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Electronically Submitted
11/3/2023 4:08 PM
Hidalgo County Clerk
Accepted by: Sarah Reyes
CAUSE NO. CL-23-0011-G
RICARDO CORDOVA § IN THE COUNTY COURT
Plaintiff, §
§
v. § AT LAW NO. 7 OF
§
STATE FARM LLOYDS, §
Defendant. § HIDALGO COUNTY, TEXAS
DEFENDANT STATE FARM LLOYDS’ REPLY IN SUPPORT OF
NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF THIS COURT:
NOW COMES STATE FARM LLOYDS (“State Farm”), Defendant in the above styled and
numbered cause, and files this Reply in Support of its No-Evidence Motion for Summary Judgment,
and in support thereof states as follows:
1. In his Response, Plaintiff does not contest that he has had adequate time for discovery.
Plaintiff also does not contest State Farm’s arguments as to his Section 542.055 claim, which must
therefore be dismissed.
2. On all other claims, Plaintiff asserts he has sufficient evidence of each element contested in
State Farm’s motion. The question for this Court is whether Plaintiff has produced a scintilla of
evidence to raise a genuine issue of material fact. “Less than a scintilla of evidence exists when the
evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. More than a
scintilla exists when the evidence rises to a level that would enable reasonable and fair-minded people
to differ in their conclusions.” Garcia v. State Farm Lloyds, 287 S.W.3d 809, 816 (Tex. App.—Corpus
Christi–Edinburg 2009, pet. denied) (internal quotations and citations omitted).
3. Notably, the only evidence Plaintiff provided with his Response was his deposition
testimony, his wife’s deposition testimony, and State Farm’s July 15, 2022 letter and estimate following
its second inspection of the property. Cf. Tex. R. Civ. P. 166a(i) (“The court must grant the motion
unless the respondent produces summary judgment evidence raising a genuine issue of material fact.”).
State Farm’s Reply to No Evidence Motion for Summary Judgment
1
Electronically Submitted
11/3/2023 4:08 PM
Hidalgo County Clerk
Accepted by: Sarah Reyes
State Farm asserts Plaintiff has not met his burden on any of the challenged elements, and specifically
highlights several elements for the Court’s consideration.
4. On breach of contract, State Farm asserts Plaintiff has no evidence of damages. In his
Response, Plaintiff provided no evidence to support this element. Instead, he makes the conclusory
statement that damages are “clear” because State Farm did not pay “for a full roof replacement.” Yet
Plaintiff has provided no evidence that the July 25, 2020 storm caused damages to the roof that would
require a full roof replacement rather than the replacement of one roof slope and repair of additional
wind damage as estimated by State Farm. See Plaintiff’s Response at Cordova.0039 to .0060.
Moreover, he has provided no evidence of the amount of actual damages sustained due to State Farm’s
alleged failure to pay for a full roof replacement.
5. Similarly, on the “breach” element, Plaintiff cited deposition testimony by Plaintiff and his
spouse that State Farm did not pay for a full roof replacement, but he provides no evidence as to why
that claim decision was a breach of contract. Plaintiff has failed to meet his burden under Rule 166a(i)
because he has provided less than a scintilla of evidence on those elements. Per the language of the
Rule, State Farm’s motion on the breach of contract claim must be granted due to the lack of sufficient
evidence.
6. On bad faith, Plaintiff provided no evidence in his Response concerning the third element:
independent injury. Plaintiff argues that State Farm made some misrepresentation to him when he
purchased his insurance policy, but he has offered no evidence as to what was said, who said it, when,
or by what means. Vague and unsubstantiated argument is not evidence. But even if Plaintiff had
presented some evidence of a representation by State Farm when he purchased his policy that it would
be fair when handling claims, such statements are “more in the nature of non-actionable puffery than
actionable representations of specific material fact.” Griggs v. State Farm Lloyds, 181 F.3d 694, 701 (5th
Cir. 1999). Thus even if this Court takes Plaintiff’s argument as true (and considers it to be evidence),
State Farm’s No Evidence Motion for Summary Judgment 2
Electronically Submitted
11/3/2023 4:08 PM
Hidalgo County Clerk
Accepted by: Sarah Reyes
it still cannot support a bad faith claim.
7. Plaintiff’s argument on the second element of a bad faith claim—whether State Farm had no
reasonable basis to deny the claim—is that the element is inapplicable here because State Farm made
a payment on the claim and therefore did not deny it in full. Plaintiff offers no caselaw supporting
his unique interpretation of the elements of a bad faith claim. Even a cursory review of applicable
caselaw shows that “reasonable basis to deny the claim” is an essential element on bad faith even
where the claim was partially rather than fully denied, as it was here. See, e.g., Viles v. Sec. Nat. Ins. Co.,
788 S.W.2d 566, 567 (Tex. 1990) (discussing bad faith elements where “the bulk of their claim was
denied.”); State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 447 (Tex. 1997) (discussing reasonable basis
element on claim where insurer denied “most of the coverage sought”); Cortez v. Liberty Mut. Fire Ins.
Co., 885 S.W.2d 466, 468 (Tex. App.—El Paso 1994, writ denied) (discussing reasonable basis element
on end date of payments to insured, where insurer “paid him weekly compensation benefits from
September 1989 to November 1991.”).
8. Stated differently, does Plaintiff have any evidence to support his allegation that State Farm
had no reasonable basis to deny Plaintiff’s claim for a full roof replacement? The answer to that
question must be “no.” Plaintiff did not even attempt to offer evidence on this element. He has failed
to meet his burden, therefore his bad faith claims must be dismissed.
9. Finally, on his prompt payment claim under Section 542.058 of the Texas Insurance Code,
Plaintiff argues that he “submitted a timely demand letter to State Farm including a detailed summary
of the items requiring repair as well as photos of the damage to the property.” Plaintiff’s Response at
5. But he failed to produce such evidence, therefore he has failed to meet his burden under Rule
166a(i). (“The court must grant the motion unless the respondent produces summary judgment
evidence raising a genuine issue of material fact.”). Plaintiff has provided no evidence in support of
his Section 542.058 claim, therefore it must be dismissed.
State Farm’s Reply to No Evidence Motion for Summary Judgment
3
Electronically Submitted
11/3/2023 4:08 PM
Hidalgo County Clerk
Accepted by: Sarah Reyes
PRAYER
State Farm met its burden in its No-Evidence Motion because it “state[d] the elements as to
which there is no evidence.” Tex. R. Civ. P. 166a(i). Plaintiff failed to “produce[] summary judgment
evidence raising a genuine issue of material fact” on many of the challenged elements, and the evidence
he provided on some elements falls below the level to be considered “a scintilla of evidence.”
WHEREFORE, PREMISES CONSIDERED, Defendant State Farm Lloyds respectfully
requests that this Court enter summary judgment on all of Plaintiff’s claims. State Farm also asks this
Court for such other and further relief to which it may be justly entitled.
Respectfully submitted,
RAMÓN WORTHINGTON
NICOLAS & CANTU, PLLC
1506 Lone Star Way, Suite 5
Edinburg, Texas 78539
Telephone: 956-294-4800
Facsimile: 956-928-9564
/s/ Stephen W. Bosky
Elizabeth Sandoval Cantu
State Bar No. 24013455
ecantu@ramonworthington.com
Stephen W. Bosky
State Bar No. 24087190
sbosky@ramonworthington.com
Electronic Service to:
efile@ramonworthington.com
ATTORNEYS FOR DEFENDANT
State Farm’s No Evidence Motion for Summary Judgment 4
Electronically Submitted
11/3/2023 4:08 PM
Hidalgo County Clerk
Accepted by: Sarah Reyes
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on this the 3rd day of November 2023, a true and correct copy
of the foregoing document was served via the electronic filing system to the following:
Omar Ochoa
OMAR OCHOA LAW FIRM PC
121 N. 10 th Street
McAllen, Texas 78501
T: (956) 630-3266
oochoa@omarochoalaw.com
and
Victor Rodriguez Jr.
VICTOR RODRIGUEZ LAW FIRM PLLC
121 N. 10 th Street
McAllen, Texas 78501
T: (956) 630-3266
victor@vrodriguezlaw.com
ATTORNEYS FOR PLAINTIFF
/s/ Stephen W. Bosky
Stephen W. Bosky
State Farm’s Reply to No Evidence Motion for Summary Judgment
5
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
RW Firm on behalf of Stephen Bosky
Bar No. 24087190
efile@ramonworthington.com
Envelope ID: 81300800
Filing Code Description: Response
Filing Description: Defendant's Reply in Support of No-Evidence MSJ
Status as of 11/6/2023 8:32 AM CST
Associated Case Party: Ricardo Cordova
Name BarNumber Email TimestampSubmitted Status
Victor Rodriguez Victor@vrodriguezlaw.com 11/3/2023 4:08:49 PM SENT
Omar Ochoa oochoa@omarochoalaw.com 11/3/2023 4:08:49 PM SENT
Associated Case Party: STATE FARM LLOYDS
Name BarNumber Email TimestampSubmitted Status
Elizabeth Sandoval Cantu ecantu@ramonworthington.com 11/3/2023 4:08:49 PM SENT
Stephen W.Bosky sbosky@ramonworthington.com 11/3/2023 4:08:49 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Robert Ramos rramos@omarochoalaw.com 11/3/2023 4:08:49 PM SENT
Renee Rosillo rrosillo@omarochoalaw.com 11/3/2023 4:08:49 PM SENT
Isabel Moreno imoreno@omarochoalaw.com 11/3/2023 4:08:49 PM SENT
Preview
Electronically Submitted 11/3/2023 4:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes CAUSE NO. CL-23-0011-G RICARDO CORDOVA § IN THE COUNTY COURT Plaintiff, § § v. § AT LAW NO. 7 OF § STATE FARM LLOYDS, § Defendant. § HIDALGO COUNTY, TEXAS DEFENDANT STATE FARM LLOYDS’ REPLY IN SUPPORT OF NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF THIS COURT: NOW COMES STATE FARM LLOYDS (“State Farm”), Defendant in the above styled and numbered cause, and files this Reply in Support of its No-Evidence Motion for Summary Judgment, and in support thereof states as follows: 1. In his Response, Plaintiff does not contest that he has had adequate time for discovery. Plaintiff also does not contest State Farm’s arguments as to his Section 542.055 claim, which must therefore be dismissed. 2. On all other claims, Plaintiff asserts he has sufficient evidence of each element contested in State Farm’s motion. The question for this Court is whether Plaintiff has produced a scintilla of evidence to raise a genuine issue of material fact. “Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. More than a scintilla exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Garcia v. State Farm Lloyds, 287 S.W.3d 809, 816 (Tex. App.—Corpus Christi–Edinburg 2009, pet. denied) (internal quotations and citations omitted). 3. Notably, the only evidence Plaintiff provided with his Response was his deposition testimony, his wife’s deposition testimony, and State Farm’s July 15, 2022 letter and estimate following its second inspection of the property. Cf. Tex. R. Civ. P. 166a(i) (“The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.”). State Farm’s Reply to No Evidence Motion for Summary Judgment 1 Electronically Submitted 11/3/2023 4:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes State Farm asserts Plaintiff has not met his burden on any of the challenged elements, and specifically highlights several elements for the Court’s consideration. 4. On breach of contract, State Farm asserts Plaintiff has no evidence of damages. In his Response, Plaintiff provided no evidence to support this element. Instead, he makes the conclusory statement that damages are “clear” because State Farm did not pay “for a full roof replacement.” Yet Plaintiff has provided no evidence that the July 25, 2020 storm caused damages to the roof that would require a full roof replacement rather than the replacement of one roof slope and repair of additional wind damage as estimated by State Farm. See Plaintiff’s Response at Cordova.0039 to .0060. Moreover, he has provided no evidence of the amount of actual damages sustained due to State Farm’s alleged failure to pay for a full roof replacement. 5. Similarly, on the “breach” element, Plaintiff cited deposition testimony by Plaintiff and his spouse that State Farm did not pay for a full roof replacement, but he provides no evidence as to why that claim decision was a breach of contract. Plaintiff has failed to meet his burden under Rule 166a(i) because he has provided less than a scintilla of evidence on those elements. Per the language of the Rule, State Farm’s motion on the breach of contract claim must be granted due to the lack of sufficient evidence. 6. On bad faith, Plaintiff provided no evidence in his Response concerning the third element: independent injury. Plaintiff argues that State Farm made some misrepresentation to him when he purchased his insurance policy, but he has offered no evidence as to what was said, who said it, when, or by what means. Vague and unsubstantiated argument is not evidence. But even if Plaintiff had presented some evidence of a representation by State Farm when he purchased his policy that it would be fair when handling claims, such statements are “more in the nature of non-actionable puffery than actionable representations of specific material fact.” Griggs v. State Farm Lloyds, 181 F.3d 694, 701 (5th Cir. 1999). Thus even if this Court takes Plaintiff’s argument as true (and considers it to be evidence), State Farm’s No Evidence Motion for Summary Judgment 2 Electronically Submitted 11/3/2023 4:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes it still cannot support a bad faith claim. 7. Plaintiff’s argument on the second element of a bad faith claim—whether State Farm had no reasonable basis to deny the claim—is that the element is inapplicable here because State Farm made a payment on the claim and therefore did not deny it in full. Plaintiff offers no caselaw supporting his unique interpretation of the elements of a bad faith claim. Even a cursory review of applicable caselaw shows that “reasonable basis to deny the claim” is an essential element on bad faith even where the claim was partially rather than fully denied, as it was here. See, e.g., Viles v. Sec. Nat. Ins. Co., 788 S.W.2d 566, 567 (Tex. 1990) (discussing bad faith elements where “the bulk of their claim was denied.”); State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 447 (Tex. 1997) (discussing reasonable basis element on claim where insurer denied “most of the coverage sought”); Cortez v. Liberty Mut. Fire Ins. Co., 885 S.W.2d 466, 468 (Tex. App.—El Paso 1994, writ denied) (discussing reasonable basis element on end date of payments to insured, where insurer “paid him weekly compensation benefits from September 1989 to November 1991.”). 8. Stated differently, does Plaintiff have any evidence to support his allegation that State Farm had no reasonable basis to deny Plaintiff’s claim for a full roof replacement? The answer to that question must be “no.” Plaintiff did not even attempt to offer evidence on this element. He has failed to meet his burden, therefore his bad faith claims must be dismissed. 9. Finally, on his prompt payment claim under Section 542.058 of the Texas Insurance Code, Plaintiff argues that he “submitted a timely demand letter to State Farm including a detailed summary of the items requiring repair as well as photos of the damage to the property.” Plaintiff’s Response at 5. But he failed to produce such evidence, therefore he has failed to meet his burden under Rule 166a(i). (“The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.”). Plaintiff has provided no evidence in support of his Section 542.058 claim, therefore it must be dismissed. State Farm’s Reply to No Evidence Motion for Summary Judgment 3 Electronically Submitted 11/3/2023 4:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes PRAYER State Farm met its burden in its No-Evidence Motion because it “state[d] the elements as to which there is no evidence.” Tex. R. Civ. P. 166a(i). Plaintiff failed to “produce[] summary judgment evidence raising a genuine issue of material fact” on many of the challenged elements, and the evidence he provided on some elements falls below the level to be considered “a scintilla of evidence.” WHEREFORE, PREMISES CONSIDERED, Defendant State Farm Lloyds respectfully requests that this Court enter summary judgment on all of Plaintiff’s claims. State Farm also asks this Court for such other and further relief to which it may be justly entitled. Respectfully submitted, RAMÓN WORTHINGTON NICOLAS & CANTU, PLLC 1506 Lone Star Way, Suite 5 Edinburg, Texas 78539 Telephone: 956-294-4800 Facsimile: 956-928-9564 /s/ Stephen W. Bosky Elizabeth Sandoval Cantu State Bar No. 24013455 ecantu@ramonworthington.com Stephen W. Bosky State Bar No. 24087190 sbosky@ramonworthington.com Electronic Service to: efile@ramonworthington.com ATTORNEYS FOR DEFENDANT State Farm’s No Evidence Motion for Summary Judgment 4 Electronically Submitted 11/3/2023 4:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes CERTIFICATE OF SERVICE I HEREBY CERTIFY that, on this the 3rd day of November 2023, a true and correct copy of the foregoing document was served via the electronic filing system to the following: Omar Ochoa OMAR OCHOA LAW FIRM PC 121 N. 10 th Street McAllen, Texas 78501 T: (956) 630-3266 oochoa@omarochoalaw.com and Victor Rodriguez Jr. VICTOR RODRIGUEZ LAW FIRM PLLC 121 N. 10 th Street McAllen, Texas 78501 T: (956) 630-3266 victor@vrodriguezlaw.com ATTORNEYS FOR PLAINTIFF /s/ Stephen W. Bosky Stephen W. Bosky State Farm’s Reply to No Evidence Motion for Summary Judgment 5 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. RW Firm on behalf of Stephen Bosky Bar No. 24087190 efile@ramonworthington.com Envelope ID: 81300800 Filing Code Description: Response Filing Description: Defendant's Reply in Support of No-Evidence MSJ Status as of 11/6/2023 8:32 AM CST Associated Case Party: Ricardo Cordova Name BarNumber Email TimestampSubmitted Status Victor Rodriguez Victor@vrodriguezlaw.com 11/3/2023 4:08:49 PM SENT Omar Ochoa oochoa@omarochoalaw.com 11/3/2023 4:08:49 PM SENT Associated Case Party: STATE FARM LLOYDS Name BarNumber Email TimestampSubmitted Status Elizabeth Sandoval Cantu ecantu@ramonworthington.com 11/3/2023 4:08:49 PM SENT Stephen W.Bosky sbosky@ramonworthington.com 11/3/2023 4:08:49 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Robert Ramos rramos@omarochoalaw.com 11/3/2023 4:08:49 PM SENT Renee Rosillo rrosillo@omarochoalaw.com 11/3/2023 4:08:49 PM SENT Isabel Moreno imoreno@omarochoalaw.com 11/3/2023 4:08:49 PM SENT