IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

VIZZA WASH, LP D/B/A THE WASH TUB § 

Plaintiff, § 

§ 

v. § CIVIL ACTION NO. 5:20-cv-00680 

§ 

NATIONWIDE MUTUAL INSURANCE § 

COMPANY AND BRADLEY WORTH § 

Defendant. § 

NOTICE OF REMOVAL 

Defendant Nationwide Mutual Insurance Company (“Defendant” or “Nationwide”), 

through undersigned counsel and pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, files this Notice 

of Removal of the lawsuit captioned Vizza Wash, LP d/b/a The Wash Tub v. Nationwide Mutual 

Insurance Company and Bradley Worth; Cause No. 2020-CI-08311; In the 407th Judicial District 

of Bexar County, Texas. 

I. BACKGROUND 

Plaintiff Vizza Wash, LP d/b/a The Wash Tub (hereinafter “Plaintiff”) initiated the 

present action by filing its Original Petition in Cause No. 2020-CI-08311; In the 407th Judicial 

District of Bexar County, Texas on May 6, 2020 (the “State Court Action”). See Plaintiff’s 

Original Petition, attached as Exhibit A. Plaintiff filed a First Amended Petition on May 7, 2020, 

attached as Exhibit B. 

Nationwide has not yet filed an answer or responsive motion. Defendant Bradley Worth 

(“Worth”) appeared and answered on June 5, 2020, asserting a general denial. See Worth’s 

Original Answer, attached as Exhibit C. 

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Pursuant to 28 USC § 1446(a) a copy of all process, pleadings, and orders served upon 

Defendant Nationwide in the State Court Action are incorporated in Exhibit A. Pursuant to 28 

U.S.C. § 1446(d), promptly after filing this Notice of Removal, Defendant will give written 

notice of the removal to Plaintiff through its attorney of record, and to the clerk of the 407th

Judicial District Court of Bexar County, Texas. Pursuant to 28 USC §§ 1446(b)(1) and 1446(c)(1) 

this Notice of Removal has been timely filed within 30 days of service on Defendant of Plaintiff’s 

Original Petition and less than one year after the commencement of this action. Obtaining consent 

from improperly joined parties for the removal of a case to federal court is not necessary. See 

Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 2003). 

II. JURISDICTION 

This Court has original jurisdiction pursuant to 28 U.S.C. § 1332, and the matter is 

removable to this Court pursuant to 28 U.S.C. § 1441(a) because there is complete diversity of 

citizenship between the properly joined parties and the amount in controversy exceeds $75,000 

exclusive of interest and costs. 

A. Diversity of Parties 

Plaintiff Vizza Wash, LP d/b/a The Wash Tub is a Texas limited partnership. On June 6, 

2001, Plaintiff converted from a Texas corporation named Vizza Wash, Inc. to a Texas Limited 

Partnership called Vizza Wash Limited Partnership. (See Exhibit D attached hereto). The 

Articles of Conversion and Certificate of Limited Partnership, filed on June 6, 2001 with the Texas 

Secretary of State, identify Vizza Wash Services, L.L.C. as Plaintiff’s General Partner and identify 

the corporate office as being in San Antonio, Texas. (Id.). On January 3, 2014, Plaintiff filed with 

the Texas Secretary of State an Assumed Name Certificate for Vizza Wash Limited Partnership, 

which identified the assumed name as “The Wash Tub.” (Exhibit E attached hereto). The most 

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recent Texas Franchise Tax Public Information Report for Plaintiff, on file with the Texas 

Secretary of State and dated November 15, 2019, also identifies Plaintiff’s General Partner as 

being Vizza Wash Services, L.L.C. (Exhibit F attached hereto). There are no limited partners of 

Vizza Wash Limited Partnership identified in any of the Secretary of State Filings made by 

Plaintiff. 

The Articles of Organization of Plaintiff’s General Partner, Vizza Wash Services, L.L.C., 

identify Vizza Wash Services, L.L.C. as a Texas limited liability company with a registered office 

in San Antonio, Texas. (Exhibit G attached hereto). This company is managed by the manager 

named Matthew Vizza, residing at 16035 University Oaks, San Antonio, Texas 78249. (Id.) The 

most recent Texas Franchise Tax Public Information Report for Vizza Wash Services, L.L.C. states 

that Matthew J. Vizza is the only member of the company and list his address at 2208 NW Loop 

410, San Antonio, Texas 78230. (Exhibit H attached hereto). Thus, at the time Plaintiff filed the 

State Court Action and up to the date of this removal, Matthew J. Vizza has been a resident and 

citizen of the State of Texas. Other than Matthew J. Vizza, there are no other members of Vizza 

Wash Services, L.L.C., identified in any of the Secretary of State Filings made by Plaintiff. 

The citizenship of a limited partnership is based upon the citizenship of each of its partners. 

Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079 (5th Cir. 2008). As stated above, a 

diligent search of publicly available information regarding the partners of Vizza Wash Limited 

Partnership has been conducted and Vizza Wash Services, L.L.C. is the only partner who can be 

identified based on public records. Citizenship of a limited liability company is determined by 

the citizenship of all of its members. MidCap Media Finance, LLC v. Pathway Data, Inc., 929 

F.3d 310, 314 (5th Cir. 2019). A diligent search of publicly available information regarding the 

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members of Vizza Wash Services, L.L.C. has been conducted, and Matthew J. Vizza is the only 

member who can be identified based on public records. 

After a diligent search of publicly available information, Matthew J. Vizza is a citizen of 

the State of Texas. No other partners or members of Plaintiff and Vizza Wash Services, L.L.C. 

were discovered through a diligent search and review of publicly available records, and 

Nationwide has no reason to believe that any members or partners share the citizenship of 

Nationwide. Based on information and belief after diligent inquiry, and pursuant to 28 U.S.C. § 

1332(a), Plaintiff is citizen of the State of Texas. 

Nationwide Mutual Insurance Company is organized under the laws of Ohio and maintains 

its principal place of business in Ohio. Pursuant to 28 U.S.C. § 1332(c)(1), therefore, Nationwide is 

a citizen of the State of Ohio. 

Co-defendant Bradley Worth is a citizen of the State of Texas. However, as set forth 

below, Bradley Worth has been improperly joined and his citizenship can be disregarded. 

Accordingly, there is complete diversity between the properly joined parties pursuant to 28 

U.S.C. § 1332(a). 

B. Improper Joinder of Co-defendant Worth

Plaintiff improperly joined co-defendant Bradley Worth. A defendant is improperly 

joined if the moving party establishes that (1) the plaintiff has stated a claim against a defendant 

that it fraudulently alleges is non-diverse, or (2) the plaintiff has not stated a claim against a 

defendant that it properly alleges is non-diverse. See Int’l Energy Ventures Mgmt., LLC v. United 

Energy Grp., Ltd., 818 F.3d 193, 208 (5th Cir. 2016). Because Worth is non-diverse, only the 

latter option is relevant in this matter. 

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A non-diverse defendant is improperly joined if “there is no reasonable basis for the 

district court to predict that the plaintiff might be able to recover against” the non-diverse 

defendant. Id. at 200 (citing Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004)). 

If the assertion of improper joinder is based on the existence of an affirmative defense and the 

defendant establishes the existence of an affirmative defense to plaintiff’s state law claims, “it 

necessarily follows that joinder was fraudulent, and the district court properly exercise[s] its 

removal jurisdiction.” Sid Richardson Carbon & Gasoline Co. v. Interenergy Res., Ltd., 99 F.3d 

746, 753 (5th Cir. 1996); see also Parkway Imaging Ctr., Inc. v. Home Life Fin. Assurance 

Corp., 198 F.3d 240, 2012 WL 824441, at *6 (5th Cir. Sept. 27, 1999). 

Courts may “conduct a Rule 12(b)(6)-type analysis, looking initially at the allegations of 

the complaint, to determine whether the complaint states a claim” against the non-diverse 

defendant. Id. Under such analysis, the critical question is whether the allegations of Plaintiff’s First 

Amended Petition “contain sufficient factual matter, accepted as true, to state a claim to relief” under 

Texas law. Trang v. Bean, 600 F. App’x 191, 193 (5th Cir. 2015) (internal citations omitted). In 

undertaking its decision, courts are to apply federal pleading standards to the asserted state court 

claim. Int’l Energy Ventures, 818 F.3d at 200-08. A plaintiff’s obligation to provide the “grounds” 

for “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of 

the elements of a cause of action will not do. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

Put simply, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its 

face.” Id. at 570. 

The Fifth Circuit has clarified that, for the improper joinder analysis, pleadings must 

satisfy the federal pleading standard; not Texas’s fair notice pleading standard. Int’l Energy 

Ventures Mgmt., 818 F.3d at 200 (“It is well-established, of course that Rule 12(b)(6) analysis 

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necessarily incorporates the federal pleading standard”) (emphasis original) (internal citations 

omitted). This means that many allegations under the Texas Insurance Code must meet the 

heightened pleading requirements of Federal Rule of Civil Procedure 9(b). See, e.g., Columbia 

Mut. Ins. Co. v. Trewitt-Reed Funeral Home, Inc., No. 4:15-CV-568-A, 2016 WL 524597, at *2 

(N.D. Tex. Feb. 5, 2016). When these principles are applied, it is evident that the insurance agent 

Worth has been joined solely to defeat diversity jurisdiction. 

1. Plaintiff’s allegations against Worth 

In this case, Plaintiff has asserted causes of action against its insurance agent Worth for 

violations of the Texas Deceptive Trade Practices Act (“DTPA”), negligent misrepresentation, 

violations of the Texas Insurance Code § 541.061 subsections (1), (2), (3) and (5), negligence and 

“negligence by undertaking a duty,” and civil conspiracy. (See Plaintiffs’ 1st Am. Pet, attached as 

Exhibit B, pp. 7-12.) 

As for factual background regarding these claims, Plaintiff’s First Amended Petition speaks 

in vague and general terms. (See pages 7 and 8 of Pl.’s 1st Am. Pet.). Plaintiff’s factual allegations 

can be slotted into two categories: (1) a category concerning things Worth did not say before the 

Policy incepted and (2) a category concerning things Worth did say after the Policy incepted. First, 

Plaintiff alleges Worth failed to inform Plaintiff before the Policy incepted on January 31, 2020 that 

the policy would not cover Plaintiff’s business income losses caused by COVID-19. (Pl.’s 1st Am. 

Pet. at p. 7). Plaintiff alleges that the COVID-19 pandemic has been a known phenomenon since 

January 2020 and, on information and belief, Nationwide informed Worth (Plaintiff does not allege 

when) that Nationwide would not cover business income loss claims because there was no physical 

damage caused by the COVID-19 virus and because of various exclusions. (Id.). Plaintiff alleges that 

had it known the Policy did not cover pandemic losses, it would not have purchased the Policy. (Id.). 

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Second, Plaintiff complains of communications Worth made about what the Policy does not 

cover. (Pl.’s 1st Am. Pet. at pp. 7-8). Plaintiff does not specify when these communications were 

made, but logically, it appears that Plaintiff is complaining of post-loss communications. Because 

Plaintiff already alleged that Worth failed to notify Plaintiff before the Policy incepted that the Policy 

did not cause business income losses caused by or resulting from the coronavirus, it would be 

inconsistent for Plaintiff to allege Worth also informed Plaintiff prior to the policy inception that 

COVID-19 related claims were covered. Accordingly, this category of allegations made by Plaintiff 

must relate to communications Worth allegedly made after Plaintiff purchased the Policy. Plaintiff 

claims Worth misrepresented to Plaintiff that the Policy does not cover “communicable disease,” as it 

was not a “cause of loss.” (Pl.’s 1st Am. Pet. at p. 7). Plaintiff alleges that Worth was directed, 

allegedly through “talking points” provided by “carriers,” to tell Plaintiff that there was no coverage 

for communicable disease or “government actions” to keep Plaintiff from even submitting a claim to 

Nationwide for business interruption losses caused by or resulting from coronavirus. (Id. p.7-8). 

After describing these two categories of factual allegations, Plaintiff’s Petition sets forth the 

causes of action alleged against Worth. The Petition merely recites the elements of these causes of 

action and does not contain any additional factual allegations. As explained below, Plaintiff’s vague 

and threadbare allegations against Worth fail to state any claim for relief, rendering removal proper 

on the basis that Worth was improperly joined. 

2. Plaintiff has failed to state a claim against Worth for violation of the Texas 

DTPA, Section 541.061 of the Texas Insurance Code, or negligent 

misrepresentation. 

Insurance sales agencies like Worth may be liable under Chapter 541 of the Texas Insurance 

Code and the DTPA only under “appropriate circumstances,” limited to “when the agent 

misrepresents specific policy terms prior to a loss, and the insured’s reliance upon that 

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misrepresentation actually causes the insured to incur damages.” Griggs v. State Farm Lloyds, 181 

F. 3d 694, 701 (5th Cir. 1999) (emphasis added) (citing Liberty Mutual Ins. Co. v. Garrison 

Contractors, Inc., 966 S.W.2d 482 (Tex. 1998); and State Farm Fire & Casualty Co. v. Gros, 

818 S.W.2d 908 (Tex. App. – Austin 1991, no writ)).1 “[A]bsent an affirmative misrepresentation, 

[an insured’s] mistaken belief about the scope of coverage is not actionable under the DTPA or the 

Texas Insurance Code.” Wyly v. Integrity Ins. Sols., 502 S.W.3d 901, 908 (Tex. App.—Houston 

[14th Dist.] 2016). The same rule applies to claims for negligent misrepresentation. Sohmer v. Am. 

Med. Sec., Inc., 2002 U.S. Dist. LEXIS 19573, at *7-8 (N.D. Tex. 2002) (holding that for an 

insurance agent to be liable for negligent misrepresentation “the agent must misrepresent specific 

policy terms prior to a loss, and the insured's reliance upon that misrepresentation must actually 

cause the insured to incur damages.”) 

Here, Plaintiff has failed to plead any facts under which a viable Chapter 541, DTPA, or 

negligent misrepresentation claim could be made against Worth. Plaintiff does not plead that Worth 

misrepresented any specific policy terms prior to a loss or before the Policy incepted. Instead, 

Plaintiff alleges Worth failed to notify Plaintiff that business interruption losses resulting from 

coronavirus were not covered by the Policy. (Pl.’s 1st Pet. at p. 7). But an agent’s failure to explain 

coverage terms to an insured is not actionable because, under Texas law, an insurance agent does 

not have a legal duty to explain the terms and conditions of an insurance policy. Insurance 

Network of Tex. v. Kloesel, 266 S.W.3d 456, 467-68 (Tex. App.—Corpus Christi 2008, pet. 

1 See also Avila v. State Farm Fire & Cas. Co., 147 F. Supp. 2d 570, 581 (W.D. Tex. 1999) (holding that an 

insurance agent has no duty under Texas law to explain policy terms to an insured and “absent some 

specific misrepresentation of the terms of coverage by an insurer, an insured's mistaken belief that he is 

obtaining coverage under certain contingencies, which are not in fact covered by the policy, is not grounds 

for a misrepresentation claim.”); see also Sohmer v. Am. Med. Security, Inc., 2002 WL 3132376, at *3 

(N.D. Tex. 2002); Lopez v. OM Fin. Life Ins. Co., Civ. A. No. H-09-789, 2009 WL 2591245, at *2 (S.D. 

Tex. Aug. 19, 2009) (finding improper joinder when plaintiff’s DTPA allegations failed to identify a 

specific policy term the insurance agent misrepresented); Druke v. Fortis Health, 2007 WL 38322, at *5 

(S.D. Tex. Jan. 4, 2007).

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denied); Ruiz v. Government Emples. Ins. Co., 4 S.W.3d 838, 841 (Tex. App.—El Paso 1999, no 

pet.); Heritage Manor of Blaylock Properties, Inc. v. Petersson, 677 S.W.2d 689, 691 (Tex. 

App.—Dallas 1984, writ ref’d n.r.e.). Rather, an insured has a duty to read the insurance policy, 

is responsible for understanding the policy’s terms and conditions, and is bound by those policy 

terms. United Neurology, P.A. v. Hartford Lloyd’s Ins. Co., 101 F. Supp. 3d 584, 614-615 (S.D. 

Tex. 2015) aff’d, 624 F. App’x 225 (5th Cir. 2015); Philadelphia Indem. Ins. Co. v. Creative 

Young Minds, Ltd., 679 F. Supp. 2d 739, 748 (N.D. Tex. 2009). 

And Plaintiff’s allegations regarding misrepresentations Worth allegedly made after the 

policy incepted and after Plaintiff incurred alleged losses also fail to state a claim for violation of 

the DTPA, § 541.061 of the Texas Insurance Code, or negligent misrepresentation for several 

reasons as well. First, “[b]efore any misrepresentation can be said to be actionable, it must have 

induced the purchase” and caused damages. Miller v. Allstate Tex. Lloyd’s, 2017 U.S. Dist. 

LEXIS 122884, at *15 (S.D. Tex. 2017) (citing Tsao v. Ferring Pharms., Inc., U.S. Dist. LEXIS 

26075, 2017 WL 746451 at *9 (S.D. Tex. Jan. 24, 2017)). Here, Plaintiff alleges that Worth 

allegedly misrepresented after the Policy incepted that the policy excludes communicable 

diseases and government actions. (Pl.’s 1st Am. Pet. at pp. 7-8). As explained in the next 

paragraph (and in Nationwide’s soon to be filed Motion to Dismiss) these are not 

misrepresentations because they are true. But even if they were false, Plaintiff has not alleged 

that the representations induced it to purchase the Policy. Instead, Plaintiff alleges that the 

representations were made after the Policy incepted. (Id.). Also, Plaintiff has not alleged any 

damages based on the representations. As Plaintiff alleges in its Petition, it did in fact file a claim 

with Nationwide. (Pl.’s 1st Am. Pet. at p. 3). Therefore, the representations did not prevent 

Plaintiff from filing a claim. And if the representations are false (which they are not), Plaintiff 

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has not alleged any resulting damages. The only economic damages alleged by Plaintiff are the 

lost benefits under the Policy, which are not affected by the alleged representations. (Pl.’s 1st 

Am. Pet. at p. 12). The terms of the Policy, and not what Mr. Worth says, control what is covered 

by the Policy. 

Second, these alleged misrepresentations are not actionable because they simply are true, 

and hence are not misrepresentations. “Because a true statement of fact is not a misrepresentation 

at all, courts have found that such statements cannot form the basis for an agent’s liability.” New 

World Baptist Church, LLC v. Nationwide Prop. & Cas. Ins. Co., 2017 U.S. Dist. LEXIS 73170, 

at *9 (W.D. Tex. 2017).2 When the Policy establishes that something is not covered, a statement 

by an agent that the risk is not covered cannot form the basis of an actionable misrepresentation 

claim. Id. (citing Garza, 2013 U.S. Dist. LEXIS 95088, 2013 WL 3439851 at *5). This Court can 

review the Policy and determine as a matter of law that Worth’s alleged vague statements that 

the Policy does not cover “communicable disease” or “government actions” are true. The Policy 

contains the following express exclusions that provide in relevant part: 

B. EXCLUSIONS

1. We will not pay for loss or damage caused directly or indirectly by 

any of the following. Such loss or damage is excluded regardless 

of any other cause or event that contributes concurrently or in 

sequence to the loss. These exclusions apply whether or not the 

loss event results in widespread damage or affects a substantial 

area. 

. . . 

c. Governmental Action

Seizure or destruction of property by order of governmental 

authority. 

. . . 

i. Virus Or Bacteria

2 See also Burton v. State Farm Mut. Auto. Ins. Co., 869 F. Supp. 480, 486 (S.D. Tex. 1994), aff'd, 66 F.3d 

319 (5th Cir. 1995) (finding that plaintiffs did not allege that an insurance agent misrepresented policy 

terms by “[telling] them that the policy met the requirements of the Texas Safety Responsibility Act” when 

the policy did in fact meet the Act's requirements when it was issued). 

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(1) Any virus, bacterium or other microorganism that 

induces or is capable of inducing physical distress, 

illness or disease. 

See Policy (Exhibit I attached hereto) at pages 22-23 of the Premier Businessowners Property 

Coverage Form (emphasis added).3 The plain language of the policy excludes coverage for both 

“governmental action” and “any virus . . . that induces or is capable of inducing . . . disease.” See

Exhibit H, Policy at pages 22-23 of the Premier Businessowners Property Coverage Form. As 

such, Worth’s alleged representations about the effect these exclusions had on Plaintiff’s claim 

were true and cannot form the basis of a misrepresentation claim. 

And Plaintiff’s claim against Worth for violation of § 541.061 of the Texas Insurance 

Code fails for yet another reason. “[S]ection 541.061 applies to misrepresentations of a policy’s 

terms, not misrepresentations about whether a specific claim is factually within a policy’s 

terms.” In re Crawford & Co., 458 S.W.3d 920, 927 n.5 (Tex. 2015). For example, in Tex. Mut. 

Ins. Co. v. Ruttiger, the insured’s section 541.061 claim failed because there was no evidence of 

“any untrue statement by [the insurer] regarding the policy or any statement about the policy that 

misled him.” 381 S.W.3d 430, 445-46 (Tex. 2012). Rather, “[t]he dispute between Ruttiger and 

[the insurer] was over whether Ruttiger’s claim was factually within the policy's terms—whether 

he was injured on the job.” Id. 

3 The Court can take judicial notice of the Policy for the purpose of this removal (based on the improper 

joinder 12(b)(6) standard) because the Policy is referenced in Plaintiff’s Petition. When a defendant 

attaches documents to its Rule 12(b)(6) motion, those documents are considered part of the pleadings so 

long as the documents were referred to in the complaint and are central to the plaintiff’s claims. Collins v. 

Morgan Stanley Dean Witter, 224 F. 3d 496, 498-99 (5th Cir. 2000); see also Walker v. Beaumont Indep. 

Sch. Dist., No. 17-40752, 2019 U.S. App. LEXIS 28030, at *15 (5th Cir. 2019) (citing Causey v. Sewell 

Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004); In re Katrina Canal Breaches Litig., 495 F.3d 

191, 205 (5th Cir. 2007)). “In so attaching, the defendant merely assists the plaintiff in establishing the 

basis of the suit, and the court in making the elementary determination of whether a claim has been stated.” 

Collins, 224 F. 3d at 499. Here, Plaintiff referred to the Policy at length in its Original Petition. The Policy 

also serves as the basis for Plaintiff’s claims against Nationwide. As such, it is proper for this Court to 

consider the Policy. 

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Like Ruttiger, there are no allegations in the present case that Worth misrepresented the 

terms of the policy. The alleged misrepresentations concerned statements about whether 

Plaintiff’s business income losses related to the coronavirus are covered by the Policy’s terms. 

Because there is no allegation that Worth misrepresented a specific policy term—much less a 

clear allegation of what the misrepresentation was—Plaintiff fails to state a claim against Worth 

for violation of § 541.061. 

 3. Plaintiff has failed to state a claim against Worth for negligence.4

It is fundamental law that to prevail on its negligence claim, the Plaintiff would have to 

show that Worth breached some legal duty owed to Plaintiff. Rosas v. Buddies Food Store, 518 

S.W.2d 534, 536 (Tex. 1975). But generally, insurance agents owe their client only a duty to use 

reasonable diligence in acquiring a policy, and to inform the client if they are unable to do so. 

Webb v. UnumProvident Corp., 507 F. Supp. 2d 668, 683 (W.D. Tex. 2005) (citing May v. 

United Services Ass’n., 844 S.W.2d 666, 669 (Tex. 1992)). 

Under Texas law, an insurance agent does not have a legal duty to explain the terms and 

conditions of an insurance policy. Insurance Network of Tex. v. Kloesel, 266 S.W.3d 456, 467-68 

(Tex. App.—Corpus Christi 2008, pet. denied); Ruiz v. Government Emples. Ins. Co., 4 S.W.3d 

838, 841 (Tex. App.—El Paso 1999, no pet.); Heritage Manor of Blaylock Properties, Inc. v. 

Petersson, 677 S.W.2d 689, 691 (Tex. App.—Dallas 1984, writ ref’d n.r.e.). Rather, an insured 

has a duty to read the insurance policy, is responsible for understanding the policy’s terms and 

conditions, and is bound by those policy terms. United Neurology, P.A. v. Hartford Lloyd’'s Ins. 

Co., 101 F. Supp. 3d 584, 614-615 (S.D. Tex. 2015) aff’d, 624 F. App’x 225 (5th Cir. 2015); 

Philadelphia Indem. Ins. Co. v. Creative Young Minds, Ltd., 679 F. Supp. 2d 739, 748 (N.D. 

4 Plaintiff’s also alleges a claim Plaintiff calls “negligence by undertaking a duty.” Pl.’s 1st Am. Pet. at p. 

11. There is no separate cause of action under Texas law for “negligence by undertaking a duty.” 

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Tex. 2009). And “[t]o establish a common-law negligence claim against an insurance agent for 

breaching these duties, a plaintiff must be able to show that it requested a specific type of insurance

that the agent did not provide in accordance with the plaintiff’s expectations or that the plaintiff was 

wrongly led to believe that his policy provided protection against a particular risk that it did not.” 

Harding v. Higginbotham Ins. Agency, Inc., Civil Action No. 5:17-CV-188-C, 2017 U.S. Dist. 

LEXIS 228256, at *4-6 (N.D. Tex. 2017) (emphasis added) (citing May, 844 S.W.2d at 669-670). 

Plaintiff makes no allegations that it requested a “specific type of insurance” from Worth that 

Worth did not provide. Plaintiff also does not allege that Worth wrongly led Plaintiff to believe the 

relevant Policy provided protection against any particular risks that it in fact does not. Indeed, 

Plaintiff does not allege that it requested any specific type of insurance from Worth or any insurance 

that covered specific risks, much less the risk of business interruption losses due to a global 

pandemic. (Pl.’s 1st Am. Pet. at p. 7). Instead, Plaintiff alleges that “[d]espite knowing Nationwide 

would deny any coverage for Business income loss due to the pandemic, Worth obtained coverage 

for the Plaintiff on the Properties with Nationwide and failed to disclose such information.” (Pl.’s 1st 

Am. Pet. at p. 8). This allegation and the others in Plaintiff’s First Amended Petition do not state a 

claim for negligence under Texas law. 

4. Plaintiff has failed to state a claim against Worth for civil conspiracy. 

To state a claim for civil conspiracy under Texas law, a plaintiff must establish: (1) two 

or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or 

course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result. 

Apani Sw., Inc. v. Coca-Cola Enters., Inc., 300 F.3d 620, 635 (5th Cir. 2002). Because 

conspiracy is a derivative tort, liability for conspiracy depends on participation in an underlying 

tort. Allstate Ins. Co. v. Receivable Fin. Co., LLC, 501 F.3d 398, 414 (5th Cir. 2007). Because 

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Plaintiff has failed to state a claim for an underlying tort against Worth, Plaintiff's conspiracy 

claim fails. Vaughan v. State Farm Lloyds, 2015 U.S. Dist. LEXIS 188309, at *7 (W.D. Tex. 

2015). 

C. Amount in Controversy

It is facially apparent from Plaintiff’s live petition that the amount in controversy in this case 

exceeds $1,000,000 rendering removal proper. Generally, “the sum demanded in good faith in the 

initial pleading shall be deemed to be the amount in controversy.” 28 U.S.C. § 1446(c)(2); see also 

Santiago v. State Farm Lloyds, No. 7:13-CV-83, 2013 WL 1880845, at *1 (S.D. Tex. May 3, 

2013). Removal is proper if it is “facially apparent” from the complaint that the claims asserted 

exceed the jurisdictional amount. Puckitt v. Wells Fargo Bank, N.A., No. G-09-0056, 2010 WL 

2635626, at *3 (S.D. Tex. June 28, 2010) (citing Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 

1335 (5th Cir. 1995)). In addition, penalties, exemplary damages, and attorneys’ fees are included 

as part of the amount in controversy. See H&D Tire & Automotive-Hardware, Inc. v. Pitney 

Bowes Inc., 227 F.3d 326, 330 (5th Cir. 2000); see also St. Paul Reinsurance Co. v. Greenberg,

134 F.3d 1250, 1253 (5th Cir. 1998). 

Here, Plaintiff has pled “damages will be more $1,000,000.” (Pl.’s 1st Am. Pet. at p 15). 

The threshold for diversity jurisdiction, $75,000, is therefore met by the allegations of Plaintiff’s 

Original Petition. Plaintiff further seeks compensation for (1) actual damages, (2) treble damages, 

(3) exemplary damages; (4) attorney’s fees; (5) interest on the judgment and (6) pre- and postjudgment interest. (Id.). Plaintiff has alleged that Defendant’s conduct was wrongful and done 

knowingly, entitling it to a trebling of actual damages under Texas Insurance Code Chapter 541. 

(Id. at pp. 12-14); Tex. Ins. Code sections 541.002 & 541.152. Penalties, exemplary damages, 

and attorneys’ fees are included as part of the amount in controversy. See H&D Tire & 

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Automotive-Hardware, Inc. v. Pitney Bowes Inc., 227 F.3d 326, 330 (5th Cir. 2000); see also St. 

Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998). The amount in 

controversy plainly exceeds $75,000, exclusive of interest and costs and the amount in 

controversy requirement of 28 U.S.C. § 1332(b) is satisfied. 

III. CONCLUSION 

Removal of this action under 28 U.S.C. § 1441(a) is proper as the district courts of the 

United States have original jurisdiction over the matter pursuant to 28 U.S.C. § 1332, and as all 

requirements for removal under 28 U.S.C. § 1446 have been met. 

WHEREFORE, Defendant Nationwide Mutual Insurance Company hereby provides 

notice that this action is duly removed. 

Respectfully submitted, 

/s/ Patrick M. Kemp 

Patrick M. Kemp 

Texas Bar No. 24043751 

pkemp@smsm.com 

Robert G. Wall 

Texas Bar No. 24072411 

rwall@smsm.com 

Ethan D. Carlyle 

Texas Bar No. 24031794 

ecarlyle@smsm.com 

Segal McCambridge Singer & Mahoney 

100 Congress Avenue, Suite 800 

Austin, Texas 78701 

(512) 476-7834 

(512) 476-7832 – Facsimile 

ATTORNEYS FOR DEFENDANT 

NATIONWIDE MUTUAL INSURANCE 

COMPANY 

Case 5:20-cv-00680 Document 1 Filed 06/05/20 Page 15 of 16
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CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing instrument has been served 

via Certified Mail Return Receipt Requested this the 5th day of June, 2020 to: 

Shannon E. Loyd #9414 7266 9904 2137 9580 13

The Loyd Law Firm, PLLC 

12703 Spectrum Dr, Suite 201 

San Antonio, Texas 78249 

shannon@theloydlawfirm.com 

/s/ Patrick M. Kemp 

Patrick M. Kemp 

Case 5:20-cv-00680 Document 1 Filed 06/05/20 Page 16 of 16