Here is an example for insured’s in Weatherford, Mineral Wells, Aledo, Hudson Oaks, Willow Park, Millsap, Brock, Peaster, Cool, Springtown, and other parts of Parker County and Texas to pay attention to.
As has been mentioned before on this blog, insurance companies will almost always attempt to have a case moved from State Court to Federal Court. One reason is that Federal Courts seem to look for reasons to throw cases out of court or to strike down pleading by the plaintiff. This is a reason to always get an experienced Insurance Law Attorney when dealing with an insurance company. The attorneys for the insured in the following case are good attorneys but still the Federal Court ruled in favor of the insurance company in striking down some of the pleading of the plaintiff.
Here is some background.
The case is styled, Guillermo A. Luna v. Nationwide Property and Casualty Insurance Company. Guillermo’s pleading alleged that his property was extensively damaged by Hurricane Ike. The resulting damage was to his roof, extensive damage throughout the entire house, including ceilings, walls, windows, screens, and flooring, as well as structural and exterior damage. Guillermo’s patio, fence, and shed were also damaged. He filed a claim with Nationwide seeking damages for his home, food and contents loss and other wind and water damage.
Nationwide assigned an adjuster who Guillermo alleges was improperly trained and unable to adequately perform a thorough inspection of the damages. Guillermo alleges the time spent on the claim was inadequate and points out specific examples of things not done by the adjuster or things that were done poorly.
The complaint that Nationwide had special knowledge and skills of the insurance industry, superior to that of Guillermo and was aware that the estimated payments they eventually gave Guillermo ($140.52 and $140.89), were inadequate to compensate Guillermo.
The complaint alleges violations of the Texas Insurance Code, Sections 541.060 and noncompliance with Sections 542.055, 542.056, and 542.058. The complaint also alleges common law fraud, breach of insurance contract, and breach of the common law duty of good faith and fair dealing owed by insurance companies to their insureds in insurance contracts because of their unequal bargaining power, here because of the inadequate investigation and unreasonable denial or partial payment of Guillermo’s claims.
Nationwide alleged that the pleading in the case were not specific enough to satisfy the requirement of Federal Rules of Civil Procedure 8, 9(b) and 12(b)(6). Nationwide claimed the allegations are comprised of vague generalities and formulaic recitations of statutory language that are insufficient to state a claim.
Examples given of the above were, the amended complaint does not allege facts to support his conclusions that Nationwide unreasonably refused to pay Guillermo’s claim, that the investigation was unreasonable, or specify what Nationwide should have done to conduct a reasonable investigation, or which of Guillermo’s damages were allegedly overlooked or undervalued and how, what Guillermo thinks constituted full payment that he was denied, what his claims should have settled for, and what was not fair about Nationwide’s conduct. Guillermo does not point out how Nationwide delayed the payment and when Guillermo should have received payment.
The court in this case ruled for Nationwide and struck many of Guillermo’s pleading. In doing so the court stated, “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice to set out a viable cause of action.”
There is a sense by this writer that the courts ruling in this matter was improper. This is a case we may hear further about on appeal. What this case does illustrate is the strict standards Federal Courts set for plaintiffs and why insurance companies try to have the cases in Federal Court rather than State Court. There is more of a “gotcha game” with technicalities that is not allowed in State Court.
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