Rodriguez et al v. Fidelity National Property and Casualty Insurance Company et al
Filing
18
ORDER & REASONS granting 9 Motion to Dismiss for Failure to State a Claim. Party Anthony A. Voiron, Jr. dismissed. Signed by Judge Martin L.C. Feldman on 12/11/2013. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROLAND RODRIGUEZ and
CHERYL TUFARO
CIVIL ACTION
v.
NO. 13-5927
FIDELITY NATIONAL PROPERTY
AND CASUALTY INSURANCE COMPANY, ET AL.
SECTION "F"
ORDER AND REASONS
Before the Court is a motion to dismiss by Anthony A. Voiron,
Jr., individually and d/b/a Voiron Insurance Services, LLC.
For
the reasons that follow, the motion is GRANTED.
Background
This is a Hurricane Isaac flood insurance dispute.
Roland Rodriguez and Cheryl Tufaro own a house at 416 Palm
Drive
in
Braithwaite,
Louisiana.
Anthony
A.
Voiron,
Jr.,
individually and doing business as Voiron Insurance Services,
L.L.C., sold them a flood insurance policy issued by Fidelity
National
Indemnity
171150297917.
Insurance
Company
bearing
policy
number
The Fidelity policy limited dwelling coverage to
$250,000.
On August 29, 2012 Hurricane Isaac brought with it rain, wind,
and tidal surge, which overtopped and breached levees that caused
damage to Rodriguez and Tufaro's house, compromising its structural
integrity.
Rodriguez and Tufaro were prevented from returning to
the property as a result of flooding and other storm damage for
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some time.
Just days after the storm, Rodriguez and Tufaro contacted
Fidelity,
which
assigned
an
adjuster
to
evaluate
the
loss.
Rodriguez and Tufaro submitted a proof of loss and demanded
payment. Fidelity ultimately paid Rodriguez and Tufaro $197,233.86,
less than the $250,000 policy limits for dwelling coverage.
On August 28, 2013 Rodriguez and Tufaro sued Fidelity National
Property and Casualty Insurance Company and Anthony A. Voiron, Jr.,
individually and d/b/a Voiron Insurance Services, L.L.C. in state
court.
On September 25, 2013 Wright National Flood Insurance
Company (which was improperly named as Fidelity National Property
and Casualty Insurance Company and formerly known as Fidelity
National Indemnity Insurance Company), a Write-Your-Own Program
carrier participating in the U.S. Government's National Flood
Insurance Program, appeared in its fiduciary capacity as the fiscal
agent of the United States, and removed the lawsuit to this Court.
The plaintiffs allege multiple claims against Fidelity, including
that it negligently miscalculated the plaintiffs' damages and
misvalued
their
property,
and
that
it
acted
arbitrarily,
capriciously, and in bad faith in failing to properly adjust their
claim, entitling them to penalties and attorney's fees as provided
by La.R.S. 22:658 and 22:1220.
They assert that Fidelity "placed
a valuation on the insured property and used that valuation for
determining the premium charge for the policy requiring the insurer
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to compensate a covered loss or damage 'without deduction or
offset' [and the] same insurer deducted depreciation calculated
erroneously." As against Voiron, the plaintiffs allege that he was
negligent in procuring their flood insurance, that he negligently
valued the property, negligently failed to properly advise the
plaintiffs as to the correct limits of coverage, and failed to
properly advise them as to the purchase of the correct amount of
insurance to fully cover their home.
Voiron
now
requests
dismissal
of
the
plaintiffs'
claims
against him for failure to state a claim.
I.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.
Such a motion is rarely
granted because it is viewed with disfavor.
See Lowrey v. Tex. A
& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."
Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed.R.Civ.P. 8).
"[T]he
pleading standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an unadorned, the-
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defendant-unlawfully-harmed-me accusation."
Id. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Thus,
in
considering
a
Rule
12(b)(6)
motion,
the
Court
“accepts ‘all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff.’”
See Martin K. Eby Constr. Co.
v. Dall. Area Rapid Transit, 369 F.3d 464 (5th Cir. 2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).
But, in
deciding whether dismissal is warranted, the Court will not accept
conclusory allegations in the complaint as true.
at 1050.
Kaiser, 677 F.2d
Indeed, the Court must first identify allegations that
are conclusory and, thus, not entitled to the assumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A corollary: legal
conclusions “must be supported by factual allegations.”
678.
Assuming
the
veracity
of
the
well-pleaded
Id. at
factual
allegations, the Court must then determine “whether they plausibly
give rise to an entitlement to relief.” Id. at 679.
“‘To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal
quotation marks omitted).
“Factual allegations must be enough to
raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even
if doubtful in fact).”
Bell Atl. Corp. v. Twombly, 550 U.S. 544,
4
555 (2007) (citations and footnote omitted).
“A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (“The
plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has
acted
unlawfully.”).
This
is
a
“context-specific
task
that
requires the reviewing court to draw on its judicial experience and
common sense.”
Id. at 679.
“Where a complaint pleads facts that
are merely consistent with a defendant’s liability, it stops short
of the line between possibility and plausibility of entitlement to
relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).
“[A] plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at
555 (alteration in original) (citation omitted).
Finally, “[w]hen reviewing a motion to dismiss, a district
court ‘must consider the complaint in its entirety, as well as
other sources ordinarily examined when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the
complaint by reference, and matters of which a court may take
judicial notice.”
Funk v. Stryker Corp., 631 F.3d 777, 783 (5th
Cir. 2011)(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
5
551 U.S. 308, 322 (2007)).
II.
Voiron contends that the plaintiffs fail to state a claim
against him because Louisiana law does not recognize a cause of
action against insurance agents for failing to advise a client as
to
whether
coverage.
he
is
underinsured
or
carries
the
right
type
of
The Court agrees.
Where
there
is
an
agreement
to
procure
insurance,
the
Louisiana Supreme Court has observed, the duty of the insurance
broker or agent includes a duty of reasonable diligence:
An insurance agent who undertakes to procure insurance
for another owes an obligation to his client to use
reasonable diligence in attempting to place the insurance
requested and to notify the client promptly if he has
failed to obtain the requested insurance. The client may
recover from the agent the loss he sustains as a result
of the agent's failure to procure the desired coverage if
the actions of the agent warranted an assumption by the
client that he was properly insured in the amount of the
desired coverage.
Id. at 356 (citing Karam v. St. Paul Fire & Marine Ins. Co., 281
So.2d 728, 730-31 (La. 1973)).
Notably, the Louisiana Supreme
Court rejected the argument that an insurance agent has a duty to
inform the insured of different coverage options available and to
explain the costs and potential benefits of those coverages,
explaining:
An agent has a duty of "reasonable diligence" to advise
the client, but this duty has not been expanded to
include the obligation to advise whether the client has
procured the correct amount or type of insurance
coverage. It is the insured's responsibility to request
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the type of insurance coverage, and the amount of
coverage needed. It is not the agent's obligation to
spontaneously or affirmatively identify the scope or the
amount of insurance coverage the client needs.
Id. at 359.
An insurance agent's "duty of 'reasonable diligence'
is fulfilled when the agent procures the insurance requested." Id.
at 356 (citation omitted).
To summarize, the insured states a
claim against the agent when the insured demonstrates that:
(1) the insurance agent agreed to procure the insurance;
(2) the agent failed to use 'reasonable diligence' in
attempting to procure the insurance and failed to notify
the client promptly that the agent did not obtain
insurance; and
(3) the agent acted in such a way that he client could
assume he was insured.
Id. at 356-57 (citation omitted).
Turning to the allegations of the plaintiffs' petition, the
plaintiffs allege that Voiron negligently procured their flood
insurance in that he negligently valued the property, negligently
failed to properly advise the plaintiffs as to the correct limits
of coverage, and failed to properly advise them as to the purchase
of the correct amount of insurance to fully cover their home.
Plaintiffs'
complaint
Louisiana law.
as
to
their
agent
clearly
fails
under
They charge nothing more than that Voiron should
have identified the type and amount of flood coverage they needed
for their property. Duties that Louisiana does not impose upon the
insurance agent or broker but, instead, upon the insured.
See id.
Plaintiffs have failed to state a claim that is plausible on its
face, given that Louisiana law clearly imposes on the insureds the
7
responsibility to identify the scope and amount of flood coverage
they require.
Accordingly, Voiron's motion to dismiss is GRANTED.
The
plaintiffs' claims against Voiron are hereby dismissed.
New Orleans, Louisiana, December 11, 2013
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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