Baldwin v. Homesite Insurance Company

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
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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
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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
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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
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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
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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
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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).
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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
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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.
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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
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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.
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“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
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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
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