United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
FISH SENIOR UNITED STATES DISTRICT JUDGE.
the court is the motion of the defendant The Health
Enrollment Group, Inc. ("HEG") to dismiss the
claims of the plaintiff Yolanda Lefcourt
("Lefcourt") (docket entry 45). For the reasons set
forth below, the motion is denied.
national health brokerage firm, "'specializes] in
helping individuals simplify the process of shopping for
health insurance . . . .'" Plaintiffs First Amended
Complaint ("Complaint") (docket entry 34) ¶ 9.
January 2017, Lefcourt and her husband, Henry Lefcourt,
contacted HEG telephonically to acquire health insurance,
including medical, dental, and vision insurance. Id.
¶ 8. During this enrollment process, HEG allegedly
represented to the Lefcourts that a $500, 000 life insurance
policy ("the Fidelity Policy") issued by Fidelity
& Guaranty Life Insurance Company ("Fidelity")
was an "ancillary benefit" to the health insurance
that the Lefcourts planned to purchase, and that the Fidelity
Policy could issue for an additional $125.56 per month.
Id. ¶ 10. HEG additionally told the Lefcourts
that their purchase of the Fidelity Policy "was
necessary to achieve the low rates for the other health
insurance - dental, medical and vision . . . ."
Id. Based upon these representations, the Lefcourts
agreed to purchase the Fidelity Policy, naming Henry Lefcourt
as the insured and Lefcourt as the sole beneficiary.
Id. ¶¶ 11, 14. During this same phone
call, Henry Lefcourt "orally completed the application
for the [Fidelity] Policy, and Henry [Lefcourt] answered all
questions of HEG for issuance of the [Fidelity] Policy."
Id. ¶ 12. Additionally, Henry Lefcourt
"provided all payment and financial information (credit
card numbers) to HEG for the health insurance and the
[Fidelity] Policy so premium payments for the [Fidelity]
Policy and health insurance could be charged and paid by
HEG." Id. HEG allegedly assured the Lefcourts
that HEG would charge all of premium payments, including
premium payments for the Fidelity Policy, to Henry
Lefcourt's credit card on file, and that "Mark"
was the agent of record. Id. ¶¶ 13, 14.
Lefcourt followed up twice with HEG to confirm that HEG had
processed the payment for the Fidelity Policy. Id.
¶¶ 15, 17. On the first follow up call, Lefcourt
asserts that HEG informed her that the payment had not gone
through, but that HEG promptly would recharge it.
Id. ¶ 15. On the second follow up call, HEG
represented that Henry Lefcourt's payment on the Fidelity
Policy had been "processed, paid and was
completed." Id. ¶ 17.
Lefcourt later unexpectedly died. Id. ¶ 18.
Lefcourt then called HEG, at which time an HEG representative
"confirmed with [Lefcourt] that 'Mark' is the
agent of record for the [Fidelity] Policy, the [Fidelity]
Policy is an ancillary benefit for the health insurance
purchased, Henry [Lefcourt] did enroll and payments were
made, credit cards are on file and active, and the next
premium payment is due in February 2017 - which HEG stated
would be automatically charged to the credit card on
file." Id. ¶ 19. While on the call,
Lefcourt contends "HEG provided [her] the [Fidelity]
Policy number to acquire a copy of the [Fidelity] Policy as
HEG did not have a copy of the [Fidelity] Policy."
Id. ¶ 20. Lefcourt asserts that during the call
a different HEG representative "came on the line
advising [her] that he (the representative) did not
see a policy number for the life insurance policy, but
payments for the health insurance (medical, dental and
vision) had been charged and processed although the premium
payment for the [Fidelity] Policy had not." Id.
¶ 20 (emphasis in the original). In response, Lefcourt
told that representative that HEG had previously
"assured [her] that the premium payment for the
[Fidelity] Policy had been processed and completed, the
credit card on file charged, and Henry [Lefcourt] is insured
with a life insurance policy, HEG admitted Henry [Lefcourt]
was insured under the [Fidelity] Policy . . . for $500,
000." Id. ¶ 21. According to Lefcourt,
"HEG has now changed its story, maintaining that Henry
[Lefcourt] does not have a [p]olicy with Fidelity because the
premium payment was not processed by HEG." Id.
¶ 22. Conversely, HEG maintains that there is no
evidence that HEG failed to procure a life insurance policy
to pay life insurance benefits to Lefcourt. See
generally Memorandum of Law in Support of Defendant The
Health Enrollment Group, Inc.'s Motion to Dismiss
("Motion") (docket entry 46); see also id.
at 2 ("Put simply, Lefcourt cannot claim that HEG has
caused her damages by failing to procure and pay her on a
life insurance policy without stating facts showing that
payments would be due to her under the terms of that policy
(had it ever been paid for)").
August 24, 2017, Lefcourt filed this suit against HEG and
Fidelity in the 134th Judicial District Court of Dallas
County, Texas, to recover benefits under the Fidelity Policy.
See Notice of Removal (docket entry 1) ¶ 1;
see also Plaintiff's Original Petition,
attached to Notice of Removal as Exhibit E. On
September 25, 2017, Fidelity removed the case to this court
based on diversity of citizenship. See generally
Notice of Removal. HEG consented to the removal. See
id., Exhibit C. Lefcourt alleges that HEG failed to
procure the Fidelity Policy as represented to the Lefcourts
and thus Fidelity has failed to pay her benefits under the
Fidelity Policy. See generally Complaint; Plaintiffs
Response in Opposition to Defendant The Health Enrollment
Group, Inc.'s Motion to Dismiss ("Response")
(docket entry 47) at 11. Lefcourt asserts claims for (1)
negligence, (2) gross negligence, (3) negligent
misrepresentation, (4) fraud, (5) violations of the Texas
Deceptive Trade Practices Act ("DTPA"), and (6)
violations of the Texas Insurance Code. Id.
to Federal Rule of Civil Procedure 12(b)(6), HEG moves to
dismiss Lefcourt's claims against it. See
generally Motion; see also id. at 1
("Lefcourt fails to plead sufficient facts as to the
existence of elements common to each and every cause of
action: i) causation and ii) damages.").
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must
plead 'enough facts to state a claim to relief that is
plausible on its face.'" In re Katrina Canal
Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)
(quoting Bell Atlantic Corporation v. Twombly, 550
U.S. 544, 570 (2007)), cert, denied, 552 U.S. 1182
(2008). "While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,
a plaintiffs obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Twombly, 550 U.S.
at 555 (citations, quotation marks, and brackets omitted).
"Factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that
all the allegations in the complaint are true (even if
doubtful in fact)." In re Katrina Canal, 495
F.3d at 205 (quoting Twombly, 550 U.S. at 555)
(internal quotation marks omitted). "The court accepts
all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff." Id. (quoting
Martin K. Eby Construction Company, Inc. v. Dallas Area
Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004))
(internal quotation marks omitted).
Supreme Court has prescribed a "two-pronged
approach" to determine whether a complaint fails to
state a claim under Rule 12(b)(6). See Ashcrqft v.
Iqbal, 556 U.S. 662, 678-79 (2009). The court must
"begin by identifying the pleadings that, because they
are no more than conclusions, are not entitled to the
assumption of truth." Id. at 679. The court
should then assume the veracity of any well-pleaded
allegations and "determine whether they plausibly give
rise to an entitlement of relief." Id. The
plausibility principle does not convert the Rule 8(a)(2)
notice pleading to a "probability requirement," but
"a sheer possibility that a defendant has acted
unlawfully" will not defeat a motion to dismiss.
Id. at 678. The plaintiff must "plead[ ]
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. "[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.'" Id. at 679 (alteration in
original) (quoting FED. R. ClV. P. 8(a)(2)). The court,
drawing on its judicial experience and common sense, must
undertake the "context-specific task" of
determining whether the plaintiff's allegations
"nudge" her claims against the defendant
"across the line from conceivable to plausible."
See id. at 679, 683.
Federal Rule of Civil Procedure 9(b), a plaintiff must state
with particularity the circumstances establishing a claim of
fraud. Fed.R.Civ.P. 9(b). What constitutes
particularity will "necessarily differ with the facts of
each case." Guidry v. Bank of LaPlace, 954 F.2d
278, 288 (5th Cir. 1992). At a minimum, courts require the
plaintiff to specifically state the time, place, and contents
of the alleged false representation, as well as the identity
of the person making the alleged misrepresentation and what
that person obtained thereby. See Williams v. WMX
Technologies, Inc., 112 F.3d 175, 177 (5th Cir.) (citing
Tuchman v. DSC Communications Corporation, 14 F.3d
1061, 1068 (5th Cir. 1994)), cert, denied, 522 U.S.
966 (1997); United States ex rel. Doe v. Dow Chemical
Company, 343 F.3d 325, 328 (5th Cir. 2003) ("At a
minimum, Rule 9(b) requires that a plaintiff set forth the
'who, what, when, where, and how' of the alleged
fraud.") (citation omitted). "Anything less fails
to provide defendants with adequate notice of the nature and
grounds of the claim." Hart v. Bayer
Corporation, 199 F.3d 239, 247 n.6 (5th Cir. 2000)
(citing Tuchman, 14 F.3dat 1067). Dismissal of a
fraud claim for failure to plead the claim with particularity
under Rule 9(b) is treated as a dismissal for failure to
state a claim under Rule 12(b)(6). See Lovelace v.
Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir.
thrust of the motion to dismiss is that Lefcourt has failed
to state claims upon which this court could grant her relief.
The court concludes, however, that Lefcourt sufficiently
pleaded her fraud claims with particularity, and that HEG
failed to show that Lefcourt could prove no set of facts in
support of her claims that ...