4:23-cv-00859•Baldwin v. Homesite Insurance Company
Texte intégral
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Eboni Baldwin, § § Plaintiff, § § v. § Civil Action No. 4:23-cv-859 § Homesite Insurance Company, § § Defendant. § JUDGE PALERMO’S REPORT AND RECOMMENDATION AND ORDER This is a property-insurance dispute.1 Defendant Homesite Insurance Company (“Homesite”) moves for summary judgment. ECF No. 94. Plaintiff Eboni Baldwin failed to respond, which the Court “take[s] as a representation of no opposition.” L.R. 7.4. Having considered Homesite’s briefing, the summary judgment record, and the applicable law, the Court recommends granting the motion. In addition, the Court finds Baldwin’s motion for a discovery extension, ECF No. 92, is without merit and is denied. I. BACKGROUND The facts are straightforward. Baldwin purchased a home-insurance policy from Homesite for June 2020 through June 2021 (“Policy”). ECF No. 94 at 3. In February 2021, Winter Storm Uri struck Texas, bringing record low temperatures, 1 The district judge referred all pretrial proceedings under 28 U.S.C. § 636. ECF No. 93. United States District Court Southern District of Texas ENTERED July 07, 2026 Nathan Ochsner, Clerk Case 4:23-cv-00859 Document 95 Filed 07/07/26 in TXSD Page 1 of 13
triggering major power outages, and causing water pipes to burst in homes across the state. On February 23, 2021, Baldwin’s home sustained water damage from the freeze. ECF No. 55 ¶ 9; ECF No. 94 at 3; 94-2 at 5. The next day, Baldwin notified Homesite, and Homesite sent an adjuster out about two weeks later. ECF No. 94 at 3. The adjuster evaluated the damage and paid Baldwin $282,974.23. Id.; 94-4 at 1–2. Dissatisfied, Baldwin sued Homesite in Texas state court. ECF No. 94 at 4; ECF No. 94-2. Homesite promptly removed to federal court, ECF No. 1, and invoked the Policy’s appraisal provision, ECF No. 94-5. When Baldwin refused to designate an appraiser, the Court compelled her. Order, ECF No. 14. Once designated, the appraisers could not agree on damages, so the Court appointed an umpire. Order, ECF No. 26. On October 30, 2024, the umpire issued an appraisal award for $436,457.7 in replacement cash value (“RCV”) and $422,260.75 in actual cash value (“ACV”). ECF No. 94-8 at 1. Both parties’ appraisers signed and agreed to the appraisal award, ECF Nos. 94-7, 94-8 at 1, and Homesite paid Baldwin (1) $139,286.52 for the ACV portion ($422,260.75) minus its prior payment ($282,974.23) and (2) $70,732.75 for statutory prompt-payment “penalties on the unpaid portion of the appraisal award.” ECF No. 94 at 5; ECF No. 94-9 at 1–5. Because there was a dispute between Baldwin and her former attorney regarding fee interest in the settlement funds, Homesite Case 4:23-cv-00859 Document 95 Filed 07/07/26 in TXSD Page 2 of 13
deposited the appraisal award into the Court Registry. ECF No. 94-4. When that dispute was resolved, Baldwin moved to withdraw the appraisal-award funds “to initiate mold remediation that [was] rapidly deteriorating her home” and “to preserve the home and initiate umpire appraised and awarded repairs.” ECF No. 62 ¶ 3. The Court granted her withdrawal motion. Order, ECF No. 67. Nearly a year later, Baldwin amended her complaint, claiming that Homesite intentionally issued the appraisal-award checks late and that the delay exacerbated mold contamination in her home. ECF No. 94 at 6; ECF No. 55 ¶¶ 13–24. The amended complaint asserts claims for (1) breach of contract; (2) bad faith under Texas Insurance Code § 541.060; (3) prompt-payment violation under the Texas Prompt Payment of Claims Act; (4) false, misleading, and deceptive acts under the Texas Deceptive Trade Practices Act (“DTPA”); (5) negligence from mold exposure; (6) declaratory judgment; and (7) injunctive relief. ECF No. 55 ¶¶ 38–98. Homesite now moves for summary judgment. ECF No. 94. II. SUMMARY JUDGMENT STANDARD “Summary judgment is proper ‘if 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.’” Cory v. Stewart, 103 F.4th 1067, 1072–73 (5th Cir. 2024) (quoting FED. R. CIV. P. 56(a)). “A fact is material if it could affect the suit’s outcome under governing law.” Reynolds v. Kuraray Am., Inc., No. 4:22-CV-00182, 2026 WL Case 4:23-cv-00859 Document 95 Filed 07/07/26 in TXSD Page 3 of 13
861071, at *2 (S.D. Tex. Mar. 30, 2026). “And ‘[a] dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party.’” Id. (internal quotation marks omitted) (alteration in original) (quoting TIG Ins. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002)). Conversely, “[t]here is no genuine issue for trial when ‘the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.’” 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 (1986)). “The moving party ‘always bears the initial responsibility of informing the district court of the basis for its motion’ and identifying the record evidence that ‘it believes demonstrate[s] the absence of a genuine issue of material fact.’” Reynolds, 2026 WL 861071, at *2 (alteration in original) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant’s response.” Id. (alterations in original) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). “‘[O]nce a movant who does not have the burden of proof at trial makes a properly supported motion for summary judgment, the burden shifts to the nonmovant to show that the motion should not be granted’ by ‘identify[ing] specific Case 4:23-cv-00859 Document 95 Filed 07/07/26 in TXSD Page 4 of 13
evidence in the record and articulat[ing] the precise manner in which that evidence supports her claim.’” Associated Prof’l Educators of La. v. Edu20/20, L.L.C., No. 24-30640, 2026 WL 448019, at *8 (5th Cir. Feb. 18, 2026) (second and third alterations in original) (quoting Edwards v. Cont’l Cas. Co., 841 F.3d 360, 363 (5th Cir. 2016)). The district court does not “have a duty to sift through the record in search of evidence to support the nonmovant’s opposition to summary judgment.” Id. (internal quotation marks omitted) (quoting Edwards, 841 F.3d at 363). Courts must “resolve factual controversies in favor of the nonmoving party” but need “not consider ‘conclusional allegations and unsubstantiated assertions.’” Cory, 103 F.4th at 1073 n.8 (first quoting Little, 37 F.3d at 1075; and then quoting Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011)). III. HOMESITE IS ENTITLED TO SUMMARY JUDGMENT. This analysis requires no exegesis. “Under Texas law, when an insurer makes timely payment of a binding and enforceable appraisal award, and the insured accepts the payment, the insured is estopped by the appraisal award from maintaining a breach of contract claim against the insurer.” Randel v. Travelers Lloyds of Tex. Ins. Co., 9 F.4th 264, 267–68 (5th Cir. 2021) (cleaned up) (quoting Blum’s Furniture Co. v. Certain Underwriters at Lloyds London, 459 F. App’x 366, 368 (5th Cir. 2012)). Here, Homesite paid Baldwin the appraisal award the umpire issued and the appraisers signed—plus interest. ECF No. 94 at 5; ECF No. 94-9 at Case 4:23-cv-00859 Document 95 Filed 07/07/26 in TXSD Page 5 of 13
1-5. Plaintiff accepted the award when she withdrew it from the Court Registry after settling with her former attorney. ECF Nos. 62, 67. Thus, Baldwin is estopped from further pursuing her breach-of-contract claim against Homesite. As “there is nothing left to litigate on this claim,” Homesite is entitled to summary judgment. Randel, 9 F.4th at 268. Baldwin’s other claims also fail. First, the Fifth Circuit has consistently held that “[a]n insured cannot maintain tort claims against h[er] insurer if [s]he has received h[er] full appraisal award absent evidence of an independent injury.” Wilhite v. Ark Royal Ins. Co., No. 24-20401, 2025 WL 2588992, at *5 (5th Cir. Sept. 8, 2025). This includes “bad faith claim[s] under either the common law or [Texas Insurance Code] chapter 541.” Frederich v. Trisura Specialty Ins. Co., No. 24- 40748, 2025 WL 2840272, at *2 (5th Cir. Oct. 7, 2025) (quoting Mirelez v. State Farm Lloyds, 127 F.4th 949, 953 (5th Cir. 2025)). As explained above, Baldwin has received her full appraisal award, and she offers no evidence of an independent injury. Her claim for bad faith therefore fails. Associated Prof’l Educators of La., 2026 WL 448019, at *8 (once the movant shows that there is no evidence to support the claim, to defeat summary judgment the burden shifts to the nonmovant to identify specific evidence in the record and articulate the precise manner in which that evidence supports her claim). Next, Baldwin’s claim under the Texas Prompt Payment of Claims Act is Case 4:23-cv-00859 Document 95 Filed 07/07/26 in TXSD Page 6 of 13
moot because Homesite paid her $70,732.75 for prompt-payment penalties, calculated by applying the simple interest rate set by statute for 2025 of 13.5%2 to the $139,286.52 net appraisal-award payment “from 60 days after the initial inspection of [Baldwin’s] property ( . . . on March 15, 2021) through February 15, 2025.” ECF No. 94 at 13; ECF No. 94-10 at 2; ECF No. 94-11. Baldwin then accepted this payment. Order, ECF No. 67 (on Plaintiff’s motion, ECF No. 62, the Court ordered disbursement to former counsel with the balance to Plaintiff). There is no evidence Homesite’s payment of penalty interest was insufficient. Thus, the prompt-payment claim is moot, and Homesite is entitled to summary judgment. Rios v. Homesite Ins. Co., No. 5:23-CV-00006, 2024 WL 4984446 (S.D. Tex. Sept. 26, 2024) (“[B]ecause Defendant Homesite already paid the statutory interest and prompt payment penalties when it tendered payment of the Award to Plaintiff, and because Plaintiff failed to show an injury independent from the alleged loss of benefits, Defendant Homesite is entitled to summary judgment on Plaintiff’s extra- 2 Texas Insurance Code § 542.060(c) provides that an insurer who violates the statutory prompt- payment requirements must pay, “in addition to the amount of the claim, simple interest on the amount of the claim as damages each year at the rate determined on the date of judgment by adding five percent to the interest rate determined under Section 304.003, Finance Code.” Under Texas Finance Code § 304.003(b), the Texas Consumer Credit Commissioner “determine[s] the postjudgment interest rate to be applied to a money judgment rendered during the succeeding calendar month” on “the 15th day of each month.” Here, the umpire issued the appraisal award in October 2024. ECF No. 94-8 at 1. The Consumer Credit Commissioner set the post-judgment interest rate for October 2024 at 8.5%. TEX. OFF . OF C ONSUMER C REDIT C OMM’R , H ISTORICAL TABLE OF P OSTJUDGMENT INTEREST R ATES (Apr. 15, 2026), https://occc.texas.gov/wp- content/uploads/2026/05/PostjudgmentInterestRate_History.pdf. Adding 5% to 8.5% yields a total prompt-payment penalty rate of 13.5%. See T EX. INS . C ODE § 542.060(c). Case 4:23-cv-00859 Document 95 Filed 07/07/26 in TXSD Page 7 of 13
contractual [prompt-payment] claims.”); McCall v. State Farm Lloyds, 688 F. Supp. 3d 372, 378–379 (N.D. Tex. 2023) (holding that “State Farm’s interest payment moots” plaintiff’s Texas Prompt Payment of Claims Act claim). Baldwin’s DTPA and negligence claims similarly fail. “To recover under the DTPA, a plaintiff must establish that: (1) she was a consumer of the defendant's goods or services; (2) the defendant committed false, misleading, or deceptive acts in connection with the lease or sale of goods or services; and (3) such acts were a producing cause of actual damages to the plaintiff.” McMillan v. State Farm Ins. Lloyds, 814 F. Supp. 3d 824, 838 (S.D. Tex. 2025). Here, there is no evidence that Homesite engaged in any false or misleading practices. To recover under a general negligence theory, a plaintiff must prove “three elements: (i) a legal duty, (ii) a breach of that duty, and (iii) damages proximately resulting from the breach.” Moten v. Union Pac. R.R. Co., No. 4:23-CV-01320, 2025 WL 1675815, at *2 (S.D. Tex. May 14, 2025), aff’d, No. 25-20242, 2026 WL 822019 (5th Cir. Mar. 25, 2026). Here, nothing in the record indicates that Homesite owed a legal duty to disburse the appraisal award sooner than it did; that even if it had such a duty, it breached it by disbursing it on October 30, 2024; or that its disbursement on that date caused Baldwin to suffer physical injuries from mold exposure. Associated Prof’l Educators of La., 2026 WL 448019, at *8 (the burden shifted to the nonmovant to identify specific evidence in the record and articulate the precise manner in which that Case 4:23-cv-00859 Document 95 Filed 07/07/26 in TXSD Page 8 of 13
evidence supports her claim). No evidence, no claims. Finally, “[i]n the absence of a viable substantive claim, neither declaratory nor injunctive relief is available.” Johnson v. Lakeview Loan Servicing, LLC, No. 4:25- CV-182, 2025 WL 2617715, at *5 (S.D. Tex. Aug. 19, 2025) (alteration in original) (quoting Hudson v. Tex. W. Mortg., LLC, No. CV H-15-1593, 2017 WL 9249491, at *6 (S.D. Tex. Feb. 9, 2017), adopted, No. 4:15-CV-1593, 2017 WL 928134 (S.D. Tex. Mar. 9, 2017)), adopted, No. CV H-25-0182, 2025 WL 2617250 (S.D. Tex. Sept. 10, 2025). Because Homesite is entitled to summary judgment on all Baldwin’s substantive claims, so too it is entitled to summary judgment on her claims for declaratory and injunctive relief. Id. IV. PLAINTIFF’S MOTION TO EXTEND DISCOVERY IS DENIED. Baldwin moves the Court under Rule 16(b)(4) to extend the discovery deadline, asserting that “despite diligent efforts,” she “has been unable to complete the discovery timely and retain expert witnesses necessary to address the issues in this case.” ECF No. 92 at 1. Between January and March 2026, Baldwin reached out to several experts and attorneys to secure evidence and representation. Id. at 2. Some declined because of her “pro se status and scheduling conflicts.” Id. Others because “they only accept assignments from licensed attorneys, were at capacity, or could not assist with the subject matter.” Id. In the end, none agreed to engage. She maintains that her diligence justifies an extension. Case 4:23-cv-00859 Document 95 Filed 07/07/26 in TXSD Page 9 of 13
The Court disagrees. Federal Rule of Civil Procedure 16(b) governs motions to amend scheduling order deadlines. Banks v. Spence, 114 F.4th 369, 371 (5th Cir. 2024), cert. denied sub nom. Holston Banks v. Spence, 145 S. Ct. 1082 (2025). A scheduling order “may be modified only for good cause and with the judge’s consent.” F ED. R. CIV. P. 16(b)(4). To determine whether good cause exists under Rule 16(b), courts consider four factors: “(1) the explanation for the failure to adhere to the deadline; (2) the importance of the proposed modification to the scheduling order; (3) potential prejudice in allowing the proposed modification; and (4) the availability of a continuance to cure such prejudice.” Jacobs v. Abbott Labs., Inc., No. 3:23-CV-00132, 2025 WL 3077562, at *2 (S.D. Tex. Oct. 8, 2025) (citing Newsome v. Int’l Paper Co., 123 F.4th 754, 766 (5th Cir. 2024)). “The good cause standard requires the party seeking relief to show that the deadlines [could not] reasonably [have been] met despite the diligence of the party needing the extension.” Banks, 114 F.4th at 371 (emphasis in original) (quoting S & W Enters., L.L.C. v. Sw. Bank of Ala., 315 F.3d 533, 535 (5th Cir. 2003)). Here, the modified scheduling order set the deadline for Baldwin to disclose her experts on January 31, 2026. Order, ECF No. 76. Baldwin did not file her motion for an extension until April 17, 2026. ECF No. 92. She fails to articulate any reason—much less a good one—why she dragged her feet in requesting an extension for nearly three months. Indeed, she does not even try to explain why she waited Case 4:23-cv-00859 Document 95 Filed 07/07/26 in TXSD Page 10 of 13
almost three years to begin searching for experts in the first place. ECF No. 1 (filed on March 8, 2023); ECF No. 92 at 2 (began soliciting experts between January and March 2026). The complete lack of explanation for her delay is dispositive. See, e.g., Banks, 114 F.4th at 371 (explaining that the Fifth Circuit has “found the lack of an explanation sufficient to deny amendment” on its own, “without engaging in the remainder of the four-factor analysis”); see, e.g., Olivarez v. T-mobile USA, Inc., 997 F.3d 595, 602 (5th Cir. 2021) (upholding district court’s denial of leave to amend based solely on the party’s failure to explain the delay); Marable v. Dep’t of Commerce, 857 F. App’x 836, 838 (5th Cir. 2021) (same); E.E.O.C. v. Serv. Temps Inc., 679 F.3d 323, 334 (5th Cir. 2012) (same). Moreover, permitting Baldwin more time to retain an expert would be futile. First, there is no telling whether she will be able to obtain an expert. She contacted more than a dozen already, and none seemed keen on the engagement. ECF No. 92 at 3–4. The Court sees no reason why future attempts will be different.3 Second, even if she manages to retain an expert, it is unlikely to rectify her deficient claims against Homesite. She contends that an expert is required to evaluate “claim-handling documentation,” “mold and remediation records,” 3 It should go without saying that Baldwin is not—nor is any litigant—entitled to an expert. She may be entitled to solicit experts, but there is no requirement that she obtain one. Here, the record reflects that Baldwin has not been denied her right to fish for an expert. She is not entitled to judicial relief, however, simply because none took the bait. Case 4:23-cv-00859 Document 95 Filed 07/07/26 in TXSD Page 11 of 13
“communications with mitigation vendors,” “other materials concerning causation, damage, and additional living expenses,” and “defendant depositions.” Id. at 5. But none of those things would establish the “independent injury” required to sustain her extra-contractual claims against Homesite. Wilhite, 2025 WL 2588992, at *5. In other words, granting an extension would not change the Court’s summary-judgment analysis. For these reasons, the Court finds that Baldwin fails to establish good cause to extend the discovery deadline and therefore denies her motion. ECF No. 92. V. CONCLUSION Homesite paid Baldwin the appraisal award for her property damage, and she accepted it. Texas law therefore estops her from pursuing further claims against Homesite based on her Policy, and she offers no evidence to create an issue of material fact to support her remaining claims. Accordingly, the Court RECOMMENDS Homesite’s motion for summary judgment, ECF No. 94, be GRANTED. The Court further DENIES Baldwin’s motion to extend discovery. ECF No. 92. The Parties have fourteen days from service of this Report and Recommendation to file written objections. 28 U.S.C. § 636(b)(1)(C); F ED. R. C IV . P. 72(b). Failure to file timely objections will preclude review of factual Case 4:23-cv-00859 Document 95 Filed 07/07/26 in TXSD Page 12 of 13
findings or legal conclusions, except for plain error. Quinn v. Guerrero, 863 F.3d 353, 358 (5th Cir. 2017). IT IS SO ORDERED. Signed at Houston, Texas, on July 7, 2026. Dena Hanovice Palermo United States Magistrate Judge Case 4:23-cv-00859 Document 95 Filed 07/07/26 in TXSD Page 13 of 13
Vous vous demandez comment ce texte s’applique à votre situation ?
Consultation gratuite, sans engagement
Décrivez votre situation. Notre équipe vous recontactera par e-mail pour votre consultation.
Poursuivez vos recherches dans ChatGPT ou Claude
Connectez Omnilex pour rechercher dans le corpus juridique depuis votre assistant IA.