Jamal v. Travelers Lloyds of Texas Ins. Co.

• Decision Date: 22 February 2001
• Docket Number: No. Civ.A. H-99-4369.,Civ.A. H-99-4369.
• Citation: 131 F.Supp.2d 910
• Parties: Ashraf A. JAMAL, Plaintiff, v. TRAVELERS LLOYDS OF TEXAS INSURANCE COMPANY and Travelers Property & Casualty Insurance Company, Defendants.
• Court: U.S. District Court — Southern District of Texas

131 F.Supp.2d 910

Ashraf A. JAMAL, Plaintiff, v. TRAVELERS LLOYDS OF TEXAS INSURANCE COMPANY and Travelers Property & Casualty Insurance Company, Defendants.

No. Civ.A. H-99-4369.

United States District Court, S.D. Texas, Houston Division.

February 22, 2001.

COPYRIGHT MATERIAL OMITTED

Allan G Levine, Hirsch and Westheimer PC, Houston, TX, Gregory S Levine, Houston, TX, Jeffrey Robert Matthews, Houston, TX, Toby C Easley, Houston, TX, for Ashraf A Jamal, plaintiff.

Nicholas E Zito, Markle Ramos et al, Houston, TX, for Travelers Lloyds of Texas Insurance Company, defendant.

Laurence E Boyd, Angleton, TX, Gerald J Nielsen, Nielsen Law Firm, Metairie, LA, for Travelers Property and Casualty Insurance Company, defendant.

MEMORANDUM AND ORDER

CRONE, United State Magistrate Judge.

Pending before the court is Defendant Travelers Property & Casualty Insurance Company's ("TPCIC") Motion for Summary Judgment (# 49). TPCIC seeks summary judgment on Plaintiff Ashraf A. Jamal's ("Jamal") claim for breach of contract. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that summary judgment is warranted.

I. Background

TPCIC is a "Write-Your-Own" ("WYO") company authorized by the Federal Emergency Management Agency ("FEMA") to sell federally underwritten flood insurance, referred to as Standard Flood Insurance Policies ("SFIP"), as part of the National Flood Insurance Plan ("NFIP") under the National Flood Insurance Act ("NFIA"). In August 1997, Jamal purchased SFIP # 6-0031-5168-2 from TPCIC pertaining to his residence located at 7310 Lake Lane in Houston, Texas. Plaintiff's SFIP provided coverage in the amount of $85,800.00 for the building and $31,500.00 for its contents.

On September 11, 1998, Jamal's property was damaged by wind and by flood as a result of Tropical Storm Frances. On September 15, 1998, TPCIC sent an adjuster, Bob Hughes ("Hughes") from Bellmon Adjusters, to inspect Jamal's property. Hughes determined that funds were payable to Jamal for damages to the contents of the building in the amount of $31,500.00, the policy limit, and for damages to the building in the amount of $25,406.51. On November 2, 1998, Hughes sent Jamal a proof of loss form for his signature in the amount of $56,906.51, the sum of the determined damage amounts. On November 5, 1998, James Chandler ("Chandler"), Claims Examiner for TPCIC, sent Jamal a letter informing him that the proof of loss had to be received by November 16, 1998, in order for him to receive payment. On December 4, 1998, Hughes sent Jamal a letter reminding him that he had sent the proof of loss form to Jamal and notifying him that "[t]he company that writes your flood insurance has the option of denying your claim for lack of interest on your part if the time allotment provided in the policy is not adhered to." The policy provides that a signed proof of loss must be filed within sixty days of the loss.

During this time period, Hughes's supervisor, Michael Bellmon ("Bellmon"), reviewed Jamal's claims. In his report dated December 14, 1998, Bellmon indicates that he found an increased amount of $39,703.72 that could be paid on the building and that he had sent Jamal a second proof of loss form for his signature, reflecting the new amount allocated for the building. On April 19, 1999, Chandler sent Jamal another letter, reminding Jamal that "[t]he policy provisions state that you must file a formal proof of loss with this company within 60 days from the date of loss" and stating that, as a result of his failure to submit the proof of loss, TPCIC was closing his account without payment.

On June 22, 1999, Jamal filed one of the proof of loss forms he had previously received, signed but altered to show a claim for building damages in the amount of $85,800.00, the policy limit. On that date, he also submitted a signed proof of loss in the amount of the policy limit for the contents damage. On a supplemental adjuster's report, dated June 25, 1999, Bellmon noted that Jamal "has agreed to my building figures [$39,703.72] per his attorney by telephone on today's date." Bellmon's handwritten note on the same report shows that on June 28, 1999, Jamal's attorney called him back and said that Jamal would settle for the increased amount of $59,325.65 as to the building. In his note, Bellmon indicated, "I advised him that I had pushed the pencil as far as I could" and that it was up to Jamal to substantiate the increased amount. On July 6, 1999, TPCIC paid him the policy limits of $31,500.00 for damages to the contents of the building and $39,703.72 for damages to the building itself, as determined by Bellmon, consistent with what his attorney reported that Jamal had agreed to on June 25, 1999. Jamal admits that he received and negotiated the checks sent by TPCIC for both amounts.

On October 29, 1999, Jamal filed his original petition in the 113th Judicial District Court of Harris County, Texas, asserting that, under the SFIP and a separate homeowner's policy he had purchased from Defendant Travelers Lloyds of Texas Insurance Company, his entire loss of $270,000.00 was covered and that, taking into account the $71,203.72 already paid he is now due $198,796.28. While Jamal does not differentiate between the amounts he is claiming under each policy, he is presumably claiming the amount of $46,096.28 from TPCIC, representing the policy limits for building damage under the SFIP less the $39,703.72 already paid. While he alleges claims for breach of contract, breach of the duty of good faith and fair dealing, and violations of the Texas Insurance Code against TPCIC, on January 26, 2001, the court dismissed his claims for breach of the duty of good faith and fair dealing and violations of the Texas Insurance Code as well as his claims for attorneys' fees, exemplary damages, and statutory penalties, as preempted by federal law. In its answer, TPCIC pleaded as an affirmative defense that Jamal had failed to comply with the requirement that he file a sworn proof of loss within sixty days after the loss.

On January 5, 2001, TPCIC moved for summary judgment on Jamal's breach of contract claim, asserting that Jamal is precluded from bringing a claim against it and is not entitled to payment for the remainder of his alleged damages due to his failure to submit a proof of loss within the required time period. TPCIC also notes that it has paid Jamal the policy limit for his contents damage, contends that Jamal failed to document the specific amount being claimed for additional building damage as required by federal law, and states that Jamal has not supported his claim for costs of labor, profit, and overhead. On January 19, 2001, Jamal responded that, because TPCIC paid him a portion of the amount he claims, it should be "either: 1) estopped from asserting the alleged lateness of the proof of loss (after all, Defendant paid the claims based on these forms); or 2) be deemed to have waived the lateness because of the issuance of checks (the federal insurance administrator waived this requirement in writing when it authorized Defendant to pay the claims)." He also stated that he is not making a claim against TPCIC for additional coverage for the damage to the building's contents or for cost of living, subsidence, "and other such items."

II. Analysis

A. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Colson v. Grohman, 174 F.3d 498, 506 (5th Cir.1999); Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 321 (5th Cir.1998); Wenner v. Texas Lottery Comm'n, 123 F.3d 321, 324 (5th Cir.1997), cert. denied, 523 U.S. 1073, 118 S.Ct. 1514, 140 L.Ed.2d 667 (1998). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The moving party, however, need not negate the elements of the non-movant's case. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)).

Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings, but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Colson, 174 F.3d at 506; Marshall, 134 F.3d at 321-22; Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075. "[T]he court must review the record `taken as a whole.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348). All the evidence must be construed "in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes." Williams v. Time Warner Operation,...