The insurer's right to compel an appraisal under the policy was addressed in In Re Capitol County Mut. Fire Ins. Co., 2010 Tex. App. LEXIS 3060 (Tex. Ct. App. April 27, 2010).

   Following Hurricane Ike, the insured submitted a claim for damage to her home to the insurer, Capitol County.  After determining the amount of loss, Capitol County made payment to the insured.  Several months later, the insured sued, asserting breach of contract and violations of the Texas Insurance Code.  Capitol County then invoked the policy's appraisal provision for resolving disputes over amount of loss.  The insured argued Capitol County waived its right to invoke appraisal. 

   Given the huge back load of Hurricane Ike cases, a Standing Order had been issued by the trial court, requiring that within 100 days of the insurer's appearance, the parties agree on a mediator and make a good faith exchange of information and documentation.  The trial court also entered an Appraisal Order, stating that before a motion to compel appraisal was set for hearing, the parties had to complete informal discovery and mediation pursuant to the Standing Order.  Capitol County did not move to set aside the Appraisal Order, but instead filed a petition for writ of mandamus in the appellate court, asking for an order compelling the trial court to vacate the Appraisal Order.  Capitol County argued that the Appraisal Order effectively rewrote the appraisal provision of the policy to require discovery and mediation as a condition precedent to appraisal.

   The appellate court denied relief.  Capitol County had never voiced any objection to the Appraisal Order before the trial court.  Had it done so, the trial court could have modified the Appraisal Order, if necessary.