After a fire loss, a property owner assigned all the insurance benefits of the property policy issued by Americas Insurance Company covering the property to A-Plus Contractors, LLC, and its owner, Stacy Morgan. A-Plus and Morgan had been hired by the homeowner to perform remediation and repairs to the property, and A-Plus and Morgan filed suit against AIC seeking to recover under the AIC policy.

On prior motion practice, the court determined the plaintiffs had accepted a valid assignment of benefits and succeeded to all rights and benefits of the insured relative to the AIC policy. Thereafter, AIC sought to enforce certain provisions of the policy requiring the assignee to submit to an examination under oath (EUO), provide documentation to support the claim and comply with the appraisal provision in the policy. The court found A-Plus and Morgan were required to comply with these policy provisions and stayed the proceedings pending compliance.

Thereafter, Morgan repeatedly canceled and delayed the requisite EUO, despite the court’s admonishment, orders and deadlines. AIC moved to dismiss the case pursuant to Federal Rule of Civil Procedure 41(b) based on plaintiffs’ failure to comply with the court’s orders. Ultimately, the court decided the plaintiffs’ repeated failure to comply with the EUO requests warranted dismissal under Rule 41(b). The court determined that the plaintiffs’ delay and failure to appear for the EUO prejudiced AIC’s investigation of the claim and violated the court’s previous orders. Further, the court noted that the plaintiffs’ failure to comply with the policy’s requirements was itself a basis for dismissal. In making this point, the court cited Mosadegh v. State Farm Fire & Casualty Co[1]., wherein the 5th Circuit upheld a summary judgment dismissal for failure to submit to an EUO as required by the policy. In the recent Gabriel Jones v. Travelers, Lugenbuhl’s Houston office received a favorable outcome with a similar summary judgment in a Harris County court of law, noting the failure to appear for an EUO.

[1] 330 Fed. Appx. 65, 66 (5th Cir. 2009).

Lugenbuhl shareholder Seth Schmeeckle‘s area of practice focuses on representation and counseling of insurance companies in liablity coverage and property coverage disputes in Louisiana and Texas. Associate Briana Loughlin works closely with the firm’s Insurance coverage team. is located in the firm’s Houston office. Visit our Insurance practice section to learn more about Lugenubhl’s expertise and services.

The content of this article is not intended to serve as an exhaustive review of the laws, statutes or issues related to insurance litigation, and it is not intended to provide legal advice. The opinions expressed through this article may not reflect the opinions of the firm, individual attorneys or clients.