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Click here for the full text of this decision FACTS:Wentwood Woodside I LP, a Texas limited partnership, brought this suit against Royal Indemnity Co., which carried the excess property damage insurance on the apartments Wentwood owned, and against GMAC Commercial Mortgage Corp. which serviced the mortgage on Wentwood’s apartments, to recover under Texas law for flood damage to the apartments sustained during Tropical Storm Allison in June of 2001. The district court granted summary judgment to both Royal and GMAC on all causes of action. Wentwood is a single-asset limited partnership organized under the laws of Texas. It was formed for the purposes of profitably owning the Woodside Village Apartments in Houston, Texas. A firm named Graoch Associates, acting on behalf of the affiliated group of partnerships which included Wentwood, retained Lockton Companies Inc. to purchase a single excess property insurance policy covering all of the properties, including the Woodside Village, owned by all the various partnerships (including Wentwood) with which Wentwood was affiliated and under common control. After purchasing the Royal policy, Graoch decided to switch primary carriers. It purchased a one year policy from Lexington Insurance Co., which included full flood coverage and did not exclude properties in a special flood hazard area (SFHA). Thus, the Woodside Village continued to have primary flood insurance, but still did not have any excess flood coverage. Wentwood filed a three-count complaint in a Texas court, alleging breach of contract by Royal, violation by Royal of the Texas Insurance Code, and breach by GMAC of an assumed duty to notify Wentwood in the event that its Woodside Village property fell within an SFHA. The case was timely removed to the district court below. Wentwood then amended its complaint to plead two additional causes of action against GMAC for negligence per se under Texas law in failing to abide by its asserted federal statutory duty under 42 U.S.C. 4012a to ensure that properties in SFHAs were adequately covered, and violation of 4012a. The district court granted summary judgment to Royal and then to GMAC. The district court also denied Wentwood’s motion, filed after the court rendered its adverse summary judgment order, to file a further amended complaint against Royal. It is from these dispositions that Wentwood appeals. HOLDING:Affirmed. Wentwood appeals the grant of summary judgment in favor of Royal on the ground that Wentwood’s initial failure to insure the Woodside Village was a mistake that is excused by the Errors and Omissions clause of the underlying primary policy. Wentwood also appeals the decision of the district court not to permit it to file an amended complaint against Royal after the adverse summary judgment had been entered. Wentwood concedes, as it must, that the Royal policy purchased did not identify the Woodside Village as a property to be excepted from Royal’s blanket exclusion from flood coverage of any property in an SFHA. Wentwood contends, however, that this failure to insure the Woodside Village was an oversight that is nullified by the Errors and Omissions clause of Lexington’s primary policy. Wentwood asserts repeatedly throughout its brief that its failure to insure the Woodside Village was the result of its unintentional error when purchasing the excess policy from Royal. The summary judgment evidence, however, shows only that the Royal policy was purchased by Graoch. Presumably, therefore, the only relevant errors or omissions are those committed by Graoch. There is, however, no evidence whatsoever that Graoch’s agent, Lockton, did not know that the Woodside Village was in an SFHA or, if the agent did not know that, that the agent would have purchased the additional insurance if he or she had known that the property was in an SFHA. The undisputed facts of this case establish that Graoch simply never purchased excess flood insurance for the Woodside Village. The court holds that, regardless of whether it ascribes this error to Wentwood or Graoch, such an error is properly characterized as a unilateral mistake in purchasing insurance. Under Texas law, the unilaterally mistaken party alone bears responsibility for the consequences of its error. In light of the conclusion that Wentwood never insured the Woodside Village against flood damage, Wentwood’s lawsuit is in effect an attempt to retroactively purchase excess insurance for a loss that has already been realized. Consequently, the court holds that the district court correctly denied Wentwood recovery on the Royal policy. Wentwood contends that the district court erred in failing to allow a second amended complaint which would have added a claim against Royal over a month after summary judgment had been granted to Royal. The court holds that Wentwood’s appeal on this score is plainly not well taken. Wentwood could have, but did not, plead its cause of action against Royal in the alternative, and it was therefore hardly an abuse of discretion for the district court to deny Wentwood a post-summary judgment opportunity to present its claims against Royal. Consequently, there was no abuse of discretion in the denial of Wentwood’s belated motion to file its second amended complaint. On appeal, Wentwood pursues only two theories of recovery against GMAC. First, Wentwood contends that GMAC assumed a common law duty to notify it when a revision to FEMA’s flood maps placed the Woodside Village in an SFHA. Second, Wentwood argues that GMAC’s failure to discharge an alleged statutory duty under the National Flood Insurance Act, 42 U.S.C. 4001 et seq., gave rise to a cause of action under Texas law for negligence per se. Wentwood contends that GMAC assumed a duty to it when it sent separate letters to two partnerships, notifying them that their properties were affected as a result of the April 2000 changes to the Houston-area FEMA maps. But the court finds that GMAC did not render or undertake any notification services to Wentwood, so it could not be liable to Wentwood under 323 of the Restatement (Second) of Torts. The court holds that GMAC’s notification to the two partnerships do not constitute GMAC’s having undertaken the rendition of the service of notification to Wentwood Westside concerning Woodside Village. Consequently, there is no summary judgment evidence sufficient to support a judgment that GMAC breached a common law duty to Wentwood. Making an Erie guess, the court concludes that the Texas Supreme Court would not treat mortgagors as the protected class. The court holds that 4012a does not give rise to a private right of action under Texas law for negligence per se. OPINION:Garwood, J., Garwood, Smith and Clement, JJ.

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