In Craig Penfold Properties, Inc. v. The Travelers Cas. Ins. Co., et al;.,  2015 WL 356885 (N.D. Tex. – Dallas Div. Jan. 28, 2015), the Plaintiff’s state court suit was removed to federal court. Plaintiff amended its existing first party property suit to include Unified Building Sciences & Engineering (“UBSE”) as the defacto adjuster who they claimed negligently failed to properly investigate the insurance claim and also failed to properly adjust it.  BSE filed a motion to dismiss under Rule 12(b)(6) for failing to state a claim.

The Court relied on an unpublished 5th Circuit Court of Appeals decision to hold that the Texas law “fair notice” standard would be applied to the allegations to determine if a claim had been stated.  The Court also applied the new Tex.R.Civ.P. 91a rule that allows for dismissal if “a cause of action has no basis in law if the allegations, taken as true, together with inferences drawn from them, do not entitle the claimant to the relief sought.”

The Court concluded the claims should be dismissed because Tex.Civ.Prac.&Rem.C sec. 150.002(a) requires the filing of a certificate of merit in any action for “damages arising out of the provision of professional services.”  The Court reasoned that “the issue is not whether the alleged  tortious acts constituted the provision of professional services, but rather whether the tort claims arise out of the provision of professional services.”  The Court held that the claims did arise out of the provision of professional services by the engineering company because:  UBSE inspected the property and found hail damage, UBSE wrote a report that the carrier relied upon, and they were sued for failing to recommend repairs in conformity with industry standards for roofs with the same or similar damage.  Accordingly, the Court dismissed the claims without prejudice for failing to file the required certificate of merit.

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