Perez v. Allstate Vehicle and Property Insurance Company et al

Filing 33

MEMORANDUM OPINION and ORDER: The court ORDERS that the 24 , 26 motions of Baxter and Cox to dismiss the claims against them for failure to state a claim upon which relief may be granted be, and are hereby, granted; and that plaintiff's claims against Baxter and Cox 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. (Ordered by Judge John McBryde on 9/20/2017) (tln)

U.S. DTSTIHCTCOURT

NORTilERc'! D:S'iR'CT OF TliX M~

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IN THE UNITED sTATEs DISTRic couRr.:..!c:-", · ·
NORTHERN DISTRICT OF TE •AS
' SEP 2 0 2017

'ORT WORT;

ANTONIO PEREZ,
Plaintiff,

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§
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vs.

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ALLSTATE VEHICLE AND PROPERTY
INSURANCE COMPANY, ET AL.,

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Defendants.

NO. 4:17-CV-490-A

§
§
§

MEMORANDUM OPINION
and
ORDER
Came on for consideration the motions of defendants William
Baxter ("Baxter") and William Cox ("Cox") to dismiss the claims
of plaintiff, Antonio Perez, against them in the above-captioned
action.

The court, having considered the motions, the responses,

the record, and applicable legal authorities, concludes that the
motions should be granted.
I.

Procedural History and Background
Plaintiff initiated this action by filing a complaint in the
342nd Judicial District Court of Tarrant County, Texas, naming as
defendants Allstate Vehicle and Property Insurance Company
("Allstate"), Baxter, and Cox.

On June 16, 2017, defendant

Allstate removed the action to this court, alleging diversity of
citizenship and the required amount in controversy.

_,,/

On July 17, 2017, the court ordered plaintiff to replead so
that his pleadings would comply with the federal court pleading
standards.

The order called plaintiff's attention to the

pleading requirements of Rule B(a) and 9(b) of the Federal Rules
of Civil Procedure, and directed plaintiff to file an amended
complaint that complied with those requirements.
On August 10, 2017, plaintiff filed his First Amended
Complaint.'

Despite the warnings provided in the order for

repleading, plaintiff's complaint as amended was, with a few
exceptions, basically a repeat of his state court pleading,
alleging, in a conclusory way, violations of sections of the
Texas Insurance Code, fraud and conspiracy to commit fraud,
breach of contract, and breach of they duty of good faith and
fair dealing.
The amended pleading alleged that plaintiff is the insured
named in an insurance policy issued by Allstate covering property
owned by him in Tarrant County, Texas; that on or about March 23,
2016, a hail or wind storm caused damage to his property; Baxter
and Cox were the adjusters assigned by Allstate to adjust the

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0n August I 0, 2017, plaintiff filed two documents titled "Plaintiffs First Amended Complaint."
The first, which was not signed, was filed early in the morning and was stricken and unfiled by an order
signed that morning, and the second was filed that afternoon. The second was signed, and appears to be
worded exactly the same as the first. Each of the motions to dismiss under consideration refers to the
pleading to which the motion is directed by use of the docket number of the first-filed, and then unfiled,
amended complaint. The comt is treating the motion in each instance to be directed to the second-filed
version of the amended complaint.
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claim; and that Allstate did not pay him as much on his claim as
he thought he should receive.
The allegations of plaintiff's complaint are the type of
boilerplate allegations the court has learned to expect in cases
of this kind.

For the most part, the allegations are purely

conclusory, and are but recitations of elements of contractual,
statutory, and common law causes of action without supporting
factual allegations.

The allegations made against Baxter and Cox

are found in paragraphs 35, 38, 40, 41, and 43 of the complaint.
They are:
1.

Violations of §§541.060 (a) (1),

(a) (2) (A), and

(a) (3) of the Texas Insurance Code based on alleged failures
to (a) reasonably investigate plaintiff's claim,
(b) determine through such reasonable investigation whether
liability under the policy was reasonably clear, and
(c) attempt in good faith to effectuate a prompt, fair,
equitable settlement of the claim.
2.

and

Doc. 21 at 8, , 35. 2

Violations of §541.060(a) of the Texas Insurance

Code pertaining to Unfair Settlement Practices, which
plaintiff alleged are made actionable by §541.151 of the
Texas Insurance Code.

Id. at 10, , 38(b).

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The "Doc._" references are to the numbers assigned to the referenced items on the docket in
this Case No.4: 17-CV-490-A.
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3.

Violation of §541.060(a) (1) of the Texas Insurance

Code by representing to plaintiff material facts relating to
the insurance coverage in question, which constituted an
unfair method of competition and an unfair and deceptive act
or practice in the business of insurance.
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Id. at 10-11,

38 (d) .
4.

Violation of §541. 060 (a) (2) (A) of the Texas

Insurance Code in failing to attempt in good faith to
effectuate a prompt, fair, and equitable settlement with the
claim, even though liability under the policy was reasonably
clear.
5.

Id. at 11,

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38 (e).

Violation of §541.060(a) (3) of the Texas Insurance

Code for failing to offer plaintiff adequate compensation,
for failing to explain to plaintiff the reasons for their
offer and why full payment was not being made, and for
failing to communicate that any future settlement or payment
would be forthcoming to pay for the entire loss covered by
the policy.
6.

Id. at 11-12,

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38(f).

Violation of §541.060(a) (4) of the Texas Insurance

Code for failing within a reasonable period of time to
affirm or deny coverage of plaintiff's claim, or to submit a
reservation of rights to plaintiff.

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Id. at 12,

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38(g).

7.

Violation of §541.060(a) {7) of the Texas Insurance

Code for failing to properly inspect plaintiff's property
and to account for and/or undervalue exterior and interior
damages to the property that plaintiff had reported to
Allstate, Cox, and Baxter.
8.

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38(h).

Common law fraud, based on misrepresentations of

material fact.
9.

Id. at 12,

Id. at 12,

~~

40-42.

Conspiracy, along with Allstate, to commit fraud,

in reaching a meeting of the minds regarding the course of
action to be taken against plaintiff.

Id. at 13,

~

43.

II.
Grounds of the Motions to Dismiss
The motions of Baxter and Cox have almost identical wording.
They note that plaintiff's primary complaint is that Allstate,
not Baxter or Cox, paid him less for his insurance claim than he
expected or wanted, and that the allegations against Baxter and
Cox are mere conclusory allegations that lack the factual
specificity that would enable a court to infer that plaintiff has
a plausible right of relief against either of the individual
defendants.

The movants contend that not only has plaintiff

failed to allege facts supporting any cause of action against
either of them, they called the court's attention to plaintiff's
failure to comply with his pleading obligation to provide

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specificity of the kind required by Rule 9(b) of the Federal
Rules of Civil Procedure as to any of his claims that are
dependent on alleged misrepresentations or fraud.
III.

Analysis
A.

Applicable Pleading Standards
1.

Rule 8 (a) ( 2 )

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[s are] and the grounds upon which [they]
rest[]."

Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)

(internal quotation marks and ellipsis omitted).

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.

Id. 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,

See Ashcroft v. Iqbal,

679 (2009) ("While legal conclusions can provide the

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framework of a complaint, they must be supported by factual
allegations.").
Moreover, to survive a motion to dismiss for failure to
state a claim, the facts pleaded must allow the court to infer
that the plaintiff's right to relief is plausible.

Id. 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.

Twombly, 550 U.S. at 566-69.

"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.•

Iqbal, 556 U.S. at 679.

The Fifth Circuit has explained: "Where the complaint is
devoid of facts that would put the defendant on notice as to what
conduct supports the claims, the complaint fails to satisfy the
requirements of notice pleading." Anderson v. U.S. Dep't of
Housing and Urban Dev., 554 F.3d 525, 528 (5th Cir. 2008).
sum,

In

"a complaint must do more than name laws that may have been

violated by the defendant; it must also allege facts regarding
what conduct violated those laws.

In other words, a complaint

must put the defendant on notice as to what conduct is being
called for defense in a court of law."

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Id. at 528-29.

2.

Rule 9(b)

Rule 9(b) sets forth a heightened pleading standard
applicable to fraud claims: "In alleging fraud or mistake, a
party must state with particularity the circumstances
constituting fraud or mistake.•

Fed. R. Civ. P. 9(b).

Sometimes

referred to as "the who, what, when, where, and how,• United
States ex rel Williams v. Bell Helicopter Textron, 417 F.3d 450,
453

(5th Cir. 2005)

(internal quotation marks omitted), the Fifth

Circuit requires a party pleading fraud to "specify the
statements contended to be fraudulent,

identify the speaker,

state who and where the statements were made, and explain why the
statements were fraudulent.•
Techs.,

Herrman Holdings Ltd. v. Lucent

Inc., 302 F.3d 552, 564-65 (5th Cir. 2002)

(internal

quotations omitted); see also Benchmark Elecs., Inc. v. J.M.
Huber Corp.,

343 F.3d 719,

723-24

(5th Cir. 2003),

Claims alleging violations of the Texas Insurance Code of
the kind asserted here are subject to the Rule 9(b) pleading
requirements. Omni USA, Inc., v. Parker-Hannifin Corp., 798
F.Supp.2d 831, 836

(S.D. Tex. 2011); Frith v. Guardian Life Ins.

Co. of Am., 9 F.Supp.2d 734, 742
B.

(S.D. Tex. 1998).

Inadequacies in Allegations Against Baxter and Cox
Plaintiff's complaint is short on facts, but contains an

abundance of conclusory allegations.

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For example, plaintiff

alleged that defendants knowingly or recklessly made false
statements, but did not point to any specific statement, nor did
he allege to whom, by whom, when, or where any statement was
made.

Plaintiff alleged that the inspection of the property

damage was inadequate, but failed to give any information
indicating acts or omissions making it so.

Plaintiff has not

adequately alleged the nature, or the extent, of the damages to
the property, the amount of compensation due to him, or the
amount received.
Plaintiff's primary complaint seems to be that he believes
Allstate failed to pay him what he thinks he was entitled to
under the insurance policy.

The damages sought by plaintiff

against Baxter and Cox are properly referred to as extracontractual damages.

For plaintiff to seek damages of that sort,

he is required to allege an injury separate from those resulting
from a wrongful denial of benefits, and that defendants' acts or
omissions were the proximate cause of that injury.

Parkans Int'l

LLC v. Zurich Ins. Co., 299 F.3d 514, 519 (5th Cir. 2002);
Provident Am. Ins. Co. v. Castaneda, 988 S.W.2d 189, 198-99 (Tex.
1998).

Here, plaintiff has alleged no facts that would make

plausible a separate injury claim.
Plaintiff's extra-contractual claims and his fraud claim
also fail in that plaintiff has not met the requirements of Rule

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9(b) of the Federal Rules of Civil Procedure as to those claims.'
He has failed to allege the specific facts necessary to state
such a claim.

Herrmann Holdings,

302 F.3d at 564-65.

As a

result, his civil conspiracy claim based on fraud also fails.
Okenkpu v. Allstate Texas Lloyd's, No. H-11-2376, 2012 WL
1038678, *4

(S.D. Tex. Mar. 27, 2012).

Plaintiff has failed to plead any specific, actionable
conduct by Baxter or Cox, but rather makes but generic,
conclusory, statute-tracking allegations regarding their actions.
Those allegations are insufficient to state a claim against
either of them.

Plascencia v. State Farm Lloyds, No.

4:14-CV-524-A, 2014 WL 11474841 (N.D. Tex. Sept. 25, 2014);
Okenkpu, 2012 WL 1038678, at *7.
IV.
Order
The court ORDERS that the motions of Baxter and Cox to
dismiss the claims against them for failure to state a claim upon

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which relief may be granted be, and are hereby, granted; and that

'Rule 9(b) applies "to all cases where the gravamen of the claim is
fraud even though the themy suppmting the claim is not technically termed fraud." Tracy v.
Chubb Lloyds Ins. Co. of Texas. 2012 WL 2477706, 7 (N.D. Tex. 2012) citing Frith v. Guardian
Life Ins. Co. of Am .. 9 F.Supp.2d 734,742 (S.D. Tex. 1998) (internal quotation marks omitted)
(citing Toner v. Allstate Ins. Co .. 821 F.Supp. 276,283 (D. Del. 1993) (emphasis added).
"Claims alleging violations of the Texas Insurance Code and the Deceptive Trade Practices
Act ... are subject to the requirements of Rule 9(b)." Bel'ly v. Indianapolis Life Ins. Co., 608 F.
Supp. 2d 785, 800 (N.D. Tex. 2009); Frith, 9 F.Supp.2d at 742-43 (S.D. Tex. 1998).

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E

plaintiff's claims against Baxter and Cox 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.
SIGNED September 20, 2017.

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