Freund v. Allstate Vehicle & Property Insurance Company

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
LARRY FREUND,
Plaintiff.
V.
ALLSTATE VEHICLE AND
PROPERTY INSURANCE
COMPANY,
Defendant.
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CIVIL ACTION NO. 3:23-cv-00292
MEMORANDUM AND RECOMMENDATION
Pending before me is Defendant’s motion for summary judgment. See
Dkt. 14. Plaintiff has not responded to the motion. Having reviewed the motion,
the record, and the applicable law, I recommend that the motion be granted.
BACKGROUND
Defendant 	issued 	a 	Texas 	insurance 	policy 	number 	886943685 	(the
“Policy”) to Plaintiff for his property located at 3535 CR 107F, Pearland, Texas (the
“Property”). On December 23, 2022, the Property suffered extensive water
damage. Plaintiff submitted a claim to Defendant against the Policy for damages
to the Property sustained because of the water.
In his live pleading, Plaintiff claims $197,478.50 in actual damages to the
Property; $25,255.23 for damages to his personal property; and $6,613.70 in
additional living expenses. See Dkt. 1-3 at 4. On February 5, 2023, Defendant
estimated 	damage 	at 	$23,079.34 	and 	issued 	payment 	of 	$19,786.34 	after
deducting depreciation and the deductible. Plaintiff claims that Defendant severely
undervalued the Property, wrongly denied his claims for repairs, delayed payment
for damages, and misrepresented the Policy’s coverage.
On August 3, 2023, Plaintiff sued Defendant in the 239th District Court of
Brazoria County, Texas. Plaintiff asserts claims for breach of contract, unfair
United States District Court
Southern District of Texas
ENTERED
May 29, 2026
Nathan Ochsner, Clerk
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settlement practices, prompt payment claims, breach of the duty of good faith and
fair dealing, violation of the Texas Deceptive Trade Practices Act (“DTPA”), and
common law fraud. See id. at 8–13. On September 8, 2023, Defendant removed
the case to this court based on diversity jurisdiction. See Dkt. 1.
On March 20, 2024, Judge Jeffrey V. Brown granted the parties’ joint
motion to abate pending completion of appraisal. 	See 	Dkt. 7. The parties’
respective appraisers could not agree on the award, so an umpire was appointed.
On January 7, 2025, Plaintiff’s appraiser signed the appraisal award. See Dkt. 14-1
at 1. The umpire signed the appraisal award on January 8, 2025. See id. The total
amount awarded for replacement cost was $175,063.36. See id. After deducting
prior payments and the deductible, the amount of the award to be paid was
$116,629.91. See Dkt. 14-2 at 2. On February 20, 2025, Defendant issued a check
to Plaintiff for $116,629.91. See Dkt. 14-3 at 1. The total interest on this amount
was $29,437.07. See Dkt. 14-2 at 2. On February 20, 2025, Defendant issued a
check to Plaintiff for $29,437.07. See Dkt. 14-3 at 3.
On September 29, 2025, Judge Brown granted the parties’ joint motion to
un-abate the case and for entry of a docket control order. See Dkt. 10. On January
15, 2026, Defendant filed its motion for summary judgment. See Dkt. 14. On
January 21, 2026, Judge Brown granted Plaintiff’s counsel’s motion to withdraw.
See Dkt. 16. Nothing occurred in the case for several months.
On April 17, 2026, the case was referred to me for all pretrial purposes. See
Dkt. 17. On April 20, 2026, I issued an order giving Plaintiff until May 26, 2026, to
either respond to Defendant’s motion for summary judgment or have new counsel
make an appearance. See Dkt. 20. Plaintiff took no action by that deadline. I now
turn to the pending motion for summary judgment.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “No genuine issue of material fact exists if the summary-judgment
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evidence is such that no reasonable juror could find in favor of the nonmovant.”
Jenkins v. Methodist Hosp. of Dall., Inc., 478 F.3d 255, 260 (5th Cir. 2007).
“The moving party bears the initial burden of showing that there is no
genuine issue for trial.” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th
Cir. 1995). Where the movant does not bear the burden of proof, its burden is
satisfied by showing that the other party has a “failure of proof on an essential
element of its claim.” Joseph ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 329
(5th Cir. 2020). The movant makes this showing by introducing evidence or by
“pointing out . . . an absence of evidence to support the nonmoving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “If the [movant] succeeds on
that showing, the burden shifts to the [nonmovant] to demonstrate that there is a
genuine issue of material fact and that the evidence favoring the [nonmovant]
permits a jury verdict in the [nonmovant]’s favor.” Joseph, 981 F.3d at 329.
I may not grant summary judgment based solely on a party’s failure to file a
response to the motion for summary judgment. See John v. Louisiana, 757 F.2d
698, 707–09 (5th Cir. 1986). When, however, “a party . . . fails to properly address
another party’s assertion of fact,” I may “grant summary judgment if the motion
and supporting materials—including the facts considered undisputed—show that
the movant is entitled to it.” Fed. R. Civ. P. 56(e)(3).
ANALYSIS
Because Plaintiff failed to respond to Defendant’s motion for summary
judgment, I consider every fact asserted by Defendant undisputed. See Fed. R. Civ.
P. 56(e)(2). Thus, the only question I must ask is whether these undisputed facts
show that Defendant is entitled to summary judgment on each of Plaintiff’s claims.
A. 	BREACH OF CONTRACT AND PROMPT PAYMENT CLAIMS
Plaintiff claims that “Defendant’s failure and/or refusal . . . to pay the
adequate compensation as it is obligated to do under the terms of the Policy in
question . . . constitutes a breach of Defendant’s insurance contract with Plaintiff.”
Dkt. 1-3 at 8–9. The undisputed record shows that the parties went through the
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contractual appraisal process and that Defendant paid the appraisal award. Texas
Supreme Court precedent is clear: “Having invoked the agreed procedure for
determining the amount of loss, and having paid that binding amount, [Defendant]
complied with its obligations under the policy.” Ortiz v. State Farm Lloyds, 589
S.W.3d 127, 133 (Tex. 2019). Accordingly, there can be no breach of contract, and
Defendant is entitled to summary judgment on this claim.
Relatedly, when “the insurer has already paid all amounts owed under the
insurance policy plus any possible statutory interest, there is not and never will be
[damages under the Prompt Payment of Claims Act].” Rodriguez v. Safeco Ins. Co.
of Ind., 684 S.W.3d 789, 793 (Tex. 2024). Because the undisputed record shows
that Defendant has paid the appraisal award and all possible interest, Defendant
is also entitled to summary judgment on Plaintiff’s prompt payment claim.
B. 	BAD F AITH CLAIMS
Plaintiff’s claims for unfair settlement practices and breach of the duty of
good faith and fair dealing are “bad faith” claims. See Ortiz, 589 S.W.3d at 133
(categorizing claims that an insurer “engaged in various statutorily prohibited acts,
including wrongfully denying [an insured’s] claim, failing to settle the claim in
good faith, and failing to conduct a reasonable investigation” as “bad faith” claims).
To the extent Plaintiff seeks “the policy benefits wrongfully withheld, . . . those
benefits have already been paid pursuant to the policy.” Id. at 134–35. To the extent
Plaintiff 	seeks 	other 	damages—e.g., 	additional 	property 	damage 	caused 	by
Defendant’s “allegedly unreasonable investigation”—Plaintiff has not introduced
any evidence to support such damages. Id. at 135. Accordingly, Defendant is
entitled to summary judgment on Plaintiff’s bad faith claims.
C. 	VIOLATION OF THE DTPA AND COMMON L AW F RAUD
Plaintiff 	claims 	Defendant 	violated 	the 	DTPA 	“by 	engaging 	in 	false,
misleading or deceptive acts and practices.” Dkt. 1-3 at 11. Plaintiff also claims that
“Defendant is liable to Plaintiff for common law fraud” because of Defendant’s
allegedly deceptive practices. Id. at 12. There is no evidence in the record, however,
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of any fraud or deception. Because Plaintiff bears the burden of proof on these
claims and has identified no evidence to support them, Defendant is entitled to
summary judgment on Plaintiff’s DTPA and common law fraud claims.
CONCLUSION
For the reasons discussed above, I recommend that Defendant’s motion for
summary judgment (Dkt. 14) be granted.
The 	parties 	have 	14 	days 	from 	service 	of 	this 	Memorandum 	and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this 	day of May 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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