NEW ORLEANS – A U.S. District Court judge has denied a plaintiff's motion to send her suit against an insurance company and its inspector back to state court, ruling that the inspector was improperly joined.
U.S. District Court Judge Sarah S. Vance of the Eastern District of Louisiana ruled against plaintiff Deborah Bellina on April 7 in her claim against Liberty Mutual Insurance. This defendant contracted with Envista Forensics to inspect the plaintiff's property after a hailstorm. Envista sent its inspector, Jason Johnston, to inspect roofs of buildings on Bellina's property, including her home.
The plaintiff alleged in her lawsuit filed in state court that Johnston "chose to 'inspect the main home's roof using a 'drone's' eye view and simply 'fly by' the [h]ouse and nothing else,'" the lawsuit alleged. She said his inspection caused Liberty to deny her claim. While she sued in state court, Liberty Mutual removed it to the federal court, stating that Johnston was improperly joined. Judge Vance agreed.
"As Johnston is the only non-diverse defendant, the court does not lack diversity jurisdiction, and remand on this basis is not appropriate," Judge Vance wrote in her dismissal order.
She held that there's no precedent of an independent insurance adjuster having duty to the insured person when performing an investigation, as in this case. Bellina's mere criticism of Johnston's performance isn't enough to support her claims against him. The only way Johnston would've been held responsible is if he committed fraud in his investigation, or if he misled Bellina with information that she would've depended upon. While she accused him of "fraudulently underperform[ing] his duties," the court noted that state law requires her to plead a specific way that fraud was committed, which she failed to do, according to the judge.
She accuses him of using a drone instead of climbing a ladder and properly inspecting the roof. "Bellina does not plead how Johnston's allege failure to use a ladder constitutes a representation – much less a misrepresentation – of material fact," Judge Vance wrote.
The plaintiff showed she did not depend on Johnston's findings by hiring a separate insurance adjuster and sending those results to Liberty Mutual.
Bellina attempted to find fault with Liberty Mutual's initial notice of removal. Her motion to remand the case stated that the company didn't include her original complaint or give Johnston the notice. Judge Vance held that because he was improperly joined, he didn't need to agree to the removal. The judge also denied the plaintiff court costs since the case wasn't remanded.
U.S. District Court Louisiana Eastern District case number 19-13711