Valleyview Church of the Nazarene v. Church Mutual Insurance Company

Filing 63

MEMORANDUM OPINION AND ORDER denying 46 Defendant's Motion for Summary Judgment filed by Church Mutual Insurance Company. (Ordered by Judge Matthew J. Kacsmaryk on 5/9/2022) (daa)

Case 2:20-cv-00222-Z-BR Document 63 Filed 05/09/22

Page 1 of 12 PageID 2184
l :.S. ll!STRl(T ('(1! !Jff
NOi, 1111 Rl\ Il!STH JCT ()J' TEXAS

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
VALLEYVIEW CHURCH
OF THE NAZARENE,
Plaintiff,

FILED

I MAY - 9 2022 I

§
§
§
§

§
V.

CHURCH MUTUAL INSURANCE
COMPANY,
Defendant.

§
§
§
§
§
§

2:20-CV-222-Z-BR

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Church Mutual Insurance Company's ("Defendant") Motion
for Summary Judgment ("Motion") (ECF No. 46), filed on March 14, 2022. Having considered the
Motion and relevant law, the Court DENIES the Motion.
The Court notes both Plaintiff Valleyview Church of the Nazarene ("Plaintiff') and
Defendant violated Northern District of Texas Local Rule 7.2 in briefing the Court in excess of
permitted page limits. See N.D. Tex. L.R. 7.2 ("[A] brief must not exceed 25 pages (excluding the
table of contents and table of authorities). A reply brief must not exceed JO pages." (emphasis
added)). Defendant's Brief in Support of its Motion is 29 pages, not including the signature page
or certificate of service page. See ECF No. 47. Plaintiffs Response Brief is 40 pages, not including
the signature page or certificate of service page. See ECF No. 55. Defendant's Reply Brief is 17
pages, not including the signature page or certificate of service page. See ECF No. 59. These page
counts also omit materials exempted by Local Rule 7.2. The Court instructs Plaintiff and
Defendant to abide by the page limits set forth in Local Rule 7 .2 in applicable future filings.

Case 2:20-cv-00222-Z-BR Document 63 Filed 05/09/22

Page 2 of 12 PageID 2185

BACKGROUND

Plaintiff owns a church in Amarillo, Texas. ECF No. 19 at 1. Defendant insures Plaintiff
for property damage caused by wind and hail. Id. at 2. Plaintiffs insurance policy "exclude[s]
cosmetic damage to roof surfaces, wear and tear, deterioration, continuous leakage or seepage, or
faulty/inadequate construction, maintenance [and) repairs." ECF No. 47 at 7.
On March 13, 2019, a hailstorm struck Plaintiffs property, which contains various types
of roofing, siding, and other exterior fixtures. Id. at 8-9. On March 25, 2019, Plaintiff submitted a
claim for wind and hail damage to the property caused by the storm. Id. Defendant retained Blakely
Kincanon, an independent adjuster with ICA LP, to conduct a field adjustment of Plaintiffs
property. Id. at 9. Kincanon inspected Plaintiffs property on April 3, 2019, and found cosmetic
hail damage to the metal roofing as well as limited wind damage to the carport and stucco siding
of the property. Id. Defendant also retained Dayong Huang, an engineer with Rimkus Consulting
Group, to evaluate any damage to the property. Id. On April 22, 2019, Huang inspected the
property. Id. Huang identified only cosmetic damage to the metal roof and concluded the damage
"had not affected the water shedding capabilities or the long-term serviceability of the roof." Id.
Rimkus did not identify hail damage to the modified bitumen roofing. Id. As for the siding, Huang
identified wind damage to a stucco panel and the carport. Id. Huang concluded age-related wear
and tear or deterioration caused any remaining damage. Id.
Defendant estimated wind and hail caused $988.17 in damage to Plaintiffs property. Id.
Defendant determined Plaintiffs policy excluded all other damage identified. Id. at 10; see also
ECF No. 56-2 at 2-5. Defendant partially denied the claim and did not issue a check to Plaintiff
because the covered damage fell below Plaintiffs $2,500 deductible. ECF No. 47 at 10.

2

Case 2:20-cv-00222-Z-BR Document 63 Filed 05/09/22

Page 3 of 12 PageID 2186

On or about March 27, 2019, or April 30, 2019, 1 another storm struck Plaintiffs property.

Id. On July 6, 2019, Plaintiff submitted a second claim for hail and wind damage. Id. Defendant
retained Steve Buettner of Panhandle Claims Service to conduct a field adjustment of Plaintiffs
property. Id. Buettner inspected Plaintiff's property on July 11, 2019. Id. Buettner reported interior
water damage to suspending ceiling panels. Id. As for the exterior, he identified cosmetic hail
damage to the metal roof sections of the property. Id. Regarding the modified bitumen roofing,
Buettner noted significant granule loss resulting in wear and tear. Buettner -

however - did not

find wind or hail damage that would have contributed to the interior water damage. Id. Buettner
also found wear and tear of the exterior as well as "some minor repairable hail damage to the
HVAC and condensing units." Id.
Defendant retained Luis Espino of Rimkus Consulting Group to further inspect Plaintiff's
property. Id. at 11. On August 7, 2019, Espino inspected the property. Id. Espino reported hail
caused cosmetic - but not functional - damage to the property. Id. Espino also determined foot
traffic caused damaged the property's metal roofing. Id. Espino found wind-driven rain caused
interior damage by water infiltration through deteriorated sealants, deteriorated wall flashings, and
rooftop vent penetrations. Id. As for the exterior damage, Defendant denied Plaintiff's second
claim by relying on policy exclusions for cosmetic damage, wear and tear, deterioration,
continuous or repeated seepage or leakage, and faulty workmanship, construction, or maintenance.

Id. Defendant denied coverage for the interior damage based on policy exclusions for interior water
damage unless the building first sustained covered damage to the roof or walls. Id.

1 Plaintiffs

Complaint does not allege a date of loss. See generally ECF No. 19. Plaintiffs Complaint- howeverstates, "Defendant assigned the claim, claim number 1388709." Id. at 3. According to Defendant's denial, claim
number 1388709 relates to a March 27, 2019 date of loss. ECF No. 56-2 at 2. Defendant's Motion states the date of
loss at issue is "March 27, 2019 and/or April 30,2019." ECF No. 47 at 7. But Plaintiffs Response to the Motion does
not allege a March 27, 20 l 9 date ofloss. See generally ECF No. 55. Instead, the Response lists an April 30, 2019 date
of loss.

3

Case 2:20-cv-00222-Z-BR Document 63 Filed 05/09/22

Page 4 of 12 PageID 2187

On August 28, 2020, Plaintiff sued Defendant. Plaintiff alleges breach of contract,
violations of the Texas Insurance Code, violations of the Texas Deceptive Trade Practices Act
("DTP A"), and breach of the duty of good faith and fair dealing. ECF No. 19 at 3-7. Plaintiff only
sues for damages caused by the March 27, 2019 storm or April 30, 2019 storm. See generally id.
Defendant moved for summary judgment on several grounds. First, Defendant alleges Plaintiff
fails to establish causation for its breach-of-contract claim. ECF No. 47 at 16-29. Second,
Defendant asserts Plaintiffs various extracontractual claims fail. Id. at 29-34. And third,
Defendant argues the Court should strike Plaintiffs alleged damages related to COVID-19
decontamination costs. Id. at 34-35.
LEGAL ST AND ARD

A 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.
C1v. P. 56(a). A fact is "material" if its existence or non-existence "might affect the outcome of
the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
"[T]he substantive law will identify which facts are material." Id. at 248. 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 must inform the court of the basis of the motion and show from
the record that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317,327
(1986). "The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports his or her claim." Ragas
v. Tenn. Gas Pipeline Co., 136 F.3d 455,458 (5th Cir. 1998).

When reviewing summary-judgment evidence, the court must resolve all reasonable doubts
and draw all reasonable inferences in the light most favorable to the non-movant. Walker v. Sears,

4

Case 2:20-cv-00222-Z-BR Document 63 Filed 05/09/22

Page 5 of 12 PageID 2188

Roebuck & Co., 853 F.2d 355,358 (5th Cir. 1988). A court cannot make a credibility determination

when considering conflicting evidence or competing inferences. Anderson, 477 U.S. at 255. If
some evidence supports a disputed allegation, so that "reasonable minds could differ as to the
import of the evidence," the court must deny the motion. Id. at 250.
ANALYSIS

Defendant moves for summary judgment on each of Plaintiffs claims. The Court addresses
Plaintiffs claims in turn.
A. Plaintiff's Breach-of-Contract Claim
A "breach of contract" occurs when a party fails to perform an act it has promised to
perform. Gaspar v. Lawnpro, Inc., 372 S.W.3d 754, 757 (Tex. App.-Dallas 2012, no pet.). 2 A
breach-of-contract claim has four elements under Texas law: "(1) the existence of a valid contract
between plaintiff and defendant; (2) the plaintiffs performance or tender of performance; (3) the
defendant's breach of the contract; and (4) the plaintiffs damage as a result of the breach." Id.
In Texas, special rules accompany insurance contracts. Courts must construe insurance
policies "using ordinary rules of contract interpretation." Nassar v. Liberty Mut. Fire Ins. Co., 508
S.W.3d 254, 257 (Tex. 2017). Thus, an insurance policy is "interpreted as a whole in accordance
with the plain meaning of its terms." Great Am. Ins. Co. v. Primo, 512 S.W.3d 890, 892 (Tex.
2017). When policy language is "clear and definite," the policy "is not ambiguous and will be
construed as a matter oflaw." Id. at 893.

2

This suit arose under the Court's diversity jurisdiction. Therefore, Texas substantive law governs. Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938). Because Texas substantive law governs, the Court is "bound by the decisions of
the Supreme Court of Texas." DeJoria v. Maghreb Petro. Exp/. , SA ., 935 F.3d 381, 387 (5th Cir. 2019). As for the
Texas Courts of Appeals, the United States Supreme Court has held that while the decrees of "lower state courts"
should be "attributed some weight," their decisions are not controlling where the Texas Supreme Court has not spoken
on the point. Kingv. Order ofTrave/ers, 333 U.S. 153, 160-161 (1948); see also Comm 'r v. Estate ofBosch, 387 U.S.
456, 465 (1967) (same). "[A]n intennediate appellate state court ... is datum for ascertaining state law which is not
to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state
would decide otherwise." West v. A. T & T Co., 3 I 1 U.S. 223,237 (1940).

5

Case 2:20-cv-00222-Z-BR Document 63 Filed 05/09/22

Page 6 of 12 PageID 2189

"Initially, the insured has the burden of establishing coverage under the terms of the
policy." JAW The Pointe, L.L.C. v. Lexington Co., 460 S.W.3d 597, 603 (Tex. 2015) (quoting
Ulico Cas. Co. v. Allied Pilots Ass 'n, 262 S.W.3d 773, 782 (Tex. 2008)). lfthe insured establishes
coverage, it is then the insurer's "burden to plead and prove that the loss falls within an exclusion
to the policy's coverage." Id 3 "If the insurer proves that an exclusion applies, the burden shifts
back to the insured to show that an exception to the exclusion brings the claim back within
coverage." Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd's London, 327 S.W.3d 118, 124
(Tex. 2010).
Texas also recognizes the concurrent-causation doctrine. Under the concurrent-causation
doctrine, "when 'excluded and covered events combine to cause' a loss and 'the two causes cannot
be separated,' concurrent causation exits and 'the exclusion is triggered' such that the insurer has
no duty to provide the requested coverage." Jaw The Pointe, 460 S.W.3d at 608 (quoting Utica
Nat'/ Ins. Co. of Tex. v. Am. lndem. Co., 141 S.W.3d 198, 204 (Tex. 2004)). It is the insured's
burden to segregate damages only attributable to the covered peril. Walls v. US. Auto Ass 'n, 2
S.W.3d 300,303 (Tex. App.-San Antonio 1999, pet. denied).
The Court finds an issue of material fact exists as to whether the March 27, 2019 storm or
April 30, 2019 storm caused functional damage to Plaintiffs property. Both parties concede a
material fact issue exists. See ECF No. 55 at 21 ("At minimum, there are material fact issues as to
whether the April 30 2019 [storm] caused the damage Plaintiff identified as requiring a full roof

3

See TEX. INS. CODE § 554.002 ("In a suit to recover under an insurance ... contract, the insurer ... has the burden
of proof as to any avoidance or affinnative defense that the Texas Rules of Civil Procedure require to be affinnatively
pleaded. Language of exclusion in the contract .. . constitutes an avoidance or an affinnative defense."); TEX. R. CIV.
P. 94 ("Whether the suit is on an insurance contract which insures against certain general hazards, but contains other
provisions limiting such general liability, the party suing on such contract shall never be required to allege that the
Joss was not due to a risk or cause coming within any of the exceptions specified in the contract, nor shall the insurer
be allowed to raise such issue unless it shall specifically allege that the Joss was due to a risk or cause coming within
a particular exception to the general liability .... ").

6

Case 2:20-cv-00222-Z-BR Document 63 Filed 05/09/22

Page 7 of 12 PageID 2190

replacement."); ECF No. 59 at 6 ("[T]his comparison arguably proves a fact issue regarding
whether some hail damage occurred on or about April 30, 2019 .... In fact, Church Mutual
concedes that there is certainly conflicting factual and expert evidence that, if believed, would be
sufficient to defeat summary judgment .. .. ").
Some fact issues exist because Plaintiff and Defendant cannot agree on the extent of hail
damage; that is, whether hail caused functional or cosmetic damage. Other fact issues exist because
Defendant contradicts itself, and parties have been unclear in their, at times, cursory pleadings.
Parties often fail to notice or ignore these fact issues in their pleadings. In doing so, Plaintiff and
Defendant provide the Court little -

if any -

help in deciding the Motion.

For instance, Defendant presents a handful of images of Plaintiffs property and concludes
the images show "wear and tear, deterioration, and historical repairs/patching to the roofs at the
Property." ECF No. 4 7 at 19-21. Defendant routinely fails to explain what exactly the images of
alleged exterior and interior damage purport to show. Some of the damage, Defendant argues, was
present before the inception of Plaintiffs policy. Id. at 21-22. Other damage, Defendant asserts,
was present before the April 30, 2019 storm. See id. at 22-23 ("Plaintiff originally submitted a
claim on March 25, 2019" and Defendant had the property inspected on April 22, 2019, "eight
days prior to the currently alleged date of loss."). Yet Defendant itself acknowledges "[t]his
dispute involves a claim for damage ... allegedly caused by hail and wind on or about March 27,
2019 and/or April 30, 2019." Id. at 7; see also ECF No. 56-2 at 2 (stating March 27, 2019 date of
loss in claim-denial letter sent by Defendant). If the March 27, 2019 storm damaged Plaintiffs
property, then the damage would be present during the April 22, 2019 inspection. So, in effect,
Defendant defeats its own prior-date-of-loss argument.

7

Case 2:20-cv-00222-Z-BR Document 63 Filed 05/09/22

Page 8 of 12 PageID 2191

Plaintiff is no better. Plaintiff lists no date of loss in its Complaint. See generally ECF No.
19. In fact, Plaintiff details little in the 245 words comprising the "factual background" of its
Complaint. See id. at 2-3. Plaintiff does -

however -

allege its claim arises from Defendant's

denial of claim number 1388709. Jd. at 3. Defendant's denial letter lists a March 27, 2019 date of
loss. ECF No. 52-2 at 2. But Plaintiff ignores Defendant's concession that the March 27, 2019
storm could have caused the property damage for which Plaintiff sues. See generally ECF No. 55.
Plaintiff argues the April 30, 2019 storm damaged the property. See id. at 11 (stating "none of the
roofs at issue were functionally damaged by hail prior [to] April 22, 2019" (emphasis removed)).
Not once does Plaintiff address the March 27, 2019 date despite mention of it in Defendant's
Motion and claim-denial letter.
And if the lack of coherent briefing were not enough, Defendant abandons much of the
initial argument on which its Motion relies, asking the Court to focus on concurrent causation
instead. See ECF No. 59 at 6 ("In fact, Church Mutual concedes that there is certainly conflicting
factual and expert evidence that, if believed, would be sufficient to defeat summary judgment on
those grounds. The issue is, instead, one of concurrent causation.").
"The doctrine of concurrent causation provides that when covered and non-covered events
under an insurance policy combine to create a loss, the insured may only recover the portion of the
damage caused by the covered event." Hosp. Operations v. Amguard Ins. Co., No. 1: l 9-CV-482MJT, 2021 U.S. Dist. LEXIS 125832, at *12 (E.D. Tex. Apr. 29, 2021); see also Seahawk
Liquidating Tr. v. Certain Underwriters at Lloyds London, 810 F.3d 986, 994 (5th Cir. 2016)
(same); Wallis v. United Services Auto Ass 'n, 2 S.W.3d 300,303 (Tex. App.-San Antonio 1999,
pet. denied) (explaining concurrent causation: "when covered and non-covered perils combine to
create a loss, the insured is entitled to recover only the portion of the damage caused solely by the

8

Case 2:20-cv-00222-Z-BR Document 63 Filed 05/09/22

Page 9 of 12 PageID 2192

covered peril"). If concurrent causation exists, "the insured must present some evidence affording
the jury a reasonable basis on which to allocate damages." Lyons v. Millers Cas. Ins. Co. of Tex.,
866 S.W.2d 597,601 (Tex. 1993). Evidence of damage need not be "overwhelming." Fiess v. State
Farm Lloyds, 392 F.3d 802, 808 (5th Cir. 2004). And the evidence need not "flawlessly segregate"
covered losses from non-covered losses. Id.
As discussed, Defendant argues the policy does not cover or excludes Plaintiffs claimed
damages. Defendant therefore argues Plaintiffs failure to segregate covered and non-covered
damages defeats the breach-of-contract claim. ECF No. 44 at 26-29. Plaintiff argues segregation
is unnecessary because all claimed damages are covered losses resulting from covered causes. ECF
No. 55 at 25-28. But how can the Court evaluate parties' concurrent-causation arguments if
causation remains at issue? The Court cannot evaluate concurrent-causation arguments if the Court
cannot determine what damage is excluded and what damage is covered under the policy. At a
minimum, a material fact issue exists regarding whether the policy covers Plaintiffs damages.
Parties acknowledge this fact issue. Id. at 21 ; ECF No. 59 at 6. Plaintiff need not segregate damages
if- for instance -hail alone caused all itemized damages to the property. Southland Lloyds Ins.
Co. v. Cantu, 399 S.W.3d 558, 576 (Tex. App.-San Antonio 2011, pet. denied). The Court
therefore finds summary judgment is improper on concurrent-causation grounds. See Laird v. CMI
Lloyds, 261 S.W.3d 322, 332 (Tex. App.-Texarkana 2008, pet. dism'd w.o.j.) (denying summary
judgment when parties' evidence did not clearly establish nature of property damage); Carter Tool
Co. v. United Fire & Cas. Co., No. MO:18-CV-163-DC, 2019 WL 7759499, at *4 (W.D. Tex.
Nov. 7, 2019) (denying summary judgment and finding material fact issue on concurrent
causation); cf Ironwood Bldg. II, Ltd. v. AXIS Surplus Ins. Co. , No. SA-19-CV-00368-XR, 2020

9

Case 2:20-cv-00222-Z-BR Document 63 Filed 05/09/22

Page 10 of 12 PageID 2193

WL 1234641, at *4 (W.D. Tex. Mar. 13, 2020) (denying summary judgment and finding "a
genuine dispute as to whether there [were] two concurrent or independent causes"). 4
For the reasons stated above, the Court DENIES the Motion as to Plaintiff's breach-ofcontract claim.

B. Plaintiff's Extracontractual Claims
Plaintiff asserts various extracontractual claims against Defendant, including violations of
the DTP A, Insurance Code, and breach of the common-law duty of good faith and fair dealing.
ECF No. 19 at 3-7.
Texas recognizes "two paths an insured may take" to establish an insurer caused statutory
damages: (1) "a right to receive benefits under the policy" or (2) "an injury independent of a right
to benefits." In re State Farm Mut. Auto. Ins. Co., 629 S.W.3d 866, 872 (Tex. 2021) (orig.
proceeding); USAA Tex. Lloyds v. Menchaca, 545 S.W.3d 479, 500 (Tex. 2018). "Under the first
path, if an insured 'establishes a right to receive benefits under the insurance policy [it] can recover
those benefits as actual damages under [statute] if the insurer's statutory violation causes the loss
of benefits."' In re State Farm. Mut. Auto. Ins. Co., 629 S.W.3d at 873 (quoting Menchaca, 545
S.W.3d at 495).

4

This case appears like Frymire Home Servs. v. Ohio Sec. Ins. Co., which certified a question to the Texas Supreme
Court. 12 F.4th 467 (5th Cir. 2021). The Fifth Circuit asked three questions. First, "[w]hether the concurrent cause
doctrine applies where there is any non-covered damage, including 'wear and tear' to an insured property, but such
damage does not directly cause the particular loss eventually experienced by plaintiffs." Id. at 472. Second, "[i]f so,
whether plaintiffs alleging that their loss was entirely caused by a single, covered peril bear the burden of attributing
losses between that peril and other, non-covered or excluded perils that plaintiffs contend did not cause the particular
loss." Id. And third, "[i]f so, whether plaintiffs can meet that burden with evidence indicating that the covered peril
caused the entirety of the loss (that is, by implicitly attributing one hundred percent of the loss to the peril)." Id. The
Texas Supreme Court dismissed the case with prejudice pursuant to a settlement agreement. See 2021 Tex. LEXIS
1127 (Tex. Dec. 3, 2021). Because a material fact issue exists regarding causation and the Court does not decide
whether alleged "non-covered damage ... directly cause[d] the particular loss eventually experienced by plaintiffs,"
the Court cannot decide the concurrent-causation question. 12 F.4th at 472 (emphasis added). The Court notes that,
although Defendant mentions Frymire, Defendant fails to mention the Fifth Circuit's certified question or the Texas
Supreme Court's dismissal of the question. See ECF No. 47 at 28-29; ECF No. 59 at 17-18. Plaintiff failed to address
the case altogether. See generally ECF No. 55.

Case 2:20-cv-00222-Z-BR Document 63 Filed 05/09/22

Page 11 of 12 PageID 2194

"[T]o the extent the policy affords coverage, extra-contractual claims remain viable." State
Farm Lloyds v. Page, 315 S.W.3d 525, 532 (Tex. 2010). As discussed, the Court cannot determine

whether there is coverage under Plaintiff's policy based on the documents before the Court. And
because the coverage question remains unsettled, the Court cannot resolve Plaintiff's
extracontractual claims. 5 See Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 55 (Tex. 1977); Hosp.
Operations, 2021 U.S. Dist. LEXIS 125832, at *16 (noting extracontractual claims survive

summary judgment if coverage exists). As a result, the Court DENIES summary judgment on
Plaintiff's extracontractual claims.
C. Plaintiff's Alleged COVID-19 Damages
Defendant argues, "if Valleyview's breach-of-contract claim survives the forgoing legal
scrutiny, Valleyview's claimed damages are overstated." ECF No. 47 at 34. Specifically,
Defendant claims Plaintiff's $250,000 COVID-19 protection and decontamination costs estimate
is unreasonable. Id Defendant asks the Court to strike the $250,00 estimate and reduce the estimate
accordingly. Id at 35. Defendant only cursorily address the proper amount of damages. See id at
34-35; ECF No. 59 at 20. And Plaintiff and Defendant dispute the proper amount of damages.
Because the Court finds there is a material fact issue as to causation and the proper amount of
damages, the Court DENIES summary judgment on this issue. See Widener v. Arco Oil & Gas
Co., Div. ofAt/. Richfield Co., 717 F. Supp. 1211, 1217-18 (N.D. Tex. 1989).

5

Without identifying a part of Plaintiffs pleading, Defendant argues: "To the extent Plaintiff claims Church Mutual
acted in bad faith because it failed to insure Plaintiffs interest as requested, that cause of action is simply not supported
by case law." Although Texas law recognizes a duty of good faith and fair dealing in handling insurance claims, Texas
law does not recognize such a duty in the underwriting phase of an insurance transaction. Commonwealth Lloyds Ins.
Co. v. Downs, 853 S.W.2d 104, 118-19 (Tex. App.-Fort Worth 1993, writ denied). Plaintiff brings claims for breachof-contract, violations of the Insurance Code and DTPA, and breach of the duty of good faith and fair dealing. See
generally ECF No. 19. It is not clear what portion of Plaintiff's Complaint that Defendant specifically references.

11

Case 2:20-cv-00222-Z-BR Document 63 Filed 05/09/22

Page 12 of 12 PageID 2195

CONCLUSION

For these reasons, the Court DENIES Defendant's Motion.
SO ORDERED.
May

_!f_, 2022
MAT HEW J. KACSMARYK
UN ED STATES DISTRICT JUDGE

12