Companion Prop. & Cas. Ins. Co. v. Opheim, Civil Action No. 3:14–CV–0752–G.

Decision Date20 February 2015
Docket NumberCivil Action No. 3:14–CV–0752–G.
Citation92 F.Supp.3d 539
PartiesCOMPANION PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiff, v. Charles M. OPHEIM, et al., Defendants.
CourtU.S. District Court — Northern District of Texas

William E. Reid, Jacqueline Ellise Montejano, Reid & Dennis PC, Dallas, TX, for Plaintiff.

Robert D. Allen, Thomas C. Barron, Law Offices of Robert D. Allen PLLC, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

A. JOE FISH, Senior District Judge.

Before the court is the plaintiff and counter-defendant Companion Property and Casualty Insurance Company's motion for summary judgment (docket entry 41). For the reasons discussed below, the summary judgment motion is granted in part and denied in part.

I. BACKGROUND
A. Factual Background

This is a dispute over whether an insurance policy covers damages awarded to the defendant, Charles Opheim (Opheim), in an earlier state court case. Appendix in Support of Charles Opheim's Brief Opposing Companion's Motion for Summary Judgment (Opheim's Appendix) (docket entry 49), Certified Copy of Judgment dated March 29, 2012 (“Certified Copy of Judgment”) at App. 010–022, Exhibit B; Appendix of Exhibits in Support of Companion's Motion for Summary Judgment (“Companion's Appendix”) (docket entry 43), Arbitrator's Award at App. 210–220, Exhibit N. Opheim hired Kevin Dillingham and his company Constructure (collectively, “Dillingham”) to add a second floor to his house at 11248 Jamestown Road, Dallas, Texas. Arbitrator's Award at App. 213. The remodeling project commenced in September 2009 and consisted of separate phases, allowing Opheim to reside in the house throughout construction. Opheim's Appendix, Affidavit of Charles Opheim (“Opheim's Affidavit”) ¶ 2 at App. 003, Exhibit A; Companion's Appendix, Excerpts from Deposition of Charles Opheim (“Opheim's Deposition”) at App. 19, Exhibit B. In October 2009, however, one of Dillingham's subcontractors “took off the roof during the demolition [in a way that] created a funnel effect that directed water into the part where [Opheim] intended to live.” Companion's Appendix, Correspondence from Opheim's Counsel, Van Shaw, to Dillingham's Counsel, Patrick C. Guillot, July 6, 2011 at App. 202 (“Opheim's Email to Lawrence”),1 Exhibit J. This flooding forced Opheim to forgo living in the house during construction. Id. In the months after the flooding, additional problems arose with the remodeling project, leading Dillingham to abandon his work. Opheim's Affidavit ¶ 6 at App. 004.

After leaving the job, Dillingham filed suit against Opheim in November 2010, to which Opheim responded with his own suit in February 2011. Companion Property & Casualty Insurance Company's Memorandum in Support of Motion for Summary Judgment (“Companion's Brief”) ¶ 9 (docket entry 42); Opheim's Affidavit ¶ 7 at App. 004. Eventually, the suits went to arbitration pursuant to the construction contract's binding arbitration clause. Opheim's Affidavit ¶ 7 at App. 005; Companion's Appendix, Cost–Plus Contract ¶ 15 at App. 4, Exhibit A. During a deposition preceding the arbitration, Dillingham admitted he had not “approached [his insurer] with [his] claim.” Companion's Appendix, Excerpts from Deposition of Kevin Dillingham at App. 36, Exhibit C. Shortly after this deposition, on June 30, 2011, Opheim reported the claim to Dallas National Insurance Company (Dallas National), Companion's agent for claims handling. Opheim's Affidavit ¶ 8 at App. 005; Companion's Brief ¶ 18 at 7; Companion's Appendix, General Liability Notice of Occurrence/Claim, dated June 30, 2011 (June 30 Notice of Occurrence”), Exhibit D–3. The notice of occurrence form resulting from this communication states that the [i]nsured failed to properly cover roof and water leaked into the home.” June 30 Notice of Occurrence at App. 149.

On July 5, 2011, a representative of Dallas National, Jeremy Lawrence (“Lawrence”), contacted Opheim regarding the claim he filed on Dillingham's policy. Opheim's Affidavit ¶ 9 at App. 005. Opheim then sent Lawrence an email with the petition he filed against Dillingham attached. Opheim's Email to Lawrence at App. 202. Given the pending arbitration, Dallas National expressed a preference to communicate with Opheim's attorney Van Shaw (“Shaw”), rather than Opheim directly, to get the claim processed. Opheim's Affidavit ¶ 9 at App. 005. Shaw sent three emails to Lawrence between Jul 12 and July 19, 2011, all of which went unanswered. Id. ¶¶ 10–11 at App. 006; Opheim's Appendix, Shaw's Letters dated July 12, 18, and 19, 2011, Exhibits F–H.

On or about July 15, 2010, Dillingham contacted Dallas National to confirm that an arbitration proceeding was pending. Plaintiff's Original Complaint for Declaratory Relief (“Complaint”) ¶ 25 (docket entry 1); Defendant Kevin Dillingham's Original Answer (“Dillingham's Answer”) ¶ 25 (docket entry 11). Dallas National informed Dillingham that “for Companion to become involved [, he] would need to forward the arbitration papers and provide the insurer with additional information so that it could investigate the claim.” Complaint ¶ 25; Dillingham's Answer ¶ 25. Shaw, Opheim's attorney, also contacted Dillingham's attorney on at least two occasions, requesting Dillingham to make a claim on his insurance policy. Companion's Appendix, Correspondences from Opheim's Counsel, Van Shaw, to Dillingham's Counsel, Patrick C. Guillot, July 6 and 19, 2011, Exhibits J and K. Despite these communications, “Dillingham did not seek or request a defense from Companion.” Complaint ¶ 25; Dillingham's Answer ¶ 25.

In the arbitration proceeding, Opheim pled various claims against Dillingham, including negligence, fraud, breach of contract, and violations of the Deceptive Trade Practices Act (“DTPA”). Companion's Appendix, Charles Opheim's First Amended Statement of Claims at App. 170–75, Exhibit G. Concluding that Dillingham had breached the contract and violated the DTPA, the arbitrator awarded Opheim $162,828.00 in damages and $36,500.00 in attorneys' fees on February 1, 2012. Arbitrator's Award at App. 216–219. On February 29, 2012, Dillingham contacted Dallas National to file a claim for the first time. Companion's Appendix, General Liability Notice of Occurrence/Claim, dated February 29, 2012 at App. 152, Exhibit D–4. The Dallas County Court at Law No. 1 entered a final judgment confirming the arbitrator's award on March 29, 2012. Certified Copy of the Judgment at App. 011.

B. Procedural Background

Companion filed its complaint for declaratory relief against Opheim, Dillingham, Constructure, and KWD Investments, Inc. (“KWD”), in this court on February 27, 2014 (docket entry 1). Both Opheim and Dillingham filed answers to the complaint (docket entries 5 and 11). Opheim also asserted counterclaims for breach of contract, violations of Chapters 541 and 542 of the Texas Insurance Code, and breach of the common law duty of good faith and fair dealing. Defendant Charles Opheim's Original Answer (“Opheim's Answer”) ¶¶ 74–87 (docket entry 5). Companion then answered these counterclaims (docket entry 20). Neither Constructure nor KWD answered Companion's complaint and thus the clerk entered default against both defendants (docket entry 27). The court initially granted a default judgment (docket entry 28). However, realizing this order would affect the rights of the remaining parties to the dispute, the court vacated the order but kept in place the clerk's entry of default, “meaning that those parties are not ... entitled to service of notices in the cause, nor to appear in it in any way” (docket entry 30) (citation omitted).

Companion then filed a motion to dismiss all of Opheim's counterclaims except for the breach of contract claim (docket entry 14). The court granted this partial motion to dismiss, leaving Opheim's breach of contract claim as the only surviving claim (docket entry 33). Next, Opheim filed a motion to set a Local Rule 16.3(b) settlement conference (docket entry 34), which the court denied as premature (docket entry 37). The court then ordered the parties to meditate the dispute (docket entry 38), an effort that was ultimately unsuccessful (docket entry 46).

Companion filed the present summary judgment motion, and supporting documents, shortly after the court referred the dispute to mediation (docket entries 41, 42, and 43). Opheim filed a response to the motion, including some evidentiary objections (docket entries 47, 48, and 49). Companion filed a reply and a motion to strike some of Opheim's summary judgment evidence (docket entries 55, 56, and 57). Opheim filed a timely response to these evidentiary objections (docket entry 62) and Companion followed with a timely reply (docket entry 63). During the briefing of Companion's summary judgment motion, Opheim filed another motion to set a Local Rule 16.3(b) settlement conference (docket entry 50). Companion responded to this motion (docket entry 53) and the court ultimately denied the motion (docket entry 61). The court now turns to the disposition of Companion's summary judgment motion and both parties' evidentiary objections.

II. ANALYSIS
A. Evidentiary Objections
1. The Court Partially Sustains and Partially Overrules Opheim's Objections to David Bourneuf's Declaration

Opheim raises objections to paragraphs 11–17 and 19–21 of the declaration of David Bourneuf (“Bourneuf”). Charles Opheim's Brief Opposing Companion's Motion for Summary Judgment (“Opheim's Response”) at 6 (docket entry 48); Companion's Appendix, Declaration of David Bourneuf, Exhibit D. The court overrules Opheim's best evidence objections to paragraphs 11–16. Bourneuf was “responsible for managing and reviewing general liability insurance policies and claims” and “reviewed the entire claims file.” Companion Property and Casualty Insurance Company's Reply (“Companion's Reply”) at 3 (docket entry 55); Declaration of David Bourneuf ¶ 1 at App. 41. This court has previously noted that [p]ersonal knowledge may be...

To continue reading

Request your trial
13 cases
  • Nautilus Ins. Co. v. Jirsa Constr. Co.
    • United States
    • U.S. District Court — Western District of New York
    • March 24, 2017
    ...2003 WL 22881560, at *2 (D. Minn. Dec. 1, 2003) (finding that "the policy language is clear"); Companion Prop. & Cas. Ins. Co. v. Opheim , 92 F.Supp.3d 539, 553–54 (N.D. Tex. 2015) (enforcing exclusion with identical language and finding that the insured's "smaller premium came with the tra......
  • Landmark Am. Ins. Co. v. Port Royal by the Sea Condo. Owners Ass'n
    • United States
    • U.S. District Court — Southern District of Texas
    • March 26, 2022
    ...is an issue of fact, unless the insured fails to present any evidence regarding allocation.” Companion Prop. & Cas. Ins. Co. v. Opheim, 92 F.Supp.3d 539, 548 (N.D. Tex. 2015). “Although a plaintiff is not required to establish the amount of his damages with mathematical precision, there mus......
  • Giles v. Shaw Sch. Dist.
    • United States
    • U.S. District Court — Northern District of Mississippi
    • March 12, 2015
    ... ... SHAW SCHOOL DISTRICT, et al., Defendants.Civil Action No. 4:14CV00024SAJMV.United States ... v. State Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir.2014) (Sprint ... ...
  • Hiscox Ins. Co. v. MRB Lawn Servs.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • September 14, 2023
    ...it “does not apply to ‘bodily injury' arising out of.,.[a]ll operations in. . .New York.”); Companion Prop. & Cas. Ins. Co. v. Opheim, 92 F.Supp.3d 539, 553 (N.D. Tex. 2015) (holding that under Texas law, the phrase “this insurance does not apply to ‘bodily injury' or ‘property damage' aris......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT