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Wilson v. Allstate Insurance Co.

United States District Court, E.D. Texas, Sherman Division

April 10, 2017


          Judge, Nowak



         Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On March 5, 2017, the report of the Magistrate Judge (Dkt. #31) was entered containing proposed findings of fact and recommendations that Defendant Allstate Insurance Company's (“Defendant”) Rule 12(b)(1) Motion to Dismiss for Lack of Jurisdiction and Rule 12(b)(6) Motion to Dismiss (“Motion to Dismiss”) (Dkt. #21) be denied. Having received the report and recommendation of the Magistrate Judge (Dkt. #31), having considered Defendant's timely filed objections (Dkt. #32), and having conducted a de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge's report (Dkt. #31) as the findings and conclusions of the Court.


         On November 15, 2016, Plaintiff Tommy Wilson (“Plaintiff”) filed the present suit, asserting claims against Defendant for breach of contract and violations of the Texas Insurance Code (Dkt. #1). Plaintiff is the owner of a Texas Homeowner's Insurance Policy (the “Policy”) issued by Allstate Vehicle and Property Insurance Company, for the period beginning December 7, 2015 to December 7, 2016 (Dkt. #1, Exhibit E). In March 2016, Plaintiff's home, located at 6815 McWhirter Rd., Allen, Texas 75002 (the “Property”), was damaged by a wind and hail storm; Plaintiff submitted a claim for the resulting damage after the storm (Dkt. #11 at 3). Plaintiff asserts that Defendant grossly underestimated the damage to the Property. On February 6, 2017, Defendant filed its Motion to Dismiss (Dkt. #21), arguing that Plaintiff's suit was not yet ripe because of Plaintiff's failure to comply with the Policy's express requirement to submit a sworn proof of loss (“POL”) 91 days before filing suit against Defendant, and also alleging that Plaintiff had failed to state a claim. The relevant portion of the Policy, setting forth the POL requirement, states:

13. Action Against Us
No one may bring an action against us in any way related to the existence or amount of coverage, or the amount of loss for which coverage is sought . . . unless:
a) there has been full compliance with all policy terms; and
b) the action is commenced within two years and one day from the date the cause of action first accrues; and
c) in the event that you and we fail to agree on the amount of loss claimed by you, unless you have previously provided to us a signed sworn proof of loss, it is a condition under this Action Against Us provision that no later than 91 days prior to commencing any action against us that we receive from you a signed sworn proof of loss. . .

(Dkt. #21, Exhibit A). The Parties agree that Plaintiff did not submit a POL prior to initiating litigation against Defendant Allstate. On February 16, 2017, Plaintiff timely filed a Response to Defendant's Motion to Dismiss (Dkt. #24). On February 23, 2017, Defendant filed a Reply (Dkt. #25). The Magistrate Judge entered a report and recommendation on March 5, 2017, recommending Defendant's Motion to Dismiss be denied (Dkt. # 31). Subsequently, Defendant timely filed objections on March 20, 2017 (Dkt. # 32).


         A party who files timely written objections to a magistrate judge's report and recommendation is entitled to a de novo review of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2)-(3). At the outset, the Court notes neither party objects to the Magistrate Judge's findings regarding Defendant's request to dismiss Plaintiff's claims under Rule 12(b)(6) for failure to state a claim, namely that Plaintiff has stated plausible claims for purposes of defeating a Rule 12(b)(6) motion (Dkt. #31 at 7). As such, and after de novo review of the record, the Court holds this finding is correct.

         The Court now turns to Defendant's objections, which focus on its request to dismiss for lack of subject matter jurisdiction. Defendant objects to the Magistrate Judge's finding that, notwithstanding Plaintiff's failure to submit a POL prior to filing suit, Plaintiff's suit is ripe for adjudication. Defendant specifically argues that the Magistrate Judge erred in (i) finding the POL requirement was not triggered, (ii) finding the “Action Against ...

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