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Ross v. Hartford Lloyds Insurance Co.

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

July 4, 2019

SUZANN ROSS, Plaintiff,
v.
HARTFORD LLOYD INSURANCE COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          REED O' CONNOR, UNITED STATES DISTRICT JUDGE

         Before the Court are Defendant Hartford Lloyds Insurance Company's Motion for Summary Judgment and Brief in Support (ECF Nos. 16, 17), filed April 22, 2019; Plaintiff's Response to Defendant's Motion for Summary Judgment and Brief in Support (ECF Nos. 18, 19); and Defendant Hartford Lloyds Insurance Company's Reply Brief in Support of Motion for Summary Judgment (ECF No. 21). On June 26, 2019, the Court held a hearing on the motion. Having considered the motion, response, reply, oral argument of counsel at the June 26, 2019 hearing, briefing, appendices, record, and applicable law, and for the reasons that follow, the motion is DENIED IN PART and GRANTED IN PART.

         I. BACKGROUND

         This is an insurance coverage dispute. Plaintiff Suzann Ross (“Plaintiff” or “Ross”) is an insurance policyholder who submitted a claim to Defendant Hartford Lloyds Insurance Company (“Defendant” or “Hartford”) for damages to her home following a windstorm. Hartford issued a payment to Ross to cover the cost of repairs, including for that portion of her roof that was damaged. Ross, however, contends that Hartford undervalued her claim for interior and exterior damage, and additionally is obligated under the policy to pay the cost of replacing her entire roof, rather than only the damaged portions. Hartford argues it has fulfilled its obligations under the insurance policy and moves for summary judgment on all claims.

         Unless otherwise noted, the facts are undisputed. When disputed, the facts are viewed in the light most favorable to Plaintiff, the nonmoving party. Plaintiff held a Hartford homeowners insurance policy, Policy No. 55RBA491486 (the “Policy”), effective from April 1, 2016, to April 1, 2017, for property located at 2209 Shady Meadow Court, Arlington, Texas 76013 (the “Property”). Def.'s App. Supp. Mot. Summ. J. Ex. B (Policy), App. 1-43 (ECF No. 17-2). The Policy provides, in pertinent part:

         COVERAGE A (DWELLING)

We insure against all risks of physical loss to the property described in Section I Property Coverage, Coverage A (Dwelling), unless the loss is excluded in Section I Exclusions.

Id. Ex. B (Policy), at App. 4. Coverage A (Dwelling) provides:

We cover the dwelling on the residence premises shown in the declarations page including structures attached to the dwelling.

Id. Ex. B (Policy), at App. 6.

         On June 15, 2016, a windstorm caused a tree to fall onto a corner of Plaintiff's home, causing damage to the Property. On June 16, 2016, Plaintiff made a claim and demand for payment under the Policy. Hartford assigned Ryan Parker (“Parker”) to adjust the claim. On July 11, 2016, at Hartford's request, James Boddy of Specialty Restoration of Texas (“SRT”), inspected the Property and confirmed damage to a portion of the roof, the garage walls and ceiling, and the hobby room walls and ceiling. SRT issued an estimate of damages in the amount of $7, 090.72, which included replacement of 1.98 squares of damaged roof tile. Id. Ex. F (SRT Estimate), at App. 85-87.

         On July 21, 2016, Parker sent Plaintiff a copy of the SRT estimate, as well as a letter, stating:

We have received your claim request for the loss on June 16, 2016.
After reviewing the details of your policy, including your Dwelling coverage deductible of $7, 400.00, we find that the loss is below your deductible amount. Unfortunately, since the amount of your loss is below the deductible amount, we are unable to pay this claim for you.

Pl.'s App. Supp. Summ. J. Resp. (June 16, 2016 Correspondence), App. 190, ECF No. 20.

         On September 27, 2016, contractor Chris Brown with Ramone Roofing called Parker to state that he had been contacted to perform roof repairs on the Property, but he was unsure how to proceed because the tiles on the roof were no longer manufactured. On October 4, 2016, Parker spoke with James Pendergrass of DFW Premium Roofing, who similarly informed him that the tiles on Plaintiff's roof were out of production.

         Plaintiff obtained numerous repair estimates, all of which included replacement of the entire roof. She provided these estimates to Hartford. DFW Premium Roofing estimated the cost to replace the entire roof at $25, 525.00. Another contractor, ERC Roofing, estimated the cost to repair all Plaintiff's damaged property, as the damaged and undamaged portions of the roof, at $46, 552.

         On November 7, 2016, Plaintiff requested a reinspection of the Property. On December 14, 2016, Parker noted in the claim file that Plaintiff stated she had framing damage that had not been accounted for in SRT's original estimate. After receiving this information, Hartford retained Donan Engineering Company, Inc. (“Donan Engineering”) to reinspect the Property. On December 25, 2016, I. Nathan Austin (“Austin”) of Donan Engineering reinspected the Property “to determine the extent of damage due to the tree impact and to provide repair recommendations.” Def.'s App. Supp. Mot. Summ. J. Ex. G (Engineering Report), App. 249. In his report, dated January 3, 2017, Austin confirmed that “tree impact caused structural damage to the roof framing and damage to the concrete tiles above the garage and hobby room.” Id. Ex. G (Engineering Report), App. at 252. He indicated that “[t]wo ceiling joints, the northeast hip rafter, a north rafter, and four rafter jacks” were damaged, and that “[a]pproximately 385 square feet of roof area above the garage and hobby room [were] affected by the falling tree.” Id. Ex. G (Engineering Report), App. at 252. As part of his repair plan, Austin opined that the damaged portions of the roof could be repaired without replacing the entire roof. Specifically, he concluded that “[u]p to 385 square feet of concrete roof tiles will need to be removed to facilitate repairs, especially the replacement of the northeast hip rafter, four hip jacks, and the north rafter.” Id. Ex. G (Engineering Report), App. at 251-52. He also confirmed the interior damage including displaced ceiling drywall in the garage and hobby room, stains on the drywall above the east-facing window, and that drywall below the garage ceiling was punctured and scraped between two studs. Austin “recommended that a licensed contractor be retained to perform the repairs.” Id. Ex. G (Engineering Report), App. at 251-52. Neal Asmendola, Hartford's outside claims representative, reviewed Austin's report on January 11, 2017, and forwarded it to SRT with additional notes for a revised estimate. On January 24, 2017, Hartford sent Plaintiff a revised estimate from SRT based on Austin's engineering report, increasing SRT's estimate to $9, 109.30.

         In early March 2017, Hartford reassigned the claim from Parker to Amber Klecka (“Klecka”). Klecka initiated procedures to make a payment to Plaintiff because SRT's revised estimate of $9, 109.30 exceeded the wind/hail deductible by $1, 709.30. On March 9, 2017, Hartford paid Plaintiff $1, 709.30.

         On March 21, 2017, Hartford sent Plaintiff another copy of the engineering report, explaining that the roof could be repaired without replacing the entire roof and that payment had been made on the current estimate. Plaintiff then lodged an executive complaint with Hartford stating that matching tiles were not available. In response, Hartford provided Plaintiff with a kit to submit a sample of the tile to a pricing and matching company, ITEL, Inc., to confirm whether matching tiles were available. The ITEL report, received in April 2017, identified three locations where replacement tiles could be obtained, one location in Texas and two in California. It is disputed whether the number of tiles available at these locations would be sufficient to replace the damaged tiles at the Property.

         Ultimately, even though Plaintiff had not done any repairs to the Property, Hartford decided to pay the replacement cost value for replacement of the two affected roof surfaces. Klecka obtained a revised estimate from SRT for the expanded scope of repair. The revised SRT estimate of $14, 352.81(replacement cost value) included replacement of the two affected slopes of the roof and the exterior and interior damage. Id. Ex. K (Final SRT Estimate), App. at 498-507.[1] After accounting for the $7400 deductible and the prior payment of $1, 709.30, Hartford issued a payment of $5, 243.51 to Plaintiff on May 2, 2017.

         On November 15, 2017, Plaintiff informed Hartford that she was not cashing the two checks because they did not cover her loss. On June 4, 2018, Plaintiff filed this lawsuit in Texas state court alleging that Hartford failed to honor contractual obligations it owed her under the Policy, and that in adjusting her claim, it breached Chapters 541 and 542 of the Texas Insurance Code, its duty of good faith and fair dealing, and the Texas Deceptive Trade Practices Act (“DTPA”). Hartford subsequently removed the case to this Court and now moves for summary judgment on all claims, arguing that is has fulfilled its obligations, as a matter of law, under the Policy, and that its adjustment of the claim has been prompt, thorough, and fair.

         On June 26, 2019, the Court held a hearing on Defendant's Motion for Summary Judgment. At the hearing, the parties confirmed that they do not dispute that the windstorm event causing damage to Plaintiff's home is a covered cause of loss under the Policy, and that various exclusions under the Policy are not applicable to this circumstance. In addition, when questioned by the Court, counsel for Plaintiff clarified that his client was suing for the actual cash value of her damages, not the replacement cost value.[2]

         II. LEGAL STANDARD

         Summary judgment is proper when the pleadings and evidence show “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). “[T]he substantive law will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The movant makes a showing that there is no genuine issue of material fact by informing the court of the basis of its motion and by identifying the portions of the record that reveal there are no genuine material fact issues. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         When reviewing the evidence on a motion for summary judgment, the Court must resolve all reasonable doubts and draw all inferences in the light most favorable to the non-movant. See Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988). The Court cannot make a credibility determination in light of conflicting evidence or competing inferences. Anderson, 477 U.S. at 255. As long as there appears to be some support for the disputed allegations-such that “reasonable minds could differ as to the import of the evidence”-the Court must deny the motion. Id. at 250.

         III. ANALYSIS

         A. ...


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