COURT OF APPEALS FINDS FENCE IS NOT A STRUCTURE ATTACHED TO THE DWELLING

Last Tuesday, the Houston Fourteenth Court of Appeals affirmed summary judgment in favor of an insurer after finding a damaged fence on the insured property was an "other structure" covered by a lower policy limit and not a part of the dwelling.  In Nassar v. Liberty Mutual Fire Insurance Company, the insured's fence sustained $58,000 in damage as a result of Hurricane Ike.  But, because the insurer found the fence was not part of the dwelling, it only qualified for coverage as an "other structure" which was limited to 10% of the dwelling limit or $24,720 as paid.  The insured filed suit and the trial court agreed with the insurer's policy interpretation and granted summary judgment in their favor.  The insured appealed.

On appeal, the court of appeals determined the policy language was unambiguous and the insured's proposed interpretation of the policy language claiming the fence is part of the structure would render meaningless the subsection which "includes structures connected to the dwelling only by a fence."  Further, the court affirmed summary judgment on the extra-contractual claims finding no breach of contract, no extreme conduct that could support a bad faith claim without a breach of contract, and that "there is no general fiduciary duty between an insurer and its insured."   Lastly, the court rejected the insured's arguments disputing an appraisal award based in part on a waiver theory and affirmed summary judgment in favor of the insurer.