Opinion
Civil Action H-18-4279
2020-04-27
Antonio GUZMAN, Plaintiff, v. STATE FARM LLOYDS, Defendant.
Noah Michael Wexler, Arnold Itkin LLP, Aaron Kevin Bender, Daly & Black PC, Houston, TX, for Plaintiff. Maxwell Micah Kessler, Nistico, Crouch & Kessler, P.C., Houston, TX, for Defendant.
Noah Michael Wexler, Arnold Itkin LLP, Aaron Kevin Bender, Daly & Black PC, Houston, TX, for Plaintiff.
Maxwell Micah Kessler, Nistico, Crouch & Kessler, P.C., Houston, TX, for Defendant.
MEMORANDUM AND ORDER
Peter Bray, United States Magistrate Judge
Antonio Guzman sued State Farm Lloyds (State Farm) after State Farm denied his homeowner's insurance claim for damage caused by Hurricane Harvey. Pending before the court are Defendant's Motion to Exclude Expert Testimony (D.E. 22) and Defendant's Motion for Summary Judgment. (D.E. 23.) Having considered the motions, filings, and applicable law, the court GRANTS both motions.
1. Background Facts
Plaintiff Antonio Guzman alleges that Hurricane Harvey damaged his home in August of 2017. (D.E. 1.) Ten months later, on June 26, 2018, Guzman filed an insurance claim under his homeowner's insurance policy with Defendant State Farm, seeking to recover for alleged storm damage. (D.E. 23-2 at 2–3.) Guzman's insurance policy covers wind and hail damage, but not damage from flood water, surface water, rot, or wear and tear. (D.E. 23-1 at 2, 7, 32–33.) The policy also does not cover losses caused by a covered event, such as wind, when the damage is concurrently caused by an excluded event, such as flooding. (D.E. 23-1 at 7, 33.)
Four days after Guzman filed his claim, on June 30, 2018, a State Farm adjuster inspected Guzman's two-story home. (D.E. 23-2 at 3, 12–13.) The adjuster photographed both the interior and exterior of Guzman's house while Gloria Guzman, Plaintiff's wife, was present. (D.E. 23-2 at 3, 15–33.) The adjuster found four missing shingles on Guzman's roof. (D.E. 23-2 at 3, 12, 24, 30, 33, 42.) He noted that all four shingles could be repaired. (D.E. 23-2 at 3, 12.)
In Guzman's garage, the adjuster observed a water line one foot from the ground. (D.E. 23-2 at 3, 12, 15.) Inside the home, he found first-floor water damage on baseboards in the living room, office, and front door entryway. (D.E. 23-2 at 3, 12, 16–17, 20–21.) The adjuster did not find any water damage to the upper walls or the ceilings of the first floor. He found no water damage on the second floor.
Gloria Guzman told the State Farm adjuster that during Hurricane Harvey, she saw water come into the house from under both the front and back doors. (D.E. 23-2 at 3, 12; D.E. 23-3 at 13–14.) She also explained that rain damaged the chimney, but that Guzman repaired it prior to filing his insurance claim. (D.E. 23-2 at 3, 12; D.E. 23-3 at 8.) Gloria Guzman showed the adjuster photographs of the old chimney and the adjuster observed "a large amount of rot and decay." (D.E. 23-2 at 3, 12, 34.)
Guzman's counsel represented to the court during argument that Guzman was not pursuing any claim related to damage to the chimney. Guzman's response to the motion for summary judgment does not discuss the chimney damage.
Based on his investigation, the adjuster determined that wind, surface water, rot, and wear and tear caused the damage to Guzman's home. (D.E. 23-2 at 3, 12.) He calculated that $407.31 of the total damage was attributable to wind and thus covered under Guzman's policy, which has a $7,356 deductible. (D.E. 23-2 at 41.) Because the covered damage did not exceed Guzman's policy deductible, State Farm denied Guzman's insurance claim. (D.E. 23-2 at 55.) State Farm mailed Guzman a letter to explain the policy coverage and the resulting denial of Guzman's claim. (D.E. 23-2 at 55–58.)
Guzman testified in a deposition that during Hurricane Harvey, three of his neighbors suffered flood damage. (D.E. 23-4 at 14.) He saw standing water in the street and in his yard, which reached up to the front door of his home. (D.E. 23-4 at 16.) He testified that the water inside his home was about one quarter inch deep and remained below the baseboards. (D.E. 23-4 at 10, 14–15.) He did not see any leaks from the roof onto the second floor. (D.E. 23-4 at 16.) He did not see any damage to the living room, den, kitchen, pantry, hallway, bathroom, or laundry room. (D.E. 23-4 at 18–19.) While Guzman did see standing water in the garage, he testified that the garage ceiling was not damaged. (D.E. 23-4 at 17.) Months later, he noticed damage to the chimney and roof. (D.E. 23-4 at 7–8, 10.)
Guzman testified that he repaired the chimney damage himself around June of 2018. (D.E. 23-4 at 7–9.) He also testified that in January of 2019, sixteen months after Hurricane Harvey, he paid under $6,000 to replace the damaged roof. (D.E. 23-4 at 20–21.) The original roof consisted of 25-year shingles, but the replacement upgraded to 30-year shingles. (D.E. 23-4 at 6–7, 21.) These were the only repairs made to the property since it was built in 2001. (D.E. 23-4 at 5–6.)
Gloria Guzman testified that during Hurricane Harvey, ground water entered the house through the garage, the front door, and the back door. (D.E. 23-3 at 13–14.) She testified that cars driving by would push the ground water into their home, which then flooded into their kitchen, study, and office. Id. She did not see any roof leaks on the second floor or damage to any ceilings and testified that the water inside the home did not rise above the baseboards. (D.E. 23-3 at 15.)
Guzman hired Earl Stigler, a licensed adjuster, as an expert to determine the cause and extent of the damage to the home. (D.E. 23-7 at 2.) Stigler inspected Guzman's property on March 17, 2019, and finalized his expert report one day later. (D.E. 23-7.) Stigler's report includes five photographs of the house's exterior, seven photographs of the new roof, and five pages explaining his causation and damages analysis. (D.E. 23-7 at 3–7, 25–30.) Stigler did not include any photographs of damage inside the home. He did not describe the damage he saw. Stigler does not report any discussions with Guzman, his wife, or anyone else that observed the home before, during, or after the hurricane. Stigler's report includes a seventeen-page calculation of the estimated cost to repair the roof, garage, den, living room, kitchen, hallway, bathroom, laundry room, and pantry, totaling $28,185.33. (D.E. 23-7 at 8–24.) Stigler's analysis is based on his inspection, graphics from the National Oceanic and Atmospheric Administration (NOAA), and his review of the June 30, 2018, photographs taken by the insurance company's adjuster. (D.E. 23-7 at 3–7.) Stigler opines that Guzman's roof damage was "consistent with wind damage." (D.E. 23-7 at 3.)
State Farm retained James Crawford, an engineer, to investigate the cause of the property damage. (D.E. 23-8 at 2.) Crawford inspected Guzman's property on April 29, 2019, and finalized his expert report four weeks later. (D.E. 23-8.) Crawford's report includes a five-page explanation of his observations followed by forty-nine photographs taken inside Guzman's home and nineteen taken outside. (D.E. 23-8 at 9–14, 20–21, 23–54.) The photographs show damage to the interior of the home around the baseboards. (D.E. 23-8 at 23, 26–29, 31–32, 34–37, 40–41, 43.) They show that there was no damage to the ceilings or upper walls of the first floor. (D.E. 23-8 at 24, 28–31, 33, 35, 38, 40, 42, 44.) Crawford's report also includes an analysis based on discussions with Guzman's neighbors, research data published by the National Hurricane Center and the NOAA, site-specific wind analyses available through Corelogic, and Google Earth images. (D.E. 23-8 at 3–4, 15–19, 55–56.) Crawford's review of Google Earth "street view" photographs shows that at least one shingle was missing from Guzman's roof in 2014 and 2015, years before Hurricane Harvey could have caused any damage. (D.E. 23-8 at 4, 14, 55.) Crawford opines that the June 30, 2018 photographs show "a 19-year old roof in its declining years," with wear and tear consistent with the roof's age, "most pronounced at safe roof access areas due to foot traffic." (D.E. 23-8 at 4.) Like Stigler, Crawford's opinion of the roof is based on the eleven photographs taken by the State Farm adjuster ten months after the alleged date of loss. (D.E. 23-2 at 23–33; D.E. 23-8 at 4.)
Guzman asserts that State Farm's denial of his claim constitutes a breach of contract and that its evaluation and denial of his claim violated provisions of the Texas Insurance Code. (D.E. 1-3 at 6–7.) He sued State Farm in state court on October 4, 2018, and State Farm timely removed the case to federal court. (D.E. 1.) State Farm now moves to exclude Stigler's expert testimony, arguing that his opinions are premised on unsupported assumptions and are thus unreliable. (D.E. 22.) State Farm also moves for summary judgment, arguing that Guzman has not met his burden to show that State Farm breached the insurance contract or violated the Texas Insurance Code. (D.E. 23.)
2. Motion to Exclude Expert Testimony
In its motion to exclude Stigler's expert testimony (D.E. 22), State Farm argues that Stigler's opinions are conclusory, unreliable, and contrary to the actual facts of the case. Guzman argues that these challenges go to the weight of Stigler's testimony, not its admissibility. The parties do not dispute Stigler's credentials.
A. Legal Standard
Under Federal Rule of Evidence 702, "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." Fed. R. Evid. 702. "The party proffering expert testimony has the burden of establishing by a preponderance of the evidence that the challenged expert testimony is admissible." Gamboa v. Centrifugal Casting Mach. Co. , No. CV H-14-1273, 2015 WL 9948807, at *2 (S.D. Tex. May 15, 2015).
A trial court must evaluate the foundation of an expert's testimony to ensure that "the proffered evidence is both ‘reliable’ and ‘relevant.’ " Knight v. Kirby Inland Marine Inc. , 482 F.3d 347, 352 (5th Cir. 2007) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ). An expert's opinion is considered reliable if "the reasoning or methodology underlying the testimony is scientifically valid." Id. "Relevance depends upon whether that reasoning or methodology properly can be applied to the facts in issue." Id.
Factors often used to determine whether expert testimony is reliable include: whether the expert's opinion was developed for purposes outside of litigation; whether there is an analytical link connecting the case facts with the expert's opinion; whether the expert "adequately accounted for obvious alternative explanations"; whether the expert used the same level of intellectual rigor that would be used in the field; and whether the expert's field of expertise is known to be reliable for the relevant type of opinion. Fed. R. Evid. 702 advisory committee's note to 2000 amendment. "The reliability analysis applies to all aspects of an expert's testimony: the methodology, the facts underlying the expert's opinion, the link between the facts and the conclusion, et alia." Seaman v. Seacor Marine LLC , 326 F. App'x 721, 725 (5th Cir. 2009). While "lack of textual support may go to the weight, not the admissibility of the expert's testimony," an expert's opinions are not admissible if they are not based on information that ensures reliability. Id.
B. Analysis
Stigler's report is based on: (1) his review of photographs taken by the adjuster ten months after the date of loss; (2) storm report graphics from NOAA that show weather events around the country near the date of loss; (3) his inspection of the home eighteen months after the date of loss (after the roof had already been replaced); and (4) his experience working as an insurance claims adjuster. (D.E. 23-7.) Stigler does not report speaking with Guzman, Guzman's wife, Guzman's neighbors, or anyone else that saw the property before, during, or after Hurricane Harvey.
He opines that Hurricane Harvey winds damaged the roof, which led to interior water damage. State Farm argues that Stigler's opinions are unreliable because they are not based in fact and they do not consider alternative causes of damage. The court considers these arguments as to both roof damage and interior damage.
(1) Roof Damage
There are two problems with Stigler's opinions on Guzman's roof damage: (i) Stigler does not account for other possible causes of the damage and (ii) his cost estimate is not relevant.
(i) Stigler fails to consider other causes of the damage.
Stigler's causation analysis with respect to damages to the roof overlooks many alternative causes of the damage. He does not account for normal wear and tear, which is not covered by the insurance policy. He merely states that the damage he observed in photographs is "consistent with" wind damage from a storm like Hurricane Harvey. (D.E. 23-6 at 3; D.E. 23-7 at 3.) He does not present any information, in the form of opinion or otherwise, about the condition of the roof before the storm. He ignores the unrebutted fact that shingles were missing from the roof before the hurricane.
"An expert who is trying to find a cause of something should carefully consider alternative causes." E.I. du Pont de Nemours and Co. v. Robinson , 923 S.W.2d 549, 559 (Tex. 1995) ; see Omni USA, Inc. v. Parker-Hannifin Corp. , 964 F. Supp. 2d 805, 837 (S.D. Tex. 2013) (excluding expert's opinion as unreliable because his opinion regarding causation failed to rule out other possible causes and was thus unhelpful to a jury). "An expert may not disregard without cause facts which are unfavorable to his opinion." Cooper v. Meritor, Inc. , No. 4:16-CV-52-DMB-JMV, 2019 WL 545159, at *4 (N.D. Miss. Feb. 11, 2019) ; cf. Lilley v. Home Depot U.S.A., Inc. , 567 F. Supp. 2d 953, 958–59 (S.D. Tex. 2008) (denying exclusion of expert's testimony where expert qualified potential errors in his causation conclusion with alternative, unknown causes).
While Stigler asserts that winds during Hurricane Harvey caused damage to Guzman's roof, he does not consider any other possible causes, such as normal wear and tear. Stigler reports that the home was built in 2000 and was in "average condition for its age." (D.E. 23-7 at 3.) He explains that heavy winds caused accelerated deterioration of roof shingles and that this deterioration led to the "ultimate[ ] failure of the roofing system." (D.E. 23-7 at 3, 6.) Stigler's report does not even acknowledge that sixteen years of wear and tear would have contributed to the roof's deterioration. He does not address the wear patterns on the roof that appear to be related to foot traffic.
It is not even clear that the roofing system failed. State Farm included photographs of the inside of the roof from the vantage point of the attic. (D.E. 23-8 at 46.) The plywood boards do not show damage or leaks.
Stigler does not assert that he considered the property's pre-Hurricane Harvey condition. He does not attempt to rule out other potential causes. He does not even acknowledge the opposing expert's observation that shingles were missing from the roof years before Hurricane Harvey made landfall. In fact, he does not acknowledge that any other cause may have contributed to the roof's damage. The jury in this case will be tasked with deciding the cause of any damage to the roof. Because Stigler's opinions do not reliably exclude other possible causes of the damage, they will not be helpful to the jury and are thus not admissible.
(ii) Stigler's cost estimate is inadmissible.
Even assuming the roof was damaged by Hurricane Harvey and required full replacement, the insurance policy allows reimbursement for replacement cost, not the cost of an upgrade. (23-1 at 7.) Stigler provided an estimate to replace the roof with 30-year shingles, but it is uncontested that the roof existing at the time of the storm had 25-year shingles. (D.E. 23-7 at 4, 12; D.E. 23-8 at 9.) Stigler's opinion about the cost to upgrade the roof is not relevant to the question of replacement cost.
The policy also allows for reimbursement of the actual amount spent to repair or replace the property. (D.E. 23-1 at 7.) The actual amount spent to replace the roof (even with upgraded shingles) was $5,800. (D.E. 23-8 at 22.) Stigler's estimate for replacement cost is $16,207 and ignores the actual amount spent. (D.E. 23-7 at 12.) His estimate is nearly treble the actual price paid to replace the roof. It is not relevant or helpful and must be excluded.
(2) Interior Damage
Stigler's opinions on interior damage to Guzman's home are also inadmissible because: (i) they are not supported by any evidence; (ii) they are contradicted by the actual facts of the case; and (iii) they are not based upon any reliable theory or methodology.
(i) Stigler's opinions lack the support of facts and evidence.
Stigler's opinions about damage to the interior of Guzman's house are not supported by any facts. Stigler states that the inside of Guzman's home suffered damage caused by the failing roof. (D.E. 23-7 at 6.) He opines that much of the drywall and ceilings on the first floor require replacement. (D.E. 23-7 at 7.) Other than the damage around the baseboards on the first floor of the home, however, he cites to no evidence that the damage even exists. It does not appear that he took photos of the inside of the home. If he did, he did not include them in his report. He does not describe the damage he says needs repair. During oral argument, Guzman's counsel stated that he was unable to supply the court with any evidence that there was in fact damage inside the house above the baseboards.
An expert's opinion must be based on facts. Fed. R. Evid. 702(b). An expert's opinion cannot substitute for facts. Hathaway v. Bazany , 507 F.3d 312, 318 (5th Cir. 2007) ("Without more than credentials and a subjective opinion, an expert's testimony that ‘it is so’ is not admissible."). Stigler's opinions are not supported by evidence and are thus unreliable under Rule 702(b). As a result, Stigler's opinions on Guzman's interior damage are inadmissible.
(ii) Stigler's report ignores the actual facts of the case.
As discussed, Stigler does not present the facts upon which his opinion relies. He also fails to account for the otherwise unrebutted facts that contradict his opinions. Stigler opines that "the water damage to the ceiling of the garage, utility room, bathroom, hallway, living room, dining room, kitchen, and pantry are a result of the wind damage and resultant failure of the roof directly above the rooms." (D.E. 23-7 at 6.) The unrebutted facts are to the contrary.
Guzman testified that he saw no damage to the ceiling in the garage. (D.E. 23-4 at 17.) He testified that he looked, but saw no damage in the living room, den, kitchen, pantry, hallway, bathroom, or laundry room. (D.E. 23-4 at 18–19.) Gloria Guzman also testified that she saw no damage to the ceilings in the kitchen, pantry, den, bathroom, or garage. (D.E. 23-3 at 15–16.) She did not see any damage in the hallway or the laundry room. (D.E. 23-3 at 16.) Photographs also show no water damage to the ceiling in the den, the living room, the kitchen, the bathroom, the laundry room, or the pantry. (D.E. 23-8 at 30, 33, 38, 40, 42, 44.) Stigler seems to be claiming that roof damage caused the water damage at the baseboards on the first floor. But Gloria Guzman testified that the first floor flooded during Hurricane Harvey. Stigler does not account for Gloria Guzman's factual account.
Stigler opines that the roof was directly above the damaged ceilings. He is just wrong. Because Guzman's house is two stories, the roof is not directly above the first-floor rooms. There is an entire, undamaged, second floor between the roof and the allegedly damaged first-floor ceilings and walls.
An expert opinion that contradicts indisputable record facts is unreasonable and thus, unreliable. Hathaway , 507 F.3d at 318 (concluding that "the existence of sufficient facts and a reliable methodology is in all instances mandatory"). Because Stigler's opinions do not account for actual, unrebutted facts of the case, they are unreliable under Rule 702(b). As a result, Stigler's opinions on Guzman's interior damage are inadmissible.
(iii) Stigler's opinions are not supported by any reliable principle or method.
Stigler's opinions about the damage to the interior of Guzman's home are not based on any principle or theory that the court can discern. Stigler opines that damage to Guzman's roof caused interior water damage to the first floor but left the second floor unscathed. He does not explain how this could be possible.
Stigler's photographs show that Guzman's house is a two-story rectangular home fully covered by a roof. (D.E. 23-7 at 25–27.) All the rooms that Stigler states were damaged are on the first floor. (D.E. 23-3 at 16; D.E. 23-4 at 18–19; D.E. 23-7 at 24.) As discussed above, neither Guzman nor his wife saw water damage on the second floor. (D.E. 23-3 at 15; D.E. 23-4 at 16.) Photographs show no water damage to the attic or to the rooms on the second floor. (D.E. 23-8 at 28, 30, 35, 45–46.) Plywood forming the attic ceiling did not show any signs of leaks or damage. (D.E. 23-4 at 11; D.E. 23-8 at 46.) That is, the very plywood boards to which the allegedly damaged shingles were nailed did not show any water damage.
It is not possible that water leaked from the roof, did not damage the plywood forming the structure of the roof, skipped the second floor, skipped the ceilings of the first floor, did not damage the upper walls of the first floor, and wound up damaging the baseboards and lower walls of the first floor. If this is possible, Stigler does not present the physical principle allowing such an event to happen.
To qualify as an expert witness under Rule 702, Stigler is required to explain his theory using reliable principles and methods. See Fed. R. Evid. 702(c) ; Brown v. Illinois Cent. R.R. Co. , 705 F.3d 531, 536 (5th Cir. 2013) (declaring that "an expert bears the burden of furnishing some objective, independent validation of his methodology") (internal citation omitted). Because Stigler's opinions do not explain his analysis, his opinions are not sufficiently reliable. The court finds his opinions about interior damage to be unreliable under Rule 702(b)–(d) and thus inadmissible. The court therefore must exclude these opinions.
For all of these reasons, the court GRANTS State Farm's motion to exclude (D.E. 22) and excludes Earl Stigler's expert opinions.
3. Motion for Summary Judgment
State Farm also moves for summary judgment. In its motion (D.E. 23), State Farm argues that Guzman has not produced any evidence that its denial of Guzman's claim constitutes a breach of contract or a violation under the Texas Insurance Code. Guzman argues that he is not required to prove his case at this stage and that all relevant issues are questions of material fact for the jury.
A. Legal Standard
"Summary judgment is appropriate only if, viewing the evidence in the light most favorable to the nonmovant, ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ " Davenport v. Edward D. Jones & Co. , 891 F.3d 162, 167 (5th Cir. 2018) (quoting Fed. R. Civ. P. 56(a) ). No genuine issue of material fact exists if a rational jury could not find for the nonmoving party based on the complete record. McMichael v. Transocean Offshore Deepwater Drilling, Inc. , 934 F.3d 447, 455 (5th Cir. 2019) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).
"The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact." Lincoln General Ins. Co. v. Reyna , 401 F.3d 347, 349 (5th Cir. 2005) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322–25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). If this burden is met, the nonmovant must then "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmovant must "go beyond the pleadings," using competent summary judgment evidence to cite to "specific facts" showing a genuine issue for trial. Bustos v. Martini Club, Inc. , 599 F.3d 458, 468 (5th Cir. 2010). Conclusory allegations and unsubstantiated assertions are not enough to defeat a properly supported motion for summary judgment. Turner v. Baylor Richardson Med. Ctr. , 476 F.3d 337, 343 (5th Cir. 2007).
B. Analysis
(1) Breach of Contract
Guzman asserts that State Farm's denial of his insurance claim constitutes a breach of contract. "In Texas, insurance policies are contracts subject to the rules of contract construction." Certain Underwriters at Lloyd's of London v. Lowen Valley View, LLC , 892 F.3d 167, 170 (5th Cir. 2018). To establish his breach of contract claim, Guzman must show that he filed an insurance claim for losses that are covered by his policy, that State Farm denied his legitimate claim, and that the denial caused Guzman harm. Id. State Farm argues that there is no genuine issue of material fact to support Guzman's breach of contract claim because Guzman has failed to establish that his claims are covered under his insurance policy and that any covered losses exceeded his policy deductible. State Farm also argues that Guzman did not produce evidence to segregate covered wind damage from damage not covered by the policy.
(i) There is no evidence to support Guzman's claim for roof damage.
There are two problems with Guzman's breach of contract claim as it relates to roof damage: (i) Guzman has not shown that any covered loss exceeded his insurance deductible and (ii) he has not segregated wind damage from wear and tear damage. For Guzman to defeat the motion for summary judgment, he must show that a genuine issue of material fact exists as to both. Because he has not provided evidence of either, summary judgment is granted.
Guzman has not shown that any covered loss exceeded his insurance deductible. Evidence in the record shows that wind caused $407.31 in roof damage. (D.E. 23-2 at 41.) Guzman has not provided any admissible evidence to refute this estimate. As discussed above, Stigler's damage estimate is not admissible. Guzman has provided no other evidence that the cost to repair the roof exceeded the deductible. Guzman's insurance policy includes a $7,356 deductible for wind or hail damage. (D.E. 23-1 at 2.) The actual amount spent to replace the roof was less than $6,000. Because Guzman has not shown that covered damage exceeded his deductible, he has not shown that State Farm wrongfully denied his policy or breached their contract.
Moreover, Guzman has not segregated wind damage from damage due to wear and tear. Unrebutted evidence in the record shows that wear and tear, which is not covered under Guzman's policy, was at least a contributing cause of the damage on Guzman's roof. Uncontested expert testimony and photographic evidence shows more pronounced granular loss at the safest access points due to foot traffic. (D.E. 23-8 at 17.) Google Earth shows that at least one shingle was missing before the date of loss. Id. The twenty-five-year roof was at least sixteen years old at the time of Hurricane Harvey. (D.E. 23-4 at 5.) There is admissible evidence showing that some of the roof's damage was caused by wear and tear, which is not covered under the policy.
It is Guzman's burden at the summary judgment stage to produce evidence to segregate out the portion of damage caused by wind, which is a covered event, from wear and tear, which is not. "[B]ecause an insured can recover only for covered events, the burden of segregating the damage attributable solely to the covered event is a coverage issue for which the insured carries the burden of proof." Hamilton Properties v. American Ins. Co. , 643 F. App'x 437, n.3 (5th Cir. 2016). "If the insured falls short of meeting this burden, the insurer is entitled to summary judgment." Lowen Valley View , 892 F.3d at 170. Guzman presented no evidence to separate out the damage caused by wind, a covered event, and the damage caused by wear and tear, a noncovered event. State Farm is entitled to summary judgment.
(ii) There is no evidence to support Guzman's claim for interior damage.
There are two problems with Guzman's breach of contract claim as it relates to interior damage: (i) there is no evidence that the interior of Guzman's home was damaged by wind and, even if there was, (ii) Guzman has not segregated wind damage from flood damage.
Guzman has not produced any evidence of interior damage caused by wind. Evidence in the record shows that the living room, den, kitchen, pantry, hallway, bathroom, and laundry room suffered no damage above the baseboards. (D.E. 23-3 at 15; D.E. 23-4 at 18–19.) There is no evidence in the record that wind caused damage to the interior of the house. Guzman testified that he saw no damage to the ceiling in the garage. (D.E. 23-4 at 17.) He testified that he looked, but saw no damage in the living room, den, kitchen, pantry, hallway, bathroom, or laundry room. (D.E. 23-4 at 18–19.) Gloria Guzman testified that she saw no damage to the ceilings in the kitchen, pantry, den, bathroom, or garage. (D.E. 23-3 at 15–16.) She did not see any damage in the hallway or the laundry room. (D.E. 23-3 at 16.) Gloria Guzman testified that the water inside the home did not rise above the baseboards. (D.E. 23-3 at 15.) Interior photographs only show damage to the baseboards. (D.E. 23-8 at 23–47.) During oral argument, Guzman's counsel admitted that he was unable to supply the court with any evidence of interior wind damage. Because Guzman has not produced evidence of wind damage inside his home, he has not shown that State Farm wrongfully denied his claim or otherwise breached the insurance contract.
In addition, Guzman has made no effort to segregate wind damage from flood damage. Evidence in the record shows that ground water caused damage to the interior baseboards. Gloria Guzman testified that during Hurricane Harvey, ground water entered the house through the garage, the front door, and the back door. (D.E. 23-3 at 13–14.) This water did not rise above the baseboards. (D.E. 23-3 at 15.) Photographs show water damage on these first-floor baseboards. (D.E. 23-2 at 16, 20, 21; D.E. 23-8 at 23, 26–29, 31–32, 34–37, 40–41, 43.) These photographs, along with Gloria Guzman's testimony, show that flooding caused interior damage. Flood damage is not covered under Guzman's insurance policy. (D.E. 23-1 at 7.)
As discussed above, because there is evidence that flooding, not covered under the policy, caused damage, it is Guzman's burden to present evidence to segregate that damage from damage caused by wind, a covered event. Because Guzman did not present any evidence to separate out the damage caused by flooding from the damage caused by wind, he did not meet his burden. State Farm is entitled to summary judgment. Lowen Valley View , 892 F.3d at 170.
Moreover, Guzman's policy contains an anti-concurrent causation clause, which would exclude his recovery even if he could segregate the damage. This clause states that State Farm does not cover "any loss which would not have occurred in the absence of [an] excluded event[ ] ... regardless of ... whether other causes acted concurrently or in any sequence with the excluded event to produce the loss." (D.E. 23-1 at 33.) Excluded events include flood and surface water, "whether driven by wind or not." Id. If the terms of an insurance policy are unambiguous, courts "must enforce the policy according to its plain meaning." Travelers Lloyds Ins. Co. v. Pacific Employers Ins. Co. , 602 F.3d 677, 681 (5th Cir. 2010). Under the plain language of this clause, damage caused by surface water, even if it occurred concurrently or in sequence with wind, is not covered by Guzman's policy. The anti-concurrent causation clause of Guzman's policy thus prevents his recovery. State Farm is entitled to summary judgment.
(2) Statutory Claims
Guzman also asserts that State Farm violated Chapters 541 and 542 of the Texas Insurance Code due to its unreasonable investigation and subsequent denial of Guzman's claim. Both of Guzman's statutory claims are based on the underlying insurance claim. "An insured cannot recover any damages based on an insurer's statutory violation if the insured had no right to receive benefits under the policy and sustained no injury independent of a right to benefits." Lowen Valley View , 892 F.3d at 172 (emphasis in original) (quoting USAA Texas Lloyds Co. v. Menchaca , 545 S.W.3d 479, 489 (Tex. 2018) ). As discussed above, there is no evidence that Guzman had a right to receive insurance benefits. Guzman has not claimed that he suffered an injury unrelated to the denial of his insurance claim. Because Guzman has not established that he is entitled to receive benefits or that State Farm caused him harm, he cannot recover under the Texas Insurance Code. State Farm's motion for summary judgment is granted as to Guzman's statutory claims.
4. Conclusion
Earl Stigler's expert opinions are inadmissible. State Farm's motion to exclude Stigler's testimony (D.E. 22) is therefore GRANTED.
The summary judgment record raises no genuine issue of material fact as to Guzman's claims for breach of contract and statutory violations, and State Farm is entitled to summary judgment. State Farm's motion for summary judgment (D.E. 23) is therefore GRANTED. Guzman will take nothing from State Farm. A separate final judgment will issue.