Carswell v. State Farm Lloyds

Filing 55

MEMORANDUM OPINION AND ORDER: The court ORDERS that defendant's 40 motion for summary judgment be, and is hereby, granted in part; that plaintiff take nothing on her claims against defendant for violations of the Texas Insurance Code, DTPA, and bad faith; and, that such claims be, and are hereby, dismissed. The court further ORDERS that the motion be, and is hereby, otherwise denied. (Ordered by Judge John McBryde on 12/6/2017) (tln)

U.S. DISTRICT COURT
NORTHERN DI3l'R[CT OF TEXAS

F].T P n
.1.d_[~_Lj

IN THE UNITED STATES DISTRICT C
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
LEONA G. CARSWELL,

§

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•• CLERK, U.S. DISTIU.Cl c(; L' xr
•;By _ _ _ _ _ _ _ __
Deputy

'--------·--~-~-----···

§

Plaintiff,

RT

§
§

vs.

§

NO. 4:17·CV·149·A

§

STATE FARM LLOYDS,

§
§

Defendant.

§

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, State
Farm Lloyds, for summary judgment. The court, having considered
the motion, the response of plaintiff, Leona G. Carswell, the
reply, the record, the summary judgment evidence, and applicable
authorities, finds that the motion should be granted in part.
I.

Plaintiff's Claims
Plaintiff's operative pleading is her amended complaint
filed April 13, 2017. Doc. 1 15. Plaintiff alleges: Plaintiff
purchased a rental dwelling policy from defendant providing
coverage for property located in Fort Worth, Texas. Plaintiff's
property was damaged in a fire caused by a gas explosion on or
about March 19, 2010. Plaintiff used a contractor recommended by
defendant, but the contractor failed to satisfactorily complete
repairs. Plaintiff then undertook to complete the repairs herself

'The "Doc.

"reference is to the number of the item on the docket in this action.

l

I

f

I

as a general contractor, but defendant failed to pay her expenses
incurred to repair or replace damaged property.
Plaintiff asserts four "claims for relief.• First, she sues
under the Texas Deceptive Trade Practices-Consumer Protection
Act, Tex. Bus.

&

Com. Code

§§

17.41-.63 ("DTPA"). Second, she

sues under the Texas Insurance Code

§

541.060. Third, she sues

for breach of duty of good faith and fair dealing. And, fourth,
she sues for breach of contract.
II.
Grounds of the Motion
As best the court can tell, defendant contends that
plaintiff cannot prevail on any of her claims.' None of the
grounds is set forth with clarity and the argument follows a
stream of consciousness style, which is difficult to follow. That
plaintiff's amended complaint is extremely poorly drafted is not
an excuse.
III.
Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense

2

Defendant's motion for summary judgment states that the requirements of Local Civil Rule LR
56.3 are met by including the required matters in its brief. Doc. 40. The brief, however, does not on the
first page, under the heading "summmy," state concisely the elements of each claim or defense as to
which summa1y judgment is sought. Doc. 41. Plaintiff's response likewise says that the requirements of
the rule will be met in her brief, Doc. 46, and her brief is similarly deficient. Doe. 47.
2

if 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); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247
(1986).

The movant bears the initial burden of pointing out to

the court that there is no genuine dispute as to any material
fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).

The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim, "since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial.''

Id. at 323.

Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.

Id. at 324; see also Fed. R. Civ. P. 56 (c)

asserting that a fact . .

. is genuinely disputed must support

citing to particular parts of materials in

the assertion by
the record

("A party

.").

If the evidence identified could not lead

a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

3

475 U.S. 574, 587, 597

In Mississippi Prot. & Advocacy

(1986).

Sys., Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law. 3

Celotex Corp., 477 U.S. at 323.

If the record taken as a

whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Mississippi Prat. &
Advocacy sys.,

929 F.2d at 1058.
IV.
Analysis

A.

Breach of Contract
Defendant initially argued that plaintiff's breach of

contract claim (her fourth claim for relief)

is barred by

limitations. Having considered plaintiff's response, defendant
has withdrawn this ground of the motion.

3

ln Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the comt should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
4

B.

Texas Insurance Code
In her second claim for relief, plaintiff says that

defendant violated § 541.060 of the Texas Insurance Code in
various respects. Defendant contends that plaintiff cannot
prevail on any of these claims, addressing them in the order
alleged in the amended complaint.
Plaintiff first says that defendant misrepresented a
material fact or policy provision in violation of § 541.060(a) (1)
by representing that the policy would repair or replace items
with ones of equal value. Specifically, she alleges that
defendant "did not meet the standards of the policy" in allowing
the initial contractor, Leatherman's, to repair the property with
items of lesser quality. Doc. 15 at ,56.a. 4 Plaintiff was asked
about the misrepresentations in her deposition and her testimony
is recited in defendant's brief. Doc. 41 at 6. Defendant
maintains that plaintiff has no evidence that it misrepresented
any material fact or policy provision relating to the coverage at
issue, as required by Tex. Ins. Code§ 541.060(a) (1) . 5 In
response, plaintiff cites to her amended complaint, which is not
evidence. And, she refers to paragraph 7 of her affidavit, Doc.

'Plaintiff did not even bother to number the pages of the amended complaint; hence, the comt
refers to paragraph numbers.
'Clearly, the quoted language from plaintiff's deposition does not establish any
misrepresentation.

5

48 at 2, which states that the man who sold her the policy said
it was the best policy she could buy and whatever damage
occurred, the dwelling would be repaired to its same condition.
Of course, general assurances that a policy will be honored are
not material misrepresentations under the Insurance Code. Davis
v. State Farm Lloyds, No. 3:15-CV-596-B, 2015 WL 4475860, at *5
(N.D. Tex. July 21, 2015). Plaintiff does not cite any evidence
to support her misrepresentation claim as to the terms of the
policy.
Defendant next addresses the claim (set forth at Doc. 15, ,
56.b) that defendant failed to affirm or deny coverage within a
reasonable time. Tex. Ins. Code. § 541. 060 (a) (4). The summary
judgment evidence establishes that defendant acknowledged
coverage on the date the claim was reported. Plaintiff agrees and
does not contest this ground of the motion. Doc. 47 at 8.
Plaintiff's next allegation is that defendant refused to pay
a claim without conducting a reasonable investigation, in
violation o.f Tex. Ins. Code§

541.060(a)(7). Doc. 15 a t , 56.c.

Defendant says there is no evidence to support this allegation.
Plaintiff responds that three critical facts must be tried with
respect to this cause of action:
1. Cindy Fergus spent fifteen minutes investigating the
work completed by the Leatherman's prior to determining
the final amount of money State Farm would pay to Mrs.

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Carswell with respect to her claims (Carswell Aff. , 8,
Apx. 2) ;
2. Dan Wilson failed to consider the exhaustive list of
missing items from any previous estimate provided to
State Farm (Carswell Aff. , 8, Apx. 2); and
3. Dan Wilson inspected the property with a
preconceived decision.
Doc. 47 at 9.
Paragraph 8 of the affidavit to which plaintiff refers reads
in its entirety:
8.

"After I fired Leatherman' s as the contractor, Ms.
Fergus and I met at the property. I was not told
the purpose of this meeting, why we were at the
house, or what the outcome of the meeting was
going to be. It was more than one-hundred (100)
degrees that day in July and we spent no more than
fifteen minutes in the property breezing through
the rooms."

Doc. 48 at 2. Plaintiff also refers to the deposition testimony
of Dan Wilson regarding his review of information plaintiff had
provided to him in a binder. Doc. 47 at 10; Doc. 48 at 29-30. She
then goes on to argue why the investigation was insufficient, but
none of the facts argued are supported by summary judgment
evidence. That is, she simply has not cited summary judgment
evidence to support her contention that there is any genuine fact
issue to be tried with regard to the investigation conducted by
defendant.
The final aspect of plaintiff's second claim for relief is
that defendant failed to promptly provide a reasonable
explanation for its denial of a claim, in violation of Tex. Ins.
7

Code§ 541.060(a) (3). Doc. 15 a t , 56.d. Defendant argues that it
did not deny plaintiff's claim and has paid what it determined
was owed. Further, plaintiff has no evidence to support this
claim. Doc. 41 at 9-10. In response, plaintiff cites only to her
affidavit, which states:
I would email Cindy Fergus invoices and estimates and
it would be weeks, sometimes a full month before I
would get a response stating she was looking into it
and then I would never receive payment or explanation
as to why no payment was being sent.
Doc. 48 at 3. However, plaintiff has also included summary
judgment evidence that defendant never denied her claim. Doc. 48
at 35. See also id. at 14, 16 (showing payments from defendant to
plaintiff after she retained an attorney) . The parties do not
dispute that defendant made substantial payments to or on behalf
of plaintiff for repairs by Leatherman's and others. Plaintiff
has not shown that a genuine fact issue exists as to this part of
her claim under the Insurance Code.
C.

Good Faith and Fair Dealing
Plaintiff's third claim for relief is for breach of duty of

good faith and fair dealing. The sole basis for this claim is
that:
Dan Wilson at the time of the walk through at the house
personally saw the condition of the home and knew the
condition it was in; he knew the house was not
completed to where Plaintiff could resume using the
home for.its intended purpose. Dan Wilson intentionally
ignored his obligation to fulfill the Policy
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requirements to repair and replace the necessary items
to return the home to its original state.
Doc. 15 at ,

61.b. The only other allegations regarding the walk

through are contained in paragraphs 38-41 of the amended
complaint:
38. Dan Wilson attended a walk-through at the Property,
where both Plaintiff and her counsel were present, in
an attempt to make a new estimate for work remaining
for the project to be complete on March 19, 2015.
39. Aside from adding budget items for profit and
overhead due to Plaintiff in her capacity as general
contractor--Wilson did not modify the report for work
needed or materials required to complete the project.
40. On May 12, 2015, Mr. Wilson sent a response letter
to Plaintiff with one check for $13,014.50, and another
check for $8,722.21.
41. These checks were not an amount sufficient for
Plaintiff to complete the project.
Doc. 15 at , , 38-41. The court is not satisfied that these
allegations are sufficient to state a plausible claim for breach
of duty of good faith and fair dealing. Nevertheless, at this
point, the issue is whether plaintiff can establish that there is
a genuine issue for trial as to this claim.
Defendant says that plaintiff has no evidence to show that
defendant failed to attempt in good faith to effectuate a prompt,
fair, and equitable settlement of a claim after its liability had
become reasonably clear. Progressive County Mut. Ins. Co. v.
Boyd, 177 S.W.3d 919, 922

(Tex. 2005). Nor can she show that

defendant failed to conduct a reasonable investigation. Id. The
court agrees. Plaintiff has not pointed to any summary judgment
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evidence that suggests that defendant examined plaintiff's claims
"through a preconceived lens• as she suggests. Doc. 47 at 15.
Plaintiff admits that defendant was still writing plaintiff
checks in 2015. Id. Although the date of loss was in 2010,
plaintiff has not presented any evidence that defendant did not
act in good faith and deal fairly with plaintiff.
For example, plaintiff refers to the conclusory statement in
her affidavit that she would email Cindy Fergus invoices and
estimates and it would be weeks before she would get a response
and then she would never receive payment or an explanation for
why no payment was being sent. Doc. 48 at 3,

~

9. The actual

emails (although undated) reflect that Ms. Fergus had been sick,
id. at 7, and that she had moved offices and everything had been
turned upside down,

id. at 9. An email from Ms. Fergus reflects

that she is submitting a request for additional payments and will
call to review. Id. at 11. The testimony of Mr. Wilson (trying to
answer the extraordinarily convoluted questions of plaintiff's
counsel) was that if the contractor plaintiff chose did not do
the work properly, plaintiff should address the matter with the
contractor. Doc. 48 at 33.
Plaintiff testified that she has no idea how much of her own
money she had spent in connection with the repairs to the
property and that she did not keep any kind of accounting. Doc.

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42 at 90. Any contracts she had with vendors were verbal; she
paid in cash and does not know if any bank records would
substantiate the amounts she allegedly withdrew. Id. at 95-97,
98-99. She testified about numerous upgrades and changes she made
to the property in the process of rebuilding that would not have
been reimbursed under the policy. See, e.g., Doc. 42 at 48-49,
51-53, 60, 65, 67-68, 73-74. In light of this testimony, it is
difficult to imagine how defendant acted in bad faith. But, in
any event, plaintiff has not come forward with summary judgment
evidence to raise a genuine fact issue as to bad faith.
C.

DTPA
Plaintiff admits that her DTPA claim is dependent upon

establishing violations of the Texas Insurance Code. Doc. 47 at
16-17. Plaintiff has not raised a genuine fact issue as to such
violations. Accordingly, defendant is entitled to judgment as to
the DTPA claim.
D.

Other Arguments'
The bulk of the remainder of the brief in support of

defendant's summary judgment motion addresses damages and
miscellaneous matters that do not need to be considered in light
of the previous discussion. As to the "concealment or fraud"

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The comt also notes that defendant filed objections to the affidavit of plaintiff. Doc. 50. The
coutt is giving the summary judgment evidence whatever weight it deserves.
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argument, defendant has not established that the policy is void
due to intentional concealment or misrepresentation by plaintiff.

v.
Order
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted in part; that plaintiff take
nothing on her claims against defendant for violations of the
Texas Insurance Code, DTPA, and bad faith; and, that such claims
be, and are hereby, dismissed.
The court further ORDERS that the motion be, and is hereby,
otherwise denied.
SIGNED December 6, 2017.

District Ju

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