Debora Caddell's (Caddell) roof was damaged by hail in April 2002. On July 19, 2002, Caddell used a toll-free number provided by Travelers Lloyds of Texas Insurance Company (Travelers) to make a claim for damages. She also claimed that leakage from the damaged roof caused other damage, including growth of mold in the house. Caddell never filed a written notice of loss. Travelers responded to the telephone claim by sending an inspector to the residence. Both parties agreed that they failed to properly communicate with one another after that. For example, Travelers sent Caddell a letter indicating it would be sending her a check for $3,057.64 and that she should contact them if she did not receive it. Caddell acknowledged that she received the letter but she never received the check and neither party ever followed up on the matter. Traveler's homeowner's policy coverage terminated on July 19, 2002.

Caddell sued Travelers on July 13, 2004, joined by her parents who resided in the home with her. She maintained that the unrepaired leaky roof caused growth of dangerous mold throughout the house and its presence caused health problems and emotional trauma to both her and her parents. She also maintained that Travelers acted in bad faith. On May 27, 2005, Travelers filed a traditional motion for summary judgment, alleging that Caddell failed to mitigate damages and failed to cooperate in the loss investigation and to repair damages. It also alleged that she failed to comply with policy provisions, that some of the damages claimed occurred after the policy termination date and that the claim included uninsured losses. Travelers' primary arguments were that Caddell failed to comply with the contractual obligation to provide prompt written notice of loss and violated her duty to mitigate damages.

The trial court granted a take-nothing summary judgment in favor of Travelers on all of Caddell's claims but allowed her to request issuance of the check for $3,057.64. Caddell appealed, stating that she was not aware of the hail damage until July 2002. In addition, she cited another court case as authority that, while she failed to comply with the written notice provision clearly outlined in the policy, failure to do so was not an irreversible error unless Travelers was unduly prejudiced or biased.

The appellate court ruled that the cited case Caddell referred to did not apply to this case because it involved liability insurance. It found that Caddell failed to comply with the contractual provision to file a written proof of loss and that doing so was a condition precedent to coverage under the policy. It affirmed the judgment of the trial court that properly found that Caddell failed to comply with the requirement of filing a written proof of loss and that such filing was a condition precedent to coverage under the policy.

The fact that Travelers provided a toll-free telephone number and that it responded to Caddell's call could have been a waiver under the policy. Travelers may not have been able to deny that its actions in responding to the call precluded it from raising the defense at trial. Since neither waiver nor estoppel was pled nor pursued, and since Caddell did not raise these issues, neither court explored what the outcome might have been if she had. The issue of mitigation of damages was also not addressed. Travelers was not liable due to the violation of a condition precedent to coverage and neither the amount of the damages sustained nor the question of whether the damages could have been mitigated was pertinent.

Debora Caddell, Appellant v. Travelers Lloyds of Texas Insurance Company, Appellee.
No. 06-06-00063-CV. S.W. 3d, 2007 WL 1574244 (Tex.App.-Texarkana)