     Case: 13-10400      Document: 00512455810         Page: 1    Date Filed: 11/29/2013




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

                                                                                    FILED
                                    No. 13-10400                            November 29, 2013
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
CONNIE WILLOUGHBY,

                                                  Plaintiff - Appellant,

v.

METROPOLITAN LLOYDS INSURANCE COMPANY OF TEXAS;
METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY,
doing business as Metlife Auto & Home,

                                                  Defendants - Appellees.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12–CV–861


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       This appeal involves the timeliness of a homeowner’s lawsuit against her
insurer. The district court determined the lawsuit was untimely and granted
summary judgment. We AFFIRM.
                                             I.
       Plaintiff–Appellant Connie Willoughby contracted with Defendant–


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 13-10400       Document: 00512455810          Page: 2     Date Filed: 11/29/2013



                                       No. 13-10400
Appellee Metropolitan Lloyds Insurance Company of Texas (“Metropolitan”)
for a homeowner’s insurance policy.                 The policy included a shortened
limitations period, stating that “[a]ction brought against [Metropolitan] must
be started within two years and one day after the cause of action accrues.” 1
       In November 2007, Willoughby reported to Metropolitan that a fire had
damaged her home in Blooming Grove, Texas. Metropolitan subsequently
investigated Willoughby’s insurance claim and examined her under oath
regarding the circumstances of the fire. During the course of this examination,
Willoughby provided her mailing address and stated that her and her
husband’s attorney was Paul Lewallen.
       Nine months later, in a letter dated September 25, 2008, Metropolitan
denied Willoughby’s claim, explaining that it believed “the fire was set by or at
the direction of one or more of the named insureds.”                    The letter further
explained that Willoughby had not complied with her insurance policy’s
reporting obligations, one of which required her to provide a signed “proof of
loss” statement. Metropolitan sent this letter to the mailing address provided
by Willoughby. Willoughby denies ever receiving it.
       Less than a month later, in November 2008, attorney Lewallen sent a
letter on his firm’s letterhead to Metropolitan. The letter stated that it served
“as a written notice” that Lewallen represented Willoughby and her husband
with regard to the insurance claim. The letter continued: “My clients are
wanting to settle this matter in an amicable fashion; however, in the event it
continues unresolved, I will take all steps necessary to protect my clients’
interest.” Lewallen attached to the letter a “proof of loss” statement and an


       1In Texas, “[i]nsurance provisions that limit the time within which to file a suit to two
years and a day are valid and binding.” Jett v. Truck Ins. Exch., 952 S.W.2d 108, 109 (Tex.
App.—Texarkana 1997, no writ); see also, e.g., Watson v. Allstate Texas Lloyd’s, 224 F. App’x
335, 339 (5th Cir. 2007) (unpublished but persuasive) (enforcing an identical limitations
provision).
                                               2
    Case: 13-10400    Document: 00512455810     Page: 3   Date Filed: 11/29/2013



                                 No. 13-10400
IRS Tax Information Authorization form, both of which bore Willoughby’s
signature.   On December 15, 2008, counsel for Metropolitan responded to
Lewallen’s letter by stating that Willoughby’s insurance claim was denied as
set forth in the Metropolitan’s original September 25, 2008, letter.
      More than three years later, in January 2012, Willoughby sued
Metropolitan and Metropolitan Property and Casualty Insurance Company
(collectively, “Metropolitan”) in Texas state court for breach of contract,
alleging that Metropolitan wrongfully denied coverage under her homeowner’s
insurance policy. Metropolitan subsequently removed the case to federal court
on diversity grounds and filed a motion for summary judgment. Metropolitan
argued that the parties’ contractually agreed-upon limitations period of two
years and one day barred Willoughby’s claim. In response, Willoughby argued,
as she does now, that the limitations period in her insurance policy was not
triggered because she never received notice of the denial of coverage.
      The district court granted Metropolitan’s motion for summary judgment.
The district court reasoned that even assuming Willoughby did not have actual
notice of her claim’s denial, Lewallen’s receipt of the denial letter as her
attorney was imputed to her.         Thus, according to the district court,
Willoughby’s cause of action accrued at the latest on December 15, 2008, when
Lewallen received a copy of the denial letter, and was barred when Willoughby
did not file suit until January 17, 2012, which was in excess of the agreed-upon
limitations period. Willoughby timely appealed.
                                      II.
      Texas law governs this diversity case. See, e.g., Bayle v. Allstate Ins.
Co., 615 F.3d 350, 355 (5th Cir. 2010) (“When, as here, jurisdiction is based on
diversity, we apply the forum state’s substantive law.”). We review a grant of
summary judgment de novo, applying the same standard as the district court.
Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 486 (5th Cir. 2013).
                                       3
     Case: 13-10400      Document: 00512455810        Page: 4    Date Filed: 11/29/2013



                                     No. 13-10400
Summary judgment is proper “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]ll justifiable inferences will be drawn
in the non-movant’s favor.” Envtl. Conservation Org. v. City of Dall., 529 F.3d
519, 524 (5th Cir. 2008).        However, “the non-movant still cannot defeat
summary       judgment      with     speculation,      improbable      inferences,     or
unsubstantiated assertions.” Likens v. Hartford Life and Accident Ins. Co., 688
F.3d 197, 202 (5th Cir. 2012).
                                           III.
      On appeal, Willoughby does not dispute that she agreed to the
limitations period in her contract. Instead, she argues that summary judgment
was improper because a genuine dispute remains as to whether the limitations
period ever started.      She argues that the limitations period did not start
because she never received the September 25, 2008, denial letter and did not
otherwise receive notice that Metropolitan denied her insurance claim. 2 We
disagree.
      In Texas, “[l]imitations begin to run on an insurance policy when the loss
is denied.” Pena v. State Farm Lloyds, 980 S.W.2d 949, 953 (Tex. App.—Corpus
Christi 1998, no writ); see also, e.g., Stewart Title Guar. Co. v. Hadnot, 101
S.W.3d 642, 645 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (“Generally,
a cause of action for breach of an insurance contract accrues on the date
coverage is denied.”). This rule is consistent with the more general proposition
that “an action for damages for breach of a written contract accrues when the
breach occurs or when the claimant has notice of facts sufficient to place him
on notice of the breach.” S. Plains Switching, Ltd. Co. v. BNSF Ry. Co., 255


      2  Willoughby appears to argue that Metropolitan waived its right to enforce the
limitations provision because it did not provide any warning that it would deny her claim.
We find no support for this argument in applicable Texas law.
                                            4
     Case: 13-10400       Document: 00512455810         Page: 5     Date Filed: 11/29/2013



                                       No. 13-10400
S.W.3d 690, 707 (Tex. App.—Amarillo 2008, pet. denied); see also Via Net v.
TIG Ins. Co., 211 S.W.3d 310, 314 (Tex. 2006).
       Here, even if we accept the premise of Willoughby’s argument, i.e., that
sending the denial letter was insufficient to start the limitations period, we
agree with the district court’s conclusion that Willoughby possessed at least
constructive notice of her claim’s denial through Lewallen, her attorney at the
time. 3 See, e.g., Lehrer v. Zwernemann, 14 S.W.3d 775, 778 (Tex. App.—
Houston [1st Dist.] 2000, pet. denied) (“Knowledge or notice to an attorney,
acquired during the existence of the attorney-client relationship and while
acting within the scope of his authority, is imputed to the client.”); see also Am.
Flood Research, Inc. v. Jones, 192 S.W.3d 581, 584 (Tex. 2006). As explained
by the district court, “[t]he uncontested evidentiary record confirms that
Metropolitan apprised Lewallen on December 15, 2008 that Willoughby’s claim
had been denied.” Therefore, at a minimum, Willoughby’s cause of action
accrued on that date, and her claim is barred by her insurance policy’s
limitations period. AFFIRMED. 4




       3 We, like the district court, are not persuaded by Willoughby’s argument that
Lewallen was not her attorney. In sworn testimony, Willoughby referred to Lewallen as her
husband’s “friend, our attorney,” and she does not explain, beyond mere speculation, why else
Lewallen would have represented himself as her attorney and obtained her signature on the
documents Lewallen submitted to Metropolitan with his November 2008 letter. See Likens,
688 F.3d at 202 (stating that a non-movant “cannot defeat summary judgment with
speculation, improbable inferences, or unsubstantiated assertions” (citation omitted)).
Finally, even assuming Willoughby is correct that Lewallen’s November 2008 letter was
inadmissible hearsay, there is sufficient other evidence from which to conclude that Lewallen
was her attorney.
       4 We also reject Willoughby’s argument that the district court abused its discretion by

denying her motion for a continuance. Willoughby has not demonstrated that additional
discovery would have helped her establish a genuine issue of fact in this case. See Baker v.
Am. Airlines, Inc., 430 F.3d 750, 756 (5th Cir. 2005).
                                              5
