Last week, a magistrate in the Western District of Texas recommended that a motion to remand be denied and motion to dismiss granted in favor of an insurer. In 8000 Del Donore HOA-8000 Inc. v. Mid-Century Insurance Co.., No. 5:17-CV-01226, (W.D. Tex. April 30, 2018), the insured filed a motion to remand based on lack of diversity. An engineering firm that had been added as a party also filed a motion to dismiss.

The insured originally filed an action in Bexar County, Texas, concerning an insurance claim related to Plaintiff’s property. The insured claimed the property was severely damaged by a windstorm/hailstorm. The insured submitted a claim to Mid-Century under to the Policy and Mid-Century assigned the claim to an adjuster. The adjuster inspected the Property with the assistance of two employees of an engineering firm. After the inspection, an employee of the engineering firm prepared a report. After the claim was denied, the insured sued Mid-Century for breach of contract, violations of the Texas Insurance Code, and breach of the common law duty of good faith and fair dealing. The insured also sued the engineering firm and the engineer for “aiding and abetting” violations of Texas Insurance Code and Civil Conspiracy.

The insured brought an action to remand the action back to state court. The insurer opposed remand and asked the Court to dismiss the engineer and engineering firm as improperly joined. Analyzing Texas law, the magistrate found that the insured could not state a claim for aiding and abetting or civil conspiracy against the engineer for inspecting the roof or authoring the report. The magistrate also concluded the insured cannot state a claim against the engineering firm for vicarious liability and those claims should also be dismissed. Lastly, the magistrate recommended the District Judge deny the motion to remand and dismiss all claims against the engineer and engineering firm.

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