United States District Court, W.D. Texas, San Antonio Division
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
date, the Court considered Defendant State Farm Lloyds'
Motion for Partial Summary Judgment (docket no. 25),
Plaintiff William Burman's Motion for Partial Summary
Judgment (docket no. 22), and the corresponding responses and
replies. After careful consideration, the Court GRANTS
Defendant's motion and DENIES Plaintiff's motion.
insurance dispute stems from Plaintiff William Burman's
claim for damage caused by a water leak. Burman insured his
residential property at 12002 Rose Blossom Street through a
policy issued by Defendant State Farm Lloyds (“State
Farm”). After Burman reported a plumbing leak on
February 26, 2016, he made a claim with State Farm, and State
Farm paid for several repairs, most of which are not at issue
(for water damage to flooring, for example). The only payment
at issue relates to the foundation.
Farm retained engineer Oscar Lara of Lara Engineering to
determine whether the leak caused the foundation to move.
Lara's report, from May 12, 2016, stated “that the
observed foundation movements are primarily the result of
seasonal moisture changes, and vegetation effects. However,
the domestic water line leaked identified and repaired by
[American Leak Detection] did exacerbate the foundation
movements in an isolated area of the residence.”
Farm paid to repair cosmetic damage from foundation movement
that fell within this “zone of influence, ” as
determined by Lara. Burman claims State Farm should pay for
foundation underpinning, which he claims was needed for
damage caused by the plumbing leak. Lara determined the
foundation problems predated the leak and the leak damage did
not warrant underpinning, so, State Farm denied Burman's
claim for underpinning the foundation.
retained engineer Moises Cruz of A-1 Engineering, who
concluded that the foundation required underpinning because
of the leak. Lara, in reviewing Cruz's report, noted Cruz
identified other possible causes of foundation movement,
reported that cracks pre-dating the leak had worsened, and
reported that the dome shape of the foundation indicated a
long-term problem. This review caused State Farm to reaffirm
on this denial, Burman brought this action on April 3, 2018,
in the 150th Judicial District Court for Bexar County, Texas.
Docket no. 1. He brings claims for breach of contract and
violations of the Texas Deceptive Trade Practices Act
(“DTPA”) and Texas Insurance Code. Docket no. 14.
State Farm removed to this Court on May 8, 2018. Docket no.
1. Here, the parties filed cross-motions for summary
judgment, seeking an interpretation of the policy terms.
Further, State Farm moves for summary judgment on
Burman's extra-contractual claims.
Standard of Review
Court shall grant summary judgment 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). To establish that there is no genuine
issue as to any material fact, the movant must either submit
evidence that negates the existence of some material element
of the non-moving party's claim or defense, or, if the
crucial issue is one for which the non-moving party will bear
the burden of proof at trial, merely point out that the
evidence in the record is insufficient to support an
essential element of the non-movant's claim or defense.
Lavespere v. Niagra Machine & Tool Works, Inc.,
910 F.2d 167, 178 (5th Cir. 1990). Once the movant carries
its initial burden, the burden shifts to the non-movant to
show that summary judgment is inappropriate. See Fields
v. City of S. Hous., 922 F.2d 1183, 1187 (5th Cir.
order for a court to conclude that there are no genuine
issues of material fact, the court must be satisfied that no
reasonable trier of fact could have found for the non-movant,
or, in other words, that the evidence favoring the non-movant
is insufficient to enable a reasonable jury to return a
verdict for the non-movant. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 n.4 (1986). In making
this determination, the court should review all the evidence
in the record, giving credence to the evidence favoring the
non-movant as well as the “evidence supporting the
moving party that is uncontradicted and unimpeached, at least
to the extent that evidence comes from disinterested
witnesses.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 151 (2000). The Court “may not
make credibility determinations or weigh the evidence”
in ruling on a motion for summary judgment, id. at
150, and must review all facts in the light most favorable to
the non-moving party, First Colony Life Ins. Co. v.
Sanford, 555 F.3d 177, 181 (5th Cir. 2009).
parties bring cross-motions for summary judgment on the
policy terms relevant to the foundation damage. The Court
will first decide this issue, and then turn to State
Farm's motion for summary judgment on the
Policy Liability Limit