United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. MILLER, UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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)
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)).
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.