from the United States District Court for the Southern
District of Texas
SMITH, CLEMENT, and COSTA, Circuit Judges.
E. SMITH, Circuit Judge.
parties agree that this case turns exclusively on whether
Texas's special tolling rule in Hughes v. Mahoney
& Higgins, 821 S.W.2d 154, 157 (Tex. 1991)-which
suspends the statute of limitations on legal malpractice
claims until completion of the litigation from which they
arise-extends to actions against public adjusters. The
district court thought not and dismissed the claims as
untimely. We agree and affirm.
Reese purchased a standard flood insurance policy from
Fidelity National Property and Casualty Company
(“Fidelity”) for property in Galveston damaged
during Hurricane Ike. Per Reese's affidavit, in the
aftermath of the storm, Fidelity sent an adjuster to her
house. That adjuster prepared an estimate and authorized
payments of around $48, 500 for building damage and around
$20, 000 for content damage. Discontent with the authorized
amounts, Reese contracted with defendant Aftermath Public
Adjusters, Inc. (“After-math”), a Texas-licensed
public adjusting firm, to assist.
Bacigalupo was the licensed public adjuster assigned to the
case. After examining the house, he prepared a Proof of Loss
and Detailed Repair Estimate that stated, in effect, that
Reese was entitled to additional amounts of about $68, 500
for building repairs and around $25, 000 for damaged content.
August 2009, Fidelity notified Reese in writing that her
claim was denied because no proof of loss had been submitted.
In August 2010, Reese sued Fidelity, alleging her claim was
wrongfully denied. Nearly four years elapsed, and in July
2014, Fidelity moved for summary judgment on the ground that
Reese had provided “absolutely no documentation”
to support her claim for additional payment. Reese chose not
to respond, and on September 9, 2014, the court granted the
September 8, 2016, Reese filed this suit against Aftermath
and Bacigalupo, alleging negligence and breach of contract
based on defendants' failure to submit proof of loss
timely to Fidelity. Defendants moved for summary judgment
based on the relevant two- and four-year statutes of
limitation, as approximately seven years had passed since
Reese had received notice of Fidelity's denial of her
claim. Reese replied that under Hughes, 821 S.W.2d
at 157, limitations were tolled until the conclusion of her
suit against Fidelity. The district court disagreed and
rejected the claims as untimely.
died before the district court entered final judgment, and
her grandson Norman Bloom was substituted as plaintiff. Bloom
sole question is whether the tolling rule from
Hughes, 821 S.W.2d at 157, reaches actions against
public adjusters. Bloom says yes, or at the least, that the
question should be certified to the Texas Supreme Court. We
sitting in diversity, we apply the state's statutes of
limitation and accompanying tolling rules. Vaught v.
Showa Denko K.K., 107 F.3d 1137, 1145 (5th Cir. 1997).
Where the contours of those rules are underdetermined, we
must make an Erie guess about how we expect the
Texas Supreme Court would decide. “We are emphatically
not permitted to do merely what we think best; we must do
that which we think the [state] [s]upreme [c]ourt would deem
best . . . .” In re DePuy Orthopaedics, Inc.,
888 F.3d 753, 765 n.5 (2018) (cleaned up). As a practical
matter, that judgment is informed chiefly by “(1)
decisions of the [state] [s]upreme [c]ourt in analogous
cases, (2) the rationales and analyses underlying [state]
[s]upreme [c]ourt decisions on related issues, [and] (3)
dicta by the [state] [s]upreme [c]ourt.” Id.
(quoting Centennial Ins. Co. v. Ryder Truck Rental,
Inc., 149 F.3d 378, 382 (5th Cir. 1998)).
our analysis begins with Hughes, in which clients
sued their attorney for negligence allegedly committed during
past representation. See Hughes, 821 S.W.2d at
155-56. The Texas Supreme Court, in reviving an otherwise
untimely claim, established the following special tolling
rule: “[W]hen an attorney commits malpractice in the
prosecution or defense of a claim that results in litigation,
the statute of limitations on the malpractice claim against
the attorney is tolled until all appeals on the underlying
claim are exhausted.” Id. at 157. In defending
that new rule, the court explained that the usual tolling
principles “can force the client ...