burglary loss against Securitas for breach of contract survives motion to dismiss June 23, 2025

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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burglary loss against Securitas for breach of contract survives motion to dismiss
June 23,  2025
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burglary loss against Securitas for breach of contract survives motion to dismiss
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   Company refused to pay the claim on the ground that the owner didn't have a working burglar alarm system on date of the burglary.  Owner sued its insurance company and Securitas.  Securitas moved to dismiss. The motion was not successful.  
   What went wrong? Here's a lawsuit against Securitas that survived a motion to dismiss for breach of contract and the court left the door open to a negligence claim.  The amount of damages in dispute is not revealed in the court's decision, but I suspect it's substantial.  This lawsuit was entirely preventable had the alarm company followed my most basic advice, "do no alarm services without a proper contract".  If there was a contract here, Securitas did not raise the issue, something I will elaborate on below.
   Securitas provided burglar alarm services to a tenant; this is in Texas.  The tenant went out of business and the property owner asked Securitas to change the service to the owner, which Securitas agreed to do.  Securitas apparently failed to get its billing information or customer contact information updated, but it did recognize the owner as the customer and Securitas did service the burglar alarm when the owner requested service.  
   The owner obtained burglary insurance which its carrier required as a condition of coverage; a working burglar alarm system.  A burglary occurred.  Owner alleged that the burglar alarm didn't work, a claim that Securitas did not dispute on this motion.  The owner's insurance company, Securitas, got into this mess and so far can't seem to get out, I submit, because it did not get the owner to sign a proper alarm contract.
   The owner alleged, and Securitas agreed, that Securitas undertook to provide its alarm services pursuant to an oral agreement.  No written contract.  Mistake number one, and a mistake that Securitas defense attorneys should have realized would preclude a motion to dismiss.  Rather than rely on any written contract Securitas defense attorneys claimed that the "oral agreement" violated the Statute of Frauds [precludes enforcement of oral contract that can't be performed within one year].  The court found that the oral agreement could have lasted a month, or less than a year, and therefore did not violate the Statute of Frauds.  
   The decision by the court does not mention whether Securitas had a written contract with the tenant, its original customer.  I can only assume that Securitas defense attorneys did not raise this issue; perhaps there was no contract with the tenant.  In that case Securitas would have committed a terrible mistake twice, not just once, by providing service first to the tenant and then to the owner with no written contract.  
   If the tenant did have a written contract then Securitas defense attorneys should have claimed that it was that written contract that the owner engaged Securitas to continue the alarm services; basically an assignment of that contract.  Well, that argument was not made, so let's move on, another possible mistake.
   The owner's lawyers described Securitas' oral contractual obligation in a way that Securitas should have objected, but they didn't.  So what was Securitas' obligation:
   Plaintiff alleges that “had an oral contract with Securitas to provide a working alarm and monitoring services. (Dkt. # 7at ¶ 106.) Furthermore, Plaintiff alleges that “the only reason that the alarm would not have been working at the time of the theft would be because Securitas breached its contractual obligations by failing to timely and properly secure and protect the Premises at the time of the theft and vandalism.” (Id. at ¶ 107.) Plaintiff argues a breach of contract due to Securitas 1) allegedly failing to secure the Premises and provide a functioning alarm system and 2) allegedly failing to send paper billing to Plaintiff's Los Angeles, California address. (Id. at ¶¶ 107-109.) Therefore, Plaintiff argues Securitas is liable to the extent that Westchester relies on the Policy's Alarm Requirement to deny coverage for the Theft Claim. (Id. at ¶ 107.)
   *4 Securitas argues that Plaintiff has denied any existence of a written contract and that the alleged oral contract “to provide certain security equipment and monitoring services for the protection of the Property” is unenforceable due to Texas' statute of frauds requirement. (Dkt. # 13 at 4-5.)"
   Really?  That's all Securitas defense counsel has to say, the Statute of Frauds?  In what universe would an alarm company agree  “the only reason that the alarm would not have been working at the time of the theft would be because Securitas breached its contractual obligations by failing to timely and properly secure and protect the Premises at the time of the theft and vandalism.” The court found:
   "First, the Court finds that Plaintiff has plausibly pled a breach of contract with respect to Securitas' duty to properly secure the Premises at the time of the theft. Plaintiff alleges that Securitas breached its duty “to provide an alarm that reported to a police station ... and any failure to trigger the alarm in 2021 and 2022 was the result of Securitas' ... breach of contract with Plaintiff.” (Id. at ¶ 76.)"
   In short, the court found that the owner could lose its insurance coverage because Securitas didn't has a working alarm system at the premises and therefore Securitas could be liable for the burglary loss.
   Do no work without a Kirschenbaum Contract TM in place unless I advise you that you can do certain work pursuant to the customer's contract, which I may have to modify.  If you're not a Concierge Client you are making another mistake, a mistake you can correct in the next few minutes by joining the Concierge Program.
   Here is the entire case:
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United States District Court, W.D. Texas, Austin Division,
AUSTIN DIVISION.
HCLARE, LLC Plaintiff,
v.
WESTCHESTER SURPLUS LINES INSURANCE COMPANY, A CHUBB COMPANY, AND SECURITAS TECHNOLOGY CORPORATION Defendants.
No. 1:24-cv-00095-DAE
Filed 01/03/2025
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO DISMISS
David Alan Ezra Senior U.S. District Judge
*1 Before the Court is a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed on April 5, 2024, by Defendant Securitas Technology Corporation (“Securitas”). (Dkt. # 13.) On May 3, 2024, Plaintiff Hclare, LLC (“Plaintiff”) filed a Response. (Dkt. # 19.) On May 10, 2024, Securitas filed a Reply. (Dkt. # 20.) Upon careful consideration of the arguments asserted in the filings and the relevant caselaw, the Court DENIES IN PART and GRANTS IN PART Securitas' Motion to Dismiss. (Dkt. # 13.)
BACKGROUND
In this action, Hclare, LLC (“Plaintiff”) filed a breach of contract claim and, in the alternative, a negligence claim, against Securitas Technology Corporation (“Securitas”), its security alarm company, alleging liability for the damages sustained to Plaintiff in the form of lost insurance policy benefits. (Dkt. # 7 at ¶¶ 110, 113–14.) Secondly, Plaintiff filed suit against its insurer, Westchester Surplus Lines Company, a Chubb Company (“Westchester”), due to alleged failure “to properly and timely handle two insurance claims.” (Id. at ¶¶ 1-2.) Plaintiff alleges Westchester committed a breach of contract, among other claims, by not paying insurance policy benefits to Plaintiff after alleged theft and vandalism occurred at Plaintiff's property. (Id. at ¶¶ 1-2.) Plaintiff claims Securitas is jointly liable for its sustained damages and alleges that Securitas committed breach of contract and negligence for failing “to keep the alarm system fully operational” at the time of the theft and vandalism. (Id. at ¶ 3.) Due to the actions of Securitas, Plaintiff alleges that it is unable to recover its insurance benefits since Westchester denied it coverage, relying upon an alarm requirement in its insurance policy. (Id.)
In this order, the Court addresses the claims asserted against Securitas and considers whether to grant Securitas' Motion to Dismiss. (Dkt. # 13.) Claims by Plaintiff against Westchester related to its freeze insurance claim, which was filed following the alleged damage caused by Winter Storm Uri, are not presently before the Court.
I. Securitas' Involvement
Plaintiff is an alleged property owner. (Dkt. # 7 at ¶ 73.) During the 2020 COVID-19 Pandemic, Plaintiff's tenant, Bone Daddy's BBQ restaurant (“Tenant”), allegedly shutdown its indoor dining in its Austin flagship location (“Premises”). (Id. at ¶ 16.) On December 23, 2020, Plaintiff allegedly contacted Securitas, its security alarm company, to switch the alarm service from Tenant's name to Plaintiff's name and provided its Los Angeles, California address, Plaintiff's principal place of business. (Id. at ¶¶ 65, 67.) On January 4, 2021, Mr. Nathan Sezer, a representative of Securitas, allegedly emailed Plaintiff that the account had been separated and reassigned to Plaintiff. (Id. at ¶ 68.) Plaintiff allegedly replied that the account had not been transferred to its Los Angeles address yet. (Id.) On January 12, 2021, Plaintiff allegedly contacted Securitas to let them know that the alarm was not working. (Id. at ¶ 69.) On January 19, 2021, and February 1, 2021, Securitas allegedly sent a technician to the Premises to resolve the alarm system issue. (Id. at ¶ 72.) In the work order, Securitas' technician allegedly noted that the panels were “tested and activated.” (Id.)
On May 17, 2021, Plaintiff allegedly emailed Securitas requesting the security alarm system account be put in its name and noting that Securitas “dropped the ball” and “never switched over the account” although Tenant “terminated with me and presumably you.” (Id. at ¶ 73.) On May 20, 2021, Securitas allegedly replied that “the security alarm system would now be in the name of “HClare, LLC” at Plaintiff's Los Angeles address, and Plaintiff allegedly replied later that day to confirm the agreement of this change. (Id. at ¶ 74.)
II. Plaintiff's Theft Claim and Policy Allegations
Defendant Westchester allegedly issued an insurance policy to Plaintiff, with a policy period of August 2, 2021 to August 2, 2022 (“Policy”). (Id. at ¶ 45.) The Policy allegedly included a “Burglary and Robbery Safeguards Endorsement” (the “Alarm Requirement”) which required that “an automatic burglar alarm ... reported to an outside central station or police station.” (Id. at ¶ 46.) On or about January 5, 2022, Plaintiff allegedly filed an insurance claim (“Theft Claim”) due to alleged theft and vandalism that occurred at the Premises. (Id. at ¶ 47.)
Plaintiff's breach of contract and negligence claims against Securitas arise from the Theft Claim. (Id. at ¶¶ 107, 112.) On January 21, 2022, two weeks after Plaintiff reported the Theft Claim to its insurance company, Defendant Westchester, Defendant Securitas allegedly emailed Plaintiff an invoice. (Id. at ¶ 75.) However, the address noted on the invoice was allegedly the address of the Premises instead of Plaintiff's Los Angeles address, which Plaintiff alleges it had previously instructed Securitas to modify “on many occasions.” (Id.) Plaintiff further alleges “these notifications and Plaintiff's history with Securitas establish that the Premises had at a minimum an oral contract for Securitas to provide an alarm that reported to a police station as required under the ... Policy.” (Id. at ¶ 76.)
On April 29, 2022, Plaintiff alleges that Mr. Franco Barba, a representative of Westchester, took over the Theft Claim from Mr. Alan Moffit, another representative of Westchester who was originally assigned to handle the claim beginning in January 2022. (Id. at ¶¶ 49, 53.) Plaintiff alleges that Mr. Barba from Westchester, who originally handled Plaintiff's freeze claim, intentionally took over the Theft Claim to “harass” Plaintiff again.1 (Id. at ¶¶ 53–54.) On May 13, 2022, Plaintiff allegedly emailed Mr. Barba from Westchester claiming that the Theft Claim “was being mishandled because of the delays in payment [by Westchester] despite coverage existing under the ... Policy.” (Id. at ¶ 55.) On May 16, 2022, Mr. Barba from Westchester allegedly sent a letter to Plaintiff expressing a purported reservation of rights, citing the Alarm Requirement as the basis to “deny coverage for the Theft Claim.” (Id. at ¶ 56.) On July 8, 2022, Plaintiff alleges that Mr. Barba, on behalf of Westchester, sent a Proof of Loss to Plaintiff. (Id. at ¶ 57.) Plaintiff notes this Proof of Loss was allegedly sent “more than six months after Plaintiff reported the Theft Claim.” (Id.) On September 7, 2022, Plaintiff, allegedly frustrated with Westchester's management of the Theft Claim and the lack of insurance benefits payment, informed Westchester that Plaintiff had retained insurance coverage counsel. (Id. at ¶ 59.)
*3 Plaintiff alleges that its counsel requested billing information and documentation of a written contract from Securitas, however Securitas “refused to provide” anything. (Id. at ¶ 77.) On February 2, 2023, Plaintiff alleges that an Examination Under Oath (“EUO”) was conducted by Defendant Westchester's counsel of Mr. James “Jim” Harris, a representative of Plaintiff. (Id. at ¶ 61.) Following this EUO, Westchester allegedly requested that Mr. Harris provide all of Securitas' billing records and other records related to the Premises. (Id. at ¶ 78.) Plaintiff alleges that Securitas “never provided any documentation” despite numerous requests from both Westchester and Plaintiff's counsel. (Id. at ¶¶ 78-79.) Plaintiff alleges that Westchester has not provided any coverage for the Theft Claim under the Policy as of the time of filing the First Amended Complaint on March 8, 2024. (Id. at ¶ 64.)
LEGAL STANDARD
Rule 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim upon which relief can be granted.” When analyzing a motion to dismiss for failure to state a claim, the Court “accept[s] ‘all well pleaded facts as true, viewing them in the light most favorable to the plaintiff.’ ” United States ex rel. Vavra v. Kellogg Brown & Root, Inc., 727 F.3d 343, 346 (5th Cir. 2013) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). The Court “must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011) (quoting Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). That said, a court reviewing a complaint is not “bound to accept as true a legal conclusion couched as a factual allegation.” Id.
DISCUSSION
Plaintiff has alleged the following claims against Securitas: (1) breach of contract and, in the alternative, (2) negligence. The Court will analyze each claim in turn.
I. Breach of Contract
Pursuant to the Erie doctrine, the Court must apply “the substantive law of the forum state in diversity of citizenship actions.” Lockwood Corp. v. Black, 669 F.2d 324, 327 (5th Cir. 1982). Therefore, in this case, the Court looks to the Supreme Court of Texas, which has held, “Breach of contract requires pleading and proof that (1) a valid contract exists; (2) the plaintiff performed or tendered performance as contractually required; (3) the defendant breached the contract by failing to perform or tender performance as contractually required; and (4) the plaintiff sustained damages due to the breach.” Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 890 (Tex. 2019). The Court will analyze each element of the breach of contract claim.
A. Valid Oral Contract
Plaintiff alleges that “had an oral contract with Securitas to provide a working alarm and monitoring services. (Dkt. # 7at ¶ 106.) Furthermore, Plaintiff alleges that “the only reason that the alarm would not have been working at the time of the theft would be because Securitas breached its contractual obligations by failing to timely and properly secure and protect the Premises at the time of the theft and vandalism.” (Id. at ¶ 107.) Plaintiff argues a breach of contract due to Securitas 1) allegedly failing to secure the Premises and provide a functioning alarm system and 2) allegedly failing to send paper billing to Plaintiff's Los Angeles, California address. (Id. at ¶¶ 107-109.) Therefore, Plaintiff argues Securitas is liable to the extent that Westchester relies on the Policy's Alarm Requirement to deny coverage for the Theft Claim. (Id. at ¶ 107.)
*4 Securitas argues that Plaintiff has denied any existence of a written contract and that the alleged oral contract “to provide certain security equipment and monitoring services for the protection of the Property” is unenforceable due to Texas' statute of frauds requirement. (Dkt. # 13 at 4-5.)
The Court must first determine whether Plaintiff has adequately pled the existence of an enforceable contract. The Court draws a reasonable inference that on December 23, 2020, an alleged offer was made when Plaintiff emailed Securitas asking for the security alarm system account to be switched from Tenant to Plaintiff's name. (Dkt. # 7 at ¶ 65.) Next, the Court reasonably infers that on January 4, 2021, Securitas allegedly accepted this offer to provide security alarm services in exchange for “pay[ing] all billings” when Securitas allegedly reassigned the security alarm system account from Tenant to Plaintiff. (Id. at ¶¶ 67–68.) Plaintiff's allegation that it “had an oral contract with Securitas to provide a working alarm and monitoring services” is sufficient at this stage. (Id. at ¶¶ 76, 106.) Thus, the Court finds that Plaintiff has pled an oral contract. The Court will next analyze whether the statute of frauds applies to determine whether the oral contract is enforceable.
1. Statute of Frauds
Securitas suggests the following timeline: On January 4, 2021, the alleged oral contract was formed when Securitas confirmed via email that the account was separated and reassigned to Plaintiff. (Dkt. # 13 at 4-5.) On January 5, 2022, Plaintiff filed an insurance claim with Westchester following alleged theft and vandalism that occurred at the Premises. (Id.) Securitas argues that by implication, Plaintiff's oral contract allegedly “could not be performed within one year from its making” since the date the theft and vandalism was allegedly reported was over one year (by a single day). (Id.) Therefore, Securitas argues that under Texas' statute of frauds, a written contract was required. (Id.)
Plaintiff argues in response that “there are no allegations in the FAC [First Amended Complaint] that the parties' agreement was for more than one year.” (Dkt. # 19 at 4.) Moreover, Plaintiff alleges that “agreements routinely last for more than a year without implicating the statute of frauds” and in this case “it must be impossible for the contract to be performed in a year ... because the contract was for an indefinite term.” (Id. at 5.) In sum, Plaintiff argues, “just because a contract has been in effect for more than a year [does not mean] ... it must be in writing.” (Id.)
The Fifth Circuit in analyzing a breach of contract action under Texas law has articulated:
“when no time for performance has been specified in the agreement, a reasonable time will be implied on the basis of all circumstances surrounding adoption of the agreement, the situation of the parties, and the subject matter of the agreement.” Mercer v. C. A. Roberts Co., 570 F.2d 1232, 1236 (5th Cir. 1978).
Chase v. Hodge, 95 F.4th 223, 228 (5th Cir. 2024). Plaintiff argues, and the Court agrees, that alleged contract in this case—an agreement for security services on a monthly basis—could reasonably be performed within a year and “could have ended at any time when the building was sold (which it ultimately was), leased to another tenant, destroyed by fire or storm, etc.” (Dkt. # 19 at 9.)
*5 Thus, the alleged indefinite agreement for monthly security services does not fall subject to the statute of frauds, as it is possible that the alleged agreement could have been performed within one year. See Chase v. Hodge, 95 F. 4th 223, 228 (5th Cir. 2024) (“if the terms of an agreement render it impossible to be completed within one year, the agreement is unenforceable without a signed writing.”); (Dkt. # 19 at 9.) As such, Plaintiff has plausibly pled a valid and enforceable oral contract. The Court will next analyze whether Plaintiff performed.
B. Plaintiff Performance
The Court finds that Plaintiff has alleged performance or at least tendered performance under the oral contract. Securitas does not dispute whether Plaintiff has alleged performance of its contractual obligations. (Dkts. ## 13; 20.) Based on Securitas allegedly confirming Plaintiff's account reassignment in both January and again in May 2021, Securitas allegedly sending a technician twice to the Premises in January and February 2021, and Securitas allegedly emailing Plaintiff an invoice in January 2022, the Court draws the reasonable inference that Securitas would not perform its contractual duties if Plaintiff did not perform or at least tender its performance under the oral contract. (Dkt. # 7 at ¶¶ 68, 72, 74-75.) Therefore, the Court finds that Plaintiff has plausibly alleged performance under the oral contract and will next analyze whether Plaintiff has plausibly alleged a breach.
C. Breach
Plaintiff has pled two separate breaches. First, Plaintiff alleges that Securitas breached its duty to “timely and properly secure and protect the Premises at the time of the theft and vandalism ... on or about January 5, 2022” and “to provide a working security system.” (Id. at ¶¶ 107-108.) Secondly, Plaintiff alleges that Securitas “failed to send paper billing to Los Angeles, California,” Plaintiff's principal place of business. (Id. at ¶¶ 67, 109.)
First, the Court finds that Plaintiff has plausibly pled a breach of contract with respect to Securitas' duty to properly secure the Premises at the time of the theft. Plaintiff alleges that Securitas breached its duty “to provide an alarm that reported to a police station ... and any failure to trigger the alarm in 2021 and 2022 was the result of Securitas' ... breach of contract with Plaintiff.” (Id. at ¶ 76.)
The Court additionally finds that Plaintiff has plausibly pled a breach of contract with respect to Securitas' duty to send paper billing to the correct address. Plaintiff alleges that Securitas on many occasions “failed to send paper billing” to Plaintiff's Los Angeles, California address. (Id. at ¶ 109.) Plaintiff alleges in its Complaint four times—on December 23, 2020, January 4, 2021, May 17, 2021, and January 21, 2022—either that it requested to switch the security alarm system account from Tenant's address to Plaintiff's address, or that Tenant's address remained on the invoice. (Id. at ¶¶ 65, 68, 73, 75.)
Accepting all well pleaded facts as true, the Court finds Plaintiff has plausibly alleged breach with respect to both contractual duties, and will next analyze whether Plaintiff has plausibly pled damages. United States ex rel. Vavra v. Kellogg Brown & Root, Inc., 727 F.3d 343, 346 (5th Cir. 2013) (citation omitted).
D. Damages
The Court finds Plaintiff has plausibly pled how it “sustained damages due to the breach” for the first duty related to securing the Premises through a functioning alarm system. Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 890 (Tex. 2019). Based on Securitas' alleged failure to “provide a working security system,” Plaintiff alleges it suffered damages in the form of lost insurance policy benefits, because Defendant Westchester, Plaintiff's insurance company, allegedly denied insurance coverage citing the Policy's Alarm Requirement. (Id. at ¶¶ 3, 108.)
*6 However, the Court finds that Plaintiff has not plausibly pled how it sustained damages due to the second breach related to sending paper billing to the incorrect address. Plaintiff fails to connect how Securitas' alleged breach in not sending paper billing to Plaintiff's Los Angeles address specifically resulted in injury. (Id. at ¶¶ 109-110.) Plaintiff alleges that “any lack of service [on the date of the alleged theft] would be due to failures by Securitas to keep the alarm system fully operational and functioning.” (Id. at ¶ 3.) However, Plaintiff does not specifically state how the paper billing allegedly sent to the incorrect address caused the alarm failure on the date of the alleged theft. (Id. at ¶ 76.)
In sum, the Court finds Plaintiff has plausibly pled all elements of a breach of contract claim with respect to the first breach related to securing the Premises through a functioning alarm system. (Id. at ¶¶ 107-108.) However, the Court finds Plaintiff has not plausibly pled a breach of contract claim with respect to the second breach related to sending paper billing. (Id. at ¶¶ 108-110.)
The Court DENIES Securitas' Motion to Dismiss as to Plaintiff's breach of contract claim arising from the alleged breach in securing the Premises through a functioning alarm system. However, the Court GRANTS Securitas' Motion to Dismiss as to Plaintiff's breach of contract claim arising from the alleged failure to send paper billing to the correct address and DISMISSES this claim WITHOUT PREJUDICE. The Court will next analyze Plaintiff's negligence claim.
II. Negligence
Plaintiff argues in the alternative, that Securitas allegedly “promised to keep the Premises safe and secure by providing a security system that complied with the ... Policy's requirements.” (Dkt. # 7 at ¶ 112.) Plaintiff alleges that Securitas breached its duties by failing to send timely invoices “to Plaintiff to the address instructed by Plaintiff.” (Id. at ¶¶ 112-113.)
Securitas argues that Plaintiff's alleged damages should be barred by the economic loss rule because Plaintiff's alleged negligence claim, “sounds solely in contract as opposed to tort” and that Plaintiff “failed to allege injury arising independent from its claim for breach of contract.” (Dkt. # 20 at 7–8.)
The Court agrees with Securitas. The Supreme Court of Texas has held that, “when the injury is only the economic loss to the subject of a contract itself, the action sounds in contract alone.” Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986). Plaintiff concedes that “pleading in the alternative does not allow a party to recover on its inconsistent theories, resulting in a double recovery.” (Dkt. # 19 at 11.) Because the Court has found an alleged oral contract and Plaintiff's loss of insurance policy benefits are purely economic in nature, the Court, therefore, GRANTS Securitas' Motion to Dismiss as to Plaintiff's negligence claim and DISMISSES this claim WITHOUT PREJUDICE.
CONCLUSION
For the foregoing reasons, the Court DENIES IN PART and GRANTS IN PART Defendant Securitas' Motion to Dismiss. The Court DENIES Securitas' Motion to Dismiss as to Plaintiff's breach of contract claim arising from the alleged breach in securing the Premises through a functioning alarm system. However, the Court GRANTS Securitas' Motion to Dismiss as to Plaintiff's breach of contract claim arising from the failure to send paper billing to the correct address. Lastly, the Court GRANTS Securitas' Motion to Dismiss as to Plaintiff's negligence claim.
The claims dismissed shall be WITHOUT PREJUDICE. Plaintiff is granted 30 days to file an amended complaint to address the deficiencies in its Complaint.
IT IS SO ORDERED.
DATED: Austin, Texas, January 3, 2025.
All Citations
Slip Copy, 2025 WL 1569562
Footnotes
1
As noted above, the freeze claim was filed after alleged damage to Plaintiff's property from Winter Storm Uri and is related to Plaintiff's alleged breach of contract claim against Westchester. The freeze claim is a separate and additional claim to the Theft Claim and is not presently before the Court.
End of Document    © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com