In Na Ins. Servs. Holding Corp. v. Hilb Group of Ind., a federal magistrate recommended that the district court grant a defendant’s motion to dismiss a breach of fiduciary duty claim. No. 4:17CV600-ALM-KPJ, 2017 U.S. Dist. LEXIS 186544 (E.D. Tex. October 23, 2017). The plaintiff alleged that it entered into a contract whereby it would sell the defendant’s insurance products. The commissions for those sales would go to the defendant, who would then send the commissions to the plaintiff, who would then distribute the commissions to the selling agents. Plaintiff alleged that at some point, the defendant failed to pay the correct amount of commissions due under the terms of the contract. Plaintiff sued and asserted the following causes of action: declaratory judgment, breach of contract, breach of fiduciary duty, and theft.

Regarding the breach of fiduciary duty claim, the magistrate stated:

The elements of a breach of fiduciary duty claim are: (1) a fiduciary relationship between the plaintiff and defendant; (2) the defendant must have breached his fiduciary duty to the plaintiff; and (3) the defendant’s breach must result in injury to the plaintiff or benefit to the defendant. Jones v. Blume, 196 S.W.3d 440, 447 (Tex. App.—Dallas 2004), pet. denied. Contractual relationships do not typically give rise to fiduciary duties among the parties to the contract. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 177 (Tex. 1997). A fiduciary or confidential relationship may arise from the circumstances of a particular case; however, to impose such a relationship in a business transaction, the relationship must exist prior to, and apart from, the agreement made the basis of the suit. Id. In the complaint, Plaintiff asserts no allegations to indicate that a prior fiduciary relationship had previously arisen between Plaintiff and Defendant, or between NALP and Defendant. Plaintiff only alleges that Defendant assumed rights under an existing contract between non-parties NALP and MAH. These bare allegations without more factual detail are insufficient to survive a motion to dismiss.

Id.  The magistrate therefore recommended dismissing breach of fiduciary duty claim.