Dallas Fort Worth Insurance Lawyer Blog
Here is a hail damage claim that has a frequently heard assertion by the insurance company. That assertion being that whatever hail damage exists occurred outside the policy period.
This is a 2023, summary judgment opinion from the Western District of Texas, San Antonio Division. The opinion is styled, PMJ Bleu Terre Management, LLC v. AmTrust Insurance Company of Kansas, Inc.
The facts presented in the motion are lengthy and should be read. Here is the analysis of the case by the Magistrate Judge.
AmTrust argues it is entitled to summary judgment on PMJ’s breach of contract claim because PMJ cannot establish that the hail damage at issue resulted from a hailstorm on May 3, 2021. AmTrust argues that PMJ’s weather expert has conceded that there was no hailstorm on May 3, 2021, at the location of the Property, and it is too late for PMJ to amend its pleadings to change the alleged date of loss to April 28, 2021. This Judge disagrees with AmTrust’s assertion that DeGeyter’s expert testimony that the date of loss was five days prior to May 3, 2021, entitles AmTrust to summary judgment.
AmTrust bases this argument solely on a decision out of the Northern District of Texas, in which the court granted summary judgment for the insurer on a breach of contract claim based on a similar denial of an insurance claim for hail damage. In the Northern District case, the insured reported two claims for damage to property, one on April 1, 2015, and one on March 23, 2016. The insurer denied both claims, concluding that the hail damage predated the policy period. The insured’s expert agreed that no hail damage occurred on the two dates of alleged loss. The district court granted summary judgment to the insurer, reasoning that because the complaint alleged specific dates of loss (and not damages occurring generally during the applicable policy period), the insured could not prevail on essential elements of its breach of contract claim.
To prevail on its breach of contract claim, PMJ bears the burden to establish coverage under the policy terms, i.e., that there was a valid contract between the parties. Additionally, PMJ must prove that the alleged loss occurred during the policy period for there to be any breach of contract.
PMJ’s Original Petition, which remains the live pleading, alleges that the Property sustained damage from a hailstorm “on or about” May 3, 2021. PMJ’s various experts agree that a hailstorm occurred at the Property location on April 28, 2021. April 28, 2021 is a mere five days prior to May 3, 2021, and therefore is “on or about” that date. No amendment of the pleadings is necessary. Thus, the reasoning of the Northern District’s case, even if correct, would not entitle AmTrust to summary judgment, because the plaintiff in the LTG & Assocs. case alleged specific dates of loss, not loss occurring “on or about” a stated date.
Additionally, PMJ timely reported the hail damage within several weeks of the alleged storm. In LTG & Assocs., the insured waited to report the two alleged dates of loss between six and ten months after the alleged damage. Also, in communications with PMJ, AmTrust’s desk adjusters referenced the need for information regarding whether there were any hailstorms during the policy period; AmTrust itself never limited the scope of its investigation solely to storms occurring on May 3, 2021. AmTrust is not entitled to summary judgment based solely on the testimony of PMJ’s experts that the hailstorm causing the underlying damage to PMJ’s Property occurred on April 28, 2021, rather than May 3, 2021.
Because PMJ’s breach of contract claim should proceed to trial, the District Court should also deny AmTrust’s motion for summary judgment as to PMJ’s extra-contractual claims. The primary basis for summary judgment argued in its motion is that PMJ cannot recover policy benefits for a statutory violation under the Texas Insurance Code if the insured does not have a right to benefits under the Policy. The District Court should reject this argument, as PMJ may still recover under the Policy.
The only additional argument for dismissal of PMJ’s extra-contractual claims is that PMJ cannot prove AmTrust’s bad faith where the parties had a bona fide dispute over coverage based on weather reports obtained by AmTrust in evaluating the validity of PMJ’s claim. PMJ did not address this argument in its response to AmTrust’s motion to dismiss, but the District Court should still deny the request for summary judgment on PMJ’s claim that AmTrust violated its duty of good faith and fair dealing in denying the insurance claim. The summary judgment evidence reflects that, despite uncontested evidence that the roof of the Property was replaced in 2017, AmTrust’s field adjuster concluded that the hail damage to the roof occurred from a 2016 hailstorm. A reasonable fact finder could conclude on the summary judgment record that AmTrust acted in bad faith in rejecting PMJ’s claim based on Puga’s recommendation, if the fact finder agrees this was not a reasonable basis for denying or delaying payment of the claim.
In summary, AmTrust is not entitled to summary judgment on PMJ’s extra-contractual claims.