# Dodd v. Chubb National Insurance Company <b><font color="red">Case remanded to the 334th District Court of Harris County, Texas.</font></b>

> District Court, S.D. Texas · April 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10675363

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** April 21, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10675363

## How later opinions describe it (automated extraction)

- explaining that courts may consider post-removal filings that “clarify or amplify the claims actually alleged” in the state complaint, but not those that “present new causes of action or theories not raised” in the state complaint

## Opinion text

UNITED STATES DISTRICT COURT April 21, 2022
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION

GEORGE DODD, §
§
Plaintiff. §
§
VS. § CIVIL ACTION NO. 4:21-cv-03671
§
CHUBB NATIONAL INSURANCE §
COMPANY, et al., §
§
Defendants. §

MEMORANDUM AND RECOMMENDATION
Before me is Plaintiff’s Motion to Remand. Dkt. 16. After carefully reviewing
the briefing, analyzing the applicable law, and hearing oral argument, I
recommend that the Motion to Remand be GRANTED.
I. BACKGROUND
In September 2019, Plaintiff George Dodd (“Dodd”) was involved in a car
accident with uninsured motorist Santos Vasquez. Dodd filed insurance claims
under his primary and excess automobile policies with Chubb National Insurance
Company (“Chubb”). Chubb hired Allen, Stein & Durbin, P.C. (“ASD”), a law firm,
to “assist in the evaluation” of his claim. Dkt. 3-5 at 1. During this evaluation
process, Dodd claims Chubb and ASD (collectively “Defendants”) “engaged in a
fraudulent plan to alter, fabricate, and misrepresent the terms and conditions of
[his] policies.” Dkt. 3 at 22.
On September 30, 2021, Dodd filed suit in the 334th Judicial District Court
of Harris County, Texas, asserting, among other things, claims for violations of the
Texas Insurance Code. See Dkt. 1-3 at 1–33. In this lawsuit, Dodd seeks more than
$1 million in damages. See id. at 3. On November 8, 2021, Chubb timely removed
the case to this Court. See Dkt. 1. Dodd filed the instant Motion to Remand on
January 21, 2022. See Dkt. 16.
Defendants do not dispute Dodd’s allegations regarding the parties’
citizenship—namely, that ASD is a citizen of Texas for jurisdictional purposes.
Because Dodd is also a citizen of Texas, and because Dodd does not assert any
federal claims in the underlying lawsuit, this would ordinarily destroy complete
diversity and preclude removal to federal court. See 28 U.S.C. §§ 1332, 1441.
However, Defendants argue that removal was appropriate because ASD is an
improperly joined party meant to circumvent this Court’s diversity jurisdiction.
Chubb advances two principal improper-joinder arguments. First, it argues
that ASD was not engaged “in the business of insurance” and, therefore, is not
subject to liability under the Texas Insurance Code. See Dkt. 19 at 14–16. Second,
Chubb argues that even if ASD were engaged in the business of insurance, the
Insurance Code generally exempts attorneys “from being classified as adjusters
who are subject to Texas insurance laws and regulations.” Id. at 16. ASD separately
argues that remand is appropriate because the attorney-immunity doctrine bars
Dodd’s claims. See Dkt. 20 at 5–9.
II. LEGAL STANDARD
Federal law allows for the removal of “any civil action brought in a State
court of which the district courts of the United States have original jurisdiction.”
28 U.S.C. § 1441(a). “To remove a case based on diversity, the diverse defendant
must demonstrate that all of the prerequisites of diversity jurisdiction contained
in 28 U.S.C. § 1332 are satisfied.” Smallwood v. Ill. Cent. R. Co., 385 F.3d 568, 572
(5th Cir. 2004). One of these prerequisites is complete diversity, which “requires
that all persons on one side of the controversy be citizens of different states than
all persons on the other side.” Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077,
1079 (5th Cir. 2008) (quotation omitted). However, the improper-joinder doctrine
constitutes “a narrow exception to the rule of complete diversity.” McDonal v.
Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005). Under the doctrine, a federal court
must disregard the citizenship of any improperly joined defendant, see
Smallwood, 385 F.3d at 572–73, and “that party must be dismissed without
prejudice.” Int’l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818
F.3d 193, 209 (5th Cir. 2016). If no party has been improperly joined, the court
lacks subject-matter jurisdiction and must remand the case. See 28 U.S.C. §
1447(c).
The Fifth Circuit has recognized two ways to establish improper joinder: “(1)
actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to
establish a cause of action against the non-diverse party in state court.” Travis v.
Irby, 326 F.3d 644, 647 (5th Cir. 2003)). Defendants do not assert that Dodd has
committed “actual fraud” in the pleading of jurisdictional facts, so the only issue
before me is whether Dodd can establish a cause of action against ASD. Under this
approach, the test for improper joinder is whether the defendant has demonstrated
that there is no possibility of recovery by the plaintiff against the in-state
defendant. See Smallwood, 385 F.3d at 573. Stated differently, remand is
appropriate unless there is no reasonable basis for the district court to predict that
the plaintiff might be able to recover against an in-state defendant. See id.
The Fifth Circuit has instructed district courts to resolve the improper-
joinder issue by conducting a “Rule 12(b)(6)-type analysis,” which incorporates the
federal pleading standards. See Int’l Energy, 818 F.3d at 207–08 (“[B]ecause
Smallwood requires us to use the Rule 12(b)(6)-type analysis, we have no choice
but apply the federal pleading standard embodied in that analysis.”). To satisfy
Rule 12(b)(6), a plaintiff must plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In
cases where the plaintiff has sufficiently stated a claim against the in-state
defendant, “but has misstated or omitted discrete facts that would determine the
propriety of joinder,” district courts may, at their discretion, pierce the pleadings
and consider summary judgment-type evidence. Smallwood, 385 F.3d at 573. The
Fifth Circuit has cautioned, however, that such an inquiry “is appropriate only to
identify the presence of discrete and undisputed facts that would preclude
plaintiff’s recovery against the [nondiverse] defendant.” Id. at 573–74.
The removing party bears the “heavy burden” of proving that joinder was
improper. Id. at 576. “[T]he existence of even a single valid cause of action against
[nondiverse] defendants (despite the pleading of several unavailing claims)
requires remand of the entire case to state court.” Gray v. Beverly Enters.-Miss.,
Inc., 390 F.3d 400, 412 (5th Cir. 2004). Because federal courts are courts of limited
jurisdiction, removal statutes are construed narrowly with “any doubt about the
propriety of removal” being resolve in favor of remand. Gasch v. Hartford Accident
& Indem. Co., 491 F.3d 278, 281–82 (5th Cir. 2007). Accordingly, in deciding
whether a party was improperly joined, I must “resolve all contested factual issues
and ambiguities of state law in favor of the plaintiff.” Id. at 281.
III. WHAT MATERIALS CAN I REVIEW TO MAKE
THE REMAND DECISION?

Whether the Court has jurisdiction to decide this case depends on whether
there exists a reasonable possibility of recovery by Dodd against ASD. Before
assessing the sufficiency of Dodd’s pleadings, I must address a preliminary issue
regarding what materials I may consult.
A. OPERATIVE PLEADING
Chubb contends that Dodd’s original state-court petition is the “operative
pleading for the purposes of removal and remand proceedings.” Dkt. 19 at 6. Dodd,
on the other hand, argues that I should consider the First Amended Complaint1 as
part of my improper-joinder analysis. ASD also believes that the operative pleading
for the improper-joinder inquiry is the First Amended Complaint.
As a general matter, the assessment on whether joinder is proper must be
performed “on the basis of claims in the state court complaint as it exists at the
time of removal.” Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th

1 Dodd filed the First Amended Complaint on November 19, 2021. See Dkt. 3. Because he filed the
First Amended Complaint within 21 days of when a responsive pleading was filed in state court,
see Dkt. 1-4 (indicating that an answer was filed in state court on October 29, 2021), leave of court
was not necessary. See FED. R. CIV. P. 15(a)(1)(B) (allowing a party to amend “as a matter of
course” within “21 days after service of a responsive pleading” “if the pleading is one to which a
responsive pleading is required”).
Cir. 1995). As a result, post-removal filings may not be considered “when or to the
extent that they present new causes of action or theories not raised in the
controlling petition filed in state court.” Griggs v. State Farm Lloyds, 181 F.3d 694,
700 (5th Cir. 1999). While it is true that a district court’s assessment of jurisdiction
is normally limited to the state-court record at the time of removal, a district court
may consider post-removal filings such as affidavits, stipulations, or amendments
to the extent such filings “clarify or amplify the claims actually alleged” in the state-
court petition. Id. “Under those circumstances, the court is still examining the
jurisdictional facts as of the time the case is removed, but the court is considering
information submitted after removal.” Asociacion Nacional de Pescadores a
Pequena Escala o Artesanales de Colombia (ANPAC) v. Dow Quimica de
Colombia S.A., 988 F.2d 559, 565 (5th Cir. 1993), abrogated on other grounds by
Marathon Oil Co. v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998).
Dodd’s First Amended Complaint does not add any new claims or
defendants; instead, it clarifies the basis for its already-alleged claims against ASD.
Since this appears to be an acceptable use of post-removal filings, I will consider
the First Amended Complaint in considering the Motion to Remand. See Griggs,
181 F.3d at 700 (explaining that courts may consider post-removal filings that
“clarify or amplify the claims actually alleged” in the state complaint, but not those
that “present new causes of action or theories not raised” in the state complaint);
Akerblom v. Ezra Holdings Ltd., 509 F. App’x 340, 346 (5th Cir. 2013), abrogated
on other grounds by Int’l Energy, 818 F.3d 193 (noting same and assuming
arguendo that the facts contained in plaintiff’s post-removal amended complaint
could be assessed as clarifying state-court petition); Allbright v. W. Concrete
Pumping, Inc., No. 1:17-CV-063-RP, 2017 WL 1374180, at *3 (W.D. Tex. Apr. 12,
2017) (considering first amended complaint where it “merely clarif[ied] the bases
for already alleged claims and theories stated in the original state petition”); Apex
Golf Props., Inc. v. Allstate Ins. Co., No. 2:13-CV-250, 2013 WL 5724523, at *1
(S.D. Tex. Oct. 21, 2013) (considering the first amended state complaint the
“operative pleading” but referencing the second amended federal complaint in
“interpreting the causes of action or theories alleged in the First Amended
Complaint”); Hinton v. Union Nat. Life Ins. Co., No. CIVA 1:07CV45 JAD, 2007
WL 2059996, at *1–2 (N.D. Miss. July 12, 2007) (allowing post-removal
amendment to clarify the allegations against a defendant when it was otherwise “a
close call” as to whether original state complaint stated a claim).
B. DODD’S OBJECTIONS TO CHUBB’S AFFIDAVITS
Chubb included as exhibits to its Response to Plaintiff’s Motion to Remand
affidavits by Jennifer Durbin (“Durbin”), an attorney at ASD, and its attorney of
record in this case, Kevin Kyser (“Kyser”). See Dkt. 19-3 and Dkt. 19-5. Kyser’s one-
page affidavit is essentially a verification of Chubb’s pleadings—Kyser testifies that
that all information contained within Chubb’s Response to the Motion to Remand
is true and correct. See Dkt. 19-5. Durbin, however, testifies at length about ASD’s
role in evaluating Dodd’s uninsured-motorist claim:
AS&D is a law firm. Although AS&D may provide advice and counsel
as to the legal aspects of an insurance claim, including opinions
regarding the value of a claim, at no time has AS&D, or its lawyers or
staff, held themselves out as “adjusters” or insurance company
personnel. Nor does AS&D adjust any claims or provide adjusting
services.
Dkt. 19-3 at 2. The quoted language is only a snippet of Durbin’s testimony. See id.
Dodd has objected to both affidavits on various grounds. See Dkt. 24 and Dkt. 25.
While it is within my discretion to pierce the pleadings and consider
summary judgment-type evidence as part of my improper-joinder analysis, such
an inquiry “is appropriate only to identify the presence of discrete and undisputed
facts that would preclude plaintiff’s recovery against the [nondiverse] defendant.”
Smallwood, 385 F.3d at 573–74 (emphasis added). The role ASD played in
evaluating Dodd’s claim and whether it acted as Chubb’s de facto adjuster, thus
exceeding the boundaries of providing legal services, are hotly disputed issues in
this case. In other words, it would be inappropriate to consider the Kyser and
Durbin affidavits in the present context as they do not establish a “discrete and
undisputed fact.”
IV. SUFFICIENCY OF DODD’S ALLEGATIONS
I now consider whether Defendants have demonstrated that there is no
reasonable basis to predict that Dodd might be able to recover against ASD.
A. THE FIRST AMENDED COMPLAINT’S ALLEGATIONS
According to the First Amended Complaint, the underlying car accident
occurred on September 30, 2019. See Dkt. 3 at 5. Dodd timely notified Chubb of
his claim. See id. at 9. In January 2020—after the accident but before ASD became
involved—Dodd asked Chubb to confirm the applicable automobile insurance
policy that was in effect at the time of the collision. See id. at 23. Chubb sent Dodd
a 61-page policy in response. See id. Dodd avers that the 61-page policy is identical
to the automobile insurance policy Chubb gave him when the policy was first
issued, save for a few introductory pages. See id. at 23-24.
On January 29, 2021, Dodd’s counsel sent Chubb a written demand for
$515,000. See id. at 36. On March 29, 2021, Dodd received a letter from Durbin
advising him that ASD “ha[d] been retained by Chubb to assist in the evaluation”
of Plaintiffs claim and that an “additional investigation” was necessary “in order
to fully evaluate [his] demand.” Dkt. 3-5 at 1. In relevant part, the letter read:
Please be advised that in order to fully evaluate your client’s demand
for the UM policy limits additional investigation is necessary. We have
had an opportunity to review the medical records you provided in your
demand. It appears these are the only records that have been
produced to Chubb since the claim was originally submitted. We need
to request these and additional records from the identified medical
providers to fully evaluate this claim. Enclosed please find a medical
authorization for your client’s signature so that we may obtain his
medical and billing records. Please have your client execute the
enclosed authorization and return at your earliest convenience.
We also request that you provide us with the following:
e A list of medical providers your client has seen over the last ten
(10) years (including names and addresses); and

e The name and address of your client’s primary care providers.
Once we have received the requested records we may also request that
your client submit to an examination under oath and a physical
examination by a physician of Chubb’s choice pursuant to the
terms of the policy.
Id. at 1-2 (emphasis added).
Dodd sent Chubb and ASD multiple written requests, seeking information
and clarification regarding ASD’s role in the claim-evaluation process, as well as
ASD’s determination that additional investigation was necessary to process his
claim. See Dkt. 3 at 14-18. According to Dodd, neither party responded. See id. at
26.
On May 18, 2021, Durbin “reiterated her assertion” that Dodd’s policy
required that he identify his medical providers for the past ten years and submit to
a physical examination and an examination under oath, though Durbin “conceded
that she was unable to locate such terms in the Policy.” Id.
The following day, Durbin sent Dodd an e-mail in which she told him that
his automobile insurance policy included terms and conditions that were not part
of the 61-page policy Chubb sent Dodd in January 2020. See id. at 26-27. Durbin’s
e-mail included copies of the two documents purportedly governing Dodd’s
insurance claim. Both documents provide:
Your duties after a loss

Examination. A person making a claim under any liability or vehicle
coverages in this policy must:
e submit as often as we reasonably require;
o To physical exams by physicians we select, which we will pay
for; and
o To examination under oath and subscribe the same. ...
e authorize us to obtain;
o medical reports; and
o other pertinent records.

Dkt. 3-8 at 67–68; Dkt. 3-9 at 60–61. Durbin told Dodd that his policy references
the attached documents in a section she referred to as its “Coverage Summary,”
but Dodd insists this was the first time he ever saw either document. See Dkt. 3 at
27–29 (alleging the two documents are “Chubb producer guidance document[s] . .
. which had never previously been provided”).
As exhibits to the live pleadings, Dodd has included copies of the 61-page
policy, as well as the two documents Durbin sent. All three identify themselves as
“Chubb Masterpiece” policies. The “Coverage Summary” Durbin mentioned is
simply a table of contents that identifies the policy’s chapters (e.g.,
“Uninsured/Underinsured Motorist Protection”). See Dkt. 3-6 at 36. Each Chubb
Masterpiece policy includes its own table of contents identifying that respective
policy’s chapters.
While the two “new” Chubb Masterpiece policies include all the same
chapters as Dodd’s 61-page policy, they also contain additional chapters. Compare
Dkt. 3-6 at 36, with Dkt. 3-8 at 3, and Dkt. 3-9 at 2. Moreover, as already
mentioned, the new Chubb Masterpiece policies also include additional terms,
such as requiring the insured to submit to a physical examination.
On May 20, 2021, Chubb sent Dodd an e-mail, copying Durbin, which
“repeat[ed] ASD’s ‘incorporation by reference’ theory”—i.e., that Dodd’s policy’s
table of contents incorporates other coverage provisions outside of the policy. Dkt.
3 at 29. Dodd argues that Defendants’ attempt to incorporate additional policy
requirements “supposedly identified on the table of contents page of the Policy . . .
is squarely rejected and prohibited by Texas statutory law.” Id. (citing TEX. INS.
CODE §§ 543.002, 2301.057).
On May 24, 2021, Chubb sent Dodd an e-mail, again copying Durbin, that
included a 69-page document, which Chubb claimed was a “true and accurate
copy” of Dodd’s automobile insurance policy. See Dkt. 3-13. Like the two Chubb
Masterpiece policies Durbin sent Dodd a few days earlier, the 69-page policy
requires that the insured sign a medical release and submit to a physical
examination and examination under oath as part of the insured’s “duties after a
loss.” Id. at 64. Dodd alleges Defendants “fabricated a new purported ‘certified
policy’ in which they brazenly added the . . . language they wanted and claimed that
this fraudulently manufactured document constituted [Dodd’s] applicable policy
that applies to his claim.” Dkt. 3 at 33–34.
B. DODD HAS ADEQUATELY STATED A CLAIM AGAINST ASD
1. Dodd Sufficiently Alleges that ASD Engaged in the Business
of Insurance
First, I turn my attention to whether there is a reasonable basis for me to
conclude that Dodd could recover against ASD based on the facts alleged in the
First Amended Complaint. Dodd asserts claims against ASD under Chapters 541
and 542 of the Texas Insurance Code. Because Chapter 542 is clearly inapplicable,2
I will focus on Chapter 541.
Chapter 541 authorizes a private right of action against a person who
engages in “unfair methods of competition or unfair or deceptive acts or practices”
in the “business of insurance.” TEX. INS. CODE § 541.001. The chapter defines
“person” as “an individual . . . or other legal entity engaged in the business of
insurance, including an agent, broker, or adjuster, or life and health insurance
counselor.” Id. § 541.002. Thus, if I determine that the facts alleged, accepted as
true, state a claim that ASD was “engaged in the business of insurance,” Plaintiff
has alleged a plausible claim against ASD.
The First Amended Complaint alleges that ASD engaged in the business of
insurance because the firm investigated and evaluated the merits of Dodd’s

2 Section 542.002 “applies to the following insurers . . . : (1) a life, health, or accident insurance
company; (2) a fire or casualty insurance company; (3) a hail or storm insurance company; (4) a
title insurance company; (5) a mortgage guarantee company; (6) a mutual assessment company;
(7) a local mutual aid association; (8) a local mutual burial association; (9) a statewide mutual
assessment company; (10) a stipulated premium company; (11) a fraternal benefit society; (12) a
group hospital service corporation; (13) a county mutual insurance company; (14) a Lloyd’s plan;
(15) a reciprocal or interinsurance exchange; and (16) a farm mutual insurance company.” TEX.
INS. CODE § 542.002. As acknowledged by Dodd’s counsel at oral argument, ASD does not fall
under any of these 16 categories. Dodd’s Chapter 542 theory warrants no further discussion.
uninsured-motorist claim, improperly reviewed Dodd’s medical records,
wrongfully determined an additional investigation was necessary, and
misrepresented the terms of Dodd’s insurance policy. Dodd also claims that ASD
sent Dodd inconsistent versions of his insurance policy, the latter of which Dodd
alleges Defendants “fraudulently manufactured” in a brazen attempt to unlawfully
and intentionally delay or deny his claim. For purposes of the improper-joinder
analysis, I am required to accept all well-pleaded allegations as true, viewing them
in the light most favorable to Dodd. See Davidson v. Ga.-Pacific, L.L.C., 819 F.3d
758, 765 (5th Cir. 2016).
In my view, Defendants wholly disregard Dodd’s allegations concerning
ASD’s purported improper handling of his claim—i.e., the very conduct he
contends demonstrates that ASD was engaged in the business of insurance.
Instead, Defendants stake their improper-joinder argument on me finding that
ASD “is a law firm and does not engage in the business of insurance.” Dkt. 19 at 16.
But possessing a law license does not categorically exempt conduct that otherwise
would fall within the purview of engaging “in the business of insurance.” Moreover,
the conduct of which ASD is accused of committing, although performed by an
attorney, could just as easily have been conducted by someone not possessing a law
degree. Indeed, “the investigation and evaluation of claims is part of the regular,
ordinary, and principal business of insurance companies.” Soto v. Liberty Mut.
Fire Ins. Co., No. A-06-CA-819 AWA, 2007 WL 9710181, at *3 (W.D. Tex. May 23,
2007).
At this stage of the case, I am not suggesting that Dodd’s claims against ASD
are meritorious or that he will ultimately prevail. Focusing on the allegations in the
First Amended Complaint, I simply “cannot say with certainty” that Dodd has no
reasonable possibility of recovery against ASD. Guzman v. Cordero, 481 F. Supp.
2d 787, 790 (W.D. Tex. 2007). See also Santos Arita v. Stericycle, Inc., No. CV
GLR-20-355, 2020 WL 6684871, at *4 (D. Md. Nov. 12, 2020) (“Although
defendants may ultimately be correct that plaintiffs’ claim lacks merit, a court
evaluating a ‘nominal party’ or ‘fraudulent joinder’ contention is not in a position
of evaluating the full merits of the parties’ controversy.” (cleaned up)).
2. Texas Insurance Code § 4101.002
Chubb next argues that ASD is exempt from claims under Chapter 541
because § 4101.002 of the Insurance Code prevents attorneys “from being
classified as adjusters who are subject to Texas insurance laws and regulations.”
Dkt. 19 at 16. This section, titled “General Exemptions,” is part of Chapter 4101,
which regulates the licensing process, continuing-education requirements,
examination procedures, and disciplinary rules for insurance adjusters. See TEX.
INS. CODE §§ 4101.001–.251. In relevant part, § 4101.002 provides:
(a) This chapter does not apply to:
(1) an attorney who:
(A) adjusts insurance losses periodically and incidentally to the
practice of law; and
(B) does not represent that the attorney is an adjuster.
Id. § 4101.002(a)(1) (emphasis added).
“By its statutory language, § 4101.002 exempts certain persons from ‘this
chapter’—Chapter 4101—and its requirements that insurance adjusters must take
an exam, maintain a license, and earn continuing-education credits.” Hazari LLC
v. Everest Indem. Ins. Co., No. CV H-19-4071, 2020 WL 1969530, at *3 (S.D. Tex.
Apr. 14, 2020). It “does not exempt anyone from liability under Chapter 541 of the
Texas Insurance Code,” the chapter under which Dodd sues ASD. Id. Accordingly,
§ 4101.002 does not bar Dodd from pursuing Chapter 541 claims.
3. The Attorney-Immunity Doctrine
As for ASD’s argument that it is immune under the attorney-immunity
doctrine, it is well settled that “[a] lawyer is authorized to practice his profession,
to advise his clients, and to interpose any defense or supposed defense, without
making himself liable for damages.” Likover v. Sunflower Terrace II, Ltd., 696
S.W.2d 468, 472 (Tex. App.—Houston [1st Dist.] 1985, no writ). But “attorneys are
not protected from liability to non-clients for their actions when they do not qualify
as the kind of conduct in which an attorney engages when discharging his duties
to his client.” Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 47 (Tex.
2021) (quotation omitted). See also Likover, 696 S.W.2d at 472 (“where a lawyer
acting for his client participates in fraudulent activities, his action in so doing is
‘foreign to the duties of an attorney’” (quoting Poole v. H. & T. C. R’y. Co., 58 Tex.
134, 137 (1882))).
Here, ASD admits that it was hired to investigate and evaluate the merits of
Dodd’s uninsured-motorist claim. And Dodd alleges that, while doing so, ASD
improperly reviewed his medical records, wrongfully determined that additional
investigation was necessary, intentionally misrepresented the terms of his
automobile insurance policy, and fabricated a new policy in which it added
additional terms. This is “not the kind of conduct in which an attorney engages
when discharging his duties to his client.” Landry’s, Inc., 631 S.W.3d at 47
(quotation omitted). See also Bagga v. FL Receivables Tr. 2002-A, No. CV B-04-
167, 2005 WL 8168423, at *13 (S.D. Tex. Sept. 2, 2005) (concluding attorney
immunity did not bar plaintiff’s claims and granting remand because the
complained-of conduct “involve[d] an inspection and written report that, although
performed by an attorney, could have been conducted by someone not possessing
legal skills”).
Once again, it may very well be the case that ASD’s conduct is protected by
attorney immunity. But accepting Dodd’s well-pleaded allegations as true, I cannot
say with certainty at the pleading stage that ASD is immune from suit.
***
To be clear, my decision turns on the fact that Dodd has sufficiently alleged
that ASD’s conduct potentially exceeded the boundaries of providing legal services
and impinged on engaging “in the business of insurance.” Specifically, Dodd
alleges that Chubb hired ASD to investigate and evaluate the merits of his
underinsured-motorist claim. He further alleges that, during its investigation, ASD
wrongfully determined an additional investigation was necessary, intentionally
misrepresented the terms of his insurance policy, and fabricated a new policy in
which it added additional terms in an unlawful attempt to delay or deny his claim.
Dodd has pleaded specific facts to support his allegations, demonstrating they are
more than conclusory accusations of wrongdoing. Applying a Rule 12(b)(6)-type
analysis and resolving all contested factual issues in Dodd’s favor, there is
“arguably a reasonable basis for predicting that state law might impose liability”
on ASD based upon the facts alleged. Ross v. Citifinancial, Inc., 344 F.3d 458, 462
(5th Cir. 2003). Whether Dodd’s allegations will eventually carry the day is not for
me to decide, nor should my decision be interpreted in any way as a comment on
the merits of Dodd’s case.
CONCLUSION
For the above reasons, I recommend that the Court GRANT Plaintiff George
Dodd’s Motion to Remand (Dkt. 16) and remand this case to the 334th Judicial
District Court of Harris County, Texas.
The Clerk shall provide copies of this Memorandum and Recommendation
to the respective parties who have 14 days from the receipt to file written objections
pursuant to Federal Rule of Civil Procedure 72(b) and General Order 2002–13.
Failure to file written objections within the time period mentioned shall bar an
aggrieved party from attacking the factual findings and legal conclusions on
appeal.
Signed on this 21st day of April 2022.

_____________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10675363. Public record. Not legal advice.