DALLAS FEDERAL COURT DENIES INSURED’S MOTION TO REMAND FOR FAILURE TO ASSERT VIABLE CLAIM AGAINST ADJUSTER

June 4, 2013

Recently, in Weber Paradise Apartments, LP v. Lexington Ins. Co., 3:12-CV-5222-L, 2013 WL 2255256 (N.D. Tex. May 23, 2013), the District Court for the Northern District of Texas denied an insured’s Motion to Remand because the Plaintiff’s petition failed to set forth a reasonable basis for the court to predict that the insured might recover against an insurance adjuster on the theories asserted.

In this case, Plaintiff originally filed suit in County Court in Dallas County. Plaintiff asserted claims for negligence, negligent misrepresentation, and fraud against the insurer; claims for negligence and negligent misrepresentation against the adjusting company; and claims for negligence, negligent representation, breach of the duty of good faith and fair dealing, violations of the Texas Insurance Code, and violations of the Texas Deceptive Trade Practices Act against the adjuster.  Defendants removed the lawsuit on the basis of the improper joinder of the insurance adjuster and argued the claims against the adjuster did not meet the Texas court’s low threshold for pleading.

The District Court analyzed Plaintiff’s petition and determined that there was no factual fit between the unclear and conclusory allegations in Plaintiff’s pleading and its theories of recovery.  Even with a liberal reading of the operative allegations of the petition, the court said it would have to “guess, speculate, and strain” to determine whether a reasonable basis existed to predict that the adjuster might be liable to Plaintiff on the claims asserted.  As such, the Court determined there was no reasonable basis to predict that Plaintiff might recover against the adjuster and denied Plaintiff’s Motion to Remand.