Columbia Mutual Insurance Company v. Trewitt-Reed Funeral Home, Inc., d/b/a Lacy Funeral Homes, Inc. et al
Filing
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Memorandum Opinion and Order granting in part 54 Motion to Dismiss filed by Columbia Mutual Insurance Company. The court ORDERS that the caption of this action be, and is hereby, amended to reflect that the first-named defendant is Trewitt-Re ed-Lacy Funeral Home, Inc. d/b/a Lacy Funeral Home. The court ORDERS that plaintiff's second amended motion to dismiss counterclaim be, and is hereby, granted in part, and that Lacy's counterclaims except for breach of contract be, and are hereby, dismissed. The court determines that there is no just reason for delay in, and hereby directs, entry of final judgment as to the dismissal of the counterclaims for violation of the TexasInsurance Code, bad faith, and declaratory judgment. (Ordered by Judge John McBryde on 2/5/2016) (trt)
U.S.
COURT
NORTH ERN D!STitlCT OF TEXA.S
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COLUMBIA MUTUAL INSURANCE
COMPANY,
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Plaintiff,
TREWITT-REED FUNERAL HOME, INC.
D/B/A LACY FUNERAL HOME, INC.,
ET AL.
Defendants.
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l FEB -5 20\6
IN THE UNITED STATES DISTRICT COURT'
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
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§
§
§
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NO. 4:15-CV-568-A
MEMORANDUM OPINION AND ORDER
Came on for consideration the second amended motion of
plaintiff, Columbia Mutual Insurance Company, to dismiss the
second amended counterclaim of defendant Trewitt-Reed-Lacy
Funeral Home, Inc. 1 d/b/a Lacy Funeral Home ("Lacy"). The court,
having considered the motion, the response, the reply, the
record, and applicable authorities, finds that the motion should
be granted in part.
I.
Background
This case presents an insurance dispute. Plaintiff issued a
commercial insurance policy to defendants, Lacy and Brazos
Sundown Crematory, LLC, providing coverage for two commercial
'The court notes that the correct name of this defendant, according to the parties, is different
from the name used in the style of the action. The court is ordering that the caption be amended to reflect
the proper name.
properties. Defendants say that the properties were damaged
during an April 2015 storm. Plaintiff says that some of the
damage occurred as a result of an earlier storm for which
defendants received compensation from another insurance carrier,
but did not make repairs, while other damage is excluded. When
matters could not be resolved, plaintiff brought this declaratory
judgment action. Lacy, the owner of the properties, has
counterclaimed, asserting claims for breach of contract,
violation of the Texas Insurance Code, and bad faith.
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Lacy also
seeks a declaratory judgment that the policy at issue provides
coverage for the cost to repair the properties or, at least, that
the policy is ambiguous and must be interpreted in defendants'
favor,
that is, to provide coverage.
II.
Grounds of the Motion
Plaintiff says that the second amended counterclaim fails to
state any claim to relief that is plausible on its face. Further,
the request for declaratory judgment serves no independent
purpose and must be dismissed.
2
The pleading at issue is Lacy's second amended counterclaim. Lacy has twice amended the
counterclaim in response to motions to dismiss.
2
III.
Applicable Standards of Pleading
Rule 8(a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8(a) (2),
"in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Corp. v. Twombly, 550
u.s.
544, 555
quotation marks and ellipsis omitted) .
(2007)
(internal
Although a complaint need
not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.
Twombly, 550 U.S. at 555 & n.3.
Thus, while a court
must accept all of the factual allegations in the complaint as
true, it need not credit bare legal conclusions that are
unsupported by any factual underpinnings.
556 U.S. 662, 679 (2009)
See Ashcroft v. Iqbal,
("While legal conclusions can provide
the framework of a complaint, they must be supported by factual
allegations.").
Moreover, to survive a motion to dismiss for failure to
state a claim under Rule 12(b) (6), the facts pleaded must allow
the court to infer that the plaintiff's right to relief is
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plausible.
Iqbal, 556 U.S. at 678.
-----------
-------------
To allege a plausible right
to relief, the facts pleaded must suggest liability; allegations
that are merely consistent with unlawful conduct are
insufficient. Id. In other words, where the facts pleaded do no
more than permit the court to infer the possibility of
misconduct, the complaint has not shown that the pleader is
entitled to relief. Id. at 679. "Determining whether a complaint
states a plausible claim for relief .
.
.
[is] a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense."
Id.
Rule 9(b) sets forth the heightened pleading standard
imposed for fraud claims: "In alleging fraud or mistake, a party
must state with particularity the circumstances constituting
fraud or mistake." The Fifth Circuit requires a party asserting
fraud to "specify the statements contended to be fraudulent,
identify the speaker, state when and where the statements were
made, and explain why the statements were fraudulent." Hermann
Holdings, Ltd. v. Lucent Techs., Inc., 302 F.3d 552, 564-65
(5th
Cir. 2002) (internal quotations and citations omitted). Succinctly
stated, Rule 9(b) requires a party to identify in its pleading
"the who, what, when, where, and how" of the events constituting
the purported fraud. Dorsey v. Portfolio Equities, Inc., 540 F.3d
333, 339 (5th Cir. 2008). Claims alleging violations of the Texas
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Insurance Code are subject to the requirements of Rule 9(b).
Frith v. Guardian Life Ins. Co. of Am., 9 F. Supp. 2d 734, 742
(S.D. Tex. 1998) .
III.
Analysis
Plaintiff first alleges that Lacy has failed to sufficiently
plead its breach of contract claim. Lacy has pleaded the
existence of the insurance policy and the breach of the policy by
plaintiff, unlike the situation in Radenbaugh v. State Farm
Lloyds, No. 4:13-CV-339-A, 2013 WL 4442024
(N.D. Tex. Aug. 16,
2013), upon which plaintiff relies. Although the details are
somewhat sketchy, Lacy has pleaded a claim for breach of
contract.
Lacy's allegations with regard to alleged violations of the
Texas Insurance Code are conclusory and do not contain the facts
needed to support a plausible claim. Luna v. Nationwide Prop. &
Cas. Ins. Co., 798 F. Supp. 2d 821, 828-31 (S.D. Tex. 2011)
i
Hudgens v. Allstate Texas Lloyd's, No. H-11-2716, 2012 WL
2887219, at *7 (S.D. Tex. July 13, 2012). There are no
allegations as to who said what, when, and where, and how Lacy
was harmed as a result. The allegations regarding bad faith
suffer from the same deficiency. Lacy simply says that plaintiff
investigated and adjusted its claim "in a malicious, intentional,
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fraudulent and/or grossly negligent fashio~." Doc. 3 53 at 7, ,
28. Lacy also refers to an "extreme risk" of financial damage and
"serious damage . . . as a result of [plaintiff's] refusal to
honor the Policy." Id. Although the facts are clearly within
Lacy's knowledge, it has made no attempt to plead them, despite
having been warned three times (by plaintiff's motions to
dismiss) of the deficiency.
Finally, Lacy seeks declaratory judgment under the Texas
statute, which does not apply here. Camacho v. Texas Workforce
Comm'n, 445 F.3d 407, 412-13
(5th Cir. 2006). In any event, the
declaratory relief sought would add nothing to the action in that
the request mirrors plaintiff's claims and duplicates Lacy's own
claim for breach of contract. See, e.g., Burlington Ins. Co. v.
Ranger Specialized Glass, Inc., No. 4:12-CV-1759, 2012 WL
6569774, at *2-3
(S.D. Tex. Dec. 17, 2012); Regus Mgmt. Grp., LLC
v. Int'l Bus. Mach. Corp., No. 3:07-CV-1799-B, 2008 WL 2434245,
at *3
(N.D. Tex. June 17, 2008); Xtria, LLC v. Tracking Sys.,
Inc., No. 3:07-CV-0160-D, 2007 WL 1791252, at *2-3
(N.D. Tex.
June 2 1, 2 oo7 ) .
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The "Doc." reference is to the number of the item on the court's docket in this action.
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IV.
Order
The court ORDERS that the caption of this action be, and is
hereby, amended to reflect that the first-named defendant is
Trewitt-Reed-Lacy Funeral Home, Inc. d/b/a Lacy Funeral Home.
The court ORDERS that plaintiff's second amended motion to
dismiss counterclaim be, and is hereby, granted in part, and that
Lacy's counterclaims except for breach of contract be, and are
hereby, dismissed.
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment as to the
dismissal of the counterclaims for violation of the Texas
Insurance Code, bad faith, and declaratory judgment.
SIGNED February 5, 2016.
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