United States District Court

EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

XCEED MANAGEMENT GROUP, LLC,

Plaintiff,

v. 

ASSUREDPARTNERS AEROSPACE, 

LLC d/b/a AIRSURE LIMITED LLC,

Defendant.

§

§

§

§

§

§

§

§

§

§

Civil Action No. 4:23-cv-690

Judge Mazzant

MEMORANDUM OPINION AND ORDER 

Pending before the Court is Defendant AssuredPartners Aerospace, LLC d/b/a Airsure 

Limited, LLC’s Motion for Summary Judgment (Dkt. #22). Having considered the motion and 

relevant pleadings, the Court finds the motion should be GRANTED.

BACKGROUND

This case arises out of an emergency hard landing that totaled an aircraft owned by Plaintiff 

Xceed Management Group, LLC’s (“Xceed”). The pilots and passengers were not injured, but 

the aircraft suffered significant damage, resulting in a total loss. The aircraft—a Cessna Citation II 

bearing the federal registration number N550DW—had an insured value of $742,500. Because the 

two pilots who had manned the aircraft failed to meet certain requirements contained in the 

aircraft’s insurance policy, Xceed’s claim for the loss of the aircraft was ultimately denied. Xceed

sued its insurance broker, Defendant AssuredPartners Aerospace, LLC d/b/a Airsure Limited, 

LLC (“AssuredPartners”), for negligence, alleging that AssuredPartners breached its duty to 

procure additional insurance covering Timothy Taylor—the pilot in command—or to inform 

Xceed that Taylor would not be covered under the policy.

Case 4:23-cv-00690-ALM Document 34 Filed 07/31/24 Page 1 of 11 PageID #: 1010
2

On April 1, 2022, Xceed requested that AssuredPartners procure an insurance policy for 

the aircraft with the following policy terms and coverage: (a) insured valued of $742,500; (b) 

liability limits of $10 million; and (c) naming Jim Johnson, Rodney Wilson, and Jean Gray as the 

pilots authorized by Xceed to operate the aircraft ((Dkt. #22, Exhibit 5 at p. 2). AssuredPartners

successfully procured such policy from QBE Insurance Corporation (“QBE”) (Dkt. #22, Exhibit 

5 at p. 3). The policy had an effective period from April 1, 2022, through April 1, 2023 (Dkt. #22, 

Exhibit 5 at p. 3). 

On April 4, 2022, AssuredPartners provided Xceed a certificate of insurance and a 

confirmation of coverage, which both documented the insurance coverage and policy terms that 

Xceed requested for the aircraft ((Dkt. #22, Exhibit 5 at p. 4). The confirmation of coverage 

outlined the pilot warranty requirements for both the pilot in command and the pilot second in 

command to be covered under the policy while operating the aircraft (Dkt. #22, Exhibit 5 at p. 4).

The confirmation of coverage expressly required that the pilot in command: “(a) must hold 

a multi-engine and instrument rating; (b) has logged a minimum of 4,000 total hours, of which 

3,000 were in the multi-engine aircraft, of which 1,500 in turbo jet aircraft, of which 250 hours 

were in the make and model insured; and (c) must have successfully completed formal, annual 

ground and flight training the make and model insured, administered by a training facility agreed 

upon by QBE” (Dkt. #22, Exhibit 5 at pp. 4, 47). 

The confirmation of coverage had similar requirements for the pilot second in command: 

“(a) must hold a multi-engine and instrument rating; (b) has logged a minimum of 1,500 hours, of 

which 500 were in multi-engine aircraft, of which 250 in turbo jet aircraft, of which 50 hours were 

in the make and model insured; and (c) must have successfully completed formal, annual ground 

Case 4:23-cv-00690-ALM Document 34 Filed 07/31/24 Page 2 of 11 PageID #: 1011
3

and flight training the make and model insured, administered by a training facility agreed upon by 

QBE” (Dkt. #22, Exhibit 5 at pp. 5, 47).

These pilot requirements were also reflected in the policy’s Pilot Warranty Endorsement 

(Dkt. #22, Exhibit 5 at p. 117). That endorsement indicated that “[i]t is a condition of this insurance 

that when in flight, the aircraft will be operated only by pilot(s)” who are specifically named in the 

policy or meet the above referenced qualifications (Dkt. #22, Exhibit 5 at p. 117).

During the policy period, Xceed did not question any of the policy’s terms or the Pilot 

Warranty Endorsement (Dkt. #22, Exhibit 5 at p. 5). 

Interstate Helicopters, Inc. (“Interstate”), an aircraft management company, contracted 

with Xceed to hangar, maintain, and manage Xceed’s aircraft (Dkt. #22, Exhibit 2 at p. 23). The 

parties dispute whether Interstate was an agent authorized by Xceed to make any changes to the 

aircraft’s insurance policy or apply for any additional coverage. However, Interstate was 

responsible for providing updated pilot experience forms for various other aircraft insurance 

policies, not including the policy for Xceed’s aircraft (Dkt. #22, Exhibit 5 at p. 7).

On January 18, 2023, an Interstate employee sent AssuredPartners an email with the 

subject “Pilot Experience Forms + New AC Info (Booth)” (Dkt. #22, Exhibit 5 at p. 7). The email 

contained a list of eight names, including Timothy Taylor’s, along with ten pilot experience forms 

for pilots of various aircraft (Dkt. #22, Exhibit 5 at p. 7). One of the attached pilot experience forms 

was for Taylor, dated January 15, 2023 (Dkt. #22, Exhibit 5 at p. 8). The email stated the following 

next to Taylor’s name: “new pilot will fly N550DW” (Dkt. #23 at p. 7). Taylor’s pilot experience 

form indicated the make and model of Xceed’s aircraft and that he had logged a total of zero pilot 

hours (Dkt. #23 at p. 8). Taylor’s pilot experience form did not identify Xceed but identified 

Case 4:23-cv-00690-ALM Document 34 Filed 07/31/24 Page 3 of 11 PageID #: 1012
4

Southwest Airlines as Taylor’s employer (Dkt. #22, Exhibit 5 at p. 8). According to 

AssuredPartners, the transmission of Taylor’s incomplete pilot experience form was premature 

because the policy for Xceed’s aircraft was not due for renewal until April 1, 2023 (Dkt. #22, 

Exhibit 5 at p. 8). The parties dispute whether Interstate’s email constituted a request by Xceed 

for AssuredPartners to procure insurance coverage for Taylor. 

In February and March 2023, AssuredPartners emailed Xceed on three separate occasions, 

requesting Xceed to provide updated information on the aircraft for its policy renewal (Dkt. #22, 

Exhibit 5 at p. 8). AssuredPartners’ requests asked for completed pilot experience forms for all 

pilots who would fly the aircraft (Dkt. #22, Exhibit 5 at p. 9). Xceed never responded to these 

requests nor provided AssuredPartners the updated pilot information for the policy renewal 

(Dkt. #22, Exhibit 5 at p. 8–9).

On March 27, 2023, after Xceed had hired Taylor, Taylor and John Borden—the secondin-command pilot—conducted the emergency hard landing that totaled the aircraft (Dkt. #22 at p. 

17; Exhibit 1 at p. 19; Exhibit 2 at p. 117). According to Interstate, because Taylor did not have 

single-pilot authority, Interstate assigned Borden to fly with him as the second-in-command pilot 

that day (Dkt. #22, Exhibit 1 at p. 19; Exhibit 2 at p. 20).

On March 28, 2023, Xceed submitted a claim for coverage under the aircraft’s insurance 

policy for the damages sustained during the emergency landing (Dkt. #22, Exhibit 6 at p. 2). On 

April 27, 2023, QBE denied the claim in writing for two separate, independent reasons (Dkt. #22, 

Exhibit 6 at p. 2). The first reason was that Taylor did not meet a minimum of 250 hours of total 

time in the aircraft’s make and model as required for commanding pilots (Dkt. #22, Exhibit 6 at p. 

Case 4:23-cv-00690-ALM Document 34 Filed 07/31/24 Page 4 of 11 PageID #: 1013
5

2). The second reason was that Borden failed to meet the various flight experience criteria required 

for secondary pilots (Dkt. #22, Exhibit 6 at pp. 2–3). 

On June 29, 2023, Xceed filed suit in state court. On July 28, 2023, this case was removed

based on diversity jurisdiction (Dkt. #1). No party contests the Court’s jurisdiction to hear this 

case. On September 1, 2023, Xceed filed its Amended Complaint (Dkt. #9). On February 23, 2024, 

AssuredPartners filed the pending motion for summary judgment on Xceed’s negligence claim. On 

March 15, 2024, Xceed filed a response (Dkt. #23). On March 22, 2024, AssuredPartners filed a 

reply (Dkt. #24). 

LEGAL STANDARD

The purpose of summary judgment is to isolate and dispose of factually unsupported claims 

or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary judgment is proper 

under Rule 56(a) of the Federal Rules of Civil Procedure “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.” 

FED. R. CIV. P. 56(a). A dispute about a material fact is genuine when “the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby Inc., 477 

U.S. 242, 248 (1986). Substantive law identifies which facts are material. Id. The trial court “must 

resolve all reasonable doubts in favor of the party opposing the motion for summary judgment.” 

Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981).

The party seeking summary judgment bears the initial burden of informing the court of its 

motion and identifying “depositions, documents, electronically stored information, affidavits or 

declarations, stipulations (including those made for purposes of the motion only), admissions, 

interrogatory answers, or other materials” that demonstrate the absence of a genuine issue of 

Case 4:23-cv-00690-ALM Document 34 Filed 07/31/24 Page 5 of 11 PageID #: 1014
6

material fact. FED. R. CIV. P. 56(c)(1)(A); Celotex, 477 U.S. at 323. If the movant bears the burden 

of proof on a claim or defense for which it is moving for summary judgment, it must come forward 

with evidence that establishes “beyond peradventure all of the essential elements of the claim or 

defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant bears 

the burden of proof, the movant may discharge the burden by showing that there is an absence of 

evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers v. Dall. Morning News, 

Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the nonmovant 

must “respond to the motion for summary judgment by setting forth particular facts indicating 

there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248–49). A 

nonmovant must present affirmative evidence to defeat a properly supported motion for summary 

judgment. Anderson, 477 U.S. at 257. Mere denials of material facts, unsworn allegations, or 

arguments and assertions in briefs or legal memoranda will not suffice to carry this burden. Rather, 

the Court requires “significant probative evidence” from the nonmovant to dismiss a request for 

summary judgment. In re Mun. Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982) 

(quoting Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 114 (5th Cir. 1978)). The Court must consider 

all of the evidence but “refrain from making any credibility determinations or weighing the 

evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).

ANALYSIS

AssuredPartners argues that it is entitled to summary judgment on Xceed’s negligence 

claim as a matter of law for several different reasons. First, AssuredPartners argues that it owed no 

duty to procure additional insurance for the aircraft because Xceed never requested additional 

coverage for Taylor. Second, AssuredPartners argues that it did not breach any duty owed because 

Case 4:23-cv-00690-ALM Document 34 Filed 07/31/24 Page 6 of 11 PageID #: 1015
7

it procured the exact insurance policy that Xceed had requested for the aircraft. Lastly, 

AssuredPartners argues that even if AssuredPartners had not breached a duty to procure additional 

insurance covering Taylor, Xceed’s claim for the total loss of the aircraft would have nevertheless

been denied because Borden, the second-in-command pilot, was unqualified under the policy. 

Because the Court finds that AssuredPartners is entitled to summary judgment based solely 

on the issue of causation because of Borden, the Court declines to address the remaining issues of 

duty and breach. 

At the outset of its causation argument, AssuredPartners notes that Xceed does not allege 

in the Amended Complaint (Dkt. #9) a cause of action with respect to the lack of insurance 

coverage for Borden’s operation of the aircraft (Dkt. #22 at p. 32). AssuredPartners argues that 

Borden’s failure to satisfy the pilot conditions of the policy was one of two “separate, independent 

reasons upon which QBE denied the [c]laim,” the other being Taylor’s failure to meet 

qualifications (Dkt. #22 at p. 32). In fact, QBE would not have endorsed Borden as a pilot 

authorized to operate the aircraft under the policy (Dkt. #22 at p. 33, Exhibit 7 at p. 2). Therefore, 

AssuredPartners argues that QBE would have denied Xceed’s claim on the loss regardless of 

whether AssuredPartners breached a duty to procure additional insurance covering Taylor (Dkt. 

#22 at p. 33). In other words, AssuredPartners argues that the alleged breach did not cause Xceed’s 

claimed damages. 

Xceed argues in response that AssuredPartners’ argument fails because the evidence shows 

that Interstate informed AssuredPartners that Borden would be flying the aircraft before the 

accident (Dkt. #23 at p. 20). Even if AssuredPartners was not notified that Borden would fly the 

aircraft, Xceed argues that AssuredPartners failure to obtain coverage for Taylor or to notify Xceed 

Case 4:23-cv-00690-ALM Document 34 Filed 07/31/24 Page 7 of 11 PageID #: 1016
8

that Taylor did not meet QBE’s coverage requirements still caused Xceed’s alleged damages (Dkt. 

#23 at p. 21). Xceed argues that there can be more than one proximate cause of an injury and that 

Texas law requires a showing that Borden’s failure to satisfy the pilot requirements constituted a 

superseding, rather than concurring, cause (Dkt. #23 at p. 21–22). Xceed further argues that under 

Texas law a new and independent cause cannot arise from the negligence of the plaintiff or the 

defendant, thus preventing Xceed’s failure to request insurance for Borden from destroying the 

causal connection between AssuredPartners’ breach and Xceed’s damages (Dkt. #23 at p. 23).

Lastly, Xceed argues that proximate cause is a fact question that should be decided by the factfinder

(Dkt. #23 at p. 24).

Under Texas law, negligence has three essential elements: “1) a legal duty owed by one 

person to another, 2) a breach of that duty, and 3) damages proximately resulting from the breach.” 

Critchfield v. Smith, 151 S.W.3d 225, 230 (Tex. App. 2004). An insurance broker owes the following 

duties to a client when procuring insurance: “1) to use reasonable diligence in attempting to place 

the requested insurance, and 2) to inform the client promptly if unable to do so.” Id. (citing Moore 

v. Whitney-Vaky Ins. Agency, 966 S.W.2d 690, 692 (Tex. App.—San Antonio 1998, no pet.)).

The Court finds that Xceed’s negligence claim fails as a matter of law because Xceed has 

offered no proof that an insurance policy would have covered the loss of the aircraft. See Valero 

Title Inc v. RLI Ins. Co., No. 4:19-CV-443, 2021 WL 5161920, at *2 (S.D. Tex. Mar. 30, 2021) (“To 

establish cause-in-fact for claims based on failure to procure sufficient insurance, a plaintiff must 

offer ‘proof of an insurance policy that would cover the alleged injury.’”) (quoting Metro Allied Ins. 

Agency, Inc. v. Lin, 304 S.W.3d 830, 834 (Tex. 2009)). The pertinent insurance policy that 

AssuredPartners procured for the aircraft does not provide coverage for the loss because not all 

Case 4:23-cv-00690-ALM Document 34 Filed 07/31/24 Page 8 of 11 PageID #: 1017
9

pilots who operated the aircraft at the time—namely, Borden—were qualified as required by the 

policy. Coverage, as reflected in the policy’s confirmation of coverage and Pilot Warranty 

Endorsement, was conditioned upon the aircraft being operated only by pilots who were expressly

named or who met specific qualifications (see Dkt. #22, Exhibit 5 at pp. 4, 117). As the second-incommand pilot, Borden failed to meet most of the requisite criteria such as having flown at least 

50 hours in the make and model of the aircraft (Dkt. #22, Exhibit 6 at pp. 2–3). Thus, even if 

AssuredPartners had managed to procure QBE’s endorsement of Taylor as a qualified pilot in the 

policy, coverage would have still been denied. 

Moreover, there is no evidence that AssuredPartners could have procured some additional 

insurance policy from QBE or another company that would have covered the loss of the aircraft. 

There is also no evidence that, had Xceed been informed of Taylor’s lack of coverage, Xceed would 

not have used Borden as a pilot to operate the aircraft. Though deposition testimony indicates that 

Borden flew with Taylor because Taylor did not have single-pilot authority (Dkt. #22, Exhibit 2 at 

p. 20), there is no evidence that Xceed would have used a pilot with single-pilot authority or would 

not have used Borden upon being notified of Taylor’s lack of coverage. That said, Texas law 

ultimately requires evidence of an insurance policy that would have covered the loss of the aircraft. 

See Metro Allied Ins. Agency, Inc., 304 S.W.3d at 834.

The Court finds Xceed’s contention that AssuredPartners was informed that Borden 

would be flying the aircraft before the accident unavailing. In making such an argument, Xceed 

essentially implies that AssuredPartners also breached a duty to procure insurance covering

Borden. However, “[a] claim which is not raised in the complaint but, rather, is raised only in 

response to a motion for summary judgment is not properly before the court.” Cutrera v. Bd. of 

Case 4:23-cv-00690-ALM Document 34 Filed 07/31/24 Page 9 of 11 PageID #: 1018
10

Supervisors, 429 F.3d 108, 113 (5th Cir. 2005). Xceed does not allege any cause of action in the 

Amended Complaint based on the lack of insurance coverage for Borden (see Dkt. #9 at p. 6). 

Neither does Xceed allege that AssuredPartners was negligent with respect to Borden or that its 

failure to procure insurance coverage for Borden caused the denial of the claim on the total loss. 

Rather, Xceed alleges that AssuredPartners’ negligent actions with respect to Taylor caused Xceed 

to suffer damages. Additionally, the deposition testimony relied upon by Xceed is confusing at best

(see Dkt. #23 at p. 20, ¶ 44). It does not support Xceed’s contention that Interstate informed 

AssuredPartners that Borden would be flying the aircraft before the accident. Instead, the

testimony suggests that Interstate’s corporate representative, James Johnson, did not tell anyone,

besides the person who had recommended Borden, that Borden would be flying the aircraft (see 

Dkt. #23, Exhibit 1 at p. 10). Although earlier in the deposition Johnson suggested that he notified 

AssuredPartners by telephone that Borden “would be authorized or qualified to fly the airplane”

(Dkt. #23, Exhibit 1 at p. 9), he later clarified that he had not given information about Borden 

piloting the aircraft to anyone and had only told someone whom Borden had flown for previously

(Dkt. #23, Exhibit 1 at p. 10). 

Furthermore, the Court is unconvinced that a superseding cause analysis is required where

there is no evidence of cause-in-fact or that “the loss is one insured against in some policy”. See 

Stinson v. Cravens, Dargan & Co., 579 S.W.2d 298, 299–300 (Tex. Civ. App.—Dallas 1979, no writ) 

(holding there must be proof that the loss was covered under an insurance policy). Under Texas 

law, proximate cause requires showing both cause-in-fact and foreseeability. Collective Asset 

Partners LLC v. Schaumburg, 432 S.W.3d 435, 438 (Tex. App.—Dallas 2014, pet. denied). Whether 

a superseding cause extinguishes liability is a question only asked when evaluating foreseeability. 

Case 4:23-cv-00690-ALM Document 34 Filed 07/31/24 Page 10 of 11 PageID #: 1019
11

See Kristensen v. United States, 993 F.3d 363, 368 (5th Cir. 2021) (“‘Generally, a person’s criminal 

conduct is a superseding cause extinguishing liability of negligent actor’ unless the criminal 

conduct was a foreseeable result of that negligence.”) (citing Texas law). Because there is no 

evidence of cause-in-fact, the Court need not conduct a superseding cause analysis.1

CONCLUSION

It is therefore ORDERED that Defendant AssuredPartners Aerospace, LLC d/b/a 

Airsure Limited, LLC’s Motion for Summary Judgment(Dkt. #22)is GRANTED. Plaintiff Xceed 

Management Group, LLC’s sole negligence claim is hereby DISMISSED with prejudice.

IT IS SO ORDERED.

1 The Court notes that Xceed fails to explain why the but-for causation standard should not apply to this case. Though 

Xceed cites caselaw illustrating that there can be more than one proximate cause of an injury and alludes to Borden’s 

unqualified status as being a concurrent cause, Xceed offers no justification for supplanting the but-for causation 

standard in the context of a negligent failure to procure insurance claim. See, e.g., Bostic v. Ga.-Pacific Corp., 439 S.W.3d 

332, 344 (Tex. 2014) (“While but for causation is a core concept in tort law, it yields to the more general substantial 

factor causation in situations where proof of but for causation is not practically possible or such proof otherwise should 

not be required.”). In this kind of case, it is beyond debate that Texas law requires proof that an insurance policy would 

have covered the loss, which is dispositively absent here. See Metro Allied Ins. Agency, Inc., 304 S.W.3d at 834. 

Case 4:23-cv-00690-ALM Document 34 Filed 07/31/24 Page 11 of 11 PageID #: 1020