Suing The Insurance Adjuster

Attorneys handling hail damage insurance claims need to read this opinion from the U.S. District Court, Northern District of Texas, Fort Worth Division. The case is styled, Monclat Hospitality, LLC vs Landmark American Insurance Company.
This case was filed in State District Court in Tarrant County and then removed by Landmark to Federal Court base on there being a lack of diversity of citizenship subject matter jurisdiction as contemplated by 28 U.S.C. Section 1332(a). Insurance companies always want to fight insurance disputes in Federal Court because matters are more in their favor in Federal Court. Monclat had attempted to prevent the removal by suing the adjuster and then trying to convince the Court why suing the adjuster was proper in this case.
Monclat filed this lawsuit to recover benefits from Landmark under a policy issued by Landmark. Monclat alleged that it had suffered damages due to wind and hail.
Monclat sued the adjuster saying the adjuster was an agent of Landmark but failed to state any specific acts of wrong doing on the part of the adjuster. The only relevant allegation was that the adjuster and Landmark conspired to underpay Monclat’s claim by conducting an outcome oriented investigation.
The U.S. 5th Circuit has held that the pleadings in a lawsuit must be able to withstand a Rule 12(b)(6) analysis when seeking to determine if an adjuster has been improperly joined in a lawsuit. Although a complaint need not contain detailed factual allegations, it must show more than simply alleging legal conclusions or recitations of the elements of a cause of action.
The Court stated that the complaint used by Monclat in this action appears to be mere boilerplate. Monclat’s boilerplate allegations against the adjuster fail to state a claim against him upon which relief can be granted, and failed to provide a reasonable basis for the Court to predict Monclat might be able to recover against the adjuster.
As to the conspiracy allegation, Texas law requires allegations of (1) two or more persons, (2) an object to be accomplished, (3) a meeting of the minds on the object or course of action, (4) one or more unlawful, overt acts, and (5) damages as the proximate result. Liability for conspiracy depends on the participation in some underlying tort for which Monclat seeks to hold at least one of the defendants liable. The law is clear that a corporation cannot conspire with itself, no matter how many of its agents participated in the wrongful action. Also, conspiracy to breach a contract is not actionable under Texas law.
As for allegations of fraud, the pleading must “identify the speaker, state when and where the statements were made, and explain why the statements were made, and explain why the statements were fraudulent.”
Because Monclat failed to state a plausible claim agains the adjuster the removal to Federal Court was successful and Monclat’s motion for remand was denied.

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