Dallas area attorneys handling hail damage claims have a case to review as an example of how NOT to handle a claim. This is a United States Northern District Court case. It is a 2014 opinion and is styled, Stevenson v. Nationwide Property and Casualty Insurance Company.
Beatrrice Stevenson filed suit against Nationwide. Her claims include: (1) breach of contract; (2) violation of Section 542 of the Texas Insurance Code; (3) violation of the Deceptive Trade Practices Act; (4) violation of Section 541 of the Texas Insurance Code; (5) breach of duty of good faith and fair dealing; (6) fraud; and (7) conspiracy to commit fraud. She also states that Nationwide has waived and is estopped from asserting any coverage defenses, conditions, exclusions, or exceptions to coverage not contained in any reservation of rights letters to her. She seeks damages, plus prejudgment interest, attorney’s fees, additional damages, and exemplary damages. The case was removed to Federal Court.
Stevenson submitted a claim to Nationwide for damage, water damage, hail damage, windstorm damage, and mold damage to the Property as a result of the storm. She states that she asked Nationwide to cover the cost of repair to the Property pursuant to the Policy and any other available coverages under the Policy. She contends that the adjuster failed to properly adjust the claim made by her. Additionally, she contends that Nationwide has denied at least a portion of the claim without an adequate investigation. She asserts that Nationwide has failed to compensate her adequately under the terms of the Policy.
She also contends that Nationwide misrepresented to her that the damage or a portion of the damages to the Property was not covered under the Policy, even though the damage was caused by a covered occurrence. Additionally, she states that Nationwide failed to explain to her its reasons for its offer of an inadequate settlement. She also contends that Nationwide failed to affirm or deny coverage of her claim within a reasonable period of time.
Nationwide filed a motion for summary judgment, stating that Stevenson has no evidence to support any of her stated claims. Nationwide states that it paid over $150,000 in policy proceeds in response to her claim. Nationwide states that no genuine dispute of material fact exists as to any additional amount that is due or owed. Stevenson did not respond to the motion.
Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Further, a court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party’s case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine dispute of material fact.
When the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine dispute for trial. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence.
Pursuant to Rule 56, the party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Disputed fact issues that are “irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment motion. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted.
Stevenson filed no response to the summary judgment motion. This failure, of course, does not permit the court to enter a “default” summary judgment. A court, however, is permitted to accept the movant’s facts as undisputed when no response or opposition is filed. Accordingly, the court accepts Defendant’s facts and evidence as undisputed.
The following material facts are undisputed:
1) Plaintiff is the owner of an insurance policy issued by Defendant.
2) Plaintiff owns the insured property located at 2923 Strain Ct., Lancaster, TX 75134. 3) On April 3, 2012, storms and tornadoes struck Dallas County, Texas.
4) The storms on April 3, 2012, caused damage to Plaintiff’s property.
5) Plaintiff submitted a claim to Defendant for damage caused by the storm.
6) In response to Plaintiff’s claim, Defendant paid a portion, but not all, of Plaintiff’s requested amount.
This Court then pointed out the factual reasons why Stevenson lost.
Bottom line on this case is – file a proper response to a motion for summary judgment.
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