Last week, the Eastern District of Texas demonstrated that taking a “shotgun” approach to pleadings will not necessarily gain an insured any advantage in federal court.  In Button v. Chubb Lloyds Ins. Co. of Texas, 4:11CV536, 2013 WL 440976 (E.D. Tex. Feb. 4, 2013), District Judge Richard Schell of the Sherman Division approved a magistrate’s report and recommendation, granting the insurer’s motion to dismiss and dismissing a wide variety of extra-contractual causes of action asserted by the insured.

The court rejected the insured’s claims for breach of implied warranty, stating that insurance policies are not subject to implied warranties.  The court also dismissed the insured’s claim for negligence and negligent misrepresentation stating: “If a defendant’s conduct is actionable only because it breaches the parties’ agreement, as is the case here, the claim is solely contractual in nature.”  The court went on to dismiss the insured’s  claims  for  misrepresentation  and  fraud,  noting:  “The  Court  agrees  with  the  Defendant  that Plaintiffs have wholly failed to set forth sufficient facts to demonstrate even to the most ‘casual reader’ an element of fraud or misrepresentation.”  This result highlights the usefulness of Federal Rule of Civil Procedure 12(b)(6), which provides for early dismissal of claims that have no basis in fact or law.

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