     Case: 09-20784    Document: 00511170711         Page: 1     Date Filed: 07/13/2010




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

                                                FILED
                                                                          July 13, 2010
                                    No. 09-20784
                                  Summary Calendar                        Lyle W. Cayce
                                                                               Clerk

BONNIE BIAS; VICKI BIAS BURRELL,

                                                 Plaintiffs-Appellants,

v.

STANDARD GUARANTY INSURANCE COMPANY,

                                                 Defendant-Appellee.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 Houston Division
                             USDC No. 4:09-CV-2070


Before JOLLY, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
        Bonnie Bias and her daughter, Vicki Bias Burrell, appeal the district
court’s grant of summary judgment to Standard Guaranty Insurance Company
in this lawsuit arising out of the handling of an insurance claim. The Biases also
appeal several of the district court’s evidentiary decisions, its denial of a
continuance, and its dismissal of additional parties to the suit. For the following
reasons, we AFFIRM the judgment of the district court.



        * Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set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 Fifth Circuit Rule 47.5.4.
   Case: 09-20784   Document: 00511170711 Page: 2       Date Filed: 07/13/2010
                                No. 09-20784

      The Bias family’s home was damaged during Hurricane Ike in September
of 2008. One month later, Appellants submitted a claim to their insurance
provider, Standard Guaranty, requesting that it cover the cost of repairs
pursuant to their homeowner’s insurance policy. The property was inspected the
first day that Appellants were available, and an adjuster’s report was prepared
the next day stating that the net claim was $2,684.36. Payment was issued for
this amount. Two months later, Appellants submitted an additional repair
estimate from “A” Roofing Specialists for repairs totaling $2,450. Guaranty
contacted the roofing company and agreed to review a second estimate covering
only wind-related repairs; however, the updated estimate was never provided.
Appellants later submitted an additional estimate from AMCO Roofing with the
cost of roof replacement valued at $12,761.80. Standard Guaranty maintains
that it tried unsuccessfully to reach Appellants to discuss the repair estimate,
and Appellants filed this action before contact was made. While this action was
pending, Appellants submitted a third estimate prepared by Darrell Quinney
that assessed repairs at $52,414.23.
      Appellants filed this action claiming that Standard Guaranty’s behavior
constituted (1) a breach of the insurance contract between Appellants and
Standard Guaranty, (2) a breach of the duty of good faith and fair dealing, and
(3) a failure to comply with the Texas Insurance Code by employing unfair
settlement practices and failing to promptly make payment of claims. Initially,
the action also named as Appellees Scott Smedley, the insurance adjuster who
handled the claim at issue, and his company, Assurant Solutions. The district
court dismissed the claims against Smedley and Assurant Solutions soon after
the case was removed to federal court.
      The district court granted final summary judgment: denying Appellants’
motion for a continuance; striking the affidavit of Vicki Burrell Bias and the
testimony and report of Appellants’ expert, Darrell Quinney; and awarding a
take-nothing judgment against Appellants.

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      Appellants first argue that the district court abused its discretion by
denying their motion for continuance to allow discovery and the filing of
supplemental summary judgment evidence. The denial of a continuance for
additional discovery is reviewed for abuse of discretion, and we “will affirm [the]
denial unless it is arbitrary or clearly unreasonable.” Transamerica Ins. Co. v.
Avenell, 66 F.3d 715, 721 (5th Cir. 1995) (citations omitted). Here, the district
court did not abuse its discretion when it denied the motion for continuance.
Appellants did not indicate the specific evidence they were seeking or the
relevance of such evidence. See Robbins v. Amoco Prod. Co., 952 F.2d 901, 907
(5th Cir.1992) (upholding the district court’s denial of a motion for additional
discovery because the party’s request “contains only the vague assertion that
additional discovery is needed”).
      Next, Appellants challenge the district court’s grant of summary judgment
for Standard Guaranty. We review a district court’s grant of summary judgment
de novo and apply the same standards as the district court. Beck v. Tex. State
Bd. of Dental Exam’rs, 204 F.3d 629, 633 (5th Cir. 2000). Summary judgment
is proper when there is an absence of genuine issues of material fact and one
party is entitled to judgment as a matter of law. Thurman v. Sears, Roebuck &
Co., 952 F.2d 128, 131 (5th Cir. 1992). Thus, “[t]he appropriate inquiry is
‘whether the evidence presents a sufficient disagreement to require submission
to a [factfinder] or whether it is so one-sided that one party must prevail as a
matter of law.’” Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th Cir. 2005)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
      Appellants argue that the district court abused its discretion in striking
their summary judgment evidence. Under Rule 702 of the Federal Rules of
Evidence, expert testimony is admissible if: (1) it will assist the trier of fact to
understand the evidence or to determine a fact in issue; (2) it is based on
sufficient facts or data; (3) it is the product of reliable principles and methods;
and (4) the witness has applied the principles and methods reliably to the facts

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of the case. We review the district court’s ruling under Rule 702 for an abuse of
discretion. United States v. Pettigrew, 77 F.3d 1500, 1514 (5th Cir. 1996).
      The district court found that the testimony and report of Darrell Quinney
did not meet the test for admissible evidence because the evidence was not based
on sufficient facts or data and is not the product of reliable principles and
methods. Most notably, the report and testimony failed to isolate the damage
caused by Hurricane Ike. Quinney acknowledged that he had not investigated
whether Hurricane Ike caused the damages included in his report. We find that
the district court did not abuse its discretion in striking this testimony and
report. As the district court noted, “causation should come first and the cost
second, not the other way around.”
      Appellants also relied on Vicki Bias Burrell’s affidavit to establish
causation. The district court struck the affidavit ruling that it rested heavily on
hearsay and lacked the necessary technical expertise. A party seeking to oppose
summary judgment “must adduce admissible evidence which creates a fact issue
concerning the existence of every essential component of that party’s case.
Unsubstantiated assertions of an actual dispute will not suffice.” Thomas v.
Price, 975 F.2d 231, 235 (5th Cir. 1992) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). The district court did not abuse its discretion in striking the
evidence.
      In addition, Appellants argue that Standard Guaranty did not establish
it was entitled to summary judgment on the contract, bad faith, or Texas
Insurance Code claims. However, Appellants have failed to put forward evidence
that could connect Hurricane Ike to the damage to their home or support their
claim that the initial adjustment by Standard Guaranty was incorrect.
      Likewise, Appellants’ claims for fraud and conspiracy to commit fraud
likewise are unsupported by competent summary judgment evidence.
Appellants failed to provide evidence demonstrating that Standard Guarantee
knew that their representations were false or that they made representations

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                                 No. 09-20784

with knowledge of the truth of the matter asserted. In addition, Appellants’
conspiracy claim fails as a matter of law because they did not offer evidence that
could establish a meeting of the minds between two or more people or an act or
omission performed by Standard Guarantee, with the requisite intent to defraud,
or by gross negligence. See Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.
1983); see also Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914
(5th Cir. 1953) (“[a] corporation cannot conspire with itself any more than a
private individual can”).
      Finally, Appellants assert that the district court improperly dismissed
their fraud and conspiracy claims against Scott Smedley and his company,
Assurant Solutions. We find that the district court did not err in dismissing
those claims against Smedley and Assurant Solutions because Appellants failed
to allege facts that would establish a reasonable basis for liability against
Smedley and Assurant Solutions. See Griggs v. State Farm Lloyds, 181 F.3d
694, 699 (5th Cir. 1999).
      For the foregoing reasons, we conclude that the district court’s judgment
is AFFIRMED.




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