United States District Court, S.D. Texas, Corpus Christi Division
GONZALES RAMOS, UNITED STATES DISTRICT JUDGE
Alvira Blue filed this action against Defendant Allstate
Vehicle and Property Insurance Company (Allstate) in state
court. D.E. 1-2. She alleges that Allstate insured her home,
which was damaged by Hurricane Harvey, and she seeks policy
benefits. Allstate removed the case to this Court pursuant to
diversity jurisdiction, 28 U.S.C. § 1332, which Blue has
the Court are Allstate's Motion for Partial Dismissal
(D.E. 5) and Motion for Protection from Plaintiff's
Demand for Appraisal (D.E. 8). Plaintiff has filed responses
to each. D.E. 10, 11. After due consideration, the Court
GRANTS the motion for partial dismissal (D.E. 5), DISMISSES
Plaintiff's claims for misrepresentation under Texas
Insurance Code § 541.060(a)(1), and GRANTS LEAVE to
Plaintiff to file an amended complaint that conforms with
federal pleading standards on all claims. The Court further
DENIES the motion for protection (D.E. 8), ORDERS the parties
to submit damages to the appraisal process, and STAYS this
matter pending completion of the appraisal.
Motion for Partial Dismissal
Standard of Review
motion to dismiss invokes Federal Rules of Civil Procedure
9(b) and 12(b)(6).
Rule 9(b) of the Federal Rules of Civil Procedure requires
that a plaintiff state an alleged fraud with particularity.
“A dismissal for failure to plead fraud with
particularity under Rule 9(b) is treated as a dismissal for
failure to state a claim under Rule 12(b)(6).” Rule
9(b) requires that a plaintiff state the who, what, when,
where, and how of the alleged fraud. “The frequently
stated, judicially-created standard for a sufficient fraud
complaint . . . instructs a plaintiff to plead the time,
place and contents of the false representation, as well as
the identity of the person making the misrepresentation and
what that person obtained thereby.”
Musket Corp. v. Suncor Energy (U.S.A.) Mktg., Inc.,
759 Fed.Appx. 280, 286-87 (5th Cir. 2019) (citations
omitted). These pleading standards, while referencing fraud
and mistake, apply equally to claims for misrepresentation
under the Texas Insurance Code. Waste Mgmt.,
Inc. v. AIG Specialty Ins. Co., No. CV H-16-3676, 2017
WL 3431816, at *4 n.7 (S.D. Tex. Aug. 9, 2017).
test of pleadings under Rule 12(b)(6) balances a party's
right to redress against the interests of all parties and the
court in minimizing expenditure of time, money, and resources
devoted to meritless claims. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 558 (2007). Federal Rule of Civil
Procedure 8(a)(2) requires only “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Furthermore, “[p]leadings must be
construed so as to do justice.” Fed.R.Civ.P. 8(e). The
requirement that the pleader show that she is entitled to
relief requires “more than labels and conclusions[;] a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
allegations are required, sufficient to raise the entitlement
to relief above the level of mere speculation.
Twombly, 550 U.S. at 555. Those factual allegations
must then be taken as true, even if doubtful. Id. In
other words, the pleader must make allegations that take the
claim from conclusory to factual and beyond possible to
plausible. Id., 550 U.S. at 557. The
Twombly court stated, “[W]e do not require
heightened fact pleading of specifics, but only enough facts
to state a claim to relief that is plausible on its
face.” 550 U.S. at 570.
complains that Plaintiff's allegations regarding
misrepresentations in violation of Texas Insurance Code
§ 541.060(a)(1) are devoid of factual assertions in
violation of the heightened pleading standards of Rule 9(b)
and fail the standard of review under Rule 12(b)(6).
Plaintiff's response stands on the sufficiency of the
existing petition, suggesting that the particularity
requirements of Rule 9(b) apply only to the allegations of
the insured loss: that Allstate issued a policy that covered
Plaintiff's home, which was damaged on or about August
25, 2017, as a result of Hurricane Harvey.
to Plaintiff's argument, the heightened pleading standard
applies to the substance of the allegations of
misrepresentation. And while Plaintiff generally alleges
improprieties in the adjuster's inspection and appraisal
of the damage, the pleading offers no factual details
regarding exactly how the inspection was substandard, what
damages were not included in the report, what damages were
undervalued, and what the adjuster or insurance company stood
to gain by such improprieties. The complaints of
misrepresentations are thus formulaic and conclusory. The
Court rejects Plaintiff's argument that further detail is
The Motion to ...