Hail Claims And Proper Pleadings

Grand Prairie attorneys handling hail damage claims will find this case helpful in their law practice. It is a 2015, U.S. Eastern District, Sherman Division opinion. The style of the case is, Calvary United Pentecostal Church v. Church Mutual Insurance Company, Donny Brown, and George Ben Hodges.
This case arises out of a hail damage claim filed by Calvary. Church Mutual insured the property and hired Brown and Hodges to adjust the hail damage loss. Brown and Hodges concluded the amount of the loss was $17,285.38. Calvary hired their own adjuster who concluded the total damage was $964,124.98.
Calvary filed this lawsuit in State Court and Church Mutual had the case removed to Federal Court claiming that Brown and Hodges had been improperly joined in order to defeat Federal Court jurisdiction in the matter.
A defendant may remove any civil action from state court to a district court of the United States which has original jurisdiction pursuant to 28 U.S.C. § 1441. District courts have original jurisdiction over all civil actions that are between citizens of different states and involve an amount in controversy in excess of $75,000, exclusive of interest and costs pursuant to 28 U.S.C. § 1332(a). The party seeking removal “bears the burden of establishing that federal jurisdiction exists and that removal was proper. The removal statute must “be strictly construed, and any doubt about the propriety of removal must be resolved in favor of remand. A district court is required to remand the case to state court if, at any time before final judgment, it determines that it lacks subject matter jurisdiction.
In making its determination, the court must ordinarily evaluate all of the factual allegations in the plaintiff’s state court pleadings in the light most favorable to the plaintiff, resolving all 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 in state court, or that there has been outright fraud in the plaintiff’s pleading of jurisdictional facts. After the court resolves all disputed questions of fact and ambiguities in controlling state law in favor of the plaintiff, it 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. Additionally, the possibility of imposing liability must be reasonable, and not merely theoretical.
A determination of improper joinder must be based on an analysis of the causes of action alleged in the complaint at the time of removal. A district court should ordinarily resolve claims of improper joinder by conducting a Rule 12(b)(6)-type analysis. If a plaintiff can survive a Rule 12(b)(6)-type challenge, there is generally no improper joinder. The plaintiff must plead enough facts to state a claim of relief that is plausible on its face.
In evaluating a claim of fraudulent joinder, the Court does not determine whether the plaintiff will actually or even probably prevail on the merits of the claim, but looks only for a possibility that the plaintiff may do so. If that possibility exists, a good faith assertion of such an expectancy in a state court is not a sham … and is not fraudulent in fact or in law. 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.
The question for the Court is whether Church Mutual has shown that Plaintiff has no possibility of establishing a valid cause of action against the non-diverse Brown and Hodges. Church Mutual asserts that Brown and Hodges were improperly joined because there is no reasonable basis for predicting that Calvary might establish liability against them.
The Court must determine whether Calvary has set forth “specific actionable conduct” to support its claim against Brown and Hodges. Whether Calvary has stated a valid state law cause of action depends upon and is tied to the factual fit between it’s allegations and the pleaded theory of recovery.
Merely lumping diverse and non-diverse defendants together in undifferentiated liability averments of a petition does not satisfy the requirement to state specific actionable conduct against the non-diverse defendant. Additionally, merely asserting a laundry list of statutory violations without factual support as to how a non-diverse defendant violated the statute will not suffice.
Church Mutual asserts that it removed this case to federal court based on improper joinder because Calvary failed to plead any reasonable basis for predicting that it might be able to recover against Brown and Hodges. Calvary’s state court petition pleads boilerplate language against Brown and Hodges, and does not allege any independent acts on their part supported by facts that would support alleged violations of the Texas Insurance Code. Calvary cannot rely upon a mere theoretical possibility of recovery. To find a reasonable possibility that a Texas court would allow recovery against an adjuster, Calvary must demonstrate that the adjuster, as an individual, committed the Texas Code violation that caused the harm.
Calvary’s controlling petition fails to provide any factual fit to its theory of recovery; it merely recites statutory language and states that Brown and Hodges violated it.

Contact Information