Paperwork Has To Be Right When Suing An Insurance Company

The papers filed in Court have to be proper when suing an insurance company. A Southern District of Texas, McAllen Division opinion illustrates this rule. The opinion is styled, Alfredo Murillo Jr., et al v. Allstate Vehicle and Property Insurance Company.

Alfredo suffered damage after a hail and or windstorm and sued Allstate alleging Allstate failed to “cover the true costs of repairs … including but not limited to, repair and/or replacement of the roof and any exterior damage,” and that Allstate “failed to properly adjust the claim and summarily improperly paid the claim.” Alfredo’s complaint contains no other specific factual allegations beyond general allegations that Allstate’s investigation of the claims was “unreasonable,” and that Allstate “failed to properly scope” Alfredo’s damages, and that Allstate delayed in the payment of the true cost of damages. In all other respects, Alfredo’s complaint is a form petition that merely restates the legal elements of his claims.

Allstate filed this motion for partial dismissal pursuant to Federal Rule 12(b)(6) for failure to state a claim for which relief can be granted and Rule 9(b) for failure to plead with particularity.

A plaintiff such as Alfredo must plead enough facts to state a claim to relief that is plausible on its face. This does not require detailed factual allegations, but it does require more than labels and conclusions or a formulaic recitation of the elements of a cause of action.

In addition to this baseline pleading standard, Rule 9(b) imposes a heightened set of pleading requirements when the claim in question is grounded in fraud. The Fifth Circuit has held that Rule 9(b) requires specificity as to the statements (or omissions) considered to be fraudulent, the speaker, when and why the statements were made, and an explanation why they are fraudulent. The

Rule applies by its plain language to all averments of fraud, whether they are part of a claim of fraud or not and therefore applies to statutory claims which are based on allegations of fraud. Specifically, claims alleging violations of the Texas Insurance Code and the DTPA are subject to the requirements of Rule 9(b). A dismissal for failure to plead with particularity is treated the same as Rule 12(b)(6) dismissal for failure to state a claim.

Here, Alfredo’s claims are insufficiently pled. The only factual allegations in the complaint identify the policy and claim number, the date of the alleged loss, and the relationship of the parties.

None of the statements pled by Alfredo contain any specific factual content. Alfredo failed to plead the time, place, and specific contents of any false representations. Alfredo does not allege the actual contents of any particular statements made by Allstate or its agents, when such statements were made, or how such statements amounted to fraud. This is fatal to the heightened pleading requirements of Rule 9(b).

Allstate’s motion was granted.