Opinion
CIVIL ACTION NO. G-11-140
06-10-2013
FRANK SAGER v. ALLSTATE INSURANCE COMPANY
OPINION AND ORDER
Before the Court is the Motion for Summary Judgment of Defendant, Allstate Insurance Company (Allstate). The deadline for a response from Plaintiff, Frank Sager (Sager), has passed and counsel for Sager has informed the Court that under the factual circumstances of this case no response will be filed. The Motion is, therefore, ripe for determination.
Because summary judgment may not be granted by default alone, Eversley v. MBank of Dallas, 843 F.2d 172, 174 (5th Cir. 1988), the Court must determine whether Allstate has made a prima facieshowing of its entitlement to summary judgment based upon its undisputed evidence. C.F. Dahlberg & Co. v. Chevron USA, Inc., 836 F.2d 915, 919 (5th Cir. 1988) In the opinion of this Court, Allstate's evidence has shown that summary judgment is appropriate.
On March 28, 2011, Sager filed suit against Allstate, a WYO carrier, alleging breach of contract for Allstate's failure to cover foundation damage to his home following Hurricane Ike. Allstate paid two timely Proofs of Loss, but Sager never submitted a timely Proof of Loss for the foundation damage the basis of this lawsuit. Since the failure to timely submit a sworn Proof of Loss bars recovery, Gowland v. Aetna, 143 F.3d 951, 954 (5th Cir. 1998), Allstate is entitled to summary judgment.
The Court sees no need to address Allstate's other grounds for summary judgment.
It is, therefore, ORDERED that the Motion for Summary Judgment (Instrument no. 26) of Defendant Allstate Insurance Company, is GRANTED and the Complaint of Plaintiff, Frank Sager, is DISMISSED.
DONE at Galveston, Texas, this 10th day of June, 2013.
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John R. Froeschner
United States Magistrate Judge