Fernandez et al v. Allstate Texas Lloyds et al
Filing
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MEMORANDUM OPINION AND ORDER granting 21 Partial Motion to Dismiss for Failure to State a Cause of Action Pursuant to Rules 12(b)(6) and 9(b) of the Federal Rules of Civil Procedure. Plaintiffs' claims other than breach of contract be, and are hereby, dismissed. (Ordered by Judge John McBryde on 12/19/2017) (tln)
U.S. DISTRICT COURT
•.·NORTHERN DISTRICT OF TEXAS
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FILED
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IN THE UNITED STATES DISTRICT C URT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
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CLERK, U.S. DISTRICT COURT
CHERYL FERNANDEZ, ET AL.,
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Plaintiffs,
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vs.
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NO. 4:17-CV-729-A
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ALLSTATE TEXAS LLOYDS,
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Defendant.
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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Allstate
Texas Lloyds,
for partial dismissal. The court, having considered
the motion, the response of plaintiffs, Cheryl Fernandez and Joel
Fernandez, the record, and applicable authorities, finds that the
motion should be granted.
I.
Background
On August 11, 2017, plaintiffs filed their original petition
in the District Court of Tarrant County, Texas, 153rd Judicial
District, asserting claims against defendant and its adjustor.
The action was removed to this court on the basis of diversity
jurisdiction. Plaintiffs filed a motion to remand, which was
denied by memorandum opinion and order signed October 27, 2017.
The court determined that the adjustor had been improperly joined
and dismissed plaintiffs' claims against him. By separate order
signed October 27, 2017, the court ordered the parties to replead
in keeping with the requirements of the Federal Rules of Civil
Procedure, Local Civil Rules of the court, and the undersigned's
judge-specific requirements.
On November 8, 2017, plaintiffs filed their amended
complaint, which basically tracks the language of the original
petition but omits references to the insurance adjustor by name.
Plaintiffs assert causes of action for breach of contract,
violation of the prompt payment provisions of the Texas Insurance
Code,
§§ 542.051-.061, unfair settlement practices in violation
of Texas Insurance Code§ 541.060(a), violation of the Texas
Deceptive Trade Practices-Consumer Protection Act, Tex. Bus. &
Com. Code§§ 17.41-.63
("DTPA"), and breach of duty of good faith
and fair dealing.
II.
Grounds of the Motion
Defendant asserts that plaintiffs have not pleaded
sufficient facts to state any plausible extra-contractual claims.
III.
Applicable 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,"
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Fed. R. Civ. P. S(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 (2007)
quotation marks and ellipsis omitted) .
(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. Igbal,
("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, the facts pleaded must allow the court to infer
that the plaintiff's right to relief is plausible.
U.S. at 678.
Igbal, 556
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.
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"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.
As 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
requirement of notice pleading." Anderson v. U.S. Dep't of
Housing & Urban Dev., 554 F.3d 525, 528 (5th Cir. 2008). In sum,
"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." Id. at 528-29. Further,
the complaint must specify the acts of the defendants
individually, not collectively, to meet the pleading standards of
Rule 8 (a). See Griggs v. State Farm Lloyds, 181 F.3d 694, 699
(5th Cir. 1999); see also Searcy v. Knight (In re Am. Int'l
Refinery), 402 B.R. 728, 738 (Bankr. W.D. La. 2008).
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
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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). Rule 9 (b) applies to all cases where
the gravamen of the claim is fraud even though the theory
supporting the claim is not technically termed fraud. Frith v.
Guardian Life Ins. Co. of Am.,
9 F. Supp. 2d 734, 742
(S.D. Tex.
1998). Claims alleging violations of the Texas Insurance Code and
the Texas DTPA as well as those for fraud,
fraudulent inducement,
fraudulent concealment, and negligent misrepresentation are
subject to the requirements of Rule 9(b). Berry v. Indianapolis
Life Ins. Co., 608 F. Supp. 2d 785, 800
(N.D. Tex. 2009); Frith,
9 F. Supp. 2d at 742.
IV.
Analysis
Defendant maintains that plaintiffs have failed to plead
sufficient facts to support their extra-contractual claims. In
response, plaintiffs cite to their conclusory allegations, but do
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not point to facts alleged in the amended complaint. For example,
they contend that paragraph 13 of the amended complaint includes
specific facts "to support its [sic] allegations.• Doc. 1 23 at 4.
Paragraph 13 says:
Allstate assigned an adjuster to inspect the
property, investigate the damages, and advise Allstate
of the adjustment of the claim. Despite obvious visible
wind and hail damage caused by the storm, Allstate's
adjustor, verbally misrepresented to Plaintiffs at the
time of the inspection that there was only limited
damage to roof shingles, damage to the gutters and
various window screens attributable to the hail and
wind storm and Plaintiffs' policy did not warrant
coverage for a full replacement of the roof. On the
contrary, Allstate's policy pay [sic] for all covered
damages from hail and wind, which includes full
replacement of the roof.
Doc. 20 at 3. No specific facts are alleged. Rather, plaintiffs
argue that the "specific date and time should be documented in
the claims file in possession of Allstate.• Doc. 23 at 5. They
cite no authority to support the proposition that defendant's
alleged knowledge of the facts is sufficient to meet plaintiffs'
burden of pleading plausible claims.
Plaintiffs' pleading deficiencies were the subject of the
court's memorandum opinion and order signed October 27, 2017,
Doc. 17, yet plaintiffs failed to address these deficiencies in
their amended complaint. As defendant notes, plaintiffs do not
allege what defendant should have done to conduct a reasonable
'The "Doc.
"reference is to the number of the item on the docket in this action.
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investigation. See Luna v. Nationwide Prop. & Cas. Ins. Co., 798
F. Supp. 2d 821, 827
(S.D. Tex. 2011). Nor are there any
allegations regarding what was substandard about the inspection
performed. Id. Moreover, plaintiffs have not pleaded facts to
show an independent injury from breach of contract. Parkans Int'l
LLC v. Zurich Ins. Co., 299 F.3d 514, 519 (5th Cir. 2002).
Rather, it is clear from plaintiffs' pleading, conclusory as it
is, that the dispute is over the amount to be paid under the
insurance contract. By plaintiffs' own admission, the policy
would cover replacement of the roof, but the limited damage
observed by the insurance adjustor did not warrant its
replacement. Doc. 20 at 3, , 13. That plaintiffs disagree with
the adjustor's observations does not give rise to extracontractual claims, at least not as pleaded here. 2
In sum, plaintiffs have not pleaded facts to show the who,
what, when, where, and how of their extra-contractual claims.
They simply rely on the single factual allegation that they
noticed missing shingles on their roof followed by a host of
conclusory allegations. Therefore, the court is granting
defendant's motion.
2
The court notes that the Supreme Cou1t of Texas has granted rehearing in USAA Tex. Lloyds
Co. v. Menchaca, No. 14-0721, 2017 WL 1311752 (Tex. Apr. 7, 2017), discussed by the pmties. The
case did not provide any guidance that would have affected the outcome of this action in any event, the
question here being the sufficiency of plaintiffs' pleading.
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v.
Order
The court ORDERS that defendant's motion partial motion to
dismiss be, and is hereby, granted, and that plaintiffs' claims
other than breach of contract be, and are hereby, dismissed.
SIGNED December 19, 2017.
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