Aggie Invs., L.L.C. v. Cont'l Cas. Co., Civil Action No. 4:21-CV-0013

CourtUnited States District Courts. 5th Circuit. United States District Court of Eastern District Texas
Writing for the CourtJudge Mazzant
Decision Date20 April 2021
Docket NumberCivil Action No. 4:21-CV-0013


Civil Action No. 4:21-CV-0013


April 20, 2021

Judge Mazzant


Pending before the Court is Defendant Continental Casualty Company's Motion to Dismiss Plaintiff's Amended Complaint (Dkt. #8). Having considered the motion and the relevant pleadings, the Court finds that the motion should be granted.


Plaintiff Aggie Investments, L.L.C., ("Aggie Investments") owns and operates Spice & Tea Merchants of McKinney ("Spice & Tea Merchants"), which is a local spice and tea room in McKinney, Texas (Dkt. # 6 ¶ 5). Aggie Investments purchased an insurance policy (the "Policy") from Continental Casualty Company ("Continental") for Spice & Tea Merchants' commercial property located at 110 S. Tennessee St., McKinney, Texas (Dkt. # 6 ¶ 5). The Policy was an all-risk insurance policy that provided for losses to Spice & Tea Merchants' commercial property, business personal property, business income, and extra expenses (Dkt. #6 ¶ 6). Coverage started on November 15, 2019, and ended on November 15, 2020 (Dkt. # 6 ¶ 5).

During the Policy's coverage, the COVID-19 pandemic caused the City of McKinney to issue a stay at home order that temporarily stopped business activities. See (Dkt. #6 ¶¶ 5-9).

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Consequently, Spice & Tea Merchants could not utilize its facility and suspended business operations (Dkt. # 6 ¶¶ 7-9). Because of this closure, Aggie Investments suffered economic loss and submitted an insurance claim with Continental (Dkt. #6 ¶¶ 7-12). Spice & Tea Merchants later reopened, but Aggie Investments alleges it continued to have economic losses while it operated under restricted capacity requirements that the state of Texas implemented (Dkt. #6 ¶¶ 8-9).

Aggie Investments claims that these economic losses are a "Covered Cause of Loss" under the Policy because it provides coverage for "risks of direct physical loss" unless excluded or limited by the Policy (Dkt. #6 ¶ 10). See also (Dkt. #6, Exhibit 1 at p. 20). More specifically, Aggie Investments relies on the Policy's Business Income provision, which provides:

[Continental] will pay for the actual loss of Business Income [Aggie Investments] sustain[s] due to the necessary "suspension" of [its] "operations" during the "period of restoration." The "suspension" must be caused by direct physical loss of or damage to property at the described premises. The loss or damage must be caused by or result from a Covered Cause of Loss.

See (Dkt. #6 ¶ 10); (Dkt. # 6, Exhibit 1 at p. 41). Aggie Investments asserts that due to the pandemic, consumer fear, and government orders, it suffered a "direct physical loss" of its property and is entitled to coverage (Dkt. #6 ¶ 11).

Furthermore, Aggie Investments relies on the Civil Authority provision because it covers "the actual loss of Business Income [Aggie Investments] sustain[s] and reasonable and necessary Extra Expense [it] incur[s] caused by action of civil authority that prohibits access to the described premises." See (Dkt. # 6, ¶ 12); (Dkt. #6, Exhibit 1 at p. 67). This civil authority action, however, must result from "direct physical loss of or damage to property at locations, other than described premises . . . ." (Dkt. #6, Exhibit 1 at p. 67).

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After receiving the insurance claim, Continental denied coverage because it believed the Policy required "actual, demonstrable harm of some form to the insured premises" (Dkt. #6 ¶ 13). Aggie Investments then filed a claim against Continental in state court for (1) breach of contract, (2) attorney's fees, and (3) a declaratory judgment under Texas law (Dkt. #1, Exhibit 4 at pp. 6-8). Continental removed the action to the Eastern District of Texas on January 8, 2021 (Dkt. #1).

Aggie Investments filed its Amended Complaint on February 10, 2021, realleging its claims from state court (Dkt. #6). Continental moved for a Rule 12(b)(6) motion to dismiss the claims on March 2, 2021 (Dkt. #8). Aggie Investments responded on March 17, 2021 (Dkt. #11), and Continental provided its Reply on March 24, 2021 (Dkt. #14). Aggie Investments filed a sur-reply on March 31, 2021 (Dkt. #15).


The Federal Rules of Civil Procedure require that each claim in a complaint include a "short and plain statement . . . showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). Each claim must include enough factual allegations "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

A Rule 12(b)(6) motion allows a party to move for dismissal of an action when the complaint fails to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When considering a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded facts in the plaintiff's complaint and view those facts in the light most favorable to the plaintiff. Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court may consider "the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint." Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The Court must then determine

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whether the complaint states a claim for relief that is plausible on its face. "A claim has facial plausibility when the plaintiff pleads factual content that allows the [C]ourt to draw the reasonable inference that the defendant is liable for the misconduct alleged." Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "But where the well-pleaded facts do not permit the [C]ourt to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)).

In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency of a complaint in the context of a Rule 12(b)(6) motion. First, the Court should identify and disregard conclusory allegations, for they are "not entitled to the assumption of truth." Iqbal, 556 U.S. at 664. Second, the Court "consider[s] the factual allegations in [the complaint] to determine if they plausibly suggest an entitlement to relief." Id. "This standard 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary claims or elements.'" Morgan v. Hubert, 335 F. App'x 466, 470 (5th Cir. 2009) (citation omitted). This evaluation will "be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

Thus, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Id. at 678 (quoting Twombly, 550 U.S. at 570).


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