Thomas et al v. State Farm Lloyds et al

Brief/Memorandum in Support

N.D. Tex.August 4, 2016

PLAINTIFFS’ BRIEF IN SUPPORT OF THEIR MOTION FOR LEAVE TO FILE SECOND SUPPLEMENTAL BRIEF AND APPENDIX IN SUPPORT OF PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - PAGE 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JOHN F. THOMAS AND BARBARA J. THOMAS, Plaintiffs, v. STATE FARM LLOYDS AND MAEGAN STRONGER, Defendants. § § § § § § § § § CIVIL ACTION NO. 3:15-CV-01937 JURY PLAINTIFFS JOHN F. THOMAS AND BARBARA J. THOMAS’ BRIEF IN SUPPORT OF THEIR OPPOSED MOTION FOR LEAVE TO FILE SECOND SUPPLEMENTAL BRIEF AND APPENDIX IN SUPPORT OF PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS STATE FARM LLOYDS’ AND MAEGAN STONGER’S MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JANE J. BOYLE: NOW COME, John F. Thomas and Barbara J. Thomas (“Plaintiffs”) and file the following Plaintiffs’ Brief in Support of Their Opposed Motion for Leave to File Second Supplemental Brief and Appendix in Support of Plaintiffs’ Response in Opposition to Defendants State Farm Lloyds’ and Maegan Stonger’s Motion for Summary Judgment, and offer the following arguments and authorities in support of granting their Motion for Leave to File Second Supplemental Brief and Appendix in Support of Plaintiffs’ Response in Opposition to the Motion for Summary Judgment (“MSJ”) filed by State Farm Lloyds (“State Farm”) and Maegan Stonger (“Stonger”). INTRODUCTION 1. In this first-party insurance case Plaintiffs filed suit on April 17, 2015, alleging that Defendants State Farm and Stonger wrongfully denied coverage and payment to Plaintiffs for an Case 3:15-cv-01937-B Document 52 Filed 08/04/16 Page 1 of 6 PageID 1135 PLAINTIFFS’ BRIEF IN SUPPORT OF THEIR MOTION FOR LEAVE TO FILE SECOND SUPPLEMENTAL BRIEF AND APPENDIX IN SUPPORT OF PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - PAGE 2 insurance claim they submitted for damages that their property sustained as a result of leaks in the property’s plumbing system. The foundation of Plaintiffs’ property shifted as a result of leaks in the plumbing system under the foundation, which subsequently caused the deterioration of the property. Plaintiffs submitted to State Farm an insurance claim for the damages to the property, as State Farm had issued a Texas Dwelling Insurance Policy (“the Policy”) covering Plaintiffs’ property. Even though Plaintiffs’ Policy covered damages resulting from leaks in the plumbing system, State Farm denied coverage and payment for the claim, alleging that the damages were excluded by the Policy. 2. Therefore, Plaintiffs filed suit in state district court, asserting against Defendants causes of action for breach of contract, delay in payment of the claim, statutory and common-law bad faith, and fraud and conspiracy to commit fraud.1 Subsequently, Defendants removed the suit to this Northern District of Texas Court.2 3. On June 1, 2016, Defendants filed their MSJ, arguing that Plaintiffs’ Policy did not provide coverage for the claim and therefore summary judgment on Plaintiffs’ breach of contract action was warranted.3 Defendants’ MSJ further argues that because there is no coverage for Plaintiffs’ insurance claim, Plaintiffs’ extra-contractual causes of action must fail as a matter of law.4 4. Plaintiffs timely filed on June 22, 2016, their Response to Defendants’ summary judgment motion.5 With their Response, Plaintiffs also filed a Brief and Appendix in support of 1 See Dkt. #1. 2 Id. 3 Dkt. #33. 4 Id. 5 Dkt. #38. Case 3:15-cv-01937-B Document 52 Filed 08/04/16 Page 2 of 6 PageID 1136 PLAINTIFFS’ BRIEF IN SUPPORT OF THEIR MOTION FOR LEAVE TO FILE SECOND SUPPLEMENTAL BRIEF AND APPENDIX IN SUPPORT OF PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - PAGE 3 Plaintiffs’ opposition to Defendants’ motion.6 5. As of June 22 when Plaintiffs filed their Response, the depositions of Raymond Scoular and Barrett Sherman had not been taken. Mr. Scoular has been designated as Plaintiffs’ non- retained expert witness and was the engineer hired by Plaintiffs prior to submitting their claim to State Farm who investigated the cause of the foundation damages. Mr. Sherman is the representative of On Call Plumbing, which has also been designated by Plaintiffs as non-retained expert. On Call Plumbing was the company hired by Plaintiffs to repair the leaks in the plumbing system that had caused the foundation to deflect. 6. Mr. Scoular’s and Mr. Sherman’s depositions were taken on July 18, 2016, almost one month after Plaintiffs filed their Response to Defendants’ MSJ. As soon as Plaintiffs obtained the transcript of Mr. Scoular’s deposition, Plaintiffs filed a Motion for Leave to file a Supplemental Brief and Appendix in support of their Response to Defendants’ MSJ,7 in order to file the transcript as Plaintiffs’ summary judgment evidence and cite to Mr. Scoular’s testimony which shows that, at a minimum, there is a fact issue regarding the cause of the damages to the property. This Honorable Court has yet to rule on Plaintiffs’ Motion for Leave. 7. Subsequently, Plaintiffs obtained the transcript of Mr. Sherman’s deposition, during which he provided testimony regarding the damages that would result from leaks such as the ones On Call Plumbing observed at Plaintiffs’ property. Hence, Mr. Sherman’s testimony provides further support that the damages that the property had were caused by the leaks in the plumbing system under the foundation of the property and that, thus, the Policy covered the damages and Defendants’ denial of the claim was improper and a breach of the insurance 6 Dkts. #39 and 40. 7 Dkt. #49. Case 3:15-cv-01937-B Document 52 Filed 08/04/16 Page 3 of 6 PageID 1137 PLAINTIFFS’ BRIEF IN SUPPORT OF THEIR MOTION FOR LEAVE TO FILE SECOND SUPPLEMENTAL BRIEF AND APPENDIX IN SUPPORT OF PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - PAGE 4 contract. 8. As with Mr. Scoular’s testimony, Mr. Sherman’s deposition transcript is significant evidence that demonstrates that there are numerous fact issues regarding the coverage that should have been afforded to Plaintiffs’ claim by Defendants and summary judgment is therefore not property. Accordingly, Plaintiffs request from the Court leave to file a Second Supplemental Brief and Appendix in support of their Response to Defendants’ MSJ, in order to attach as Plaintiffs’ summary judgment evidence the transcript of Mr. Sherman’s deposition. ARGUMENT AND AUTHORITIES 9. Local Rule 7.1(e) provides that responses to opposed motions must be filed within twenty-one days from the date the motion was filed.8 Pursuant to this rule, the deadline for Plaintiffs to file their response to Defendants’ MSJ was June 22, 2016, which, in fact, was the date Plaintiffs filed their Response, along with their Brief and Appendix in support of their opposition to Defendants’ motion. 10. Mr. Sherman’s deposition was taken on July 18th, three weeks after the deadline for Plaintiffs’ Response to Defendants’ MSJ. Therefore, Plaintiffs were not able to attach to their Response as summary judgment evidence the transcript of Mr. Sherman’s deposition. 11. During his deposition, Mr. Sherman provides testimony related to the effects that, in his opinion and according to his vast experience and training, would result from plumbing leaks such as the ones On Call Plumbing observed and repaired at Plaintiffs’ property. This testimony further supports the arguments and issues raised by Plaintiffs in their Response to Defendants’ MSJ, and shows that, at a minimum, in this case remain genuine issues of the material fact of whether the damages were covered by the Policy and State Farm breached the contract by 8 See N.D. Tex. L.R. 7.1(e). Case 3:15-cv-01937-B Document 52 Filed 08/04/16 Page 4 of 6 PageID 1138 PLAINTIFFS’ BRIEF IN SUPPORT OF THEIR MOTION FOR LEAVE TO FILE SECOND SUPPLEMENTAL BRIEF AND APPENDIX IN SUPPORT OF PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - PAGE 5 denying payment for them. In sum, Mr. Sherman’s testimony demonstrates that Defendants’ motion for summary judgment on Plaintiffs’ breach of contract claim should be denied. 12. Federal Rule of Civil Procedure 6(b)(1)(B) provides: (b) Extending Time. (1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time: (A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act because of excusable neglect.9 13. Pursuant to Rule 6(b)(1)(B), it is within this Court’s discretion to extend the time for Plaintiffs to file their response and supporting evidence in opposition to Defendants’ MSJ. At the time Plaintiffs filed their Response to Defendants’ MSJ - which was timely filed - Mr. Sherman’s deposition had not been taken and Plaintiffs therefore were not able to file the transcript as Plaintiffs’ summary judgment evidence. 14. Mr. Sherman’s testimony is significant for Plaintiffs to show that Defendants wrongfully denied coverage for the claim and that summary judgment on Plaintiffs’ breach of contract cause of action is not proper. Accordingly, Plaintiffs move the Court to grant them leave to file a Second Supplemental Brief and Appendix in Support of Plaintiffs’ Response in Opposition to Defendants’ MSJ, including filing Mr. Sherman’s deposition transcript as Plaintiffs’ summary judgment evidence. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that this Court will grant their Opposed Motion for Leave to File Second Supplemental Brief and Appendix in Support of Plaintiffs’ Response in Opposition to Defendants State Farm Lloyds’ and Maegan 9 Fed. R. Civ. P. 6(b)(1)(B). Case 3:15-cv-01937-B Document 52 Filed 08/04/16 Page 5 of 6 PageID 1139 PLAINTIFFS’ BRIEF IN SUPPORT OF THEIR MOTION FOR LEAVE TO FILE SECOND SUPPLEMENTAL BRIEF AND APPENDIX IN SUPPORT OF PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - PAGE 6 Stonger’s Motion for Summary Judgment; and that Plaintiffs have such other and further relief to which they may show themselves justly entitled either at law or in equity. Respectfully submitted, J. Ryan Fowler ____ J. Ryan Fowler State Bar No. 24058357 MOSTYN LAW 3810 W. Alabama Street Houston, Texas 77027 (713) 714-0000 (Office) (713) 714-1111 (Facsimile) ryan@mostynlaw.com rmsdocketefile@mostynlaw.com ATTORNEY-IN-CHARGE FOR PLAINTIFF Brian P. Lauten L.R. 83.10 Local Counsel for Plaintiff DEANS & LYONS, LLP 325 N. Saint Paul Street, Suite 1500 Dallas, Texas 75201 (214) 965-8500 (Office) (214) 965-8505 (Facsimile) E-mail: blauten@deanslyons.com CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing has been served on all counsel of record, pursuant to the Federal Rules of Civil Procedure, on this the 4th day of August, 2016. W. Neil Rambin L. Kimberly Steele Scott P. Brinkerhoff SEDGWICK LLP 1717 Main Street, Suite 5400 Dallas, Texas 75201 (469) 227-8200 (Office) (469) 227-8004 (Facsimile) J. Ryan Fowler ____ J. Ryan Fowler Case 3:15-cv-01937-B Document 52 Filed 08/04/16 Page 6 of 6 PageID 1140