Van Tassel v. State Farm Lloyds et al

Filing 19

OPINION AND ORDER granting 7 Motion for Summary Judgment.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHARLES

VAN TASSEL,

§
§
§
§
§
§
§
§

Plaintiff,
VS.
STATE FARM LLOYDS, et al,
Defendants.

CIVIL ACTION NO. 4:14-CV-2864

OPINION AND ORDER

In

the

dispute

above

over

storm

Plaintiff

Charles

allegedly

underpaid

referenced

cause,

damage

sustained

Van
or

Tassel’s
denied

arising
on

(“Van
by

his

out

April

of
4,

Tassel’s”)
homeowner’s

a

claim

2012

by

property,
insurer

Defendant State Farm Lloyds (“State Farm”),1 Van Tassel brings
claims for common law breach of insurance contract, violation of
the Texas Prompt Payment of Claims statute, Texas Insurance Code
Article 542.051 et seq., breach of the common law duty of good
faith and fair dealing, violations of the Texas Insurance Code
§§ 541.051, 541.060, 541.061, and 541.152(a)-(b),2 and violations
of

the

Texas

Deceptive

Trade

Practices

Act

(“DTPA”),

Texas

1

In state court before the last removal Van Tassel dropped his claims against
State Farm Lloyds, Inc. and sued State Farm Lloyds instead. Defendant Andre
Hutchins as been dismissed for improper joinder. Thus the style of this suit
has been amended.
2

A violation of Chapter 541 of the Texas Insurance Code is also a violation
of the DTPA. Vail v. Texas Farm Bureau Mut. Ins. Co., 754 S.W. 2d 129, 135
(Tex. 1988).

1 / 18

Business and Commerce Code §17.50(a)(1) and (3).
the

Court

is

Defendant

State

Farm

Lloyds’

Pending before

(“State

Farm’s”)

motion for summary judgment (instrument #7) on the grounds that
all of Van Tassel’s claims are barred by the applicable statutes
of limitations.
Standard of Review
Summary

judgment

under

Federal

Rule

of

Civil

Procedure

56(c) is appropriate when, viewing the evidence in the light
most favorable to the nonmovant, the court determines that “the
pleadings,
admissions

depositions,
on

file,

answers

together

with

to
the

interrogatories
affidavits,

show

and
that

there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.”
Allegations in a plaintiff’s complaint are not evidence.
Wallace

v.

Texas

Tech

1996)(“[P]leadings

are

80

Univ.,
not

F.3d

summary

1042,

1047

judgment

(5th

Cir.

evidence.”);

Johnston v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir.
1995)(for the party opposing the motion for summary judgment,
“only evidence-–not argument, not facts in the complaint--will
satisfy’

the

burden.”),

citing

Solo

Serve

Assoc., 929 F.2d 160, 164 (5th Cir. 1991).

Corp.

v.

Westown

The nonmovant must

“go beyond the pleadings and by [his] own affidavits, or by
depositions, answers to interrogatories and admissions on file,
designate specific facts showing that there is a genuine issue
2 / 18

of material fact for trial.”

Giles v. General Elec. Co., 245

F.3d 474, 493 (5th Cir. 2001), citing Celotex, 477 U.S. at 324.
The

court

must

consider

all

evidence

and

draw

all

inferences from the factual record in the light most favorable
to the nonmovant.

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

475 U.S. 574, 587 (1986); National Ass’n of Gov’t Employees v.
City Pub. Serv. Board, 40 F.3d at 712-13.
The party asserting an affirmative defense, such as the
statute of limitations or estoppel, bears the burden of proof on
it.

376

F.3d

317, 322 (5th Cir. 2004), cert denied, 544 U.S. 904 (2005).

See

F.T.C.

v.

National

Business

Consultants,

Inc.,

Fed. R. of Civ. P. 8(c)(“In responding to a pleading, a party
must affirmatively state any avoidance or affirmative defense
including“ estoppel and statute of limitations.).

Nevertheless,

a “technical failure to comply precisely with Rule 8(c) is not
fatal”

and

does

not

“result[]

in

a

waiver”

as

long

as

the

defendant raises the defense “in a manner that does not result
in unfair surprise” and “at a pragmatically sufficient time,”
and the plaintiff was not prejudiced in its ability to respond.”
Lucas v. United States, 807 F.2d 414, 417 (5th Cir. 1986); Vanhov
v. United States, 514 F.3d 447, 450 (5th Cir. 2008); Lee v. U.S.,
765 F.3d 521, 523-24 (5th Cir. 2014).

3 / 18

Substantive Law
Because this case was removed from Texas state court on
diversity

jurisdiction,

Texas

substantive

law

applies.

R.R. Co. v. Tompkins, 304 U.S. 64, 78-80 (1938).

Erie

Therefore the

Court looks to final decisions by the Texas Supreme Court or,
where there are none, attempts to determine as best it can what
that

high

decisions

court
of

would

decide

intermediate

about

appellate

an

issue

state

by

courts.

examining
James

v.

State Farm Mutual Auto. Ins. Co., 719 F.3d 447, 451 (5th Cir.
2013), citing Westlake Petrochems., L.L.C. v. United Polychem,
Inc., 688 F.3d 232, 238 n.5 (5th Cir. 2012), and Howe ex rel.
Howe v. Scarsdale Ins. Co., 204 F.3d 624, 627 (5th Cir. 2000).
In

Texas,

the

statute

of

limitations

for

a

breach

of

insurance contract action is four years from the day the cause
of action accrues.

Tex. Civ. Prac. & Rem. Code § 16.051; Stine

v. Stewart, 80 S.W. 3d 586, 592 (Tex. 2002).

Under the “legal

injury rule,” a cause of action accrues when a wrongful act
causes the legal injury, even if the injury is not discovered
until later).3

Kuzniar v. State Farm Lloyds, 52 S.W. 3d 759, 760

(Tex. App.--San Antonio 2001, rev. denied)(en banc), citing S.V.

3

Exceptions to the rule are if the cause of action is not recognized because
of fraud or fraudulent concealment or if the cause of action is “inherently
undiscoverable,” i.e., “by nature unlikely to be discovered within the
prescribed limitations period despite due diligence.”). Kuzniar, 52 S.W. at
760.
The Court finds that Van Tassel has not alleged, no less shown, that
either exception pertains here.

4 / 18

v. R.V., 933 S.W. 2d 1, 4 (Tex. 1988).

Nevertheless, under

Texas Civil Practice & Remedies Code §16.070(a) the parties to a
contract may reduce the four-year limitations period, subject to
the following restriction:
Except as provided by Subsection (b), a person may not
enter a stipulation, contract, or agreement that
purports to limit the time in which to bring suit on
the stipulation, contract or agreement to a period
shorter than two years.
A stipulation, contract, or
agreement that establishes a limitations period that
is shorter than two years is void in this state.
State Farm points out that Van Tassel’s policy with State
Farm, (Ex. A, SF/ Van Tassel, Policy 0005 [#7-1, electronic p.
5]) contains a limitations clause requiring any suit or action
to be commenced within two years and one day after the cause of
action accrues:
SUIT AGAINST US ENDORSEMENT
SECTION I--CONDITIONS . . . .
Suit Against Us, is replaced with the following:
Suit Against Us.
No action shall be brought unless
there has been compliance with the policy provisions
and the action is started within two years and one day
after the date of loss or damage.
Texas courts have held that contractual limitations like
this one are valid and binding.
Exchange,

952

S.W.

2d

108,

See, e.g., Jett v. Truck Ins.
109-10

(Tex.

App.--Texarkana

1997)(“Insurance provisions that limit the time within which to
file a suit to two years and a day are valid and binding.”);
5 / 18

Barth v. Royal Ins. Co., No. 13-02-688-CV. 2004 WL 2904306, at
*3 (Tex. App.--Corpus Christi Dec. 16, 2004)(approving clause
limiting time to file suit to two years and one day after the
cause of action accrues).
In

breach

of

insurance

contract

cases,

the

statute

of

limitations runs from the insurer’s denial of the claim, as the
injury would occur when the insurer unreasonably failed to pay
the insured’s claim.

Tex. Civ. Prac. & Rem. Code § 16.051;

Willoughby v. Metro Lloyds Ins. Co., 548 Fed. Appx. 121, 123 (5th
Cir. Nov. 29, 2013); Murray v. San Jacinto Agency, Inc., 800
S.W.

2d

826,

828-29

(Tex.

1990).

While

the

rule

that

the

statute of limitations in a claim for insurance proceeds begins
to run on denial of a claim is well established, when there is
no express denial Texas courts use, at the latest, the date the
insurer closed the claim file as the start of the limitations
period.

Kuzniar, 52 S.W. 3d at 760-61 (“The legal injury in

this case occurred when State Farm unreasonably failed to pay
the Kuzniars’ claim, which at the very latest was when the claim
file was closed . . . .”)4.

Moreover, “[u]nder Texas law, a

plaintiff’s cause of action for bad faith breach of a first
party insurance contract accrues at the time the insurer denies
4

In accord, Sheppard v. Travelers Lloyds of Texas Ins. Co., No. 14-08-00248CV, 2009 WL 3294997, at *4-5 (Tex. App.--Houston [14th Dist.] Oct. 15, 2009,
rev. denied)(date the claim file was closed is “an objectively verifiable
event that unambiguously demonstrate[s the insurer’s] intent not to pay the
claim . . . .”).

6 / 18

the insured’s claims.”

Provident Life and Acc. Ins. Co. v.

Knott, 128 S.W. 3d 211, 221 (Tex. 2003), citing Murray v. San
Jacinto Agency, Inc., 800 S.W. 2d 826, 828 (Tex. 1990).
At

issue

petition

suing

in

this

suit

State

misidentification

of

Farm
the

was

whether

Lloyd’s,
proper

Inc.

Van

Tassel’s

was

Defendant,

with

insisting until recently that it was a misnomer.
recognize

the

legal

distinction

misidentification of a defendant.

a

between

initial

misnomer
Van

or

Tassel

Texas courts
misnomer

and

Enserch Corp. v. Parker, 794

S.W. 2d 2, 4 (Tex. 1990). See 67A C.J.S. § 176.

Misnomer and

misidentification [footnotes omitted], which explains:
“A misnomer” is a mistake in name or the provision of
an incorrect name to the person in an accusation or
pleading; it means nothing more than that a party has
been sued in other than his or her own name.
A
misnomer occurs when a plaintiff intends to sue the
correct defendant and misnames him in the petition or
citation but nevertheless describes events in the
document in such a way that the correct defendant,
receiving service, understands that he or she is the
intended defendant.
Most important of all, the
intended defendant must actually be served with the
citation in order to establish that adequate notice of
the suit was given.
A “misidentification,” on the other hand, occurs when
two separate legal entities exist, and a plaintiff
mistakenly sues an entity with a name similar to that
of the correct entity.
Because a misidentification
directs the documents regarding the action [to] the
wrong entity, the correct defendant is generally not
put on notice of the action, and consequences of
misidentification are harsh.
With
7 / 18

a

misnomer,

not

only

is

limitations

tolled,

but

a

subsequent amendment of the petition relates back to the date of
the original petition.
plaintiff

is

mistaken

Enserch, 794 S.W. 2d at 4-5.
about

which

of

two

defendants

If the
is

the

correct one and sues the wrong party, i.e., a misidentification,
generally limitations is not tolled.

Id. at 5.

There is,

however, an exception in misidentification cases, recognized in
Continental Southern Lines, Inc. v. Hilland, 528 S.W. 2d 828,
831 (Tex. 1975), and Chilkewitz v. Hyson, 22 S.W. 3d 825, 830
(Tex. 1999), that “limitations may be tolled when the plaintiff
sues an incorrect entity if there are two separate but related
entities that use a similar trade name and the correct entity
had notice of the suit and was not misled or disadvantaged by
the mistake.”
“‘Judicial

estoppel

prevents

a

party

from

asserting

a

position in a legal proceeding that is contrary to a position
previously

taken

in

the

same

or

some

earlier

Tranverse, LLC v. Iowa Wireless Services, LLC,
, No. 13-51098,

proceeding.’”
Fed. Appx.

2015 WL 3622798, at *3 (5th Cir. July 11, 2015),

quoting Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 396 (5th
Cir.

2003).

To

warrant

application

of

judicial

estoppel,

a

party must show (1) that the party’s current position is clearly
inconsistent with its previous position and (2) the party must
have persuaded the court to accept its previous position.
citing id.
8 / 18

Id.,

See also Reed v. City of Arlington, 650 F.3d 571,

574

(5th

Cir.

2011)(en

party

banc)(the

arguing

for

judicial

estoppel must show that “(1) the party against whom judicial
estoppel

is

sought

has

asserted

a

legal

position

which

is

plainly inconsistent with a prior position; (2) a court accepted
the

prior

position;

inadvertently.5”).
that

may

be

and

(3)

the

party

did

not

act

Judicial estoppel is an equitable doctrine

“invoked

where

intentional

self-contradiction

is

being used as a means of obtaining unfair advantage in a forum
provided for suitors seeking justice.”

Kane v. Nat’l Union Fire

Ins. Co., 535 F.3d 380, 385 (5th Cir. 2008).

One purpose of the

equitable doctrine is “to prevent litigants from playing fast
and loose with the courts.”
estoppel

protects

“the

Hall, 327 F.3d at 396.

integrity

of

the

judicial

Judicial
process.”

United States ex rel. American Bank v. C.I.T. Construction Inc.
of Texas, 944 F.2d 253, 256 (5th Cir. 1991).

The United States

Supreme Court declined to “‘establish inflexible prerequisites
or an exhaustive formula for determining the applicability of
judicial

estoppel’”

considerations

‘may

and
inform

specific factual contests.’”

instead

opined

the

doctrine’s

that

“different

application

in

Reed, 650 F.3d at 574. quoting New

Hampshire v. Maine, 532 U.S. 742, 751 (2001).

5

In Gabarick v. Laurin Maritime (America) Inc., 753 F.3d 550, 553 n.3 (5th
Cir. 2014), the court stated that the third element is only applicable “when
the judicial estoppel is based on the non-disclosure of a claim in a prior
bankruptcy proceeding.”

9 / 18

Another affirmative defense, the doctrine of unclean hands,
permits a court to refuse to grant equitable relief sought by
“‘one whose conduct in connection with the same matter
or transaction has been unconscientious, unjust or
marked by a want of good faith, or one who has
violated the principles of equity and righteous
dealing.’
In addition, the complaining party must
show an injury to himself arising from the conduct.
‘The clean hands maxim should not be applied when the
defendants have not been seriously harmed and the
wrong complained of can be corrected without applying
the doctrine.’”
In re Jim Walters Homes, Inc., 207 S.W. 3d 888, 899 (Tex. App.-Houston [14th Dist.] 2006), quoting Thomas v. McNair, 882 S.W. 2d
870, 880 (Tex. App.--Corpus Christi 1994, no writ).

Whether a

party has come into court with clean hands is a matter within
the sound discretion of the court.

Thomas, 882 S.W. 2d at

880.

With respect to the clean hands doctrine, “Texas courts have
long

spoken

in

terms

weighing

the

equities,

even

when

foreclosing recovery completely; the inquiry must go beyond an
analysis of the plaintiff’s errors of omission or commission, to
balance these against the defendant’s unjust acts.”

Bank of

Saipan v. CNG Financial Corp., 380 F.3d 836, 841 (5th Cir. 2004).
State Farm’s Motion for Summary Judgment (#7)
State Farm argues that Van Tassel’s cause of action against
State Farm accrued on May 9, 2012.
the

history

of

the

After describing in detail

investigation,

inspection,

estimates,

repairs, re-inspections, etc. performed by State Farm and its
10 / 18

agents,

State

determined

Farm

that

states

Van

that

Tassel’s

adjuster

roof

did

Andre

not

Hutchins

warrant

full

replacement, prepared his estimate of damage in the total amount
of

$863.71,

which

was

less

that

the

policy’s

deductible

of

$1,264.00, on May 2, 2012, mailed a copy of his estimate along
with

his

decision

letter

to

Van

Tassel,

closed the claim file on May 9, 2012.
file of State Farm.

and,

significantly,

Ex. C, Van Tassel claim

Thus limitations began to run from that

date.
As
denying

detailed
Van

in

Tassel’s

the

Court’s

third

Tassel sued the wrong party.

previous

motion

to

Opinion

remand,

and

Order

initially

Van

Though given substantial notice by

State Farm throughout the course of this litigation, counsel for
Van Tassel insisted that he would pursue his claim against State
Farm Lloyds, Inc., that he intended to sue that entity instead
of State Farm, and that his choice to sue State Farm Lloyds,
Inc. was not a misnomer.

Only on September 8, 2014, after being

remanded to state court, did counsel for Van Tassel amend his
petition, drop State Farm Lloyds, Inc., and name State Farm as
Defendant.

Thus, argues State Farm, his suit against State Farm

for breach of insurance contract was commenced more than two
years and a day after his cause of action accrued on May 9, 2012
and is barred by limitations.
Van Tassel’s extra-contractual claims for breach of good
11 / 18

faith and fair dealing and violations of the Texas Insurance
Code are subject to a two-year statute of limitations.

Tex.

Ins. Code § 541.162; Tex. Civ. Prac. & Rem. Code § 16.003(a).
In Provident Life and Accident Ins. Co., 128 S.W. 3d at 220-21,
the

Texas

Supreme

contractual

Court

causes

misrepresentation,

of
breach

held

that

action
of

the

against

duty

of

insured’s
the

good

extra-

insurer

faith

and

for
fair

dealing, and violations of the Texas Insurance Code and the DTPA
were governed by a two-year statute of limitations that accrued
upon the denial of the insured’s claim for benefits under the
policy.

See also Johnson & Higgins of Texas, Inc., 962 S.W. 2d

507 (Tex. 1998)(applying two-year statute of limitations to all
claims grounded in the Texas Insurance Code).

State Farm argues

that Van Tassel’s causes of action for bad faith and alleged
violations of the Texas Insurance Code accrued when State Farm
determined that Plaintiff’s claim did not exceed his deductible
and closed the file on May 9, 2012 and therefore Van Tassel’s
claim for breach of duty of good faith and fair dealing and
violations of the Texas Insurance Code are also time-barred.
Next, State Farm maintains that Van Tassel is judicially
estopped from asserting now that his suit against State Farm
Lloyds, Inc. was a misnomer and that it was the wrong party
defendant

because

he

took

the

contrary

position

before

this

Court when he filed his second motion to remand (Ex. D, ¶ 15)
12 / 18

and insisted that he had sued the right party and that the
doctrine of misnomer did not apply.6

Thus State Farm charges

that he “played fast and loose” with the Court in insisting the
case was not a misnomer or a misidentification.

After the suit

was remanded, when State Farm Lloyds, Inc. moved for summary
judgment on the grounds that it could not be liable under a
policy issued by State Farm or for bad faith denial under that
policy,
Lloyd’s,

Van

Tassel

Inc.

defendant.

from

amended
the

his

suit,

petition,
and

named

dropped
State

State

Farm

as

Farm
the

Unlike a misnomer, a misidentification does not toll

the statute of limitations.

Dalton v. State Farm Lloyd’s, Inc.,

4 F. Supp. 3d 859, 864-65 (S.D. Mar. 4, 2014), citing De Jongh
v. State Farm Lloyds, 555 Fed. Appx. 435, 437

n.3 (5th Cir.

2014).
Van Tassel’s Response (#13)
Even though Van Tassel futilely insisted for most of this
litigation that the doctrine of misnomer did not apply here to
his suit against State Farm Lloyds, Inc., Van Tassel now argues
for application of the equitable exception to the general rule
under Enserch, 794 S.W. 2d at 5, that misidentification does not
toll the statute of limitations.

He claims that he satisfies

the requirements for equitable tolling because even though he
6

Based on these misrepresentations, the Court held that State Farm was not,
and never had been, a party to this suit and thus could not remove it, and
remanded the case to state court.

13 / 18

sued the wrong defendant, the correct defendant, State Farm, had
notice of the suit and was cognizant of the facts, as evidenced
by its answering the suit and removing it even though it was not
named as the Defendant.

Chilkewitz, 22 S.W. 3d at 830; Diamond

v. Eighth Ave. 92, LC, 105 S.W. 3d 691, 695 (Tex. App.-–Fort
Worth, no pet.).

Ex. B.

He notes that not only did State Farm

insist from commencement of this action is state court that it
was the proper defendant and remove the case originally, but
after that removal State Farm filed a certificate of interested
parties in the case, identifying itself as the defendant and
stating that it had been “misnamed” as State Farm Lloyds, Inc.,
made

an

offer

discovery,

of

answered

judgment,

made

discovery,

and

litigated the suit for nearly two years.
I.

disclosures,

propounded

otherwise

vigorously

Exs. C, D, E, F, G, H,

Van Tassel argues that State Farm met the third element for

equitable tolling, i.e., that it was not misled or disadvantaged
by the mistake.

Id.; id.

Citing Palmer v. Enserch Corp., 728

S.W. 2d 431, 434 (Tex. App.--Austin 1987, writ ref’d n.r.e.), he
asserts, “The plaintiff’s diligence in preventing the running of
limitations

is

not

the

issue;

the

issue

is

whether

the

legitimate purpose of limitations would be served by applying it
where

no

pleading.”

party

is

misled

or

disadvantaged

by

the

error

in

Contending that any argument State Farm makes to

avoid equitable tolling is “squarely defeated” by State Farm’s
14 / 18

contention

in

its

response

to

Van

Tassel’s

second

motion

to

remand (Ex. A, ¶ 18):
[E]ven if Plaintiff’s original state court petition
did misidentify State Farm Lloyds, the exception to
the misidentification rule applies because State Farm
Lloyds and State Farm Lloyds, Inc. are separate but
related entities that use a similar trade name; State
Farm Lloyds had notice of the lawsuit; and State Farm
Lloyds was not misled or prejudiced by Plaintiff’s
mistake.
State Farm’s Reply (#14)
State Farm agrees that it has been an active participant in
this

case

since

its

commencement,

participated

in

discovery,

filed responses to Van Tassel’s motions, and always argued that
it was the proper defendant, that Van Tassel misnamed State Farm
as State Farm Lloyds, Inc., and that State Farm was not misled
or prejudiced by Van Tassel’s error in misnaming the defendant
at the time.
date

in

In contrast up to just a month before the trial

this

Court,

Van

Tassel

adamantly

denied

that

he

erroneously sued State Farm Lloyds, Inc., a citizen of Texas
like himself.

Noting the black letter rule that a plaintiff is

the master of his complaint and the lack of diversity between
Van Tassel and

State Farm Lloyds, Inc., the undersigned judge

remanded the case to state court.

Invoking the doctrine of

unclean hands, State Farm contends that Van Tassel’s “convenient
change of heart should not be applauded.”
State
15 / 18

Farm

contends

that

although

#14 at p. 2.
it

was

not

misled

or

prejudiced at the time it filed its response to Van Tassel’s
second

motion

to

remand,

which

was

granted,

it

is

now.

Specifically, Van Tassel wasted two years of this Court’s time
and resources merely to avoid a trial date against a party that
Van

Tassel

knew

was

not

the

correct

defendant

insurer.

He

steadily maintained that he did not intend to sue State Farm,
but once the case was remanded, he dropped State Farm Lloyds,
Inc. and added State Farm as the defendant.

Thus State Farm has

been prejudiced by being forced to re-litigate this case from
square one, a suit that Van Tassel represented to the Court that
he did not intend to pursue against State Farm.

Contradicting

his statement in his second motion to remand a year ago (#7-5),
Van Tassel now admits that he misrepresented the intended party
in order to obtain the remand, in his response to State Farm’s
motion for summary judgment, #13 at ¶ 28.7

7

Ironically, because

In that response he stated, id.,
Here, it is undisputed that the correct defendant-State Farm--had notice of the suit and was cognizant
of the facts.
The correct defendant--State Farm-appeared in the suit and even identified itself as
Defendant less than a month after it was filed. The
correct defendant--State Farm--purported to remove
the case to federal court.
The correct defendant-State Farm--filed a certificate of interested parties
identifying itself as Defendant and noting that it
had been “misnamed” as State Farm Lloyds, Inc.
The
correct defendant--State Farm--made an offer of
judgment, made disclosures (again self-identifying as
Defendant
and
alleging
misnomer),
propounded
discovery,
answered
discovery,
and
otherwise
vigorously litigated the suit for almost two years.

16 / 18

of Van Tassel’s misrepresentations, the statute of limitations
on his claims against State Farm has expired.

His request that

the Court equitably toll the statute of limitations is clearly
outweighed by his prior persistent misrepresentations that have
misled the Court and State Farm Lloyds, Inc.
that

it

has

been

misrepresentations

seriously

in

that

injured

it

was

State Farm claims
by

Van

deprived

Tassel’s

of

federal

jurisdiction, it was deprived of a timely trial, and it is now
being

forced

to

litigate

an

untimely

lawsuit

that

Plaintiff

previously represented to this Court that he never intended to
bring against State Farm.

Because Van Tassel comes to this

Court

he

with

relief.
Farm

unclean

hands,

is

not

entitled

to

equitable

In re Francis, 186 S.W. 3d 534, 551 (Tex. 2006).

further

points

out

that

Van

Tassel

has

not

State

cited

any

authority suggesting that courts should condone his behavior.
Court’s Decision
The Court fully concurs with State Farm that it is entitled
to

summary

judgment

on

limitations

grounds

on

asserted against State Farm in the Amended Petition.

all

claims

It agrees

that Van Tassel is judicially estopped from asserting now that
his suit against State Farm Lloyds, Inc. was a misnomer and that
State

Farm

Lloyds,

Inc.

was

the

wrong

party

defendant.

Furthermore the Court finds that State Farm has met its burden
to show that Van Tassel comes to the Court with unclean hands in
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his request for equitable tolling and that his request should be
denied.
Accordingly, the Court
ORDERS that State Farm’s motion for summary judgment is
GRANTED.

A final judgment shall issue by separate order.

SIGNED at Houston, Texas, this 31st day of July, 2015.
________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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