Insurance attorneys with much experience learn real quick that the insurance companies prefer to litigate cases in Federal Court. The reason is that Federal Court is much less forgiving of mistakes and the Federal Courts look for reasons to dispose of a case. This authors opinion is that many of the Federal Courts put a priority on technical rules rather than substance. This authors opinion is bolstered by the fact that an insurance company will always attempt to get a lawsuit against them in State Court, removed to Federal Court.
In this case, the court is considering State Farm’s motion for partial dismissal on the pleadings, as well as Abdon’s response and alternative motion for leave to amend. The Court granted State Farm’s motion for partial dismissal and denied Abdon’s motion for leave to amend.
This is an insurance case arising from a hail storm and damage to Abdon’s residential property. Abdon submitted a claim to State Farm, who assigned the claim to Hector Amezquita. Abdon alleges “Hector improperly adjusted the claim” by conducting “a substandard inspection, which is evidenced by his reports, which failed to include many of Abdon’s damages.”
Hector’s inspection adjusted for damages in the amount of $6,485.95. Abdon alleges the damages were actually $27,809.29, and thus, Hector’s adjustment was a misrepresentation which led to underpayment of the claim. Further, Hector offered “negligent and false” advice on how to prevent future damages and thus Abdon sustained further damages as a result.
The lawsuit was filed in State Court alleging DTPA and Texas Insurance Code violations. State Farm removed the case to Federal Court and denied Abdon’s motion for remand and dismissed Hector from the lawsuit.
State Farm filed this partial motion to dismiss Abdon’s extra-contractual claims, and Abdon responded, embedding the following alternative request for lead to amend: “in the event the Court finds the Motion has merit in any or all respects, Abdon requests the Court to grant her leave to amend so she can file an amended complaint to plead more specific facts upon which to support her extra-contractual claims against State Farm.
The Court addressed Abdon’s embedded request for leave to amend, which would nullify State Farm’s dismissal motion if granted. As a general rule, leave to amend should be “freely” given. However, the 5th Circuit recently stated that leave to amend is not required when” 1) the movant contends that his pleadings sufficed to state a due process claim throughout his briefing in opposition to the rule 12(c) motion and 2) fails to apprise the court of the facts that he would plead in an amended complaint, if necessary, to cure any deficiencies.
Here, it would be improper to grant leave to amend. Here, Abdon contends her factual allegations are sufficient to support her extra-contractual claims. However, when requesting leave to amend, she does not specify what facts she would add to cure specific pleading deficiencies. This is not specific enough for the Court to determine whether Abdon’s intended amendments would be futile and a waste of everyone’s time.