United States District Court, S.D. Texas, Galveston Division
OPINION AND ORDER
C. Hanks Jr. United States District Judge.
before the Court is the motion by Defendants Aftermath Public
Adjusters, Inc. and Michael Bacigalupo
(“Defendants”) for summary judgment. Dkt. 17. On
September 18, 2017, the Court held a hearing on this motion.
After careful consideration of the motion, pleadings, and
arguments of the parties, for the reasons stated on the
record at the hearing and below, the Court
GRANTS the motion.
case arises from the failure of an insured to timely file
supporting documents for a claim. Plaintiff Gracie Reese
(“Reese”) purchased a standard flood insurance
policy issued by Fidelity National Property and Casualty
Company (“Fidelity”) for her property located in
Galveston, Texas. The property was damaged by flooding during
Hurricane Ike. Following the storm, Reese hired Defendants to
timely file a claim, which included the submission of proof
of loss, on her behalf with Fidelity for payment under her
August 11, 2009, Fidelity notified Reese, in writing, of the
denial of her claim because no proof of loss had been
submitted. On August 4, 2010, Reese filed Reese v.
Fidelity National Property and Casualty Company,
3:10-MC-7040, in the U.S. District Court for the Southern
District of Texas (“Reese I”). In this
lawsuit, Reese asserted claims against Fidelity alleging that
Fidelity wrongfully denied her flood insurance policy claim.
However, Reese did not name Defendants as parties to the
7, 2014, Fidelity filed its motion for summary judgment in
Reese I. The motion provided uncontroverted evidence
establishing that Reese provided Fidelity with
“absolutely no documentation” to support her
claim for payment on her insurance policy. Reese did not
respond to this motion and, in fact, notified the Court that
she would not be contesting the motion. On September 9, 2014,
the Court granted Fidelity's motion.
September 8, 2016, approximately seven years after Reese
received Fidelity's denial of her claim, Reese filed this
present action against Defendants asserting claims for
negligence and breach of contract. As the basis of these
claims, Reese argues that Defendants failed to timely submit
proof of loss to Fidelity on her behalf which resulted in the
denial of her claim.
pending motion, Defendants assert that they are entitled to
summary judgment because this entire action is barred by the
applicable statutes of limitations. In response, Reese argues
that the motion should be denied because the statute of
limitations for her negligence claims was tolled until after
the Court granted summary judgment in favor of Fidelity in
Reese I. For the reasons stated below, the Court
finds that Defendants are entitled to summary judgment on all
claims in this action.
negligence claims are subject to a two-year statute of
limitations. As a general rule, the statute of limitations
commences to run upon a cause of action in tort from the time
that the duty owed to the plaintiff was breached by the
wrongful or negligent acts of the defendant even though in
some cases, the plaintiff is ignorant of the existence of his
cause of action, or although damage was not sustained until
after the commission of the tort. Dotson v. Alamo Funeral
Home, 577 S.W.2d 308, 311 (Tex. Civ. App.-San Antonio
1979, no writ). Causes of action accrue and statutes of
limitations begin to run when facts come into existence that
authorize a claimant to seek a judicial remedy. Exxon
Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d
194, 202 (Tex. 2011). A cause of action ordinarily arises and
the statute of limitations commences to run immediately upon
the commission of the wrong about which the complaint is
made, and the running of the statute is not postponed until
damage results from the wrong. Dotson, 577 S.W.2d at
summary judgment evidence establishes that well over two
years elapsed between the time that Reese was damaged by
Defendants' alleged wrongful conduct and the date this
action was filed. The summary judgment evidence establishes
that Reese's claims in this case accrued, and the
limitations period began to run on these claims, on August
11, 2009. On this date, Reese received Fidelity's
Rejection of Proof of Loss (“Rejection”). This
written notice informed Reese that her claim was being denied
because no timely proof of loss had been filed on her behalf
by Defendants. The Court finds that on this date, Reese
became aware of Defendants' actions that are the basis of
this action. Accordingly, this lawsuit against Defendants
filed in September 2016, over seven years later, is time
barred by the applicable two year statute of limitations.
contends that the holding in Hughes v. Mahaney &
Higgins, 821 S.W.2d 154 (Tex. 1991) applies in the
present case to toll the limitations period until September
9, 2016, two years after the date that the Court granted
Fidelity's motion for summary judgment in Reese
I. Reese argues that because this case was filed within
two years of this date, it is not time barred. The Court
disagrees. The holding in Hughes has been
narrowly construed by Texas courts as only applying to the
unique circumstances surrounding legal malpractice cases. In
Murphy v. Campbell, 964 S.W.2d 265, 272 (Tex. 1997),
similar arguments to the ones Reese makes here-to extend the
Hughes holding to other types of negligence
claims-were rejected by the Texas Supreme Court.
Reese argues that the doctrines of equitable tolling and
“estoppel of limitations” also apply to toll the
two year limitations period until after September 9, 2016.
The Court disagrees. Reese, as the proponent of these
defenses, bears the burden of proof. See Hand v. Stevens
Transp., Inc. Employee Benefit Plan, 83 S.W.3d 286, 293
(Tex. App.âDallas 2002, no pet.). Equitable tolling may toll
accrual “in situations … where a complainant was
induced or tricked by his adversary's misconduct into
allowing filing deadlines to pass.” Harrell v. S.P.
Dairy Ashford, No. 01-15-00865-CV, 2017 WL 1149683, at
*3 (Tex. App.-Houston [1st Dist.] Mar. 28, 2017, no pet.);
Bailey v. Gardner, 154 S.W.3d 917, 920 (Tex.
App.-Dallas 2005, no pet.) (citing Czerwinski v. Univ. of
Tex. Health Sci. Ctr. at Houston Sch. of Nursing, 116
S.W.3d 119, 122-23 (Tex. App.âHouston [14th Dist.] 2002, pet.
denied)). Similarly, equitable estoppel may bar a limitations
defense when a party, his agent, or representative makes
representations that induce a plaintiff to delay filing suit
until the limitations period has run. Kofran v.
Woodring, No. 14-96-00231-CV, 1997 WL 235480, at *3
(Tex. App.-Houston [14th Dist.] May 8, 1997, no writ).
even when these doctrines are invoked, a plaintiff must also
still establish diligence in filing “the cause of
action he knows he has [and] may not continue to rely upon
the defendant's original inducement beyond a point when
it becomes unreasonable to do so.” Alvarado v. The
Abijah Group, Inc., No. 03-13-00060-CV, 2015 WL 4603542,
at *5 (Tex. App.-Austin July 29, 2015, no pet.); Leonard
v. Eskew,731 S.W.2d 124, 129 (Tex. App.-Austin 1987,
writ ref'd n.r.e.); see also Neal v. Pickett,280 S.W. 748, 753 (Tex. Comm'n App. 1926, jdgmt adopted).
Courts have consistently held that “one claiming
suspended operation of the statutes of limitations, or
estoppel against their apparent effect, must have not ignored