United States District Court, E.D. Texas, Sherman Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
L. MAZZANT UNITED STATES DISTRICT JUDGE
for consideration the report of the United States Magistrate
Judge in this action, this matter having been heretofore
referred to the Magistrate Judge pursuant to 28 U.S.C. §
636.On August 11, 2017, the report of the Magistrate Judge
(Dkt. #57) was entered containing proposed findings of fact
and recommendations that Defendant Allstate Vehicle and
Property Insurance Company's Motion for Summary Judgment
(Dkt. #38) be denied. Having received the report of the
Magistrate Judge (Dkt. #57), having considered each of
Defendant's timely filed objections (Dkt. #58), having
considered Plaintiff's response (Dkt. #59), and having
conducted a de novo review, the Court is of the opinion that
the findings and conclusions of the Magistrate Judge are
correct, and the Court hereby adopts the Magistrate
Judge's report (Dkt. #57) as the findings and conclusions
of the Court.
is the owner of a Texas Homeowner's Insurance Policy (the
“Policy”) issued by Defendant, for the period
beginning March 13, 2016, to March 13, 2017 (Dkt. #38 at 2).
On or about April 11, 2016, Plaintiff's home, located at
4128 Kentshire Lane, Dallas, Texas 75287 (the
“Property”), was damaged by a wind and hail
storm, and Plaintiff submitted a claim for the resulting
damage. Id. Plaintiff asserted Defendant grossly
underestimated the damage to the Property; thus, on November
17, 2016, Plaintiff Stephen Presswood filed the present suit,
asserting claims against Defendant for breach of contract and
violations of the Texas Insurance Code and Deceptive Trade
Practices Act (Dkt. #6).
1, 2017, Defendant filed a Motion for Summary Judgment (Dkt.
#38). Defendant's primary argument is that
Plaintiff's suit is not yet ripe because of
Plaintiff's failure to comply with the Policy's
express requirement to submit a sworn proof of loss
(“POL”) ninety-one days before filing suit
against Defendant. Id. Both parties agree Plaintiff
failed to submit a sworn POL before filing suit. Plaintiff
filed a Response on July 13, 2017 (Dkt. #53), after Plaintiff
was granted an extension. On July 31, 2017, Defendant filed a
Reply (Dkt. #56), after Defendant was granted an extension.
who files timely written objections to a magistrate
judge's report and recommendation is entitled to a de
novo determination of those findings or recommendations to
which the party specifically objects. 28 U.S.C. §
636(b)(1)(c); Fed.R.Civ.P. 72(b)(2)-(3). Defendant objects
that the Magistrate Judge erred for the following reasons:
(1) Defendant is entitled to summary judgment because the
“Action Against Us” clause in the Policy
precludes Plaintiff's suit under the insurance contract;
and (2) Defendant is entitled to summary judgment on the
extra-contractual claims (Dkt. #58). Plaintiff filed a
response to Defendant's objections (Dkt. #59).
1: Contract Claim
asserts essentially the same arguments in its motion (Dkt.
#38) and reply (Dkt. #56). Defendant argues the Court should
enforce the “Action Against Us” clause in the
Policy as written, which requires Plaintiff to submit a sworn
POL before filing suit (Dkt. 58 at 2-6). The Magistrate Judge
found “Defendant has received what would likely be a
substantially compliant POL in the form of Plaintiff's
civil complaint, ” and ultimately concluded Defendant
is unable to show prejudice as required under Texas law (Dkt.
#57 at 7).
Defendant argues Plaintiff's complaint is inadequate to
comply with the POL requirement because it is an unsworn
document and Plaintiff's non-compliance with the
“Action Against Us” clause fails to aid the
resolution of the claim pre-suit (Dkt. #58 at 3-4). Second,
Defendant argues it is not required to show prejudice.
Id. at 4. Finally, Defendant argues that,
nonetheless, it showed Plaintiff's failure to comply with
the clause caused Defendant actual prejudice. Id. at
4-6. The Court has previously rejected these arguments
multiple times. Wilson v. Allstate Ins. Co., 2017 WL
1313854 (E.D. Tex. Apr. 10, 2017); Lopez v. Allstate
Vehicle & Prop. Ins. Co., 2017 WL 1294453 (E.D. Tex.
Apr. 4, 2017); Polen v. Allstate Vehicle & Prop. Ins.
Co., 2017 WL 661836 (E.D. Tex. Feb. 17, 2017). Thus,
these objections are overruled.
2: Extra-Contractual Claims
Defendant argues Plaintiff's statutory bad faith claim
fails because a finding of breach of contract is a
prerequisite to extra-contractual liability (Dkt. #58 at
6-7). The report found there is a genuine issue of material
fact as to whether Defendant breached the insurance
agreement; thus, this argument fails.
Defendant argues Plaintiff failed to show Defendant's
alleged statutory violation or bad faith caused an injury
that is independent from the loss of benefits under the
insurance policy. Id. at 6-8. Defendant presents no
new arguments distinct from the ones made in its motion ...