1

 The Browns allege that the court lacks subject-matter

jurisdiction. The propriety of this court's exercise of subject

matter jurisdiction has been the subject of several filings by the

parties and one telephone conference between the court and the

parties, through counsel. Based on those materials, specifically the

affidavit of Kathleen B. Scarbrough, the court is satisfied that

there is diversity of citizenship between the parties under 28 U.S.C.

§ 1332.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

WANDA BROWN, ET AL., §

§

Plaintiffs, §

§

VS. § NO. 4:05-CV-648-A

§

ALLSTATE TEXAS LLOYDS, §

§

Defendant. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the motion of defendant, Allstate

Texas Lloyds, ("Allstate") for summary judgment. Having

considered the motion, the response of plaintiffs, Wanda Brown

and Roy Brown, ("Browns") the summary judgment evidence, and the

applicable authorities, the court has concluded that the motion

should be granted.

I.

The Browns' Complaint

The Browns allege in a very general way in their First

Amended Complaint ("complaint") that Allstate breached its

insurance contract with the Browns when it denied a claim the

Browns made under their homeowners insurance policy issued by

Allstate ("policy").1

 

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The court interprets the complaint to allege that the denied

claim was somehow related to a mold infestation at the Browns'

residence in Fort Worth, Texas, and that the policy obligated

Allstate to remediate the damage caused by the infestation, and

otherwise repair the house. In addition to their breach of

contract claim, the Browns also allege extra-contractual causes

of action against Allstate, including violation of Articles 21.21

and 22.55 of the Texas Insurance Code; breach of the duty of good

faith and fair dealing; fraud; negligence; breach of its

fiduciary duties; and civil conspiracy.

II.

Grounds Advanced in Allstate's Motion

In its motion, Allstate contends that summary judgment is

proper on all claims advanced by plaintiffs. Specifically,

Allstate urges that:

1. First, the Browns have no evidence supporting the 

damages element of their breach of contract claim because they

have failed to proffer any expert testimony on the issue of what

caused the alleged mold infestation.

2. Second, if there is no evidence supporting the damages 

element of the Browns' breach of contract claim, then Allstate is

entitled to summary judgment on all extra-contractual causes of

action.

3. Third, in the alterative Allstate urges that there is

no evidence supporting plaintiffs' claims for breach of the duty

 

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of good faith and fair dealing; fraud; negligence; breach of its

fiduciary duties; and civil conspiracy.

III.

Applicable Summary Judgment Principals

A party is entitled to summary judgment on all or any part

of a claim as to which there is no genuine issue of material fact

and as to which the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). The moving party has the initial

burden of showing that there is no genuine issue of material

fact. Anderson, 477 U.S. at 256. The movant may discharge this

burden by pointing out the absence of evidence to support one or

more essential elements of the non-moving party's claim "since a

complete failure of proof concerning an essential element of the

nonmoving party's case necessarily renders all other facts

immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25

(1986). Once the moving party has carried its burden under Rule

56(c), the non-moving party must do more than merely show that

there is some metaphysical doubt as to the material facts. 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986). The party opposing the motion may not rest on

mere allegations or denials of pleading, but must set forth

specific facts showing a genuine issue for trial. Anderson, 477

U.S. at 248, 256. To meet this burden, the nonmovant must

"identify specific evidence in the record and articulate the

'precise manner' in which that evidence support[s] [its]

 

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claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). 

An issue is material only if its resolution could affect the

outcome of the action. Anderson, 477 U.S. at 248. Unsupported

allegations, conclusory in nature, are insufficient to defeat a

proper motion for summary judgment. Simmons v. Lyons, 746 F.2d

265, 269 (5th Cir. 1984).

IV.

Undisputed Evidence

The following is an overview of the evidence pertinent to

the motion for summary judgment that is undisputed in the summary

judgment record.

The Browns purchased the home situated at 7017 Norma Drive,

Fort Worth, Texas, ("property") in June 1999, and were issued a

standard Texas homeowners policy by Allstate. On November 23,

2000, the Browns became aware that a water leak had damaged the

property's master and guest bathrooms. The date when the damage

occurred is unknown--it could have been either before or after

the Browns purchased the property. Allstate was informed of the

damage on the same day the Browns became aware of the damage

("first claim"). After investigating the claim, Allstate made

substantial repairs to the master bathroom shower; the master

bathroom itself; master bedroom wall; the wall located in the

hall adjacent to the master bedroom; the guest bathroom; and, the

 

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2 Specifically, Allstate made the following repairs: "Both

bathrooms were repaired with sheet rock for the walls, shower-pan for

the master bath shower, tiles for both shower area and tub area,

tiles for both bath floors, all bathroom fixtures reset in the

bathrooms, hall walls, bath walls, linen closet walls and shelves

painted." Def.'s App. at 41. 

5

linen closet.2 Repairs for the first claim were conducted from

December 2000 to February 2001.

On February 28, 2002, the Browns reported there was a leak

coming from a hot water heater that affected the property's slab

foundation ("second claim"). The appropriate repairs were made

by Allstate, and there was no further damage to the property

resulting from the hot water leak. Other than the water leakages

related to the first and second claims, plaintiffs can identify

no other water-related events from June 1999 until early

September 2003. 

The first claim was reopened on September 5, 2003, after

mold was found in the property's heating, ventilating, and airconditioning system ("HVAC"). In response to the reopening,

defendant first had Structural Science, Inc., ("SSI") conduct an

environmental quality investigation on the property. SSI found

elevated spore counts in the air inside the property, and

concluded that the elevated spore counts were caused by past

water intrusion and biological growth within the property. SSI

could not identify when the event causing the spore occurred. 

Ultimately, SSI recommended that plaintiffs evacuate the property

and "remain absent until after the building has been remediated

and cleared for occupancy." Pl.'s App. at Tab 4, p. 20. 

 

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Specifically, Becker concluded that:

Guidelines . . . promulgated by the Texas Department of

Health allow up to 25 ft2 of visible mold before

professional assessment and remediation is required. No

such areas of fungal amplification were observed within

the [property] during this assessment. Samples collected

during the course of this assessment detected no

significant fungal presence in the interior environment,

as defined by current industry practices.

Def.'s App. at 112.

6

Allstate sent three other vendors to investigate whether

systemic damage persisted within the property that was related to

the first claim. First, Allstate had Becker Engineering

("Becker") conduct an environmental quality investigation, like

the one performed by SSI. Becker's investigation found no

significant reservoirs of active fungal growth requiring

remediation in the property's interior areas.3 Second, American

Leak Detection conducted extensive checks for water leakage

within the property; no leakage was detected. Third, Gossett

Contracting Co. determined, after appropriate testing, that the

HVAC was in no way contributing to the mold contamination. By

letter dated October 30, 2003, Allstate denied additional

coverage for the first claim. 

V.

Analysis

A. Breach of Contract Claim.

1. Applicable Law.

To defeat the first ground raised in Allstate's motion for

summary judgment, the Browns must have some evidence showing that

 

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(i) a contract existed, (ii) they had fully performed, (iii)

Allstate failed to perform as obligated, and (iv) the Browns were

damaged. See Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex.App.--

Houston [1st Dist.] 2003, pet. denied). Because the insured may

only recover for covered perils, the Browns bear the burden of

presenting evidence that will allow the trier of fact to find

that the mold infestation was covered under the policy issued by

Allstate. Fiess v. State Farm Lloyds, 392 F.3d 802, 807 (5th

Cir. 2004). 

2. Law Applied to the Undisputed Summary

Judgment Evidence.

Apparently the Browns' breach of contract claim is that

Allstate should have made the repairs recommended by SSI because

the mold infestation was somehow related to the water leak and

damage repaired under the first claim. Allstate contends that

the Browns have no evidence of contract damages because they have

no expert testimony concerning, inter alia, the cause of the mold

infestation. The court interprets this contention to include as

a ground for summary judgment that there is no summary judgment

evidence that the mold in question was caused by an event insured

by the policy. 

The court concludes that there is no evidence that the mold

infestation was a covered loss. As the Browns argue in their

response, the SSI report is evidence that mold affected the

property; however, that report in no way supports the Browns'

basic contention that the mold damage was in any way connected to

the water leak and damage repaired under the first claim. See

 

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Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2001)

("Unsubstantiated assertions, improbable inferences, and

unsupported speculation are not sufficient to defeat a motion for

summary judgment.") (citations omitted). In order for the Browns

to meet their burden that the mold damage was covered under the

policy, they must have some evidence of what caused the mold. 

Because the record lacks any evidence that the mold infestation

was caused by a peril covered under the policy, the court is

granting Allstate's motion with respect to the Browns' breach of

contract claim.

B. Extra-Contractual Claims.

Because there is no evidence that Allstate ever breached its

contract, all of the Browns' extra-contractual claims, which are

derivative of their breach of contract claim, must fail. 

VI.

O R D E R

For the reasons stated herein,

The court ORDERS that Allstate's motion for summary judgment

be, and is hereby, granted.

The court further ORDERS that all claims and causes of

action asserted by the Browns against Allstate in the abovecaptioned action be, and are hereby, dismissed with prejudice.

SIGNED July 12, 2006.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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