Gilcrease v. Gerber Life Insurance Company

Filing 21

Memorandum Opinion and Order: The court ORDERS that plaintiff's claims against Gerber under Sections 541.060, 542.055, and 542.056 of the Texas Insurance Code 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 such dismissals. The court further ORDERS that Gerber's motion to dismiss plaintiff's breach of contract claim be, and is hereby, denied. (Ordered by Judge John McBryde on 2/3/2017) (hth)

IN THE UNITED STATES DISTRICT CO
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
NORMAN GILCREASE,

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Plaintiff,

vs.
GERBER LIFE INSURANCE COMPANY,
Defendant.

T

NO. 4:16-CV-1074-A

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MEMORANDUM OPINION
and
ORDER
Came on for consideration the motion of defendant, Gerber
Life Insurance Company, to dismiss the complaint, as amended, of
plaintiff, Norman Gilcrease, for failure to state a claim upon
which relief may be granted.

Plaintiff responded.

Having

considered the motion, the entire record, and pertinent legal
authorities, the court concludes that the motion should be
granted.
I.

Plaintiff's Claims
Plaintiff's claims are (1) breach of an insurance policy
issued by defendant to plaintiff and (2) extra-contractual claims
related to defendant's handling of plaintiff's claim under the
policy.

Under the heading "FACTS" on page 2 of Plaintiff's First

Amended Complaint, plaintiff recites the following as the factual
bases of his claims:
6.
Plaintiff had a policy of insurance with
Defendant, policy number 40263257, which was in full
force and effect at all times relevant to this lawsuit.
7.
The policy is titled "Accident Policy• and
provides benefits in the event an insured is blinded in
one eye.
8.
The benefit for blindness in one eye is
$50,000.00.
9.
On May 15, 2015, Plaintiff fell out of his truck,
and soon thereafter began noticing vision problems.
10.
In July of 2015 Plaintiff went to see an eye
specialist who told him his retina was extremely
swollen.
11. Plaintiff next went to see a retina specialist who
prescribed eye drops but still did not have any
improvement in his eye.
12.
Plaintiff who drives a truck for a living has
always passed his eye exam to maintain his Commercial
Driver's License.
13. The problems Plaintiff experienced eventually
resulted in his failing his next eye exam for his
driver's license on May 28, 2016.
14.
Plaintiff made a claim for benefits that was
denied by Defendant in a letter dated July 20, 2016.
15. Defendant's reason for denial was based on
Defendant's assertion that Plaintiff had an accident in
1990 that resulted in his being blind in 2016.

2

16. Defendant totally ignored the May 15, 2015
accident incurred by Plaintiff.
Doc. 15 at 2, , , 6-16.

1

The extra-contractual claims are based

on alleged violations of sections 541.060, 542.055, and 542.056
of the Texas Insurance Code.

Id. at 2-4, , , 18 & 22.
II.

Grounds of the Motion to Dismiss
Defendant moved to dismiss plaintiff's complaint for failure
to state any claim upon which relief may be granted.

Because

plaintiff's claims, as alleged, are based on an insurance policy
issued by defendant to plaintiff and a claim submitted by
plaintiff to defendant under that insurance policy, defendant has
included in the appendix in support of its motion to dismiss a
copy of the insurance policy and of plaintiff's completed claim
statement and related attending physician's statement. 2
at App. 49-63, 65-66, & 68.

Doc. 18

Defendant maintained in its motion

that those documents affirmatively establish that plaintiff's

'The "Doc. _ " references are to the numbers assigned to the referenced items on the docket in
this Case No.4: 16-CV-1074-A.
2

The insurance policy and the claim papers are referred to in plaintiffs complaint and are central
to his claim. Doc. 15 at 2, ~~ 6-8 & 14. Thus, the insurance policy and claim papers that accompanied
the motion to dismiss are proper for the court's consideration in determining whether the motion to
dismiss has merit. See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir.
2000)(quoting Venture Assoes. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429,431 (7th Cir. 1993).
Plaintiff does not take issue in his response to the motion to dismiss with defendant's reliance on the
insurance policy and claim papers. Rather, plaintiff notes in his responsive memorandum that "now
Defendant has provided a good copy [of the policy) in its motion." Doe. 20 at I,~ 7.

3

claim for loss of sight in one eye is not covered by the
insurance policy.
III.

Plaintiff's Response
Plaintiff seeks in its response and supporting memorandum
leave to again amend his complaint if the court were to conclude
that defendant's motion is meritorious.
at 2, ,

8.

Docs. 19 (Prayer) & 20

In his supporting memorandum, plaintiff misrepresents

the allegations of his complaint by suggesting that he alleged
that he "suffered a fall that within a few months led to
blindness in one eye."

Doc. 20 at 1, , 5.

The amended complaint

does not contain such a causation allegation.

Supra at 2-3.

IV.
Analysis
A.

Pertinent Pleading Principles
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) .
4

(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 upon which relief can be granted, the facts pleaded
must allow the court to infer that the plaintiff's right to
relief is 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.

5

B.

Plaintiff Has Not Adequately Pleaded Any Claim
1.

The Breach of Contract Claim

Defendant has cured one of plaintiff's pleading deficiencies
by providing as part of its motion to dismiss the text of the
insurance contract upon which plaintiff bases his breach of
contract claim.

Doc. 18 at App. 49-63.

The insurance policy

provides that it will pay benefits to an eligible person "[w]ho,
as a direct result of an injury, and from no other cause,
suffer[s] a

[loss of one eye] within 365 days from the date of an

accident."

Id. at App. 50.

The term "injuries" is defined in

the policy to mean "accidental bodily injuries:

(a) received

while insured under this policy; and (b) which result
independently of sickness and all other causes, in [loss of one
eye]

"

Id. at App. 58.

Defendant maintains in support of its motion to dismiss
that, as a matter of law, the record, which includes the claim
papers submitted by plaintiff to defendant, establishes that
plaintiff did not lose an eye as the result of an accidental
bodily injury that plaintiff received while insured under the
policy, and that, if he had a loss of eye, it did not occur
within 365 days from the date of the accidental bodily injury
that caused the loss.

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The claim statement submitted by plaintiff to defendant
supports these grounds of defendant's motion.

In section 2 of

the claim statement, plaintiff said that his loss of sight was
due to an accident and that the accident occurred on August 31,
1990.

Id. at App. 65,

§

2.

In the part of the claim statement

asking for a description of "the accident, location and extent of
all injuries received," plaintiff answered:
"Shotgun to Face/upper body, San Jose, CA, Both eys
damaged, multiple surgerices corrected vision to 20/20
- 7/2015 onset of current problem, diagnosised on
6/1/16 with 20/400 vision, unable to see out of Left
eye.
Condition related to gunshot (glass fragments)
into eye causing swelling to retina."
Id. at App. 65-66,

§

2 (errors in original).

Plaintiff also

stated in his claim statement that "the injuries described above"
were "solely responsible for the loss of sight, independent of
sickness and all other causes."

Id. at App. 65,

§

11.

He provided in the claim statement the names of his doctors,
including Dr. Anderson.

Id. at App. 65,

§

12.

Dr. Anderson's

physician statement in support of plaintiff's claim substantiated
what plaintiff had said in his claim statement.

Dr. Anderson

said that plaintiff's loss of sight occurred August 31, 1990,
id., App. 68,

§

6, and that it was due to an accident that

occurred on that same date.

Id. at App. 68,

§

2.

He described

the accident, location, and extent of injuries as "Gunshot to

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Face & upper body. San Jose, CA, Loss of sight in left eye."

Id.

Dr. Anderson added confirmation that the 1990 gunshot wound
accident to plaintiff's face was solely responsible for
!,'

"'plaintiff's loss of sight in his left eye, independent of all
other causes.

Id., § 13.

No mention was made in the claim statement signed and
submitted by plaintiff to defendant, or in the attending
physician statement signed by Dr. Anderson, of any event or
occurrence, such as plaintiff falling out of a truck, that played
any part in a loss of sight suffered by plaintiff in his left
eye.

Indeed, no such accident or event was mentioned at all in

either of those documents.
Even if the court were to pretend, as plaintiff did in his
responsive memorandum, supra at 4, that he pleaded in his amended
complaint a causal connection between a fall out of his truck on
May 15, 2015, and his loss of sight in his left eye, the pleading
still would be inadequate to state a claim under the insurance
policy.

The record nevertheless would establish as a matter of

law that something that happened on May 15, 2015, was not the
cause, independently of all other causes, in the loss of vision
in plaintiff's left eye.

Supra at 6.

The court notes that the

statement by plaintiff in his claim statement that "7/2015 onset
of current problem, diagnosised [sic] on 6/1/16 with 20/400

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vision, unable to see out of Left eye," supra at 7, seems to
contradict a contention that a fall from a truck on May 15, 2015,
was causative.
Even if the court were to engage in the kind of make-believe
plaintiff engaged in when preparing and filing his responsive
memorandum, the pleading standards established by Twombly and
Iqbal would not have been met.

The pleaded facts would not allow

the court to infer that plaintiff has a plausible right of relief
under the insurance policy.

In other words, even if the

unpleaded causation suggested by plaintiff in his supporting
memorandum, supra at 4, had been included in his amended
complaint, the allegations of the amended complaint would at the
very best from plaintiff's standpoint do no more than permit the
court to infer the possibility that a fall from the truck had
something to do with plaintiff's eyesight problem.

But, even if

that possibility were to be entertained, it would be hopeless
from plaintiff's standpoint because the record would establish
conclusively that the fall from the truck was not the sole cause,
independently of other causes, of plaintiff's eye problem.
Thus, as a matter of law, the record upon which the court is
to rely in deciding whether the motion to dismiss has merit,
establishes as a matter of law that whatever loss of sight
plaintiff experienced in his left eye was caused at least in

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part, if not solely, by a shotgun wound he received in August
1990.
2.

The Extra-Contractual Claims

The failure of plaintiff to plead a breach of contract cause
of action takes down with it his extra-contractual claims.

There

are other reasons why plaintiff has failed to plead extracontractual claims, but suffice to say that plaintiff fails to
allege facts that would cause any of those claims to have merit
if the insurance company did not have an obligation to make a
payment to plaintiff under the policy.

The court agrees with the

reasons given by defendant on pages 6-8 of the motion to dismiss
that the extra-contractual claims must likewise be dismissed for
failure to state a claim upon which relief may be granted. Doc.
16.

v.
The Court is Not Authorizing Plaintiff to File
Yet Another Amended Complaint
This action was commenced by a pleading plaintiff filed in
state court on october 10, 2016.

Doc. 1-2 at 2.

The facts

alleged in that pleading in support of plaintiff's claim, id.,
were virtually identical to the facts alleged by plaintiff in his
amended complaint, supra at 2-3.

Defendant removed the action to

this court on November 23, 2016.

Doc. 1.

10

Because of the inadequacy of plaintiff's state court
pleading, the court issued an order on December 23, 2016,
requiring plaintiff to file an amended complaint in compliance
with, inter alia, the pleading requirements of the Federal Rules
of civil Procedure.

Doc. 14 at 2.

In that order, the court was

careful to explain to plaintiff what the federal court pleading
requirements are, saying:
A complaint in federal court must plead facts that
show the plaintiff's right to relief is plausible.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Further,
the court does not accept conclusory allegations or
unwarranted deductions of fact in a federal court
complaint as true.
Bell Atl. Corp. v. Twombly, 550
u.s. 544, 555 (2007)
0

Id. at 1-2.
By the time that order was issued, plaintiff had already
been alerted to the deficiencies in his state court pleading by
the answer defendant had filed in state court.

Doc. 1-6 at 2-4.

Having knowledge of the facts he would have to plead in order to
state a claim under the insurance policy, and of the federal
pleading rules, plaintiff was fully alerted before he filed his
first amended complaint that he was at risk of dismissal of his
amended complaint if in response to the December 23, 2016 order
he did not plead facts,

rather than conclusory allegations or

II

unwarranted deductions of fact, that would show that his right to
relief is plausible.'
Not only did plaintiff fail in his amended complaint to cure
the pleading deficiencies of which he by then had knowledge, he
made no attempt upon receipt of defendant's motion to dismiss to
seek in a proper way leave to file yet another amended complaint.
Plaintiff's passing references in his response to the motion
to dismiss and in his supporting memorandum of his contingent
desire to file another amended complaint are not in compliance
with the Local Civil Rules of this court.

Plaintiff did not

comply with the requirement of Local Civil Rule LR 5.1, which
requires that "[a]ny document must clearly identify each included
. motion .

"

If leave is sought to amend a pleading,

the Local Civil Rules require that the movant attach a copy of
the proposed amended pleading as an exhibit to the motion, and
submit with the motion the original and a copy of the proposed
pleading.

LR 5.1.

Apparently plaintiff was not serious enough

about filing another amended complaint to go to the trouble to
comply with the Local Civil Rules.
Moreover, the record indicates that if plaintiff were to put
in another amended complaint allegations of fact that would be

'The December 23, 2016 order requiring plaintiff to file an adequate amended complaint stated
that his failure to comply with the order may result in the imposition of sanctions, including dismissal of
his claims, without further notice. Doc. I 4 at 2.

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and 542.056 by not addressing them in his response to Gerber's
motion to dismiss.
IV.
Order
Therefore,
The court ORDERS that plaintiff's claims against Gerber
under Sections 541.060, 542.055, and 542.056 of the Texas
Insurance Code 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 such
dismissals.
The court further ORDERS that Gerber's motion to dismiss
plaintiff's breach of contract claim be, and is hereby, denied.
SIGNED February 3, 2017.

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