Nguyen v. Allstate Vehicle and Property Insurance Company

MIKE NGUYEN ,
Plaintiff,
V.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
2:24-CV-186-Z-BR
ALLSTATE VEHICLE AND PROPERTY
INSURANCE COMP ANY,
De fendant.
MEMORANDUM OPINION AND ORDER
Before the Court are two motion s: Defe ndant Allstate Vehicle and Prop erty In s uranc e
Company's ("Al lstat e") Motion for Summary Judgment (ECF No. 26), filed August 7, 2025,
and Allstate's Motion to Exclude the Testimony of Plaintiff s Re tained Expert Witnes ses
Chris Rhynehart and Brandon Allen ("Motion to Exclude") (ECF No. 29), also filed August 7,
2025. Having reviewed the motions, bri efing, and relevant law , the Court GRANTS in part
and DENIES in part Allstate's Motion to Exclude. The Court furth er GRANTS Allstate's
Motion for Summary Judgm e nt in its entirety.
BACKGROUND
Plaintiff Mik e Nguyen filed this insuranc e coverage dis put e in T exas state court on
August 2, 2024. ECF No. 1-5. According to Plaintiff, "[o]n or about May 1, 2022 a storm hit
the H ereford, Texas area, damaging" hi s "hou se and other property. " Id. at 3. "Within a few
weeks of the hailstorm, Plaintiff observe d water damage on the ceiling of his garage." ECF
No. 34 at 5. Plaintiff "promptly filed a claim with hi s prop er ty insurance company, Allstate."
Id . at 5, 7. Allstate inspected Plaintiffs property on May 5, 2022. ECF No. 27 at 9. Allstate
"o pen ed coverage for th e damage to th e exterior of the home , but denied coverage" for
Plaintiffs roof "o n the basis that the [hail] damage to the roof was cosmetic." ECF No. 34 at
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5. Plaintiff then sued Allstate for breach of contract , bad faith , and violations of the Texas
In s urance Code. S ee ECF No. 1-5. Alls tate removed th e case to thi s Court on August 29, 2024.
S ee ECF No. 1.
Alls tat e agr ees that Plaintiff s roof is dama ged and th at at least some of the damag e
w as caused by hail. See, e.g., ECF No. 27 at 9 ("Alls tat e found damag es to th e steel roof and
various ex terior components." (citation modified)). However, Alls tate disagr ees that the May
1 s torm caused the l ea k in Plaintiffs garage. Allstate point s to a "Cosmetic Damag e
Endor seme nt" 1 in Plaintiffs insuran ce policy, which reads:
Cosmetic damag e cau se d by hail to th e surface of a metal roof, including but
not limit ed to, indentation s, 	dents, 	di stor tions , scratches, or mark s, 	that
change th e a pp ea ranc e of th e surface of a m eta l roof.
This exclusion applies to all of th e components of th e s urfa ce of a metal roof,
including but not limit ed to, panels, shingl es, flashing, caps, vents , drip edges,
finials, eave and gable trim and snow guards, coatings and oth er finishing
m ate rial s.
We will not apply this exclusion to sudden and accidental direct ph ysical
damag e to th e s urfac e of a me tal roof caused by hail that result s in water
l ea king through th e surface of a me tal roof.
Id . (e mpha sis omitted). All sta te argues that Pl a intiff s policy th erefo re "excl ud es coverage for
co smetic damag e caused by hail to th e surface of th e steel roof unless it r es ults in wat er
l ea kin g through th e roof surface." Id . at 12. All sta te found that th e hail s torm caused
"damages to th e stee l r oo f [th at ] changed the appearance of the roof surface but would not
r es ult in l ea kin g through th e roof surface." Id . at 9. Allstat e accordingly "co nclud ed that the
damage to th e roof wa s not covered." Id. at 9.
1 "Th ese optional e nd orse me nt s pr ov id e for th e exclusion of coverage for cosmetic da m age caused by
hail to roof cove rin gs .. .. " Commissioner 's Bulletin #B-0030-98, T EX. D EP'T OF I NS . (A pr. 23, 1998),
http s://www. tdi.t exas .gov/b ull e tin s/ l 998/b-0030-8.html 	[http s://p er m a .cc/L5KL- 78QF]; 	see 	also
Ampha,y v. Allstat e Vehicle & Prop. In s. Co., No. 2:21- CV-2 19, 202 3 WL 2491285, at *2 (N.D. Tex. Mar.
13, 2023) (Kacs mar yk , J.) (no tin g th at und er thi s exclusion , "cosme ti c dam age ... cau sed by h a il is n ot
covered unl ess it r es ult s in wat er l ea king through th e s urfac e") .
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Allstate "prepared an estimate to repair the covered damages it found but the total
repair cost did not exceed the $2,523.01 Policy deductible." ECF No. 27 at 9. It therefore made
no payment on Plaintiffs claim. See id . Roughly six months later, on November 2, 2022,
Plaintiffs roofer, "Chris Zysling of Tascosa Roofing Inc., provided an estimate for repairs of
additional damages not included in Allstate's estimate for the Claim ." Id . Zysling took
photographs of"the alleged additional damages" and sent them to Allstate. Id. at 9-10. "Upon
reviewing Zysling's photographs, Allstate made revisions to its repair estimate that caused
the total estimate amount to exceed the Policy deductible, resulting in a payment on the
Claim." Id. at 10. Allstate contends that it "did not change its decision that the damages to
the roof were not covered and did not issue any payment for repairs to the roof." Id. Nearly a
year after that, on September 29, 2023, "a different contractor emailed to Allstate a letter
indicating that repairs had been made to the Property." Id. Allstate then "issued a payment
to Mr. Nguyen for the recoverable depreciation that was available under Allstate's estimate."
Id.
On April 26, 2024, just under two years after Plaintiff filed his insurance claim,
Plaintiffs "attorneys sent to Allstate a pre-suit notice letter pursuant to Section 542A.003 of
the Texas Insurance Code." ECF No. 27 at 10. Plaintiffs attorneys also sent Allstate "an
unsigned repair estimate totaling $88,599.17," which Allstate asserts was "largely similar in
scope to Allstate's estimate, except that it called for the steel roof to be replaced." Id. The cost
to replace Plaintiffs roof "accounted for $63,635.38, or approximately 72%, of the total
estimate amount." Id.
Allstate soon "retained a professional engineer, Suzanne Arambel, to conduct another
inspection of the Property." ECF No. 27 at 10. Arambel "issued a report in which she detailed
her conclusion that the damages to the steel roof at the Property are 'cosmetic in nature, and
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do not affect the performance or longevity of the roof covering."' Id. (citation omitted) . Allstate
notified Plaintiffs attorneys of Arambel's findings on June 26, 2024. See id. Relying on
Arambel's report, Allstate did not change its decision on Plaintiffs claim. See id . at 11.
Plaintiff then filed suit on August 2, 2024. See id.; ECF No. 1-5. A year later, on August 7,
2025, Allstate moved for summary judgment and to exclude the testimony of Plaintiffs
retained experts , Chris Rhynehart and Brandon Allen. ECF Nos. 26, 29.
MOTION TO EXCLUDE
I. Lega l Standar d
Federal Rule of Evidence 702 provides:
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 the
proponent demonstrates to the court that it is more likely than not that:
(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's opinion reflects a reliable application of the principles and
methods to the facts of the case.
FED. R. Evm. 702. To be admissible, expert testimony must meet all four subparts of Rule
702. 	"The 	party 	proffering 	expert 	testimony 	has 	the 	burden 	of 	establishing 	by 	a
preponderance of the evidence that the challenged expert testimony is admissible." Guzman
v. State Farm Lloyds, 456 F. Supp. 3d 846, 852 (S.D. Tex. 2020) (quoting Gamboa v.
Centrifugal Casting Mach. Co ., No. CV 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."' Guzman, 456 F. Supp. 3d at 852
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(quoting Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007)); see also
VeroBlue Farms USA Inc. v. Wulf, No. 3:19-CV-764, 2023 WL 348963, at *11 (N.D. Tex. Jan.
20, 2023) ("The party offering the expert testimony must show that a qualified expert's
testimony is relevant (that is, 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, and the
expert's reasoning or methodology properly can be applied to the facts in issue) and reliable
(that is, the testimony is based on sufficient facts or data and is the product of reliable
principles and methods)." (citation modified)); Hall Arts Ctr. Off, LLC u. Hanover Ins . Co.,
327 F. Supp. 3d 979, 1001 (N.D. Tex. 2018) (Fitzwater, J.) ("The court may admit proffered
expert testimony only if the proponent, who bears the burden of proof, demonstrates that (1)
the expert is qualified , (2) the evidence is relevant to the suit, and (3) the evidence is reliable."
(citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999))). "An expert's opinion is
considered reliable if the reasoning or methodology underlying the testimony is scientifically
valid." Guzman, 456 F. Supp. 3d at 852 (citation omitted). "Relevance depends upon whether
that reasoning or methodology properly can be applied to the facts in issue." Id.
Courts look to several factors to determine whether expert testimony is reliable,
including:
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.
Guzman, 456 F. Supp. 3d at 852 (citing FED. R. Evm. 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, [and] the link between the facts and
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the conclusion .... " Id. (quoting Seaman u. S eacor Marine LLC , 326 F. App'x 721, 725 (5th
Cir. 2009)).
An expert witness must also prepare a report containing, among other things, "a
complete statement of all opinions the witn ess will express and the basis and reasons for
th em and the facts or data considered by the witness in forming th em." FED. R. CIV . P.
26(a)(2)(B) (citation modified). This m ea ns expert witnesses "mu st pr e par e a detail ed and
complete written report , stating the testimony the witness is expected to present during
dir ect exa mination , together with the reasons th erefor." Klein u. Fed. Ins. Co., No. 7:03-CV-
102, 2014 WL 6885973, at *2 (N.D. Tex. Dec. 8, 2014) (citing FED. R. CIV. P. 26 advisory
committ ee's not e to 1993 amendments) . "[T]he purpos e of the reports is to avoid the disclosure
of 'sketc hy and vagu e' ex pert information , as wa s the practic e und er the former rule." Sierra
Club, Lone Star Chapter u. Cedar Point Oil Co. Inc ., 73 F.3d 546, 571 (5th Cir. 1996) (quoting
FED. R. CIV. P. 26 advisory committee's not e to 1993 amendments).
II. Analysis
Alls tat e moves to exclude th e opm10ns of Plaintiffs two retained experts: Chris
Rhynehart, a contractor who inspected Pl a intiff s hom e; and Brandon Allen , a consultant
whom Plaintiff desig nat ed as a rebuttal expert after Rhynehart wa s depo se d. See ECF No.
32 at 1-2 .
A. Chris Rhyn ehart
Rhyn e hart's report is b ase d on "hi s inspection of the property; a review of the policy
at issue; a review of the client's claim file and photographs; 	[and] 	industry s tandard
Xactimate pric e list s and software as we ll as his knowl edg e, training, 	education, 	and
exper ience." ECF No. 28 at 198. Most releva nt h ere is his opinion that "t he May 1, 2022 stor m
caused da mage 	to Plaintiffs roof." Id . Allstate 	argues 	that Rh yne hart's 	opinions 	are
irr el eva nt b eca use he mad e no attempt to connect the damag e to the May 1 s torm or any
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storm that occurred during the Policy period of February 1, 2022 to February 1, 2023. See
ECF No. 30 at 10- 11.
Rhynehart's opinions about whether the May 1 storm caused the damage must be
excluded. Plaintiff's Expert Witness Designation states that Rhynehart will testify that "the
May 1, 2022 storm caused damag e to Plaintiffs roof ' and that "t he damage observed to
Plaintiff's property is consistent with the weath er reported near th e subject property and in
Hereford, Texas." ECF No. 28 at 198. But that appears nowhere in his report. Rhynehart's
report says only that Plaintiffs property "shows cl ea r signs of a previous severe hail storm ,"
with multiple areas "indicat[ing] significant impact damage ." Id. 	at 203. He makes no
attempt to connect that damage to the May 1 storm, or to date the damage at all. His report
includes a weath er report showing that a hail storm occurred near Plaintiffs property on
May 1, 2022, but th e same report lists eleven other hail storms that impacted Plaintiffs
property in th e years before the May 1 storm. Rhyn e hart al so fails to consider any possible
a lternativ e cause s of the damage . Nor does h e pr ese nt any information about the condition
of Plaintiffs roof before the storm.
Plaintiff concedes that Rhynehart 's opinions fail to connect the roof damage to the
May 1 storm. See ECF No. 32 at 3 (noting that Rhynehart "acknowl edge [d] that he did not
independently da te th e hail damag e"). To plug thi s hole in Rhynehart's report, Plaintiff
argues in s tead that Allstate "ignor es a critical fact: Allstat e its e lf ha s already det e rmined-
a nd repeatedly confirmed through its own adjusters, experts, and r e pres e ntatives-that May
1, 2022 is the operative date of loss ." Id. "Thus," Plaintiff contends , "th e real dispute is not
when th e damage occurre d" but wheth er the damag e is th e cause of th e leak in Plaintiffs
roof. Id. at 4.
But Pl a intiffs only support for that id ea is a docume nt that li sts Plaintiffs claim
de tails , including the "Date of Loss ," which it shows as May 1, 2022-the date of the storm.
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Allstate contends, and Plaintiff does not dispute , that Plaintiff reported this date to Allstate
and it is " not confirmation by Allstate that the reported date of loss is accurate. " ECF No. 36
at 2. Thus, the document is not proof that Allstate concedes the May 1 storm caused the
damage , as Plaintiff alleges.
Th e Co urt finds that Rhynehart's exp er t opinions as to causation are not relevant
because they fail to speak to whether the May 1 storm ca u sed the damage that resulted in a
l ea k in Plaintiffs roof. It is Plaintiffs burd en to establish this. See S eger u. Yorkshire Ins . Co.,
503 S.W.3d 388, 400 (Tex. 2016) ("To prove coverage, th e plaintiff mu st es tablish that ... the
injury or damag e wa s incurr ed at a time covered by the policy." (citing Emps. Cas. Co. u.
Block , 744 S.W.2d 940, 944 (Tex. 1988))). Stated diffe rently , because th e Cosmetic Damag e
Endorsement in Plaintiffs policy excludes coverage for mer ely superficial damages , the jury
in this case would be asked to decide the cause of any non-cosmetic damag e to Plaintiffs roof.
Becau se Rhyn e hart's report do es not ti e any non-cosm et ic damage h e observed to th e May 1
sto rm , and in fact fails to dat e any dama ges at all, it would not aid the jury in that task.
Accordingly, his opinions about wheth er the May 1 storm damaged Plaintiffs roof must be
ex cluded . 2
However , Plaintiff s Expert Witn ess D es ignation states that Rhyn e hart would also
testify about the overall "co ndition of the prope rt y, th e pr esence of wind and hail dama ge,
the ex tent of the dam age, and to provide an unbia sed es timate " as to th e cost of repair . ECF
No. 28 at 198. Allstate does not contest Rhyn e hart's competence to testify to these other
2 Allst ate also chall e ng ed Rh yn eh a rt' s compet ence to testify abo ut Allstate 's claims h a ndling practices
a nd policy int er pr e tation s. S ee ECF No. 30 a t 11 - 12. Plaintiff s R es pon se not es that thi s "langua ge in
Plaintiffs d esig nati on" was "included in error, a nd Pl ai ntiff h er eby revises hi s d esig nati on to excl ud e
Mr. Rhyn e hart' s opinions on these m a tter s." ECF No. 32 at 4. "Because th e Parti es ag r ee, th e i ss ue is
moot ." Id .
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matter s.3 Th e Court a cco rdingly GR AN TS in p art All sta te's Motion to Exclude as to Chris
Rhynehart. Rhynehart may testify as to th ese other general issu es but may not offer an
expe rt opinion "that th e Ma y 1, 2022 storm caused damage to Plaintiff s roof' or other part s
of Plaintiffs prope rt y. Id.
B. Brandon Allen
Alls tat e also seek s to exclude th e expe rt te s timony of Brand on Allen, whom Alls tat e
de sc rib es as "m ere ly an untim e ly d es ign a ted expe rt witness" rather than a "re buttal expert."
ECF No. 30 at 12.
Rul e 26(a)(2)(D)(ii) allows parti es to desig nat e rebuttal exper t witnesses "within 30
days after the other party's disclos ur e" of evidence the p arty wishes to rebut. FED. R. CIV. P .
26(a)(2)(D)(ii) . Re buttal evidence mu st be "intend ed solely to contradict or rebut evidence on
the same subject matt er id e ntifi ed by" th e other p ar ty . Id. Thu s, und er Rule 26, courts ask
the following qu est ions to de termin e if an exp ert witness is a re butt al witness:
First, what ev id ence do es th e rebuttal expe rt purport to co ntradict or rebut?
Second, is the ev id en ce disclose d as r e butt al ev id ence on the sa me subject
matt er as th at id e ntifi ed by another p arty in its Rul e 26(a)(2)(B) disclos ur e?
Third, 	is 	th e evidence 	disclosed as 	rebuttal ev id ence in te nd ed solely 	to
co ntradict or re but th at ev id ence?
UWor ld LLC v. USMLE Galaxy LLC , No. 3:23-CV-447, 2025 WL 1246434, a t *4 (N.D. Tex.
Apr. 28, 2025) (quoting Poly-Am ., In c. v. Serrot Int'l, In c., No. 3: 00- CV-1457, 2002 WL
1996561, at *15 (N.D. Tex. Aug. 26, 2002)). "Re buttal is a term of art, de noting ev id ence
introduced by a plaintiff to m eet new facts brou ght out in hi s opponent's case in chi e f. " Club
v. Energy Futitre Holdings Corp ., No. W-12-CV-108, 2014 WL 12690016, at *4 (W.D. Tex.
3 Allstate's Reply cites Ulico Casualty Company u. Allied Pilots Assocation, 262 S.W.3d 773, 778 (Tex .
2008), for the pr oposition that "Rhyn ehart's opinions are o nl y relevant if he can tie the d amages h e
ob serve d to the Storm." ECF No. 36 a t 2. Thi s objection is well-taken, but it speaks only to Rh yn eha rt' s
expert testimony that the May 1 storm cau sed the damage, n ot to the ot h er types of exper t testimony
he would offer. Rh yneh art's other proposed testimony-about the property's genera l co nditi on and th e
es tim ated cost of repair-is relevant even if he does n ot "tie th[ose] da m ages " to the May 1 sto rm.
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Feb. 20, 2014) (quoting Rodriguez u. Olin Corp ., 780 F .2d 491, 494 (5th Cir. 1986)). This
mean s "a party's re buttal disclosures cannot be use d as 'an extension of the deadline by which
a party must de liver the lion's share of its expert information." ' Id. (quoting Sierra Club, Lon e
Star Chapter u. Cedar Point Oil Co . In c., 73 F .3 d 546, 571 (5th Cir. 1996)). "Th e trial judg e
has broad discretion" to decide wheth er to admit e xpert rebuttal evidence, "even if th e
evidence could h ave been received as pa rt of th e case in chief." Id . (citing United States u.
Sadler, 488 F.2d 434, 435 (5th Cir. 197 4)).
Plaintiff has d es ignated Allen as a "testifying expe rt to contradict or rebut the
ev id enc e, opinions, analysis, and expert des ignation s" of Alls tat e's two re tained e xpert
witnesses , Suz a nne Arambel and Ru sse ll Le tch er. ECF No. 28 at 232. Specifically, Allen
would t es tify "on the topics of th e purpo se of granular coating and valuation of the claim ed
damag e, including but not limit ed to th e i ss ue of wh e th er [the] hail da mag e was functional
or cosmetic damag e ." Id. But while Allen would testify to th e same overall subject matter as
Allstat e's experts, "t he r e buttal des ignation is co ns id ered pur sua nt to ' th e findings' of th e
testifying expert, not s imply ' th e sa me general subject matt er of th e case."' Energy Futur e
Holdings , 2014 WL 12690016, at *4. That is, a rebuttal expe rt's r e port must relat e to th e
specific findings advanced by th e opposing exp er t, not simply offer a differe nt view of th e
case. Allen's expe rt r e port-much lik e Rhyn eh a rt' s report-s imply offe rs a view of th e
evidence that favors Plaintiff. Allen 's r e port does not even me ntion Allstate's expe rts , much
l ess attempt to contradict specific findin gs they mak e in th e ir r e port s.
Even if Allen's report did clear the thr es hold set by the second UWorld qu es tion , it
falters at the third. "[T]he mere fact that an opinion contradicts an opposing ex pert' s opinion
do es not automatically es tabli sh a proper rebuttal report." En ergy Future Holdings , 2014 WL
12690016, at *4. Rath er, it must "so lely . .. contradict or r e but" the opposing ex pert 's
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findings. FED. R. CIV . P . 26(a)(2)(D)(ii) (emphasis added). As already noted , Allen's report
does not attempt to specifically rebut the findings of Allstate's experts. But even if it did , hi s
report goes far beyond that and offers its own "separate and distinct analysis." Energy Future
Holdings, 2014 WL 12690016, at *4 (quoting Home Design Servs., Inc. v. Hibiscus Homes of
Fla., In c., No. 6:03-CV1860, 2005 WL 2465020 , at *5 (M.D. Fla. Oct. 6, 2005)). Rule 26 forbids
this. The Court therefore GRANTS Allstate's Motion to Exclude as to Brandon Allen.
MOTION FOR SUMMARY JUDGMENT
I. Legal Standard
A court "s hall grant s ummar y judgm ent if the movant shows that there is no genuine
dispute as to any mat eria l fact and the movant is e ntitled to judgm ent as a matt er of law ."
FED. R. CIV. P. 56(a). A fact is "material" if its existence or non-exi stence " might affect the
outcome of the suit under the governing law ," and the dispute about a material fact is
"gen uin e" if "t he evi dence is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Brown
v. City of Hou., 	Tex., 	337 F.3d 539, 541 (5th Cir. 	2003) ("Unsubstantiated assertions ,
improbable inferences, and un s upport ed spec ulation are not sufficient to defeat a motion for
s ummary judgment. " (citing Bridgmon v. Array Sys. Corp ., 325 F.3d 572, 577 (5th Cir.
2003))).
" [A] party seeki ng s ummar y judgment always bears the initial responsibility of
informing the district court of the basis for its motion " and identifying the portions of the
record "w hich it be li eves de mon strate the absence of a ge nuine i ss ue of material fact." Celotex
Corp. v. Catrett, 477 U.S. 3 17, 323 (1986). If the moving party makes this s howing , "t he
nonmoving party must come forward with 'specific facts showing that there is a genuine issue
for trial."' Matsushita Elec. Indus. Co. 	v. Z enith Radio Corp., 475 U.S. 574, 587 (1986)
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(quoting FED. R. Crv. P. 56(e)) . While the moving party is not required to negate each element
of the nonmoving party's case, it can meet its burden by demonstrating the "absence of facts
supporting the elements" of the nonmoving party's causes of action. Little u. Liquid Air Corp. ,
37 F.3d 1069, 1076 n .16 (5th Cir. 1994) (citing Fontenot u. Upjohn Co., 780 F.2d 1190, 1195
(5th Cir. 1986)).
II . Ana l ysis
Allstate seeks summary judgment on all three of Plaintiffs claims , argumg that
Plaintiff "cannot refute" its evidence that the damage to the roof is not covered. ECF No. 27
at 12. Accordingly, to defeat Allstate's Motion, Plaintiff must "come forward with 'specific
facts showing that there is a genuine issue for trial."' Matsushita, 475 U.S. at 587 (quoting
FED. R. CIV. P. 56(e)).
A. Breach of Contract
"The interpretation of an insurance policy is a question of law for the court to decide
based on the language in the policy itself, not a question of fact to be determined by the jury."
Davis u. Nat'l Lloyds Ins. Co., 484 S.W.3d 459, 470 (Tex. App.-Houston [1st Dist.] Oct. 13,
2015, pet. denied). Under Texas law, "insurance policies are contracts subject to the rules of
contract construction." Guzman, 456 F . Supp. 3d at 856 (quoting Certain Underwriters at
Lloyd's of London u. Lowen Valley View, LLC, 892 F.3d 167, 170 (5th Cir. 2018)). Accordingly,
to prove his breach of contract claim, Plaintiff must "show that he filed an insurance claim
for losses that are covered by his policy, that [Allstate] denied his legitimate claim , and that
the denial caused" him harm. Id. Allstate contends that because Plaintiff "cannot present
any competent summary judgment evidence to refute Allstate's evidence that the damages
to the roof are not covered pursuant to the Cosmetic Damage Endorsement," the Court should
grant summary judgment. ECF No. 27 at 17-18.
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As the Court has already noted, the Cosmetic Damage Endorsement in Plaintiffs
Policy provides that "cosmetic damage to Plaintiffs roof caused by hail is not covered unless
it results 	in water leaking through the 	surface." Amphay, 	2023 	WL 	2491285, 	at *2
(interpreting identical policy language). It is Allstate's burden to show that the Endorsement
applies. See Century Sur . Co. u. Hardscape Const. Specialties Inc ., 578 F.3d 262, 265 (5th Cir.
2009) (noting that Texas law places "the burden of establishing an exclusion upon the
insurer"). Here, Allstate's adjuster and both of its experts found that the damage to Plaintiffs
roof is purely cosmetic and will not cause water to leak through the roof surface. See ECF No.
27 at 13 (Arambel found the roof damage to be "cosmetic in nature " and that it does not "affect
the performance or longevity of the roof covering"); id. ("Letcher likewise agrees that the
cosmetical hail indentions to the roof panels do not impact the function of the roof and are
not damages that result in water leaking through the roof surface."). As for the cause of the
leaking in Plaintiffs garage, Arambel cited "deteriorated flashing" as the reason for the leak,
while Letcher attributed it to "improperly installed flashing." 4 ECF No. 34 at 5. Both agree
that the culprit was deficient flashing, not the May 1 hail storm. Thus, Allstate has met its
burden of showing that the Endorsement applies to exclude coverage for Plaintiffs roof. The
burden then shifts back to Plaintiff to "establish □ an exception to an exclusion." Century Sur.
Co., 578 F.3d at 265.
Plaintiff claims Allstate "has failed to offer a reliable account for the cause of the roof
leak other than hail damage." ECF No. 34 at 10. In other words , because Allstate has asserted
at least two "different explanations for the cause of the interior water damage, " it cannot
4 "Roof flashing is a thin material, usually galvanized steel, that professional roofers use to direct
water away from critical areas of the roof .... Damaged or improperly installed roof flashing,
especially around the chimney, roof cricket or dormer , is one of th e most common causes of roof leaks. "
What 	Is 	Roof 	Flashing ?, 	IKO 	NORTH 	AMERICA 	(last 	vis ited 	Feb. 	9, 	2026),
https://www .iko.com/blog/w hat-is-roof-flashing-how-to-install-it/ [https://perma.cc/9A57 -6KDW].
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"meet its burden of proving" that the Endors eme nt applies. Id . at 10. This misunderstand s
Alls tate 's burden. It is not incumb e nt upon Allstat e to prove that a single cause oth er than
th e May 1 storm is the reason for the l ea k in Plaintiffs garage. Rather , to trigger application
of the Endor se me nt , Alls tat e must show only that th e May 1 storm was not th e cause of th e
l ea k , even if Plaintiffs roof bears signs of hail-related cosmetic damage . Allstat e has done s o.
Bes id es, Plaintiff is wrong to suggest that Allstat e's experts are inconsistent. While they
phras e th e ir re ports slightly diffe rently-Aramb el cit es " deteriorated fl as hing" while Le tcher
r ef ers to "improp e rly in s tall ed flashing "-both agree that deficie nt flas hing caused th e l ea k.
And both agree the May 1 storm did not .
Attempting to manufactur e a factual disput e, Plaintiff writes that he "observed the
int e rior wat er damag e within weeks of the stor m and point ed the damag e out to Alls tat e's
in s pector because h e attributed the interior l ea k to the [two-inch] hailstones that impacted
hi s roof." ECF No. 34 at 11. But Plaintiff "ca nnot raise a fact i ss ue by citing this one statement
from a witn ess not qualified as an exp ert to opine on causation "-her e, Plaintiffs own
depo sit ion t es timon y. 5 Amphay, 2023 WL 2491285, at *2. Nor can Plaintiff rely on the
t est imony of his own experts . The Court h as ex clud ed Brandon Allen's t es timony , and Chris
Rhyn e hart offers no opinion that any da mag e to the roof ha s r es ult ed in water l ea king
through Plaintiff s roof. H e admitted at hi s depo sit ion that h e observed no l ea king throu gh
Plaintiff s roof and could not pr e dict wh en , if e ver , there might be "wat er intrusion " through
the roof. ECF No. 28 at 421-22. Even if Rh yne hart did offer s uch an opinion, th e Court found
th at h e failed to show any connection b et ween roof damag e and the May 1 hail storm a nd
5 As Allstate points o ut , even if Plaintiff were comp ete nt to opin e on cau satio n , th e porti on of hi s
tes timon y he cites is a bout wa t er damag e in a be dro om from a brok en window, not th e alleged roof
l eak in hi s garage. See ECF No. 28 a t 448.
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accordingly excluded him from offering expe rt testimony on causation. Thus, Allstate 1s
e ntitled to summary judgment on Plaintiffs breach of contract claim.
B. Bad Faith and Prompt Paym e nt of Claims Statute
Alls tate also seeks summary judgment as to Plaintiff's two tag-along claims : that
Allstate acted in bad faith and breach ed its duti es und er Te xa s's Prompt Payment of Claims
Act ("TPPCA"). S ee ECF No. 27 at 18-20 ; ECF No. 1-5.
"As a general rul e th e re can be no claim for bad faith when an in s ur er has promptly
de nied a claim that is in fact not covered ." Chrysler Ins. Co. u. Gr ee nspoint Dodge of Hou.,
In c., 297 S.W.3d 248, 253-54 (Tex. 2009); see also Bibl e Ba ptist Church u. Church Mut . Ins.
Co., No. 2:21-CV-093, 2023 WL 193 1912, a t *9 (N.D. Tex. Jan. 	18, 2023), report and
r eco mm e ndation adopted, No. 2:21-CV-093, 2023 WL 1931350 (N.D. Tex. Feb . 10, 202 3)
("[W]here no br each of contract claim is sustained, no bad faith claim can s urviv e."). In rare
cases wh e re th e in s ur er ha s "co mmit[t e d] some act, so ex tr eme, that would cause injury
ind epe nd e nt of th e policy claim ," th e in s ur er ma y also be liabl e for extra -co ntra ctual dam ages
und er Tex as's "i nd epe nd e nt-injury rul e." USAA Texas Llo yds Co. u. Menchaca, 545 S.W. 3d
479, 499 (Tex. 2018). Here, th e Court rejected Plaintiffs br eac h of contract claim , and
Plaintiff h as pr ese nt ed no ev id ence of dam ages ind epe nd e nt of hi s Policy. It follow s that
Plaintiff's bad faith claim mu st be rejected as well.
Plaintiff also 	bring s 	a 	claim 	und er 	the 	TPPCA, 	which 	imposes " non-paym e nt
requirements and d ea dlin es, d ea dlin es for paying claims , and enforceme nt" obligations on
in s urers. Barbara Techs. Corp. u. State Farm Lloyds, 589 S.W.3d 806, 813 (Tex. 2019). As
Plaintiff concedes, however, liability und er the TPPCA is "co ntin ge nt on finding th e in s ur er
lia bl e for deny in g a n insur ed's claim ." ECF No. 34 at 15; see also Agredano u. State Farm
Lloyds, 975 F.3d 504, 507 (5th Cir. 2020) (" Th e stat ut e re quir es [both] liability und er th e
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policy and a failure to comply with the timing requirements of the TPPCA." (emphasis
added)); Barbara Techs. Corp., 589 S.W.3d at 813 ("To prevail under a claim for TPPCA
damages ... the insured must establish: (1) the insurer's liability under the insurance policy,
and (2) that the insurer has failed to comply with one or more sections of the TPPCA in
processing or paying the claim."). Allstate is not liable for denying Plaintiffs claim. It follows
that there can be no liability under the TPPCA.
CONCLUSION
For the foregoing reasons, the Court GRANTS in part Allstate's Motion to Exclude
and GRANTS its Motion for Summary Judgment in its entirety. This case is DISMISSED
with prejudice.
SO ORDERED.
February Z~ 2026
16
SMARYK
U 	!STRICT JUDGE
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