You’ve Got To Sue The Adjuster Properly

For Mansfield insurance adjusters, a 2016 opinion from the U.S. District Court, Houston Division, is an example of one way to properly sue an adjuster. The style of the case is, Robinson v. Allstate Tex. Lloyds & Timothy James Wesneski.
Robinson, a Texas citizen is insured with Allstate. She alleges she filed a claim with Allstate after her house was damaged during a storm on November 25, 2015. She alleges Wesneski, a Texas citizen and the adjuster Allstate hired to investigate the claim, conducted a substandard investigation. She alleges that Wesneski’s inadequate investigation caused her claim to be improperly evaluated and underpaid. Wesneski found that the amount of damage to Robinson’s property at $484.93, below the amount of the policy deductible. Robinson hired a private adjuster, who estimated the damage caused by the storm to be $25,818.77.
Robinson filed this lawsuit in Texas state court, naming Allstate and Wesneski as defendants. Robinson asserted that Wesneski violated the Texas Insurance Code and the Texas DTPA. She alleges Wesneski failed to conduct a reasonable and adequate investigation, which caused Allstate to undervalue her insurance claim. Allstate caused the case to be removed to Federal Court based on Allstate not being a Texas citizen and that Wesneski was joined just to defeat diversity jurisdiction and Robinson filed a Motion to Remand.
In response to Robinson’s Motion to Remand, Allstate does not dispute that it may be possible to maintain a cause of action under Chapter 541 of the Texas Insurance Code against an individual adjuster like Wesneski. Allstate argues, however, that Robinson failed to allege an adequate factual basis for imposing such liability on Wesneski.
Allstate argues that Robinson’s claims are inadequate because they are mere recitations of the statutory language from the Texas Insurance Code. It is correct that Robinson, in the “Causes of Action Against Defendant Timothy James Wesneski” section of the lawsuit recites the elements of the Texas Insurance Code and DTPA provisions she alleges Wesneski violated. In the “Facts” section, however, Robinson alleges specific conduct by Wesneski to support her claims against him. For example, Weneski conducted a substandard inspection that resulted in a damage estimate of $484.93 for the roof’s pipe jack flashing. Robinson alleges she hired an adjuster who found damage to her roof valued at $7,868.50, including damage to the asphalt starter, ridge cap, ridge vent, drip edge, valley metal, chimney flashing, step flashing, and furnace vent. Robinson alleges that Wesneski’s inadequate investigation also failed to discover significant interior damage to Robinson’s garage, kitchen, and family room.
Based on these allegations, Robinson asserts that Wesneski violated Section 541.060(a) and Section 542.003. The detailed factual allegations in Robinson’s Original Petition are adequate to satisfy the requirements of Rule 12(b)(6) for purposes of the improper joinder analysis. As a result, there is a reaasonable basis to predict that Robinson could possibly recover against Wesneski on the Texas Insurance Code claim in state court.
The case was remanded.