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Guideone Insurance Co. v. First United Methodist Church of Hereford

United States District Court, N.D. Texas, Amarillo Division

March 27, 2019

GUIDEONE MUTUAL INSURANCE COMPANY, Plaintiff, Counter-Defendant,
v.
FIRST UNITED METHODIST CHURCH OF HEREFORD, Defendant, Counter-Plaintiff, and Third-Party Plaintiff,
v.
SUNNI DENISE BOENKER, Individually and as d/b/a Boenker & Wheelwright Insurance, Third-Party Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION TO GRANT THIRD-PARTY DEFENDANT'S MOTION TO DISMISS

          LEE ANN RENO UNITED STATES MAGISTRATE JUDGE

         Before the Court is third-party Defendant Sunni Denise Boenker's, Individually and as d/b/a Boenker & Wheelwright Insurance (“Boenker”), Motion to Dismiss Third-Party Plaintiff First United Methodist Church of Hereford's (“FUMC”) Third-Party Complaint [ECF 25]. The undersigned recommends that the Motion be GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff, Counter-Defendant, and third-party Plaintiff GuideOne Insurance Company (“GuideOne”) is an insurance carrier, and Defendant and Counter-Plaintiff FUMC is its insured. GuideOne filed its complaint seeking a declaratory judgment to set aside what it claims is an improper appraisal award. FUMC denied GuideOne's claims and filed various counterclaims against GuideOne, as well as third-party claims against Boenker (“the complaint”). FUMC pleaded the following against Boenker[1]:

Count 1: Vicarious liability;
Count 3: Breach of the duty of good faith and fair dealing;
Count 4: Violations of the Deceptive Trade Practices Act (“DTPA”);
Count 6: Unfair insurance practices;
Count 7: Negligent misrepresentation;
Count 8: Fraud;
Count 9: Conspiracy; and
Count 10: Declaratory judgment and enforcement of umpire's appraisal award. [ECF 11].

         Specifically, FUMC claims Boenker represented that GuideOne was a “reputable company that would honor and properly pay claims submitted for covered losses incurred under the insurance policy.” [ECF 11 at 3]. FUMC states it relied on this representation and purchased a GuideOne insurance policy through Boenker. Id. FUMC filed a claim with GuideOne after a storm damaged its property on April 14, 2017, and later invoked appraisal to determine the amount of loss. [ECF 11 at 3-4]. FUMC claims a binding umpire's appraisal award was issued on July 19, 2018, but GuideOne and Boenker have engaged in and continue to engage in bad faith actions and stall tactics to avoid paying the award. [ECF 11 at 5].

         Boenker moves to dismiss FUMC's claims against her under Rule 12(b)(6) and Rule 9(b) of the Federal Rules of Civil Procedure and argues FUMC's claims are conclusory allegations without any factual and/or legal basis. Boenker claims her only involvement in the underlying dispute was procuring the GuideOne policy at issue at FUMC's request. [ECF 25 at 2]. She claims she was not involved in the claim adjustment process, the appraisal process, or GuideOne's decision not to pay the umpire's appraisal award. Id. FUMC did not respond to Boenker's Motion to Dismiss.

         II. STANDARD OF REVIEW

         Rule 12(b)(6) provides that a defendant may file a motion to dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a Rule 12(b)(6) motion to dismiss, the Court “accepts ‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.' ” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). “However, ‘conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.' ” Ruiz v. Brennan, 851 F.3d 464, n.5 (5th Cir. 2017) (quoting Jones v. Alcoa, Inc., 339 F.3d 359, 362 (5th Cir. 2003)).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 555-56, “Factual allegations must be enough to raise a right to relief above the speculative level . . .”). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.' ” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”[2] Id. at 678.

         III. ...


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