United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE
insurance case is before the Court on the Motion to Dismiss
[Doc. # 5] filed by Defendant Steven Wiley. Plaintiff Robert
Ewell did not file a response to the Motion to Dismiss.
Instead, Plaintiff filed a Motion to Abstain and Remand
(“Motion to Remand”) [Doc. # 10], to which
Defendant Centauri Specialty Insurance Company
(“Centauri”) filed an Opposition [Doc. # 11].
Plaintiff failed to file a reply in support of his Motion to
Remand, and did not request an extension of the reply
deadline. Based on the Court's review of the record and
applicable legal authorities, the Court
grants Wiley's Motion to Dismiss and
denies Plaintiff's' Motion to
owns property in Fort Bend County, Texas. The property was
insured under a homeowner's policy issued by Centauri.
Plaintiff filed a claim with Centauri for damage to the
property allegedly caused by a severe storm on August 25,
2017. Defendant Wiley was assigned as the adjuster for
Plaintiff's claim. Centauri failed to pay the full amount
of Plaintiff's insurance claim.
February 11, 2019, Centauri gave Plaintiff written notice of
its election pursuant to Chapter 542A of the Texas Insurance
Code to assume any liability Wiley might have to Plaintiff.
See Letter, Exh. B to Motion to Dismiss. Plaintiff
filed this lawsuit on March 15, 2019, naming both Wiley and
Centauri as Defendants. Plaintiff served Centauri on March
20, 2019, and Centauri filed a timely Notice of Removal on
April 18, 2019.
filed his Motion to Dismiss, and Plaintiff filed a Motion to
Remand. Both motions are now ripe for decision.
MOTION TO DISMISS
argues that the Texas Insurance Code requires dismissal of
Plaintiff's claims against him. Under the Texas Insurance
Code, an insurer may “elect to accept whatever
liability an agent might have to the claimant for the
agent's acts or omissions related to the claim by
providing written notice to the claimant.” Tex. Ins.
Code § 542A.006(a). Where, as here, an insurer makes
such an election before the plaintiff files suit, “no
cause of action exists against the agent related to the
claimant's claim, and, if the claimant files an action
against the agent, the court shall
dismiss that action with prejudice.” Tex. Ins. Code
§ 542A.006(b) (emphasis added).
uncontested that Centauri made the Chapter 542A election to
accept any liability Wiley may have to Plaintiff. Therefore,
pursuant to § 542A.006(b), Wiley's Motion to Dismiss
MOTION TO REMAND
“civil action brought in a State court of which the
district courts . . . have original jurisdiction, may be
removed by the defendant . . ..” 28 U.S.C. §
1441(a). Federal district courts have original jurisdiction
over lawsuits between citizens of different states where the
matter in controversy exceeds $75, 000.00, exclusive of
interest and costs. See 28 U.S.C. § 1332(a)(1).
lawsuit involving a non-diverse defendant may be removed if
the non-diverse defendant was improperly joined. See
Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 542 (5th
Cir. 2004). A non-diverse defendant is improperly joined if
“there is no reasonable basis for the district court to
predict that the plaintiff might be able to recover”
against the non-diverse defendant in state court. Cumpian
v. Alcoa World Alumina, L.L.C., 910 F.3d 216, 219 (5th
Cir. 2018) (quoting Smallwood v. Ill. Cent. R.R.
Co., 385 F.3d 568, 573 (5th Cir. 2004) (en
case, Centauri made an election under Chapter 542A of the
Texas Insurance Code before Plaintiff filed this lawsuit and,
therefore, “no cause of action exists against [Wiley]
related to the claimant's claim . . ..” Tex. Ins.
Code § 542A.006(b). Because there is no reasonable basis
to predict that Plaintiff might be able to recover against
Wiley in state court, he was improperly joined as a defendant
in this suit. The remaining parties are completely
diverse and, therefore, the Court has subject matter
jurisdiction and removal was proper.
argues that Centauri's Chapter 542A election was not a
voluntary act of the Plaintiff and, therefore, “the
voluntary-involuntary rule makes this case not
removable.” See Motion to Remand, p. 5.
Plaintiff relies on Massey v. Allstate Vehicle &
Prop. Ins. Co., 2018 WL 3017431, *2 (S.D. Tex. June 18,
2018) (Miller, J.), to support his argument. In
Massey, the district court noted that the
voluntary-involuntary rule provides that “an action
nonremovable when commenced may become removable thereafter
only by the voluntary act of the plaintiff.”
Id. (citing Crockett v. R.J. Reynolds Tobacco
Co., 436 F.3d 529, 532 (5th Cir. 2006) (quoting
Weems v. Louis Dreyfus Corp., 380 F.2d 545, 547 (5th
Cir. 1967)). There is an exception to the
voluntary-involuntary rule, however, “where a claim
against a nondiverse or in-state defendant is dismissed on
account of fraudulent joinder.” SeeMassey, 2018 WL 3017431 at *2; see also Vyas v.
Atain Specialty Ins. Co., 2019 WL 2119733, *4 (S.D. Tex.
May 15, 2019) (Rosenthal, J.); Greatland Inv., Inc. v.
Mt. Hawley Ins. Co., 2019 WL 2120854, *2 (S.D. Tex. May
15, 2019) (Miller, J.). Here, Centauri ...