Correctly Suing The Adjuster

Attorney’s who handle hail claims need to know the proper way to sue an insurance adjuster unless they want to litigate the case in Federal Court. A U.S. Western District, Waco Division opinion is worth reading. It is styled, Polansky’s Wrecker Service v. Universal Underwriters Insurance Company and William Gillis.
Polansky’s sued Universal and Giliis for violations of the Texas Insurance Code resulting after a claim for wind and hail damage was not sufficiently reimbursed. The case was filed in State Court and removed to Federal Court by Universal and Gillis on allegations of diversity and their assertion that Gillis was improperly joined in the lawsuit. Polansky’s is asking the court to remand the case stating that Gillis was not improperly joined. The Court’s job in this case is to examine whether or not Gillis was properly sued.
Polansky’s , makes the following factual allegations in regard to his claims against Gillis:
Gillis inspected Plaintiff’s property. During the inspection, Gillis was tasked with the responsibility of conducting a thorough and reasonable investigation of Plaintiff’s claims, including determining the cause of and then quantifying all the damage done to Plaintiff’s property. During the inspection, Gillis ignored covered damages to the Property and refused to address all of the damages caused by the loss. Subsequent to the inspection, Gillis prepaired a repair estimate, which vastly under-scoped the actual damages to the property, thus demonstrating Gillis did not conduct a thorough investigation of the claims.
Despite having been assigned to the claims, and despite being given authority and instructions to inspect, adjust and evaluate the claims, Gillis failed and refused to properly adjust the claims. Gillis failed to properly inspect the property and the damages, failed to respond to requests for information from the Plaintiff, failed to timely evaluate the claims, failed to timely and properly estimate the claims, and failed to timely and properly report to Gillis to address all the covered damages.
The Plaintiff provided information regarding the loss and the claims to Gillis. The Plaintiff allowed Gillis full and complete access to the property. The Plaintiff provided sufficient information to Gillis to adjust and evaluate the loss. The Plaintiff made inquiries regarding the status of the loss and payment, but Gillis failed and refused to respond to the inquiries and failed to properly adjust the claims and loss. As a result of Gillis’s inadequate and outcome-oriented investigation, to date, Plaintiff has not received full payment for the claims.
Gillis’s actions were negligent, reckless, willful and intentional, and were the proximate and producing cause of damages to Plaintiff.

In determining whether a party was improperly joined, the Court must analyze the causes of action alleged in the State Court petition at the time of removal. This must be done in the light most favorable to the Plaintiff.
In analyzing the Plaintiff’s claims, the analysis does not focus on whether he will actually prevail or even probably prevail on the merits of the claim, but whether there is a possibility that the Plaintiff may do so. If there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved, then there is no fraudulent joinder, and the case must be remanded for lack of diversity.
Texas’ fair notice standard for pleading is embodied in Rule 47 of the Texas Rules of Civil Procedure, which requires a “short statement of the cause of action sufficient to give fair notice of the claim involved.” This standard looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant. A Court must uphold the petition as to a cause of action that may be reasonably inferred from what is specifically stated, even if an element of the cause of action is not specifically alleged.
The Court believed the pleading were proper and specific enough as to the adjuster and thus remanded the case back to State Court.