Barlow v. Allstate Texas Lloyds , 214 F. App'x 435 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 18, 2007
Charles R. Fulbruge III
Clerk
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
*
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this opinion should not be published and is not precedent except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.
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).
2
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 summary-
judgment motion. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d
489, 496 (5th Cir. 1996).
3
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
4