A&E Austin 1, Ltd. v. Nationwide Gen. Ins. Co.
| Docket Number | SA-21-CV-01031-JKP |
| Decision Date | 01 August 2023 |
| Parties | A&E AUSTIN 1, LTD., Plaintiff, v. NATIONWIDE GENERAL INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Western District of Texas |
Before the Court is Defendant Nationwide General Insurance Company's (Nationwide) Motion for Summary Judgment and Motion for Judgment on the Pleadings. ECF Nos 19,23. Plaintiff A&E Austin 1, Ltd. (A&E) responded. ECF Nos. 21. Upon consideration, the Court concludes the Motion is DENIED.
This case arises from an insurance claim made on a replacement-cost, commercial policy (the Policy) for damage arising from a hailstorm that occurred on May 27, 2020. A&E submitted the insurance claim for hail damage to the Property's roof and HVAC equipment through its public adjuster, James King (“King”) of Blackstone Claims Services. Nationwide assigned adjuster Angela Greene who was supervised by her manager Kirk Varner. Greene communicated with King on July 27, 2020, when he confirmed he was claiming hail damage to the roof of the property. King provided a letter stating the claim was being made on a Replacement Cost Value basis. Greene retained a national independent adjusting firm to conduct an inspection of the property, AllCat Claims Service, which then assigned the file to independent adjuster Todd Kounse. Kounse inspected the property on August 3, 2020, and recorded his observations and photographs in a report, which noted he observed no signs of hail damage to the roof, but he did observe hail damage to the A/C fins on five HVAC units and hail dents to the casings on two of the HVAC units. During Kounse's inspection King disagreed with Kounse's findings, and pointed out areas on the roof surface that King claimed were hail damage. Kounse photographed and identified these specific areas in his report to Nationwide, but opined the identified marks were not consistent with hail damage. Kounse advised King his estimate was subject to the review and approval of Nationwide, and he had no authority to settle the claim.
On August 4, 2020, Green reviewed Kounse's report and estimate and drafted a claim decision letter acknowledging the hail damage to the HVAC units but noting the estimated value of that damage, $574.31, was less than the policy's $27,040 deductible. Greene's letter further explained that King's claimed damage to the roof surface and ponding water issues at the rear of the roof was related to wear and tear and faulty design and workmanship. Greene provided a summary of the applicable policy language which excluded these damages. Greene sent the claim decision letter to King on August 7, 2020 and invited him to contact her if he had any questions. No further contact was received, and on September 2, 2020 the file was closed.
Ten months later, on June 2, 2021, Nationwide received a pre-suit notice and demand letter from A&E's counsel, which included an estimate from Jim Irmiter of Forensic Building Science for building interior repairs due to water damage exterior repairs and a roof replacement. Greene retained a forensic engineering firm ProNet on June 12, 2021 to evaluate the interior and exterior damage claims. On July 11, 2021, Greene received and reviewed the findings of forensic engineer Wyatt Hardenberg of ProNet engineering. Hardenberg opined there was no functional damage to the roofing and building envelope as the result of hail or wind on May 27, 2020, and long-term and on-going water intrusion had occurred through pre-existing openings. Green and Varner determined A&E presented no information to change Nationwide's position on the insurance claim.
A&E brought suit on September 9, 2021 alleging breach of contract and violation of the Texas Insurance Codes 541 and 542.[1] Nationwide brings seeks judgment on the pleadings under Federal Rule 12(c), as well as summary judgment under Federal Rule 56.
A motion brought pursuant to Federal Rule 12(c) is “designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts.” Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, at 312 (5th Cir. 2002); Hebert Abstract Co., Inc., 914 F.2d 74, 76 (5th Cir. 1990). In considering a Rule 12(c) motion to dismiss, the Court must assume all material facts pled by Plaintiff is true and must resolve all inferences in Plaintiff's favor. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (citing Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)).
The standard for dismissal under Federal Rule 12(c) is the same as that for dismissal for failure to state a claim under Federal Rule 12(b)(6). Johnson v. Johnson, 385 F.3d 503, 528 (5th Cir. 2004) (citing Great Plains Trust Co., 313 F.3d 313 n.8). This Court will accept the facts asserted in Plaintiff's complaint as true and view them in the light most favorable to the Plaintiff. Johnson, 385 F.3d at 529. Dismissal under Federal Rule 12(c) will be granted only when the Plaintiff would not be entitled to relief under any set of facts consistent with the complaint. Id.
“Thus, the inquiry focuses on the allegations in the pleadings and not on whether the plaintiff actually has sufficient evidence to succeed on the merits.” Ackerson v. Bean Dredging, LLC, 589 F.3d 196, 209 (5th Cir. 2009) (quoting Ferrer v. Chevron Corp., 484 F.3d 776, 782 (5th Cir. 2007)).
Review of the Motion and Responses reveal the parties dispute material facts, and the parties attach evidence to support their positions. In addition, this litigation is well past the discovery and dispositive motions deadlines. Under these facts, consideration of a Federal Rule 12(c) motion is improper. See Great Plains, 313 F.3d, at 312.
In addition, when, on a motion under Federal Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the Court, the motion must be treated as one for summary judgment under Rule 56. FED. R. CIV. P. 12(d). Nationwide presents the Court with evidence to support its position and intertwines and routinely shifts between its arguments based on Federal Rules 12 and 56. This presentation of argument and evidence is improper.
For these reasons, the Court will treat Nationwide's filing as a Motion for Summary Judgment and will consider Nationwide's arguments and evidence presented pursuant to Federal Rule 56. Accordingly, to the extent it is presented, Nationwide's Motion for Judgment on the Pleadings is DENIED.
Summary judgment is appropriate if the record shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Rodriguez v. Pacificare, Inc., 980 F.2d 1014, 1019 (5th Cir. 1993).[2] “A fact is material only if its resolution would affect the outcome of the action.” Wiley v. State Farm Fire & Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009). A genuine dispute for trial exists if the record taken as a whole could lead a reasonable trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010). Because there must be a genuine dispute of material fact, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The moving party bears the initial burden of informing the court of the basis for the motion and of identifying those portions of the record which demonstrate the absence of a genuine dispute of material fact or the appropriateness of judgment as a matter of law.” Celotex Corp., 477 U.S. at 323; Adams v. Travelers Indem. Co., 465 F.3d 156, 163 (5th Cir. 2006). The movant is not required to negate the elements of the nonmovant's case but may satisfy its summary judgment burden by demonstrating the absence of facts supporting specific elements of the nonmovant's cause(s) of action. Little v. Liquid Air Corp., 37 F.3d 1069, 1075, 1076 n. 16 (5th Cir. 1994).
To satisfy this burden, the moving party must provide affidavits or identify any portion of the pleadings, discovery or admissions that demonstrate the absence of a triable dispute of material fact. Celotex Corp., 477 U.S. at 323; Rodriguez, 980 F.2d at 1019. “If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response.” Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014).
If the movant carries its initial burden, the burden shifts to the nonmovant to present competent summary judgment evidence showing the existence of a genuine dispute of material fact. Matsushita, 475 U.S. at 586-87; see also Fed.R.Civ.P. 56(c). Upon the shifting burden “[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.” Brown v. City of Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003); see also Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which this evidence raises a genuine dispute of material fact. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)(citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)). Further, should the...
To continue reading
Request your trial