Legal Document: David and Olga Rozenstein v. Allstate Vehicle and Property Insurance Company and Cameron Temperton,

On August 29, 2022 a Notice of Removal of Action Under 28 U.S.C. 1441 - Removed to Federal Court Index # 7 was filed involving a dispute between Rozenstein, David, Rozenstein, Olga, and Allstate Vehicle And Property Insurance Company, Temperton, Cameron, for Contract - Other Contract in the District Court of Fort Bend County.

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NO. 22--296651

DAVID and OLGA ROZENSTEIN IN THE DISTRICT COURT

VS.
434TH JUDICIAL DISTRICT
ALLSTATE VEHICLE & PROPERTY
INSURANCE COMPANY and
CAMERON TEMPERTON FORT BEND COUNTY, TEXAS

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

DAVID and OLGA ROZENSTEIN CIVIL ACTION NO. 4:22
Plaintiff

JURY DEMANDED

ALLSTATE VEHICLE &
PROPERTY INSURANCE
COMPANY and CAMERON
TEMPERTON
Defendants.

NOTICE OF REMOVAL OF ACTION UNDER 28 U.S.C. § 1441

TO THE HONORABLE UNITED STATES DISTRICT COURT JUDGE:

Please take notice that, pursuant to 28 U.S.C. § 1441 and 1446, Allstate Vehicle &

Property Insurance Company Defendant herein, removes to this Court the state court

action pending in the 434th Judicial District Court of Fort Bend County, Texas invoking

this Court’s diversity jurisdiction, on the grounds explained below.

ASIS FOR EMOVAL

1 On August 29, 2022, Plaintiffs filed suit in Fort Bend County against the

Defendant. The suit was assigned to the 434th Judicial District Court of Fort Bend County,
Texas, styled Cause No. DCV David and Olga Rozenstein v. Allstate Vehicle

& Property Insurance Company and Cameron Temperton. efendant Allstate was

served/received notice of this suit on September 16, 2022 Defendant Cameron Temperton

has not been served/received notice of this lawsuit. s required by 28 U.S.C. § 1446(b)(3)
Allstate files this notice of removal within thirty (30) days following receipt by Defendant

of the initial pleadings.

Removal of this action is proper, because this Court has original diversity

jurisdiction under 28 U.S.C. § 1332 and the action is one that may be removed by

Defendant pursuant to 28 U.S.C. § 1441(b)(3); specifically, this is a civil action wherein

the matter in controversy exceeds the sum of $75,000.00, exclusive of interest and costs,

and the Defendant is diverse in citizenship fromthe Plaintiff

There is complete diversity among the parties as required by 28 U.S.C.

§ 1332(a). Plaintiff are citizen of Texas. Allstate is a corporation incorporated under

the laws of the State of Illinois, having its principal place of business now and at the time

this action was commenced at Northbrook, Cook County, in the State of Illinois. Allstate

is now, and was at the time this action was commenced, a citizen of the State of Illinois.

Plaintiff's Original Petition recites that they are seeking actual damages,

statutory damages, and attorney’s fees for breach of contract, breach of the duty of good

faith and fair dealing, fraud, and violations of the Deceptive Trade Practices Act, Chapter

541 and 542 of the Texas Insurance Code, relating to the Defendant’s alleged failure to

properly adjust the claim for Plaintiff's alleged property damage. Plaintiffs’ Petition states

Plaintiffs are seeking monetary relief of $250,000.00 or less, excluding statutory interest,

punitive damages and penalties, and attorney fees and court costs. See Plaintiffs’ Petition
Paragraph 7. Additionally, Plaintiffs’ Petition states Plaintiffs are seeking monetary relief

between $250,000.01 and $1,000,000.00. See Plaintiffs’ Petition Paragraph 11. Thus,

Plaintiffs’ Petition shows on its face, that Plaintiffs’ claims are in excess of $75

SeePlaintiffs’ Petition incorporated herein under Exhibit “A”.

The Clerk’s full record in this case is attached as Exhibit “A”. A list of all

Counsel of Record is attached as Exhibit “ ”. The Civil Cover Sheet is attached as Exhibit

Venue is proper in this district because the district and division embrace the

place where the removal action has been pending.

Defendant will promptly provide written notice of the filing of this Notice

of Removal to all parties and to the clerk of the 434th Judicial District Court of Fort Bend

County, Texas.

Defendant respectfully requests that the state court action be removed and

placed on this Court’s docket for further proceedings. Defendant further requests any

additional reliefto which it may be justly entitled.

DATE: October __, 2022 Respectfully submitted,

/s/ Wesley R. Ward

Wesley R. Ward
State Bar No. 24008235
HOPE & CAUSEY, P. C.
P. O. Box 3188
Conroe, Texas 77305 3188
(936) 441 Telephone
(936) 441 Facsimile
hcdocket@hope causey.com

ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE

Pursuant to the Texas Rules of Civil Procedure, I hereby certify that a true and
correct copy of the foregoing instrument has been delivered to all interested parties on
October , 2022 viae filing addressed to:

William W. Lundquist
Texas Bar No.: 24041369
Will@LundquistLawFirm.com
LUNDQUIST LAW FIRM
675 Bering Dr., Ste. 850
Houston, Texas 77057
Telephone: (346) 704 5295
Fax: (713) 583
ATTORNEYS FOR PLAINTIFFS

/s/ Wesley R. Ward
Wesley R. Ward
EXHIBIT
a
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

DAVID and OLGA ROZENSTEIN CIVIL ACTION NO.
Plaintiffs,

JURY DEMANDED

ALLSTATE VEHICLE &
PROPERTY INSURANCE
COMPANY and CAMERON
TEMPERTON
Defendants.

INDEX OF DOCUMENTS

DESCRIPTION

Case Summary in the state court action

Plaintiffs’ Original Petition filed on August 29, 2022

Issued Citation for Allstate filed September 6, 2022

Allstate’s Original Answer to Plaintiffs’ Original Petition filed on October 7, 2022

Filed
8/29/2022 5:16 PM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Dreamy Jose
CAUSE NO.22-DCV-296651

DAVID and OLGA ROZENSTEIN, IN THE DISTRICT COURT OF
Plaintiffs,

Vv.
FORT BEND COUNTY, TEXAS
ALLSTATE VEHICLE AND PROPERTY
INSURANCE COMPANY and CAMERON
TEMPERTON, Fort Bend County - 434th Judicial District Court
Defendants. JUDICIAL DISTRICT

PLAINTIFFS’ ORIGINAL PETITION
EXPEDITED ACTION UNDER TRCP 169

Plaintiff David and Olga Rozenstein (“Plaintiffs”) file this Original Petition against

Defendants Allstate Vehicle and Property Insurance Company (“Allstate”) and Cameron Temperton

(“Temperton”) (collectively, “Defendants”), and would respectfully show as follows:

I
DISCOVERY CONTROL PLAN

1 Plaintiffs intend for discovery to be conducted under Level 1 of Rule 190 of the Texas

Rules of Civil Procedure.

i.
REQUEST FOR EXPEDITED TRIAL DATE

2. Plaintiffs request that the Court set the case for a trial date that is within 90 days after the

discovery period in Rule 190.2(b)(1) ends.

Il.
PARTIES

3 Plaintiffs are individuals residing in Fort Bend County, Texas.

4. Defendant Allstate is a standard admitted insurance company engaged in the business of

insurance in Texas, operating for the purpose of accumulating monetary profit. Allstate regularly

conducts the business of insurance in a systematic and continuous manner in the State of Texas.
Plaintiffs request service of citation upon Allstate’s registered agent: CT Corporation System,

1999 Bryan Street, Suite 900, Dallas, Texas 75201.

5 Defendant Temperton is an individual and insurance adjuster licensed by the Texas

Department of Insurance. Temperton is a Texas resident and may be served with process at his

place of business, per the Texas Department of Insurance: 300 Miles Road, Baycliff, Texas 77518.

6 The Clerk is requested to issue Citation and serve Defendants via certified mail.

Iv.
JURISDICTION AND VENUE

7 The Court has jurisdiction over this cause of action because the amount in controversy is

within the jurisdictional limits of the Court and Plaintiffs seek only monetary relief of $250,000

or less, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and

costs. No diversity of citizenship exists between the parties.

8 The Court has jurisdiction over Allstate because this defendant engages in the business of

insurance in Texas and because Plaintiffs’ causes of action arise out of this defendant’s business

activities in Texas.

9 The Court has jurisdiction over Defendant Temperton because this defendant is a Texas

resident, engages in the business of adjusting insurance claims in Texas, and because Plaintiffs’

causes of action arise out of this defendant’s business activities in Texas.

10. Venue is proper in Fort Bend County, Texas, in that Fort Bend County is where all or a

substantial part of the events or omissions giving rise to the claim occurred, and Plaintiffs’ property

insured under the insurance policy at issue is located in Fort Bend County. TEX. Civ. PRAC. &

REM. CODE§§ 15.002(a)(1), 15.032.

Plaintiffs’ Original Petition Page 2
11. Plaintiffs seek monetary relief between $250,000.01 and $1,000,000. Such damages sought

are within the jurisdictional limits of the Court. Plaintiffs recognize that the determination of damages

is within the sole discretion of the Judge and Jury, but makes this stipulation as required by TEX. R.

Civ. P. 47(c).

V.
F, ‘ACTS

The Property and The Policy.

12. This is a claim for insurance proceeds for damages caused by multiple sudden and

immediate water line breaks in the attic. Plaintiffs own certain real property with improvements

located at 3223 Trotwood Ln, Katy, TX 77494-4483 (the “Property”), which was insured by

insurance policy no. HE ss by Allstate (the “Policy”) which was purchased from

Allstate on approximately December 2, 2021. On or about February 26, 2022, several pieces of

pipe ruptured in the attic of this two-story home occurred causing extensive interior water damage

to the Property (the “pipe burst”). As a result of the pipe burst, the Property sustained covered

water damage to the interior of the home. Allstate has refused the full extent of that coverage

currently owed to Plaintiff.

The Claim and Defendants’ Failure to Properly Handle the Claim.

13. Despite the damages suffered by Plaintiffs because of the extensive water damage caused

by the pipe burst, Plaintiffs felt fortunate to be protected by the approximately $475,122 in

insurance coverage available under the Policy to protect themselves from incidents just like this.

After the pipe burst, Plaintiffs made a claim (claim no. 0660597948) for damages and requested

payment for damages to the Property covered by the Policy (the “Claim”).

Plaintiffs’ Original Petition Page 3
14. Due to the need for mitigation services and to evaluate the extent of their covered losses

resulting from the pipe burst, Plaintiffs retained the services of a reputable Texas licensed public

adjusting firm, ICA Public Adjusters (“ICA”), on February 27, 2022.

15. On March 2, 2022, KD Construction Services (“KD”) was retained to perform urgent

plumbing repair services and begin emergency restoration. Plaintiffs paid approx. $36,000 out of

their own pocket for the plumbing repairs in full on or about March 19, 2022, as evidenced by the

release of lien executed by KD

WATER MITIGATION LIEN WAIVER
Owner: David Rozenstein Cempany: KD Construction Services
Projoct Address: 3223 Trotwood Ln, Katy TX 77494
Prolect Type: Water Mitigation
Completion Date: 03/18/2022
Eagar, a9 r0) KD Construction Services CLienholder’
perform: vives for and/or provided materials te D ‘snd Olga Rozenstein
‘The Lienhoider, In consideration
located on the Property from any a of | Payment
nig, OF claima anci/or
for {aber stotutorymatadats provided,
or otherwise. relseses
thatthe the Property
Lienholder and/or
may have improvements
By feamen OF
Providing labor and or mater 12 tar tna Property and/or \mnpron located on the Property.
The Us: ackn:the execution
1208 that thieihe Waiver re rights unde:
the Lienhot voluntary and furiner
Scknowledges that
Benairor KO Construction Services Waiver 's the Liennolers act and Gead. laws
This ofWaiver
State ofis Texas.
signed By Gagar Salvador on

Company Representative: Edgar Camero
Representative Signature: Camere Date osrer22

16. On March 30, 2022, ICA prepared and submitted its estimate for covered losses which

showed the replacement cost to properly and permanently repair the damages to the Property was

at least $241,619.60:
Recap by Curegory
xP tems Teeat
APPLIANCES Saree
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FLOOR COVER: ‘ARPET
FLOOR Cove! ERAN: FIL
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CARPENTRY / TRIMWORK, Sone
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LABOR ONLY 10.8:
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MARBLE
MIRRORS - S CULTURED OR NATURAL
SHOWER DOORS os
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WATER EXTRACTION & REMEDIATION 1. 4 t7e8
7a Senon
oar te prorat oa: ace
a 20.
1c Seley “Fax 30:
Fan.619.60 790.0076

Plaintiffs’ Original Petition Page 4
17. On April 1, 2022, Allstate’s desk adjuster Craig Brown offered $37,979.71, merely to

reimburse Plaintiffs for their out-of-pocket expenses as they attempted to secure restoration

services for the Property.

18. Although Texas law provides an insurer has a “non-delegable duty” to responsibly handle

claims, delegate its duty is precisely what Allstate did. More specifically, on or about April 12,

2022, Allstate retained the services of ARI Construction to act as an independent adjusting

company for the Claim, and to assist Allstate in evaluating the Claim. ARI Construction provides

a substantial amount of adjusting services to Allstate and other insurers.

19. ARI Construction assigned one of its adjusters, defendant Temperton, to administer,

investigate and adjust the Claim. At all material times, Temperton was acting as Allstate’s agent

in the course and scope of his adjustment role on behalf of ARI Construction. Accordingly, Allstate

is liable for Temperton’s acts and omissions.

20.On April 20, 2022, defendant Temperton inspected the Property. Temperton

acknowledged, recognized and agreed with Plaintiffs that the Property had suffered significant

water damage throughout the Property. However, Temperton performed a cursory, limited

inspection and did not spend adequate time necessary to fully document the damages, nor did

Temperton include any photos (assuming he took any) at the end of his estimate, which is custom

and practice in the industry (and likely a violation of Allstate’s claims handling guidelines). Nor

did Temperton identify, explain or otherwise address all the damage pointed out by Plaintiffs, and

Temperton certainly did not respond to the damage estimate prepared by ICA or the photographs

they produced that clearly and obviously document the extensive damages throughout the

Property.

Plaintiffs’ Original Petition Page 5
21. On or about May 10, defendant Temperton prepared an estimate which determined the

unsubstantiated replacement cost value to repair damages to the Property was only $95,959.83. No

recommendations were made by Temperton to properly dry out and clean the affected areas from

the original intrusion of water. In fact, no effort by Temperton was made to ensure the Property

was properly cleaned, despite ICA’s specific recommendation that the Property’s interior

condition be addressed by a licensed hygienist. The only possible motive for not doing so was to

save Allstate money. Even though insurance carriers routinely ensure the interiors of homes have

a clean bill of health after a large water intrusion, Temperton and Allstate’s inaction ensured the

moisture which travelled throughout the Property would never be properly addressed.

22. In addition, Temperton misrepresented to Plaintiffs the true extent of damages and

furthermore orally represented onsite that certain other damage to the Property was not covered

under the Policy, even though all the damage was caused by a covered occurrence. Temperton’s

communications were not accurate, he under-reported the damages, and misrepresented the scope

of coverage. In addition, Temperton’s communications with Allstate contain untrue statements of

material fact as to the scope of damages; contains statements that would lead a reasonably prudent

person to a false conclusion about a material fact; and evidences Allstate’s refusal to pay without

conducting a reasonable investigation; and Temperton’s communication was false because it

misrepresented the condition of the Property, the damage reported, and duties of the insurance

company to investigate claim.

23. Thus, even though Allstate was Plaintiffs’ insurer, defendant Temperton handled every

aspect of the Claim, including but not limited to the following actions:

a handling the majority of communications on behalf of Allstate with Plaintiffs
regarding the Claim;

b. coordinating inspections of the Property;

Plaintiffs’ Original Petition Page 6
reviewing the work, findings and opinions of ICA and relaying such findings to
Allstate;

personally preparing, reviewing and/or approving damage estimates related to
the Claim;

interpreting the Policy, determining coverage issues, and the deductible for the
Claim;

requiring Plaintiffs to conduct its own investigation of the Claim in
contravention to Allstate’s duties to conduct a reasonable and thorough
investigation of the Claim under the Policy and Texas law;

negligently and/or deliberately refusing to acknowledge Plaintiffs’ claims of
additional damages, and wrongfully refusing Plaintiffs’ claim for additional
necessary repairs to the Property; and

internally attempting to limit the scope of the Claim by submitting an artificially
low estimate which he knew would not address the extent ofPlaintiffs’ covered
damages.

24. Allstate exclusively relied on Temperton’s estimate in its decision letter on the Claim,

which was sent out the very same day it was received by Allstate:

May 10, 2022

INSURED: DAVID ROZENSTEIN PHONE NUMBER: 800-347-5511
DATE OF LOSS: February 26, 2022 FAX NUMBER: 866-447-
4293
CLAIM NUMBER: 0660597948 GCB OFFICE HOURS:
DATE OF SETTLEMENT:

Dear ITA PUBLIC ADJUSTERS,

Thank you for speaking with us regarding your recent claim. When replacement cost
coverage is afforded by your policy, the following will apply:

The following calculations summarize our settlement agreement:

The full cost
of repair or 18312.71
The recoverable depreciation is 12352.88
The non-recoverable depreciation is 0
The actual cash value of the loss is 95959.03
0

Plaintiffs’ Original Petition Page 7
6. Your deductible is 9502.00
7. Prior ACV payments made 0
8. The actual cash value payment is 86457.83

25. Because of Defendant Allstate’s significant delay in both investigating and adjusting the

Claim, Plaintiffs were essentially forced to adjust their own claim, mitigate their losses to the best

of their ability, and have spent all their available funds to attempt to restore the Property to its pre-

loss condition.

26. The only feedback Plaintiffs ever received from Allstate was a brief rejection statement

from Craig Brown on July 28, making clear Allstate did nothing to resolve the significant

differences between ICA’s and Temperton’s scopes of loss in the four months Allstate had ICA’s

detailed estimate:

From:
Sent on: Thursday, July 28, 2022 55:37 PM
To: Delmy Mayorga
Subject: Allstate Claim:0660597948
Attachments: 0660597948 Copy of HVACi Damage Assessment for Claim 22-0427468.20220728145535474.

Please be advised that we are have received your re-submitted estimate. Our position has not changed.

Tam again attaching our undisputed damages as well as the HVACi report detailing no damage to the systems.
Thanks,

Craig Brown
Allstate Vehicle and Property Insurance Company
Phone: (480) 209-6383
Fax: (866) 447-4293
claims@eclaims.allstate.com

27. Plaintiffs’ claim was significantly underpaid. Allstate and Temperton set out to deny and/or

underpay properly covered damages. Because of this unreasonable outcome-oriented

investigation, the Claim was improperly adjusted, and Plaintiffs were denied adequate and

sufficient payment. The mishandling of the Claim has also caused a significant delay in Plaintiffs’

ability to fully repair their Property, which has caused the Property’s condition to deteriorate.

Plaintiffs’ Original Petition Page 8
28. Defendants took advantage of Plaintiffs’ lack of knowledge, ability, experience or capacity

to a grossly unfair degree and to Plaintiffs’ detriment. Defendants’ acts also resulted in a gross

disparity between the value received and the consideration paid in a transaction involving the

transfer of consideration. As a result of Defendants’ violations, Plaintiffs suffered actual damages.

In addition, Defendants committed the above acts knowingly and/or intentionally, entitling

Plaintiffs to three times their damages for economic relief.

29. After Defendants failed to reasonably and thoroughly investigate the Claim, Plaintiffs were

forced to retain counsel.

30. Defendant Allstate failed to perform its contractual duties to adequately compensate

Plaintiffs under the terms of the Policy. Specifically, Allstate refused to pay for damages owed

under the Policy, although due demand was made for proceeds to be paid in an amount sufficient

to cover the damaged property and all conditions precedent to recovery upon the Policy in question

had been satisfied by Plaintiffs. Allstate’s conduct constitutes a breach of the insurance contract

between Defendant Allstate and Plaintiffs.

31. Defendants failed to attempt in good faith to effectuate a prompt, fair, and equitable

settlement of Plaintiffs’ Claim, when Allstate’s liability was reasonably clear. Defendants’

conduct constitutes a violation of TEX. INs. CODE §541.060(a)(2)(a).

32. Defendants failed to explain to Plaintiff the reasons for its offer of an inadequate settlement.

Specifically, Defendants failed to offer Plaintiff adequate compensation, without any explanation

why full payment was not being made. Furthermore, Defendants did not communicate that any

future settlements or payments would be forthcoming to pay for the entire loss covered under the

Policy, nor did Defendants provide any explanation for the failure to adequately settle Plaintiffs’

Claim. Defendants’ conduct constitutes a violation of TEX. INS. CODE §541.060(a)(3).

Plaintiffs’ Original Petition Page 9
33. Defendants failed to affirm or deny coverage of Plaintiffs’ Claim within a reasonable time.

Specifically, Plaintiff did not receive timely indication of acceptance or rejection, regarding the

full and entire claims, in writing from Defendants. Defendants’ conduct constitutes a violation of

TEX. INS. CODE §541.060(a)(4).

34. Defendants refused to fully compensate Plaintiff for the Claim without conducting a

reasonable investigation of the Claim. Rather, Defendants performed an unreasonable outcome-

oriented investigation of Plaintiffs’ Claim, which resulted in a biased, unfair and inequitable

evaluation of Plaintiffs’ Claim. Defendant’s conduct constitutes a violation of TEX. INS. CODE

§541.060(a)(7).
35. Allstate failed to meet its obligations under the Texas Insurance Code regarding both the

timely acknowledgement of Plaintiffs’ Claim and requesting all information reasonably necessary

to investigate Plaintiffs’ Claim within the statutorily mandated time of receiving notice of the

Claim. Defendant Allstate’s conduct constitutes a violation of TEX. INS. CODE §542.055.

36. Allstate failed to accept or deny Plaintiffs’ full and entire Claim within the statutorily

mandated time of receiving all necessary information. Allstate’s conduct constitutes a violation

of TEX. INS. CODE §542.056.

37. Allstate failed to meet its obligations under the Texas Insurance Code regarding payment

of claims without delay. Specifically, Defendant Allstate has delayed full payment of the Claim

longer than allowed and, to date, Plaintiffs have not yet received full payment for the Claim.

Defendant Allstate’s conduct constitutes a violation of TEX. INS. CODE §542.058.

38. From and after the time the Claim was presented to Defendant Allstate, the liability of

Allstate to pay the Claim in accordance with the terms of the Policy was reasonably clear.

However, Allstate has refused to pay Plaintiffs in full, despite there being no basis whatsoever on

Plaintiffs’ Original Petition Page 10
which a reasonable insurance company would have relied on to deny the full payment. Defendant

Allstate’s conduct constitutes a breach of the common law duty of good faith and fair dealing.

39. All Defendants knowingly or recklessly made false representations, as described above, as

to material facts and/or knowingly concealed material information from Plaintiff.

40. Because of all Defendants’ wrongful acts and omissions, Plaintiffs were forced to retain

the professional services of the law firm who is representing Plaintiffs with respect to these causes

of action.

41. Unfortunately, Allstate has failed to comply with the Policy, the Texas Insurance Code,

and Texas Law in handling the Claim, and has failed to pay all amounts due and owing under the

Policy for the Claim. Defendants Allstate and Temperton failed to perform a thorough

investigation of the Claim, failed to employ appropriate or qualified consultants to evaluate the

damages, delayed resolution of the Claim under Texas law, and misrepresented applicable scopes

of damages as well as the terms of the Policy. Because of these violations of law and wrongful

conduct, Plaintiffs have sustained and continue to sustain significant damages, including but not

limited to property damage, diminution of property value, attorney’s fees, financial harm, and other

consequential damages.

42. Plaintiffs fulfilled all duties required of them pursuant to the terms of the Policy.

VI.
CAUSES OF ACTION AGAINST DEFENDANT ALLSTATE

43. Plaintiffs re-allege and incorporate each allegation contained earlier in this Petition as if fully

set forth herein. Allstate is liable to Plaintiffs for breach of contract, as well as intentional violations

of the Texas Insurance Code and breach of the common law duty of good faith and fair dealing.

A. Breach of Contract.

Plaintiffs’ Original Petition Page 11
44. The Policy is a valid, binding and enforceable contract between Plaintiff and Defendant

Allstate. Allstate breached the contract by refusing to perform its obligations under the terms of

the Policy and pursuant to Texas law. Allstate’s breach proximately caused Plaintiffs’ injuries and

damages. All conditions precedent required under the Policy have been performed, excused,

waived or otherwise satisfied by Plaintiffs, or Defendant is estopped from raising the issue due to

Defendant’s prior breach of the insurance contract.

B. Noncompliance with Texas Insurance Code: Unfair Settlement Practices.

45. The conduct, acts, and/or omissions by Allstate constituted Unfair Settlement Practices

pursuant to TEX. INS. CODE. §541.060(a). All violations under this article are made actionable by

TEx. INS. CODE §541.151.

46. Allstate’s unfair settlement practice, as described above, of misrepresenting to Plaintiffs

material facts relating to the coverage at issue, constitutes an unfair method of competition and an

unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE §541.060(1).

47. Allstate’s unfair settlement practice, as described above, of failing to attempt in good faith

to effectuate a prompt, fair, and equitable settlement of the Claim, even though Defendant

Allstate’s liability under the Policy was reasonably clear, constitutes an unfair method of

competition and an unfair and deceptive act or practice in the business of insurance. TEX. INS.

Cope §541.060(2)(A).
48. Allstate’s unfair settlement practice, as described above, of failing to promptly provide

Plaintiffs with a reasonable explanation of the basis in the Policy, in relation to the facts or

applicable law, for its offer of a compromise settlement of the Claim, constitutes an unfair method

of competition and an unfair and deceptive act or practice in the business of insurance. TEX. INS.

Cope §541.060(3).

Plaintiffs’ Original Petition Page 12
49. Allstate’s unfair settlement practice, as described above, of failing within a reasonable time

to affirm or deny coverage of the Claim to Plaintiffs or to submit a reservation of rights to

Plaintiffs, constitutes an unfair method of competition and an unfair and deceptive act or practice

in the business of insurance. TEX. INS. CODE §541.060(4).

50. Allstate’s unfair settlement practice, as described above, of refusing to pay Plaintiffs’

Claim without conducting a reasonable investigation, constitutes an unfair method of competition

and an unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE

§541.060(7). Allstate’s investigation was clearly unreasonable because it failed to determine the

full amount of Plaintiffs’ damages, even though the damages were obvious and the true amount of

cost to repair the damages was readily ascertainable. Had Allstate conducted a reasonable and

thorough investigation of the Claim, they would have determined the actual amount of Plaintiffs’

covered losses. Moreover, Allstate failed to use appropriate experts to thoroughly investigate the

Claim, which were not biased in favor of Allstate because of their lengthy financial relationship

with insurance carriers in general. Had Allstate done so, they would have concluded the full extent

of damage to the Property was covered by the Policy.

51. Allstate’s conduct described above compelled Plaintiffs to initiate a lawsuit to recover

amounts due under its Policy by offering substantially less than the amount ultimately recovered.

This continued failure compelled Plaintiffs to file suit. TEx. INs. CODE §542.003(5).

C. Prompt Payment of Claims Violations.

52. The Claim is a claim under an insurance policy with Defendant Allstate of which Plaintiffs

gave Allstate proper notice. Allstate is liable for the Claim. Allstate violated the prompt payment

of claims provisions of TEX. INS. CODE § 542.051, et seq. by:

a) Failing to acknowledge receipt of the Claim, commence investigation of the Claim,
and/or request from Plaintiffs all items, statements, and forms that Allstate

Plaintiffs’ Original Petition Page 13
reasonably believed would be required within the time constraints provided by TEX.
INS. CODE §542.055;

b) Failing to notify Plaintiffs in writing of its acceptance or rejection of the Claim
within the applicable time constraints provided by TEX. INS. CODE §542.056; and/or
by
¢) Delaying payment of the Claim following Allstate’s receipt of all items, statements,
and forms reasonably requested and required, longer than the amount of time
provided by TEX. INS. CODE §542.058.

53. Allstate was in receipt of all items, statements, and forms they would need to make a claim

decision as of March 30, 2022. Accordingly, because well over 30 days have passed from March

30, 2022, without complete payment on the Claim, Allstate has violated the time limits of TEX.

INS. CODE §§ 542.058 and 542.059. Allstate’s violations of these prompt payment of claims

provisions of the Texas Insurance Code are made actionable by TEX. INS. CODE § 542.060.

54, Plaintiffs also make a claim for statutory interest penalties along with reasonable attorneys’

fees for violation of Texas Insurance Code Subchapter B pursuant to TEX. INS. CODE § 542.060.

D. Breach of the Duty of Good Faith and Fair Dealing.

55. Allstate breached the common law duty of good faith and fair dealing owed to Plaintiffs

by denying or delaying payment on the Claim when Allstate knew or should have known that its

liability to Plaintiffs was reasonably clear. Allstate’s conduct proximately caused Plaintiffs’

injuries and damages.

VIL.
CAUSES OF ACTION AGAINST
DEFENDANT TEMPERTON

56. Plaintiffs incorporate all of the aforementioned facts into its causes of action below for all

purposes.

57. Temperton is an insurance adjuster that was assigned or otherwise engaged by Allstate to

adjust the Claim. Temperton was an employee and/or agent of Allstate and was acting in

Plaintiffs’ Original Petition Page 14
furtherance of the business of Allstate at all times material while adjusting the Claim. Accordingly,

Allstate is additionally liable for his wrongful conduct.

Noncompliance with Texas Insurance Code: Unfair Settlement Practices.

58. The conduct, acts, and/or omissions by Temperton while adjusting the Claim constituted

Unfair Settlement Practices pursuant to TEX. INS. CODE. §541.060(a). All violations under this

article are made actionable by TEX. INS. CODE §541.151.

59. Temperton is individually liable for his unfair and deceptive acts, irrespective of the fact

he was acting on behalf of Allstate, because individually, he meets the definition of a “person” as

defined by TEX. INS. CODE §541.002(2). The term “person” is defined as “any individual,

corporation, association, partnership, reciprocal or interinsurance exchange, Lloyds plan, fraternal

benefit society, or other legal entity engaged in the business of insurance, including an agent,

broker, adjuster or life and health insurance counselor.” TEX. INS. CODE §541.002(2) (emphasis

added); see also Liberty Mutual Insurance Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484

(Tex. 1998) (holding an insurance company employee to be a “person” for the purpose of bringing

a cause of action against them under the Texas Insurance Code and subjecting them to individual

liability).

60. The unfair settlement practices of Temperton, as described above, in misrepresenting to

Plaintiffs material facts relating to Plaintiffs’ obligations under the Policy and the coverage at issue

constitute an unfair method of competition and an unfair and deceptive act or practice in the

business of insurance. TEX. INS. CODE §541.060(1).

61. The unfair settlement practices of Temperton, as described above, in failing to attempt in

good faith to effectuate a prompt, fair, and equitable settlement of the Claim, even though liability

under the Policy is reasonably clear, constitutes an unfair method of competition and an unfair and

Plaintiffs’ Original Petition Page 15
deceptive act or practice in the business of insurance. TEX. INS. CODE §541.060(2)(A). Temperton

ignored the obvious substantial covered damage to the Properties and conducted a substandard

investigation.

62, The unfair settlement practices of Temperton, as described above, in failing to promptly

provide the Plaintiffs with a reasonable explanation of the basis in the Policy, in relation to the

facts or applicable law, for the offer of a compromise settlement of Plaintiffs’ Claim, constitutes

an unfair method of competition and an unfair and deceptive act or practice in the business of

insurance. TEX. INS. CODE §541.060(3).

63. The unfair settlement practices of Temperton, as described above, in failing within a

reasonable time to affirm or deny coverage of the Claim to Plaintiffs or to request a Proof of Loss,

constitutes an unfair method of competition and an unfair and deceptive act or practice in the

business of insurance. TEX. INS. CODE §541.060(4).

64. The unfair settlement practices of Temperton, as described above, in refusing to pay

Plaintiffs’ Claim without conducting a reasonable investigation, constitutes an unfair method of

competition and an unfair and deceptive act or practice in the business of insurance. TEX. INS.

CODE §541.060(7). Had Temperton retained qualified, disinterested experts from the outset, he

would have concluded the full extent of damage to the Property was covered by the Policy.

Temperton also failed to properly supervise the claim adjustment process, despite being the only

adjuster from Allstate that actually went onsite.

VII.
KNOWLEDGE

65. Each of the Defendants’ acts described above, together and singularly, was done

“knowingly” as that term is used in the Texas Insurance Code and was a producing cause of

Plaintiffs’ damages described herein.

Plaintiffs’ Original Petition Page 16
66. Defendants acted fraudulently and with malice (as that term is legally defined) in denying and

delaying Plaintiffs’ Claim for benefits. Further, Defendants had actual, subjective awareness of the

risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare

of Plaintiffs.

Ix.
RESULTING LEGAL AND CONSEQUENTIAL DAMAGES

67. Plaintiffs are entitled to the actual damages resulting from the Defendants’ violations of

the law. These damages include the consequential damages to its economic welfare from the

wrongful denial and delay of benefits including loss of use of the Property in addition to the other

actual damages permitted by law.

68. As a result of Defendants’ acts and/or omissions, Plaintiffs have sustained damages in

excess of the minimum jurisdictional limits of this Court.

69. Plaintiffs are entitled under law to the recovery of prejudgment interest at the maximum

legal rate.

70. Defendants’ violations of the Texas Insurance Code entitle Plaintiff to the attorneys’ fees,

treble damages, and other penalties provided by law.

71. Plaintiffs are entitled to statutory interest as damages under TEX. INS. CODE § 542.060(c).

72. Plaintiffs are entitled to the recovery of attorneys’ fees pursuant to TEX. CIv. PRAC. & REM.

COobE § 38.001, TEx. INS. CODE § 542.060(a)-(c), and TEX. CIV. PRAC. & REM. CODE § 37.009.

x.
JURY DEMAND

73. Plaintiffs hereby demand a jury trial and tender the appropriate jury fee.

XI.
PRE-AND-POST JUDGMENT INTEREST SOUGHT

Plaintiffs’ Original Petition Page 17
74. Plaintiffs further seek the recovery of all interest allowed at law, including pre-judgment

and post-judgment interest.

XII.
NOTICE AND CONDITIONS PRECEDENT SATISFIED

75. Plaintiffs allege that all conditions precedent to the maintenance of this action have been

met or satisfied, in accordance with Rule 54 of the Texas Rules of Civil Procedure. The 60-day

pre-suit notice requirements within § 542A of the Texas Insurance Code expressly do not apply to

this Claim, as the cause of Plaintiffs’ covered losses (water line breaks) were not in any way due

to “forces of nature.”

76. All conditions

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Document Filed Date

October 07, 2022

Case Filing Date

August 29, 2022

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Document for David and Olga Rozenstein v. Allstate Vehicle and Property Insurance Company and Cameron Temperton,

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