United States District Court, S.D. Texas, Houston Division
VANESSA D. GILMORE, UNITED STATES DISTRICT JUDGE
before the Court is Defendant Westchester Surplus Lines
Insurance Company's Motion to Dismiss.
(Instrument No. 5).
case arises from an insurance coverage dispute pertaining to
Plaintiffs insurance claim policy with Defendant. (Instrument
No. 1-3). In August of 2017, Hurricane Harvey damaged
Plaintiffs house and other property. Id. at 3.
Plaintiff, who had a contract of insurance with Defendant,
filed a claim on its insurance policy for the property damage
it sustained. Id. Plaintiff alleges that
Defendant's adjuster conducted a substandard
investigation and inspection of the property. Id.
Based on the unreasonable investigation, Plaintiff contends
Defendant's report failed to include and undervalued all
of the damages that were observed during the inspection.
Id. As such, Plaintiff has brought Texas Insurance
Code violations and a breach of contract claim against
6, 2019, Plaintiff filed its Original Petition against
Defendant in state court. (Instrument No. 1-3). Defendant
removed Plaintiffs claims to federal court on July 23, 2019.
(Instrument No. 1). On July 30, 2019, Defendant filed its
Motion to Dismiss. (Instrument No. 5). Plaintiff filed its
Response to Defendant's Motion to Dismiss on August 20,
2019. (Instrument No. 13). Defendant filed its Reply in
Support of its Motion to Dismiss on August 26, 2019.
(Instrument No. 14).
Rule 8 of the Federal Rules of Civil Procedure, a pleading
must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). The complaint need not contain
"detailed factual allegations," but it must include
"more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
complaint does not meet the pleading requirements of Rule 8,
Rule 12(b)(6) authorizes dismissal of a civil action for
"failure to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6). To survive a motion to
dismiss, the complaint must articulate "the plaintiffs
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). Stated
otherwise, in order to withstand a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to state a claim for relief that is plausible on its
face. Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570); Turner v.
Pleasant, 663 F.3d 770, 775 (5th Cir. 2011). A claim for
relief is plausible on its face "when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Iqbal, 556 U.S. at 678;
Montoya v. FedEx Ground Package Sys., Inc., 614 F.3d
145, 148 (5th Cir. 2010).
ruling on a 12(b)(6) motion, the Court may consider "the
complaint, its proper attachments, documents incorporated
into the complaint by reference, and matters of which a court
may take judicial notice." Wolcott v. Sebehus,
635 F.3d 757, 763 (5th Cir. 2011) (internal citations and
quotations omitted); see also Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The
Court does not resolve any disputed fact issues. Smith v.
Reg'l Transit Auth, 756 F.3d 340, 347 (5th Cir.
2014). Instead, the Court assumes all well-pleaded facts
contained in the complaint are true. Wolcott, 635
F.3d at 763. The Court will not, however "accept as true
conclusory allegations, unwarranted factual inferences, or
legal conclusions." Great Lakes Dredge & Dock
Co. LLC v. La. State, 624 F.3d 201, 210 (5th Cir. 2010)
(internal quotation omitted). Similarly, legal conclusions
masquerading as factual conclusions need not be treated as
true. Blackburn v. City of Marshall, 42 F.3d 925,
931 (5th Cir. 1995); see also Iqbal, 556 U.S. at
678. Although all well-pleaded facts are viewed in the light
most favorable to the plaintiff, Turner, 663 F.3d at
775; Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009), the Court "will not strain to find inferences
favorable to the plaintiff." Dorsey v. Portfolio
Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)
(internal citations and quotations omitted). Therefore, to
avoid a dismissal for failure to state a claim, a plaintiff
must plead specific facts. Dorsey, 540 F.3d at 338.
asserts causes of action for bad faith in violation of
Chapter 541 of the Texas Insurance Code, violations of
Chapter 542 of the Texas Insurance Code, and breach of
contract. (Instrument No. 1-3). Defendant contends Plaintiff
fails to allege facts to support its causes of action.
(Instrument No. 5).
alleges Defendant settled Plaintiffs property damage claim in
bad faith by assigning an adjuster to Plaintiffs claims that
conducted a substandard investigation, failed to include all
of the damages that were observed during the inspection, and
undervalued the damages observed during the inspection.
(Instrument No. 1-3 at 3). Plaintiff contends the biased
investigation resulted in an inequitable evaluation of
Plaintiffs losses on the property. Id. Defendant
asserts Plaintiffs bare and conclusory assertions do not give
rise to legal liability under Chapter 541 of the Texas
state a claim under Chapter 541, Plaintiff must show that (1)
it is a "person" as defined by Section 541.002(2)
of the Texas Insurance Code; (2) Defendant is a
"person" as defined by Section 541.002(2) of the
Texas Insurance Code; (3) Defendant engaged in an act or
practice that violated (a) Chapter 541, subchapter B, of the
Texas Insurance Code, (b) Section 17.46 of the Texas Business
and Commerce Code and Plaintiff relied on the act or practice
to its detriment, or (c) a tie-in provision of the Texas
Insurance Code; and (4) Defendant's act or practice was a
producing cause of Plaintiffs alleged actual damages.
See TEX. INS. CODE ...