United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Allstate's Motion for
Summary Judgment (Dkt. #22). After reviewing the relevant
pleadings and motion, the Court finds Defendant's motion
should be granted.
case arises from Defendant's denial of Plaintiffs Jon and
Leslie Young's claim for water loss damage. Plaintiffs
obtained an insurance policy (the “Policy”) from
Defendant, effective from July 22, 2015, through July 22,
2016. On June 20, 2016, after suffering a water loss,
Plaintiffs filed a claim under the Policy with Defendant.
Subsequently, Defendant denied the claim. As a result,
Plaintiffs filed suit against Defendant asserting claims for
breach of contract, breach of duty of good faith and fair
dealing, violations of the Texas Deceptive Trade Practices
Act (“DTPA”), and violations of the Texas
Insurance Code (Dkt. #13).
August 18, 2017, Defendant filed its Motion for Summary
Judgment (Dkt. #22). On September 11, 2017, Plaintiffs filed
their response (Dkt. #23). Defendant filed Objections to
Plaintiffs' Evidence in Support of Summary Judgment (Dkt.
#24) and its reply (Dkt. #25) on September 18, 2017.
purpose of summary judgment is to isolate and dispose of
factually unsupported claims or defenses. Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986). Summary
judgment is proper under Rule 56(a) of the Federal Rules of
Civil Procedure “if 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.” Fed.R.Civ.P.
56(a). A dispute about a material fact is genuine when
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986).
Substantive law identifies which facts are material.
Id. The trial court “must resolve all
reasonable doubts in favor of the party opposing the motion
for summary judgment.” Casey Enters., Inc. v. Am.
Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir.
party seeking summary judgment bears the initial burden of
informing the court of its motion and identifying
“depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials”
that demonstrate the absence of a genuine issue of material
fact. Fed.R.Civ.P. 56(c)(1)(A); Celotex, 477 U.S. at
323. If the movant bears the burden of proof on a claim or
defense for which it is moving for summary judgment, it must
come forward with evidence that establishes “beyond
peradventure all of the essential elements of the
claim or defense.” Fontenot v. Upjohn Co., 780
F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant bears
the burden of proof, the movant may discharge the burden by
showing that there is an absence of evidence to support the
nonmovant's case. Celotex, 477 U.S. at 325;
Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424
(5th Cir. 2000). Once the movant has carried its burden, the
nonmovant must “respond to the motion for summary
judgment by setting forth particular facts indicating there
is a genuine issue for trial.” Byers, 209 F.3d
at 424 (citing Anderson, 477 U.S. at 248-49). A
nonmovant must present affirmative evidence to defeat a
properly supported motion for summary judgment.
Anderson, 477 U.S. at 257. Mere denials of material
facts, unsworn allegations, or arguments and assertions in
briefs or legal memoranda will not suffice to carry this
burden. Rather, the Court requires “significant
probative evidence” from the nonmovant to dismiss a
request for summary judgment. In re Mun. Bond Reporting
Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982)
(quoting Ferguson v. Nat'l Broad. Co., 584 F.2d
111, 114 (5th Cir. 1978)). The Court must consider all of the
evidence but “refrain from making any credibility
determinations or weighing the evidence.” Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.
argues Plaintiffs provided no, or in the alternative
insufficient, evidence on all of their claims against
Defendant. As such, the Court addresses each claim in turn.
Breach of Contract
makes three arguments for why Plaintiffs' breach of
contract claim fails. Specifically, Defendant avers that (1)
there is no evidence of a covered claim; (2) if the claim is
covered, there is no, or insufficient, evidence that
Defendant breached the insurance agreement; and (3) there is
no, or insufficient, evidence to establish Plaintiffs'
damages with reasonable certainty. Plaintiff responds by
stating that their expert, Sam Rogers (“Rogers”),
establishes that (1) this claim is covered under the Policy;
(2) Defendant breached the insurance agreement; and (3) the
amount of damages is reasonably certain.
Texas law, a plaintiff alleging a breach of contract must
show ‘(1) the existence of a valid contract; (2)
performance or tendered performance by the plaintiff; (3)
breach of the contract by the defendant; and (4) damages to
the plaintiff resulting from that breach.'”
Villarreal v. Wells Fargo Bank, N.A., 814
F.3d 763, 767 (5th Cir. 2016) (quoting Wright v.
Christian & Smith, 950 S.W.2d 411, 412 (Tex.
App.-Houston [1st Dist.] 1997, no writ)). Further, “for
an insurance company to be liable for a breach of its duty to
satisfy a claim presented by its insured, the insured must
prove that its claim falls within the insuring agreement of
the policy.” Crose v. Humana Ins. Co., 823
F.3d 344, 348 (5th Cir. 2016) (citing Data Specialties,
Inc. v. Transcont'l Ins. Co., 125 F.3d 909, 911 (5th
the Policy covered “sudden and accidental” losses
that occurred between July 22, 2015, and July 22, 2016 (Dkt.
#22, Exhibit 1 at p. 36). The Policy defines “sudden
and accidental” as “damage which occurs abruptly
and is unexpected and/or unintended from the standpoint of
you.” (Dkt. #22, Exhibit 1 at p. 31)
(emphasis in original). Defendant argues Plaintiffs'
claim is not covered under the Policy because “the loss
was not [the] result of a sudden leak” but
“rather [occurred] over an extended period of
time.” (Dkt. #22, Exhibit 2 at p. 2). Conversely,
Rogers, after locating the source of the water to be a broken
drain pipe located behind the kitchen cabinets, opined that
“the water damage was the result of an accidental and
sudden occurrence” and “was not the result of
negligence or long-term damage or long-term seepage.”
(Dkt. #23, Exhibit 3 at p. 2). Defendant objects to
Rogers's statement arguing it is conclusory and
inadmissible summary judgment evidence. Specifically,
Defendant avers ...