Dallas Fort Worth Insurance Lawyer Blog
Parker county insurance lawyers will see lots of homeowners claims resulting from hail damage claims. When this occurs and the insurance company does not want to pay the claim and a lawsuit is filed, the likely result is the insurance company trying to have the case heard in Federal Court. An Eastern District, Sherman Division opinion deals with this situation. The opinion is styled, Lopez v. Allstate Vehicle and Property Insurance Company.
When a hail storm hit the Lopez home, a claim was filed with Allstate. The adjuster, Gary Harbison was assigned to investigate the claim and he concluded there was no damage and any potential damage had occurred prior to the storm. A lawsuit was filed and Harbison was sued with the allegations against him being that he conducted a substandard and improper investigation, that he was scared of losing his job, and he was fraudulent in his report because the Lopez’s public adjuster had found much more damage. Lopez claims damages totaling $30,646.73.
The lawsuit was filed in Denton County Court alleging breach of contract, violations of the Texas DTPA, and violations of the Texas Insurance Code, fraud, negligence, and gross negligence.
Allstate had the case removed to Federal Court alleging that Harbison was improperly joined in the lawsuit in order to defeat diversity jurisdiction. Thus, pursuant to 28 U.S.C. 1332, the case belongs in Federal Court.
When making a determination about whether there is an improper joinder of the defendants, the court must evaluate all of the factual allegations in the plaintiff’s state court pleadings in the light most favorable to the plaintiff, resolving contested issues of substantive fact in favor of the plaintiff.
The removing party must prove that there is absolutely no possibility that the plaintiff will be able to establish a cause of action against the in-state defendant, or that there has been outright fraud in the plaintiff’s pleading of jurisdictional facts. The Court then determines whether the plaintiff has any possibility of recovery against the party whose joinder is questioned. If there is a reasonable basis for predicting that the state law might impose liability on the facts of the case, then there is no fraudulent joinder. This possibility must be reasonable and not just theoretical.
Allstate correctly asserts that, under Texas law, an insured may have a valid cause of action against an insurance adjuster under the proper circumstances, but only if sufficient facts exist, and are pleaded, involving allegedly harmful conduct by the adjuster toward plaintiff. Texas law does permit adjusters, like Harbison, to be held individually liable for violations of the Texas Insurance Code, Section 541.002(2). But for an adjuster to be held individually liable, they have to have committed some act that is prohibited by the section, not just connected to an insurance company’s denial of coverage.
There are no such allegations in this case. Plaintiffs’ Original Petition alleges only that Allstate insured Plaintiffs, that a storm in April 2016 damaged Plaintiffs’ insured property, that Plaintiffs submitted a claim for that damage to Allstate, and that Allstate utilized Harbison to investigate the claim. Plaintiffs assert only boilerplate allegations that Harbison failed to thoroughly investigate the claim, made misrepresentations and omissions regarding the amount of damage and cost of repair, and conducted an outcome-oriented investigation. No additional facts are alleged. General allegations that Harbison’s investigation caused Plaintiffs harm because it resulted in an undervaluation of the claims is not sufficient because there is no factual allegations of independent conduct on Harbison’s part, which caused Plaintiffs any harm.