Summary
noting that "Cedar Rock fails to include any facts regarding time, place, and content of any false representation during Columbia's attempt to effectuate settlement of the insurance claim. Moreover, Cedar Rock does not allege that French—or any other agent of Columbia—made a false misrepresentation when handling this insurance claim. Instead, Cedar Rock relies on the substantial disparity between French's damage estimate and Forensic Building Science's damage estimate—a difference of $485,871.94—to infer that Columbia did not make a good faith effort to settle Cedar Rock's claim. This evidence will not suffice. Fraud claims, like this violation of the [Texas Insurance Code], must be pleaded with particularity."
Summary of this case from Lopez v. United Prop. & Cas. Ins. Co.Opinion
No. 1:15-CV-0111-P-BL
03-17-2016
COLUMBIA MUTUAL INSURANCE COMPANY, Plaintiff, v. CEDAR ROCK LODGE, LLC, Defendant.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
On February 3, 2016, the assigned Magistrate Judge issued a Report and Recommendation ("R&R") (doc. 29) in which he recommends that the Court (1) find Plaintiff's first motion to dismiss (doc. 10) moot and (2) grant in part and deny in part Plaintiff's second motion to dismiss (doc 20). No one has filed any objection to the R&R. After reviewing the R&R for plain error, the undersigned is of the opinion that the findings and conclusions of the Magistrate Judge are correct and they are accepted as the findings and conclusions of the Court. Accordingly, the Court ACCEPTS the Report and Recommendation (doc. 29); FINDS MOOT Plaintiff's Motion to Dismiss (doc. 10); GRANTS in part and DENIES in part Plaintiff's Motion to Dismiss (doc. 20); and DISMISSES WITH PREJUDICE Defendant's counterclaims under the Texas Insurance Code and Texas Deceptive Trade Practices Act. As stated in the R&R, Defendant's other counterclaims survive the motion to dismiss. Pursuant to Electronic Standing Order of Reference (D.E. 4), this action remains referred to the Magistrate Judge for case management.
SIGNED this 17th day of March, 2016.
/s/ _________
JORGE A. SOLIS
UNITED STATES DISTRICT JUDGE