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Cano v. State Farm Mutual Automobile Insurance Co.

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

December 3, 2019

ANDRES CANO, Plaintiff,



         On this 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.


         On 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 (“FCRA”).

         These 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.

         That 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[1]. 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.[2] 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.

         On 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.[3] 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.

         To 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. Id.

         State 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.

         On June 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.

         There 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.[4]

         Frustrated 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.”[5] 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 call. Id.

         Cano 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.


         I. Standard of Review

         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. 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. 1991).

         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, 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).

         II. ...

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