Wiley v. American Zurich Insurance Company
Filing
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OPINION ON DISMISSAL. All pending motions, if any, are DENIED.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
WILLIS FLOYD WILEY
TDCJ-CID NO.753383,
Plaintiff,
v.
AMERICAN ZURICH INSURANCE
COMPANY,
Defendant.
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CIVIL ACTION H-11-1144
OPINION ON DISMISSAL
Plaintiff, a state inmate incarcerated in the Texas Department of Criminal Justice
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Correctional Institutions Division proceeding pro se but not in forma pauperis, has filed a
complaint, which he frames as a civil rights lawsuit pursuant to 42 U.S.C. § 1983. (Docket Entry
No.1). Plaintiff seeks compensatory and punitive relief from the American Zurich Insurance
Company (
“the Insurance Company for violations of the American with Disabilities Act, the
”)
Eighth and Fourteenth Amendments, the Texas Administrative Title 28 Insurance Code, and the
Deceptive Trade Practices Act. (Docket Entry No.1, pages 1-2). He also claims that the
Insurance Company engaged in misrepresentation, breach of duty, and good faith and fair
dealing by refusing to pay plaintiff the death benefits to which he claims entitlement as the legal
beneficiary of his father’s estate. (Id.). For the reasons to follow, the Court will dismiss this case.
BACKGROUND
Plaintiff indicates that the Insurance Company is the workers compensation
insurance carrier of Rescar Industries in Houston, Texas, for whom plaintiff’s father was
employed as a switchman. (Id., pages 4-5). On November 11, 2008, his father was killed when
he and two other men were switching rail cars. (Id., pages 5-6). On November 18, 2008, an
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attorney who represented the alleged common law wife of plaintiff’s father informed plaintiff of a
possible lawsuit against Rescar. (Id., pages 6-7). Plaintiff declined to participate in such suit.
The attorney of the putative spouse, nevertheless, gave plaintiff a copy of a $120,000.00 life
insurance policy issued by the Lincoln National Life Insurance Company, which listed plaintiff
and his sister as beneficiaries. (Id., page 7). Plaintiff completed the beneficiary claim form and
mailed it to the Lincoln National Life Insurance Company; he also filed an estate claim with the
Harris County, Texas Probate Court. (Id.).
On June 5, 2009, plaintiff was informed by letter from the Clerk of the Harris
County Probate Court that a small estate affidavit had been filed and approved on January 22,
2009, but a personal representative had not been appointed. (Id., pages 7-8). Plaintiff was
advised to employ an attorney if he wanted to pursue legal action for insurance benefits. (Id.).
On September 3, 2009, plaintiff completed a Notice of Fatal Injury Occupational
Disease and Claim for Compensation for Death Benefits (
“the Notice and mailed it to the Texas
”)
Department of Insurance. (Id., page 8). On December 3, 2009, the Lincoln National Life
Insurance Company deposited $60,060.78 in plaintiff’s inmate trust fund account. (Id.). On
January 5, 2010, plaintiff was informed by a representative of the Lincoln National Life
Insurance Company that it was not a workers compensation carrier and had not received the
Notice. (Id.). Plaintiff was advised to contact Rescar for information regarding the Notice.
(Id.).
Rescar advised plaintiff on January 27, 2010 that the American Zurich Insurance
Company was its workers compensation carrier and advised plaintiff to contact Gallagher Bassett
Services Incorporated (
“Gallagher Bassett ), who handled such claims for the Insurance Company.
”
(Id, page 9). Plaintiff learned from Gallagher Bassett that he had been denied death benefits.
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(Id.). Plaintiff later received notice on July 7, 2010, from the Texas Department of Insurance
Division of Workers Compensation that his claim had been set for a benefit review and that an
ombudsman had been assigned to handle the dispute. (Id., pages 9-10). Plaintiff also learned
that his father’s alleged common-law wife was disputing his claim to death benefits because the
Insurance Company had already started paying her the workers compensation death benefits.
(Id.). After a hearing on November 30, 2010, the Benefit Contested Case Hearing Officer issued
a decision against plaintiff. (Id., page 11). Plaintiff filed an appeal of the decision and on
February 28, 2011, the Texas Department of Insurance Division of the Workers Compensation
Appeal Panel affirmed the November 30, 2010 decision. (Id.).
On March 28, 2011, plaintiff filed the pending civil rights suit, which the Court
dismissed pursuant to the “three strikes provision of 28 U.S.C. § 1915(g). (Docket Entry No.3).
”
Plaintiff paid the entire filing fee and on June 9, 2011, the Court granted plaintiff’s motion to
reopen the case. (Docket Entry No.8).
DISCUSSION
In its Opinion on Dismissal signed on April 13, 2011, the Court noted an
alternative reason for dismissing plaintiff’s claims against the American Zurich Insurance
Company. In footnote one, the Court indicated that plaintiff’s claims were subject to dismissal
because they were conclusory and legally frivolous. (Docket Entry No.13, n.1). The Court
further noted that plaintiff had stated no facts to show that the insurance company was a state
actor under 42 U.S.C. § 1983 or a public entity under the Americans with Disabilities Act or that
the company had engaged in any activity that violated plaintiff’s constitutional or statutory rights.
(Id.). The Court indicated that plaintiff’s remaining claims against the Insurance Company were
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state law claims and not federal claims. (Id.). Nevertheless, plaintiff moved to reopen the case
and submitted a supplement to the pleading. (Docket Entry 7).
A plaintiff seeking relief under 42 U.S.C. § 1983 must establish two essential
elements -- that the conduct complained of was committed under color of state law and that the
conduct deprived the plaintiff of rights secured by the Constitution or laws of the United States.
Hernandez v. Maxwell, 905 F.2d 94, 95 (5th Cir. 1990). Plaintiff concedes that the American
Zurich Insurance Company is a private entity. (Docket Entry No.7-1, page 2). Because the
Insurance Company is not a state actor, it is not subject to suit under § 1983. Because plaintiff
cannot prove any set of facts in support of his federal claims against the Insurance Company
under § 1983, his complaint fails to state a cause of action and is subject to dismissal. See also
Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992) (plaintiff must state facts and not
conclusory allegations).
The Americans with Disabilities Act (
“ADA is a federal anti-discrimination
”)
statute intended to eliminate discrimination against individuals with disabilities. Delano-Pyle v.
Victoria County, Texas, 302 F.3d 567, 574 (5th Cir. 2002). Title II of the ADA authorizes suits
by private citizens for money damages against public entities that violate 42 U.S.C. § 12132. See
42 U.S.C. § 12133 (incorporating by reference 29 U.S.C. § 794a). As plaintiff has conceded, the
Insurance Company is a private entity. Because it is not a public entity, the Insurance Company
is not subject to suit under the ADA. Therefore, plaintiff’s ADA claim against the Insurance
Company is subject to dismissal for failure to state a claim.
Plaintiff’s remaining claims against the Insurance Company under the Texas
Administrative Title 28 Insurance Code and the Deceptive Trade Practices Act, and his claims of
misrepresentation, breach of duty, and good faith and fair dealing are state law claims. A district
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court may decline to exercise supplemental jurisdiction if it has dismissed all the claims over
which it had original jurisdiction. 28 U.S.C. § 1367(c)(3). Although the general rule in the Fifth
Circuit “is to dismiss state claims when the federal claims to which they are pendent are
dismissed[,] Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 585 (5th Cir.
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1992); Priester v. Lowndes County, 354 F.3d 414, 425 (5th Cir. 2004), the Supreme Court has
counseled that district court’s should examine factors such as economy, convenience, fairness,
federalism, and comity in determining whether jurisdiction should be exercised. United Mine
Workers v. Gibbs, 383 U.S. 715, 726 (1966).
Because the Court has not had substantial
involvement with this case, the Court declines to exercise supplemental jurisdiction over
plaintiff’s state law claims against American Zurich Insurance Company.
CONCLUSION
For the reasons stated herein, plaintiff’s complaint is DISMISSED. His federal
claims against American Zurich Insurance Company are DISMISSED WITH PREJUDICE. His
state law claims against American Zurich Insurance Company are DISMISSED WITHOUT
PREJUDICE, to plaintiff seeking relief in state court. All pending motions, if any, are DENIED.
The Clerk shall provide a copy of this Order to the parties.
SIGNED at Houston, Texas, this 12th day of October, 2011.
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MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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