How NOT To Support A Claim

The Fort Worth court of Appeals issued an opinion in May 2017, that illustrates the wrong way to pursue a claim and lawsuit for storm and hail damage.  The opinion is styled, Richard Seim and Linda Seim v. Allstate Texas Lloyds and Lisa Scott.

This a motion for en banc reconsideration.

The Seims sued Allstate and the adjuster, Scott for the denial of benefits after the Seims claim of hail and storm damage to their home.  The Seims filed suit claiming damage to their property occurred from a August 2013 storm.  They then filed an amended petition removing references to the August 2013 storm and asserted the damage stemmed from an April 2007 storm.  They amended their petition again stating the damage occurred in April 2007, April 2008, and May 2012.  They amended yet again stating the damage occurred in the August 2013 storm.  Allstate filed a motion for summary judgment on numerous grounds.

The Seims response to the motion was filed timely but did not include attached summary judgment evidence.  On the day of the hearing the Seims filed the response again but with the evidence attached.  This was seven days late.  The Seims filed their response again, seven days after the hearing.  A week after that the Seims filed a supplemental response that included additional evidence.  A week after that the Seims filed an amended supplemental response that included more additional evidence.  The Seims did not ask for leave to file any of the responses that were filed later than seven days prior to the summary judgement hearing as required by Rule 166a(c).

In the Seims initial response they reference a report by their expert, Dr. Hall, however, the report was not attached.  On the day of the hearing the report was referenced along with Linda Seim’s deposition testimony to support their claim.  Dr. Hall had two reports, both of which are referenced in the Seims responses but neither of the reports are verified.  Linda Seim’s deposition testimony was not attached as part of the response.  The Seims subsequent responses still did not contain evidence of when the damage occurred.

Texas law requires an affirmative indication that the trial court permitted the late filing and in this case, the Judges Order reflects the trial court considered “all responses and all competent summary judgment evidence.”  Accordingly, this appeals court also considered the various untimely responses and evidence.

The only evidence that the Seims pointed to in their various summary judgment responses to establish when their loss occurred was Dr. Hall’s reports, Dr. Hall’s affidavit, and Linda Seim’s deposition testimony.

Linda Seim’s deposition testimony was not attached to any of the Seim’s responses, thus, does not raise a fact issue as to when the loss occurred.  Dr. Hall’s reports say the Seims damage occurred as a result of an August 2013 storm, but neither report is verified or authenticated, thus neither report is competent summary judgment evidence.

As to Dr. Hall’s affidavit, it does not explain how the Seims loss was caused by an August 2013 storm.  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 statement concerning when the Seims loss occurred — are “true and accurate.”  This Court was thus left with no sworn evidence that the Seims loss occurred during the policy period.

Result – Allstate wins.

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