Federal Court – Paying Attention To Detail

Insurance lawyers in the Dallas and Fort Worth areas can tell you that paying attention to detail is most important. A McAllen Division opinion illustrates this point. The style of the case is, Mark Dizdar et al v. State Farm Lloyds, et al.
Mark Dizdar, et al (Plaintiffs’) claims arise from damage sustained to their property as a result of an alleged March 29, 2012 storm event in Hidalgo County, Texas. Shortly after the storm, Plaintiffs reported an insurance claim to State Farm for the damages sustained to their property.
Thereafter, Mr. Wallis inspected the property on behalf of State Farm on June 22, 2012, estimating the loss to the property at $8,654.13. Consequently, State Farm issued to Plaintiffs a payment of $4,955.60, after applying depreciation and deductible.
Thereafter, Plaintiffs requested a re-inspection of the property by State Farm, and on or about August 17, 2012, Mr. Wallis re-inspected Plaintiffs’ property. Subsequent to the inspection, State Farm issued a supplemental payment of $3,125.67 for Plaintiffs’ storm claim. Finding that Plaintiffs’ claim “file was complete” State Farm closed the claim shortly thereafter. After payment was issued, State Farm had no discussions with Plaintiffs regarding “any concerns or complaints” about the adjustment of their claim until this suit was filed.
On April 16, 2014, Plaintiffs filed the instant lawsuit in state court alleging various insurance related causes of action against Defendants. Subsequently, on June 20, 2014, Defendants removed the case to this Court based on diversity jurisdiction. Thereafter, on February 13, 2015, Plaintiffs invoked the appraisal provision of the insurance policy at issue, which provides in relevant part:
If you and we fail to agree on the amount of loss, either one can demand that the amount of the loss be set by appraisal. If either makes a written demand for appraisal, each shall select a competent, independent appraiser and notify the other of the appraiser’s identity within 20 days of receipt of the written demand. The two appraisers shall then select a competent, impartial umpire. If the two appraisers are unable to agree upon an umpire within 15 days, you or we can ask a judge of a court of record in the state where the residence premises is located to select an umpire. The appraisers shall then set the amount of the loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon shall be the amount of the loss. If the appraisers fail to agree within a reasonable time, they shall submit their differences to the umpire. Written agreement signed by any two of these three shall set the amount of the loss.
On June 9, 2015, Plaintiffs and State Farm filed an agreed motion to abate the case pending completion of the appraisal process,18 and on June 17, 2015, the Court granted the motion and abated the case.
On October 19, 2015, the parties filed a status report advising the Court that on September 1, 2015, an appraisal award had been issued jointly by the appraisers for each party, and that State Farm had tendered payment of the award to Plaintiffs minus the applicable deductible and prior payments. Furthermore, the report advised the Court that State Farm requested Plaintiffs dismiss their case but Plaintiffs did not agree. The Court now addresses the merits of the instant motions.
As an initial matter, Plaintiffs allege in their motion for continuance that the motion for summary judgment is premature, asserting that insufficient discovery has been completed to allow Plaintiffs to properly respond to the motion for summary judgment. Thus, Plaintiffs request the Court continue Defendants’ motion for summary judgment “to allow Plaintiffs additional time to conduct . . . discovery.”
Rule 56(d) provides courts with discretion to defer ruling on a motion for summary judgment or to allow a nonmoving party additional time to obtain further discovery. In order to obtain such relief, however, the nonmovant must show “by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” In this manner, the nonmovant must set forth “how additional discovery will create a genuine issue of material fact.” Relief under Rule 56(d) is not warranted if either (1) the proffered basis does not present a reasonable likelihood that further discovery would produce evidence creating a fact issue, or (2) such evidence would not create fact issues for each essential element of the nonmovant’s claim.
Here, Plaintiffs assert in their motion for continuance that “conducting written discovery and taking Defendants’ oral depositions is a critical part of the discovery in this case . . . as it will be Plaintiffs’ first opportunity to personally inquire into Defendants’ recollection and position as to the facts surrounding the investigation, adjustment, and settlement of Plaintiffs’ hail claim.” Plaintiffs, however, do not specify what facts they seek to develop. Thus, the Court finds that Plaintiffs have failed to identify any additional discovery likely to create a fact issue as to each essential element.
As Plaintiffs recognize, an appraisal award has already determined the amount of loss in this case. Thus, the Court will discuss the implications of the appraisal award on the breach of contract claim and extra-contractual claims below. In doing so, the Court will specifically address the ineffectiveness of the asserted evidence in creating a fact issue preventing summary judgment. The Court denied the motion for continuance.