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Trevino v. Allstate Vehicle and Property Insurance Co.

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

August 19, 2019

CESAREA TREVINO, Plaintiff,
v.
ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY, Defendant.

          OPINION AND ORDER

          Micaela Alvarez United States District Judge.

         Pending before the Court is Allstate Vehicle and Property Insurance Company's (“Defendant”) partial motion to dismiss.[1] Also before the Court is Defendant's opposed motion to abate the case pending the outcome of an appraisal.[2] Cesarea Trevino (“Plaintiff”) has not responded to either motion. After considering the motions, the record, and the relevant authorities, the Court GRANTS Defendant's motions as follows.

         I. Background

         This is a first-party insurance case involving a claim for damage caused by a “hail/windstorm event.”[3] Plaintiff alleges she owned a home in Mission, Texas that was covered by Defendant's property policy #838358830.[4] Plaintiff alleges that “on or about June 20, 2018, ” Plaintiff “sustained covered losses” and “water damages” including “damage to the architectural finishes of the property.”[5] Plaintiff further alleges she “reported losses to [Defendant] pursuant to the terms of the insurance policy. As a result, Plaintiff's property sustained damage, including the cost of destruction and restoration of the property necessary to access and fix these damaged areas.”[6] Plaintiff's complaint contains no other specific factual allegations, and in all other respects is a form petition that merely restates the legal elements of the claims.[7]

         Plaintiff filed a petition in state court alleging breach of contract; violations of the Texas Deceptive Trade Practices Consumer-Protection Act (“DTPA”); claims of unfair insurance practices, including violations of the Texas Insurance Code (“TIC”) and the Texas Administrative Code (“TAC”); breach of the duty of good faith and fair dealing; and delay of payment in violation of TIC § 542.[8] Subsequently, Defendant removed this case to federal court.[9]

         Thereafter, Defendant filed the instant motion for partial dismissal pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for failure to state a claim for which relief can be granted and Rule 9(b) for failure to plead fraud with particularity.[10] Defendant only seeks dismissal of Plaintiff's claims for statutory misrepresentations under the DTPA, TAC, and TIC. Defendant also filed a motion to abate the case pending the outcome of an appraisal.[11] Plaintiff never responded and the time for doing so has passed, rendering the motion unopposed by operation of Local Rules.[12] The Court now turns to its analysis.

         II. Partial Motion to Dismiss

         Because the partial motion to dismiss could limit the scope of the claims and damages sought in this case, the Court will first address Defendant's partial motion to dismiss before turning to Defendant's motion to abate.

         A. Legal Standard

         To survive a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”[13] This does not require detailed factual allegations, but it does require “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.”[14] Courts first disregard from their analysis any conclusory allegations as not entitled to the assumption of truth, [15] but regard well-pled facts as true, viewing them in the light most favorable to the plaintiff.[16] Courts then undertake the “context-specific” task of determining whether the remaining well-pled allegations give rise to an entitlement to relief that is plausible, rather than merely possible or conceivable.[17]

         In addition to this baseline pleading standard, Rule 9(b) imposes a heightened set of pleading requirements when the claim in question is grounded in fraud.[18] The Fifth Circuit has held that Rule 9(b) requires “specificity as to the statements (or omissions) considered to be fraudulent, the speaker, when and why the statements were made, and an explanation why they are fraudulent.”[19] Rule 9(b) “applies by its plain language to all averments of fraud, whether they are part of a claim of fraud or not” and therefore applies to statutory claims which are based on allegations of fraud.[20] Specifically, claims “alleging violations of the Texas Insurance Code and the DTPA . . . are subject to the requirements of Rule 9(b).”[21]

         A dismissal for failure to plead with particularity is treated the same as a Rule 12(b)(6) dismissal for failure to state a claim.[22] However, when a party has failed to plead fraud with sufficient particularity, the Court will generally permit leave to amend to bring the complaint into compliance with the requirements of Rule 9(b).[23]

         B. Analysis

         Defendant seeks dismissal of some of Plaintiff's claims for “statutory misrepresentation” listed in Plaintiff's complaint under the headings “DTPA Violations” and “Unfair Insurance Practices.”[24] It is somewhat unclear exactly which claims Defendant seeks to dismiss as Defendant mentions different claims at various points in its motion.[25] However, despite the lack of clarity, the Court will consider whether Defendant's motion should be granted in regards to all the claims Defendant mentioned. Thus, considering all claims mentioned throughout Defendant's motion, Defendant seeks to dismiss Plaintiff's statutory misrepresentation claims brought under DTPA §§ 1746(b)(5), (7), (9), (12), (14) and (23);[26] TIC § 541.060(a)(1); and TAC § 21.203(1).[27]

         Under the heading “DTPA Violations, ” Defendant seeks to dismiss Plaintiff's claims set out below:

(a) ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY made false representations about PLAINTIFF'S rights, remedies and obligations under the policies at issue. These statements were a misrepresentation of the insurance policies and their benefits in violation of §§17.46(b)(5), (7), (12) and (14), Texas Business & Commerce Code . .[28]
(c) ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY failed to disclose information to PLAINTIFF concerning the nature and extent of their insurance policy which was known by ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY at the time for the purpose of inducing PLAINTIFF into transactions which he would not have otherwise entered in violation of section 17.46(b)(9) and (23), Texas Business and Commerce Code.[29]

         Under the heading “Unfair Insurance Practices, ” Defendant seeks to dismiss the following claims:

(a) ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY made, issued or circulated or caused to be made, issued or circulated an estimate, illustration, circular or statement misrepresenting with respect to the policy issued or to be issued:
i) the terms of the policy; and/or ii) the benefits or advantages promised by the policy.
(b) ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY made an untrue statement of material fact (Tex. Ins. Code Ann. 541.060(a)(1); 28 TAC section 21.203(1));
(c) ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY failed to state a material fact necessary to make other statements made not misleading considering the circumstances under which statements were made; and
(d) ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY made statements in a manner that would mislead a reasonably prudent person to a false conclusion of material fact.
(e) Refusing a settlement offer under applicable first-party coverage on the basis that other coverage may be available or that third parties are responsible for the damages suffered, except as may be specifically provided in the policy (Tex. ...

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