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Roberson v. Allstate Vehicle And Property Insurance Co.

United States District Court, S.D. Texas, Houston Division

July 2, 2019

NANCY ROBERSON, Plaintiff,
v.
ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY, Defendant.

          MEMORANDUM AND OPINION

          Lee H. Rosenthal Chief United States District Judge

         In March 2019, Nancy Roberson sued Allstate Vehicle and Property Insurance Company in state court, asserting contract breach, Texas Insurance Code and Deceptive Trade Practices Act violations, breach of the duty of good faith and fair dealing, and common-law fraud. (Docket Entry No. 1-5 at 14-19). Allstate timely removed and moved for judgment on the pleadings and to dismiss, arguing that Roberson's claims are either time-barred or do not comply with federal pleading standards. (Docket Entry Nos. 1, 5). Roberson responded. (Docket Entry No. 13).

         After a careful review of the pleadings, the motion and response, and the applicable law, the court grants Allstate's motions for judgment on the pleadings and to dismiss for failure to state a plausible claim. (Docket Entry No. 5). Roberson's nonfraud claims are time-barred and dismissed, with prejudice and without leave to amend, because amendment would be futile. Her fraud claim fails to satisfy Federal Rule of Civil Procedure 9(b) and is dismissed, without prejudice and with leave to amend. Roberson must file an amended complaint no later than August 30, 2019. The reasons for these rulings are explained in detail below.

         I. Background [1]

         Roberson has an Allstate insurance policy covering her home in Montgomery, Texas. (Docket Entry No. 1-5 at 6-7). In February 2016, she filed a claim with Allstate for hail damage to her roof. (Id. at 7). Allstate adjuster Britt Morton inspected Roberson's home a week later. (Id.). He found some roof damage but determined that the shingles were in “great condition, ” concluding that Roberson's loss was below her deductible. (Id.).

         In April 2016, a tree fell on Roberson's home during a storm, damaging the roof, exterior fascia, air-conditioning system, and a bedroom, bathroom, and closet. (Id.). After Roberson asked Allstate to cover the damage, the company sent Kristee Eldridge and Edward Felchak to adjust the claim. (Id.). Felchak, the exterior adjuster, found that 20% of the roof needed to be replaced at a cost of $8, 163.01. (Id. at 8). According to Roberson, Felchak failed to account for other storm damage the roof sustained and that he should have recommended replacing the entire roof. (Id.). Although Eldridge, the interior adjuster, found mold inside Roberson's home caused by storm, she did not revise Felchak's assessment. (Id.). Roberson hired a third party to inspect her home in August 2016. (Id.). The petition alleges that the third-party adjuster found $13, 482.73 in roof damage, $5, 000 more than what Felchak found two months before. (Id. at 10).

         Roberson asserts that Morton, Felchak, and Eldridge gave “problematic” assessments, and that they “either intentionally or recklessly overlooked” roof damage. (Id. at 9). According to Roberson, Allstate's adjusters “had a vested interest in undervaluing the claims assigned to them . . . to maintain their employment, ” and the disparity between the third-party adjuster's report and the Allstate assessments “is evidence of fraud.” (Id.). Roberson asserts that she had to pay out of pocket for repairs, and that Allstate has not covered the damage or reinspected the property. (Id. at 10-11).

         This is Roberson's third suit against Allstate. She first sued the company in state court in September 2016, but she voluntarily dismissed the case “to re-plead . . . at a higher level of damages.” (Id. at 13). Roberson refiled the petition in state court in May 2018, and Allstate removed to the Southern District of Texas. (Id.). Roberson voluntarily dismissed the second case after Allstate moved for an abatement. (Id. at 13-14).

         Roberson filed this action in March 2019 in the 284th Judicial District of Montgomery County, Texas. (Id. at 5). Allstate timely removed. (Docket Entry No. 1). The company has moved for judgment on the pleadings, arguing that Roberson's nonfraud claims are time-barred because the two-year limitations periods expired before this action was filed. (Docket Entry No. 6 at 6-11). Allstate has also moved to dismiss under Rule 12(b)(6) on the basis that the fraud claim fails to comply with federal pleading standards. (Id. at 11-12).

         II. The Legal Standards

         A. Rules 12(b)(6) and 12(c)

         The Rule 12(b)(6) and Rule 12(c)[2] standards are the same. Gentilello v. Rege, 627 F.3d 540, 543-44 (5th Cir. 2010). Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Rule 8 “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “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 556).

         “To withstand a Rule 12(b)(6) motion, [a] complaint must allege ‘more than labels and conclusions, '” and “a formulaic recitation of the elements of a cause of action will not do.” Norris v. Hearst Tr., 500 F.3d 454, 464 (5th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (alteration in original) (quoting Twombly, 550 U.S. at 557). A “complaint ‘does not need detailed factual allegations,' but must provide the plaintiff's grounds for entitlement to relief-including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.'” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “Conversely, when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court.” Id. (quotation and alteration omitted).

         The court should generally give the plaintiff a chance to amend under Rule 15(a) before dismissing the action with prejudice, unless to do so would be futile. See Carroll v. Fort James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006); Great Plains, 313 F.3d at 329 (“[D]istrict courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal.”). A court has discretion to deny a ...


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