United States District Court, W.D. Texas, San Antonio Division
ORDER ON MOTION FOR SUMMARY JUDGMENT
RODRIGUEZ, UNITED STATES DISTRICT JUDGE
date, the Court considered Defendant State Farm's Motion
for Summary Judgment (docket no. 36) and Plaintiff Andres
Cano's Response (docket no. 41). After careful
consideration, the Court GRANTS State Farm's motion with
respect to all claims.
January 24, 2018, Plaintiff Andres Cano (“Cano”),
a pro se attorney, filed this action in the 285th
Judicial District Court of Bexar County, Texas. Docket no.
1-1. In that action, Cano asserted claims against Defendants
State Farm Mutual Automobile Insurance Company (“State
Farm”) and LexisNexis Risk Solutions Bureau, LLC
(“LexisNexis”). Id. State Farm removed
that case to this Court on March 7, 2018. Docket no. 1.
LexisNexis was dismissed with prejudice on September 25,
2019. Docket no. 43. Remaining are Cano's claims against
State Farm: violation of the Texas Deceptive Trade Practices
Act (“DTPA”), violation of the Texas Insurance
Code, breach of contract, libel, gross negligence, and
violation of the Fair Credit Reporting Act
various claims all stem from a claim made against Cano's
insurance policy. Beginning in April 2011, State Farm insured
Cano's 2002 Ford Ranger under Policy Number
1105-658-D18-53B (the “Policy”). Docket no. 36-3
at 3. This Policy provided that State Farm “will settle
or defend, as we consider appropriate, any claim or suit
asking for [any damages claimed against the named
insured].” Docket no. 36-1 at 17. The only claims made
against Cano's policy from 2011 to 2016 were two towing
incidents in 2011 and 2012. Docket no. 41-1 at 22-23.
changed in 2016. On February 23 of that year, John Harrington
(“Harrington”) parked his Smartcar in the parking
garage at the Palmer Events Center in Austin, where both
Harrington and Cano were taking the Texas Bar Examination.
Docket no. 36-2 at 3; no. 36-4 at 10. Harrington parked his
vehicle next to a white Ford Ranger that was parked at an
angle with its rear over the line. Docket no. 36-5 at 7; no.
36-4 at 28-29. The following day, Harrington noticed
the rear driver side of his vehicle was scuffed with white
paint. Docket no. 36-2 at 3. Nearby, he noticed the same
white Ford Ranger from the prior day with blue scuffs on its
bumper. Id. Harrington took photographs of both
vehicles and left a note on the truck. Docket no. 36-4 at 29.
He received no response but identified Cano as the registered
owner of the vehicle based on the license plate. Id.
at 30. On March 2, 2016, Harrington filed a report with the
Austin Police Department, explaining the above. Docket no.
36-5 at 4-11. He declined to pursue criminal
charges, choosing instead to address the issue with the
Character and Fitness Committee of the Texas Board of Law
Examiners. Docket no. 36-4 at 10-12.
March 4, 2016, Harrington's insurance company, USAA, made
a claim on Harrington's behalf with State Farm (the
“Harrington claim”). Docket no. 36-2 at 4; no.
36-4 at 15. That same day State Farm attempted, but failed,
to contact Cano. Id. The following day, however,
Cano informed State Farm that he had not been in an accident,
that there was no damage to his vehicle, that no one else had
access to his vehicle, and that he was concerned as to how
someone got his vehicle and insurance information. Docket no.
36-3 at 37. Cano sent State Farm emails on March 7
and March 21 in which he asserted that an
“after-the-fact” claim is inherently
unsupportable and that he found it “dubious” for
someone to make a claim against his vehicle without having
seen the accident occur. Docket no. 41-1 at 25, 27.
investigate any potential damage, State Farm sent a
representative, Joey Portales (“Portales”), out
to Cano's residence, where he asked Cano if he could
photograph his Ford Ranger. Id. at 33. Cano forbid
Portales from photographing his vehicle and told Portales he
would call State Farm to set up another time to do so.
Id. Portales noticed a dent on the rear of the
vehicle and noted that the damage appeared fresh.
Farm continued its attempts to contact Cano and inspect his
vehicle, including both by phone and letter-to no avail.
Id; docket no. 41-1 at 48. One representative
remarked that “[i]n every day that passes, photos and
measurements of [Cano's truck] lose credibility given
that [Cano] could have easily had [the truck]
repaired….” Docket no. 36-3 at 26. Another noted
that Cano “gets abusive and aggressive regarding
payment” to Harrington. Id. at 5. At another
point, a representative disconnected the call after Cano
“became very angry, abusive” and was
“excessively swearing.” Id. at 26. Cano
claims that throughout this period, he learned that the claim
was closed and opened repeatedly but nonetheless did not
permit State Farm to perform its investigation. Docket no.
41-2 at 2.
21, 2016, USAA notified State Farm that it intended to
recover the amount paid to Harrington, $432.77. Docket no.
36-3 at 377-78. State Farm's records on that date
indicate its representatives believed the evidence on file
supported Harrington's claim and that if Cano continued
to be nonresponsive, State Farm would move forward with
accepting liability on the claim. Id. at 27 (noting
on the claim file that if Cano did not call back, that it was
“OK to finalize liability based on evidence on
file” which supported Harrington's story). Only
July 6, State Farm's representative did so, concluding
that they would accept liability because they had allowed
Cano sufficient time to get photographs and measurements but
that he had not done so and remained unresponsive.
Id. at 26-27.
was no further contact between the parties until January
2017. That month, Cano purchased a Dodge Ram pickup and
sought a quote on a six-month policy from State Farm. Docket
no. 41-1 at 33. State Farm's employee, Cristina Escobar
(“Escobar”), provided a quote of $634.64 to which
Cano responded, “I will take it.” Id. at
33-34. Cano asked if he could set that amount up for monthly
electronic payments, to which Escobar responded
“definitely.” Id. at 34. But days later,
Cano claims one of State Farm's agents said the quote
would actually be over $900.
at the premium increase, Cano sought quotes from other
carriers, learning from Farmers Insurance that they could not
insure him because of a claim from February of 2016 in which
Cano was “at fault.” Cano received a
Comprehensive Loss Underwriting Exchange
(“C.L.U.E.”) Report that State Farm sent to
LexisNexis in which the February 2016 incident was listed, as
well as the two towing incidents. On January 24, Cano called
State Farm to dispute the claim. Docket no. 36-3 at 26. The
representative told Cano that they continued to try and
contact him, that he refused, and that a decision to pay the
claim was based on the information in file. Id;
docket no. 41-1 at 48-49. As the representative
explained to Cano how to dispute the claim, she claims he
called her a clown and then began to scream expletives at
her-by his own testimony, he called her a “stupid f***
bitch, or something like that”-so she disconnected the
sent a DTPA Demand Letter to State Farm on January 25, 2017
in which he continued to deny responsibility for the February
2016 accident, complained that State Farm kept him “in
the dark” as to the accident, and complained that
agents were demeaning to him by using an accusatory tone and
by alleging that he was acting furtively. Docket no. 41-1 at
30-31. In that letter, he threatened to sue if State Farm did
not immediately retract all information regarding the
Harrington claim. Cano further demanded that State Farm honor
the lower of the two insurance quotes he received that month
and to stop reporting the towing incidents from 2011 and
2012. Id. State Farm did not respond to this letter,
and a year later, Cano brought the present suit.
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. 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. Niagara 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.
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, 248 (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).