United States District Court, M.D. Louisiana
BRIAN RICHARD, ET AL.
USAA CASUALTY INSURANCE COMPANY
RULING AND ORDER
A. JACKSON, CHIEF JUDGE.
the Court is the Motion to Dismiss (Doc. 4)
filed by Defendant Garrison Property and Casualty Insurance
Company (“Garrison:”) on behalf of
“incorrectly named USAA Casualty Insurance
Company.” Oral argument is not necessary. For the
reasons that follow, the motion to dismiss is GRANTED
IN PART and DENIED IN PART.
16, 2012, Plaintiff Brian Ross Richard was riding as a
passenger in a car driven by Plaintiff Lance Boudreaux. (Doc.
1-2 at ¶ 2). As Boudreaux attempted to execute a
left-hand turn in his car, another vehicle struck Richard and
Boudreaux's vehicle. (Id. at ¶ 2). Richard
suffered severe injuries. (Id. at ¶ 2).
present cause of action relates to an earlier state court
lawsuit over the automobile accident. (See Id. at
¶¶ 3-5). In that action, Richard filed suit against
Boudreaux and his insurer. (Id. at ¶ 3).
Boudreaux's insurance limit was $100, 000, and Plaintiffs
allege that Richard offered to settle those claims against
the insurer and Boudreaux within the policy limit but that
the insurer refused. (Id.). Richard received a
judgment of over $500, 000, well in excess of Boudreaux's
policy limit. (Id. at ¶¶ 3, 5). The
insurer appealed the verdict against itself but not against
Boudreaux, the insured. (Id. at 4).
that judgment, Richard and Boudreaux entered into a
settlement whereby Boudreaux would assign Richard any
potential actions against the insurer, in exchange for
Richard not pursuing Boudreaux for any amount in excess of
his $100, 000 policy with the insurer. (Doc. 4 at ¶ 5).
In the settlement, Boudreaux also waived any right of appeal
he had in connection with the $500, 000 judgment against him.
present action was filed in Louisiana State Court by Richard
and Boudreaux, claiming that the insurer violated
Boudreaux's rights as a policyholder by (1) not settling
the claim to protect Boudreaux from an excess judgment and
(2) not appealing the judgment with respect to Boudreaux.
(Doc. 1-2 at ¶¶ 3-5). The insurer named in the suit
was USAA Casualty Insurance Company (“USAA CIC”).
(Id. at ¶ 1). Garrison Property and Casualty
Insurance Company (“Garrison”) filed a timely
notice of removal claiming that it was Boudreaux's actual
insurer. (Doc. 1 at p. 1). In Garrison's Corporate
Disclosure Statement (Doc. 7), it clarified that it is a
Texas corporation that is a wholly owned subsidiary of USAA
CIC, also a Texas corporation (id. at p.
bring claims for violation of La. Rev. Stat. §§
22:1973 and 22:1892 and for breach of contract for failure to
appeal. (Doc. 1-2 at ¶ 5). They argue that under
Louisiana Law, Boudreaux's insurer was obligated to
protect him from excess judgment and under his insurance
contract, was obligated to defend him on appeal.
(Id. at ¶¶ 4-5).
Federal Rule of Civil Procedure 12(b)(1), a claim is
“‘properly dismissed for lack of subject-matter
jurisdiction when the court lacks the statutory or
constitutional power to adjudicate' the claim.”
In re FEMA Trailer Formaldehyde Prods. Liab. Litig.,
668 F.3d 281, 286 (5th Cir. 2012) (quoting Home Builders
Ass'n v. City of Madison, 143 F.3d 1006, 1010 (5th
Cir. 1998)). In order to “prevent a court without
jurisdiction from prematurely dismissing a case with
prejudice, ” a court should consider a Rule 12(b)(1)
motion for lack of subject-matter jurisdiction before
addressing any motions that concern the merits of a case.
Id. at 286-87 (citing Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001)). A motion to
dismiss under Rule 12(b)(1) is analyzed under the same
standard as a motion to dismiss under Rule 12(b)(6).
Benton v. United States, 960 F.2d 19, 21 (5th Cir.
a defendant makes a ‘factual attack' upon the
court's subject matter jurisdiction over the lawsuit, the
defendant submits affidavits, testimony, or other evidentiary
materials.” Paterson v. Weinberger, 644 F.2d
521, 523 (5th Cir. 1981). The plaintiff must then prove that
subject-matter jurisdiction exists by a preponderance of the
evidence by “submitting facts through some evidentiary
method.” Irwin v. Veterans Admin., 874 F.2d
1092, 1096 (5th Cir. 1989), aff'd sub nom. Irwin v.
Dep't of Veterans Affairs, 498 U.S. 89 (1990)
(quoting Paterson, 644 F.2d at 531).
Failure to State a Claim
reviewing a motion to dismiss, the Court must “accept
all well-pleaded facts as true and view those facts in the
light most favorable to the plaintiff.” Hines v.
Alldredge, 783 F.3d 197, 200-01 (5th Cir. 2015) (quoting
True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009)).
Even so, a complaint must be “plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Determining
whether a complaint states a plausible claim for relief [is]
. . . a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. at 679. Although the complaint
need not set out “detailed factual allegations, ”
it must set forth something “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 555. On
a Rule 12(b)(6) motion, the Court may consider the pleadings,