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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION 

THOMAS SANCHEZ, JR. and 

DANIEL CRISP,

Plaintiffs,

v.

GREAT AMERICAN INSURANCE 

COMPANY and TEXAS MUTUAL 

INSURANCE COMPANY

Defendants.

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CIVIL ACTION NO. 05:20-CV-00699-OLG

JURY DEMAND

DEFENDANT GREAT AMERICAN INSURANCE COMPANY’S 

RULE 12(B)(6) MOTION TO DISMISS FOR FAILURE TO 

STATE CLAIMS UPON WHICH RELIEF MAY BE GRANTED

TO THE HONORABLE UNTED STATES DISTRICT COURT JUDGE:

COMES NOW, Defendant, Great American Insurance Company (“Great American” or 

“GAIC”), files this Motion to Dismiss Plaintiffs’ Complaint for failure to state claims upon 

which relief can be granted and, in support thereof, respectfully shows the Court as follows:

I.

PROCEDURAL HISTORY

This is Plaintiffs’ second time to file this meritless lawsuit. On or about May 9, 2017, 

Plaintiffs demanded that Great American tender the available limits of the UM/UIM 

Endorsement for injuries allegedly sustained in an automobile accident that occurred in Bexar 

County, Texas on or about May 17, 2016. Great American reviewed Plaintiffs’ claims and 

requested that Plaintiffs comply with the terms of the policy by first tendering copies of their 

medical records to their workers’ compensation insurance carrier – Texas Mutual Insurance 

Company (“Texas Mutual”). Great American further requested that Plaintiffs provide Great 

American with a copy of the rejection if Texas Mutual denied their claim for reimbursement 

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coverage. At no point did Great American deny coverage to Plaintiffs, nor did Great American 

state any circumstances under which it would deny coverage to Plaintiffs.

Despite Great American’s request, Plaintiffs never provided Great American with any 

information regarding what decision – if any – Texas Mutual made with respect to their claims. 

Plaintiffs also did not provide Great American with an explanation of why Texas Mutual made 

its coverage decision, if any. Instead, Plaintiffs chose to file suit against Great American on June 

26, 2018 in the 224th District Court for Bexar County, Texas. See Exhibit 1 – Plaintiffs’ Original 

Petition, Sanchez, et al. v. Great American Insurance Company, Cause No. 2018-CI-11759, 

formerly pending in the 224th Judicial District for Bexar County, Texas. Plaintiffs’ stated basis 

for their claims was Great American’s alleged denial of UM/UIM coverage to Plaintiffs. Id.

Great American answered the lawsuit, and subsequently removed the case to the United 

States District Court for the Western District of Texas. See Exhibit 2 – Great American’s Notice 

of Removal, Sanchez, et al. v. Great American Insurance Company, Cause No. 2018-CI-11759, 

formerly pending in the 224th Judicial District for Bexar County, Texas; Exhibit 3 – Great 

American’s Notice of Removal, Sanchez, et al. v. Great American Insurance Company, Case No. 

5:18-CV-804-XR, formerly pending in the United States District Court for the Western District 

of Texas – San Antonio Division (Rodriguez, J.).

During the course of this litigation, after Great American first moved for summary 

judgment on Plaintiffs’ claims, Plaintiffs voluntarily dismissed the following claims on March 

19, 2019 to avoid an adverse judgment: (1) misrepresentation under the Texas DTPA, (2) breach 

of contract, (3) negligent breach of contract, (4) negligence, (5) negligent infliction of emotional 

distress, (6) intentional infliction of emotional distress, (7) unconscionable action, and (8) breach 

of the duty of good faith and fair dealing. See Exhibit 4 – Letter Agreement (Dkt. 28), Case No. 

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5:18-CV-804-XR, Sanchez, et al. v. Great American Ins. Co., formerly pending in the United 

States District Court for the Western District of Texas – San Antonio Division.

Subsequently, Great American moved for summary judgment on Plaintiffs’ claim for 

declaratory relief. See Exhibit 5, Great American’s Motion for Summary Judgment (Dkt. 44), 

Case No. 5:18-CV-804-XR, Sanchez, et al. v. Great American Ins. Co., formerly pending in the 

United States District Court for the Western District of Texas – San Antonio Division. The Court 

granted Great American’s Motion for Summary Judgment and dispensed with Plaintiffs’ claim, 

finding as a matter of law that the plain language of the Policy excluded UM/UIM coverage for 

Plaintiffs. See Exhibit 6, Order Granting Great American’s Motion for Summary Judgment (Dkt. 

55), Case No. 5:18-CV-804-XR, Sanchez, et al. v. Great American Ins. Co., formerly pending in 

the United States District Court for the Western District of Texas – San Antonio Division. 

Despite clear direction from the Court, Plaintiffs filed the instant lawsuit – a virtually 

identical lawsuit – against Great American less than one month later. See Exhibit 7, Plaintiffs’ 

Original Petition, Sanchez, et al. v. Great American Ins. Co., et al., Cause No. 20220-CI-08840, 

formerly pending in the 225th District Court for Bexar County, Texas. Specifically, Plaintiffs 

once again allege numerous common law and statutory claims against Great American, allege 

that Great American breached its contract by failing and/or refusing to pay UM/UIM benefits for 

the same May 17, 2016 accident, and allege entitlement to a re-determination of their eligibility 

to recover UM/UIM benefits for the same incident. Id. However, Plaintiffs did not plead, or 

provide to Great American, any new information to change the factual or legal posture of this 

lawsuit. Id. All Plaintiffs did was attempt to add another defendant, Texas Mutual. Furthermore,

Plaintiffs have not alleged any cause of action against Texas Mutual1; rather, Plaintiffs merely 

1 Plaintiffs’ pleadings are unclear. Plaintiffs’ introductory section states that Plaintiffs will seek a determination as to 

the validity of Texas Mutual’s workers compensation lien. See Exhibit 7 at p.2-3. However, Plaintiffs’ pleading 

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seek an evidentiary determination of what medical expenses, if any, were paid by Texas Mutual, 

whether Great American owes coverage for any of the medical expenses allegedly submitted to 

Texas Mutual, and whether Texas Mutual’s lien precludes recovery of UM/UIM benefits.2

Plaintiffs served Great American on or about June 1, 2020. Because Plaintiffs failed to 

effectuate proper service on Texas Mutual, and because Plaintiffs fail to assert any clear cause of 

action against Texas Mutual, Great American properly removed this case to the United States 

District Court for the Western District of Texas – San Antonio Division on June 12, 2020. See 

Texas Brine Co., L.L.C. v. Am. Arbitration Ass’n, Inc., Case No. 18-31184, 2020 WL 1682777 

(5th Cir. Apr. 7, 2020) (affirming that 28 U.S.C. § 1441(b)(2) allows an out-of-state defendant to 

remove a case to federal court when the forum defendant has not yet been properly served); In re 

1994 Exxon Chem. Fire, 588 F.3d 378, 392-93 (5th Cir. 2009) (holding that the forum-defendant 

rule is procedural rule and not jurisdictional); Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 

699, 705 (2d Cir. 2019) (“By its text, then, Section 1441(b)(2) is inapplicable until a home-state 

defendant has been served in accordance with state law; until then, a state court lawsuit is 

never asserts such a claim. Furthermore, Plaintiffs do not allege that Texas Mutual wrongfully denied or refused to 

pay their medical bills allegedly incurred in connection with the subject automobile accident. Rather, Plaintiffs only 

“claim” against Texas Mutual comes on Page 9, wherein Plaintiffs allege, in relevant part, as follows:

DECLARATORY JUDGMENT CAUSE OF ACTION FOR UIM BENEFITS.

...Plaintiffs now seek a declaratory judgment pursuant to CPRC chapter 37 that Plaintiff is entitled to 

recover from Defendant GAIC damages resulting from the motor vehicle collision with the third-party 

driver, that those damages call within the UIM coverage afforded Plaintiff under the automobile insurance 

policy Defendant GAIC was paid for, and what of Plaintiffs’ medical expenses were paid or payable by 

workers compensation carrier Texas Mutual Insurance Company.

See Exhibit 7 at p.9. Furthermore, Plaintiffs do not seek to recover any damages from Texas Mutual. Id. at p.9-10.

In other words, Plaintiffs only “claim” against Texas Mutual is a request for information (i.e. “what medical 

expenses were paid or payable”) so that its claim against Great American can proceed. This is an evidentiary issue, 

not a cause of action for equitable relief. Therefore, Plaintiffs assert no discernible claim against Texas Mutual.

2 The Court has already decided these issues. See Exhibit 6. Furthermore, under these circumstances, the Fifth 

Circuit recognizes the propriety of the Court dismissing claims sua sponte on the grounds of either res judicata or 

collateral estoppel. See Boone v. Kurtz, 617 F.2d 435 (5th Cir. 1980) (dismissing a virtually identical second lawsuit 

in the same court when the only difference was the addition of a second defendant).

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removable under Section 1441(a) so long as a district court can assume jurisdiction over the 

action”); Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147 (3rd Cir. 2018); McCall 

v. Scott, 239 F.3d 808, 813 n.2 (6th Cir. 2001); Smallwood v. Illinois Central Railroad Co., 385 

F.3d 568, 573 (5th Cir. 2004) (finding that non-diverse defendants were improperly joined if 

plaintiff is unable to establish claim against the non-diverse party in state court).

After removing the case to the United State District Court for the Western District of 

Texas, Great American filed this Motion to Dismiss Plaintiffs’ Claims for Failure to State Claims 

Upon Which Relief May Be Granted on June 15, 2020. Fed. R. Civ. P. 12(b)(6).

II.

ARGUMENTS AND AUTHORITIES

To survive a Rule 12(B)(6) motion to dismiss, a complaint must include facts that “raise a 

right to relief above the speculative level,” and into the “realm of plausible liability.” Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 and 1966 n. 5 (2007). Those 

facts must “raise a right to relief above the speculative level,” meaning that a complaint fails to 

state facts upon which relief may be granted when it fails to plead “enough facts to state a claim 

to relief that is plausible on its face.” Twombly, 550 U.S. at 560. A claim has facial plausibility 

when the plaintiff pleads factual content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged. See, e.g., Crain v. Credit Protection 

Ass’n, No.3:09-CV-2353-D, 2010 WL 2976127, *2 (N.D. Tex. June 30, 2010).

Regardless of whether the Court chooses to act sua sponte and dismiss Plaintiffs’ 

declaratory judgment claims on the basis of res judicata or collateral estoppel, the Court ought to 

dismiss the remainder of Plaintiffs’ causes of action due to Plaintiffs’ failure to allege claims 

upon which relief may be granted. As established below, many of Plaintiffs’ alleged claims are 

barred by the statute of limitations. Additionally, Texas law does not allow Plaintiffs to assert 

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breach of contract or extracontractual claims against Great American in this type of case until 

after there is a judicial determination that Plaintiffs are legally entitled to recover UM/UIM 

damages. Third, Texas law does not recognize several of Plaintiffs’ claims as viable causes of 

action or otherwise allow Plaintiffs to recover under the theories of liability alleged. Therefore, 

in light of the fact Texas law precludes Plaintiffs from recovering under nearly all causes of 

action alleged against Great American, the Court should grant Great American’s Motion and 

dismiss Plaintiffs’ claims for failure allege claims under which relief may be granted. Fed. R. 

Civ. P. 12(b)(6).

A. Alleged DTPA, Texas Insurance Code, and Tort Claims Should Be Dismissed 

Due to the Expiration of the Appropriate Statute of Limitations.

A motion to dismiss may be granted on a statute of limitations defense where it is evident 

from the pleadings that the action is time-barred, and the pleadings fail to raise some basis for 

tolling. Taylor v. Bailey Tool Mfg. Co., 744 F.3d 944, 946 (5th Cir. 2014). Furthermore, under 

Texas law, when a cause of action is dismissed and later refiled, limitations are calculated to run 

from the time the cause of action accrued until the date that the claim is re-filed. Clary Corp. v. 

Smith, 949 S.W.2d 452, 459 (Tex. App.—Fort Worth 1997, writ denied) (citing, among others, 

Cunningham v. Fox, 879 S.W.2d 210, 212 (Tex. App.—Houston [14th Dist.] 1994, writ denied)). 

Because a dismissal is equivalent to a suit never having been filed, the statute of limitations is 

not tolled for any newly filed pleading. Id. Therefore, the fact that Plaintiffs previously asserted 

these claims in their first lawsuit against Great American is irrelevant to analysis of whether 

Plaintiffs current claims entitle them to relief.

Plaintiffs bring multiple tort claims against Great American arising out of an automobile 

accident during which Plaintiffs allegedly sustained personal injuries, including negligence, 

intentional infliction of emotional distress, and negligent infliction of emotional distress. 

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Plaintiffs also assert numerous DTPA/Texas Insurance Code claims against Great American

arising out of its alleged denial and/or refusal to pay UM/UIM benefits, including 

misrepresentation, “unconscionable action,” and breach of the duty of good faith and fair 

dealing. Under Texas law, the statute of limitations for all these claims is two years. See Tex. 

Civ. Prac. & Rem. Code § 16.003(a); Tex. Bus. & Comm. Code § 17.565 (both providing for a 

two-year statute of limitations). Limitations period begins to run when the plaintiff “knows or 

has reason to know of the injury which is the basis of the cause of action.” Burrell, 883 F.2d at 

418 (5th Cir. 1989).

Plaintiffs filed their Original Petition on May 14, 2020. To survive the motion to dismiss, 

Plaintiff must have pleaded facts sufficient to suggest that the actions giving rise to their claims 

for liability did not occur prior to May 14, 2018. However, by Plaintiffs’ own admission, the 

accident giving rise to Plaintiffs’ claims for personal injuries occurred on May 17, 2016. See 

Exhibit 7 at p.4. Additionally, Great American’s alleged denial/refusal to pay policy benefits

occurred at some point in time shortly after May 9, 2017. Id. at p.6. Even if the Court construes 

all facts in favor of Plaintiffs (i.e. the alleged denial or refusal occurred as late as December 

2017), all alleged conduct occurred outside the limitations window. As such, Plaintiffs are not 

entitled to relief on these claims because the deadline to file them has passed. Therefore, all of 

Plaintiff’s tort and statutory claims ought to be dismissed for failure to state a claim upon which 

relief can be granted. Fed. R. Civ. P. 12(b)(6).

B. Texas Law Does Not Allow Plaintiff to Recover for Alleged Breach of 

Contract, Misrepresentation, Unconscionable Action, or Bad Faith.

Plaintiffs allege that Great American’s alleged refusal to provide UM/UIM benefits

constitutes a breach of contract and/or violations of the Texas DTPA and Insurance Code. 

However, contractual liability for UM/UIM benefits may only be established after Plaintiffs 

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prove that they are “legally entitled” to recover from the insurance carrier because the alleged 

tortfeasor is uninsured/underinsured and the carrier then refuses to pay benefits. See Brainard v. 

Trinity Universal Ins. Co., 216 S.W.3d 809, 818 (Tex. 2006). This is because the UM/UIM 

contract conditions recovery of benefits on the insured’s legal entitlement to receive damages 

from a third-party. Unlike most first-party insurance contracts, UM/UIM insurance utilizes tort 

law to determine coverage. This is unique because, while an insured may obtain settlement with 

a tortfeasor, a jury could find no fault or award damages that do not exceed the alleged 

tortfeasor’s liability insurance. Therefore, until a jury determines liability and/or damages, 

Plaintiffs have no legal basis under Texas law to recover UM/UIM benefits from Great 

American. In lieu of a ripe claim for breach of contract, Plaintiffs cannot pursue extra-contractual 

claims against Great American under Texas law. Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 

341 (Tex. 1995).

Plaintiffs’ Original Petition states that Plaintiffs settled with the alleged tortfeasor. 

However, Plaintiffs fail to allege that there has been a final judicial determination regarding the 

alleged tortfeasor’s liability, or that there has been a final judicial determination regarding the 

amount of damages Plaintiffs allegedly suffered because of the accident. Until such final judicial

determinations occur, Plaintiffs are not legally entitled to pursue breach of contract claims 

against Great American. Brainard., 216 S.W.3d at 818. Furthermore, in lieu of any ripe breach of 

contract claims, Plaintiffs cannot pursue extra-contractual claims against Great American for 

alleged DTPA or Insurance Code violations. Stoker, 903 S.W.2d at 341. Therefore, the Court 

should dismiss Plaintiffs’ contractual and extra-contractual claims against Great American 

because Plaintiffs fail to allege facts that entitle them to recover damages.

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C. Texas Law Does Not Allow Plaintiff to Recover Damages for Alleged 

Intentional Infliction of Emotional Distress.

Under Texas law, intentional infliction of emotional distress is a “gap-filler tort” never 

intended to supplant or duplicate existing statutory or common-law remedies. Creditwatch, Inc. 

v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005). Where the gravamen of a plaintiff’s complaint is 

really another tort/contractual claim, intentional infliction of emotional distress should not be 

available. Hoffman-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). 

In this case, the gravamen of Plaintiffs’ complaint is a breach of contract claim: in other 

words, Plaintiffs allege entitlement to recover certain insurance policy benefits, and that Great 

American allegedly has denied/refused to provide them those policy benefits. Under these 

circumstances, one cannot recover mental anguish damages under Texas law for breach of 

contract. See Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 72 (Tex. 1997). In other words, 

Plaintiffs cannot assert a claim for intentional infliction of emotional distress to circumvent the 

unavailability of mental anguish damages under Texas law. Therefore, Plaintiffs cannot recover 

damages from Great American under this theory of recovery. Therefore, the Court should grant 

Great American’s Motion with respect to Plaintiffs’ claims for intentional infliction of emotional 

distress. Fed. R. Civ. P. 12(b)(6).

D. Texas Law Does Not Allow Plaintiff to Recover for Alleged Negligent 

Infliction of Emotional Distress.

Unlike some jurisdictions, Texas does not recognize a general duty for an individual or 

entity not to negligently inflict emotional distress. Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 

1993). As such, there is no independent cause of action for negligent infliction of emotional 

distress under Texas law. Id. Therefore, Plaintiff cannot recover damages arising out of alleged 

negligent infliction of emotional distress. Accordingly, the Court ought to dismiss Plaintiffs’ 

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claim for negligent infliction of emotional distress. Fed. R. Civ. P. 12(b)(6).

E. Texas Law Does Not Allow Plaintiff to Recover for Alleged Negligent Breach 

of Contract.

Under Texas law, there is no cause of action for “negligent breach of contract.” Indeed, 

Texas does not attach any tort-adjacent concepts to the elements of a breach of contract claim. 

See, e.g., Brooks v. Excellence Mortgage, Ltd., 486 S.W.3d 29, 36 (Tex. App.—San Antonio, 

pet. denied) (holding that the elements of a breach of contract claim under Texas law are (1) the 

existence of a valid contract; (2) plaintiff performed or tendered performance; (3) defendant 

breached the contract; and (4) plaintiff was damaged as a result of the breach.) Furthermore, 

under Texas law, there is no independent tort duty imposed on an insurance carrier: any common 

law tort duties stem from contractual obligations owed to the insured. Because Texas does not 

recognize a claim for “negligent breach of contract,” Plaintiffs cannot recover damages under 

such theory of recovery. Therefore, the Court ought to grant Great American’s Motion with 

respect to Plaintiffs’ claim for “negligent breach of contract.” Fed. R. Civ. P. 12(b)(6).

III.

CONCLUSION

Plaintiff’s Complaint fails to state claims against Defendant Great American Insurance 

Company upon which relief can be granted. For all the reasons discussed above, Plaintiff’s 

claims against Defendants should be dismissed with prejudice. 

WHEREFORE, PREMISES CONSIDERED, Defendant GREAT AMERICAN 

INSURANCE COMPANY requests that Plaintiff’s claims be dismissed with prejudice, and that 

Great American be awarded its costs and attorney’s fees, together with other and further relief as 

may be deemed appropriate.

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Respectfully Submitted, 

MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.

By: /s/ Christopher W. Martin

Christopher W. Martin

State Bar No. 13057620

Federal I.D. No. 13535

martin@mdjwlaw.com

808 Travis Street, Suite 1100

Houston, Texas 77002

Telephone: (713) 632-1700

Facsimile: (713) 222-0101

ATTORNEY-IN-CHARGE FOR DEFENDANT 

GREAT AMERICAN INSURANCE COMPANY

OF COUNSEL:

William Edward McMichael

State Bar No. 24107860

Federal ID No. 3256108

mcmichael@mdjwlaw.com

808 Travis Street, Suite 1100 

Houston, Texas 77002

Telephone: (713) 632-1700

Facsimile: (713) 222-0101

-andAustin M. Hagee

State Bar No. 24096152

Federal ID No. 24096152

hagee@mdjwlaw.com

1100 Northwest Loop, Suite #738

San Antonio, Texas 78213

Telephone: (210) 366-8878

Facsimile: (210) 366-0198

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CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above pleading has been forwarded 

via e-filing pursuant to Fed. R. Civ. P. 5, on June 15, 2020 to:

Jerry V. Hernandez Via Email: JerryH@davislaw.com

Jason Linnstaedter JasonL@davislaw.com

THE DAVIS LAW FIRM 

10500 Heritage Blvd. #102

San Antonio, Texas 78216

/s/ Christopher W. Martin

Christopher W. Martin

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