A Consultant Moved the Date of Loss to 2018. The Fifth Circuit Called the Notice Late.

On October 5, 2026, a Fifth Circuit panel affirmed summary judgment against the owner of an Irving, Texas commercial building whose consultant moved the date of loss on a three-section roof to June 5, 2018.¹ The carrier first heard that date on October 11, 2023.¹

Gann v. Depositors Insurance Co., No. 25-11291, is unpublished under Fifth Circuit Rule 47.5, so it sets no precedent. It applies settled Texas notice law to a move that public adjusters see on hail files regularly: re-dating a loss to an older policy year on the strength of an outside report.¹

What the report changed

The owner reported the claim on September 7, 2022, after finding interior water damage. The carrier assigned an August 9, 2022 date of loss, inspected about a week later, found partial hail damage to the roof, paid for repairs, and issued a supplemental payment in August 2023.¹ Plaintiffs then retained consultant Gary Treider, whose report called for replacing all three roof sections on a June 5, 2018 date of loss. It was the first time anyone had asserted a 2018 date.¹

The carrier read the 2018 date against the 2022 policy, which ran January 29, 2022 to January 29, 2023, and found the loss outside the period.¹

Gann v. Depositors: the dates the court worked from

Date	Event
June 5, 2018	Date of loss in the consultant's report; 2018 policy ran Jan. 29, 2018 to Jan. 29, 2019
Aug. 9, 2022	Date of loss the carrier assigned under the 2022 policy
Sept. 7, 2022	Claim reported after interior water damage
Aug. 2023	Supplemental payment issued
Oct. 11, 2023	2018 date of loss first disclosed to the carrier

The panel assumed, without deciding, that a claim existed under the 2018 policy. On that assumption notice was late as a matter of law: more than four years after the storm to make the claim, more than five to disclose the 2018 date.¹

The excuse the court wanted

Under Texas law a notice provision is a "condition precedent, the breach of which voids policy coverage," and the panel treated the policy's "prompt notice" requirement that way.¹ The plaintiffs' only answer was that the owner reported promptly once he saw interior water damage. The court found that no excuse for the delay: "Plaintiffs offered no excuse as to why the damage to the roof was not previously discoverable."¹

Prejudice followed from the age of the loss. The carrier lost the chance to investigate "while the matter is fresh," and a footnote called the district court's alternative ground, that no 2018 claim existed at all, "likely true."¹ The Chapter 541 and good faith claims failed for lack of an independent injury, and the Chapter 542 prompt-payment claim fell with the contract claim because liability under the 2018 policy was never established.¹³

The opinion prescribes nothing, so what follows is inference. A report that backdates a loss starts the notice clock at the backdated date, and a late-discovery explanation has to exist in the file before the new date goes to the carrier. The district court's summary judgment opinion, the policy forms and Treider's retention date were not reviewed for this note, and the docket shows the mandate issued October 26, 2026.² notice is a recurring issue; see our note on Florida's presuit notice rule and our note on a Fifth Circuit Louisiana arbitration ruling in the archive.