United States Court of Appeals

for the Fifth Circuit

No. 20-20507

Beatrice Stewart, 

Plaintiff—Appellant,

versus

Metropolitan Lloyds Insurance Company of Texas, 

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CV-5008

Before Jones, Costa, and Duncan, Circuit Judges.

Per Curiam:*

Beatrice Stewart filed an insurance claim after observing damage to 

her walls and floors. She says that her policy covers this damage; her insurer 

disagrees. To determine who is right, we must decide whether Stewart 

experienced an “entire collapse” of part of her home.

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 13, 2021

Lyle W. Cayce

Clerk

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I.

One evening in late 2017 or early 2018, Stewart was awakened by “a 

loud bang” that shook her house, as if “a bomb had gone off in the 

neighborhood.” The next morning, she noticed the damage to her home:

cracked sheetrock and sunken floors. A few days later, she cut a hole through 

her floor and discovered that a couple of joists below her subfloor had broken 

and fallen away. After performing some short-term repairs, Stewart filed a 

claim with her home insurer Metropolitan Lloyds Insurance Company of 

Texas.

Both Stewart and Metropolitan engaged experts to review the 

damage. Metropolitan hired Donan Engineering, which found “broken and 

deteriorated floor joists, deteriorated floor decking, walls not plumb, and 

gaps in the wall-to-ceiling interface.” By the time of the inspection, Stewart 

had already “removed and replaced the soft subfloor decking and reinforced 

the floor joist.” The Donan report also described “insect tunnels in the 

subfloor decking and floor joists,” as well as “no vapor barrier above the soil 

under the house.”1

 It concluded that “rot [in the] floor joists and subfloor 

decking [were] caused by a combination of termite damage and exposure to 

moisture over the lifespan of the structure,” resulting in the broken floor 

joists and unlevel floor. Stewart’s own expert, Pfister Pier & Beam Leveling, 

agreed with Donan that “termite damage and wood rot was the cause of the 

foundation collapse/failure.”

1 Vapor barriers are meant to prevent the build-up of moisture inside floors and 

walls, which can damage a home’s structure. See Moisture Control: Utilizing Vapor 

Retarders, N. Am. Insulation Mfg. Ass’n, https://insulationinstitute.org/im-a-buildingor-facility-professional/residential/installation-guidance-2/moisture-management/vapor-retarders/

(last visited May 7, 2021).

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The inspectors took numerous photos that are part of the record. We 

use just one (which includes markings made by Donan Engineering) to give a 

sense of the damage:

Metropolitan denied Stewart’s claim, determining based on the 

Donan report that her policy did not cover the damage. Stewart then sued 

for breach of contract in Texas state court. She also brought several other

claims: breach of the duty of good faith and fair dealing, state insurance code 

violations, and violations of the Texas Deceptive Trade Practices and 

Consumer Protection Act.

Metropolitan removed the case to federal court and moved for 

summary judgment on all claims. Stewart sought partial summary judgment 

on her breach of contract claim. The district court concluded that Stewart’s 

policy did not cover the damage because she did not experience a collapse at 

all, much less an “entire collapse,” as the policy required. And because 

Stewart’s bad-faith and statutory claims could not go forward “without 

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coverage or a contract breach,” the district court granted Metropolitan’s 

motion and dismissed the case with prejudice.

II.

This court reviews the district court’s grant of summary judgment de 

novo. Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848, 856 

(5th Cir. 2014). Summary judgment is proper when, viewing the evidence in 

the light most favorable to the nonmoving party, “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.” Id. (quoting Fed. R. Civ. P. 56(a)).

A.

Texas law governs this insurance dispute. See Lawyers Title Ins., 739 

F.3d at 856. Under Texas law, insurance contracts are subject to “the same 

rules of construction that apply to contracts generally.” Don’s Bldg. Supply, 

Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 23 (Tex. 2008). The policy’s 

“words and phrases . . . should be given their plain and ordinary meaning.” 

Aggreko, L.L.C. v. Chartis Specialty Ins. Co., 942 F.3d 682, 688 (5th Cir. 

2019). “An interpretation that gives each word meaning is preferable to one 

that renders one surplusage.” U.S. Metals, Inc. v. Liberty Mut. Grp., Inc., 490 

S.W.3d 20, 23–24 (Tex. 2015). If a contract is unambiguous, it will be 

enforced as written. Don’s Bldg. Supply, 267 S.W.3d at 23. A contract is not 

ambiguous, though, just because the parties disagree about the scope of its 

coverage. ACE Am. Ins. Co. v. Freeport Welding & Fabricating, Inc., 699 F.3d 

832, 842 (5th Cir. 2012). Only when “a contract is susceptible to more than 

one reasonable interpretation” must the court “resolve any ambiguity in 

favor of coverage.” Don’s Bldg. Supply, 267 S.W.3d at 23. As the insured, 

Stewart bears the initial burden of proving that her policy covers the damage. 

Guar. Nat’l Ins. Co. v. Vic Mfg. Co., 143 F.3d 192, 193 (5th Cir. 1998). 

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The dispute hinges on whether Stewart’s losses fall under the policy’s

provision covering damage involving an “entire collapse.” The policy 

defines collapse as “an abrupt falling down or caving in of a building or any 

part of a building.” This definition excludes “settling, cracking, sagging, 

bowing, bending, leaning, shrinking, bulging, or expansion” as well as the 

mere “danger of falling down or caving in.”

Stewart’s policy does not, however, cover every collapse. 

Metropolitan “will pay for sudden and accidental direct physical loss to 

covered property involving the entire collapse of a building or any part of a 

building caused only by one or more” specified causes, which include 

“hidden decay of the structure” and “hidden insect or hidden vermin 

damage.”2 No other damage resulting from collapse is covered.

Additionally, “[l]oss to . . . foundation” is excluded from coverage “unless 

the loss is a direct result of the collapse of a building.”

In sum, Stewart’s losses are only covered if (1) they involved an 

“entire collapse” of all or part of a building, (2) that collapse was solely 

caused by an enumerated peril such as hidden structural decay or insect 

damage, and (3) any damage to Stewart’s foundation was directly attributable 

to “the collapse of a building.” Unfortunately for Stewart, she cannot meet 

her burden under the first requirement because no “entire collapse” 

occurred.

B.

While Stewart’s policy defines “collapse,” it does not separately 

explain what it means by “entire collapse.” The word “entire,” however, 

should not be read out of Stewart’s policy. See U.S. Metals, 490 S.W.3d at 

2 The collapse provisions are central to this case because Stewart’s policy 

otherwise excludes coverage for damage caused by “wear and tear” or “insects.”

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23–24 (expressing preference against surplusage). It should instead be given 

effect according to its plain meaning. Aggreko, 942 F.3d at 688.

“Entire” means “with no element or part excepted” or “complete in 

degree.” Entire, Webster’s Third New International 

Dictionary (2002); see also Entire, Black’s Law Dictionary (9th 

ed. 2009) (“Whole; complete in all its parts.”). Courts from California to 

Connecticut interpreting similar insurance provisions have therefore held

that an “entire collapse” unambiguously refers to a collapse that is total or 

complete. See, e.g., Jordan v. Allstate Ins. Co., 11 Cal. Rptr. 3d 169, 181 (Ct. 

App. 2004) (“For a building or a portion thereof to sustain an ‘entire 

collapse’ must mean that it has entirely collapsed, that is ‘wholly,’ 

‘completely,’ or ‘fully.’” (citing Entirely, Webster’s Third New 

International Dictionary (1966)); Agosti v. Merrimack Mut. Fire 

Ins. Co., 279 F. Supp. 3d 370, 379 (D. Conn. 2017) (same).

Whether a structure has “entirely” collapsed depends on the extent 

to which it has fallen down or caved in. A structure merely in danger of future 

collapse has not yet fallen down or caved in at all, so it has not suffered an 

entire collapse. Jordan, 11 Cal. Rptr. 3d at 181 (“It seems self-evident that 

the policy’s use of the term ‘entire’ collapse necessarily must refer to an 

actual, not an imminent collapse.”); Agosti, 279 F. Supp. 3d at 378–79

(“[T]he gradual deterioration of the basement walls cannot yet be 

characterized as an ‘entire collapse.’”). An entire collapse must also go 

beyond the deterioration of just one small piece of a larger structural 

component. See Ass’n of Unit Owners of Nestani v. State Farm Fire & Cas. Co., 

670 F. Supp. 2d 1156, 1161–64 (D. Or. 2009) (holding that decay of “stud 

ends [or] four-by-four bottom plates” did not amount to “the collapse of an 

entire structural member”). A contrary interpretation “would render the 

term ‘entire’ meaningless.” Id. at 1164.

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The damage Stewart describes does not rise to level of an entire 

collapse. She contends that part of her home entirely collapsed because the 

floor “caved in.” She points to her testimony that in the days after hearing 

a loud bang, she found that her floors were sunken, joists beneath her subfloor 

had broken and fallen away, and the frame underneath her home sat several 

feet lower than before. But the undisputed evidence shows that the floor did 

not entirely cave in. While the floor was “unlevel,” Stewart continued to 

live in her house and walk its hallways after the damage occurred. As the 

district court noted, there was “no hole or gap in the floor” until Stewart cut 

into it herself. Though the floor sagged, “sagging” is one of those gerunds 

excluded from her policy’s definition of collapse.

Stewart relies on an Illinois state court decision to support her 

argument that she experienced a covered collapse. In Gulino v. Economy Fire 

& Casualty Co., a portion of the insured’s basement ceiling sagged eight 

inches, disabling the heating system and damaging pipes. 971 N.E.2d 522, 

525–28 (Ill. Ct. App. 2012). Much like Stewart’s policy, the insurance 

agreement in Gulino covered “the entire collapse of a building or any part of 

a building,” defining “collapse” as “an abrupt falling down or caving in of a 

building or part of a building,” and excluding “settling, cracking, sagging, 

[and] bowing,” among other things. Id. at 524. Still, the Gulino court found 

that “a portion of the basement ceiling did cave in,” providing the insured 

with coverage even though “the facts undeniably show[ed] that [his] house 

or any part of it had not completely fallen down.” Id. at 528. But the Gulino

court never analyzed whether an entire collapse occurred; it instead leapt 

from the determination that the insured experienced a cave-in to the 

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conclusion that there was a covered collapse.3 We are not, therefore, 

convinced that Gulino sheds light on how this court must interpret the

“entire collapse” language of Stewart’s policy.

The conclusion that Stewart urges us to draw from Gulino fares no 

better. She argues that her policy covers her damage even though there was 

“something less than a complete falling down” because it involved the 

undermining of her home’s structure. Gulino, 971 N.E.2d at 528. This 

reading of her policy, however, overlooks the word “entire.” When the word

“entire” is missing from an insurance agreement, courts may find coverage 

for only partial collapses because the policy is “not written in terms of how 

far a building must fall down or to what degree a building must cave in to 

constitute collapse.” See, e.g., Malbco Holdings, LLC v. AMCO Ins. Co., 629 

F. Supp. 2d 1185, 1196 (D. Or. 2009). Here, by contrast, the extent to which 

part of Stewart’s home has fallen down (or caved in) is the whole ball game—

it must have suffered an entire collapse. “Something less than a complete 

falling down” is not enough.

III.

Because Stewart’s breach of contract claim fails, her allegations of

bad-faith and statutory violations based on the coverage denial cannot go 

forward. See USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 490 (Tex. 

2018) (“[T]here can be no claim for bad faith denial of an insured’s claim for 

policy benefits when an insurer has promptly denied a claim that is in fact not 

covered.” (cleaned up)); id. at 490–91 (same for statutory claims arising out 

of the denial of coverage); State Farm Lloyds v. Page, 315 S.W.3d 525, 532 

3 The decision also failed to explain why damage it repeatedly described as 

“sagging” warranted coverage despite the explicit exclusion of “sagging” from the 

definition of collapse. See Gulino, 971 N.E. 2d at 532 (Quinn, P.J., dissenting).

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(Tex. 2010) (“When the issue of coverage is resolved in the insurer’s favor, 

extra-contractual claims do not survive.”).

***

As the district court recognized, Stewart “has conscientiously 

obtained and maintained [her] policy and there is damage that must be 

repaired at considerable cost.” But her policy is inflexible. To recover, 

Stewart must show that part of her home wholly, completely, or totally 

collapsed. She has not done so.

The judgment of the district court is therefore AFFIRMED.

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