Case: 21-20455 Document: 00516223199 Page: 1 Date Filed: 03/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 3, 2022
No. 21-20455 Lyle W. Cayce
Summary Calendar Clerk
Elwyn Shaw; Vera Zyga Shaw,
Plaintiffs—Appellants,
versus
American Bankers Insurance Company of Florida,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-3458
Before Clement, Ho, and Oldham, Circuit Judges.
Per Curiam:*
After allegedly sustaining flood damage to their home from Hurricane
Harvey, Vera and Elwyn Shaw filed a claim with their insurer, American
Bankers Insurance Company of Florida (American Bankers). A claims
adjuster inspected the Shaws’ home and reported to American Bankers that
*
Pursuant to 5th 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
Case: 21-20455 Document: 00516223199 Page: 2 Date Filed: 03/03/2022
No. 21-20455
there were no visible signs of covered flood damage, so American Bankers
denied the Shaws’ claim. The Shaws then sued American Bankers for breach
of contract.
American Bankers filed a motion for summary judgment, arguing that
the Shaws failed to produce any evidence of a “flood,” as defined by their
flood insurance policy, or that the damage to their property resulted from a
“flood” rather than from some other event not covered by their policy. The
Shaws did not respond. The district court granted summary judgment in
favor of American Bankers. The Shaws then moved for relief under Federal
Rules of Civil Procedure 59(e) and 60(b), attaching new record evidence that
they argued supported denial of American Bankers’ summary judgment
motion. The district court denied the Shaws’ motion after exercising its
discretion to consider the newly presented evidence, and the Shaws timely
appealed. We AFFIRM.
In support of their motion for relief from the district court’s summary
judgment order, the Shaws submitted several new pieces of record evidence:
(1) their responses to American Bankers’ first set of interrogatories; (2)
Elwyn Shaw’s deposition notice; (3) an affidavit of Todd C. Collins, the
Shaws’ legal counsel; (4) an affidavit of Lesley Sanders, Todd Collins’s legal
assistant; and (5) a “Water Damage Assessment Report” prepared by
Montgomery Roth Architecture & Interior Design, LLC.
After a close review of the above exhibits, we are persuaded that the
district court properly denied the Shaws’ motion for relief from the
judgment. The flood insurance policy at issue obligates American Bankers to
cover only direct physical losses by or from a “flood.” The policy defines
“flood” in a very specific way:
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No. 21-20455
1. A general and temporary condition of partial or complete
inundation of two or more acres of normally dry land area or of two or
more properties (one of which is your property) from:
a. Overflow of inland or tidal waters.
b. Unusual and rapid accumulation or runoff of surface waters
from any source,
c. Mudflow.
2. Collapse or subsidence of land along the shore of a lake or similar
body of water as a result of erosion or undermining caused by waves
or currents of water exceeding anticipated cyclical levels that result in
a flood . . . .
44 C.F.R. § Pt. 61, App. A(1).
The Shaws’ evidence fails to create a genuine fact issue about whether
there was a “flood,” as defined by the policy. Moreover, and more
importantly, it fails to create a genuine fact issue as to whether a “flood,” as
defined by the policy, caused the damage to the Shaws’ home rather than a
different event not covered by the policy. The Shaws have now had two
opportunities to present sufficient evidence to carry their summary judgment
burden, but they have failed to do so.
Accordingly, the judgment is AFFIRMED.
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Shaw v. American Bankers
Combined Opinion