IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40497 

Summary Calendar

CARLOS ALANIZ,

 

Plaintiff - Appellant

v.

SIRIUS INTERNATIONAL INSURANCE CORPORATION,

 

Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

U.S.D.C. No. 7:14-CV-215

Before REAVLEY, SMITH, and HAYNES, Circuit Judges.

PER CURIAM*:

Plaintiff Carlos Alaniz appeals the grant of summary judgment in favor 

of Sirius International Insurance Corporation (“Sirius”) on Alaniz’s claims 

arising from an insurance contract between the parties. For the reasons that 

follow, we AFFIRM.

 

* 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

September 14, 2015

Lyle W. Cayce

Clerk

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I.

Alaniz owns four rental properties at 1519, 1520, and 1526 Orlando 

Street, and 1614 Phoenix Street, in Edinburg, Texas. Each property contains 

four apartment units. Alaniz purchased two successive commercial property 

insurance policies for the properties from Sirius, with the policy periods 

extending from July 6, 2011, to July 6, 2013.

On March 29, 2012, there was a substantial hailstorm in the area of the 

properties. Alaniz was aware of the storm and its severity as well as reports 

that it caused damage to vehicles. He did not notice any hail damage, inspect 

the properties for hail damage, or have them inspected by a professional.

In the summer of 2013, a tenant notified Alaniz of a leaking and wet 

ceiling in one of the units at the 1519 Orlando Street property. Alaniz

attempted to repair the ceiling by applying spackling. He inspected the roof

himself but did not notice any visible damage. A week later, the tenant 

reported that the repair had failed, so Alaniz reapplied spackling. Shortly 

thereafter, a tenant in a different unit at the 1519 Orlando Street property

reported the same problem, and Alaniz attempted to repair it in the same 

manner.

A few weeks later, an owner of a neighboring property suggested to 

Alaniz that the leaks and water damage might be attributed to hail damage 

from the March 2012 hailstorm. The neighbor told Alaniz that he had similar 

damage and did not initially realize it was from the hailstorm until he 

contacted an attorney and had the property inspected. 

A few months after this conversation, Alaniz visited with an attorney 

regarding the damage to the property. Alaniz signed a representation 

agreement with that attorney on September 5, 2013. A little over five months 

later, on February 14, 2014, Alaniz faxed notice of hail damage and an 

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insurance claim to Sirius regarding each of his four properties.1 Alaniz had 

the roofs of the properties inspected by a professional on February 24, 2014. 

After failing to receive a response from Sirius, on March 27, 2014, Alaniz 

filed suit against Sirius in Texas state court. He alleged claims of breach of 

contract, breach of the common law duty of good faith and fair dealing, and 

violations of the Texas Insurance Code and Texas Deceptive Trade Practices 

Act (“DTPA”). Sirius removed the case to federal court on diversity jurisdiction 

grounds and thereafter filed a motion for summary judgment arguing, among 

other things, that Alaniz could not recover under the insurance policy because 

he did not satisfy its requirement of providing “prompt notice of the loss or 

damage.” The district court granted summary judgment in favor of Sirius, 

dismissing all of Alaniz’s claims. Alaniz timely appealed.

II.

We review the district court’s grant of summary judgment de novo, 

construing all facts and inferences in the light most favorable to the nonmoving 

party. See Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008). We may 

affirm the district court’s grant of summary judgment on any ground supported 

by the record and presented to the district court. See id. Summary judgment 

is appropriate 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). 

Likewise, the interpretation of an insurance contract is reviewed de 

novo. See Admiral Ins. Co. v. Ford, 607 F.3d 420, 422 (5th Cir. 2010). Because 

 

1 There is a dispute as to whether Alaniz actually sent notice to Sirius. However,

given the summary-judgment context of this case, we construe the facts in the light most 

favorable to Alaniz and assume he sent the faxed notice. See Hernandez v. Velasquez, 522 

F.3d 556, 560 (5th Cir. 2008).

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this is a diversity case involving a Texas insurance contract, Texas insurance 

law and rules of contract interpretation apply. See id.

III.

The primary basis on which the district court dismissed Alaniz’s breach 

of contract claim was that Alaniz’s failure to comply with the prompt-notice 

provision in the insurance contract precluded recovery under the policy. The 

policy required that Alaniz provide “prompt notice of the loss or damage” and, 

“[a]s soon as possible,” provide a “description of how, when and where the loss 

or damage occurred.” An insurer has a right to demand notice as a condition 

to liability under the policy. See Dairyland Cnty. Mut. Ins. Co. v. Roman, 498 

S.W.2d 154, 157 (Tex. 1973) (“[A] provision . . . requiring that notice of the 

accident be given the insurer as soon as practicable is a condition precedent to 

liability. In the absence of waiver or other special circumstances, failure to 

perform the condition constitutes an absolute defense to liability on the 

policy.”); Stonewall Ins. Co. v. Modern Exploration, Inc., 757 S.W.2d 432, 435 

(Tex. App.—Dallas 1988, no writ); 21 WILLIAM V. DORSANEO III, TEXAS 

LITIGATION GUIDE § 343.03 (2015). However, as we discuss more fully below, 

Texas law has qualified this right in various contexts by requiring the insurer 

to prove that the lack of notice prejudiced it. See generally PAJ, Inc. v. Hanover 

Ins. Co., 243 S.W.3d 630, 634–37 (Tex. 2008). 

Where, as here, the policy does not define the phrases “prompt notice” 

and “as soon as possible,” Texas courts “construe the [phrases] as meaning 

that notice must be given within a reasonable time after the occurrence” 

Ridglea Estate Condo. Ass’n v. Lexington Ins. Co., 415 F.3d 474, 479 (5th Cir. 

2005) (quoting Stonewall, 757 S.W.2d at 435, and adding emphasis); see also 

Cont’l Sav. Ass’n v. U.S. Fidelity & Guaranty Co., 762 F.2d 1239, 1243 (5th Cir. 

1985). “What constitutes a reasonable amount of time depends on the facts 

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and circumstances in each particular case.” Stonewall, 757 S.W.2d at 435. 

“While generally a question of fact, reasonableness becomes a question of law 

if the facts are undisputed.” Cont’l Sav., 762 F.2d at 1243; see also Klein v. 

Century Lloyds, 275 S.W.2d 95, 97 (Tex. 1955). As the district court recognized, 

in the present case, this issue may be determined as a matter of law because

the relevant facts are not in dispute. 

The parties dispute whether the reasonableness analysis should focus on 

the entire time since the hailstorm or only the period following when Alaniz’s 

awareness of facts suggested hail damage. As did the district court, we find it 

unnecessary to determine the exact time period for considering the

reasonableness of the notice given because, even employing Alaniz’s preferred 

characterization, Alaniz’s delay in providing notice to Sirius did not satisfy the 

policy’s prompt-notice provision. 

Construing the facts in the light most favorable to Alaniz, he provided 

notice to Sirius on February 14, 2014. Alaniz was aware of the March 2012 

hailstorm, its severity, and damage that it caused in general, but, according to 

him, he did not initially realize it caused damage to his properties. In the 

summer of 2013, Alaniz was notified by tenants of wet ceilings and leaks in 

two separate units of the same apartment complex. He attempted interior 

repairs on the ceiling, which were initially unsuccessful. A few weeks later, an 

owner of a neighboring property suggested that the leaks and water damage 

might be attributed to hail damage from the March 2012 hailstorm. The 

neighbor told Alaniz that his neighboring property had similar damage, which 

was caused by the hailstorm, but that he did not initially realize that he had 

hail damage from the storm. At this point (some time in the summer of 2013), 

Alaniz was aware of facts necessary to conclude that he should notify his 

insurer of the damages to his properties or have the properties inspected by a 

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professional for hail damage. See Ridglea, 415 F.3d at 477 (concluding that, 

given the magnitude of a hailstorm as well as hail damage to other portions of 

a plaintiff’s property, the plaintiff “should have been aware of the likelihood 

that its roofs had suffered hail damage”).

Nevertheless, it was not until a few months after this conversation that 

Alaniz took any action. He contacted an attorney regarding the damage to his 

property and a representation agreement was signed with that attorney on 

September 5, 2013. Alaniz’s actions thus confirm that he was aware of damage 

to his properties that he believed required professional attention. At that time, 

the hailstorm had occurred more than 17 months earlier, but Alaniz still did 

not provide notice to Sirius of the damage to his properties. Instead, he delayed 

five and a half additional months before providing notice to Sirius. 

Other courts have found similar and even briefer periods of delay in 

providing notice to be unreasonable as a matter of Texas law.2 Moreover, if 

the delay occurs without explanation, it is appropriate to conclude that prompt 

notice was not given as a matter of law. See Nat’l Union Fire Ins. Co. v. Bourn, 

441 S.W.2d 592, 595 (Tex. Civ. App—Fort Worth 1969, writ ref’d., n.r.e) (“[A]n 

 

2 See, e.g., Allen v. W. Alliance Ins. Co., 349 S.W.2d 590, 593–94 (Tex. 1961) (holding 

that notice provided 107 days (3.5 months) after an automobile accident was not “as soon as 

practicable” as a matter of law); Klein, 275 S.W.2d at 96–97 (delay of 32 days in notifying 

insured of an automobile accident was not “as soon as practicable” as a matter of law); 

Edwards v. Ranger Ins. Co., 456 S.W.2d 419, 421 (Tex. Civ. App.—Fort Worth 1970, writ 

ref’d., n.r.e) (delay of 46 days in reporting damage to an aircraft was not “as soon as 

practicable” as a matter of law); Nat’l Union Fire Ins. Co. v. Bourn, 441 S.W.2d 592, 595 (Tex. 

Civ. App—Fort Worth 1969, writ ref’d., n.r.e) (“Notice given 44 days after the occurrence 

giving rise to the claim is, as a matter of law, failure to give written notice ‘as soon as 

practicable’ where the delay is totally unexplained and without excuse.”); Nat’l Surety Corp. 

v. Diggs, 272 S.W.2d 604, 607–09 (Tex. Civ. App.—Fort Worth 1954, writ ref’d., n.r.e) (delay 

of 104 days (3.5 months) in reporting an automobile accident was not notice “as soon as 

practicable” as a matter of law); Flores, 278 F. Supp. 2d at 819–20 (concluding that failure to 

notify an insurer of mold damage until 6 months after the mold damage became apparent 

was not “prompt notice” under a homeowner’s property insurance policy).

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inexcused delay or delay because of a flimsy excuse entitles the insurance 

company to judgment as a matter of law since delays of that type violate the 

‘soon as practicable’ provision of the policy and notice is deemed as not having 

been given within a reasonable time.”); Nat’l Surety Corp. v. Diggs, 272 S.W.2d 

604, 607–08 (Tex. Civ. App. 1954, writ ref’d., n.r.e). Here, Alaniz provides no 

explanation for his delay in providing notice, and the evidence demonstrates

he did not use this period to have the properties inspected, as that did not occur 

until after he provided notice to Sirius. Accordingly, in light of the undisputed 

“facts and circumstances in [this] particular case,” we conclude that Alaniz did 

not satisfy the policy’s requirement that he provide prompt notice of the hail 

damage. Stonewall, 757 S.W.2d at 435.

However, this conclusion does not end the inquiry, because it is also 

necessary to address whether Alaniz’s violation of the policy’s prompt notice 

provision prejudiced Sirius. See Ridglea, 415 F.3d at 480.3 The prejudice 

requirement is grounded in “the principle that one party is excused from 

performing under a contract only if the other party commits a material breach.” 

Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 767 (Tex. 2014). Accordingly, 

“[w]hen an insurer must prove it was prejudiced by the insured’s failure to 

 

3 Ridglea involved late notice of hail damage under a property insurance policy. See 

415 F.3d at 479–80. We noted the lack of authority directly on point, but relied on Texas 

Supreme Court cases applying a prejudice requirement in other contexts. Id. (citing 

Hernandez v. Gulf Grp. Lloyds, 875 S.W.2d 691 (Tex. 1994)). We made an Erie guess that 

“the prejudice requirement applie[d] to the property insurance policy at issue” in that case. 

Id. at 480. Since that time no authoritative decision of the Texas Supreme Court has called 

Ridglea’s reasoning into question in this context. Accordingly, we are required to follow 

Ridglea’s prejudice requirement. Cf. Berkley Reg’l Ins. Co. v. Phila. Indem. Ins. Co., 690 F.3d 

342, 346–47 (5th Cir. 2012) (noting that recent Texas Supreme Court cases “involving an 

insured’s failure to comply with notice and related requirements consistently [have] 

recognized that although the policy provisions imposing these requirements were valid, no 

forfeiture of coverage from breaching such obligations would result absent prejudice to the 

insurer”).

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comply with the notice provisions, the recognized purposes of the notice 

requirements form the boundaries of the insurer’s argument that it was 

prejudiced; a showing of prejudice generally requires a showing that one of the 

recognized purposes has been impaired.” Berkley Reg’l Ins. Co. v. Phila. Indem. 

Ins. Co., 690 F.3d 342, 347 (5th Cir. 2012) (quoting Blanton v. Vesta Lloyds Ins. 

Co., 185 S.W.3d 607, 612 (Tex. App.—Dallas 2006, no pet.)). The primary 

purpose of a prompt notice and proof of loss provision in a policy such as this 

one is to allow the insurer to investigate the incident close in time to the 

occurrence, while the evidence is fresh, and so that it may accurately determine 

its rights and liabilities under the policy (and take appropriate remedial 

action). See Stonewall, 757 S.W.2d at 435; see also Blanton, 185 S.W.3d at 615; 

46 TEX. JUR. 3D INSURANCE CONTRACTS AND COVERAGE § 869 (2015).

Sirius argues that Alaniz’s delay in providing notice prejudiced it by 

depriving it of the ability to promptly investigate damage to the properties at 

a time when the evidence of any hail damage would be less likely to be altered 

by time and continuing deterioration of the property and to provide for the 

repair of any such damage before further deterioration occurred. Sirius states 

that because the roofs were not timely fixed, the intrusion of water that 

purportedly caused damage to the interiors of the properties has been allowed 

to continue, thus causing further damage. Indeed, Sirius states that Alaniz 

now alleges that all sixteen apartment units have extensive property damage 

from water intrusion. Sirius also points out that during the period of delay, 

Alaniz did nothing to mitigate further deterioration of the properties by fixing 

the purported hail damage, but instead patched over water damage to the 

interior ceilings.4 

 

4 In addition to the foregoing, we note that testimony by Alaniz demonstrates that he 

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Significantly, Alaniz has completely failed to mention, much less contest, 

Sirius’s facts or arguments on prejudice either in the district court or on appeal. 

Accordingly, Alaniz has not raised a dispute of material fact on the issue of 

prejudice. Construing the facts in the light most favorable to Alaniz, we 

conclude that Sirius has proven as a matter of law that Alaniz’s delay in 

providing notice prejudiced its ability “to promptly investigate the 

circumstances of the accident while the matter is fresh” and “to enable it to 

form an intelligent estimate of its rights and liabilities under the policy.” 

Stonewall, 757 S.W.2d at 435. Further, it is evident that there has been 

continued deterioration of the properties due to water damage that could have 

been at least partially avoided by prompt action on Alaniz’s part. Alaniz 

estimates the damage at upwards of $650,000. This continued deterioration of 

the property prejudices Sirius’s ability to investigate to what extent any 

damage to the properties might be attributable to the March 2012 hailstorm

and exacerbates the cost of any repairs. See, e.g., Hamilton Props. v. Am. Ins. 

Co., No. 3:12-CV-5046-B, 2014 U.S. Dist. LEXIS 91882, at *32–33 (N.D. Tex. 

July 7, 2014) (finding prejudice caused by delay in providing notice of 

purported hail damage under a property insurance policy), appeal filed, No. 

15-10382 (5th Cir.). Accordingly, the district court did not err in granting 

summary judgment to Sirius on Alaniz’s breach of contract claim.

Alaniz also asserted extra-contractual claims pursuant to common law 

and the Texas Insurance Code. These claims fail because such claims generally 

cannot be maintained when the breach of contract claim they arise out of fails. 

See JAW The Pointe, L.L.C. v. Lexington Ins. Co., 460 S.W.3d 597, 602 & n.4 

 

lacks records or other documentation of any damage or reports of damage to the property at 

the time he initially observed it that would have assisted in allowing for a proper 

investigation by Sirius of the purported hail damage.

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(Tex. 2015) (citing, inter alia, Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 

(Tex. 1995)); State Farm Lloyds v. Page, 315 S.W.3d 525, 532 (Tex. 2010) (citing 

Progressive Cnty. Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 922 (Tex. 2005)). 

“Although [the Texas Supreme Court has] left open the possibility that an 

insurer’s denial of a claim it was not obliged to pay might nevertheless be in 

bad faith if its conduct was extreme and produced damages unrelated to and 

independent of the policy claim,” Alaniz did not put forth evidence of such 

extreme conduct or of damages suffered independent of those that would have 

resulted from an alleged wrongful denial of his claim. JAW, 460 S.W.3d at 602 

(quoting Boyd, 177 S.W.3d at 922); see also Great Am. Ins. Co. v. AFS/IBEX 

Fin. Servs., 612 F.3d 800, 808 n.1 (5th Cir. 2010); Provident Am. Ins. Co. v. 

Castaneda, 988 S.W.2d 189, 198 (Tex. 1999). In like manner, Alaniz’s claims 

pursuant to the DTPA fail since they are predicated on the same standards as 

his common law bad faith claims and those asserted under the Texas Insurance 

Code. See Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848, 

870 (5th Cir. 2014) (explaining that claims under DTPA and the Texas 

Insurance Code fail if the bad faith cause of action fails where they require the 

same predicate for recovery (quoting Higginbotham v. State Farm Mut. Auto. 

Ins. Co., 103 F.3d 456, 460 (5th Cir. 1997))); Tex. Mut. Ins. Co. v. Morris, 383 

S.W.3d 146, 150 (Tex. 2012).5

AFFIRMED.

 

5 Given our ruling, we need not address the additional arguments presented by the 

parties on the merits of Alaniz’s claims. 

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