United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller, United States District Judge
before the court is plaintiff Howard Johnson II's motion
to remand. Dkt. 5. Having considered the motion, response,
complaint, and the applicable law, the court is of the
opinion that the motion should be DENIED.
an insurance dispute between Johnson and defendants Allstate
Vehicle and Property Insurance Company
(“Allstate”), James Burt, and Wesley Arnold
(collectively, Defendants). In 2015, Johnson purchased an
Allstate House & Home Policy (the “Policy”),
insuring his property at 7691 Ameswood Road, Houston, Texas
77095 (the “Property”). Dkt. 1-1 at 9. Johnson
purchased the Policy from Arnold, who is an insurance agent
for Allstate. Id. Johnson alleges that prior to
purchasing the Policy, Arnold represented to 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 that is not the result of a storm-created opening.
Dkt. 5-4 at 24.
SECTION 1 - LOSSES WE COVER UNDER COVERAGES A, B AND C:
We will cover sudden and accidental direct physical loss to
the property described in Dwelling Protection-Coverage A,
Other Structures Protection-Coverage B or Personal
Property-Coverage C caused by the following, except as
limited or excluded in this policy:
2. Windstorm or hail.
We do not cover:
a) Loss to covered property inside a building structure,
caused by rain, snow, sleet, sand or dust unless the wind or
hail first damages the roof or walls and the wind forces
rain, snow, sleet, sand or dust through the damaged roof or
Dkt. 5 at 5, Ex. D.
about April 17, 2016, the Property sustained damage from a
storm. Dkt 1-1 at 9. Johnson submitted a claim to
Allstate against the Policy for damage to the Property.
Id. at 10. Allstate then assigned or hired Burt to
adjust the claim. Id. On or about September 16,
2016, Burt inspected Johnson's Property, and found
$190.24 in covered damage. Id. at 10. Johnson claims that
Burt's assessment undervalued the amount of damage to the
property and that Burt misrepresented the cause of damage to
the Property. Id. Johnson claims that the damage to
the Property is estimated at $32, 551.73. Id.
March 14, 2017, Johnson filed suit against Defendants in the
133rd Judicial District Court of Harris County, Texas.
Id. at 1. Johnson asserts causes of action (1)
against Arnold for violations of the Texas Deceptive Trade
Practices Act (“DTPA”), the Texas Insurance Code,
and common law fraud; (2) 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 Burt for fraud, negligence, gross negligence,
and violations of the DTPA and the Texas Insurance Code.
Id. at 13-23 (citing Tex. Bus. & Com. Code Ann.
§ 17.41-63, § 17.50 (West 2017), Tex. Ins. Code
Ann. § 541- 42 (West 2017); Tex. Civ. P. & Rem. Code
§ 41.001(11)(A)-(B) (West 2017)).
April 18, 2017, Allstate and Arnold removed the case to
federal court on the basis of diversity jurisdiction.
Id. at 1. On May 1, 2017, Johnson filed a motion to
remand. Dkt. 5. On May 19, 2017, Defendants responded. Dkt.
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 (2012). Subject matter
jurisdiction based on diversity requires that (1) complete
diversity exists among the parties, and (2) the amount in
controversy exceeds $75, 000. 28 U.S.C. § 1332. A case
may be removed despite the presence of a non-diverse
defendant if that defendant has been improperly joined,
i.e., without a legal basis to do so. Hornbuckle
v. State Farm Lloyds, 385 F.3d 538, 542 (5th
Cir. 2004). As the removing party, the defendant bears the
“heavy burden” of demonstrating improper joinder.
Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003).
To meet this burden, the party seeking removal must
demonstrate that “there is no reasonable basis for the
district court to predict that the plaintiff might be able to
recover against the in-state defendant.” McDonal v.
Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005)
(citations omitted). The statutory right to removal is
strictly construed because “removal jurisdiction raises