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by Scott Keffer

Late last year, the U.S. District Court for the Northern District of Texas, Fort Worth Division, granted an insurer’s motion for summary judgment and dismissed an insured’s lawsuit upon finding that the insured failed to establish actual damages resulting from an alleged breach of contract. Elim v. Allstate Vehicle & Prop. Ins. Co., No. 4:25-CV-00147-O, 2025 WL 3764127 (N.D. Tex. Dec. 30, 2025).

On October 18, 2023, a fire allegedly damaged the insured’s home, requiring the insured to relocate during the repairs. The insurer paid $13,732.36 for incurred additional living expenses, as well as $32,062.39 for mitigation and $22,101.66 for repairs performed by the contractor, Spotless Restoration. The insurer also paid $87,467.18 for damaged contents. Thus, total claim payments amounted to $156,422.93. On June 18, 2024, the insured issued a pre-suit notice and demand letter, which sought $155,800 total comprised of $60,000 in actual damages to the insured’s dwelling, $85,000 for damaged contents, and $10,800 for incurred attorney’s fees. Thereafter, the insured filed suit alleging breach of contract and violations of the Texas Insurance Code. In response, the insurer moved for summary judgment, arguing that the insured failed to provide sufficient evidence of actual damages to support the breach of contract claim and that the extracontractual claims were not viable. Moreover, the insurer emphasized that it had already paid a greater amount on the claim ($156,422.93) than the amount demanded in the insured’s pre-suit notice and demand letter ($155,800).

The court ultimately granted the insurer’s motion despite the insured’s argument that Spotless Restoration may still be owed an undetermined amount, finding that the proffered evidence failed to establish actual resulting damages “because Plaintiff may never be asked to pay.” Id. at *3. Accordingly, the court granted the insurer’s motion for summary judgment in its entirety and held that “[b]ecause Plaintiff has not presented evidence that he has sustained actual damages, Defendant is entitled to summary judgment.” Id. Likewise, because the court found that the insured was not entitled to additional insurance benefits under the policy, it held “Plaintiff cannot prevail on his claims against Defendant for violation of the insurance code or the duty of good faith.” Therefore, the court granted the insurer’s motion for summary judgment in full and dismissed the insured’s lawsuit with prejudice.

The Lowdown

This case illustrates that an insured may not recover uncertain or unincurred expenses as actual damages under a breach of contract cause of action in Texas.

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The opinions expressed are those of the authors and do not necessarily reflect the views of the firm or its clients. This article is for general information purposes and is not intended to be and should not be taken as legal advice.