DocketNumber: Civil Action No. H-19-960
Citation Numbers: 380 F. Supp. 3d 609
Judges: Rosenthal
Filed Date: 5/15/2019
Status: Precedential
Modified Date: 7/25/2022
Sucheta Vyas and Davis Vyas-together, "Vyas"-sued Atain Specialty Insurance Company and Team One Claims in Texas state court, alleging that these defendants unreasonably investigated and underpaid an insurance claim for storm damage to their hotels. (Docket Entry No. 1-2 at 9). Atain Insurance removed based on diversity jurisdiction, asserting that Team One was improperly joined. (Docket Entry No. 1). Vyas moved to remand, arguing that the court lacks diversity jurisdiction because Team One is a proper defendant. Atain Insurance responded and submitted documents. (Docket Entry Nos. 6, 9-10).
After a careful review of the state-court pleadings, the notice of removal, the motion to remand, response, and the properly considered documents, the court concludes that there was improper joinder and denies the motion to remand. The reasons are explained in detail below.
I. Background
The allegations are straightforward and all too familiar. Vyas alleges that a February 2018 storm damaged some hotels they owned. Although they timely filed an insurance claim, Atain Insurance "overlooked or ignored" the property damage and paid too little. (Docket Entry No. 1-2 at 9). Team One investigated the claim on Atain Insurance's behalf. (Id. ). Vyas alleges that Team One "was unable or unwilling *611to perform or complete a reasonable inspection" and missed storm damage to two hotels. (Id. ). Vyas alleges that the Casa Loma Motel had "exterior damage to the property, including damage to the built-up 3 ply roof, roll roof, soft metal and gutters, as well as stucco damage to the exterior elevations," and that the Holiday Plaza Motel had "exterior damage to the property," including damage to the roofs of buildings 1-4, a storage shed, and a laundry room; exterior elevation damage; and damage to rooms 204, 205, 219, 245, and 248, all of which Team One omitted or undervalued. (Id. at 9-10). Vyas alleges that Team One's "unreasonable investigation led to the wrongful underpayment and/or denial of [the] claim," and that Atain Insurance ratified Team One's findings and actions. (Id. at 10, 16).
In January 2019, Vyas sued in the 85th Judicial District Court of Brazos County, Texas, asserting a contract-breach claim and violations of the Texas Insurance Code and the Texas Deceptive Trade Practices Act against Atain Insurance and Team One. (Id. at 13, 16-17). Atain Insurance timely removed on the basis that it is not a Texas citizen and that Vyas improperly named Team One as a defendant because Atain Insurance had accepted "whatever liability" Team One had to Vyas for its "acts or omissions related to the claim." (Docket Entry No. 1 at 3 (quoting TEX. INS. CODE 542A.006(a) )). Atain Insurance submitted a November 2018 letter it sent to Vyas, stating that:
Pursuant to section 542A.006(b) of the Texas Insurance Code, Atain [Insurance] accepts any liability that Robert Gutierrez, Team One Adjusting Services, Scott Abraham, [or] EnVista Forensics may have for their purported acts or omissions related to this claim.
(Docket Entry No. 1-2 at 38).
Vyas has moved to remand, arguing that § 542A.006 permits "insurers to assume responsibility for their agent-adjusters without allowing insurers to claim complete diversity when they assume responsibility for a non-diverse adjuster." (Docket Entry No. 6 at 4). Atain Insurance responds that Vyas relies on cases involving insurers that elected to accept liability only after the lawsuit had been filed in state court, while Atain Insurance elected to accept liability for Team One months before suit was filed. (Docket Entry No. 9 at 3-5). As a result, Atain Insurance argues, Vyas's claims against Team One had no possibility of success when Vyas sued Team One. (Id. at 3).
The parties' arguments are considered below.
II. The Legal Standard
"To remove a case based on diversity, the diverse defendant must demonstrate that all of the prerequisites of diversity jurisdiction contained in
"[A] district court is prohibited by statute from exercising jurisdiction over a suit in which any party, by assignment or otherwise, has been improperly or collusively joined." Smallwood ,
*612Travis v. Irby ,
"The burden of persuasion on those who claim improper joinder is a heavy one." Davidson v. Georgia-Pacific, L.L.C. ,
A "court may conduct a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant." Smallwood ,
III. Analysis
"As of September 2017, the Texas Insurance Code allows an insurer to accept whatever civil liability an agent might have to a claimant for the agent's conduct related to the claim by providing written notice to the claimant." River of Life Assembly of God v. Church Mut. Ins. Co. , No. 19-CV-49,
The Texas Insurance Code states:
(a) Except as provided by Subsection (h), in an action to which this chapter applies, an insurer that is a party to the action may elect to accept whatever liability an agent might have to the claimant for the agent's acts or omissions related to the claim by providing written notice to the claimant.
(b) If an insurer makes an election under Subsection (a) before a claimant files an action to which this chapter applies, no cause of action exists against the agent related to the claimant's claim, and, if the claimant files an action against the agent, the court shall dismiss that action with prejudice.
(c) If a claimant files an action to which this chapter applies against an agent and the insurer thereafter makes an election under Subsection (a) with respect to the agent, the court shall dismiss the action against the agent with prejudice.
TEX. INS. CODE § 542A.006(a) - (c).
District courts in this circuit have disagreed on whether an insurer's § 542A.006 election post-lawsuit allows the insurer to remove based on the agent's improper joinder.
Atain Insurance argues that its prelawsuit November 2018 election letter to Vyas made Team One's joinder improper. The court may properly consider the election letter. See Smallwood ,
The cases Vyas cited involved postlawsuit elections under § 542A.006. In Massey v. Allstate Vehicle and Property Insurance Company , the defendant admitted that the plaintiffs "did not improperly or fraudulently join the adjusters," and the court remanded based on the rule that "an action nonremovable when commenced may become removable thereafter only by the voluntary act of the plaintiff." No. H-18-1144,
The November 2018 election letter meant that Vyas had "no possibility of recovery" against Team One when it was sued. Smallwood ,
IV. Conclusion
The motion to remand is denied, (Docket Entry No. 6).
Compare River of Life ,