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Sadovsky v. Nationwide Property and Casualty Insurance Co.

United States District Court, W.D. Texas, San Antonio Division

May 15, 2019




         On this 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 remaining motions.


         This is 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.

         Christophersen 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.

         Plaintiff's 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.

         In 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.

         Plaintiff 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. 38-13.

         Plaintiff 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.

         On 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.


         I. Summary Judgment Standard

         The 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. 1991).

         In 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 ...

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