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Perez v. Allstate Vehicle And Property Insurance Co.

United States District Court, N.D. Texas, Fort Worth Division

September 20, 2017

ANTONIO PEREZ,
v.
ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY, ET AL., Defendants.

          MEMORANDUM OPINION AND ORDER

          JHON McBRYDE, UNITED STATES DISTRICT JUAGE.

         Came on 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.

         I. Procedural History and Background

         Plaintiff 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 controversy.

         On July 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.

         On August 10, 2017, plaintiff filed his First Amended Complaint.[1] 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.

         The 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.

         The 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, ¶ 35.[2]
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 ยง541.060(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 ...

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