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Lopez v. Allstate Texas Lloyds

United States District Court, N.D. Texas, Fort Worth Division

May 23, 2018

JAIME LOPEZ, Plaintiff,



         Before 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.


         On 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.

         Lopez 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 repairs. Id.


         Summary 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).

         The 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).

         In 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).

         Because 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).


         This 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.

         A. Breach of Contract Claims

         “An 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 portion ...

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