United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
date, the Court considered Defendant's Motion for
Judgment on the Pleadings and Motion for Summary Judgment
(docket no. 38), Defendant's motions to exclude the
testimony of Phil Mayfield (docket no. 26) and William
“Mike” Norris (docket no. 28), and the
corresponding responses and replies. After careful
consideration, the Court GRANTS Defendant's motion for
summary judgment as to all claims and DISMISSES AS MOOT the
an insurance dispute concerning a roof allegedly damaged in
an April 12, 2016 hail and wind storm. Plaintiff Mark
Sadovsky's home at 9234 Bent Elm Creek Lane is covered by
a residential property insurance policy issued by Defendant
Nationwide. On April 20, 2016, Plaintiff submitted a claim,
to which Defendant assigned adjuster Robert Christophersen.
Docket no. 38-4 at 2. Christophersen called Plaintiff, who
stated that he had prior success with the Roof Doctor, a
roofing contractor. Id. Of the Roof Doctor's
previous work, Plaintiff stated at deposition that he had
“nothing but the highest regard for them and their
work.” Docket no. 38-2.
inspected the property on May 2, 2016, and “did not
observe physical damage to any roof tile, but instead found
spatter on the tiles, and observed two skylights had been
cracked due to hail.” On May 11, 2016, Plaintiff sent
Christophersen a Roof Doctor-generated estimate of $2, 869
for repair of “[h]ail damaged roof issues, ”
namely “two cracked skylights, broken/damaged tiles,
and hole in lead flashing of roof jack.” Docket no.
38-17. After reviewing this estimate, on May 19, 2016,
Christophersen sent Plaintiff a repair estimate of $7,
994.49, which included the Roof Doctor estimate and cost of
interior water damage repairs. Docket no. 38-4. The claim was
paid and closed on December 17, 2016. Id.
claims in this suit allege that Christophersen's handling
of this first claim was unreasonable and took advantage of
Plaintiff. Plaintiff notes that Christophersen did not get on
the roof during his May 2 investigation, docket no. 41-2, and
states that he relied on Christophersen because he thought
Defendant and Christophersen were “on their side,
” docket no. 41 at 12.
spring 2017, Plaintiff's wife, Ellen Sadovsky, noticed
“everyone around us was getting new roofs.”
Docket no. 38-3. Plaintiff asked a neighbor's roofing
contractor, Brandon Walker of Peachtree Construction, to
inspect his roof. Docket no. 38-2. Plaintiff states that
Walker informed him of unrepaired hail damage. Id.
did not file a new claim with Defendant but instead hired
counsel, sent Defendant a letter of representation on
September 15, 2017, and sent Defendant a demand letter for
$68, 372.89 (covering the cost of a full roof replacement) on
October 4, 2017. Defendant retained engineer Pablo Garza to
inspect the roof, and Garza attributed the wind-damaged tiles
he found to a February 2017 wind storm. Docket no. 38-12.
Thus, Defendant sent a partial denial letter that stated
Defendant found no additional covered damage. Docket no.
states he needs a full roof replacement because William
“Mike” Norris, who prepared the second repair
estimate, testified that it would not be cost-effective to
repair only the damaged tiles. Docket no. 41-6. Further,
Plaintiff's expert Phil Mayfield testified that the
manufacturer of these roofing tiles no longer makes the
particular tile on Plaintiff's roof. Docket no. 38-19. In
his report, Mayfield states that “[b]ecause the correct
tile is no longer available, the only viable solution is to
remove all existing tile and install new tile roofing of
similar quality as the existing . . . .” Docket no.
41-7 at 10.
January 23, 2018, Plaintiff filed this lawsuit in the 408th
Judicial District Court of Bexar County, Texas, bringing
claims for breach of contract, violations of the Texas
Deceptive Trade Practices Act and tie-in statutes, violations
of the Texas Insurance Code, and breach of the common law
duty of good faith. Defendant Nationwide removed to this
Court on March 22, 2018.
Summary Judgment Standard
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 ...