* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 18, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 06-40913

Summary Calendar

JAMES BARLOW; DEBRA PEVETO,

Plaintiffs-Appellants,

versus

ALLSTATE TEXAS LLOYDS,

Defendant-Appellee.

Appeal from the United States District Court 

for the Eastern District of Texas

(1:05-CV-131)

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Claiming genuine issues of material fact, James Barlow and

Debra Peveto contest the summary judgment awarded Allstate Texas

Lloyds on their claims under the Texas Insurance Code and Texas

Deceptive Trade Practices Act, for breach of duty of good faith and

fair dealing, and for breach of contract.

The dispute arises from Barlow and Peveto’s homeowners

insurance policy issued by Allstate Texas Lloyds. It states: the

residence is vacant “[i]f the insured moves from the dwelling and
2

a substantial part of the personal property is removed from that

dwelling”; and coverage will be suspended 60 days after a dwelling

becomes vacant. 

Barlow and Peveto claim their residence was not vacant when it

was damaged by fire and seek full payment of their claim under the

policy (they received partial payment). Allstate Texas Lloyds

asserts: the policy was suspended at the time of the fire because

the house had been vacant for more than 60 days; and it has

fulfilled its payment obligation.

A summary judgment is reviewed de novo, viewing the record in

the light most favorable to the non-movant. FED. R. CIV. P. 56(c);

Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163-64 (5th

Cir. 2006). Summary judgment is proper if the pleadings and

discovery on file show there is no genuine issue as to any material

fact and the movant is entitled to judgment as a matter of law.

FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). 

Under Texas law, which applies because this is a diversity

action, an insurance policy is interpreted in the same manner as

any other contract. Harken Exploration Co. v. Sphere Drake Ins.

PLC, 261 F.3d 466, 471 n.3 (5th Cir. 2001). “The interpretation of

an insurance policy is a question of law.” New York Life Ins. Co.

v. Travelers Ins. Co., 92 F.3d 336, 338 (5th Cir. 1996).
3

Allstate Texas Lloyds carried its summary-judgment burden by

identifying deposition testimony in which: Peveto stated she and

Barlow had not lived in the house for approximately three months

prior to the fire, and they were remodeling the bathroom; and

Peveto and Barlow each stated that almost all of the furniture had

been removed from the house. Based on this evidence, the policy

had been suspended due to the residence being vacant. See Celotex

Corp., 477 U.S. at 323. Accordingly, Peveto and Barlow were

required to “set forth specific facts showing that there is a

genuine issue for trial”. FED. R. CIV. P. 56(e). 

Their response to the summary-judgment motion included an

affidavit in which Peveto claims: her prior deposition testimony

was incorrect due to faulty memory; she and Barlow had moved out of

the house less than a month before the fire; and the electricity

and water remained on and furniture remained in the house, in

addition to the tools and refrigerator previously testified to as

being present at the time of the fire. Barlow submitted an

affidavit summarily agreeing with Peveto’s.

Peveto and Barlow’s affidavits fail to show there is a genuine

issue of material fact. Self-serving assertions contradicting

previous testimony are insufficient evidence to overcome a summaryjudgment motion. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d

489, 496 (5th Cir. 1996).
4

Because no coverage existed under the homeowners policy due to

vacancy, summary judgment on the breach-of-contract claim was

proper. And, because Barlow and Peveto’s other claims were

premised upon the existence of the policy, summary judgment on

those claims was also proper.

AFFIRMED