     Case: 12-30031     Document: 00511896894         Page: 1     Date Filed: 06/22/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           June 22, 2012

                                     No. 12-30031                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



CHUCK STYRON

                                                  Plaintiff-Appellant
v.

STATE FARM FIRE & CASUALTY COMPANY

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:10-CV-1729


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Chuck Styron sued State Farm Fire and Casualty
Company (“State Farm”) for its failure to pay his homeowner’s claim for damages
to his home’s roof and interior, incurred during Hurricane Ike. The district court
granted summary judgment in favor of State Farm. Styron appeals the
judgment. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 12-30031

                      I. FACTS AND PROCEEDINGS
      Styron owns a residence located at 321 Peake Street in Lake Charles,
Louisiana. This property was insured by State Farm. On September 13, 2008,
Hurricane Ike made landfall near Galveston, Texas, which is located
approximately 120 miles to the southeast of Lake Charles. Hurricane Ike caused
significant winds and flooding in Texas and Louisiana. On March 16, 2009, after
several days of rain, Styron reported to his State Farm agent that a roof leak
caused damage to the interior of his home. The following day, a State Farm
claims representative, William Cain, contacted Styron, who reported that his
roof was missing several shingles and that the ceilings of several rooms in his
home had begun to leak. On March 19, 2009, Cain inspected the home and found
that several shingles were missing and would require repair. During this
inspection, Styron told Cain that after four days of rain during the week of
March 9-14, water leaked in and damaged the ceilings in his TV room, dining
room, guest bedroom, and kitchen. Cain found that several slate tiles on the roof
had come off their wiring. After inspecting Styron’s home, Cain determined that
the house had not suffered hurricane damage and moved the claim to “zone” for
handling as a non-hurricane claim.
      The case was reassigned to another claims representative, Stephen
Laughlin, who conducted a second inspection on March 20, 2009. Laughlin
identified four loose asbestos shingles on the roof and four damaged ridge caps.
Laughlin determined that most of the interior damage was the result of long-
term damage and caused by age, settlement, or poor workmanship. Laughlin
also found fresh water spots that were not located near the long-term damage.
Laughlin determined that the loose shingles and ridge caps could be attributed
to the wind, and prepared an estimate for the repair of the four shingles, four
ridge caps, and for the repair of the fresh water spots. State Farm issued



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payment of $499.80, which covered the cost of the repairs, less depreciation and
the policy deductible.
      Styron hired Rhino Rhenovators to provide an estimate to repair the
damage to his home. Rhino Rhenovators sent its estimate— $9,385.00 to repair
Styron’s damaged roof, ceiling, and floors—to State Farm. State Farm then
conducted another inspection on June 12, 2009, accompanied by Rhino
Rhenovators. Rhino suggested that wind had lifted the house’s flat roofing,
which allowed water to enter the house. However, the State Farm agent pointed
out that the flat roofing was still nailed down and that the nails could not have
lifted and then driven themselves back in. According to the State Farm agent,
the Rhino Rhenovators contractor “understood.” State Farm again determined
that it did not owe Styron any additional payment.
      State Farm then engaged Poole Engineering to provide a professional
determination as to the cause of the damage. Poole conducted its inspection on
June 24, 2009 and issued its report on August 25, 2009. The report identified
points of damage in the house and on the roof, and ultimately concluded that the
water stains occurred over a long period of time on a repeated basis, and were
caused by insufficient insulation of ducts and air conditioning grills, and by
insufficient insulation of the spaces between the ceiling and the second floor and
between the ceiling and the attic. Poole also concluded that the floor buckling
was caused by exposure to excessive moisture that came from under the
residence, and that the moisture barrier breached because of normal long-term
movement of the finished floor relative to the subfloor; normal aging of the
roofing paper used for the moisture barrier; and excessive downward settlement
of the sub-structure, which caused the roofing paper moisture barrier to stretch,
tear, or separate. After receiving the report, State Farm again determined that
Styron was not due any additional payments.



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      In July 2010, Cal Chambers, a consultant hired by Styron, inspected
Styron’s house. He submitted a damage assessment report, estimating the
damages at $204,717.78. Chambers’ report did not identify any cause of the
estimated damages. State Farm also engaged Ribbeck Construction Corporation
to conduct an independent evaluation to determine the cause of the damage to
Styron’s home. After an initial visit, Ribbeck conducted three separate
inspections of the house. He concluded that there was “no evidence of roof
damage that would be caused by severe weather . . . . The roofs, both asbestos
shingle and built up roofs and all associated flashings are past their life cycle
and are in need of replacement.”
      Styron filed suit against State Farm on September 14, 2009, claiming that
his roof needed to be replaced as a result of Hurricane Ike, and that water
invading the home through roof leaks caused interior damage that required
repair. He also claimed that pursuant to La. Rev. Stat. § 22:1220 and La. Rev.
Stat. § 22:658, State Farm breached its good faith duty in failing to timely and
adequately adjust Styron’s claim. Styron later filed a supplemental and amended
complaint, asserting the same claims and in addition claiming that State Farm’s
inspections further damaged his roof. State Farm filed a motion for summary
judgment, which the district court granted. Styron now appeals.
                               II. DISCUSSION
                            A. Standard of Review
      We review a district court’s grant of summary judgment de novo, applying
the same standard as the district court. Addicks Servs., Inc. v. GGP-Bridgeland,
LP, 596 F.3d 286, 293 (5th Cir. 2010). Summary judgment is appropriate if the
record shows that “there is no genuine dispute as to any material fact.” Fed. R.
Civ. P. 56(a). A fact is material if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
reviewing a grant of summary judgment, we examine the evidence in the light

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most favorable to the nonmoving party. Addicks Servs., Inc., 596 F.3d at 293.
The moving party bears the burden of demonstrating that summary judgment
is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
nonmoving party would bear the burden of proof at trial, the moving party may
meet its burden by showing “that there is an absence of evidence to support the
nonmoving party’s case.” Celotex, 477 U.S. at 325. Once the moving party has
made this showing, the burden shifts back to the nonmoving party “to go beyond
the pleadings and by her own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that
there is a genuine issue for trial.’” Id. at 324; see also Galindo v. Precision Am.
Corp., 754 F.2d 1212, 1216 (5th Cir. 1985). While “any reasonable inferences are
to be drawn in favor of [the nonmoving] party,” Gowesky v. Singing River Hosp.
Sys., 321 F.3d 503, 507 (5th Cir. 2003), conclusory allegations and
unsubstantiated allegations alone are insufficient to defeat summary judgment.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
                              B. Insurance Claim
      We conclude that summary judgment was appropriate. Styron’s
homeowner policy provides coverage for “accidental direct physical loss to the
property described in Coverage A, except as provided in SECTION I–LOSSES
NOT INSURED.” This policy provided coverage for wind damage, but did not
provide coverage for poor workmanship; wear, tear, deterioration, or latent
defect; settling, cracking, or expansion of walls, roofs, or ceilings; or leakage of
water from air conditioning systems, household appliances, or plumbing. “Under
Louisiana law, the insured must prove that the claim asserted is covered by his
policy. Once he has done this, the insurer has the burden of demonstrating that
the damage at issue is excluded from coverage.” Dickerson v. Lexington Ins. Co.,
556 F.3d 290, 295 (5th Cir. 2009). To warrant summary judgment, State Farm
must demonstrate that Styron would not be able to meet this initial burden of

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proof at trial. Viewing the evidence in light most favorable to Styron, we
conclude that there was no evidence that the damage to Styron’s roof and
interior was caused by wind and thus covered by his policy.
      Styron presented Rhino Rhenovators’ repair estimate and Cal Chambers’
loss estimate. Neither estimate provides an explanation as to the cause of the
damage. When a Rhino Rhenovators’ contractor inspected the home with a State
Farm agent, the contractor theorized that wind lifted the flat roofing of the
house and allowed rain in, he was told that nails were still attached to the
decking of the roof and that the roof could not have been lifted by wind and then
nailed itself back in. In his deposition, Cal Chambers testified that the source of
the water damage inside the house appeared to be from the roof, but that he
could not identify the cause of the damage to the roof. Styron testified that the
problems with his roof got worse after Hurricane Ike. He presented no other
evidence as to the cause of the damage to his roof and interior.
      There is significant evidence that the only damage that might have been
caused by wind was the four loose asbestos shingles, four damaged ridge caps,
and a fresh interior water spot, for which State Farm has already rendered
payment. Two State Farm claims representatives, Cain and Laughlin, inspected
the home on separate occasions, and neither found Hurricane-related damage,
other than the four loose shingles, four ridge caps, and the fresh interior water
spot. Laughlin then inspected the property again, with a Rhino Rhenovators
contractor, and determined that the repairs estimated by Rhino Rhenovators
were for damage caused by wear and tear, lack of maintenance, or workmanship
issues. State Farm also engaged Poole Engineering for the purpose of
determining the cause of the damage to the home. Poole concluded that there
was no wind-caused damage to the residence, and attributed the damage to
issues relating to age-related deterioration, condensation from the sprinkler and
air conditioning systems, and workmanship issues. State Farm then engaged

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Edward Ribbeck to conduct an independent inspection of the property. Ribbeck
concluded that the damage was not caused by severe weather, and instead
determined that the roof was past its life cycle and needed replacement. He also
found that many of the water stains inside the house were not related to the roof
damage. Ribbeck and Poole are the only expert opinions in the record regarding
causation; Chambers did not testify as an expert and he did not testify as to
causation.
      The only evidence in the record supports the conclusion that the damage
to the house—other than the damage for which State Farm has already issued
payment—was not caused by wind and was not covered by Styron’s insurance
policy. Therefore, State Farm was entitled to summary judgment on Styron’s
insurance claims.
              C. Claim for Damages Caused by Home Inspection
      State Farm also was entitled to summary judgment on Styron’s claim that
the damage to his residence was aggravated when a State Farm inspector
walked on his roof during an investigation. Styron testified that he noticed more
leaking after State Farm conducted its roof inspection and “assume[d]” that
further damage was caused by the inspector walking across the roof. There is
no other evidence in the record to support this claim. “[T]estimony based on
conjecture alone is insufficient to raise an issue to defeat summary judgment.”
Lechuga v. Southern Pac. Transp. Co., 949 F.2d 790, 798 (5th Cir. 1992). Viewing
the evidence in the light most favorable to Styron, we conclude that there is no
genuine issue as to whether the damage to the roof was exacerbated by the
inspection.
                      D. Breach of Good Faith Claim
      Because Styron was not entitled to additional insurance payments for the
damage to his home’s roof and interior, he cannot establish that he is entitled to



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                                     No. 12-30031

damages under La. Rev. Stat. § 22:1973.1 The statute provides that any insurer
who breaches his “duty of good faith and fair dealing” or fails to “adjust claims
fairly and promptly [or] to make a reasonable effort to settle claims . . . . shall be
liable for any damages sustained as a result of the breach.” La. Rev. Stat.
§ 22:1973. Styron claims that State Farm breached its good faith duty to timely
and adequately adjust his claim. State Farm conducted its first inspection of the
house three days after Styron filed his insurance claim, and a second inspection
the following day. State Farm provided Styron with payment for the covered
damages, along with a partial denial and covered damages letter, less than one
month after Styron first filed his claim. There is no evidence that State Farm
breached its duty of good faith with regard to the covered damages. Because we
conclude that there is no genuine issue of material fact for trial as to whether
State Farm owes additional payment for the remaining damages, we further
conclude that State Farm cannot be held liable for penalties and attorney fees
under this statute.
                                 III. CONCLUSION
       We AFFIRM the district court’s grant of summary judgment.




      1
         Styron’s Petition for Damages claims that he is entitled to damages under La. Rev.
Stat. § 22:1220, which is the former citation of La. Rev. Stat. § 22:1973.

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