Mamani et al v. AIG National Insurance Company, Inc.

Filing 29

OPINION AND ORDER granting 24 Motion for Summary Judgment and the Complaint of Plaintiffs, Alfredo Mamani and PatricialGonzalez is DISMISSED..(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
ALFREDO MAMANI
and PATRICIA GONZALEZ
V.
AIG NATIONAL INSURANCE
COMPANY, INC.

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CIVIL ACTION NO. G-11-106

OPINION AND ORDER
Before the Court is the Motion for Summary Judgment of Defendant, AIG National
Insurance Company, Inc. (AIG); the Motion seeks the dismissal of the Complaint of
Plaintiffs, Alfredo Mamani and Patricia Gonzalez. The Motion is ripe for determination
and the Court now issues this Opinion and Order.
Plaintiffs’ residential rental property was damaged by flood waters during Hurricane
Ike. At the time, the property was insured under a Standard Flood Insurance Policy issued
by AIG, a WYO carrier under the National Flood Insurance Program. AIG sent an
adjuster to the property. The adjuster spoke with Mamani and the tenants who had
remained during the hurricane. After examining the claimed flood damages the adjuster
determined that any covered damage was insufficient to meet the Plaintiffs’ deductible.
Consequently, AIG made no payment under the policy.

Plaintiffs then hired an attorney, David Spradlin. On February 4, 2009, AIG
received from Spradlin a sworn Proof of Loss (POL) in the amount of $111,578.38 signed
by Mamani. On March 4, 2009, AIG sent Spradlin a letter rejecting the POL and denying
the Plaintiffs’ claim.
On August 4, 2009, AIG received a letter from another attorney representing the
Plaintiffs, Sam Bearman. Enclosed with the letter was another sworn POL signed by
Mamani, this one was in the amount of $279,100.00. Also enclosed was a contractor’s
repair estimate in the amount of $83,250.00. By letter dated August 26, 2009, AIG
informed Bearman it was rejecting the POL. More than one year later, on September 1,
2010, Plaintiffs sued AIG for breach of contract.
In its Motion for Summary Judgment, AIG argues that Plaintiffs’ lawsuit was not
timely filed and should be dismissed as time-barred. The Plaintiffs have not filed a
response, but the Court cannot grant summary judgment by default; however, in the
absence of a response, the Court may accept the movant’s evidence as unopposed and
determine whether that undisputed evidence merits summary judgment. See Eversley v.
MBank of Dallas, 843 F.2d 172, 174 (5th Cir. 1988).
In the opinion of this Court, the only relevant “undisputed” fact in this case is the
date upon which AIG notified Plaintiffs it had rejected their initial POL and denied their
claim, to wit: March 4, 2009. That denial triggered the one year limitations period and
the Plaintiffs’ Complaint filed on September 1, 2010, was untimely. Cf. Qader v. FEMA,
543 F.Supp. 2d 558 (E.D. La. 2008). But even assuming the second POL could have

reinstated the limitations period and the August 26, 2009, denial letter could have
“retriggered” it, Plaintiffs’ Complaint was still untimely.
It is, therefore, ORDERED that the Motion for Summary Judgment (Instrument no.
24) of Defendant, AIG National Insurance Company, Inc., is GRANTED and the
Complaint of Plaintiffs, Alfredo Mamani and PatricialGonzalez is DISMISSED.
DONE at Galveston, Texas, this

9th

day of September, 2015.