Homeowners Claim And Winning In Court

How do I know I’ll win if I sue? Whether you live in Grand Prairie, Weatherford, Arlington, Mansfield, Newark, Keller, Irving, or any other place in Texas, that would be a good question. The first part of answering that question would be to find out whether your case is in State Court or Federal Court. Whenever an individual is sueing an insurance company, an experienced Insurance Law Attorney will tell you that your best chance for success is to be in State Court.
In the case, Sharman McGilbert v. Safeco Insurance Company of Indiana, Odette Goer, and Gary Waddell, McGilbert sued in State Court and Safeco Insurance Company of Indiana immediately tried to have the case removed to Federal Court. Safeco failed in their effort.
This case was decided on April 22, 2010, in the United States District Court, Southern District Texas, Houston Division, by District Judge Gray H. Miller. The case was originally filed in the 11th Judicial District Court of Harris County, Texas. Judge Miller remanded the case back to the 11th after Safeco’s unsuccessful attempt to have it removed.
McGilbert brought suit against Safeco, Goer, and Waddell alleging multiple causes of action, including breach of contract, breach of good faith and fair dealing, common law fraud, violations of Texas Insurance Code Chapters 541 and 542, and violations of the Texas Deceptive Trade Practices Act. This was done after McGilbert’s home was damaged in Hurricane Ike and her property damage claim was not properly paid.
For Safeco to be successful in having the case removed to Federal Court, Safeco would have to show that the amount in controversy exceeded $75,000, which it did, and that the people sued were not residents of Texas. Safeco was not a Texas resident, nor was Waddell. But Goer was, so Safeco had to show that Goer was not properly in the lawsuit. That Goer was only in the lawsuit so that McGilbert could keep the case in State Court and that the claims against Goer were improper. This can be done in either of two ways. One, is actual fraud in the pleading of jurisdictional facts which was not in dispute and two, the inability of McGilbert to establish a cause of action against Goer in State Court. This part was at issue in this case.
Here, the factual allegations against Goer must be enough to raise a right to relief above the speculative level.
Safeco argued that McGilbert did not intend to pursue their claim against Goer as evidenced by the fact that Goer had not yet been served with legal papers in this case. The Court pointed out that there had been atleast five attempts to get the legal papers delivered to Goer and the fact that they had been unsuccessful was not proof that McGilbert did not intend to persue her claim against Goer. Thus, Safeco’s first arguement was defeated.
Second, Safeco argued that the complaint did not allege specific, individual actions attributable to Goer. The Court pointed out the allegations that Goer and Waddell were the adjusters assigned to adjust the claim. That they conducted an inspection of McGilbert’s property. That they were tasked with the responsibility of conducting a thorough and reasonable investigation of McGilbert’s claim, including quantifying the damage done to the home and personal property. Subsequent to the inspection, Goer and Waddell issued a damage estimate that failed to fully quantify the damage done to the property, thus demonstrating that they did not conduct a thorough investigation of the claim. That they failed to fairly evaluate and adjust the claim as they are obligated to do under the terms of the policy and Texas law. By failing to properly investigate the claim and by issuing a grossly undervalued damage estimate, they engaged in unfair settlement practices by misrepresenting material facts as to the true value of the covered loss. That Goer and Waddell also failed to provide a reasonable explanation as to why Safeco was not compensating McGilbert for the full value of her covered losses.
All of the preceding paragraph is enough to show that McGilbert has pled sufficient facts against Goer to establish a reasonable possibility of recovery. Thus, Safeco’s second arguement was without merit.
This case is a good example of how an attorney can properly defeat an insurance company from successfully removing a case to Federal Court.