United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION GRANTING AUTO CLUB'S
MOTION FOR PARTIAL SUMMARY JUDGMENT
Rosenthal Chief United States District Judge
case arises from a dispute over flood-insurance payments for
damage during the Memorial Day Storm in May 2015. Ali
Ekhlassi held two insurance policies: a Texas Homeowners
Deluxe Policy issued by the Auto Club Indemnity Company and a
flood-insurance policy with National Lloyds Insurance
Company, underwritten by the Federal Emergency Management
Agency. (Docket Entry Nos. 16-2, 16-3). Auto Club moves for
partial summary judgment on Ekhlassi's claims, on the
ground that the policy explicitly excluded flood damage from
coverage. (Docket Entry No. 16). Ekhlassi did not respond to
Auto Club's motion.
on the motion, the record evidence, and the applicable law,
Auto Club's motion for partial summary judgment is
granted and Eklassi's claims against Auto Club are
dismissed, with prejudice. The reasons are stated below.
relevant facts are undisputed. Between May 23 to 25, 2015, a
severe storm caused heavy flooding in Houston. Ekhlassi
suffered significant damage to his home when five to six feet
of floodwater filled his unfinished basement garage for two
days. Ekhlassi alleges a loss amount of $258, 437.29 for the
flood-related damage. (Docket Entry No. 16-6 at 4). Ekhlassi
had coverage under both the Homeowners policy from Auto Club
and the flood-insurance policy from National Lloyds before
and during the storm. The Auto Club policy is a “named
peril policy, ” covering only specifically listed
categories of losses. (Docket Entry No. 16-10 at 2).
filed a claim with National Lloyds for the policy limit of
$250, 000 and an additional claim with Auto Club under his
Homeowners Policy. (Docket Entry Nos. 16-5, 16-10 at 2). Auto
Club's adjuster, Mike Hendricks, and engineer, Darin
Lasater, inspected Ekhlassi's home and determined that
all of the alleged damage was flood-related. (Docket Entry
No. 16-4). Based on that determination, Auto Club denied
Ekhlassi's claim because flood damage was not a named
peril under his policy. (Docket Entry No. 16-4 at 2). Indeed,
the policy specifically excluded water damage from coverage.
(Docket Entry No. 16-12).
submitted proof of damage and losses to an elevator cab, to
the flooring in the basement and kitchen, and to kitchen
cabinets. (Docket Entry Nos. 16-6-16-9). It is undisputed
that the floodwater caused the damage to the elevator and
basement floor. It is also undisputed that the kitchen
cabinets were not damaged during the flood. They were removed
and replaced to address potential damage to any wood flooring
extending underneath the cabinets. But it is also undisputed
that the wood floor did not extend underneath the cabinets.
Instead, the wood floor stopped in front of the cabinets.
sued National Lloyds and Auto Club, alleging breach of
contract, violation of Chapters 541 and 542 of the Texas
Insurance Code, and violations of the Deceptive Trade
Practices Act. Tex. Ins. Code § 541.060, 542.055-60;
Tex. Bus. Com. Code § 17.46. Because Ekhlassi did not
respond to Auto Club's motion, the summary judgment
record consists only of Auto Club's submissions. That
evidence includes: Auto Club's Texas Homeowners Deluxe
Policy; National Lloyds Insurance Company's floor policy;
an affidavit from Auto Club's engineer, Darin Lasater;
Ekhlassi's proof of loss submitted to National Lloyds;
Ekhlassi's Rule 26(a) initial disclosures, including
estimates for repairing the damaged elevator and floors, and
for removing and replacing the kitchen cabinets; photographs
of the damage; a settlement letter from Auto Club to
Ekhlassi; settlement documents and a check from National
Lloyds to Ekhlassi; affidavits from Randall Taylor, Auto
Club's expert adjuster, and Claudia Lezell, Auto
Club's flooring expert; and reports from Cory Walker,
National Lloyds' engineer, and Peter de la Mora,
summary judgment record is analyzed under the applicable
The Legal Standard
The Summary Judgment Standard
judgment is required when ‘the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.'”
Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015)
(quoting Fed.R.Civ.P. 56(a)). “A genuine dispute of
material fact exists when the ‘evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.'” Nola Spice Designs, LLC v. Haydel
Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)
(quoting Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986)). “The moving party ‘bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.'” Id.
(quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694
(5th Cir. 2014)); see also Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
burden of proof at trial lies with the nonmoving party, the
movant may satisfy its initial burden by showing an absence
of evidence to support the nonmoving party's case.
Fret v. Melton Truck Lines, Inc., No. 17-50031, 2017
U.S. App. LEXIS 16912, at *5-6 (5th Cir. Sept. 1, 2017)
(quoting Lindsey v. Sears Roebuck & Co., 16 F.3d
616, 618 (5th Cir. 1994)). While the party moving for summary
judgment must demonstrate the absence of a genuine issue of
material fact, it does not need to negate the elements of the
nonmovant's case. Coastal Agric. Supply, Inc. v. JP
Morgan Chase Bank, N.A., 759 F.3d 498, 505 (5th Cir.
2014) (citing Boudreaux v. Swift Transp. Co., 402
F.3d 536, 540 (5th Cir. 2005)). A fact is material if
“its resolution could affect the outcome of the
actions.” Aly v. City of Lake Jackson, 605
Fed. App'x 260, 262 (5th Cir. 2015) (citing Burrell
v. Dr. Pepper/Seven UP Bottling Grp., Inc., 482 F.3d
408, 411 (5th Cir. 2007)). “If the moving party fails
to meet [its] initial burden, the motion [for summary
judgment] must be denied, regardless of the nonmovant's
response.” Pioneer Exploration, LLC v. Steadfast
Ins. Co., 767 F.3d 503 (5th Cir. 2014).
the moving party has met its Rule 56(c) burden, the nonmoving
party cannot survive a summary judgment motion by resting on
the mere allegations of its pleadings.” Bailey v.
E. Baton Rouge Parish Prison, 663 Fed. App'x 328,
331 (5th Cir. 2016) (quoting Duffie v. United
States, 600 F.3d 362, 371 (5th Cir. 2010)). The
nonmovant must identify specific evidence in the record and
articulate how that evidence supports that party's claim.
Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir.
2014). “This burden will not be satisfied by
‘some metaphysical doubt as to the material facts, by
conclusory allegations, by unsubstantiated assertions, or by
only a scintilla of evidence.'” Jurach v.
Safety Vision, LLC, 642 Fed. App'x 313, 317 (5th
Cir. 2016) (quoting Boudreaux, 402 F.3d 536, ...