Norman Bloom v. Aftermath Pub Adjusters, Inc., et
Opinion
*517
The parties agree that this case turns exclusively on whether Texas's special tolling rule in
Hughes v. Mahaney & Higgins
,
I.
Gracie Reese purchased a standard flood insurance policy from Fidelity National Property and Casualty Company ("Fidelity") for property in Galveston damaged during Hurricane Ike. Per Reese's affidavit, in the aftermath of the storm, Fidelity sent an adjuster to her house. That adjuster prepared an estimate and authorized payments of around $48,500 for building damage and around $20,000 for content damage. Discontent with the authorized amounts, Reese contracted with defendant Aftermath Public Adjusters, Inc. ("Aftermath"), a Texas-licensed public adjusting firm, to assist.
Michael Bacigalupo was the licensed public adjuster assigned to the case. After examining the house, he prepared a Proof of Loss and Detailed Repair Estimate that stated, in effect, that Reese was entitled to additional amounts of about $68,500 for building repairs and around $25,000 for damaged content.
In August 2009, Fidelity notified Reese in writing that her claim was denied because no proof of loss had been submitted. In August 2010, Reese sued Fidelity, alleging her claim was wrongfully denied. Nearly four years elapsed, and in July 2014, Fidelity moved for summary judgment on the ground that Reese had provided "absolutely no documentation" to support her claim for additional payment. Reese chose not to respond, and on September 9, 2014, the court granted the motion.
On September 8, 2016, Reese filed this suit against Aftermath and Bacigalupo, alleging negligence and breach of contract based on defendants' failure to submit proof of loss timely to Fidelity. Defendants moved for summary judgment based on the relevant two- and four-year statutes of limitation, as approximately seven years had passed since Reese had received notice of Fidelity's denial of her claim. Reese replied that under
Hughes
,
Reese died before the district court entered final judgment, and her grandson Norman Bloom was substituted as plaintiff. Bloom appeals.
II.
The sole question is whether the tolling rule from
Hughes
,
When sitting in diversity, we apply the state's statutes of limitation and accompanying tolling rules.
Vaught v. Showa Denko K.K.
,
Naturally, our analysis begins with
Hughes
, in which clients sued their attorney for negligence allegedly committed during past representation.
See
Hughes
,
Though the "inconsistent positions" rationale would seem to sweep broadly, the Texas Supreme Court has confirmed that the rule in
Hughes
applies only to attorney malpractice.
1
For example, in
Murphy v. Campbell
,
*519 Bloom's lone reply is that public adjusters are actually lawyers in disguise. Bloom concedes defendants are technically "non-lawyers," but he insists they effectively "provide[d] legal services," because there was once a time when Texas prohibited non-lawyers from engaging in public adjusting.
But that was then, and this is now. Even assuming Texas law previously classified public adjusting as legal practice, under the relevant regime, these defendants are non-lawyers who were not engaged in legal practice. By definition, Bloom's claims cannot implicate the unique relationship that triggers the bright-line rule from Hughes . Only Texas has the power to say where lawyering ends and adjusting begins, just as its courts have the sole power to decide Hughes 's outer bounds. Accordingly, we reject Bloom's proposed expansion.
Bloom alternatively requests that we certify the question to the Texas Supreme Court. That decision turns on several factors, the most important of which are "the closeness of the question and the existence of sufficient sources of state law." 4 But here Texas law is clear.
AFFIRMED.
Askanase v. Fatjo
,
Accord
Hoover v. Gregory
,
Texas law does not leave victims of negligence and deception high and dry. Under its "discovery rule," which applies when "the nature of the plaintiff's injury is both inherently undiscoverable and objectively verifiable," the accrual period is deferred "until the plaintiff knows or, by exercising reasonable diligence, should know of the facts giving rise to the claim."
Wagner & Brown, Ltd. v. Horwood
,
Swindol v. Aurora Flight Scis. Corp
.,
Reference
- Full Case Name
- Norman BLOOM, Plaintiff-Appellant, v. AFTERMATH PUBLIC ADJUSTERS, INCORPORATED; Michael Bacigalupo, Defendants-Appellees.
- Cited By
- 6 cases
- Status
- Published