Wooten v. Allstate Vehicle and Property Insurance Company et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CAROLYN WOOTEN,
Plaintiff,
v.
ALLSTATE VEHICLE AND
PROPERTY INSURANCE COMPANY;
NERISSA BERRY INSURANCE
AGENCY, LLC; and NERISSA BERRY,
an individual,
Defendants.
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Case No. CIV-25-680-D
(Remanded 	to 	Oklahoma
County District Court, Case
No. CJ-2025-2882)
ORDER
Before the Court is Plaintiff’s Motion to Remand [Doc. No. 14]. Defendant Allstate
Vehicle and Property Insurance Company filed a response [Doc. Nos. 15, 19], 1 to which
Plaintiff replied [Doc. No. 16]. The matter is fully briefed and at issue.
BACKGROUND
Plaintiff owns property located in Oklahoma County, which was insured under an
Allstate policy. Plaintiff purchased the insurance policy through Nerissa Berry’s Insurance
Agency, LLC (NBIA). The property was damaged by a storm on or about April 27, 2024.
Plaintiff filed this action in state court on May 2, 2025, alleging that Allstate wrongfully
denied Plaintiff’s insurance claim for the damage. In addition to her claims against Allstate,
1 Defendant filed Defendant Allstate Vehicle and Property Insurance Company’s Amended
Objection to Plaintiff’s Motion to Remand [Doc. No. 19] pursuant to the Court’s order
granting Defendant Allstate Vehicle and Property Insurance Company’s Motion to Amend
its Objection to Plaintiff’s Motion to Remand to Correct Scrivener’s Error [Doc. No. 17].
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Plaintiff asserted a claim against Nerissa Berry for negligent procurement of insurance, and
a 	claim 	against 	Nerissa 	Berry 	and 	NBIA 	for 	constructive 	fraud 	and 	negligent
misrepresentation.
Allstate timely removed the case to this Court on June 18, 2025. In its notice of
removal, Allstate alleges that complete diversity exists under 28 U.S.C. § 1332, and the
amount in controversy exceeds the threshold for diversity jurisdiction [Doc. No. 1].
Although Nerissa Berry and NBIA are non-diverse parties, Allstate contends that Nerissa
Berry and NBIA were fraudulently joined by Plaintiff to defeat diversity jurisdiction.
On July 18, 2025, Plaintiff filed the present motion to remand, arguing that Allstate
cannot meet its “heavy burden” to show fraudulent joinder.
STANDARD OF DECISION
Subject matter jurisdiction over this case turns on the issue of fraudulent joinder.
“To establish fraudulent joinder, the removing party must demonstrate either: (1) actual
fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a
cause of action against the non-diverse party in state court.” Dutcher v. Matheson, 733 F.3d
980, 988 (10th Cir. 2013) (internal quotation omitted). As the removing party, Allstate
must establish that federal jurisdiction exists. See McPhail v. Deere & Co., 529 F.3d 947,
955 (10th Cir. 2008).
“Removal statutes are to be strictly construed, and all doubts are to be resolved
against removal.” Fajen v. Found. Rsrv. Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982)
(internal citation omitted). To satisfy the “heavy burden” on the party asserting fraudulent
joinder, Allstate must show under the “actual fraud” prong that Plaintiff essentially “lied
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in the pleadings.” Sanelli v. Farmers Ins. Co., No. CIV-23-263-SLP, 2023 WL 3775177,
at *2 (W.D. Okla. June 2, 2023) (quotation omitted). Under the “inability to establish a
cause of action” prong, Allstate must show that there is no possibility that Plaintiff would
be able to establish a cause of action against the purportedly fraudulently joined party in
state court. See Montano v. Allstate Indem., No. 99-2225, 2000 WL 525592, at *1 (10th
Cir. Apr. 14, 2000) (unpublished)2 (quotations and citation omitted); Brazell v. Waite, 525
F. App’x 878, 881 (10th Cir. 2013) (citation omitted) (“[T]he removing party must show
that the plaintiff has ‘no cause of action’ against the fraudulently joined defendant.”).
“[U]pon specific allegations of fraudulent joinder the court may pierce the
pleadings, . . . consider the entire record, and determine the basis of joinder by any means
available.” Dodd v. Fawcett Publ’ns, Inc., 329 F.2d 82, 85 (10th Cir. 1964) (citations
omitted); see also Smoot v. Chicago, Rock Island & Pac. R.R. Co., 378 F.2d 879, 881-82
(10th Cir. 1967). The nonliability of a defendant alleged to have been fraudulently joined
must be “established with complete certainty.” Smoot, 378 F.2d at 882; Dodd, 329 F.2d at
85. “This standard is more exacting than that for dismissing a claim under FED. R. C IV. P.
12(b)(6).” Montano, 2000 WL 525592, at *2. “[A]ll factual and legal issues must be
resolved in favor of the plaintiff.” Dutcher, 733 F.3d at 988.
PLAINTIFF’S ALLEGATIONS
On April 27, 2024, Plaintiff’s property was damaged in a storm [Doc. No. 1-6, Pet.,
¶¶ 9, 14(a)]. Plaintiff timely filed an insurance claim for the damage. Id. ¶ 14(c). At all
2 Unpublished opinions are cited pursuant to F ED. R. A PP. P. 32.1(a) and 10th Cir. R.
32.1(A).
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relevant times, Plaintiff’s property was covered by a policy with Allstate. Id. ¶ 4. The
offices of Nerissa Berry facilitated the sale of the Allstate policy to Plaintiff. Id. ¶ 2.
When Plaintiff was seeking to purchase insurance, Plaintiff contacted Nerissa Berry
to obtain full replacement cost homeowners insurance coverage from Allstate. Id. ¶ 51(a).
Plaintiff requested that Nerissa Berry obtain a replacement cost policy that would provide
coverage for the insured property in the event of a loss. Id. Nerissa Berry “independently
established, calculated, and set the [p]olicy’s replacement cost value and resultant policy
coverage limits.” Id. ¶ 51(c).
Prior to issuing the policy, neither Allstate nor Nerissa Berry inspected the property
or procured a third-party inspection. Id. ¶ 52(a). Nerissa Berry did not verify the condition
of the insured property; did not disclose to Plaintiff that the insured property was ineligible
for the requested replacement cost coverage for any reason; did not advise Plaintiff that the
insured property had any defect, pre-existing damage, or other conditions that would
exclude it under Allstate’s underwriting rules from replacement cost coverage; and did not
disclose to Plaintiff that the replacement cost value calculated for the property did not in
fact represent 100% insurance to value.
Following Plaintiff’s submission of her insurance claim, Allstate sent an adjuster to
the property to conduct an inspection. Id. ¶ 14(d). Allstate prepared an estimate of
$3,392.28. Id. ¶ 14(e). Accordingly, “Allstate issued a letter to Plaintiff denying her claim
on the basis that the damage it assessed did not exceed the [p]olicy deductible.” Id. ¶ 14(g).
Plaintiff requested that Allstate reconsider its assessment, which it did, but the reconsidered
estimate “essentially mirrored Allstate’s first estimate.” Id. ¶ 14(m). Plaintiff then hired her
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own roofing contractor to inspect the insured property; he found extensive hail and wind
damage to the property. Id. ¶ 14(n). The contractor submitted the evidence to Allstate and
they prepared a third estimate which was also identical to the initial estimate. Id. ¶ 14(o).
Plaintiff convinced Allstate to prepare one final estimate. Id. ¶ 14(q). Allstate did so, but
this estimate was also identical to the previous three estimates. Id. ¶ 14(r).
Allstate engages in a “systematic and pervasive [s]cheme” whereby Nerissa Berry
“advanced the [s]cheme through material misrepresentations and/or omissions regarding
the condition of the [i]nsured [p]roperty.” Id. ¶ 10. Allstate utilizes agents and, in this case,
Nerissa Berry, to represent to the insured that “the property to be insured meets Allstate’s
underwriting requirements for the coverage bound” and “the replacement cost value (and
resultant coverage limit) Allstate’s agent calculated for the insured is accurate.” Id. ¶ 13(a).
Allstate’s agent then “wholly fails to disclose the [s]cheme to the insured,” to include
“using an array of (i) undisclosed definitions and coverage limitations that are entirely
absent from the four corners of the policy, and (ii) bad faith claims handling tactics that are
rigged against the insured.” Id. ¶ 13(b), (f).
For her negligent procurement claim against Nerissa Berry, Plaintiff alleges that
Nerissa Berry knowingly procured and renewed: illusory coverage; coverage deviating
substantially and materially from that which Plaintiff requested; a policy that did not
accurately reflect the replacement cost of the insured property; and a policy that, as written,
did not provide coverage to fully restore the insured property back to its pre-loss condition.
Id. ¶ 56. Plaintiff further alleges in part that Nerissa Berry failed to: follow and abide by
Allstate’s underwriting policies/guidelines; perform all necessary inspections of the
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insured property; confirm the accuracy of the pre-filled information provided by Allstate’s
replacement cost estimating tool; disclose pre-existing damage to the insured property;
verify whether its inherent representation to Allstate and Plaintiff that the insured property
(including the roof) was in good condition was accurate; procure and renew a policy that
provided the requested coverage for all fortuitous losses; and disclose all material facts of
the scheme as outlined within the petition. Id. ¶ 57.
DISCUSSION
I. 	Inability to State Cause of Action—Negligent Procurement
Under Oklahoma law, “[a]n agent has the duty to act in good faith and use
reasonable care, skill[,] and diligence in the procurement of insurance and an agent is liable
to the insured if, by the agent’s fault, insurance is not procured as promised and the insured
suffers a loss.” Kutz v. State Farm Fire & Cas. Co., 2008 OK CIV APP 60, ¶ 16, 189 P.3d
740, 744-45 (citation omitted). To that end, agents must “offer coverage mandated by law
and coverage for needs that are disclosed by the insureds.” Rotan v. Farmers Ins. Grp. of
Cos., Inc., 2004 OK CIV APP 11, ¶ 3, 83 P.3d 894, 895.
Upon careful consideration of the record, the Court finds that Allstate has not met
its heavy burden to show—with complete certainty—that Plaintiff cannot state a negligent
procurement claim against Nerissa Berry in state court. 3 See Oliver v. State Farm Fire &
3 Given this determination, the Court need not address Plaintiff’s constructive fraud claim
against Nerissa Berry and NBIA. See Nerad v. AstraZeneca Pharms., Inc., 203 F. App’x
911, 913 (10th Cir. 2006) (unpublished) (citation omitted) (explaining that a fraudulent
joinder analysis turns on “whether there is a reasonable basis to believe the plaintiff might
succeed in at least one claim against the non-diverse defendant”).
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Cas. Co., 765 F.Supp.3d 1244, 1250-51 (W.D. Okla. 2025) (remanding case involving
negligent procurement claim where the plaintiff alleged in part that “State Farm’s denial
was contrary to the [agents’] representations that all underwriting requirements had been
met and that there were no preexisting issues with the roof that would limit or restrict
coverage”); see also Ross v. State Farm Fire & Cas. Co., No. CIV-23-189-JD, 2024 WL
1092540, at *2-3 (W.D. Okla. Mar. 13, 2024) (remanding case involving negligent
procurement claim where the insurance agent allegedly told the insured that their home
was in good condition, without preexisting issues, despite State Farm later denying the
insured’s claim on that basis); see also Kyger v. State Farm Fire & Cas. Co., 649 F.Supp.3d
1200, 1206 (W.D. Okla. 2022) (remanding negligent procurement claim where the plaintiff
alleged that “she requested from [her agent] ‘full replacement cost coverage for her roof’
which was not procured as promised, . . . that [the agent] represented that ‘there was nothing
about the condition of the roof that would preclude full replacement,’” and that the agent’s
representation was “inconsistent with State Farm’s denial of her claim because the hail
damage ‘[did] not penetrate the shingle mat’”).
Allstate cites to this Court’s decision, Rain Drop Found., Inc. v. State Farm Fire &
Casualty Co., No. CIV-24-1101-D, 2025 WL 582562 (W.D. Okla. Feb. 21, 2025). In Rain
Drop, the Court in part based its denial of remand on actual fraud in the plaintiff’s
allegations. Specifically, the plaintiff alleged that its agent represented that damaged
shingles would be replaced in conformance with the manufacturing specifications and
“further 	explained 	this 	was 	true 	because 	the 	[p]olicy 	term, 	‘similar 	construction’
guaranteed replacement with identical or near identical equivalents of quality.” Id. at *1.
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However, the term “similar construction” did not appear in the plaintiff’s policy, “lending
credence to the possibility that there [was] no good faith basis by which to allege” that the
agent had represented or explained “similar construction.” Id. at 3. In further finding that
the 	agent 	could 	not 	be 	liable 	for 	negligent 	procurement 	of 	insurance, 	the 	Court
distinguished Rain Drop from other cases in which it was alleged that 1) the insurer denied
the claim in part due to pre-existing damage; and 2) the “insurance agent had allegedly
underwritten the . . . polic[y] and may have, through negligence or constructive fraud,
failed to communicate the consequences of the preexisting damage.” Id. at *4.4
Rather, this case is more like the Court’s decision in Pruitt v. State Farm Fire &
Casualty Co., No. CIV-25-43-D, 2025 WL 1030353 (W.D. Okla. Apr. 7, 2025). In Pruitt,
the Court granted the plaintiff’s motion to remand and based its determination largely on
the plaintiff’s assertion that State Farm’s denial was in reliance on pre-existing damage and
the defendant’s negligent performance of his procurement duties. Id. at *4.
Plaintiff contends that pre-existing damage was the basis for Allstate’s policy denial
and, further, that Nerissa Berry was negligent in performing her procurement duties. Thus,
the Court finds that this case is less analogous to Rain Drop, and more analogous to Pruitt,
4 This case is also distinguishable from the Court’s recent order in Stone v. State Farm Fire
& Casualty Co., No. CIV-25-7-D, 2025 WL 3090772 (W.D. Okla. Aug. 20, 2025), as the
Court based its denial of remand, in part, on the plaintiff’s misrepresentation that State
Farm failed to inspect the property in the underwriting process, when it did inspect the
property. Id. at 6-7. Additionally, the Court based its denial of remand, in part, on the
plaintiff’s misrepresentation that the defendants made fraudulent representations when the
policy was renewed, even though the policy was automatically renewed, and one of the
defendants was not involved in any of the relevant renewals. Id. at 9. Such is not the case
here.
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Kyger, and Oliver, cited above. Upon careful consideration of Plaintiff’s allegations, and
construing fact issues in favor of Plaintiff, the Court finds Allstate has failed to show with
complete certainty that Plaintiff cannot establish a negligent procurement claim against
Nerissa Berry in state court. Accordingly, Allstate has not met its “heavy burden” to
establish fraudulent joinder.
II. 	Actual Fraud in the Pleading of Jurisdictional Facts
As stated above, to show actual fraud in the pleading of jurisdictional facts
“basically requires a showing that plaintiff lied in the pleadings.” Sanelli, 2023 WL
3775177, at *2 (quotation omitted). In its notice of removal, Allstate contends that Plaintiff
has engaged in fraud in the pleading of jurisdictional facts. In support, Allstate primarily
argues that this case is similar to several others filed against other insurers based on similar
underwriting failures, and that this is indicative of fraud.
As Allstate is likely aware, several judges in this district have found that allegations
of cookie-cutter complaints are, alone, insufficient to establish fraudulent joinder. See
Norman v. State Farm Fire & Cas. Co., No. CIV-24-1132-R, 2025 WL 342871, at *4 (W.D.
Okla. Jan. 30, 2025) (“[T]he Court is not persuaded that the similarity in the allegations or
the number of cases filed by [p]laintiffs’ counsel is necessarily suggestive of fraud in this
action. Moreover, as [p]laintiffs note, the [p]etition alleges that the agents are an essential
component of State Farm’s scheme to wrongfully deny claims, and some similarity in
statements or conduct is therefore conceivable.”); Stacy v. State Farm Fire & Cas. Co., et
al., No. CIV-22-883-PRW, 2023 WL 11915451, at * 2 (W.D. Okla. Dec. 29, 2023) (granting
remand in the face of an “apparent pattern of ‘cookie-cutter’ petitions”); Rain Drop Found.,
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Inc., 2025 WL 582562, at *5 (“The Court is not persuaded that the sheer quantity of similar
claims alleged against insurance agents is enough to satisfy the high burden necessary to
prove fraudulent joinder.”); Martin v. Allstate Vehicle and Prop., Ins. Co., No. CIV-23-739-
SLP, 2024 WL 3510301, at *2 (W.D. Okla. July 23, 2024) (“[T]his Court, and multiple
other federal district courts within the state of Oklahoma have rejected claims of fraudulent
joinder on substantially similar allegations made in support of virtually identical claims for
relief.”).
Upon consideration, the Court finds that Allstate has not met its high burden to show
actual fraud in the pleading of jurisdictional facts based on the growing number of similar
allegations against Allstate and other insurers. Accordingly, the Court finds that Allstate
has insufficiently demonstrated actual fraud in the pleading of jurisdictional facts for
purposes of fraudulent joinder.
CONCLUSION
For the reasons stated herein, the Court finds that Allstate has not established
fraudulent joinder, and this Court lacks subject matter jurisdiction. IT IS THEREFORE
ORDERED that Plaintiff’s Motion to Remand [Doc. No. 14] is GRANTED, and the case
is REMANDED to the District Court of Oklahoma County, Oklahoma. The Clerk of Court
shall mail a certified copy of this Order to the clerk of the District Court of Oklahoma
County. Each side shall bear their own attorney’s fees, costs, and expenses incurred as a
result of the removal and remand.
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IT IS SO ORDERED this 27 th day of January, 2026.
TIMOTHY D. DeGIUSTI
Chief United States District Judge
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