Miller v. Allstate Texas Lloyd's et al

Filing 10

MEMORANDUM OPINION AND ORDER DENYING 7 Opposed MOTION to Remand. Plaintiff's claims against Draper are DISMISSED WITHOUT PREJUDICE. Attorney Marilyn S Cayce and Roger Dale Higgins terminated. Christie Draper terminated.(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MICHAEL MILLER,

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Plaintiff,
v.
ALLSTATE TEXAS LLOYD’S,
TIMOTHY LEE DOANE,
and CHRIS DRAPER,
Defendants.

August 04, 2017
David J. Bradley, Clerk

CIVIL ACTION H-17-1684

MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff Michael Miller’s motion to remand. Dkt. 7. Having
considered the motion, response, petition, and the applicable law, the court is of the opinion that the
motion should be DENIED.
I. BACKGROUND
This is an insurance dispute between Miller and defendants Allstate Texas Lloyd’s
(“Allstate”), Timothy Lee Doane, and Chris Draper (collectively, “Defendants”). At all times relevant
to this matter, Miller owned property located at 22538 August Leaf Drive, Tomball, Texas 77375 (the
“Property”). Dkt. 1, Ex. 2 (state-court petition) at 3. Miller also maintained a homeowner’s insurance
policy (the “Policy”) on the Property through Allstate. Id. Miller purchased the Policy from Draper,
an insurance agent for Allstate. Id. According to Miller, Draper told him that the Policy included hail
and windstorm coverage. Id. Allstate responds that the Policy plainly covers windstorm and hail
damage unless the damage is to the Property’s interior and not the result of a storm-created opening
in the roof or wall. Dkt. 8 at 7–10.

The Policy states:
Section I – Perils Insured Against
Coverage[] A (Dwelling) and Coverage B (Personal Property)
We insure against physical loss to the property described in Coverage A (Dwelling) and
Coverage B (Personal Property) caused by a peril listed below, unless the loss is excluded in
Section I Exclusions.
2. Windstorm, Hurricane and Hail.
This peril does not cover:
b)

loss caused by rain, snow, sleet, sand or dust whether or not driven by wind, unless
the direct force of wind or hail makes an opening in the roof or wall and the rain,
snow, sand or dust enters through this opening and causes the damage.

Dkt. 8 at 7–8.
On or about April 18, 2016, the Property was damaged by a severe storm. Dkt. 1, Ex. 2 at 3.
Miller asserts that “[d]amaged areas of the property include, but are not limited to the roof, vents,
flashings, windows, window screens, fascia, gutters, downspouts, HVAC system, shed, and fencing.”
Id. at 3–4. After the Property was damaged, Miller submitted a claim against the Policy to Allstate.
Id. at 3.

Allstate then “assigned or hired Doane to adjust the claim.” Id. at 4. On or around

December 14, 2016, Doane inspected the Property, and found $435.46 in covered damage. Id. at 4.
Miller claims that Doane’s assessment undervalued the amount of damage to the property and that
Doane misrepresented the cause of damage to the Property. Id. Miller claims that although the
damage to the Property is estimated at $23,446.51, he has received $0.00 from Allstate for damage
to the Property. Id. at 5.
On or about April 24, 2017, Miller filed suit against Defendants in the 151st Judicial District
Court of Harris County, Texas. Dkt. 1, Ex. 1. Miller asserts causes of action (1) against Draper for
violations of the Texas Deceptive Trade Practices Act (“DTPA”) and the Texas Insurance Code; (2)
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against Allstate for breach of contract, breach of the duty of good faith and fair dealing, fraud, and
violations of the DTPA and Texas Insurance Code; and (3) against Doane for fraud, negligence, gross
negligence, and violations of the DTPA and the Texas Insurance Code. Dkt. 1, Ex. 2 at 7–17 (citing
Tex. Bus. & Com. Code Ann. § 17.41–63 (West 2017), Tex. Ins. Code Ann. §§ 541– 42, 4003, 4101
(West 2017); Tex. Civ. Prac. & Rem. Code § 41.001(11)(A)-(B) (West 2017)).
On June 5, 2017, Allstate, Doane, and Draper removed the case to federal court on the basis
of diversity jurisdiction under 28 U.S.C. §§ 1332(a)(1), 1441(a), and 1446. Dkt. 1. On June 30,
2017, Miller filed a motion to remand. Dkt. 7. On July 20, 2017, Defendants responded. Dkt. 8.
The motion is now ripe for disposition.
II. LEGAL STANDARDS
A.

Removal
“Federal courts are courts of limited jurisdiction.” Howery v. Allstate Ins. Co., 243 F.3d 912,

916 (5th Cir. 2001). A defendant may remove an action to federal court in instances where the court
would have original jurisdiction over the case. 28 U.S.C. § 1441. Here, Defendants assert the court
can exercise diversity jurisdiction. Dkt. 1 at 1. Subject matter jurisdiction based on diversity requires
complete diversity among the parties and an amount in controversy exceeding $75,000.00. 28 U.S.C.
§ 1332. A case which does not have complete diversity may be removed if the in-state defendant was
named for the purpose of destroying diversity, which is known as improper joinder. Hornbuckle v.
State Farm Lloyds, 385 F.3d 538, 542 (5th Cir. 2004). “As ‘the effect of removal is to deprive the
state court of an action properly before it, removal raises significant federalism concerns’ and as such
must be strictly construed.” Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th Cir.
2007) (quoting Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365–66 (5th Cir. 1995)).

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Accordingly, “any doubt about the propriety of removal must be resolved in favor of remand.” Id.
at 281–82.
Defendants assert that Draper, a Texas resident whose presence would destroy diversity, was
improperly joined. Dkt. 1 at 3. The Fifth Circuit has “recognized two ways to establish improper
joinder: ‘(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to
establish a cause of action against the non-diverse party in state court.’” Smallwood v. Ill. Cent. R.
Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc) (quoting Travis v. Irby, 326 F.3d 644, 646–47 (5th
Cir. 2003)). The court may either utilize a Rule 12(b)(6)-type analysis or a summary judgment-type
inquiry to determine whether the plaintiff has established a cause of action under state law. Id. at 573.
A summary judgment-type inquiry is required when there are few facts in the plaintiff’s original
petition. Id. (“[T]he district court may, in its discretion, pierce the pleadings and conduct a summary
[judgment] inquiry” in such cases where “a plaintiff has stated a claim, but has misstated or omitted
discrete facts that would determine the propriety of joinder.”). “[S]uch a procedure requires that ‘all
disputed questions of fact’ be ‘resolved in favor of the nonremoving party.’” Badon v. R J R Nabisco,
Inc., 224 F.3d 382, 393 (5th Cir. 2000) (quoting Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100
(5th Cir. 1990) (emphasis removed)). “Moreover, the district court must resolve any uncertainties
as to the current state of controlling substantive law in favor of the plaintiff.” B., Inc. v. Miller
Brewing Co., 663 F.2d 545, 549 (5th Cir. Unit A 1981).
Here, Defendants assert only the second basis for improper joinder, which requires the court
to determine whether Miller has pled any viable claims against Draper. Dkt. 1 at 3–4; see Smallwood,
385 F.3d at 573. To establish improper joinder on this basis, the court must find that “there is no
reasonable basis for the district court to predict that the plaintiff might be able to recover against an
in-state defendant.” Smallwood, 385 F.3d at 573. Therefore, Defendants have the heavy burden of
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establishing that Miller has failed to meet the pleading standard on every claim asserted against
Draper. See Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1998) (“As a preliminary matter,
we emphasize that the burden of establishing federal jurisdiction is placed upon the party seeking
removal.”).
B.

Rule 12(b)(6) Standard
To demonstrate that Miller failed to meet the federal pleading standard, the court may perform

a Rule 12(b)(6)-type analysis. Smallwood, 385 F.3d at 573. In a Rule 12(b)(6)-type analysis, a
federal court must apply the federal pleading standard to the original state court pleading. Int’l
Energy Ventures Mgmt. L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 205 (5th Cir. 2016). In
considering Rule 12(b)(6) motions, courts generally must accept the factual allegations contained in
the complaint as true. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982). Courts should “not look beyond the face of the pleadings” when
determining whether the plaintiff has stated a claim under Rule 12(b)(6). Spivey v. Robertson, 197
F.3d 772, 774 (5th Cir. 1999) (citations omitted). Although detailed factual allegations are not
required to prevail on a Rule 12(b)(6) analysis, a plaintiff must allege “more than labels and
conclusions, and [] formulaic recitation[s] of the elements of a cause of action” to “provide the
‘grounds’ of his ‘entitle[ment] to relief.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955 (2007). The facts supporting the plaintiff’s cause of action must be plausible—enough to
raise a reasonable expectation that discovery will reveal further supporting evidence. Id. If “a
complaint shows on its face that it is barred by an affirmative defense, a court may dismiss the action
for failing to state a claim.” Aspen Specialty Ins. Co. v. Muniz Eng’g, Inc., 514 F. Supp. 2d 972, 980
(S.D. Tex. 2007) (Harmon, J.) (citing Kaiser Aluminum, 677 F.2d at 1050). Ultimately, “if a plaintiff
can survive a Rule 12(b)(6) challenge, there is no improper joinder.” Smallwood, 385 F.3d at 573.
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C.

Summary Inquiry Standard
Defendants have presented no summary judgment-type evidence in this case. Therefore a

summary judgment-type analysis is not appropriate here. See Smallwood, 385 F.3d at 573-74.
Accordingly, the court will conduct a Rule 12(b)(6)-type analysis to determine if Miller’s claims
against Draper meet the federal pleading standard.
III. ANALYSIS
It is undisputed that both Miller and Draper are residents of Texas. Dkt. 1, Ex. 2 at 1-2; Dkt. 8
at 2. It is further undisputed that diversity of citizenship exists between Miller and Doane, as Doane
is a resident of Florida. Dkt. 1, Ex. 2 at 1–2. Allstate “remains an association of underwriters whose
individual underwriters are all residents and citizens of the State of Illinois and New Jersey.” Dkt. 1
at 3. Miller does not address the amount in controversy requirement in his motion to remand, so the
court will not address it here. Dkt. 7. The issue is whether Miller improperly joined the in-state
defendant, Draper, to defeat diversity jurisdiction. Dkt. 1.
Miller contends that remand is appropriate because his claims against Draper, the non-diverse
defendant, are sufficiently well-pled as to state a claim under Texas law. Dkt. 7 at 6–7. Thus, Miller
asserts that Draper was properly joined and complete diversity does not exist.1 Id.
Defendants counter that this case was properly removed to federal court because Draper was
improperly joined. Dkt. 1 at 3. Defendants argue that the claims against Draper should be dismissed
because (1) Miller’s claims are conclusory and not sufficient to survive a 12(b)(6) dismissal, and (2)

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On page 6, Miller incorrectly says “[a]s Doane was properly joined as a defendant in the
above captioned cause, complete diversity does not exist and this court lacks subject matter
jurisdiction.” Dkt. 7 at 6–7. The court construes this as a typographical error, as Draper, not Doane,
is the only party who could potentially destroy diversity.
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Miller failed to allege an actionable misrepresentation claim. Dkt. 1 at 3-4. The court will examine
Defendants’ arguments and determine whether “there is no reasonable basis for the district court to
predict that the plaintiff might be able to recover against an in-state defendant.” Smallwood, 385 F.3d
at 573.
A.

The Sufficiency of Miller’s Claims Against Draper
Miller alleges that Draper’s conduct in selling the Policy to him violated the DTPA and the

Texas Insurance Code. Dkt. 1, Ex. 2 at 16–17. The court will (1) examine the elements Miller needs
to allege under the DTPA and the Texas Insurance Code and (2) conduct a Rule 12(b)(6) analysis on
Miller’s allegations to determine if they are sufficient to state a claim. “Both the Texas Insurance
Code and the Texas Deceptive Trade Practices Act permit a private cause of action against ‘any
person’ who commits one of the prohibited acts or practices.” Griggs v. State Farm Lloyds, 181 F.3d
694, 701 (5th Cir. 1999) (citing Tex. Ins. Code Ann. § 541.002(b) and Tex. Bus. & Com. Code
§ 17.50).
1. Required Elements Under the DTPA and Texas Insurance Code
To state a valid claim under the DTPA, Miller must show that (1) he is a consumer, (2) that
the defendant engaged in false, misleading, or deceptive acts which are either enumerated in §17.46
or relied on by Miller to his detriment, and (3) that those acts were a producing cause of Miller’s
damages. Tex. Bus. & Com. Code Ann. § 17.50(a)(1). “‘Consumer’ means an individual . . . who
seeks or acquires by purchase or lease, any goods or services . . . .” Id. § 17.45(4). “Purchase of an
insurance policy is the purchase of a service within the meaning of the Texas DTPA.” Webb v.
UnumProvident Corp., 507 F. Supp. 2d 668, 678 (W.D. Tex. 2005) (citing 3Z Corp v. Stewart Title
Guar. Co., 851 S.W.2d 933, 937 (Tex.App.—Beaumont 1993, no writ)). Thus, Miller is a consumer

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under the terms of the DTPA and can bring suit for any violations of the DTPA connected to his
purchase of the Policy.
To state a valid claim under the Texas Insurance Code, a plaintiff must show that (1) a
misrepresentation was made, issued or circulated (2) with regard to either (i) the Policy’s terms, or
(ii) its benefits or advantages. Tex. Ins. Code § 541.051(1)(a)-(b).
2. Rule 12(b)(6)-Type Analysis
With regard to both the DTPA and Texas Insurance Code, “Texas courts [recognize] that the
statutory language is broad enough to permit in the appropriate circumstances a cause of action
against an insurance agent who engages in unfair or deceptive acts or practices.” Griggs, 181 F.3d
at 701; see, e.g., Liberty Mutual Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482 (Tex. 1998)
(holding an insurance agent individually liable for misrepresenting the premium due); State Farm
Fire & Casualty Co. v. Gros, 818 S.W.2d 908 (Tex. App.—Austin 1991, no writ) (holding an
insurance agent individually liable for misrepresenting that damage resulting from a mudslide was
covered under the homeowner’s insurance policy). Therefore, as an Allstate agent, Draper can be
held liable under both the DTPA and the Texas Insurance Code.
However, Miller’s allegations must feature more than labels and conclusions. See Twombly,
550 U.S. at 555 (“Courts ‘are not bound to accept as true a legal conclusion couched as a factual
allegation.’” (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932 (1986))). The bulk of
Miller’s allegations against Draper merely assert that Draper violated the DTPA and Texas Insurance
Code without alleging any case-specific facts. See generally Mt. Olive Missionary Baptist Church
v. Underwriters at Lloyd’s London, No. CV H–16–234, 2016 WL 4494439, at *3 (S.D. Tex. Aug.
26, 2016) (Miller, J.) (citing Okenkpu v. Allstate Texas Lloyd’s, CV H–16–234, 2016 WL 4494439,
at *7 (S.D. Tex. Mar. 27, 2012) (Harmon, J.) (collecting cases)). Miller alleges that “Draper violated
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[S]ections of 17.46(b)(2) and 17.46(b)(5) of the DTPA” by his “acts, omissions, failures, and
conduct.” Dkt. 1, Ex. 2 at 16. Miller also asserts that “Draper’s violations include causing confusion
as to the Policy benefits and representing that the Policy had benefits or characteristics that it did not
possess.” Id. Further, Miller contends that “[t]he conduct, acts, omissions, and failures of Draper are
unfair practices in the business of insurance in violation of Section 17.50(a)(4) of the DTPA.” Id.
at 17. Regarding the Texas Insurance Code, Miller contends that “Draper’s conduct constitutes
multiple violations of the Texas Insurance Code.” Id. These types of conclusory allegations are
insufficient to state a claim for relief under the Rule 12(b)(6) pleading requirements.
Miller did, however, allege one more specific factual allegation regarding his
misrepresentation claims. Dkt. 1, Ex. 2 at 17. With regard to the misrepresentation claims under the
Texas Insurance Code and DTPA, Miller asserts that “Draper misrepresented that the Policy afforded
benefits in the form of payment for hail and wind damages, when the Policy did not.” Id. For the
purposes of a Rule 12(b)(6) analysis, the court will assume this allegation is true and must determine
whether it “plausibly give[s] rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679,
129 S. Ct. 1937 (2009).
Because Miller’s claims against Draper are predicated on misrepresentation—and because
such claims are often subject to the Rule 9(b) standard2—Miller “must state with particularity the

2

See, e.g., Lone Star Ladies Inv. Club v. Schlotzsky’s, Inc., 238 F.3d 363, 368 (5th Cir. 2001)
(“Rule 9(b) applies by its plain language to all averments of fraud, whether they are part of a claim
of fraud or not.”) (citations omitted); Di Tommaso v. State Farm Lloyd’s, No 15-CV-00274, 2016
WL 6883042 at *2 (S.D. Tex. Sept. 28, 2016) (Alvarez, J.) (“[C]ourts have consistently applied Rule
9(b)’s heightened pleading standard to Texas Insurance Code claims [and] DTPA claims . . . . Some
courts have been careful to distinguish between Texas Insurance Code provisions which are
ultimately grounded in fraud and those that are not. However, courts applying Rule 9(b) to DTPA
claims make no such fine-tuned distinctions.”); Mt. Olive, 2016 WL 4494439 at *4 (analyzing
misrepresentation claims under the Rule 9(b) standard typically applicable to fraud claims); Partain
v. Mid-Continent Specialty Ins. Servs, Inc., 838 F. Supp. 2d 547, 557 (S.D. Tex. 2012) (Ellison, J)
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circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). To survive a Rule 9(b) analysis,
a plaintiff must set forth in the complaint “the who, what, when, where, and how” of the events in
question. ABC Arbitrage Plaintiffs Grp. v. Tchuruk, 291 F.3d 336, 349 (5th Cir. 2002); see Dorsey
v. Portfolio Equities, Inc., 540 F.3d 333, 339 (5th Cir. 2008).
Defendants contend that Miller fraudulently joined Draper, a non-diverse party, because he
“fail[ed] to specify a legal and factual basis for a claim” against Draper. Dkt. 1 at 4 (citing Waters
v. State Farm Mut. Auto. Ins. Co., 158 F.R.D. 107, 109 (S.D. Tex. 1994)). In Waters, the insured
sued both his insurer and the insurer’s agent to recover unpaid benefits. Waters, 158 F.R.D. at 108.
The insured alleged fraud and violations of the DTPA and of the Texas Insurance Code. Id. The
Defendants removed the case from state court to federal court contending that the agent had been
fraudulently joined so as to defeat diversity jurisdiction. Id. They further contended that in his
complaint, the insured merely asserted conclusory statements—such as that the agent made a
misrepresentation about the benefits of an insurance policy—which “do not state a cause of action
without factual support.”3 Id. Further, the insured’s counsel stated that he did not know of any
evidence linking the insurance agent to a material misrepresentation, but that he suspected the
evidence would show that the insurance agent had made a misrepresentation. Id. at 109. The court
found the insured’s allegation insufficient and held that more specific facts were required for a claim
under Rule 9(b). Id.

(determining that a claim under § 541.051 of the Texas Insurance Code is substantively identical to
a claim for fraud, and requires satisfactory pleading of the Rule 9(b) requirements if the plaintiff
pleads that the defendant knowingly or recklessly made misrepresentations).
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Support sufficient to state a claim for misrepresentation might “specify the time, place, or
content of any alleged misrepresentations.” Waters, 158 F.R.D. at 109.
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By contrast, Miller does not merely plead that Draper made a general misrepresentation about
the policy’s coverage, as was the case in Waters. Id. Miller specifically alleges that when he
purchased his Policy, Draper misrepresented to him that the Policy included hail and windstorm
coverage for the Property; yet, once Allstate interpreted the Policy, coverage was largely denied.
Dkt. 1, Ex. 2 at 4–5. Miller claims that the denial damaged him because he did not receive his
expected insurance payment. Dkt.1, Ex. 2 at 18–20. Miller’s allegations are more specific because
they identify who made the misrepresentation, the contents of the misrepresentation, and why the
misrepresentation was false. Id. Miller does not expressly allege time and place in his complaint, but
it is fair to infer that this alleged misrepresentation took place when and where Miller purchased the
Policy. See U.S. ex. rel. Grubbs v. Kanneganti, 565 F.3d 180, 188 (5th Cir. 2009) (quoting Williams
v. WMX Techs., Inc., 112 F.3d 175, 178 (5th Cir. 1997)) (“‘Rule 9(b)’s ultimate meaning is contextspecific,’ and thus there is no single construction of Rule 9(b) that applies in all contexts.”).
B.

Actionable Misrepresentation
Second, the Defendants also argue that the alleged misrepresentation is not actionable as there

was no affirmative misrepresentation. Dkt. 1 at 6. The court will examine (1) whether there was a
misrepresentation which induced Miller to purchase the policy, and (2) whether Miller’s reliance on
the alleged misrepresentation about the scope of windstorm and hail coverage was justifiable.
1. Inducement
“Before any misrepresentation can be said to be actionable, it must have induced the
purchase.” Tsao v. Ferring Pharms., Inc., No. 16-cv-01724, 2017 WL 746451 at *9 (S.D. Tex. Jan.
24, 2017). Here, the court finds that Miller’s claim is too vague to meet his burden of specificity
under Rule 9(b) because there are no allegations suggesting that Miller relied on Draper’s
misrepresentation in connection with Miller’s decision to purchase the Policy. The bare allegation
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that Draper misrepresented the scope of Miller’s windstorm and hail coverage is not sufficient to
show that the misrepresentation induced the purchase. See id. (noting that a “bare allegation of
reliance . . . is not sufficient to satisfy the heightened pleading required for a claim of fraud”).
2. Justifiable Reliance
Furthermore, under Texas Law, the claimant must show his reliance on the alleged
misrepresentation was justifiable. Lewis v. Bank of Am. NA, 343 F.3d 540, 546 (5th Cir. 2003)). “A
fraud plaintiff ‘cannot recover if he blindly relies upon a misrepresentation the falsity of which would
be patent to him if he had utilized his opportunity to make a cursory examination or investigation.’”
Id. (quoting Field v. Mans, 516 U.S. 59, 70–71, 116 S.Ct. 437 (1995)). Therefore, “‘reliance upon
an oral representation that is directly contradicted by the express, unambiguous terms of a written
agreement between the parties is not justified as a matter of law.’” Fannie Mae v. U.S. Prop. Sols.,
LLC, No. H-08-3588, 2011 WL 66161, at *6 (S.D. Tex. Jan. 10, 2011) (Miller, J.) (quoting DRC
Parts & Accessories, L.L.C. v. VM Motori, S.P.A., 112 S.W.3d 854, 858 (Tex. App.—Houston [14th
Dist.] 2002, pet. denied)).
An insured is “deemed to know the contents of the [insured’s insurance] policy” unless the
insured alleges an affirmative misrepresentation that would conflict with those terms. Wyly v.
Integrity Ins. Sols., 502 S.W.3d 901, 912 (Tex.App.—Houston [14th Dist.] 2016, no pet.). “An
imprecise or vague representation constitutes mere opinion and is not actionable under the DTPA.”
Bank One, Texas, N.A. v. Little, 978 S.W.2d 272, 280 (Tex. App.—Fort Worth 1998, pet. denied);
see also Wyly, 502 S.W.3d at 908; Hedley Feedlot, Inc. V. Weatherly Trust, 855 S.W.2d 826, 839
(Tex. App.—Amarillo 1993, writ denied). Miller argues that Draper misrepresented the Property’s
coverage under the Policy by failing to note the limiting language in the Policy. Dkt. 7 at 5.
Conversely, Defendants argue that because Miller’s policy expressly covers windstorm and hail
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damage and explicitly states the limiting principle, Miller’s claim of misrepresentation and reliance
is barred. Dkt. 1 at 6. The court agrees with Defendants. Miller failed to make an affirmative
misrepresentation with regard to the policy limitation. See Manion v. Sec. Nat’l Ins. Co., No. 13-0100248-CV, 2002 WL 34230861, at *2 (Tex. App.—Corpus Christi-Edinburg 2002, no pet.) (holding
that a plaintiff who did not allege that the defendant “claimed there were no exclusions in the policy”
did not state an actionable claim of misrepresentation). Therefore, Miller was responsible for reading
the Policy and cannot meet the justifiable reliance prong.
In sum, Miller’s allegations feature more details than a general allegation of misrepresentation.
Yet, Miller’s misrepresentation allegations are not actionable because: (1) the bare allegation that
Draper misrepresented the scope of Miller’s windstorm and hail coverage is not sufficient to show
that Draper’s misrepresentation induced the purchase, and (2) there is no alleged misrepresentation
about the meaning of the Policy’s windstorm and hail exclusion and the terms of the Policy expressly
cover windstorm and hail damage. Therefore, Miller’s reliance on Draper’s alleged misrepresentation
is unjustifiable and, as currently pled, Miller’s original petition fails to state any actionable claims for
misrepresentation under the DTPA or the Texas Insurance Code.
Accordingly, the court finds that Defendants have met their heavy burden to show that Draper
was improperly joined because Miller fails to state a claim against Draper. Therefore, there is “no
reasonable basis for the district court to predict” that Miller might be able to recover against Draper.
Smallwood, 385 F.3d 573. Miller’s claims against Draper are DISMISSED WITHOUT PREJUDICE.
Because there is complete diversity between Miller and defendants Allstate and Doane, Miller’s
motion to remand is DENIED.

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IV. CONCLUSION
Based on the foregoing, Miller’s motion to remand (Dkt. 5) is DENIED and Miller’s claims
against Draper are DISMISSED WITHOUT PREJUDICE.

Signed at Houston, Texas on August 4, 2017.

________________________________
Gray H. Miller
United States District Judge

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