Dallas Fort Worth Insurance Lawyer Blog
Fort Worth lawyers who end up in Federal Court need to read this opinion from the Northern District, Fort Worth Division, Judge McBride. The opinion is styled, Antonio Perez v. Allstate Vehicle and Property Insurance Company, et al.
Perez initiated this action by filing a lawsuit in State District Court. Allstate removed the action to Federal Court, alleging diversity of citizenship and the required amount in controversy. This Court Ordered Perez to replead so that his pleadings complied Federal Court pleading standards found in Rule 8(a) and 9(b) of the Federal Rules of Civil Procedure, and directed Perez to file an amended complaint that complied with those requirements.
Perez filed his amended complaint. Despite the warning provided in the order for repleading, Perez’s complaint as amended was, with few exceptions, basically a repeat of his state court pleadings, alleging, in a conclusory way, violations of sections of the Texas Insurance Code, fraud, and conspiracy to commit fraud, breach of contract, and breach of the duty of good faith and fair dealing.
The amended pleading allege Perez had a policy with Allstate covering property he owed. That a hail or wind storm caused damage to his property and that the adjusters, Baxter and Cox did not pay him as much as his claim was worth.
The allegations in Perez’s complaint are the type the Court has learned to expect in cases of this kind. The allegations are conclusory and are but recitations of elements of contractual, statutory, and common law causes of action without supporting factual allegations.
This opinion then cites the alleged violations of sections, 541.060(a)(1), (a)(2)(A), and (a)(3). Then sections 541.060(a) and 541.151. Then section 541.060(a)(1). then section 541.060(a)(2)(A). Then section 541.060(a)(3). Then section 541.060(a)(4). The section 541.060(a)(7). Then fraud and conspiracy to commit fraud.
None of the alleged violations state facts supporting the alleged violations.
The United States 5th Circuit has explained: “Where the complaint is devoid of facts that would put the defendant on notice as to what conduct supports the claims, the complaint fails to satisfy the requirements of notice pleading.” In sum, “a complaint must do more than name laws that may have been violated by the defendant; it must also allege facts regarding what conduct violated those laws. In other words, a complaint must put the defendant on notice as to what conduct is being called for defense in a court of law.”
Rule 9(b) sets forth a heightened pleading standard applicable to fraud claims: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” This is sometimes referred to as “the who, what, when, where, and how.”
The Court Ordered an entry of final judgment in regards to Baxter and Cox in this matter.