Dallas Fort Worth Insurance Lawyer Blog
Here is another one of those cases where an insured sues the insurance company and the adjuster in State Court for various violations of the Texas Insurance Code. The insurance company a adjuster then remove the case to Federal Court alleging that the adjuster has not been properly sued.
This case is from the Eastern District of Texas, Sherman Division, and is styled, Angelina’s Restaurant v. Allied Insurance Company Of America And Mary Keefer.
Angelina’s property sustained wind and hail damage. Allied insured the property and Keefer was assigned to adjust the claim. Angelina eventually sued Allied and Keefer for various violations of the Texas Insurance Code. The case was filed in State Court and then removed to Federal Court by the Defendants. Angelina then filed a motion to remand, which is the subject of this opinion.
The Court discusses in the opinion the various standards that apply to this situation pointing out the 5th Circuit standards that apply. These standards include 28 U.S.C., Section 1441(a) and Rule 12(b)(6).
The Court eventually ruled that after consideration of Angelina’s claims against Defendant Keefer, the Court is unconvinced that they survive scrutiny under Rule 12(b)(6). Angelina’s asserts a number of claims under the Texas Insurance Code. To support those claims, Angelina’s pleads, among other things, that Defendant Keefer inspected Angelina’s property; ignored covered damages; performed a cursory inspection; failed to properly adjust and estimate the claim; failed to timely and properly report to Defendant Allied Insurance to address all the covered damages; made statements misrepresenting the policy terms; misrepresented material facts related to the coverage at issue; and prepared a report that failed to include all of the damages that she noted during the inspection of the property, which resulted in an undervaluation of the damages the property sustained. But these are merely boilerplate legal allegations without factual matter supporting them. Though Angelina’s asserts correctly that an insurance adjuster may be held individually liable under the Texas Insurance Code, it did not plead sufficient factual matter in its Original Petition to support a claim against Defendant Keefer that can withstand scrutiny under Rule 12(b)(6).
Thus, the Court finds that Angelina’s has failed to allege sufficient factual matter to state a claim against Defendant Keefer that is plausible on its face. Because none of Angelina’s claims against Defendant Keefer can survive a Rule 12(b)(6) challenge, Defendant Keefer was improperly joined to this action. This means that the only real parties in interest are completely diverse, and the Court therefore has diversity jurisdiction over this civil action.