White v. Allstate Vehicle & Prop. Ins. Co.

Decision Date21 September 2021
Docket NumberCivil Action 6:19-cv-00066
CourtU.S. District Court — Southern District of Texas


Plaintiff Chris White's dwelling and other structures on his property were damaged during Hurricane Harvey in August 2017. White filed a claim under a homeowner's insurance policy he had purchased from Defendant Allstate Vehicle and Property Insurance Company (Allstate). After Allstate issued its estimate of covered damages and paid White that amount less the deductible and depreciation, White filed suit in Texas state court. Allstate removed the case to this Court, and White demanded an appraisal of the damage under the policy. The appraisal concluded the covered damages were greater than the amount Allstate initially estimated. A few days after the appraisers published the appraisal award Allstate paid White this greater amount less the deductible and the amount it had already paid based on the initial estimate. Allstate also paid any interest White could have claimed under Texas law. White nevertheless claims Allstate is liable to him for: (1) breach of contract; (2) bad faith and (3) violating the Texas Prompt Payment of Claims Act[1] (“TPPCA”). Allstate filed a Motion for Summary Judgment (“Motion”) in which it argues that because it paid to White the full appraisal amount and any interest he could have claimed under Texas law, White is not entitled to additional relief and, therefore, summary judgment should be granted. White disagrees and filed a Response setting forth his reasons why the Motion should be denied. For the following reasons, the Motion is GRANTED.


On or around August 25, 2017, White's dwelling and other structures on his property in Victoria, Texas, sustained damage Hurricane Harvey. (Dkt. No. 1-6 at 8); (Dkt. No. 16-1 at 7, 42-43, 49); (Dkt. No. 17-1 at 2). At the time his property suffered damage, White maintained an active House & Home Policy (“Policy”) he had purchased from Allstate. The Policy insured the dwelling in Victoria up to $407, 875 in covered damages and contained a $12, 236 deductible. (Dkt. No. 16-1 at 33, 91-92). Notably, the Policy contained a provision describing the appraisal process, the relevant parts of which are:

If [White] and [Allstate] fail to agree on the amount of loss, either party may make written demand for an appraisal. Upon such demand, each party shall select a competent and impartial appraiser and notify the other of the appraiser's identity within 20 days after the demand is received....
The appraisers shall then determine the amount of the loss, stating separately the actual cash value and the amount of loss to each item.[2] If the appraisers submit a written report of an agreement to [White] and [Allstate], the amount agreed upon shall be the amount of the loss.... A written award agreed upon by any two will determine the amount of the loss....
If the appraisal process is initiated, the appraisal award shall be binding on [White] and [Allstate] concerning the amount of the loss.

(Dkt. No. 16-1 at 104-05) (emphases and footnote added).

On August 30, 2017, Allstate received White's claim under the Policy. (Id. at 7, 49); (Dkt. No. 17-1 at 2). On September 2, 2017, Allstate sent notice to White that it had received his claim. (Dkt. No. 16-1 at 293).

Allstate's adjuster inspected the damage to White's property on September 4, 2017, and six days later issued an estimate stating that the property had sustained $4, 217.94 in covered damage. (Id. at 7, 13); (Dkt. No. 17-1 at 2, 10). Allstate sent a second adjuster to conduct a supplemental inspection of the property on September 23, 2017. (Dkt. No. 161 at 7, 21-24). The second adjuster “prepared [an estimate], and a copy was provided and explained onsite.”[3] (Id. at 24). Allstate sent a third adjuster to White's property to conduct a final inspection. (Id. at 49). In this estimate, the third adjuster concluded there were damages totaling $17, 793.79 in replacement cost value to White's property, which accounted for $14, 726.50 in damage to the dwelling, $2, 567.29 in damage to other structures on the property, and $500 in damage to personal property. (Id. at 60-62). After deducting depreciation and the $12, 236 deductible, Allstate paid White $1, 472.67 on November 24, 2018. (Id. at 142).

On June 6, 2019, White filed this lawsuit against Allstate in Texas state court in Victoria County. (Dkt. No. 1-6 at 7). In his Original Petition (“Petition”), White alleges Allstate is liable for: (1) breach of contract; (2) bad faith; and (3) violating the TPPCA. (Id. at 9-11). Allstate removed the case to this Court on July 19, 2019, based on diversity jurisdiction under 28 U.S.C. § 1332.[4] (Dkt. No. 1).

On September 11, 2019, White invoked the appraisal provision in the Policy. (Dkt. No. 16-1 at 77). On October 1, 2019, Allstate declined White's request for appraisal, asserting White “waived his right to appraisal” due to “his unreasonable delay in invoking” it. (Dkt. No. 10-3 at 2). White then filed a Motion to Compel Appraisal and Abate Pending Appraisal on October 14, 2019, which Allstate opposed. (Dkt. No. 10); (Dkt. No. 11). On November 4, 2019, Judge Kenneth Hoyt granted White's Motion and ordered this case is abated until the parties notify the Court in writing that the parties have completed the appraisal process.” (Dkt. No. 14). Both parties agree appraisal was completed, and the case was subsequently reopened. (Dkt. No. 16 at ¶¶ 8-9); (Dkt. No. 17 at 3); (Dkt. No. 15 at 1); (Dkt. No. 20).

The appraisers agreed that the amount of damage to White's property was greater than the estimate Allstate's third adjuster had tabulated on November 23, 2018. (Dkt. No. 16-1 at 82). Specifically, the appraisers concluded there were damages totaling $22, 130.46 in replacement cost value to White's property. (Id.). On January 27, 2020, just three days after the appraisers submitted the appraisal award, Allstate issued White a check in the amount of $8, 421.79. (Id. at 74, 85). This amount accounted for the $22, 130.46 appraisal award minus the $12, 236 deductible and the amounts Allstate had previously paid to White under the claim. (Id. at 74). On that same date, Allstate also issued White a separate check for $3, 605.66 “to cover any additional interest [White] could possibly allege to be owed.” (Id. at 74, 84). The checks were delivered to White's counsel on January 28, 2020. (Id. at 7-8, 72).

On March 5, 2020, Allstate moved for summary judgment on all of White's claims. (Dkt. No. 16). In essence, Allstate asserts that it is undisputed it paid White the entire amount to which he is entitled under the Policy as well as any interest to which he could be entitled under Texas law. Allstate argues White is entitled to no additional relief as a matter of law and the Court therefore should grant its Motion.

White responds by arguing that Allstate is not entitled to summary judgment on any of the claims raised in the Petition. (Dkt. No. 17). Allstate filed a Reply on March 30, 2020. (Dkt. No. 18). On August 25, 2020, this Court held a Status Conference and requested supplemental briefing from the parties on recent court decisions. Allstate and White filed their Supplemental Briefs on August 27, 2020, and September 3, 2020, respectively. (Dkt. No. 29); (Dkt. No. 30).


Summary judgment is appropriate when “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). “A dispute about a material fact is ‘genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993) (quotation omitted). Initially, the movant bears the burden of presenting the basis for the motion and the elements of the causes of action upon which the nonmovant will be unable to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the movant meets this burden, the nonmovant must then come forward with specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The non-moving party must “go beyond the pleadings and by [the nonmovant's] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Nola Spice Designs, LLC v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015) (citation omitted). That is, “the non-movant must identify specific evidence in the summary judgment record demonstrating that there is a material fact issue concerning the essential elements of its case for which it will bear the burden of proof at trial.” Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir. 2007) (quotation omitted). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Parrish v. Premier Directional Drilling, L.P., 917 F.3d 369, 378 (5th Cir. 2019) (quotation omitted). The nonmovant's burden “will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.' Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

In reviewing a motion for summary judgment, the district court must view the evidence in a light most favorable to the...

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