Brandley v. Allstate Texas Lloyd's

Filing 33

OPINION denying as moot 26 MOTION to Exclude Evidence and granting 28 MOTION for Summary Judgment. (Signed by Magistrate Judge Stephen Wm Smith) Parties notified. (jmarchand)

B r a n d l e y v. Allstate Texas Lloyd's

D o c . 33

U N IT E D STATES DISTRICT COURT S O U T H E R N DISTRICT OF TEXAS H O U S T O N DIVISION § § § § § § § § § §

Zcataline Brandley Plaintiff, vs. Allstate Texas Lloyd,'s d/b/a, Allstate Insurance Company, Defendant.

Civil Action H-07-1410

O p in io n on Summary Judgment B e f o re the court is a motion for summary judgment (Dkt. 28) filed by Defendant A lls ta te Texas Lloyd,'s d/b/a Allstate Insurance Company. For the reasons expressed below, A lls ta te 's motion is granted. Background This lawsuit arose out of the burglary of Plaintiff Zcataline Brandley's home and A llstate's refusal to pay Brandley's claim for the items taken in the burglary. Brandley's c o m p la in t asserted claims for breach of contract, emotional distress and mental anguish, c o m m o n law bad faith, violations of the Deceptive Trade Practices Act ("DTPA"), and v io la tio n s of Article 21.21 of the Texas Insurance Code. Her complaint also sought punitive d a m a g e s and attorney's fees.1 On December 7, 2007, Allstate filed a motion for partial s u m m a ry judgment. Brandley did not respond and on May 2, 2008, this court issued a partial

1

See Dkt. 1, Ex. A. 1

Dockets.Justia.com

s u m m a r y judgment order which disposed of Brandley's claims for punitive damages, c o m m o n law bad faith, and violations of the DTPA and Article 21.21. Three days before the c o u rt's order was docketed, Allstate filed its instant motion seeking summary dismissal of B ra n d le y's remaining claims. The court heard oral argument on Allstate's motion on June 1 9 , 2008.

S t a n d a r d of Review T o obtain summary judgment, Allstate bears the burden of demonstrating that "the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the af fid av its, if any, show that there is no genuine issue as to any material fact" and therefore ju d g m e n t is appropriate as a matter of law. Fed. R. Civ. P. 56(c). Summary judgment should is s u e if, after having adequate time for discovery, Brandley has produced insufficient e v i d e n c e to create a jury question on one or more of the essential elements of her claims. C e lo tex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Conversely, where Allstate has the b u r d e n of proof, it must establish, as a matter of law, every essential element of its defense b e f o re Brandley can be obligated to produce specific facts to rebut the defense. Chaplin v. N a tio n s Credit Corp., 307 F.3d 368, 372 (5th Cir. 2002). In determining the existence of a g e n u in e issue of material fact, the court will draw all inferences arising from the facts in the lig h t most favorable to the nonmoving party. Hotard v. State Farm Fire & Cas. Co., 286 F .3 d 814, 817 (5th Cir. 2002).

2

A n a ly sis A s was the case with Allstate's partial motion for summary judgment, Brandley has f a ile d to respond to Allstate's motion and the only evidence in the record is the evidence attac h ed to Brandley's original petition. This evidence is limited to a page from Brandley's in s u ra n c e policy with Allstate, and a "public release report for Harris County law e n f o rc e m e n t" which lists the items reported stolen in the burglary.2 T h is evidence is insufficient to overcome summary judgment. To prevail on a breach o f contract claim, Brandley must show that Allstate failed to preform an act or thing that it im p lie d or expressly promised to preform. Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex. App. 2003, pet. denied). Despite having had ample time to conduct discovery, 3 Brandley has not c re a ted a fact issue on the issue of whether Allstate failed to preform according to its p ro m ise , and she has failed to show that she suffered damages as a result. In her initial Rule 2 6 disclosures, Brandley identified no documents or computations of data to support her claim s or quantify her damages. 4 Similarly, despite this court's order granting Allstate's m o tio n to compel,5 Brandley did not respond to Allstate's discovery requests asking her to

2

See Dkt. 1 (containing attachments to Plaintiff's Original Petition, pgs. 7, 10-12).

This case was removed to federal court on April 26, 2007, the scheduling order has been in place since July 18, 2007, and the discovery cut-off date was March 31, 2008.
4

3

See Dkt. 29, Ex. 3, pgs. 1-2. See Dkt. 22. 3

5

lis t facts which supported her allegations of breach and damages.6 D u rin g oral argument Brandley's counsel stated that Brandley could give testimony s u p p o rtin g her claims for breach of contract and damages, but acknowledged that no such t e s t i m o n y had been submitted to the court. Since the discovery period has closed and B r a n d le y's counsel could not give a valid reason for failing to provide facts supporting B ra n d le y's claims (or for failing to file a Rule 56(f) motion or otherwise request more time to respond to Allstate's motion), this court finds that no fact issues preclude summary ju d g m e n t on Brandley's breach of contract claim. Because Brandley has failed to show that A llstate breached its contract with her or otherwise acted improperly, she has also failed to s u p p o rt her emotional distress and mental anguish claims. Accordingly, Allstate's motion is granted, and all other pending motions are dismissed a s moot. S ig n e d at Houston, Texas on July 2, 2008.

6

Id., Ex. 2., pgs. 2-3. 4