United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBRYDE, UNITED STATES DISTRICT JUAGE.
for consideration the motions of defendants William Baxter
("Baxter") and William Cox ("Cox"} to
dismiss the claims of plaintiff, Antonio Perez, against them
in the above-captioned action. The court, having considered
the motions, the responses, the record, and applicable legal
authorities, concludes that the motions should be granted.
Procedural History and Background
initiated this action by filing a complaint in the 342nd
Judicial District Court of Tarrant County, Texas, naming as
defendants Allstate Vehicle and Property Insurance Company
("Allstate"), Baxter, and Cox. On June 16, 2017,
defendant Allstate removed the action to this court, alleging
diversity of citizenship and the required amount in
17, 2017, the court ordered plaintiff to replead so that his
pleadings would comply with the federal court pleading
standards. The order called plaintiff's attention to the
pleading requirements of Rule 8(a) and 9(b) of the Federal
Rules of Civil Procedure, and directed plaintiff to file an
amended complaint that complied with those requirements.
August 10, 2017, plaintiff filed his First Amended
Complaint. Despite the warnings provided in the order
for repleading, plaintiff's complaint as amended was,
with a few exceptions, basically a repeat of his state court
pleading, alleging, in a conclusory way, violations of
sections of the Texas Insurance Code, fraud and conspiracy to
commit fraud, breach of contract, and breach of they duty of
good faith and fair dealing.
amended pleading alleged that plaintiff is the insured named
in an insurance policy issued by Allstate covering property
owned by him in Tarrant County, Texas; that on or about March
23, 2016, a hail or wind storm caused damage to his property;
Baxter and Cox were the adjusters assigned by Allstate to
adjust the claim; and that Allstate did not pay him as much
on his claim as he thought he should receive.
allegations of plaintiff's complaint are the type of
boilerplate allegations the court has learned to expect in
cases of this kind. For the most part, the allegations are
purely conclusory, and are but recitations of elements of
contractual, statutory, and common law causes of action
without supporting factual allegations. The allegations made
against Baxter and Cox are found in paragraphs 35, 38, 40,
41, and 43 of the complaint. They are:
1. Violations of §§541.060(a)(1), (a)(2)(A), and
(a)(3) of the Texas Insurance Code based on alleged failures
to (a) reasonably investigate plaintiff's claim, (b)
determine through such reasonable investigation whether
liability under the policy was reasonably clear, and (c)
attempt in good faith to effectuate a prompt, fair, and
equitable settlement of the claim. Doc. 21 at 8, ¶
2. Violations of §541.060(a) of the Texas Insurance Code
pertaining to Unfair Settlement Practices, which plaintiff
alleged are made actionable by §541.151 of the Texas
Insurance Code. Id. at 10, ¶ 38(b).
3. Violation of §541.060(a)(1) of the Texas Insurance
Code by representing to plaintiff material facts relating to
the insurance coverage in question, which constituted an
unfair method of competition and an unfair and deceptive act
or practice in the business of insurance. Id. at
10-11, ¶ 38(d) .
4. Violation of §541.060(a)(2)(A) of the Texas Insurance
Code in failing to attempt in good faith to effectuate a
prompt, fair, and equitable settlement with the claim, even
though liability under the policy was reasonably clear.
Id. at 11, ¶ 38(e).
5. Violation of §541.060(a)(3) of the Texas Insurance
Code for failing to offer plaintiff adequate compensation,
for failing to explain to plaintiff the reasons for their
offer and why full payment was not being made, and for
failing to communicate that any future settlement or payment
would be forthcoming to pay for the entire loss covered by
the policy. idi. at 11-12, ¶ 38(f).
6. Violation of §541.060(a) (4) of the Texas Insurance
Code for failing within a reasonable period of time to affirm
or deny coverage of plaintiff's claim, or to submit a
reservation of ...