Fortman v. Allstate Fire and Casualty Insurance Company

Filing 21

OPINION. Allstate did not breach. The parties agree that no hail and wind storm occurred on 11/17/2015. Fortman cannot recover damages for a storm that occurred in May if he did not give sworn proof of loss within 91 days as defined by policy. All extra-contractual damages are derivative of Fortman's breach of contract claim, and without merit. Fortman will take nothing from Allstate Fire and Casualty. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS District Court
United States
Southern District of Texas

ENTERED
Brian Fortman,
Plaintiff,
versus
Allstate Casualty and Fire Insurance Co.,
Defendant.

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August 09, 2017
David J. Bradley, Clerk

Civil Action H-r6- 28 3 5

Opinion
Introduction.

r.

A homeowner says that a hail and wind storm caused $59,439.66 of damage to
his roof. The insurance company estimated damages of only $664.58. The insurance
policy has an $ 8 ,000 deductible. The homeowner sued for breach of contract and extracontractual damages. The company moved for summary judgment. It will prevail.

Background.

2.

Allstate Fire and Casualty Insurance Company insured Brian Fortman's house
in Missouri City, Texas. This policy was effectivefrom December of 2or4, to December
of

20 r 5.

It covered casualties to the property caused by nature. It had an $ 8 ,000

deductible. Fortman filed a claim with Allstate, saying that on November 17,

20r 5,

a

hail storm extensively damaged his roof. Allstate sent three adjusters to inspect the
roof. They estimated repairs of $664.58. They found no evidence consistent with hail
or wind storm damage.
Fortman hired an estimator - James P. McClenny - who reported $59>439.66
in damage. McClenny had a weather report of conditions at Fortman's property since
2011.

This report shows no hailstorm in November 2015. The only hailstorm in

20r 5

was in May. Fortman says that the storm's date does not matter because a storm did
occur during the covered year.

3.

Contract Claim.
Fortman argues that Allstate breached the contract by denying his claim. He

says that Allstate has a duty to compensate the repairs because the evidence indicates
a hailstorm occurring during the covered period of May 25, 2015. Allstate counters
that F ortman failed to show that a hailstorm was solely responsible for any damage to
his home. There is no dispute that no hailstorm occurred during the month of
November.

4.

The Policy.
F ortman and Allstate contracted for coverage of his residential property from

December 4, 2.0 14, to December 4, 2015. The policy has a condition requiring
Fortman to "promptly" notify the insurer and file a sworn proof ofloss within 91 days.
The statement must include the date, time, location and cause ofloss. Allstate has no
duty to provide coverage if Fortman fails to comply with these terms.

5.

The Storm.
On November 28,2015, Fortman filed a sworn proof ofloss for hail and wind

storm damage. He said that a hail and wind storm damaged his property on November
17, 2.0 1 5. Allstate inspected the property and found no evidence of hail or wind storm

damage. In June 2016 - seven months after his claim - Fortman hired an estimator to
inspect the property. The estimator reported damages of $ 59,439.66. In August- nine
months after the claim - Fortman filed the original petition for damages under the
policy. In his petition, Fortman pleaded that a storm damaged his property on
November 17,2.015.
In September 2.016, the case was removed because the parties are diverse. In
December 2016, - over a year after his claim - Fortman amended his complaint.
Again, he represented that on November 17,2.015, a hail and wind storm extensively
damaged his property. A weather report obtained by Fortman's own witness revealed
that no hail or wind storm occurred near the house on November 17, 2015. One
occurred on May 25,2015. It was not until a conference held in March 2017 - one year
and four months after his initial claim - that Fortman admitted that a hail and wind
storm did not occur in November 2015.

6.

The Condition.
If we assume that a loss occurred on May

25, 2015,

Fortman breached the

contract by not complying with the policy's condition of promptly filing a claim and
giving sworn proof ofloss within 91 days. Fortman did not file a claim for a hail and
wind storm in May

and there was no storm in November

2015,

2015,

for which he

repeatedly swore. He cannot change his claim over a year later after neglecting to
research the facts of his own case.

7.

James P. McClenny.
Fortman contrasts James P. McClenny's estimate of $59>439.66 to Allstate's

estimate of $664.58. He insists that the disparity between these estimates shows that
Allstate is breaching its contract. McClenny's estimate is unreliable. His son is a
partner at Fortman's law firm. McClenny receives half of all his assignments from his
son and works with no other law firms. McClenny conceded that he did not know the
nature of the claim that had been filed, nor the age ofF ortman's roof when he inspected
it. He simply inspected the property for any damage he could find. McClenny also
conceded that he did not know when the damage occurred. Consequently, his
inspection is unprincipled for determining damages caused by a hail and wind storm
that occurred on any date, much less one on the day Fortman swore it happened.
McClenny's estimate fails every element of relevance, rigor, and technical competence.

8.

Conclusion.
Allstate did not breach. The parties agree that no hail and wind storm occurred

on November

17, 2015.

Fortman cannot recover damages for a storm that occurred in

May ifhe did not give sworn proof ofloss within 91 days as defined by the policy. All
extra-contractual damages are derivative of Fortman's breach of contract claim, and
without merit. Brian Fortman will take nothing from Allstate Fire and Casualty
Insurance Company.
Signed on August

9,2017,

at Houston, Texas .

.. <'lynn ~~gh)SyL
United States DistrictJudge