United States District Court, N.D. Texas, Fort Worth Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR. UNITED STATES MAGISTRATE JUDGE.
the Court are Defendant's Motion for Summary Judgment
(ECF No. 32) with Brief and Appendix in Support (ECF Nos.
33-34), filed March 21, 2018; Plaintiff's Response to
Defendant's Motion (ECF No. 39), filed April 11, 2018;
and Defendant's Reply in Support of its Motion (ECF No.
40), filed April 20, 2018. After considering the pleadings of
the parties, the summary judgment evidence, and applicable
law, the undersigned RECOMMENDS that United
States District Judge Reed O'Connor GRANT in part
and DENY in part summary judgment to Defendant, and
dismiss Plaintiff's extra-contractual claims.
January 11, 2017, Plaintiff Jaime Lopez (“Lopez”)
filed his Original Petition in the 342nd Judicial District
Court of Tarrant County, Texas. ECF No. 1-3 at 1. On February
17, 2017, Defendant Allstate Fire and Casualty Insurance
Company (“Allstate”) timely removed the suit to
this Court. ECF No. 1. This action concerns Lopez's claim
under his Allstate homeowners policy. ECF No. 1-3 at 2.
purchased an insurance policy (“the Policy”) from
Allstate to insure his property located at 1906 Park Hill
Drive, Arlington, Texas 76012 (the “Property”).
Id. The Policy was effective from November 1, 2015
to November 1, 2016 and provided coverage for up to $331, 000
in dwelling protection, with an applicable deductible of $3,
310, all peril. ECF No. 34-1 at 5-6. On or about July 9,
2016, Lopez claims his Property suffered substantial damage
due to a severe storm. ECF No. 1-3 at 3. On July 26, 2016,
Allstate's outside adjuster inspected the home and gave
an estimate of loss in the amount of $3, 694.67. Id.
After applying the policy's deductible, Allstate issued
payment for $384.67-the amount exceeding the deductible
amount. Id. On July 30, 2016, Lopez hired a public
adjuster to inspect the Property. Id. Lopez's
adjuster recommended a number of additional repairs to the
Property, and estimated a total cost of $41, 681.34 for these
judgment is appropriate when, viewing the evidence and all
justifiable inferences in the light most favorable to the
non-moving party, there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(c); Hunt v. Cromartie, 526 U.S.
541, 549 (1999). The appropriate inquiry for the Court to
make is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986).
party moving for summary judgment has the initial burden to
prove there is no genuine issue of material fact for trial.
Provident Life & Accident Ins. Co. v. Goel, 274
F.3d 984, 991 (5th Cir. 2001). To meet this burden, the
movant must identify those portions of the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
response, the nonmovant “may not rest upon mere
allegations contained in the pleadings, but must set forth
and support by summary judgment evidence specific facts
showing the existence of a genuine issue for trial.”
Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455,
458 (5th Cir. 1998) (citing Anderson, 477 U.S. at
255-57). Once the moving party makes a properly supported
motion for summary judgment, the nonmoving party must look
beyond the pleadings and designate specific facts in the
record to show that there is a genuine issue for trial.
Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir.
1996). The party opposing summary judgment is required to
identify specific evidence in the record and to articulate
the precise manner in which that evidence supports his claim.
Ragas, 136 F.3d at 458. Citations to evidence must
be specific, and “a party must support each assertion
by citing each relevant page of its own or the opposing
party's appendix.” Local Civil Rules of the
Northern District of Texas 56.5(c).
Lopez's claims do not invoke a federal question, but
instead assert jurisdiction based on diversity of
citizenship, the Court applies the law of the forum state.
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
“Under the Erie doctrine, [courts] are bound
in diversity cases to apply the substantive law of the forum
state as interpreted by the state's highest court.”
Am. Nat. Gen. Ins. Co. v. Ryan, 274 F.3d 319, 328
(5th Cir. 2001) (citing Ladue v. Chevron U.S.A.,
Inc., 920 F.2d 272, 274 (5th Cir. 1991)). The Court
“look[s] to decisions of the state's highest court,
or in the absence of a final decision by that court on the
issue under consideration, the court must determine in [its]
best judgment, how the state's highest court would
resolve the issue if presented with it.” Citigroup
Inc. v. Fed. Ins. Co., 649 F.3d 367, 371 (5th Cir. 2011)
(internal quotations omitted).
action concerns Lopez's claim under the Policy. He
asserts that Allstate underpaid him after a storm damaged his
Property on July 9, 2016. Lopez sues for breach of contract
and also makes three extra-contractual claims: violations of
the Texas Deceptive Trade Practices Act, violations of the
Texas Insurance Code, and breach of the common-law duty of
good faith and fair dealing. Because a dispute of material
fact exists as to Lopez's breach of contract claim, the
undersigned recommends that summary judgment be denied on
this ground. Lopez failed to present a genuine issue of
material fact regarding his extra-contractual claims, and the
undersigned recommends that those claims be dismissed.
Breach of Contract Claims
insured cannot recover under an insurance policy unless facts
are pleaded and proved showing that damages are covered by
[his] policy.” Employers Cas. Co. v. Block,
744 S.W.2d 940, 944 (Tex. 1988), overruled in part on
other grounds by State Farm Fire & Cas. Co. v.
Gandy, 925 S.W.2d 696 (Tex. 1996). However, an insured
can recover where he suffers damage from both covered and
non-covered perils. Hamilton Properties v. Am. Ins.
Co., No. 3:12-CV-5046-B, 2014 WL 3055801, at *4 (N.D.
Tex. July 7, 2014), aff'd, 643 Fed. App'x
437 (5th Cir. 2016) (applying Texas law). Under the doctrine
of concurrent causes, the insured is entitled to recover the