United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION GRANTING NATIONAL LLOYDS'
MOTION FOR SUMMARY JUDGMENT
Rosenthal, Chief United States District Judge.
case arises from a dispute over flood-insurance payments for
damage from a Houston, Texas 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). The court previously
granted Auto Club's motion for partial summary judgment.
(Docket Entry No. 17). National Lloyds now moves for summary
judgment on the basis that the statute of limitations bars
on the motion, the record evidence, and the applicable law,
National Lloyds' motion for summary judgment is granted
and Ekhlassi's claims 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 $274, 940.05 for the
flood damage. (Docket Entry No. 19 at 2). Ekhlassi had
coverage under both the Homeowners policy from Auto Club and
the flood policy from National Lloyds, before and during the
storm. The National Lloyds policy was part of the National
Flood Insurance Program administered by the Federal Emergency
2015, just after the flood, Ekhlassi reported his losses to
National Lloyds. A few days later, National Lloyds sent
insurance adjuster Jim Nemechek to inspect Ekhlassi's
property. Nemechek estimated losses totaling $3, 768.15 for
“flood loss clean-up and other covered damages, ”
but found that all other damages were excluded under
Ekhlassi's policy. (Docket Entry No. 18 at 3).
October 6, 2015, National Lloyds sent Ekhlassi a letter
stating that he had not yet submitted a proof of loss form
for his claim and that it could not process his claim payment
for $3, 768.25 until it received his proof of loss. (Docket
Entry No. 18, Ex. C). The letter informed Ekhlassi that he
had 240 days from the date of loss to provide the signed and
sworn proof of loss and that National Lloyds was denying
payment for “any building and contents items not
subject to direct physical loss by or from flood” and
“all non-covered items located below the lowest
elevated floor of your post-FIRM elevated building.”
(Id.). On December 28, 2015, Ekhlassi provided the
sworn proof of loss to National Lloyds, stating an amount of
$276, 190.05 less the deductible, for a total of $274,
940.05. On January 11, 2016, National Lloyds sent Ekhlassi a
second letter rejecting the proof of loss, confirming that it
would pay only the previously determined amount of $3,
768.25, and referring Ekhlassi to the October 6, 2015 denial
letter for the reasons. (Docket Entry No. 18, Ex. E).
year later, on January 11, 2017, Ekhlassi sued National
Lloyds and Auto Club, alleging breach of contract, violations
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 §
Lloyds moved for summary judgment, (Docket Entry No. 18), and
Ekhlassi responded, (Docket Entry No. 19). The summary
judgment record evidence includes a copy of Ekhlassi's
Standard Flood Insurance Policy, Number 1547431881, a copy of
the loss report, the October 6, 2015 letter from National
Lloyds to Ekhlassi, Ekhlassi's original petition, a copy
of the January 11, 2016 letter from National Lloyds to
Ekhlassi, an affidavit from National Lloyds' records
custodian, and FEMA memorandum W-15022 granting a 180-day
extension for policy holders to submit proof of loss. This
record is analyzed under the applicable legal standards.
The Legal Standards
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, ...