Right Touch, Inc. of Hammond et al v. Westchester Surplus Lines Insurance Company et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THE RIGHT TOUCH, INC. OF
HAMMOND, DEVON WELLS AND
BECKY JACKSON
CIVIL ACTION
VERSUS 	NO. 25-1453
WESTCHESTER SURPLUS LINES
INSURANCE COMPANY AND STIEL
INSURANCE NORTHSHORE, INC
SECTION “B” (5)
Before 	the 	Court 	are 	defendant Westchester 	Surplus 	Lines 	Insurance 	Company’s
(“Westchester”) motion for summary judgment on plaintiffs Devon Wells and Becky Jackson’s
claims (Rec. Doc. 14), Devon Wells and Becky Jackson’s opposition (Rec. Doc. 17), and
Westchester’s reply (Rec. Doc. 21).
Also before the Court are Westchester’s motion for summary judgment on plaintiff Right
Touch’s claims (Rec. Doc. 15), Right Touch’s opposition (Rec. Doc. 18), and Westchester’s reply
(Rec. Doc. 23).
Finally, before the Court are Westchester’s motion for summary judgment on plaintiffs’
defamation claim (Rec. Doc. 16), plaintiffs’ opposition (Rec. Doc. 19), and Westchester’s reply
(Rec. Doc. 22). For the following reasons,
IT IS ORDERED that Westchester’s motions for summary judgment on plaintiffs’ claims
(Rec. Doc. 14, 15, 16) are GRANTED, dismissing plaintiffs’ claims with prejudice.
I. 	FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case involves a dispute over insurance coverage for commercial property damaged in
a fire on April 10, 2024. Westchester had issued an insurance policy covering the damaged
property with The Right Touch, Inc. of Hammond (“Right Touch”) listed as the sole named insured
for the policy period of March 8, 2024, to March 8, 2025. Neither Wells nor Jackson were named
ORDER AND REASONS
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insureds, additional insureds, loss payees, or certificate holders under the insurance policy. On
April 9, 2025, plaintiffs filed a state court action in the Twenty First Judicial District Court for the
Parish of Tangipahoa, asserting claims against Westchester and Stiel Insurance Northshore, Inc.
Rec. Doc. 1-6. Wells and Jackson allege that they own the property damaged by the fire. Id. at 7.
They claim that though they submitted a claim for insurance coverage for the damaged property,
Westchester “arbitrarily refused to pay the claim in good faith[.]” Id. Instead, Wells and Jackson
assert that Westchester has made “false, derogatory, slanderous, and libel allegations that [they]
caused the alleged fire that resulted in [their] loss,” despite knowing that Wells and Jackson was
not at the premises when the fire was alleged to have started. Id. The plaintiffs seek any and all
damages, including punitive damages, as well as attorney fees and other remedies. Id. at 9.
On July 16, 2026, Westchester removed to this Court and, on July 21, 2025, filed its
Answer and Affirmative Defenses to plaintiffs’ state court petition. Rec. Docs. 1, 5. On October
10, 2025, Westchester presented the plaintiffs with its “First Set of Requests for Admissions,
Interrogatories, and Requests for Production of Documents.” Rec. Doc. 14-3. However, plaintiffs
failed to timely respond, only submitting their objection five months later–on March 17, 2026.
Rec. Doc. 39-4. Westchester had submitted multiple requests for admissions, including the
requests for admission that neither Wells nor Jackson were named insureds, additional insureds,
loss payees, or certificate holders under the insurance policy, or that Right Touch did not hold title
to the damaged property. Rec. Doc. 14-3. On February 26, 2026, Westchester filed the instant
motions for summary judgment, seeking dismissal of the claims against it. See Rec. Docs. 14, 15,
16. The plaintiffs have opposed the motions, and have also filed an affidavit wherein Wells asserts
that on or about November 18, 2016, the Louisiana Secretary of State revoked Right Touch’s
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charter and that it had never been reinstated. Rec. Docs. 17, 18, 19, and 20. Westchester has replied
in support of its motions.
II. 	LAW AND ANALYSIS
A. Legal Standards
Summary judgment is appropriate when the pleadings, depositions, interrogatory answers,
and admissions, together with any affidavits, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Material in support or opposition of a
motion for summary judgment may be considered if it is “capable of being ‘presented in a form
that would be admissible in evidence.’” LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d
530, 534 (5th Cir. 2016) (emphasis in original) (quoting Fed. R. Civ. P. 56(c)(2)). Courts view all
facts and evidence in the light most favorable to the non-moving party, but “refrain from making
credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008).
Where the movant bears the burden of proof, it must “demonstrate the absence of a genuine
issue of material fact” using competent summary judgment evidence. Celotex, 477 U.S. at 323.
However, “where the non-movant bears the burden of proof at trial, the movant may merely point
to an absence of evidence.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994).
Should the movant meet its burden, the burden shifts to the non-movant, who must show by
“competent summary judgment evidence” that there is a genuine issue of material fact. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618. Accordingly, conclusory rebuttals of the pleadings are insufficient to avoid summary
judgment. Bargher v. White, 928 F.3d 439, 444–45 (5th Cir. 2019). An opposing party “may not
rely merely on allegations or denials in its own pleadings, but must, in its response, set out specific
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facts showing a genuine factual dispute for trial.” Stauffer v. Gearhart, 741 F.3d 574, 581 (5th Cir.
2014). There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party,
thus entitling the moving party to judgment as a matter of law. Smith v. Amedisys, 298 F.3d 434,
440 (5th Cir. 2002).
Further, under Federal Rule of Civil Procedure (“FRCP”) 36, a party may serve on any
other party a written request to admit the truth of any matters within the scope of FRCP 26(b)(1)
relating to facts, the application of law to fact, or opinions about either. Fed. R. Civ. Pro. 36. A
matter is admitted if the party to whom the request is directed fails to answer or object to the
request within 30 days after being served. Id. at 36(a)(3). A failure to respond to a party’s Rule 36
request for admission “conclusively establishe[s] the validity of that claim.” In re Carney, 258
F.3d 415, 418 (5th Cir. 2001). A party’s use of an affidavit to contradict an admission “is precluded
by the plain language of Rule 36 and [Fifth Circuit] precedent.” Id. An admission can be withdrawn
or amended by motion of the party seeking to withdraw or amend that admission. Fed. R. Civ. Pro.
36(b).
B. Analysis
i. 	Privity of Contract
Wells and Jackson failed to timely respond to Westchester’s requests for admission; as
such, it is deemed admitted that neither Wells nor Jackson were “named insureds, additional
insureds, loss payees, or certificate holders” under the insurance policy. Rec. Doc. 14-3 at 7; see
also In re Carney, 258 F.3d at 418 (stating that a party’s failure to respond to a request for
admission “conclusively establishe[s] the validity of that claim.”). They are not parties to that
contract. Therefore, at issue here is whether Wells and Jackson can maintain their claims against
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Westchester pursuant to an insurance policy in which they were not named as insureds. They may
not.
Because this case is here pursuant to the Court’s diversity jurisdiction, Louisiana law
applies. Under Louisiana law, an insurance policy is construed according to the general rules of
contract interpretation. Cadwallader v. Allstate Ins. Co., 848 So. 2d 577, 580 (La. 2003). To prevail
on a breach of contract claim, a plaintiff must show that (1) defendant owed him an obligation
contained in a contract; (2) defendant failed to perform the obligation; and (3) that defendant’s
failure to perform resulted in damage to the plaintiff. Stipp v. MetLife Auto & Home Ins. Agency,
Inc., 17-61 (La. App. 5 Cir. 8/30/17), 225 So. 3d 1182, 1189. Importantly, “[n]o action for breach
of contract may lie in the absence of privity of contract between the parties.” Allday v. Newpark
Square I Off. Condo. Ass’n, Inc., 20-358 (La. App. 5 Cir. 8/18/21), 327 So. 3d 566, 574. A
plaintiff’s concession that they are not insured by an insurance policy warrants dismissal of their
claims against an insurance company. See, e.g., Aguilar v. Allstate Fire & Cas. Ins. Co., No. CIVA
06-4660, 2007 WL 734809, at *5 (E.D. La. Mar. 6, 2007).
Wells and Jackson are deemed to have admitted that they were not “named insureds,
additional insureds, loss payees, or certificate holders” under the insurance policy issued by
Westchester. Rec. Doc. 14-3 at 7. There is also no dispute that Right Touch was the only insured
entity in the policy. See, e.g., Rec. Doc. 14-4 at 1 (“[t]he insurance is under The Right Touch of
Hammond.”). These facts eliminate any argument that there was privity of contract between Wells,
Jackson, and Westchester. Because Wells and Jackson were not insured or in any way covered
under the disputed insurance policy, they cannot maintain this claim against Westchester.
Plaintiffs contrary arguments are not persuasive. At the outset, it should be noted that
plaintiffs have not contested any of Westchester’s factual claims, nor do they rely on any caselaw
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or statute in their opposition brief. See Rec. Doc. 17. Plaintiffs appear to rest on their contention
that while Right Touch is the named insured, it was Wells himself who executed the agreement,
paid the insurance premium, and owned the insured property. Id. at 2. But none of this overcomes
the fatal flaw that this Court has identified: that Wells and Jackson are not themselves named
insured or otherwise covered by the insurance policy. Id. The fact that Wells paid the insurance
premiums and owned the property does not grant him rights under the insurance policy or even
make him a third-party beneficiary of that policy. See, e.g., Jones v. Proctor Financial Insurance
Corp., No. 06-9503, 2007 WL 4206863, at *3 (E.D. La. Nov. 21, 2007) (dismissing plaintiff’s
claims against insurance company despite plaintiff’s payment of insurance premiums and
possession of ownership interest in insured property because the plaintiff was not a named
insured).
They continue that because Right Touch’s charter had been revoked at the time that
Westchester issued the insurance policy, Wells could have only been acting in his individual
capacity and should be the proper insured. Rec. Doc. 17 at 2. 	Expanding on this point, in their
belated response to Westchester’s request for admissions, plaintiffs assert that Right Touch “was
not a valid juridical person and therefore the only parties to the insurance policy could have been
Devon Wells and/or Becky Jackson.” Rec. Doc. 39-3 at 3. But the same problem persists: this fact
does not establish that Wells and Jackson themselves are covered by the insurance policy. Nor can
they establish that they were third-party beneficiaries. See, e.g., Jones, 2007 WL 4206863, at *3
(stating that federal district courts in Louisiana have determined that the “proper means to include
a stipulation pour auturi in an insurance contract is to name the third party as an additional
insured”). Finally, plaintiffs note that because Wells and Jackson were the shareholders of Right
Touch, that any assets and rights it had passed to them when its charter was revoked. Rec. Doc. 17
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at 3. There are two problems. First, this argument is inconsistent with plaintiffs’ recognition that
Right Touch was not a valid juridical person at the time that Westchester issued the insurance
policy and, therefore, could not have obtained insurance which could transfer to a third party. Id.
at 2. Second, and noticeably, plaintiffs do not provide any legal support for their contention, and
the Court has found no legal basis for the claim that a company’s insurance policy automatically
transfers to its shareholders when that company’s charter has been revoked or when the company
itself has dissolved.
For the reasons herein provided, Westchester’s Motion for Summary Judgment is
GRANTED, and Wells and Jackson’s claims are hereby DISMISSED WITH PREJUDICE.
ii. 	Absence of Insurable Interest
Westchester additionally moves for summary judgment on Right Touch’s claims because
of that entity’s lack of insurable interest in the damaged property. Rec. Doc. 15. As stated, because
plaintiffs failed to timely respond to Westchester’s requests for admissions, FRCP 36(a) allows
the facts contained therein to be deemed admitted. Fed. R. Civ. P. 36(a)(3). The relevant deemed
admission for the purpose of resolving Westchester’s motion for summary judgment on Right
Touch’s claims is that Right Touch did not hold title to the insured property.1 Rec. Doc. 14-3 at 7.
Other facts are also critical. First, Wells admitted that Right Touch did not have any interest in the
insured property. See Rec. Doc. 14-4 (responding with “not to my knowledge” when asked whether
Right Touch had any interest in the insured property). Second, as established, Right Touch, and
not Wells and Jackson, was the insured party. Finally, plaintiffs have stated that Right Touch’s
charter was revoked at the time of contracting for insurance and had not been reinstated. Rec. Doc.
20 at 1.
1 In their belated response to Westchester’s request for admissions, plaintiffs admitted that Right Touch did not hold
title to the damaged property. Rec. Doc. 39-4 at 3.
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Given the facts provided, Westchester’s motion for summary judgment must be granted.
Louisiana Revised Statute 22:853(A) provides that “[n]o contract of insurance on property or of
any interest therein or arising therefore shall be enforceable except for the benefit of persons
having an insurable interest in the things insured.” La. Rev. Stat. § 22:853(A). The statute defines
an “insurable interest” as “any lawful and substantial economic interest in the safety or
preservation of the subject of the insurance free from loss, destruction, or pecuniary damage.” Id.
at § 22:853(B). The statute continues that “[w]hen the name of a person intended to be insured is
specified in the policy, such insurance can be applied only to his own proper interest.” Id. at §
22:854. Under Louisiana law, “[i]f the loss of the insured property does not expose the insured to
either direct, immediate, or potential financial loss or liability, the insured is without an insurable
interest.” Armenia Coffee Corp. v. Am. Nat. Fire Ins. Co., 2006-0409 (La. App. 4 Cir. 11/21/06),
946 So. 2d 249, 254.
The facts of the instant matter dispose of Right Touch’s claims because it lacked an
insurable interest in the insured property. Wells and Jackson, rather than Right Touch, owned the
insured property. Wells himself admitted that Right Touch had no interest in the insured property.
Further, plaintiffs have produced no evidence showing that Right Touch possessed an insurable
interest in the property. In fact, plaintiffs fail to even address Westchester’s arguments that Right
Touch lacked an insurable interest in the property, focusing instead Wells and Jackson’s ownership
of the property and how Wells himself “applied for the insurance, signed the documents, paid the
insurance premiums from money he earned by his labor or rental income earned from the insured
property[.]” Rec. Doc. 18 at 2. None of these assertions establish that Right Touch itself owned an
insurable interest in the property. Plaintiffs do not provide any legal support for their arguments
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or even address the applicable statute concerning insurable interest. Plaintiffs’ contrary arguments
are wholly unconvincing.
For the reasons provided, Westchester’s motion for summary judgment is GRANTED,
and Right Touch’s claims are hereby DISMISSED WITH PREJUDICE for lack of an insurable
interest.
iii. 	Defamation
Plaintiffs’ defamation claims must also be dismissed. To prevail on a defamation claim, a
plaintiff must prove four elements: (1) a false and defamatory statement concerning another; (2)
an unprivileged publication to a third party; (3) fault, of either negligence or greater, on the part of
the publisher; and (4) resulting injury. Jacob v. Kopfler, No. CV 04-1323, 2005 WL 8174246, at
*9 (E.D. La. June 14, 2005). Plaintiffs provide no summary judgment evidence concerning the
second element: an unprivileged publication to a third party. In fact, because of plaintiffs’ failure
to timely respond to Westchester’s requests for admissions, they have by operation of Rule 36(a)
admitted that Westchester did not publish any written or oral statement to any third party accusing
plaintiffs of arson or wrongdoing. Rec. Doc. 14-3 at 8. Even were the Court to consider plaintiffs’
belated response to Westchester’s requests for admissions, the plaintiffs provide only conclusory
allegations, including that they believe that Westchester communicated with fire officials,
attempted to “instigate a classification of the property as arson,” and spoke with tenants and tried
to create and circulate “multiple reports insinuating criminal activity.” Rec. Doc. 39-4 at 4.
Plaintiffs’ reliance on conclusory allegations continues in their brief. In response to
Westchester’s motion, plaintiffs state only that “Westchester had made these claims to multiple
third-parties that it has sent to ‘inspect’ the property” and that “Westchester has zero basis to claim
the Plaintiffs had any involvement in the fire, even if it was intentionally set[.]” Rec. Doc. 19 at
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1–2. But plaintiffs have provided no evidence. An opposing party “may not rely merely on
allegations or denials in its own pleadings, but must, in its response, set out specific facts showing
a genuine factual dispute for trial.” Stauffer, 741 F.3d at 581 (5th Cir. 2014). Plaintiffs have failed
to do that. For these reasons, Westchester’s motion for summary judgment on plaintiffs’
defamation 	claim 	is 	GRANTED, 	and 	these 	claims 	are 	thereby 	DISMISSED 	WITH
PREJUDICE.
New Orleans, Louisiana, this 26th day of June 2026
_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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