Button et al v. Chubb Lloyds Insurance Company of Texas et al

Filing 73

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 70 Report and Recommendations, Order,, 50 Motion to Dismiss filed by Chubb Lloyds Insurance Company of Texas. Signed by Judge Richard A. Schell on 2/5/13. (cm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
TERRY BUTTON and OSSIE BUTTON,
Plaintiffs,
VS.
CHUBB LLOYDS INSURANCE
COMPANY OF TEXAS,
Defendant.

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Case No. 4:11CV536

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action, this
matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636. On December 19, 2012, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that Defendant Chubb Lloyds Insurance Company of Texas’
Motion to Dismiss (Dkt. 50) be GRANTED as to Plaintiffs’ breach of express and implied warranty
claims, Plaintiffs’ negligence and negligent misrepresentation claims, Plaintiffs’ fraud claims,
Plaintiffs’ claims of misrepresentations and false statements under the DTPA and Texas Insurance
Code (as set forth in ¶¶ 5.4(A), 5.4(C)(1), 5.4(C)(2), 5.4(C)(3)(1)(i), and 5.4(C)(4) of Plaintiffs’
complaint) and Plaintiffs’ affirmative claims of promissory and equitable estoppel and DENIED as
to Plaintiffs’ breach of contract claims, Plaintiffs’ claims of breach of common law duty of good
faith and fair dealing, Plaintiffs’ claims of unconscionable conduct, actions, and course of actions

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under DTPA Section 17.50(a)(1)(B)(3) of the DTPA (as set forth in ¶5.4B of Plaintiffs’ complaint),
Plaintiffs’ claims of unfair settlement practices, under Texas Insurance Code §§ 541.060(a)(2),
541.060(a)(2)(B), 541.060(a)(3), 541.060(a)(4)(A), and 541.060(a)(7) (as set forth in
¶¶5.4(C)(3)(1)(ii)(iii)(iv)(v)(vi) of their complaint), and Plaintiffs’ allegations that Defendant
violated Texas Insurance Code §§ 542, et seq. by failing to timely handle their claim (as set forth in
¶5.4(D)(1) of their complaint).
Having received the report of the United States Magistrate Judge, and no objections thereto
having been timely filed, this court is of the opinion that the findings and conclusions of the
Magistrate Judge are correct and adopts the Magistrate Judge’s report as the findings and conclusions
of the court.
Therefore, Defendant Chubb Lloyds Insurance Company of Texas’ Motion to Dismiss (Dkt.
50) is GRANTED as to Plaintiffs’ breach of express and implied warranty claims, Plaintiffs’
negligence and negligent misrepresentation claims, Plaintiffs’ fraud claims, Plaintiffs’ claims of
misrepresentations and false statements under the DTPA and Texas Insurance Code (as set forth in
¶¶ 5.4(A), 5.4(C)(1), 5.4(C)(2), 5.4(C)(3)(1)(i), and 5.4(C)(4) of Plaintiffs’ complaint) and Plaintiffs’
affirmative claims of promissory and equitable estoppel and DENIED as to Plaintiffs’ breach of
contract claims, Plaintiffs’ claims of breach of common law duty of good faith and fair dealing,
Plaintiffs’ claims of unconscionable conduct, actions, and course of actions under DTPA Section
17.50(a)(1)(B)(3) of the DTPA (as set forth in ¶5.4B of Plaintiffs’ complaint), Plaintiffs’ claims of
unfair settlement practices, under Texas Insurance Code §§ 541.060(a)(2), 541.060(a)(2)(B),

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541.060(a)(3), 541.060(a)(4)(A), and 541.060(a)(7) (as set forth in ¶¶5.4(C)(3)(1)(ii)(iii)(iv)(v)(vi)
of their complaint), and Plaintiffs’ allegations that Defendant violated Texas Insurance Code §§ 542,
et seq. by failing to timely handle their claim (as set forth in ¶5.4(D)(1) of their complaint).
IT IS SO ORDERED.

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SIGNED this the 4th day of February, 2013.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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