Gann v. Depositors Insurance — Fifth Circuit affirmed judgment for insurer based on untimely, prejudicial notice

Case
Dwight Gann, as Trustee of BR Real Estate Holdings Trust and Sage Management L.L.C. v. Depositors Insurance Company
Court
U.S. Court of Appeals for the Fifth Circuit
Judge
Smith; Haynes; Engelhardt
Date Decided
October 5, 2026
Docket No.
25-11291
Topics
Insurance Coverage; Late Notice; Texas Insurance Code; Rule 59(e)
Source
Read the full opinion

Background

Dwight Gann, as trustee of BR Real Estate Holdings Trust, and Sage Management L.L.C. insured a commercial property in Irving, Texas through Depositors Insurance Company. After discovering interior water damage, Gann reported a claim in September 2022 with an August 2022 loss date. Depositors inspected the property, found hail-related damage to part of the roof, and issued an initial payment followed by a supplemental payment.

In October 2023, the insureds provided Depositors with a consultant’s report recommending replacement of all three roof sections based on a June 2018 loss date—the first time that loss date had been asserted. Depositors determined no additional payment was owed under the 2022 policy because the asserted loss predated its coverage period. The insureds sued for breach of contract, violations of Chapters 541 and 542 of the Texas Insurance Code, and breach of the duty of good faith and fair dealing. The district court granted Depositors summary judgment and later denied the insureds’ Rule 59(e) motion to alter or amend the judgment.

The Court’s Holding

The Fifth Circuit affirmed. Even assuming the insureds had made a claim under the 2018 policy, their notice was unreasonably late as a matter of law. They did not report any claim until more than four years after the June 2018 storm and did not identify the 2018 loss date until more than five years after the storm. Their assertion that Gann acted promptly after discovering interior water damage did not explain why the roof damage had not been discovered earlier.

The court also held that Depositors established prejudice because the delay impaired its ability to investigate the alleged damage while the circumstances were fresh. The extra-contractual claims failed as well: the insureds showed no injury independent of their insurance claim to support their Chapter 541 and bad-faith claims, and they did not establish policy liability necessary for their Chapter 542 claim.

Finally, the district court did not abuse its discretion by denying Rule 59(e) relief. The insureds’ motion repeated arguments already considered or advanced arguments that could have been presented before judgment, neither of which provided a proper basis for altering or amending the judgment.

Key Takeaways

  • A delay exceeding four years in reporting hail damage, followed by an additional delay before identifying the relevant loss date, was unreasonable as a matter of law under the policy’s prompt-notice requirement.
  • The insurer demonstrated prejudice because the delay prevented a timely investigation of the property damage while the circumstances were fresh.
  • Without coverage liability or evidence of an independent injury, the insureds’ Texas Insurance Code and common-law bad-faith claims could not survive summary judgment.

Why It Matters

The decision underscores that Texas insureds cannot necessarily preserve coverage by reporting a claim promptly after discovering interior damage when the claimed roof damage allegedly occurred years earlier. When a lengthy delay compromises the insurer’s ability to investigate the original loss, the notice defect can defeat contractual coverage.

The opinion also illustrates the consequences for related extra-contractual claims when the insured cannot establish policy liability or an injury independent of the denied benefits, and it reinforces that Rule 59(e) is not an opportunity to reargue summary-judgment issues.

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