Berdin v. Allstate Ins. Co.
| Docket Number | 02-22-00426-CV |
| Decision Date | 26 October 2023 |
| Parties | Norlita Berdin, Appellant v. Allstate Insurance Co., Appellee |
| Court | Texas Court of Appeals |
On Appeal from County Court at Law No. 2 Tarrant County, Texas Trial Court No. 2021-003824-2
Before Kerr, Birdwell, and Womack, JJ.
Appellant Norlita Berdin[1] brought suit against Appellee Allstate Insurance Co., alleging the breach of an insurance contract and certain extra-contractual claims. The trial court later granted Allstate's no-evidence motion for summary judgment on each of Berdin 's claims. In what we construe to be one issue on appeal,[2] Berdin argues that the trial court erred by granting Allstate's no-evidence motion for summary judgment because it was filed "prematurely" before discovery had been completed and because Allstate did not controvert certain affidavits filed by Berdin contesting Allstate's liability. We will affirm.
Allstate issued an insurance policy to Garsase Ltd. Co. (Garsase) for the period of June 13, 2020, to June 13, 2021, insuring the commercial property located at 6800 Manhattan Boulevard, Fort Worth, Texas 76120 (the Property). In February 2021, Allstate received a claim that the Property had sustained water damage from a burst pipe in the Property's ceiling following a winter storm. Allstate was informed that the Property had been vacant since October or November 2020 and that "the heat to the insured building had been shut off since that time and was not on at the time of the loss." After investigating the claim, Allstate denied it. In its denial letter to Garsase, Allstate relied on language in the insurance policy that excludes coverage for water damage occurring when the heat is not maintained on the Property and when the Property has been vacant for a period of more than sixty days.[3] In July 2021, Berdin filed a lawsuit against Allstate.[4] In her lawsuit, Berdin alleged that the Property had been damaged in February 2021 by a winter storm and that Allstate had improperly denied the claim. Berdin brought claims against Allstate alleging breach of contract, fraud, misrepresentation, deceit, "common law insurance bad faith," and "statutory insurance bad faith." Allstate filed its answer in November 2021.[5]
In November 2021, Berdin filed a three-page motion for summary judgment, arguing broadly that summary judgment should be granted to her on her claims (Berdin's first motion for summary judgment). No evidence was attached to Berdin's first motion for summary judgment. Four days after she filed that motion, Berdin filed an "Affidavit as to Facts," in which she averred that the Property had been damaged by a February 2021 storm; that, prior to the storm, she had told her insurance agent that the Property was vacant and had been told by the agent that the vacancy was acceptable to Allstate under the insurance policy; that, prior to the storm, she had told her insurance agent that she had turned off the electricity to the Property due to the vacancy; that electricity to "the entire strip shopping center that contained the insured premises" was off at the time of the storm; and that she had secured estimates to repair the damage to the Property caused by the storm, with the lowest estimate totaling $216,070.06. Allstate later responded to Berdin's first motion for summary judgment, and the trial court denied the motion in February 2022.
In March 2022-one month after Berdin's first motion for summary judgment was denied-she filed a "Supplement" to her first motion in which she attached another affidavit. In that affidavit, Berdin averred that she was an agent for Garsase and that she handled insurance matters relating to the Property; that approximately six months before the February 2021 winter storm, she had spoken to her insurance agent and had informed the agent that the Property was vacant; that the insurance agent had indicated that "everything was fine" with respect to the vacancy and that no changes were needed to the policy; that during that conversation, Berdin had informed the insurance agent that the electricity at the Property had been turned off; and that the insurance agent had told Berdin that she did not need to reconnect the electricity to the Property while she was waiting for a new tenant to lease the Property.
That same month-March 2022-Berdin filed another three-page motion for summary judgment, arguing broadly that summary judgment should be granted to her as to Allstate's liability on her claims (Berdin's second motion for summary judgment). No evidence was attached to Berdin's second motion for summary judgment, although she incorporated by reference her "Supplement" to her first motion, and she referenced her affidavit that had been filed along with the "Supplement."
On April 11, 2022, Allstate filed its no-evidence motion for summary judgment.[6] In that motion, Allstate argued that it was entitled to summary judgment on each of Berdin 's claims because she had no evidence to support certain essential elements of her claims.[7] Allstate's no-evidence motion was set for hearing on May 2, 2022. Notably, Berdin did not file a response to Allstate's no-evidence motion prior to that hearing.
On July 7, 2022, Berdin filed her response to Allstate's no-evidence motion for summary judgment. Notably, Berdin did not file a motion for leave to file her untimely response. Also of note, Berdin did not attach any evidence to her response.
Rather, Berdin simply referred the trial court to her "previously filed affidavit(s) in these proceedings," referred it to affidavits filed by Serafin Garcia and Sabrina Garcia that had been attached to a "Motion to Change Case Caption for Plaintiff,"[10] and signed a verification swearing that "everything in this response is true and correct in all respects."
In August 2022, the trial court signed an order granting Allstate's no-evidence motion for summary judgment and denying Berdin's second motion for summary judgment. That order reflected that the trial court had "considered all timely Motions, responses, competent summary judgment evidence, and pleadings." Berdin later filed a motion for new trial and a motion to vacate, both of which asked the trial court to reconsider its ruling on Allstate's no-evidence motion. The trial court denied both of those motions.[11] This appeal followed.
In her sole issue, Berdin argues that the trial court erred by granting Allstate's no-evidence motion for summary judgment.
After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that no evidence supports an essential element of the nonmovant's claim or defense. Tex.R.Civ.P. 166a(i). The motion must specifically state the elements for which no evidence exists. Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine, material fact issue. See Tex. R. Civ. P. 166a(i) & 1997 cmt.; B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 259 (Tex. 2020).
When reviewing a no-evidence summary judgment, we examine the entire record in the light most favorable to the nonmovant indulging every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if reasonable jurors could, and we disregard evidence contrary to the nonmovant unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Smith v. O'Donnell, 288 S.W.3d...
To continue reading
Request your trial