The Northern District of Texas, Fort Worth Division, decided a case in 2021 wherein the lawyer for insured did a good job of pleading his case. The strange thing about this case is that it was filed in 2021, well after the new section of the Insurance Code was in effect, that being section 542A. In section 542A, suing the adjuster has essentially been made something of the past, with rare exceptions. However, it is not the issue in this case but the case still serves as a good example on how to name the insurance adjuster in such a way as to keep the case in State Court rather than being removed to Federal Court.
The style of the case is, Paradise Villas HOA, Inc. v. Amguard Insurance Company and Todd Anthony Gilmore. Paradise is the insured, Amguard is the insurer, and Gilmore is the adjuster.
Paradise suffered alleged hail damage and properly reported the claim to Amguard. Gilmore, a Texas Citizen, was assigned to adjust the claim and according to Paradise, Gilmore greatly under estimated the value of the claim. A lawsuit was filed in State Court and Amguard caused the case to be removed to Federal Court alleging that Gilmore was improperly named in an effort to defeat diversity jurisdiction and asserting that the causes of action asserted against Gilmore could not stand. Paradise filed a motion to remand which is the cause of this opinion.
The Court discussed the law as it relates to the issues being presented and then agreed with Paradise. In doing so, the Court pointed out the factual pleading of Paradise which are copied here. They serve as a good example.
Plaintiff’s first amended original petition alleges as follows:
Gilmore was tasked with the responsibility of conducting a thorough and reasonable investigation of Plaintiff’s loss, including determining the cause of and then quantifying the damage to the exterior and interior of Plaintiff’s Property. Gilmore was also tasked with conducting a thorough and reasonable investigation to ensure a proper scope of damages. Rather than conducting such an inspection, Gilmore failed and refused to even look at the covered damages to Plaintiff’s Property. Subsequent to the inspection, Gilmore prepared an estimate which vastly under-scoped the actual covered damages to Property. Clearly, Gilmore did not conduct a thorough investigation of the claim. Despite having been assigned the claim, and despite being given authority and instructions to inspect, adjust and evaluate the claim, Gilmore failed and refused to properly adjust the claim. Gilmore failed to properly inspect the Property and the damages, failed to request information, failed to adequately investigate the claim, failed to respond to requests for information from the Plaintiff and/or their agents, failed to timely evaluate the claim, failed to timely estimate the claim, and failed to timely and properly report to AmGuard and make recommendations to AmGuard to address all the covered damages. Gilmore’s failure to present all of the covered damages to AmGuard contributed to Plaintiff’s claim [not] being paid properly and in full. Plaintiff provided information regarding the loss and the claim to Gilmore. Plaintiff allowed full and complete access to the Property. Plaintiff provided sufficient information when requested by Gilmore so he could fairly and reasonably adjust and evaluate the loss. Plaintiff made inquiries regarding the status of the loss and payment, but Gilmore failed and refused to respond to the inquiries and failed to properly adjust the claim and the loss.