Tarrant County insurance attorneys will learn real fast that when asserting a claim against an insurance adjuster, the claim needs to be pled with specificity. This is illustrated in a recent case from the Southern District, McAllen Division. The opinion is styled, Ada Elizondo v. Great Lakes Insurance SE. et al.
This is an insurance case for damages to Ada’s property allegedly caused by a storm. Dissatisfied with the adjustment and payment of her insurance claim, Ada filed suit against Great Lakes and their adjuster Jose Lopez. The case was filed in state court and promptly removed to federal court based on diversity jurisdiction. Lopez then filed a motion to dismiss and Ada filed a motion to remand. Both motions concern whether Lopez is a proper party to this suit.
Under Federal Rule 15(a), Ada needs the consent of Lopez to amend her pleading and that is not given. Thus, she must seek approval from the Court. However, she did not attach a proposed amendment to her motion to amend. The purpose of the amendment appears to be to defeat diversity jurisdiction and for that reason the Court will not allow amendment.
The Fifth Circuit recognizes two manners by which improper joinder may occur: (1) actual fraud in the pleading of jurisdictional facts, or (2) the inability of the plaintiff to establish a cause of action against the non-diverse party in a state court. The Fifth Circuit has interpreted the second manner to mean that there is no reasonable basis for the district court to predict the plaintiff might be able to recover against an in-state defendant. To determine whether a plaintiff has a reasonable basis for recovery, courts evaluate the sufficiency of the pleadings against non-diverse parties under the federal pleading standards.
First, the plaintiff must plead enough facts to state a claim to relief that is plausible on its face. A claim has facial plausibility when its factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Second, the plaintiff must prove the plausibility of his claim with case specific facts, not mere conclusions.
Here, Ada alleges Lopez violated Section 541 of the Texas Insurance Code. However, she fails to state these violations in accordance with proper Federal standards in that her claims are assertions, unsupported by specific facts of the alleged wrongs committed by Lopez.
Ada’s claim are conclusory in their nature and are simply naked assertions devoid of further factual enhancement. Ada does not specify the particular acts of what Lopez did wrong. There are no facts supporting exactly what Lopez did that was wrong. Simply asserting that Lopez did not do a good job is not enough, there needs to be facts asserting what exactly was done that was wrong.
Lopezs’ motion for dismissal was granted and Ada’s motion for remand was denied.