Dallas Fort Worth Insurance Lawyer Blog
The Fort Worth Court of Appeals issued an opinion in February 2017, that is good reading for insurance lawyers. It essentially points out in a case, what was not done correctly. The opinion is styled, Seim v. Allstate Texas Lloyds.
This is claim against a homeowners policy issued by Allstate to the Seims. It is an appeal from a summary judgment in favor of Allstate. The Allstate policy provided coverage on the Seims home for the period April 27, 2013, through April 27, 2014. On or about August 28, 2013, the Seims notified Allstate of damage that had occurred earlier in August. The property was inspected on or about September 10. The adjuster, Scott, testified in deposition that the Seims’ property had some interior water damage, but the roof did not have any wind or hail damage. Scott further testified that in order for the interior water damage to be covered under the Seims’ policy, “there had to be an opening in the roof caused by wind or hail … and the Seims did not have that. The claim was denied by Allstate and a few months later the Seims sued Allstate for insurance code violations and breach of contract.
In the pleading filed by the Seims, they claimed damage was caused by storms in 2013, April 2007, April 2008, and May 2012. In their lasted amended pleading, references to the 2007, 2008, and 2012, storms was removed.
Allstate’s motion for summary judgment alleged limitations and that any losses were outside the scope of coverage. In the Seims response to the motion, the Seims did not attach any evidence. On the day of the hearing, the Seims did file a response with evidence attached and a week later filed another response with evidence attached. The Seims did not ask for leave to file any of the responses that were filed later than the seven days prior to the hearing as required by Rule 166a(c). The court ruled in favor of Allstate.
In the summary judgment response filed by the Seims, there is reference to attached reports, but no reports were attached. On the day of the hearing, an amended response was filed with the attachments. The attachments were affidavits wherein a Dr. Hall testified about the causes of the damage to the Seims home but the reports were not verified.
The only evidence that the Seims point to in their various responses are the affidavit of Dr. Hall and Linda Seim’s deposition testimony.
Linda Seim’s deposition testimony was not attached to any of the Seim’s responses; it, therefore, does nothing to raise a fact issue as to whether the Seims’ loss occurred during the policy period. Dr. Hall’s reports are not verified, so the reports are not competent summary judgment evidence.
In looking at Dr. Hall’s report, the affidavit does not explain how the Seims’ loss was caused by an August 2013 storm. This court was left to guess whether the reports referenced in Dr. Hall’s affidavit are the same unverified reports attached to the summary judgment evidence. More problematic, while the affidavit states that the facts stated therein are “true and accurate,” there is nothing to indicate that the statements made in Dr Hall’s reports – particularly the statements concerning when the Seims’ loss occurred – are “true and accurate.” Thus, the court was left with no sworn evidence that the Seims’ loss occurred during the policy period.