United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller Senior United States District Judge
before the court is defendant Allstate Vehicle and Property
Insurance Company's (“Allstate”) motion for
summary judgment. Dkt. 13. Plaintiff Zachary Dunne responded
and the motion is ripe for consideration. Dkt. 18. Having
considered the motion, response, reply, sur-reply, and both
parties' supplemental briefing, the court is of the
opinion that Allstate's motion for summary judgment
should be GRANTED in part and DENIED in part.
parties do not dispute the essential facts. A storm damaged
Dunne's house on or about June 20, 2018. Dkt. 13 at 3. At
the time, Dunne's house was insured under an Allstate
Homeowner's Policy (the “Policy”).
Id. Dunne reported a claim to Allstate regarding the
storm damage on July 3, 2018. Id. Allstate's
adjuster inspected the property and determined the damage was
below Dunne's deductible and denied the claim.
to the Texas Insurance Code, Dunne sent a pre-suit notice
letter to Allstate after the initial inspection. Dkt. 18 at
2. Allstate requested a re-inspection and again determined
the damage was below Dunne's deductible despite
increasing its estimate. Id. Dunne proceeded to file
suit on October 29, 2018 for breach of contract, and
statutory claims for bad faith and failure to promptly pay
Dunne's insurance claim. Id.
January 10, 2019, Allstate invoked the appraisal provision in
the Policy, which provides a means for determining the amount
of loss when the insurer and insured cannot agree. Dkt. 13 at
3, 51. The parties' chosen appraisers returned an agreed
signed appraisal on February 19, 2019, and Allstate issued
checks totaling the appraisal amount less depreciation and
deductible that same day. Id. at 4. Allstate
notified Dunne of its intent to pay on February 20, 2019.
Id.; Dkt 18 at 5. Dunne cashed these checks on
February 26, 2019. Dkt. 18 at 6; see also Dkt. 13 at
shall grant summary judgment when a “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). “[A] fact is genuinely in dispute
only if a reasonable jury could return a verdict for the
nonmoving party.” Fordoche, Inc. v. Texaco,
Inc., 436 F.3d 388, 392 (5th Cir. 2006). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2540 (1986). If
the moving party meets its burden, the burden shifts to the
non-moving party to set forth specific facts showing a
genuine issue for trial. Fed.R.Civ.P. 56(e). The court must
view the evidence in the light most favorable to the
non-movant and draw all justifiable inferences in favor of
the non-movant. Envtl. Conservation Org. v. City of
Dallas, 529 F.3d 519, 524 (5th Cir. 2008).
Breach of Contract Claim
asserts that Dunne cannot maintain his breach of contract
claim because Allstate timely paid all damages determined by
the appraisal. Dkt. 13 at 4. Under nearly identical facts,
the Supreme Court of Texas held that “an insurer's
payment of an apprisal award . . . forecloses liability on a
breach of contract claim.” Ortiz v. State Farm
Lloyds, No. 17-1048, 2019 WL 2710032, at *3 (Tex. June
28, 2019). However, Dunne refutes that Allstate timely paid
under the Policy thereby precluding Allstate's estoppel
defense. Dkt. 18 at 6-7.
Texas Law, insurance policies are interpreted “under
the well-established rules of contract construction.”
Great Am. Ins. Co. v. Primo, 512 S.W.3d 890, 892
(Tex. 2017). “The goal of contract interpretation is to
ascertain the parties' true intent as expressed by the
plain language they used.” Id. at 893.
“[E]very contract should be interpreted as a whole and
in accordance with the plain meaning of its terms, ”
and “no provision is rendered meaningless.”
Id. at 892-93. Terms are assigned “their
ordinary and generally accepted meaning unless the contract
directs otherwise.” Id. at 893. “If the
language lends itself to a clear and definite legal meaning,
the contract is not ambiguous and will be construed as a
matter of law.” Id. Ambiguities arise
“only when the contract is actually susceptible to two
or more reasonable interpretations.” Id.
(Internal quotations omitted). “The fact that the
parties disagree about the policy's meaning does not
create an ambiguity.” Id.
the Policy, Allstate must “settle any covered loss with
[Dunne] . . . within [five] business days after the amount of
loss is finally determined. Dkt. 13 at 51. The
appraisers' agreed written report definitively determined
the amount of loss. Id. (“If the appraisers
submit a written report of an agreement to [Dunne] and
[Allstate], the amount agreed shall be the amount of
loss.”). The Policy provides two options for
settlement: Allstate may opt to either (1) repair or (2) pay
for the damaged property. Id. at 49. If Allstate
notifies Dunne that it will pay his claim, Allstate must pay
within five business days after it notifies Dunne.
Id. at 51.
case, Allstate received the appraisers written report on
February 19, 2019 and at that point had five business days to
settle with Dunne. On February 20, 2019, Allstate notified
Dunne that it would pay for the damaged property.
Allstate's notice triggered a new five business day
period within which it had to pay Dunne. That deadline was
February 26, 2019-the date upon which Dunne cashed
Allstate's checks. The evidence clearly establishes that
Allstate timely paid the appraisal award under the Policy.