Nationwide paid Mr. Sadovsky $7,994.49 to repair that damage and to make some interior water damage repairs, and closed the file on December 17, 2016.

The following Spring, Mr. Sadovsky's wife noticed that “everyone around us was getting new roofs.” Mr. Sadovsky asked a neighbor's roofing contractor to inspect his roof, and said he was told that there was unrepaired hail damage.

Mr. Sadovsky hired counsel, who sent a letter of representation to Nationwide on September 15, 2017. Then, on October 4, 2017, Mr. Sadovsky sent a demand letter to Nationwide for $68,372.89 (covering the cost of a full roof replacement).

An engineer Nationwide retained to inspect the roof attributed the wind-damaged tiles he found to a February 2017 wind storm. Nationwide told Mr. Sadovsky that it found no additional covered damage, and he filed suit, asserting breach of contract.

Nationwide moved for summary judgment, arguing among other things that Mr. Sadovsky had not provided prompt notice and had not segregated covered and non-covered damages.

The District Court's Decision

The court granted Nationwide's motion.

In its decision, the court explained that the Nationwide policy required that Mr. Sadovsky give “prompt notice” to Nationwide in the event of a loss and that he “clearly provided prompt notice originally, filing a claim eight days after the April 12, 2016 storm.”

The court noted, however, that Mr. Sadovsky said he learned of damage to his roof in Spring 2017 but that his next contact with Nationwide was on September 15, 2017, when his counsel sent a letter of representation. The court added that Mr. Sadovsky's failure to promptly notify Nationwide prejudiced the insurer's investigation and defense because Nationwide could have investigated before the February 2017 storm or shortly thereafter.

The court also ruled that, assuming that the delayed notice either was reasonable or did not prejudice Nationwide, Mr. Sadovsky had not stated a claim for breach of contract because he failed to segregate between covered and non-covered losses.

The court reasoned that the record demonstrated that an April 2016 storm caused damage that precipitated an insurance claim, which Nationwide paid; another roofing contractor inspected the roof in early 2017; Nationwide's expert claimed a February 2017 storm caused additional damage; and Mr. Sadovsky submitted a demand in October 2017.

According to the court, “[m]ore” was “needed for any factfinder to segregate covered losses from non-covered in a case like this.” The court then agreed with Nationwide that Mr. Sadovsky “fail[ed] to point to evidence demonstrating, with any certainty, that the April 12, 2016 storm caused [his] need for a full roof replacement.”

It then granted summary judgment for Nationwide on Mr. Sadvosky's breach of contract claim. The case is Sadovsky v. Nationwide Property and Casualty Ins. Co., No. SA-18-CV-271-XR (W.D. Tex. May 15, 2019). Attorneys involved include: For Mark Sadovsky, Plaintiff: Chris Schleiffer, LEAD ATTORNEY, Voss Law Firm, The Woodlands, TX. For Nationwide Property and Casualty Insurance Company, Defendant: Amber Fly, LEAD ATTORNEY, Pulman, Cappuccio & Pullen LLP, San Antonio, TX; Karla Y. Huertas, LEAD ATTORNEY, Segal McCambridge Singer and Mahoney, Austin, TX; Robert Glen Wall, LEAD ATTORNEY, Segal McCambridge Singer & Mahoney, Ltd., Austin, TX; Patrick M. Kemp, Segal McCambridge Singer & Mahoney Ltd, Austin, TX.