United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBRYDE, United States District Judge
for consideration in the above-captioned action the motion to
dismiss filed by defendant York Risk Services Group, Inc.
("York"}. The court, having considered the motion,
the response of plaintiff, University Baptist Church of Fort
Worth, thereto, York's reply, the entire record,
including the supplemental authority submitted by plaintiff,
and the applicable legal authorities, finds that the motion
should be granted.
Plaintiff's Amended Complaint
live pleading is Plaintiff's Amended Complaint. In it,
plaintiff alleges the following claims against York:
was hired by defendant Lexington Insurance Company
("Lexington") to adjust the alleged loss sustained
to plaintiff's property following a hail and wind storm
on March 17, 2016. Doc. 19 at 2, ¶¶ 7-8. York, in
turn, assigned one of its employees, Kevin Forman
("Forman"), to examine the property and adjust the
loss. Id., ¶ 8. On September 14, 2016,
Lexington sent documentation to plaintiff indicating that the
undisputed loss and agreed scope of costs for replacement of
the roof was $586, 040.20. Id. at 3, ¶¶ 9
& 11. Also'in September, after concerns arose about
whether plaintiff's commercial property complied with the
necessary code requirements, Forman retained a third party to
inspect the roof and address the code upgrade issues.
Id., , ¶ 13. Forman notified plaintiff on
September 26, 2016, that plaintiff would be receiving a copy
of an engineering report from the engineer retained by the
third party, and a related invoice from Jeff Eubank Roofing
("JE Roofing"), and requested that plaintiff
forward that information to Forman upon receipt for the
purpose of developing with plaintiff an agreed scope for the
additional improvements required. Id., ¶14. On
November 23, 2016, JE Roofing submitted to Forman a code
upgrade bid of $285, 798.00 Id., ¶ 16. In
December 2016 and January 2017 Forman discussed with JE
Roofing the proposed cost of the code upgrade project.
Id. at 4, ¶¶ 18-19. It was agreed that
"the cost of re-decking the main chapel" would be
conducted on a "time and material" basis, "due
to the uniqueness of the project." Id., ¶
19. Forman sent JE Roofing the forms to be used for tracking
time and materials with instructions that in order to avoid
any concerns or misunderstandings, the forms were to be
returned within two days of the applicable activity.
Id., ¶ 20.
February 28, 2017, Forman sent an email to plaintiff that
I have informed the carrier that (the third-party] has
verified that the changes being made to the decking of the
main church for the installment of new tile is being required
and enforced by the city of Fort Worth. Code upgrade costs
are indemnified once incurred when they fall under this city
of FT. Worth enforcement. Due to the uniqueness of the
operation and since it hasn't been done before, this is
why we are tracking the costs in this way as agreed with JE
Id. at 4, ¶ 22 (emphasis removed).
alleged that before York's approval was given for the
work to begin, JE Roofing had already begun replacing the
roof. Id. at 5, ¶24. Plaintiff also alleged
that the roofing contractor regularly submitted to York the
invoices or forms as agreed. Id., ¶ 23.
April 28, 2017, Plaintiff received an invoice that included
seven weeks of "Extras" charges in the amount of
$582, 944.75. Id., ¶ 25. Plaintiff asked Forman
several days later to confirm in writing that the insurance
would "provide the funds for the work required by the
engineer." Id. On July 11, 2017, plaintiff,
through the church's pastor, informed Lexington
"that its prior inquiries about the status of the claim
had gone unresponded to." Id., ¶ 28. The
pastor, in the email he sent to Lexington "recalled a
conversation [the pastor] had with Forman in which Forman
stated that he was 'alarmed at the skyrocketing costs for
the repairs and implied that the church could potentially be
responsible.'" Id. The pastor also informed
Lexington at this time that it had not received weekly
updates regarding progress on the re-decking, that plaintiff
"endured increased exposure to the roof and the church
itself, " and that plaintiff had instructed JE Roofing
to cease work on the roof. Id., at 5-6, ¶ 28.
JE Roofing charged $864, 148.49 in "time and
materials" related to the code upgrade for
plaintiff's property. Id., at 5, ¶ 32.
failed and refused to pay [p]laintiff an appropriate amount
for losses and damages caused to [p]laintiffs property by an
occurrence covered under their contract . . . ."
Id., ¶ 37. Plaintiff was required to take out a
loan to pay for "the extra work" performed by JE
Roofing. Id., ¶ 33.
on these allegations, plaintiff has brought claims against
York for violations of the Texas Insurance Code, namely
sections 541.060(a) (1), 541.060 (a) (2} (A), 541.060(a)(3),
and 541.060(a)(7), for violations of the Texas Deceptive
Trade Practices-Consumer Protection Act ("DTPA"),
Tex. Bus. & Com. Code §§ 17.41".63,
particularly sections 17.45, 17.46, and 17.50, and for
of the Motion
moves to dismiss plaintiff's claims against it on the
grounds that (1) plaintiff failed to allege in its amended
complaint the necessary "who, what, where, when, and
how" of York's purported statutory violations, (2)
plaintiff failed to allege that plaintiff suffered any
extra-contractual damages as a result of York's ...