Perez v. Allstate Vehicle and Property Insurance Company et al

Filing 35

MEMORANDUM OPINION and ORDER re: 22 Motion to Dismiss. The court ORDERS that all claims and causes of action asserted by plaintiff against Allstate other than his breach of contract claim, which is alleged in paragraphs 46 and 47, on page 14, o f plaintiff's first amended complaint, be, and are hereby, dismissed with prejudice. The court further ORDERS that by September 27, 2017, plaintiff file a second amended complaint in which the only defendant named will be Allstate, and the onl y claim or cause of action asserted therein will be plaintiff's claim or cause of action against Allstate for breach of the policy contract. The court further ORDERS that by October 11, 2017, Allstate file an answer or other response to such second amended complaint. The court further ORDERS that the title to the above-captioned action be changed so that from this point forward it shall be "Antonio Perez, Plaintiff, v. Allstate Vehicle and Property Insurance Company, Defendant." (Ordered by Judge John McBryde on 9/20/2017) (tln)

--,

IN THE UNITED STATES DISTRICT C,OURT
NORTHERN DISTRICT OF TEXASi
FORT WORTH DIVISION

SfP
ANTONIO PEREZ,

§
§

Plaintiff,

I

§

§

vs.

§
§

ALLSTATE VEHICLE AND PROPERTY
INSURANCE COMPANY, ET AL.,

?-0~~

CLEkK, U.S. DISTRICT COURT
By _ _ _r;::::::::----Dcpuly

§
§
§
§

Defendants.

NO.

4:17~CV-490-A

MEMORANDUM OPINION
and
ORDER
The court has before it for consideration and decision the
motion of defendant Allstate Vehicle and Property Insurance
Company ("Allstate") to dismiss the claims of plaintiff, Antonio
Perez, against it in the above-captioned action.

The court,

having considered the motion, plaintiff's response, the record,
and applicable legal authorities, concludes that such motion
should be granted as to all claims asserted by plaintiff against
Allstate other than his breach of policy contract claim; and, the
court is affording plaintiff an opportunity to amend his breach
of policy contract claim to cause it to be legally sufficient.
Earlier on the date of the signing of this memorandum
opinion and order, the court issued a memorandum opinion and
order, and final judgment as to certain parties, by which all
claims and causes of action asserted by plaintiff against
defendants Williams Baxter ("Baxter") and William Cox ("Cox")

were dismissed.

Plaintiff has asserted against Allstate those

same extra-contractual claims based on provisions of the Texas
Insurance Code against Allstate.

The same reasons given in the

Baxter and Cox memorandum opinion and order as to why plaintiff
has not pleaded facts that would make plausible those claims
against Baxter or Cox exist as to why plaintiff has not pleaded
facts that would cause such claims to be plausible against
Allstate.

The court here adopts by reference all reasons given

in the Baxter and Cox memorandum opinion and order for dismissal
of those claims against Baxter and Cox as reasons why they must
be dismissed as asserted against Allstate.

The same is true as

to the common law fraud and conspiracy to commit fraud claims
that are asserted against Allstate as well as Baxter and Cox.
Plaintiff has not alleged facts that would state those claims
against Allstate.

Thus, they must be dismissed.

The only claims that remain against Allstate are his breach
of policy contract claim that he was not paid by Allstate as much
as he thinks he should have been paid under the insurance policy
for the damage to his property, and his claim that Allstate
intentionally breached its common law duty of good faith and fair
dealing as to him.
As to the latter claim, plaintiff has alleged no facts that
would make plausible a claim against Allstate of breach of a duty

2

of good faith and fair dealing.

Therefore, that claim must be

rejected as constituting nothing more than a basic recitation of
the elements of such a claim, with no allegation of facts that
would lead to the conclusion that such a claim is plausible.
The court questions the adequacy of plaintiff's alleged
breach of contract claim against Allstate.

As Allstate points

out in its motion to dismiss, plaintiff has pleaded no facts
identifying any specific contractual provision breached by
Allstate, he failed to attach a copy of the insurance policy to
his complaint, and failed to identify what provision or
provisions of the insurance policy Allstate allegedly breached.
However, on the assumption that plaintiff might be able to cure
those pleading defects, the court is not dismissing plaintiff's
breach of contract claim against Allstate, but is allowing him an
opportunity to amend his complaint as to that claim.
Therefore,
The court ORDERS that all claims and causes of action
asserted by plaintiff against Allstate other than his breach of
contract claim, which is alleged in paragraphs 46 and 47, on page
14, of plaintiff's first amended complaint, be, and are hereby,
dismissed with prejudice.
The court further ORDERS that by September 27, 2017,
plaintiff file a second amended complaint in which the only

3

defendant named will be Allstate, and the only claim or cause of
action asserted therein will be plaintiff's claim or cause of
action against Allstate for breach of the policy contract.
The court further ORDERS that by October 11, 2017, Allstate
file an answer or other response to such second amended
complaint.
The court further ORDERS that the title to the abovecaptioned action be changed so that from this point forward it
shall be "Antonio Perez, Plaintiff, v. Allstate Vehicle and
Property Insurance Company, Defendant."
SIGNED September 20, 2017.

District

4