Take the Fifth

Designated for publication

• Playa Vista Conroe, a Condominium Association v. Insurance Co. of the West, 20-20307, appeal from S.D. Tex.
  • Oldham, J. (Higginbotham, Costa, Oldham), insurance
  • Affirming summary judgment holding insurer liable for coverage of Hurricane Harvey damage to boat slips suffered by condo association when the Lake Conroe Dam was opened by the San Jacinto River Authority to release floodwater built up from the hurricane’s rains.
  • The insurer had declined coverage on the basis that its policy did not cover flood damage from a hurricane or tropical storm. The district court had granted the condo association’s summary judgment for coverage, denying the insurer’s cross-motion, and the parties had then entered into a stipulation for the amount of covered damage and attorneys’ fees. The insurer then filed a second summary judgment motion, arguing that when the condo association entered into the stipulation, it admitted that the damage fell within an exclusion for acts by a governmental body. The district court denied that summary judgment motion and entered final judgment.
  • The Court held that the condo association showed coverage because the policy provided that it did not cover damage t o docks unless a specific sub-limit for damage to docks was established, and the policy did contain a $220,000 sub-limit for dock damage.
  • The Court then held that the insurer failed to show an exclusion applied. The Court held that the flood exclusion did not apply because the condo association had purchased a flood endorsement. And the Court held that the flood endorsement’s exclusion for flood damage from hurricanes or tropical storms only applied to temporary inundation of dry land, which would not include the boat slips that were built over water. In addition, the Court held that there was competent summary judgment evidence that the boat slips were actually not damaged by the rise of water from the release of the dam, but by the suction effect and the rush of debris caused by the lowering of water at the end of the lake where the boat slips were located.
  • The Court then held that the insurer’s drafting of stipulation language to suggest that the condo association had agreed its damages were caused by the decision of a governmental body was “too little too late,” as the insurer had not raised this at the summary judgment stage when the parties had filed their cross-motions, the district court had ruled, and the parties had agreed that the only remaining issues were the amount of damages and attorneys’ fees.

• U.S. v. Vigil, 20-50192, appeal from W.D. Tex.
  • per curiam (Wiener, Dennis, Duncan), criminal, supervised release
  • Affirming imposition of supervised release special condition prohibiting alcohol and drug use during the term of the supervised release, in sentence on guilty plea to one count of conspiracy to transport illegal aliens and one count of transporting an illegal alien.
  • Defendant argued that the special condition was not reasonably related to his offense or history and characteristics. He argued that, while his presentence report showed a history of drug use and drug-related convictions, it did not show any alcohol abuse.
  • The Court held that the “no alcohol” condition was reasonably related to the defendant’s history of drug abuse as it involved a substance capable of addiction and abuse. The Court also held that the condition involved no greater deprivation of liberty than reasonably necessary to meet the statutory goals of deterrence of future criminal conduct and protecting the public. The Court held that a “no alcohol” condition will not always be within a district court’s discretion, but that, “in a case like this, where the defendant has a history of substance abuse and drug-related arrests such that the court reasonably believes he is an ‘abuser’ of drugs, it is within the district court’s discretion to require substance abuse treatment and prohibit the use of intoxicating substances, including alcohol, as special conditions of supervised release—even when there is no evidence in the record of alcohol abuse specifically.”

Unpublished

• Martinez-Murillo v. Wilkinson, 19-60445, petition for review of BIA order
  • per curiam (Higginbotham, Costa, Oldham), immigration
  • Denying Honduran citizen’s petition for review of BIA dismissal of his appeal of an IJ denial of his motion to reopen his in absentia order of removal.

• Hobbs v. Warren, 20-10508, appeal from N.D. Tex.
  • per curiam (Jones, Clement, Graves), qualified immunity
  • Vacating dismissal of plaintiff’s excessive force claim, finding that “factual deficiencies in the record prevent us from undertaking an appropriately fulsome review of the immunity question,” and remanding “for discovery limited to the issue of qualified immunity.”

• Sherman v. Irwin, 20-30012, appeal from E.D. La.
  • per curiam (Barksdale, Southwick, Graves), § 1983
  • Affirming dismissal of § 1983 claims against police officer based on alleged non-consensual sex because there was no corroborating summary judgment evidence that the defendant officer was in the town where the alleged conduct occurred on the only occasion that was still within the statute of limitations.