peter Reininger property
that was damaged as a result of wind and/or hail occurring during the policy period.” (CR:598)
25
As discussed, this finding is not supported by legally or factually sufficient evidence.

40
sufficient evidence, misstated the relevant Policy terms and applicable law, and

contained fatally defective instructions. As discussed above, Question 5 asked:

“Did Allstate engage in any unfair or deceptive act or practice that caused damages

to Peter Reininger?” (CR:597) Question 6 asked:

(CR:598) Questions 5 and 6 were submitted in error for the following reasons:

 As discussed above, there was legally and factually insufficient evidence

the statutory claim handling and claim settlement violations.

 The questions fail to instruct the jury regarding, or condition a liability

finding on, a finding adverse to Allstate regarding its defense of a bona
fide coverage dispute, contrary to Texas law and Allstate’s pleaded
defense as discussed above.

 There was legally and factually insufficient evidence to support a finding

of a breach of contract, or of independent injury, or that Reininger lost
policy benefits under the contract were caused by any Allstate chapter
541 violation.

 They fail to instruct the jury regarding, or condition a liability finding on,
application of the Cosmetic Damage Exclusion as discussed above.

 They fail to instruct the jury regarding, or condition a liability finding on,
Reininger’s burden to provide some evidence to allow the jury to

41
 segregate damage for covered, as opposed to non-covered, perils as a
prerequisite to recovery on this cause of action.

 The trial court committed harmful error in failing to properly submit

Allstate’s requested question and instructions regarding the Cosmetic
Damage Exclusion, preventing the jury from properly considering
application of the Cosmetic Damages Exclusion (as correctly worded)
and finding that the Cosmetic Damages Exclusion applied to the
exclusion of Reininger’s recovery on his statutory claim mishandling
causes of action.

B. There is no evidence that Allstate made an actionable

misrepresentation in its sale of the Policy to Reininger, or that any
alleged misrepresentation caused Reininger damages, and there is
no jury finding as to misrepresentation in the sale of the Policy
regardless.

As discussed above in sections IV.A.3 and .4, there is no evidence that

Allstate made an actionable misrepresentation in the handling of the Claim. In

addition, there is no actionable misrepresentation regarding the sale or issuance of

the Policy. First, the jury made no finding regarding any alleged misrepresentation

in the sale or issuance of the Policy. The misrepresentation found by the jury in

Question 5 (CR:597) was based on Reininger’s cause of action for violation of

Insurance Code § 541.060, which sets forth enumerated “unfair settlement

practices with respect to a claim by an insured or beneficiary.” Tex. Ins. Code

§541.060(a) (emphasis added). This does noes not relate to the sale or

procurement of the Policy.26 Second, judgment cannot be supported on a

26
Moreover, although Reininger asserted that Allstate violated various DTPA provisions, his
DTPA cause of action was not submitted to the jury. Compare CR:254 (DTPA allegations in
Plaintiff’s Second Amended Petition) with CR:589-610 (Charge).

42
misrepresentation based on the issuance of the Policy regardless. There is no

evidence of any such actionable misrepresentation. Moreover, there is no evidence

that any such alleged misrepresentation caused Reininger’s claimed damages.

1. There is no evidence that Allstate made a statutory

misrepresentation in the sale of the Policy.

Reininger may seek to support the judgment on the evidentiary theory that

Lozoya made a misrepresentation concerning coverage of cosmetic hail damage

during the sale of the Policy, but this theory is contrary to the evidence and the

law. Reininger pleaded violations of Texas Insurance Code §§ 541.051 and

541.061 based on alleged misrepresentations in the sale of the policy. (CR253-254)

There is no legally or factually sufficient evidence to support such a finding, were

it made in this case.27

Reininger claims that Allstate misrepresented the Policy as covering

cosmetic damage to the metal roof due to hail. But Allstate never told him that the

Policy covered cosmetic damage to his metal roof. And Reininger never requested

that the Policy cover cosmetic damage to his metal roof. The evidence shows that

27
In addition, the jury made no finding regarding an actionable misrepresentation related to the
sale or procurement of the Policy. The misrepresentation found by the jury in Question 5
(CR:597) was based on Reininger’s cause of action for violation of Insurance Code § 541.060,
which sets forth enumerated “unfair settlement practices with respect to a claim by an insured or
beneficiary.” Tex. Ins. Code §541.060(a) (emphasis added). The jury made no finding regarding
any Policy misrepresentation related to the sale or procurement of the Policy. Moreover,
although Reininger asserted that Allstate violated various DTPA provisions, his DTPA cause of
action was not submitted to the jury. Compare CR:254 (DTPA allegations in Plaintiff’s Second
Amended Petition) with CR:589-610 (Charge).

43
Reininger merely had a self-serving, after-the-fact mistaken belief that cosmetic

damage would be covered although it was not. Texas law is clear that a

policyholder’s mistaken belief about insurance coverage is not actionable; the

insured must be able to point to some specific misrepresentation about the

insurance policy, its terms, benefits, or advantages to recover on a statutory

misrepresentation claim. Moore v. Whitney-Vaky Ins. Agency, 966 S.W.2d 690,

692–693 (Tex. App.—San Antonio 1998, no pet.); Nwaigwe v. Prudential Prop. &

Cas. Ins. Co., 27 S.W.3d 558, 560 (Tex. App.—San Antonio 2000, pet. denied);

see also Howard v. Burlington Ins. Co., 347 S.W.3d 783, 798 (Tex. App.—Dallas

2011, no pet.).

Reininger failed to put on any evidence that Allstate or his agent, Justin

Lozoya, made any specific misrepresentations regarding the Policy or Policy

exclusions. The only representation Reininger has pointed to is an email from

Lozoya saying that he is attaching the “policies,” as opposed to the policy

“binders.” (11:664-677) However, the email and attachments are a binder, not a

policy, and do not constitute a misrepresentation. Indeed, the documents attached

to Lozoya’s email expressly state that that “any insurance bound hererunder shall

otherwise be subject in all respects to the terms and conditions of the regular policy

forms of the company at present in use and to the statements in this application.”

(RR11:676) The undisputed evidence is that Allstate subsequently gave Reininger

44
on-line access to all Policy documents when Reininger created his on-line account

in December 7, 2015, well before the claimed date of loss. (RR8:48-49, 8:68) No

“representation” made by the binder was false, and the binder cannot support

Reininger’s misrepresentation claim.

As discussed under Issue One, above, under Texas law an insurance binder

is a simply contract that provides insurance coverage pending the issuance of an

original insurance policy. Gamma Group, 242 S.W.3d at 206 n.3. The whole point

of the binder is to provide coverage until the policy is issued, and to the extent that

the to-be-issued policy provides coverage. See Tex. Ins. Code § 549.001. Thus,

even though the binder did not specifically reference the Cosmetic Damage

Exclusion, the exclusion applied nonetheless because it was expressly included in

the Policy. See Medical Care America, Inc., 341 F.3d at 420–422. Reininger wants

to not only ignore, but flatly contradict, the binder language and well established

Texas insurance law holding that a binder provides coverage according to the

terms and provisions of the ordinary form of the contemplated policy. Cf. Medical

Care America, 341 F.3d at 420–422. (RR6:131-139, 11:664-677) Accordingly, the

binder cannot constitute an actionable misrepresentation regarding the existence of

the Cosmetic Damage Exclusion.

Reininger’s own testimony establishes that Justin Lozoya made no

misrepresentation when they discussed the Policy before procurement. (RR6:171-

45
205) Reininger discussed limits and premiums with Lozoya while comparing

Allstate’s quote with that of his then-current carrier, Liberty Mutual. (RR6:171-

205) Reininger never sent his earlier, Liberty Mutual policy to Justin or anyone at

his insurance agent’s office.28 (RR6:205) Rather, as Reininger testified, “I had my

Liberty Mutual policy out and I went over all the limits with Justin [Lozoya]. And

I said I want apples to apples to my Liberty Mutual. He said we can do it, Mr.

Reininger.” (RR6:171)

Allstate provided a materially similar policy with respect to all terms

Reininger discussed with Lozoya. Lozoya’s alleged statement “we can do it” was

not in relation to cosmetic damage coverage because Reininger never requested

such coverage. Indeed, Reininger never told Allstate that the Liberty Mutual policy

covered metal-roof cosmetic damage. Reininger’s own testimony of his

conversation with Lozoya makes this clear: “And I go ahead and give him all the

numbers, and I said, now, we went down through the policy and everything

matched. And he said he would mail me the quote.” (RR6:171 (emphasis added))

Reininger also concedes that, after he received the Allstate quote sent by

Lozoya, he reviewed it along with the Liberty Mutual limits, deductibles, and

premiums to confirm they were the same. (RR6:176, 6:207) Reininger stated that

28
In fact, at no time during the Claim handling, litigation, or trial did Reininger provide the
Liberty Mutual policy to Allstate, nor did Reininger even look for it among his papers.
(RR6:204-205) There is no evidence of the Liberty Mutual policy’s terms in the record.

46
he used these pages from Liberty Mutual as the basis of his “apples to apples”

review of the Allstate proposal while on the telephone with Lozoya, reviewing

both to confirm that they were alike.29 (RR6:207-208) Thus, before he even

decided to go with the Allstate quote over Liberty Mutual, Reininger confirmed

that the Allstate quote “says exactly what I wanted and that’s what I bought.”

(RR6:207) On this record, therefore, neither Lozoya’s “we can do it” statement nor

any other statement by Lozoya or Allstate constituted a misrepresentation.

2. There is no evidence that any alleged misrepresentation

made by Allstate proximately caused Reininger’s damages.

Even if Lozoya or Allstate had made a misrepresentation about the Policy’s

cosmetic damage coverage at the Policy’s inception, which they did not, there is no

evidence that this caused Reininger any damage. To prevail on a misrepresentation

claim, the plaintiff must establish that the defendant’s act or practice was a

producing cause of the plaintiff’s damages. Provident Am. Ins. v. Castañeda, 988

S.W.2d 189, 193 (Tex. 1998). “Producing cause” means a cause that was a

substantial factor in bringing about the damages, if any, and without which the

damages would not have occurred. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46

(Tex. 2007). Absent evidence of a producing cause of damage, the cause of action

29
At trial, Reininger first stated that he did not even have the entire Liberty Mutual policy in
front of him during his discussion with Justin, and then he stated he did not recall. (RR6:208,
6:210) In any event, Reininger did not review or reference the entire Liberty Mutual policy when
discussing his desired Allstate coverages with Justin. (RR6:204-211)

47
fails. See, e.g., Castañeda, 988 S.W.2d at 193.

The claimed date of loss is April 12, 2016. (CR:250) Reininger received

access to the full Policy, including the Cosmetic Damage Exclusion, no later than

December 7, 2015. (See RR8:48-49, 8:68) As discussed above, Reininger had a

duty to read the Policy and, failing to do so, was charged with knowledge of the

Policy’s conditions and coverage. Reininger is deemed to have known of the

Cosmetic Damage Exclusion no later than December 7, 2015. (See RR8:48-49,

8:68) Thus, under Texas law Reininger’s misrepresentation claim concerning

cosmetic damage coverage cannot survive. See Roland v. Transamerica Life Ins.

Co., 570 F. Supp.2d 871, 881 (N.D. Tex. 2008) (stating that the insured’s “alleged

failure to familiarize himself with the policy terms or take advantage of its

rescission provision cannot now form the basis of a misrepresentation claim”);

Manion, 2002 WL 34230861, at *3 (“An insured has a duty to read the policy and,

failing to do so, is charged with knowledge of the policy terms and conditions. . . .

A claim for misrepresentation cannot stand when the party asserting the claims is

legally charged with knowledge of the true facts.”). Consequently, any statutory

misrepresentation finding lacks legally and factually sufficient evidentiary support.

V. ISSUE FIVE: The evidence is factually and legally insufficient to

support any finding regarding Allstate’s “knowing” Insurance Code
violation sufficient to support an award of additional statutory
damages.

The judgment errs in awarding Reininger $135,765.54 in additional statutory

48
damages under Texas Insurance Code section 541.152(b), which provides that, “on

a finding by the trier of fact that the defendant knowingly committed the act

complained of, the trier of fact may award an amount not to exceed three times the

amount of actual damages.” Tex. Ins. Code §541.152(b). “Knowing” “means

actual awareness of the falsity, unfairness, or deceptiveness of the act or practice

on which a claim for damages under [this chapter] is based. Actual awareness may

be inferred if objective manifestations indicate that a person acted with actual

awareness.” Tex. Ins. Code §541.002(1). As discussed above, Allstate did not

violate Chapter 541. In addition, there is no legally or factually sufficient evidence

that Allstate committed such violation knowingly. For instance, Allstate had no

reason to think that the Cosmetic Damage Exclusion was not part of the policy

when it denied the claim, given that plaintiff did not raise the issue at that time.

There is also no evidence that Allstate lacked a reasonable basis to conclude that

all of the hail damage to the metal roof was cosmetic, particularly since

Reininger’s own designated expert could not point to a single photograph showing

a storm-created hole in the metal roof surface. Accordingly, the trial court’s award

of damages under section 541.152(b) cannot stand.

VI. ISSUE SIX: The trial court committed harmful error in admitting
irrelevant evidence regarding other insurance claims involving other
policies and other insureds.

When unduly prejudicial or otherwise inadmissible evidence is permitted to

49
reach the jury, appellate courts are required to reverse if the evidence probably led

to an improper verdict. Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex.

2004); Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 237 (Tex. 2001). In

determining whether evidence led to an improper verdict, courts consider the case

as a whole. Guerra, 348 S.W.3d at 236. With regard to evidence of other wrongs

or similar incidents, courts have frequently held that the error probably led to an

improper judgment when the evidence was unduly prejudicial or the proponent

failed to demonstrate sufficient similarity. Guerra, 348 S.W.3d at 237; Armstrong,

145 S.W.3d at 148.

The trial court erred in admitting, over Allstate’s objection, evidence of (1)

neighbors receiving new roofs under their homeowner’s policies, (2) Texas

Department of Insurance (TDI) complaints from other Allstate insureds regarding

application of cosmetic damage exclusion endorsements in their polices, and (3)

Allstate responses to other insureds’ TDI complaints regarding cosmetic damage

exclusion endorsements.

A. The trial court omitted harmful error by admitting evidence that

neighbors received new roofs following the storm in question.

It is well-settled law that evidence of the handling of other property-damage

claims is not relevant when determining whether a particular claim before the court

was undervalued, improperly handled, or investigated. See e.g., In re Nat’l Lloyds

Ins. Co., 449 S.W.3d 486, 487 (Tex. 2014); Great Am. Ins. Co. v. Cantu, 438

50
S.W.2d 127, 128 (Tex. 1969). The Texas Supreme Court applied this established

rule when addressing a discovery dispute in a property-damage case in In re Nat’l

Lloyds. 449 S.W.3d at 487. The insured brought allegations of underpaid insurance

claims after storms that swept through the city of Cedar Hill caused damage to her

home. In re Nat’l Lloyds, 449 S.W.3d at 487. The trial court ordered production of

the files for claims related to other properties in Cedar Hill that were damaged in

the same storm. Id. On mandamus review, the Court held that it “fail[ed] to see

how National Lloyds’ overpayment, underpayment, or proper payment of the

claims of unrelated third parties [was] probative of its conduct with respect to [the

homeowner’s] undervaluation claims at issue in [the] case.” Id. at 489; see also

Gutierrez v. State Farm Lloyds, Civ. A. No. 7:14-CV-430, 2015 WL 13188353, at

*5 (S.D. Tex. Jan. 22, 2015) (“The Court will not allow Plaintiffs to fish into

unrelated third-party matters because that information cannot reasonably support

whether Plaintiffs’ claims were undervalued. Even if Plaintiffs were able to

establish an ostensible pattern or practice of undervaluation of claims in the Rio

Grande Valley, it would not prove that this individual claim was undervalued.”).

The trial court erred by permitting, over Allstate’s objections, Reininger’s

counsel to present evidence at regarding the way neighbors’ claims were handled,

even though these other claims involved other homes, policies, and insurers.

(RR5:61-64, 65-84, 84-97) All evidence of these other claims and/or complaints

51
was wholly irrelevant, highly inflammatory, and probative of nothing in this case.

More specifically, the trial court permitted the testimony of two of

Reininger’s neighbors regarding the damage to their roofs and their receipt of new

roofs from their insurance carriers as a result. (RR5:65-84 (neighbor Valerie

Meade); RR5:84-97 (neighbor Lonnie Blanchard)) Neighbor Valerie Meade lives

across the street and two houses down from Reininger. (RR5:67) She testified that

she observed baseball sized hail, her metal roof was marked and indented due to

the hailstorm, she observed leaks in her house afterward, and her roof was

replaced. (RR5:67, 71-72, 79-81) Neighbor Lonnie Blanchard lives six houses

down the street from Reininger. (RR5:85) He testified that he observed golf ball

sized hail, his metal roof was dented and indented due to the hailstorm, he

observed a leak in his house afterward, and that his roof was replaced. (RR5:87,

89-90, 92, 94-95)

All of this testimony was irrelevant and inadmissible, as the damage to

Reininger’s neighbor’s roofs, interior leaks, and the fact that their roofs were

replaced afterword was in no way probative or relevant to any issue in this case.

This testimony is irrelevant for the same reasons articulated in In re National

Lloyds. Indeed, the connection of this evidence to the matter before the court is

actually even more attenuated than in In re National Lloyds. The record is devoid

of evidence regarding the neighbors’ insurers, their specific policy provisions, or

52
any competent evidence that would establish the severity of the damage to their

roofs compared to Reininger’s. This evidence has no probative value in this case.

Alternatively, any remote, probative value this evidence might have was

outweighed by the highly prejudicial nature of this testimony. Consequently, this

testimony was irrelevant and inadmissible, and the trial court erred in admitting it.

In addition, this error likely led to the rendition of an improper judgment.

The fact that neighbors of Reininger had their roofs replaced after the hail storm in

question is an impermissible basis for the jury to conclude that Allstate wrongfully

denied Reininger a new roof. Reininger’s neighbors’ experiences have no bearing

on whatever Allstate did or did not do in representing the Policy terms to

Reininger, or whether the hail damage to the metal roof surfaces was cosmetic and

thus excluded from coverage. Simply put, Reininger’s evidentiary theory that

testimony from neighbors regarding their damaged roofs being replaced is no

evidence in support of the judgment.

B. The trial court committed harmful error in admitting testimony and

documents regarding TDI complaints against Allstate that were not
relevant to Reininger’s Claim.

The trial court also erred by permitting impeachment of Allstate’s corporate

representative, Stephan Tendorf, two irrelevant, immaterial, and collateral issues

concerning complaints filed by other Allstate policyholders with the TDI.

(RR6:99-129) This was improper and harmful.

53
 In general, a witness may be impeached with respect to all material matters

testified to by the witness. A cross-examining party may not, however, introduce

evidence to contradict a witness’s answer regarding a matter that is collateral,

immaterial, or inadmissible. TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 241–42

(Tex. 2010) (holding that parties may not impeach on collateral or irrelevant

matters). A matter is collateral if it is “not relevant to proving a material issue in

the case.” Id.; see also Keene Corp. v. Gardner, 837 S.W.2d 224, 230 (Tex.

App.—Dallas 1992, writ denied) (“Matters are not collateral if they are relevant for

purposes other than impeachment.”). Thus, an issue is collateral if, beyond its

impeachment value, a party would not be entitled to prove it as a part of its case

tending to establish the party’s claim or defense. Kulow v. State, 524 S.W.3d 383,

387 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d); Surredin v. State, 165

S.W.3d 751, 754 (Tex. App.—San Antonio 2005, no pet.).

1. The trial court erred by admitting testimony and allowing

publication of materials regarding the TDI complaints as
impeachment evidence over Allstate’s objections.

At trial, Reininger’s counsel sought to impeach Tendorf on the issue of

whether Allstate was aware that other Allstate insureds had made complaints

regarding Allstate “slipping in” the Cosmetic Damage Exclusion into homeowners

policies:

54
 Q: And Allstate—your position is Allstate doesn’t do that. Allstate
doesn’t slip in cosmetic damage exclusions after they’ve already
signed up their policyholders, correct?

A: Correct.

***

Q: And you’re not aware of the Texas Department of Insurance

have ever investigated Allstate Vehicle and Property Company for
this same thing.

Mr. Valdez: Objection, your honor. Objection, collateral acts. We’ll

object to that. That has no bearing on this particular case.

(RR6:99-100) The trial court overruled Allstate’s objection and permitted

Reininger’s counsel to question Tendorf extensively on irrelevant TDI complaints

and Allstate’s responses. (RR6:100-129) This was error.

Counsel was incorrectly permitted to impeach Tendorf on an entirely

collateral matter of whether Allstate was aware of other complaints regarding

application of cosmetic damage exclusions. In addition, documents related to the

TDI complaints were improperly shown to the jury. (See RR6:99-129) Although

not admitted as exhibits, these documents were projected on the screen for the

jury’s examination during a significant portion of Tendorf’s testimony, over

objection, regarding these TDI complaints. (RR6:99-129)

Tendorf’s statement regarding Allstate’s awareness of other complaints—

whether true or false—had no bearing on any issue before the Court in this case

and is not admissible. Similarly, evidence of how other property-damage claims

55
were valued, handled, or investigated by Allstate—whether the subject of a TDI

complaint or not—is not relevant or admissible evidence that the claim before the

court was undervalued or improperly handled or investigated. See, e.g., In re Nat’l

Lloyds Ins. Co., 449 S.W.3d at 487; Cantu, 438 S.W.2d at 128. Accordingly, the

extensive testimony regarding the TDI complaints of other policyholders was

irrelevant, collateral, and should have been excluded by the Court.

Moreover, even if the TDI complaint testimony had some proper

impeachment value (although it did not), the testimony was highly inflammatory

and any probative value it might have had was greatly outweighed by its

prejudicial effect. Tex. R. Evid. 403; see Benson v. Chalk, 536 S.W.3d 886, 897–

898 (Tex. App.—Houston 2017, pet. denied). Additionally, this line of questioning

is evidence of other acts that is not admissible to prove Allstate’s character in order

to show that, on the particular occasion involving Reininger, Allstate acted in

accordance with its character. Tex. R. Evid. 404(b).

2. The trial court erred by admitting testimony regarding

Allstate’s responses to the TDI complaints as impeachment
evidence.

Over Allstate’s objection, Reininger’s counsel also attempted to impeach

Tendorf on the issue of whether the storm created opening must exist from day one

in order for the damage to be considered more than cosmetic. (RR6:125-130) To

do this, Reininger’s counsel questioned Tendorf regarding Allstate’s responses to

56
the TDI complaints discussed above, in which Allstate allegedly states that the

insured could reopen their claim if the roof starts to leak in the future. (RR6:115-

120) However, whether or not Allstate reopens, re-inspects, or re-investigates

Reininger’s claim will not change the fact that Allstate properly denied the portion

of his Claim related to cosmetic damage to the metal roof. Consequently, the

impeachment evidence here went to a purely irrelevant, collateral matter.

Moreover, how Allstate handled, adjusted, and valued these other claims has

no relevance to this case. In re Nat’l Lloyds Ins. Co., 449 S.W.3d at 487; Cantu,

438 S.W.2d at 128. Further, even if this testimony had some proper impeachment

value (which it did not), any probative value was outweighed by its prejudicial

effect. Tex. R. Evid. 403; Chalk, 536 S.W.3d at 897–898. Thus, Allstate’s

responses to the TDI complaints were admitted in error.

C. Each of these evidentiary errors was harmful.

Considering the case as a whole, each of these evidentiary errors was

harmful. See Guerra, 348 S.W.3d at 236. With regard to evidence of other wrongs

or similar incidents, courts have frequently held that the error probably led to an

improper judgment when the evidence was unduly prejudicial or the proponent

failed to demonstrate sufficient similarity. Id. at 237; Armstrong, 145 S.W.3d at

148. Here, the erroneously admitted and erroneously published material was

unduly prejudicial, and Reininger failed to demonstrate sufficient similarity with

57
this case. Moreover, the material improperly prejudiced the jury regarding sharply

contested issues, including whether Reininger was entitled to a new roof in

disregard of the Cosmetic Damage Exclusion. Because these errors were harmful,

the judgment should be reversed and, at the very least, the matter should be

remanded for a new trial.

VII. ISSUE SEVEN: The cumulative effect of the trial court’s multiple
evidentiary, charge, and other errors is harmful and requires reversal
of the judgment.

The multiple errors addressed above signal the trial court’s fundamental

misconceptions of Texas insurance law. The trial court’s errors demonstrate a

misapprehension of the proper function of a binder, misappreciation of the effect of

the insured’s duty to read an insurance policy, and misunderstanding of the

irrelevance of the handling of other insurance claims as set forth by the Supreme

Court of Texas. These multiple errors are each harmful on their own. At the very

least, the errors constitute cumulative, harmful error.

Multiple errors, even if considered harmless when taken separately (which

these are not), may result in reversal and remand for a new trial if the cumulative

effect of such errors is harmful. Gainsco County Mut. Ins. Co. v. Martinez, 27

S.W.3d 97, 107 (Tex. App.—San Antonio 2000, pet. dism’d by agr.); see also

Dunn v. Bank-Tec S., 134 S.W.3d 315, 330 (Tex. App.—Amarillo 2003, no pet.);

Weidner v. Sanchez, 14 S.W.3d 353, 377–78 (Tex. App.—Houston [14th Dist.]

58
2000, no pet.).

The cumulative effect of the trial court’s errors—including charge errors,

evidentiary errors, and errors in submitting causes of action that lack legally and

factually sufficient evidentiary support—constitutes cumulative error that was

reasonably calculated to cause and probably did cause the rendition of an improper

judgment. But for these errors, the jury would have rendered a verdict favorable to

Allstate. See, e.g., Martinez, 27 S.W.3d at 107. For example, the jury would have

properly considered application of the Cosmetic Damage Exclusion and that the

claimed damage to Reininger’s metal roof fell within the Exclusion. Allstate would

not have been unfairly prejudiced by the jury’s consideration of irrelevant material

concerning the adjustment of neighbors’ roof claims and unsubstantiated TDI

complaints. Sharply contested issues regarding the application of the Cosmetic

Damage Exclusion would have been properly submitted to the jury—issues central

to Allstate’s defense to Reininger’s Texas Insurance Code claim on which the

erroneous judgment rests. For each of these reasons, cumulative error warrants

reversal of the judgment and, at the very least, remand for a new trial.30

PRAYER

Allstate requests that the Court reverse the trial court’s judgment and render

a take-nothing judgment for Allstate. Alternatively, Allstate request the Court

30
Also as discussed above, on this record judgment should be rendered for Allstate.

59
reverse the judgment and remand the matter for a new trial. Allstate requests all

further relief to which it is entitled in law and equity, including an award of its

appeal costs.

60
Respectfully submitted,

THOMPSON, COE, COUSINS & IRONS, L.L.P.

By: /s/ Gino J. Rossini

Gino J. Rossini
State Bar No. 24007953
Roger D. Higgins
State Bar No. 09601500
Shelby G. Hall
State Bar No. 24086717

700 North Pearl Street, 25th Floor

Dallas, Texas 75201
Telephone: (214) 871-8200
Facsimile: (214) 871-8209
E-mail: rhiggins@thompsoncoe.com
E-mail: grossini@thompsoncoe.com
E-mail: shall@thompsoncoe.com

—And—

Robert E. Valdez
State Bar No. 20428100
Adan A. Gonzalez, III
State Bar No. 08122350
VALDEZ &TREVIÑO, P.C.
8023 Vantage Dr., Suite 700
San Antonio, TX 78230
Telephone: (210) 598-8686
Facsimile: (210) 598-8797
E-mail: revaldez@valdeztrevino.com
E-mail agonzalez@valdeztrevino.com

ATTORNEYS FOR DEFENDANT

ALLSTATE VEHICLE AND PROPERTY
INSURANCE COMPANY

61
 CERTIFICATE OF COMPLIANCE

I certify that this Brief contains 14,817 words, not including the parts
excluded by Tex. R. App. P. 9.4(i)(1). Accordingly, it complies with Rule
9.4(i)(2)(B).

/s/ Gino J. Rossini

Gino J. Rossini

CERTIFICATE OF SERVICE

I certify that on October 28, 2019, this document was served on the
following counsel via the Court’s electronic filing system or by email:

Richard D. Daly
John S. Black
James W. Willis
David L. Bergen
DALY & BLACK, P.C.
2211 Norfolk St., Suite 800
Houston, TX 77098
T: (713) 655-1405
F: (713) 655-1587
E: ecfs@dalyblack.com
Counsel for Appellee

/s/ Gino J. Rossini

Gino J. Rossini

62
 DOCUMENT SCANNED AS FILED

N N. ffill III
will W O -0288

CAUSE NO. 2016-CI-21617

PETER REIMNGER IN THE DISTRICT COURT OF

Plaintiff

vs.
BEXAR COUNTY, TEXAS
ALLSTATE VEHICLE AND
PROPERTY INSURANCE
COMPANY AND KEVIN PHILLIPS

Defendants 288" JUDICIAL DISTRICT

FINAL JUDGMENT

On February 19, 2019, this case was called for trial. Plaintiff, Peter Reininger, appeared in
person and through his attorneys and announced ready for trial. Defendants, Allstate Vehicle and
Property Insurance Company ("Defendant"), appeared in person, through its representative and
through its attorneys and announced ready for trial.

After a jury was impaneled and sworn, it heard the evidence and arguments of counsel. In
response to the jury charge, the jury made findings that the Court received, filed, and entered of
record. The questions, submitted to thejury and thejury's findings are attached as Exhibit "1" and
incorporated by reference. Plaintiff filed a motion forjudgment on Plaintiff's statutory claims for
violations of the Deceptive Trade Practice Act ("DTPA") and Texas Insurance Code ("TIC"),
attorney's fees, statutory interest, pre-judgment and post-judgment interest, and attorney's fees.
I All matters in controversy, legal and factual, were submitted to the Court for its
determination. The Court heard the evidence and arguments of counsel and announced its decision
for Plaintiff. Plaintiff filed a motion forjudgment based on the Court's decision.

The Court hereby RENDERS judgment for Plaintiff.

0
I9 IT IS THEREFORE ORDERED by the Court that:

Plaintiff recovers damages from Defendant in the sum of $67,882.77 in actual

damages under Texas Insurance Code 541.152(a);

2. Plaintiff recovers damages from Defendant in the sum of $135,765.54 in additional

statutory damages under Texas Insurance Code 541.152(b);

3. Plaintiff recovers statutory interest in the amount of $32,776.92 as of March 22,

2019 under Chapter 542 of the Texas Insurance Code, and accruing at $33.48 per
day thereafter until the date ofjudgment.

685 TAB A
 DOCUMENT SCANNED AS FILED
t

4. Plaintiff recovers attorney's fees from Defendant in the sum of $314,975 for
services through trial, $45,000 in the event Plaintiff is successful on appeal before
the court of appeals, $10,000 for successful representation at the petition for review
stage should one be filed in the Texas Supreme Court; $15,000 if Plaintiff is
successful at the merits briefing stage in the Texas Supreme Court, and $10,000 if
Plaintiff is successful in prevailing at oral argument in the Texas Supreme Court;

5. Plaintiff recovers prejudgment interest from Defendant at the rate of 5% per annum
in the amount of $8,164.53 as of March 22,2019, and additionally accruing $9.30 per
day until the day before the judgment is signed;

6. With the exception of appellate attorney's fees, Plaintiff recovers post-judgment

interest on the entire judgment, including post-judgment interest on prejudgment
interest accrued as of the day before the judgment i signed and court costs, at the rate
of 5% per year, compounded annually, beginning on the date this judgment is
signed, until the judgment is paid. Post-Judgement interest on appellate attorney's
fees does not accrue until the appellate court issues its final judgment.

IT IS FURTHER ORDERED that all costs of court spent or incurred by Plaintiff in this
cause are adjudged against Defendant.

All writs and processes for the enforcement and collection of this judgment or the costs of
court may issue as necessary.

All relief requested in this case and not expressly granted is denied. This judgment is
FINAL, disposes of all claims and all parties, and is appealable.

APR 12 2019
SIGNED on 2019.

Eynthla Marie chap

Presiding Judge
288thDistrict Court
Bexar Count' Texas

686 TAB A
 1111FAC 4tP?iII III
2016C121517 —P00070

ORIGINAL
CAUSE NO. 2016-CI-21617

PETER REININGER § IN THE DISTRICT COURT OF

§ em
Plaintiff §
§ - no
vs. §
§ BEXAR COUNTY,
ALLSTATE VEHICLE AND § cp
PROPERTY INSURANCE §
COMPANY AND KEVIN PHILLIPS §
§
Defendants § 288111 JUDICIAL DISTRICT

CHARGE OF THE COURT

LADIES AND GENTLEMEN OF THE JURY:

After the closing arguments, you will go the jury room to decide the case, answer the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.

Remember my previous instructions: Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent investigation about the case or conduct
any research. Do not look up any words in dictionaries or on the Internet. Do not post
information about the case on the Internet. Do not share any special knowledge or experiences
with the other jurors. Do not use your phone or any other electronic device during your
deliberations for any reason. I will give you a number where others may contact you in case of
an emergency.

Any notes you have taken are for your own personal use. You may take your notes back
into the jury room and consult them during deliberations, but do not show or read your notes to
your fellow jurors during your deliberations. Your notes are not evidence. Each of you should
rely on your independent recollection of the evidence and not be influenced by the fact that
another juror has or has not taken notes.

You must leave your notes with the bailiff when you are not deliberating. The bailiff will
give your notes to me promptly after collecting them from you. I will make sure your notes are
kept in a safe, secure location and not disclosed to anyone. After you complete your
deliberations, the bailiff will collect your notes. When you are released from jury duty, the bailiff
will promptly destroy your notes. When you are released form jury duty, the bailiff will promptly
destroy your notes so that nobody can read what you wrote.

Here are the instructions for answering the questions:

TAB B
589
Page 1 of 22
DOCUMENT SCANNED AS FILED
1. Do not let bias, prejudice or sympathy play any part in your deliberations.

2. Base your answers only on the evidence admitted in court and on the law that is in these
instructions and questions. Do not consider or discuss any evidence that was not admitted in the
courtroom.

3. You are to make up your own minds about the facts. You are the sole judges of the
credibility of the witnesses and the weight to give their testimony. But on matters of law, you
must follow all of my instructions.

4. If my instructions use a word in a way that is different from its ordinary meaning, use the
meaning I give you, which will be a proper legal definition.

5. All the questions and answers are important. No one should say that any question or
answer is not important.

6. Answer "yes" or "no" to all questions unless you are told otherwise. A "yes" answer must
be based on a preponderance of the evidence unless you are told otherwise. Whenever a question
requires an answer other than "yes" or "no," your answer must be based ona preponderance of
the evidence, unless you are told otherwise.

The term "preponderance of the evidence" means the greater weight of credible evidence
presented in this case. If you do not find that a preponderance of the evidence supports a "yes"
answer, then answer "no." A preponderance of the evidence is not measured by the number of
witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence, you must find that the fact is more likely true than not true.

7. Do not decide who you thing should win before you answer the questions and the
questions and then just answer the questions to match your decision. Answer each question
carefully without considering who will win. Do not discuss or consider the effect your answers
will have.

8. do not answer questions by drawing straw or by any method of chance.

9. Some questions might ask you for a dollar amount. Do not agree in advance to decide on
a dollar amount by adding up each juror's amount and then figuring the average.

10. Do not trade your answers. For example, do not say, "I will answer this question your
way if you answer another question my way."

II. Unless otherwise instructed, the answers to the questions must be based on the decision
of at least ten of the twelves jurors. The same ten jurors must agree on every answer. •Do not
agree to be bound by a vote of anything less than ten jurors, even if it would be a majority.

TAB B
590
Page 2 of 22
DOCUMENT SCANNED AS FILED
 As I have said before, if you do not follow these instructions, you will be guilty of juro
misconduct, and I might have to order a new trial and start this process over again. This would
waste your time and the parties' money, and would require the taxpayers of this county to pay for
another trial. If a juror breaks any of these rules, tell that person to stop and report it to me
immediately.

6. You may render your verdict upon the vote of ten or more members of the jury. The
same ten or more of you must agree upon all of the answers made and to the entire verdict. You
will not, therefore, enter into an agreement to be bound by a majority or any other vote of less
than ten jurors. If the verdict and all of the answers therein are reached by unanimous agreement,
the presiding juror shall sign the verdict for the entire jury. If any juror disagrees as to any
answer made by the verdict, those jurors who agree to all findings shall each sign the verdict.

These instructions are given you because your conduct is subject to review the same as
that of the witnesses, parties, attorneys and the judge. If it should be found that you have
disregarded any of these instructions, it will be jury misconduct and it may require another trial
by another jury; then all of our time will have been wasted.

The presiding juror or any other who observes a violation of the court's instructions shall
immediately warn the one who is violating the same and caution the juror not to do so again.

When words are used in this charge in a sense that varies from the meaning commonly
understood, you are given a proper legal definition, which you are bound to accept in place of
any other meaning.

Answer "Yes" or "No" to all questions unless otherwise instructed. A "Yes" answer must
be based on a preponderance of the evidence unless otherwise instructed. If you do not find that a
preponderance of the evidence supports a "Yes" answer, then answer "No." The term
"preponderance of the evidence" means the greater weight and degree of credible evidence
admitted in this case. A preponderance of the evidence is not measured by the number of
witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence, you must find that the fact is more likely true than not true.
Whenever a question requires an answer other than "Yes" or "No," your answer must be based
on a preponderance of the evidence unless otherwise instructed.

A fact may be established by direct evidence or by circumstantial evidence or both. A

fact is established by direct evidence when proved by documentary evidence or by witnesses
who saw the act done or heard the words spoken. A fact is established by circumstantial evidence
when it may be fairly and reasonably inferred from other facts proved.

TAB B
591
Page 3 of 22
DOCUMENT SCANNED AS FILED
 Presiding Juror:

When you go into the jury room to answer the questions, the first thing you will need to
do is choose a presiding juror.

The presiding juror has these duties:

i Have the complete charge read aloud if it will be helpful to your deliberations;
2. Preside over your deliberations, meaning manage the discussions, and see that you
follow these instructions;

3. Give written questions or comments to the bailiff who will give them to the judge;

4. Write down the answers you agree on;

5. Get the signatures for the verdict certificate; and

6. Notify the bailiff that you have reached a verdict.

Do you understand the duties of the prepithtg juror? If you,do not, please tell me now.

IA MARIE CHAPA

TAB B
592
Page 4 of 22
DOCUMENT SCMThIED AS FILED
 QUESTION NO.1

Did Peter Reininger and Allstate intend to bind themselves to a Metal Roof Surfaces
Cosmetic Damage Exclusion Endorsement —AVP166-i?

You are instructed that in deciding whether the parties reached an agreement, you may
consider what they said and did in light of the surrounding circumstances, including any
earlier course of dealing. You may not consider the parties' unexpressed thoughts or
intentions

You are further instructed that silence and inaction cannot be construed as assent to an
offer.

Answer "Yes" or "No."

Answer: tJü

TAB B
593
PageS of 22
DOCUMENT SCANNED AS FILED
If you answered "Yes" to Question I, then answer the following question. Otherwise, do not
answer Question 2.
OUESTION NO.2

Do you find by a preponderance of evidence that all of the damage to the Property's metal
roof is solely cosmetic?

Allstate has the burden to prove the losses Reininger suffered are only cosmetic.

Answer "Yes" or "No."

Answer:

TAB B
594
Page 6 of 22
DOCUMENT SCANNED AS FILED
 QUESTION NO.3

Did Allstate fail to comply with the insurance policy agreement?

You are instructed that the insurance policy requires Allstate to pay for the cost to repair
or replace any such damaged property.

You are instructed that the insurance policy covers damages to Mr. Reininger's home
caused by wind and/or hail during the policy period.

You are instructed that Allstate is liable for the actions of the independent adjusters,
employees, agents or contractors.

Answer "Yes" or "No."

Answer: •tS

TAB B
595
Page 7 of 22
DOCUMENT SCANNED AS FILED
If you answered "Yes" to Question 3, then answer the following question. Otherwise, do not
answer Question 4.

OUESTION NO.4

What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Peter Reininger for his damages, if any, that resulted from Allstate's failure to comply with
the insurance policy?

You are instructed that the insurance policy requires Allstate to pay for the cost to repair
or replace covered damages, if any, to Peter Reininger's home caused by wind andlor hail
during the policy period.

You are instructed not to consider the insurance policy's deductible.

Answer in dollars and cents, if any:

Answer: $__________

TAB B
596
Page 8 of 22
DOCUMENT SCANNED AS FILED
 QUESTION 5

Did Allstate engage in any unfair or deceptive act or practice that caused damages to Peter
Reininger?

"Unfair or deceptive act or practice" means any of the following:

Refi.ising to pay a claim without conducting a reasonable investigation of the

claim; or

Misrepresenting to Peter Reininger a material fact or policy provision relating to

the coverage at issue; or

Failing to attempt in good faith to effectuate a prompt, fair, and equitable

settlement of a claim when Allstate's liability has become reasonably clear; or

Failing to provide promptly to Peter Reininger a reasonable explanation of the

factual and legal basis in the policy for Allstate's denial of the claim; or

Failing to affirm or deny coverage within a reasonable time.

You are instructed that Allstate is liable for the actions of the independent adjusters,
employees, agents or contractors.

Answer "Yes" or "No."

Answer:

TAB B
597
Page 9 of 22
DOCUMENT SCANNED AS FILED
If you have answered "Yes" to Question,S then answer the following question. Otherwise, do
not answer Question7.

OUESTION 6

What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Peter Reininger for his damages, if any, that were caused by such unfair or deceptive acts
or practices?

Consider the following element of damages, if any, and none other:

The reasonable and necessary cost to repair or replace Peter Reininger

property that was damaged as a result of wind and/or hail occurring during
the policy period.

You are instructed not to consider the insurance policy's deductible.

Answer in dollars and cents, if any:

Answer: $__________

TAB B
598
Page 10 of 22
DOCUMENT SCANNED AS FILED
If you answered "Yes" to Question 5, then answer the following question. Otherwise, do not
answer Question 7.

OUESTION 7

Did Allstate engage in the unfair or deceptive act or practice knowingly?

"Knowingly" means actual awareness, at the time of the conduct, of the falsity,
unfairness, or deceptiveness of the act or practice on which a claim for damages is based.
Actual awareness may be inferred where objective manifestations indicate that a person
acted with actual awareness.

In answering this question, consider only the conduct that you have found resulted in
damages to Peter Reininger.

You are instructed that Allstate is liable for the actions of the independent adjusters,
employees, agents or contractors.

Answer "Yes" or "No."

Answer:

TAB B
599
Page 11 of 22
DOCUMENT SCANNED AS FILED
If you have answered "Yes" to Question 7, then answer the following question. Otherwise, do
not answer Question 8.

OUESTION 8

What sum of money, if any, in addition to actual damages, should be awarded to Peter
Reininger against Allstate because Allstate's conduct was committed knowingly?

"Actual Damages" means the amounts of damages found in Question 6, if any.

Consider the following factors in awarding damages in addition to actual damages, if any:

a) The nature of the wrong;

b) The character of the conduct involved;

c) The degree of Allstate's culpability;

d) The situation and sensibilities of the parties concerned; and

e) The extent to which such conduct offends a public sense ofjustice and
propriety.

Do not speculate about what any party's ultimate recovery may or may not be. Any
recovery will be determined by the court when it applies the law to your answers at the
time ofjudgment.

Answer in dollars and cents, if any:

Answer: $________

TAB B
600
Page 12 of 22
DOCUMENT SCANNED AS FILED
 OUESTION NO.9

Did Allstate commit fraud against Peter Reininger?

You are instructed that fraud occurs when-

1. A party makes a material misrepresentation, and

2. The misrepresentation is made with knowledge of its falsity or made recklessly

without any knowledge of the truth and as a positive assertion, and

3. The misrepresentation is made with the intention that it should be acted on by the
other party, and

4. the other party relies on the misrepresentation and thereby suffers injury.

You are instructed that a false misrepresentation is defined as:

1. A false statement of fact; or

2. A promise of future performance made with an intent, at the time the promise was
made, not to perform as promised; or

3. A statement of opinion based on a false statement of fact; or

4. A statement of opinion that the maker knows to be false; or

5. An expression of opinion that is false, made by one who has, or purports to have,
special knowledge of the subject matter of the opinion.

You are instructed that "special knowledge" means knowledge or information superior to
that possessed by the other party and to which the other party did not have equal access.
You are instructed that fraud also occurs when-

I. A party fails to disclose a material fact within the knowledge of that party; and

2. The party knows that the other party is ignorant of the fact and does not have an equal
opportunity to discover the truth, and

3. The party intends to induce the other party to take some action by failing to disclose
the fact; and

4. The other party suffers injury as a result of acting without knowledge of the
undisclosed fact.

Answer "Yes" or "No."

Answer:
k €5 TAB B
601
Page 13 of22
DOCUMENT SCANNED AS FILED
 C'

If you answered "Yes" to Question 9, then answer the following question. Otherwise, do not
answer Question 10.
OUESTION NO. 10

What sum of money, if an, if paid now in cash, would fairly and reasonably compensate
Peter Reininger for his damages, if any, that resulted from such fraud?

Consider the following elements of damages, if any, and none other:

The amount Allstate should have paid Peter Reininger for covered damages to his
property sustained as a result of wind andlor hail and were not paid resulting from
such fraud.

You are instructed not to consider the insurance policy's deductible.

Answer in dollars and cents, if any:

Answer: $ r1t 582Y11

TAB B
602
Page 14 of22
DOCUMENT SCANNED AS FILED
Answer the following question only if you unanimously answered "Yes" to Question 9.
Otherwise, do not answer Question 11.

To answer "Yes" to the following question, your answer must be unanimous. You may answer
"No" to the following question only upon a vote often or more jurors. Otherwise, you must not
answer the following question.

OUESTION NO.11

Do you find by clear and convincing evidence that the harm to Peter Reininger resulted
from fraud?

You are instructed that "clear and convincing evidence" means the measure or degree of
proof that produces a firm belief or conviction of the truth of the allegations sought to be
established.

You are instructed that fraud occurs when-

5. A party makes a material misrepresentation, and

6. The misrepresentation is made with knowledge of its falsity or made recklessly

without any knowledge of the truth and as a positive assertion, and

7. The misrepresentation is made with the intention that it should be acted on by the
other party, and

8. the other party relies on the misrepresentation and thereby suffers injury.

You are instructed that a false misrepresentation is defined as:

6. A false statement of fact; or

7. A promise of future performance made with an intent, at the time the promise was
made, not to perform as promised; or

8. A statement of opinion based on a false statement of fact; or

9. A statement of opinion that the maker knows to be false; or

10. An expression of opinion that is false, made by one who has, or purports to have,
special knowledge of the subject matter of the opinion.

You are instructed that "special knowledge" means knowledge or information superior to
that possessed by the other party and to which the other party did not have equal access.

TAB B
603
Page 15 of 22
DOCUMENT SCANNED AS FILED
 You are instructed that fraud also occurs when-

5. A party fails to disclose a material fact within the knowledge of that party; and

6. The party knows that the other party is ignorant of the fact and does not have an equal
opportunity to discover the truth, and

7. The party intends to induce the other party to take some action by failing to disclose
the fact; and

8. The other party suffers injury as a result of acting without knowledge of the
undisclosed fact.

You are instructed that silence and inaction cannot be construed as an assent to an offer.

Answer "Yes" or "No" or leave blank.

Answer: __________

TAB B
604
Page 16 of 22
DOCUMENT SCANNED AS FILED
Answer the following question only if you unanimously answered "Yes" to Question 11.
Otherwise, do not answer Question 12.

QUESTION NO. 12

What sum of money, if any, should be assessed against Allstate and awarded to Peter
Reininger as exemplary damages, if any, for the conduct found in response to Question 9?

You are instructed that you must unanimously agree on the amount of any award of
exemplary damages.

"Exemplary damages" means an amount that you may in your discretion award as a
penalty or by way of punishment.

Factors to consider in awarding exemplary damages, if any, are-

1. The nature of the wrong;

2. The Character of the conduct involved;

3. The degree of culpability of Allstate;

4. The situation and sensibilities of the parties concerned; and

5. The extent to which such conduct offends a public sense ofjustice and propriety.

Answer in dollars and cents, if any:

Answer: $OD 5?>

TAB B
605
Page 17 of 22
DOCUMENT SCANNED AS FILED
If you have answered "Yes" to Quest)on 3 or Question 5, then answer the following question.
Otherwise, do not answer Question MI. (3

OUESTION 13

What is a reasonable fee for the necessary services of Peter Reininger's attorneys, stated in
dollars and cents?

Factors to consider in determining a reasonable fee include the following:

1. The time and labor required, the novelty and difficulty of the questions
involved, and the skill required to perform the legal services properly;

2. The likelihood that the acceptance of the particular employment will

preclude other employment by the lawyer;

3. The fee customarily charged in the locality for similar legal services;

4. The amount involved and the results obtained;

5. The nature and length of the professional relationship with the client;

6. The experience, reputation, and ability of the lawyer or lawyers

performing the services;

7. Whether the fee is fixed or contingent on results obtained or uncertainty of

collection before the legal services have been rendered; and

8. Whether the fee is fixed or contingent on results obtained or uncertainty

of collection before the legal services have been rendered.

Answer in dollars and cents with an amount for each of the following, if any:

For representation in the trial court.

Answer: $ 3iL7tq75-o
2. For representation through appeal to the court of appeals.
ih. 122—
Answer: $ L-fJ Ott?

3. For representation at the petition for review stage in the Supreme Court of
Texas.

Answer: $IO,DoO '

TAB B
606
Page 18 of22
DOCUMENT SCANNED AS FILED
 4. For representation at the merits briefing stage in the Supreme Court of
Texas.

Answer: $ j i Ott)

5. For representation through oral argument and the completion of

proceedings in the Supreme Court of Texas.
In
Answer: $IU

TAB B
607
Page 19 of 22
DOCUMENT SCANNED AS FILED
If you have answered "Yes" to Question 3, then answer the following question. Otherwise, do
not answer Question 14.

OUESTION 14

By what date had Allstate received all items, statements and forms it reasonably requested
from Peter Reininger that were necessary to decide whether to accept or reject the claim?

Answer with a date in the blank

Answer: 5/74 ID I(

TAB B
608
Page 20 of 22
DOCUMENT SCANNED AS F'ILED
 CERTIFICATE

We, the jury have answered the above and foregoing questions as herein indicated, and
herewith return same into as our verdict.

(To be signed by the presiding juror if unanimous.)

PRESIDING JUROR

(To be signed by those rendering the verdict if not unanimous.)

(Jo'L

I_c
Cn
I
-

fl g z

TAB B
609
Page 21 of 22
DOCUMENT SCANNED AS FILED
 ADDITIONAL CERTIFICATE

I certify that the jury was unanimous in answering question 11. All 12 of us agreed to
each of the answers. The presiding juror has signed the certificate for all 12 of us.

JUROR (signature)

pL Wd)
PREWDfNG JUROR (printed)

TAB B
610
Page 22 of 22
DOCUMENT SCANNED AS FILED
'1

V 2016C121617 -pøø068

CAUSE NO. 2016-CI-21617

PETER REININGER § IN THE DISTRICT COURT

Plaint ff §
§
V. § BEXAR COUNTY, TEXAS
§
ALLSTATE VEHICLE AND PROPERTY §
INSURANCE COMPANY AND §
KEVIN PHILLIPS § 225TH JUDICIAL DISTRICT
Defendant. §

DEFENDANTS' PROPOSED JURY CHARGE QUESTION

Pursuant to Rule 277, Texas Rules of Civil Procedure, Defendants request the following be
included in the Court's Charge to the Jury:

See Next Page:

6ZtO

{00489842} 1
561 TAB C

DOCUMENT SCANNED AS FILED

QUESTION -

Do you find by a preponderance of the evidence that the loss, if any, to Plaintiff's roof was
cosmetic damage caused by hail to the metal roof surface, including but not limited to indentations,
dents, distortions, scratches, or marks, that change the appearance of a metal roof surface?

In this regard, you are instructed as follows:

Roof surface means the metal roof and all other roofing components, including, but not
limited to:
a) flashing, caps, vents, drip edges , and ice shields;
b) sheeting, felt and membranes;
c) modified bitumen, bitUmen, rubber, built-up and sprayed polyurethane foam roofing; d)
foam inserts and elastomeric coating;
e) finials, eave and gable trim and snow guards; battens, counter battens, bird stops, gravel
stops; and
g) costings, adhesives, adherents and other finishing materials for rood surface materials
and all other roofing components.

Answer "Yes" or "No":

GRANTED

GRANTED AS MODIFIED

Judge PresUing

{00489842}

562 TAB C

DOCUMENT SCANNED AS FILED

FILED
8/30/2018 4:15 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Priscilla Garza

CAUSE NO. 2016-CI-21617

PETER REININGER § IN THE DISTRICT COURT OF

§
Plaintiff §
§
vs. § BEXAR COUNTY, TEXAS
§
ALLSTATE VEHICLE AND §
PROPERTY INSURANCE §
COMPANY AND KEVIN PHILLIPS §
§
Defendants § 225TH JUDICIAL DISTRICT

PLAINTIFF’S SECOND AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

Peter Reininger (“Mr. Reininger”), Plaintiff herein, files this Second Amended Petition

against Defendants Allstate Vehicle and Property Insurance Company (“Allstate”) and Kevin

Phillips (“Phillips”) and, in support of his causes of action, would respectfully show the Court the

following:

I.
THE PARTIES

1. Peter Reininger is a Texas resident who resides in Bexar County, Texas.

2. Allstate is an insurance company doing business in the State of Texas and has

answered in this lawsuit through counsel.

3. Kevin Phillips is a Texas resident who participated in adjusting Mr. Reininger’s

insurance claim. He has answered in this lawsuit through counsel.

248 TAB D
 II.
DISCOVERY

4. This case is intended to be governed by Discovery Level 2.

III.
CLAIM FOR RELIEF

5. The damages sought are within the jurisdictional limits of this court. Plaintiff

currently seeks monetary relief over $200,000 but not more than $1,000,000, including damages

of any kind, penalties, costs, expenses, punitive damages, pre-judgment interest, and attorney’s

fees. However, to the extent that Defendants refuse to cooperate in discovery, make frivolous and

unwarranted objections, file needless motions, quash depositions and discovery requests without

a reasonable basis, assert unjustified or false affirmative defenses, make unwarranted special

exceptions, hire individuals they claim to be “experts” who give false opinions or testimony,

produce witnesses who commit perjury, conduct excessive discovery, or otherwise needlessly

delay litigation, the costs, expenses, interest, and attorney’s fees will likely be well over this

threshold.

IV.
JURISDICTION AND VENUE

6. This court has subject matter jurisdiction of this cause of action because it involves

an amount in controversy in excess of the minimum jurisdictional limits of this Court. No diversity

of citizenship exists in this matter.

7. Venue is proper in Bexar County under Tex. Civ. Prac. & Rem. Code §15.002(a)(1)

because all or a substantial part of the events or omissions giving rise to the claim occurred in

Bexar County. In particular, the loss at issue occurred in Bexar County.

249 TAB D
 V.
FACTUAL BACKGROUND

8. Mr. Reininger is a named insured under a property insurance policy issued by

Allstate.

9. In June 2015, Allstate, through its agent David Pfau Insurance, sold Mr. Reininger

an insurance policy effective from July July 2, 2015 through July 2, 2016.

10. Allstate knowingly and/or intentionally misrepresented Mr. Reininger’s policy by

failing to disclose that they had included a cosmetic roof damage endorsement on his policy prior

to selling him his policy. Mr. Reininger never requested Allstate sell him a cosmetic roof damage

endorsement nor was the endorsement disclosed and provided to Mr. Reininger prior to him

purchasing the policy. After selling Mr. Reininger his policy, Allstate then misrepresented what

his policy included, and sent him another document that was not his policy. Allstate claimed this

document was in fact the policy he had just purchased. Nothing in the document addresses a

cosmetic roof endorsement. Thus, Mr. Reininger never purchased a policy that included a cosmetic

roof endorsement.

11. On or about April 12, 2016 a wind and hail storm hit the San Antonio, Texas area,

damaging Mr. Reininger’s house and particularly his roof. Mr. Reininger subsequently filed a

claim on his insurance policy.

12. Allstate inspected the property but never notified Mr. Reininger in writing of

whether they would accept or reject his claim. To this day, Allstate has never notified Mr.

Reininger in writing of whether they will accept or reject his claim.

13. Allstate refused to pay Mr. Reininger for any of the storm damage to his property.

Defendants improperly denied and/or underpaid the claim.

250 TAB D
 14. Phillips was assigned as an individual adjuster on the claim, conducted a substandard

investigation and inspection of the property, prepared a report that failed to include all of the

damages that he noted during the inspection, and undervalued the damages he observed during the

inspection. During the investigation, Phillips’ misrepresented Mr. Reininger’s policy and its

endorsements and appears to have used a cosmetic roof damage endorsement that Mr. Reininger

never purchased as a basis for not paying Mr. Reininger for hail damage to his roof. Phillips’s

unreasonable investigation led to the underpayment of Plaintiff’s claim.

15. Moreover, Allstate and Phillips performed an outcome-oriented investigation of

Plaintiff’s claim, which resulted in a biased, unfair and inequitable evaluation of Plaintiff’s losses

on the property.

VI.
CAUSES OF ACTION

16. Each of the foregoing paragraphs is incorporated by reference in the following:

A. Actual Authority (Express and/or Apparent Authority) (David Pfau Insurance as an

agent for Allstate)

17. At all relevant times, David Pfau Insurance was acting as Allstate’s agent when it

sold Mr. Reininger his policy, made representations regarding the facts and circumstances

surrounding his policy, and issued documents on behalf of Allstate.

18. Allstate delegated express authority on David Pfau Insurance by allowing David

Pfau Insurance to sell policies on Allstate’s behalf, represent certain coverages to Allstate

customers or potential customers, and issue documents on behalf of Allstate. More specifically,

Allstate intentionally conferred express authority on David Pfau Insurance, or intentionally

allowed David Pfau Insurance to believe it had authority, or through lack of due care, allowed

David Pfau Insurance to believe it had authority to act on behalf of Allstate.

251 TAB D
 19. Alternatively, Allstate affirmatively held David Pfau Insurance out as having

apparent authority to act on Allstate’s behalf, or knowingly permitted David Pfau Insurance to

hold itself out as having authority, or acted with such a lack of ordinary care as to clothe David

Pfau Insurance with the indicia of authority. Allstate’s conduct caused Mr. Reininger to believe

the agent had the authority to act on Allstate’s behalf, and Mr. Reininger justifiably relied on David

Pfau Insurance’s authority.

20. At all relevant times, David Pfau Insurance was acting within the scope of its

agency and employment for Allstate when it sold Mr. Reininger his policy, made all

representations to Mr. Reininger that pertained to his policy, and issued documents to Mr.

Reininger on behalf of Allstate. This included any representations concerning the coverages and

material terms of his policy as well as documents sent to Mr. Reininger that David Pfau represented

as Mr. Reininger’s policy.

21. Any factual allegations above relating to David Pfau Insurance are imputed to

Allstate under the following causes of action:

B. Breach of Contract (Allstate Only)

22. Allstate had a contract of insurance with Plaintiff. Allstate breached the terms of

that contract by wrongfully denying and/or underpaying the claim and Plaintiff was damaged

thereby.

C. Prompt Payment of Claims Statute (Allstate Only)

23. The failure of Allstate to pay for the losses and/or to follow the statutory time

guidelines for accepting or denying coverage constitutes a violation of Article 542.051 et seq. of

the Texas Insurance Code.

252 TAB D
 24. Plaintiff, therefore, in addition to Plaintiff’s claim for damages, is entitled to 18%

interest and attorneys’ fees as set forth in Article 542.060 of the Texas Insurance Code.

D. Bad Faith/DTPA (Allstate and Phillips)

25. Defendants are required to comply with Chapter 541 of the Texas Insurance Code.

26. Defendants violated § 541.051 of the Texas Insurance Code by:

(1) making statements misrepresenting the terms and/or benefits of the policy.

27. Defendants violated § 541.060 by:

(1) misrepresenting to Plaintiff a material fact or policy provision relating to

coverage at issue;

(2) failing to attempt in good faith to effectuate a prompt, fair, and equitable

settlement of a claim with respect to which the insurer’s liability had become reasonably clear;

(3) failing to promptly provide to Plaintiff a reasonable explanation of the basis

in the policy, in relation to the facts or applicable law, for the insurer’s denial of a claim or offer

of a compromise settlement of a claim;

(4) failing within a reasonable time to affirm or deny coverage of a claim to

Plaintiff or submit a reservation of rights to Plaintiff; and

(5) refusing to pay the claim without conducting a reasonable investigation with

respect to the claim;

28. Defendants violated § 541.061 by:

(1) making an untrue statement of material fact;

(2) failing to state a material fact necessary to make other statements made not

misleading considering the circumstances under which the statements were made;

253 TAB D
 (3) making a statement in a manner that would mislead a reasonably prudent

person to a false conclusion of a material fact;

(4) making a material misstatement of law; and

(5) failing to disclose a matter required by law to be disclosed.

29. At all material times hereto, Plaintiff was a consumer who purchased insurance

products and services from Defendants.

30. Defendants have violated the Texas Deceptive Trade Practices Act in the following

respects:

(1) Defendants represented that the agreement confers or involves rights,

remedies, or obligations which it does not have, or involve, or which are prohibited by law;

(2) Allstate failed to disclose information concerning goods or services which

was known at the time of the transaction when such failure to disclose such information was

intended to induce the consumer into a transaction that the consumer would not have entered into

had the information been disclosed;

(3) Allstate, by accepting insurance premiums but refusing without a

reasonable basis to pay benefits due and owing, engaged in an unconscionable action or course of

action as prohibited by the DTPA § 17.50(a)(1)(3) in that Allstate took advantage of Plaintiff’s

lack of knowledge, ability, experience, and capacity to a grossly unfair degree, that also resulted

in a gross disparity between the consideration paid in the transaction and the value received, in

violation of Chapter 541 of the Insurance Code.

31. Defendants knowingly committed the acts complained of. As such, Plaintiff is

entitled to exemplary and/or treble damages pursuant to the DTPA and Texas Insurance Code §

541.152(a)-(b).

254 TAB D
D. Fraud (Against Allstate Only)

32. Defendant Allstate is liable to Mr. Reininger for common law fraud.

33. Allstate sold Mr. Reininger a policy and deliberately and/or willfully withheld

material terms of his policy, including the existence of a cosmetic roof surfaces endorsement.

Allstate failed to disclose this material term to Mr. Reininger at the time he purchased his policy.

More specifically, Allstate presented Mr. Reininger with an insurance bid that did not include the

existence of a cosmetic roof surfaces endorsement. Mr. Reininger relied on the insurance bid and

purchased a policy with the material terms in the bid, believe his policy did not include a cosmetic

roof surfaces endorsement. Allstate then sent him a copy of what Allstate claimed was Mr.

Reininger’s policy. The document was not, in fact, his policy nor did Allstate disclose the cosmetic

roof surfaces endorsement prior to or after Mr. Reininger purchased his policy.

34. Allstate knowingly represented to Mr. Reininger in June 2015 that his policy

included coverages and/or provisions it did not include, and intentionally sent him a document,

knowing it was not a copy of his policy. Mr. Reininger purchased his policy after relying on

Allstate’s misrepresentations and he was damaged thereby.

35. Each and every misrepresentations, as described above, concerned material facts

for the reason that absent such representations, Mr. Reininger would not have acted has he did,

which Defendant Allstate knew were false or made recklessly without any knowledge of the their

truth as a positive assertion.

36. The statements were made with the intention that they should be acted upon by

Plaintiffs, who in turn acted in reliance upon the statements, thereby causing Plaintiffs to suffer

injury, which constitutes common law fraud.

255 TAB D
 37. Allstate is liable to Mr. Reininger for damages arising out of his fraud, including

punitive damages.

E. Attorneys’ Fees

38. Plaintiff engaged the undersigned attorney to prosecute this lawsuit against

Defendants and agreed to pay reasonable attorneys’ fees and expenses through trial and any appeal.

39. Plaintiff is entitled to reasonable and necessary attorney’s fees pursuant to TEX.

CIV. PRAC. & REM. CODE §§ 38.001-38.003 because he is represented by an attorney, presented

the claim to Defendants, and Defendants did not tender the just amount owed before the expiration

of the 30th day after the claim was presented.

40. Plaintiff further prays that he be awarded all reasonable attorneys’ fees incurred in

prosecuting his causes of action through trial and any appeal pursuant to Sections 541.152 542.060

of the Texas Insurance Code.

VII.
CONDITIONS PRECEDENT

41. All conditions precedent to Plaintiff’s right to recover have been fully performed,

or have been waived by Defendants.

VIII.
PRAYER

WHEREFORE, PREMISES CONSIDERED, Peter Reininger prays that, upon final

hearing of the case, he recover all damages from and against Defendants that may reasonably be

established by a preponderance of the evidence, and that Mr. Reininger be awarded attorneys’ fees

through trial and appeal, costs of court, pre-judgment interest, post-judgment interest, and such

other and further relief, general or special, at law or in equity, to which Mr. Reininger may show

himself to be justly entitled.

256 TAB D
 Respectfully submitted,

DALY & BLACK, P.C.

By: /s/ David L. Bergen

Richard D. Daly
SBN: 00796429
rdaly@dalyblack.com
David L. Bergen
SBN: 24072496
dbergen@dalyblack.com
ecfs@dalyblack.com

Daly & Black, P.C.

2211 Norfolk St., Suite 800
Houston, Texas 77098
713.655.1405—Telephone
713.655.1587—Fax

ATTORNEY FOR PLAINTIFF

PETER REININGER

CERTIFICATE OF SERVICE

I certify that on August 30, 2018, a true and correct copy of the foregoing was electronically

served on all counsel of record in accordance with the Texas Rules of Civil Procedure.

Robert E. Valdez
Adan A. Gonzalez, III
VALDEZ & TREVINO, ATTORNEYS AT LAW, P.C.
8023 Vantage Dr., Suite 700
San Antonio, Texas 78230
(210) 598-8686
(210) 598-8797 Fax
revaldez@vjtlawfirm.com
agonzalez@valdeztrevino.com

ATTORNEYS FOR DEFENDANTS

ALLSTATE VEHICLE AND PROPERTY
INSURANCE COMPANY AND KEVIN PHILLIPS

/s/ David L. Bergen

David L. Bergen

10

257 TAB D
FILED
9/4/2018 5:17 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Priscilla Garza

CAUSE NO. 2016-CI-21617

PETER REININGER § IN THE DISTRICT COURT OF

§
Plaintiff, §
§
vs. §
§ BEXAR COUNTY, TEXAS
ALLSTATE VEHICLE AND §
PROPERTY INSURANCE §
COMPANY AND KEVIN PHILLIPS §
§
Defendants. § 225TH JUDICIAL DISTRICT

PLAINTIFF’S JURY DEMAND

TO THE PRESIDING JUDGE:

Plaintiff, Peter Reininger, files this Jury Demand pursuant to Rule 216 of the Texas Rules

of Civil Procedure and encloses herewith the required jury fee of $40.00.

Respectfully submitted,

DALY & BLACK, P.C.

By: /s/ David L. Bergen

Richard D. Daly
State Bar No. 00796429
rdaly@dalyblack.com
David L. Bergen
State Bar No. 24072496
dbergen@dalyblack.com

DALY & BLACK, P.C.

2211 Norfolk St., Suite 800
Houston, Texas 77098
713.655.1405—Telephone
713.655.1587—Fax
ecfs@dalyblack.com (service)

ATTORNEYS FOR PLAINTIFF

PETER REININGER

1
258 TAB D
 CERTIFICATE OF SERVICE

I certify that on September 4, 2018, a true and correct copy of the foregoing was
electronically served on all counsel of record in accordance with the Texas Rules of Civil
Procedure.

Robert E. Valdez
Adan A. Gonzalez, III
VALDEZ & TREVINO, ATTORNEYS AT LAW, P.C.
8023 Vantage Dr., Suite 700
San Antonio, Texas 78230
(210) 598-8686
(210) 598-8797 Fax
revaldez@vjtlawfirm.com
agonzalez@valdeztrevino.com

ATTORNEYS FOR DEFENDANTS

ALLSTATE VEHICLE AND PROPERTY
INSURANCE COMPANY AND KEVIN PHILLIPS

/s/ David L. Bergen

David L. Bergen

2
259 TAB D
 ~ Allstate,, You're in good hands.

Information as of June 29, 2015

David Pfau & Assoc Policyholder(s) Page 1 of 2
17230 Bulverde #102
San Antanio TX 78247 Peter and Nancy Reininger
• Policy number
I836 419 523 I
Your Allstate agency is
David Pfau & Ass~
(210) 538-6664
1111II11111111,1111, I11IIIII11111 1I111 111 11II•, 1, 11, ,1 •111111 •11I
AOA6912@allstate.com
PETER AND NANCY REININGER
3 STONELEIGH WAY
SAN ANTONIO TX 78218-1718

Thanks for Choosing Allstate-We're Happy to Have You with Us!

Here's your insurance policy
We're happy you're extending your relationship with us. We truly value and appreciate your business.
Along with your new House & Home policy, we've included a guide to what's in this package and answers to
some common questions.

You qualify for a Multiple Policy Discount!

We're happy to pass along the great news that you now qualify for our Multiple Policy Discount. Keep in mind
that each time you purchase an additional Allstate policy, your discount could get even bigger! Besides the
savings; you're also enjoying the convenience of working with the same, experienced team cin all of your Allstate
policies.

How to contact us
Please give your Allstate Agent a call at (210) 538-6664 if you have any questions. It's our job to make sure
you're in good hands.

Sincerely,

Steven P. Sorenson
President, Allstate Vehicle and Property Insurance Company
NP209

PLAINTIFF'S
EXHIBIT
I

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TAB E
 Policy number: I836 419 523! Page 2of2
Policy effective date: July2,2015
Your Allstate agency is David Pfau & Assoc
(210) 538-6664

Your Insurance Coverage Checklist

We're happy to have you as an Allstate customer! This checklist outlines what's in this package and provides answers to some
basic questions, as well as any "next steps" you may need to take.

D What's in this package? D What about my bill?

See the guide below for the documents that are included.
Next steps: review your Policy Declarations to confirm you
have the coverages, coverage limits, premiums and
savings that you requested and expected. Read any
Endorsements or Important Notices to learn about new
policy changes, topics of special interest, as well as
required communications. Keep all of these documents
with your other important insurance papers.
Unless you've already paid your premium in full, we'll send
your bill separately. Next steps: please pay the minimum
amount by the due date listed on It.
You can also pay your bill on line at allstate.com or by
calling 1-800-ALLSTATE (1-800-255-7828). Para
espaiiol, llamar al 1-800-979-4285. If you're enrolled In
the Allstate® Easy Pay Plan, we'll send you a statement
detailing your payment withdrawal schedule.

D Am I getting all the discounts I should? D What if I have questions?

Confirm with your Allstate Agent that you're benefiting
from all the discounts you're eligible to receive.
You can either contact your Allstate Agent or call us 24/7
at 1-800-ALLSTATE (1·800·255•7828) - para espaiiol,
llamar al 1-800-979-4285 - with questions about your
coverage, or to update your coverages, limits, or
deductibles. Or visit us onllne at allstate.com.

A guide to your welcome package

0,QJ!!!IL

•
HomtOWnt,S
Polley

Polley Policy Polley Important Insurance Made

Declarations Your policy is Endorsements Notices Simple
The Policy your insurance If we make any We use these Insurance seem
Declarations contract; it lists changes to your notices to call complicated?
lists policy all of the terms policy, these attention to Ouronllne
details, such as and conditions of documents will particularly guides explain
your property your coverage. include your new important coverage terms
details and contract coverages, policy and features:
coverages. language. changes and www.aHstate.com/
discounts. madesimple
Esganol.aHstate com
/facUdeentender

(_)
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 ~ Allstate®
House & Home Policy Declarations
Your policy effective date is July 2, 2015 You're in good hands.

Page1 of4

Total Premium for the Policy Period Information as of June 29, 2015

_Pr_e_m_iu_m_fo_r_p_ro_p_ert_y_in_su_r_ed_ _ _ _ _ _ _ _ _ _ _ _ _ _ _$_1,_0_05_._51 Summary

Recoupment Fee Volunteer Rural Fire Department Assistance 0.63 Named lnsured(s)
Program Peter and Nancy Reininger
[ Total $1,006.14] Mailing address
• - - - - - - - - - - - - - - - - - - - - - - - • 3StoneleighWay
San Antonio TX 78218·1718
Polic number
836419523
Discounts (included in your total premium)
Your policy provided by
Protective Device $9.21 Multiple Policy $203.40
Allstate Vehicle and Property
Claim Free $146,35 Allstate Easy Pay Plan $36.92 Insurance Company
Early Signing $14.28 Responsible Payment $112A3 Policy period
Smoke-Free $28.61 Welcome $86,73 Beginning July 2, 2015 through July 2,
( Total discount savings $637.93) 2016 at 12:01 a.m. standard time
Your Allstate agency is
David Pfau & Assoc
17230 Bulverde #102
Insured property details* San Antonio TX 78247
Please review and verify the information regarding your insured property. Please
refer to the Estimated Home Replacement Cost Important Notice (X73182) for
additional coverage information. Contact us if you have any changes.
(210) 538-6664
AOA6912@allstate.com ()
Some or all of the information on your
Location of property insured: 3 Stoneleigh Way, San Antonio, TX 78218-1718 PoDcy Dedaratlons is used in the rating
Dwelling Style: of your policy or It could affed your
Built in 1998; 1family; 2892 sq. ft; 1 story eligibility for certain coverages. Please
notify us immediately If you believe
Foundation: that any Information on your Polley
100%Slab Dedarations is Incorrect. We will make
Attached structures: corredions once you have notified us,
One 2-car attached garage Open porch, 485 sq. ft. and any resulting rate adjustments, will
be made only for the current poDcy
Interior details:
period or for future policy periods.
One semi-custom kitchen One semi-custom half bath
Please also notify us Immediately If you
Two semi-custom full baths One single fireplace
believe any coverages are not listed or
Exterior wall type: are inaccurately listed.
100% stucco on frame
Interior wall partition:
1000/4 drywall
Heating and cooling:
Average cost heat & central air
conditioning, 100%
Q
(continued)
"'
I
(~)
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 House & Home Policy Declarations Page 2 of 4
Policy number: !836 419 523 I
Policy effective date: July2,2015
Your Allstate agency is David Pfau & Assoc
(210) 538-6664

lnsind property details* (continued)

Additional details:
Interior wall height • less than 10 ft,
100%
Fire protection details:
Fire department subscription - no 1 mile to fire department
Roof surface material type:
Metal
•100% steel

(Roof details: l
)Predominant roof type: Metal Age of roof - 3 years i
)Roof geometry - Hip l
!Metal RoofSurfaces Cosmetic Damage Exclusion: 1
\Your policy does not provide coverage for cosmetic damage (damage that only changes \
.........................................................................................................................................................l
\the appearance of your roof) caused by hail to a metal roof surface.

Mortgagee • None
Additional Interested Party • None
*This is a partial list of property details. If the interior of your property includes custom
construction, finishes, buildup, specialties or systems, please contact your Allstate
representative for a complete description of additional property details.

Coverage detail for the property insured

Coverage Umits of Uablllty Applicable Deductible(s)
Dwelling Protection $370,000 • $3,700 Windstorm and Hail
• $3,700 All other perils
Other Structures Protection $37,000 • $3,700 Windstorm and Hail
• $3,700 All other perils
Personal Property Protection $277,500 • $3,700 Windstorm and Hail
• $3,700 All other perils
Additional Living Expense Up to 12 months not to exceed $92,500
Family Liability Protection $300,000 each occurrence
Guest Medical Protection $1,000 each person
Foundation Water Damage $5,000
Additional Fire Department Charges Not purchased*
Building Codes Not purchased*
Building Materials Theft Not purchased*

(continued)

L Reininger 0242

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House & Home Policy Declarations ()
Policy number:
Policy effective date:
I
836 419 523
July 2, 2015
I ~Allstate® You're in good hands.
Your Allstate agency is David Pfau & Assoc
(210) 538-6664
Page3 of4

Coverage Limits of UabiHty Applicable Deductible(s)

Building Structure Reimbursement 20% above dwelling protection
Extended Limits
Country Endorsement Not Purchased
Dwelling in the Course of Construction Not purchased*
Electronic Data Recovery Not purchased*
Extended Coverage on Cameras Not purchased*
Extended Coverage on Jewelry, Not purchased*
Watches and Furs
Extended Coverage on Musical Not purchased*
Instruments
Extended Coverage on Sports Not purchased*
Equipment
Fair Rental Income Not purchased*
Golf Cart Not purchased*
Green Improvement Not purchased*
Home Day Care Not purchased*
Identity Theft Expenses Not purchased*
Increased Coverage on Business
Property
Not purchased*
-)
Increased Coverage on Theft of Not purchased*
Silverware
Loss Assessments Not purchased*
Residence Glass Not purchased*
Roof Surfaces Extended Coverage Included
Secondary Residence Not purchased*
Water Back-Up $5,000 • $500 Water Back-Up
Yard and Garden Not purchased*

* This coverage con provide you with valuable protection. To help you stay current with
your Insurance needs, contact your agent to discuss available coverage options and
other products and services that can help protect you.

Scheduled Personal Property Coverage

Your policy does not Include Scheduled Personal Property Coverage. This coverage can provide you with valuable protection. To
help you stay current with your insurance needs, contact your agent to discuss available coverage options and other products and
servkes that can help prated you.

(J
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 House & Home Policy Declarations Page 4 of 4
Policy number: 1836 419 523 I
Policy effective date: July 2, 2015
Your Allstate agency is David Pfau & Assoc
(210) 538-6664

Your policy documents

Your House & Home policy consists of the Policy Declarations, any Policy Declarations Addendum, and the following
documents. Please keep them together.
• AVPIC House & Home Policy - AVP91 • Water Back-Up Endorsement - AVP98
• Building Structure Reimbursement Extended Limits 120% • Roof Surfaces Extended Coverage Endorsement-AVP144-1
Endorsement -AVP142
• Windstorm and Hail Deductible Endorsement - AVP82 • Metal Roof Surfaces Cosmetic Damage Exclusion
Endorsement - AVP166-1

Important payment and coverage information

Here is some additional, helpful information related to your coverage and paying your bill:
► The Property Insurance Adjustment condition applies.

► Please note: This is not a request for payment. Any adjustments to your premium will be reflected on your next scheduled
bill which will be mailed separately.

Allstate Vehicle and Property Insurance Company's Secretary and President have signed this policy with legal authority at

CJ Northbrook, Illinois.

Steven P. Sorenson Susan L. Lees

President Secretary

( .
10
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(~\
' }
Page 1 ofl
Policy Endorsement
Policy number:!,..8_3_6_4-19_5_2"""3!
Policy effective date: July 2, 2015
Your Allstate agency is David Pfau & Assoc
(210) 538-6664

The following endorsement changes your policy.

Please read this document carefully and keep it with
your policy.
Metal Roof Surfaces Cosmetic Damage
Exclusion Endorsement - AVP166-1
In Section I-Your Property, under Losses We Do Not Cover
Under Coverages A, Band C, the following item is added to
paragraph D:

Cosmetic damage caused by hail to a metal roof surface,

including but not limited to, indentations, dents,
distortions, scratches, or marks, that change the
appearance of a metal roof surface.

We will not apply this exclusion to sudden and accidental

direct physical damage to a metal roofsurface caused
by hail that results in water leaking through the metal
roof surface.

All other policy terms and conditions apply.

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TAB F