Claims Denial

Insurance Claims & Experts

October 22, 2022 | Mark S. Humphreys

Insurance claim denial cases will sometimes need an expert. When this happens, an insurance lawyer needs to know what is required of an expert and how the courts look at experts. This issue is discussed in a 2022 opinion from the Western District of Texas, San Antonio Division. The opinion is styled, Laura Atkinson v. Meridian Security Insurance Company.

This case is an insurance dispute regarding a homeowners insurance policy. The policy holder, Plaintiff Atkinson, is alleged to have suffered hailstorm damage and her insurer is Defendant, Meridian. Plaintiff named an expert to testify about the improper claims handling by Meridian and Meridian moved to strike the expert.

Meridian first moves to strike the designation and testimony of Plaintiff’s retained expert Gary Johnson, arguing that Johnson’s opinions were not properly disclosed and fail to meet the reliability standards of Federal Rule of Evidence 702.

Lawyers Who Sue Insurance Companies

October 17, 2022 | Mark S. Humphreys

Lawyers who sue insurance companies need to understand the various legal ways cases end up in State Court or Federal Court. As has been stated here many times, the insurance companies prefer Federal Court as a play ground for lawsuits. The reasons are many but what is important to lawyers who sue insurance companies is knowing ways to keep a case out of Federal Court if the case they are handling is one they would prefer to keep in State Court.

A 2022 opinion from the Northern District of Texas, Fort Worth Division, is a case worth reading. The opinion is styled, Casey and Jared Davis v. Allstate Vehicle And Property Insurance Company and Phillip Butler.

Plaintiffs were insured by Allstate and had a homeowners claim. The claim was properly submitted and the adjuster assigned to the claim is Butler. Plaintiffs sued Allstate and Butler alleging various violations of the Texas Insurance Code. Allstate removed the case to Federal Court asserting that they accepted responsibility for Butler under Texas Insurance Code 542A. The election of responsibility for Butler was filed in State Court but was removed prior to the State Court ruling on the filing.

Is It Really Insurance – Insurance Denial Attorneys

October 15, 2022 | Mark S. Humphreys

Insurance Lawyers, here’s one you probably never heard about. This is a 2022,case from the Northern District of Texas, Dallas Division. The opinion is styled, Emmy Von Der Ahe and Thomas Von Der Ahe v. 1-880-Pack-Rat, LLC and Zippy Shell Inc. This case involves allegations that the moving company damaged goods.

While many people will think this is about insurance, it is not, but it’s importance is realizing that it is not or the lawyer can end up making a big mistake. Here, the Ahes had purchased a “contents-protection policy insurance contract” at the time of the move.

The Ahes sued the Defendants in an amended complaint asserting a claim under the Carmack Amendment and violations of the DTPA, violations of the Texas Insurance Code, and breach of the duty of good faith and fair dealing. The Ahes assert the claim is in two phases, 10 the storage phase of the relationship, and 2) under the “contents-protection policy insurance contract.”

Texas Prompt Payment Of Claims Act

September 24, 2022 | Mark S. Humphreys

Insurance Claims, when not timely paid are subject to the Texas Prompt Payment of Claims Act. So the question becomes when is a claim not timely paid?

A 2022, opinion from the Western District of Texas, San Antonio Division, is worth reading. The opinion is styled, John H. Winston III v. State Farm Lloyds.

This case arises from a dispute between Dr. Winston and his homeowner’s insurance carrier, State Farm. In April 2019, Dr. Winston filed a claim with State Farm for hailstorm damage to his home. State Farm paid Dr. Winston based on its inspector’s assessment of the damage. Dr. Winston was dissatisfied with the payment because the parties disagree about the extent of the damage—specifically, Dr. Winston contends that his roof needs to be replaced, while State Farm believes it could be repaired. When the parties reached an impasse, Dr. Winston invoked an appraisal clause in the parties’ contract to determine the actual amount of loss. The appraisal was conducted in October 2019, finding that $91,138.71 was necessary to replace the roof. State Farm continued to maintain that the roof did not need to be replaced. As such, State Farm reduced the appraisal award by $91,138.71 and paid Dr. Winston the amount it estimated was necessary to repair the roof, plus some additional funds for other damages to the home. All told, State Farm paid Dr. Winston $28,193.74 for hail damage. At issue in the case was whether State Farm breached the parties’ contract by refusing to pay $91,138.71 to replace Dr. Winston’s roof. The case went to trial and a jury found that State Farm had breached the contract.

Insurance Policies And The Statute Of Limitations

September 12, 2022 | Mark S. Humphreys

What insurance attorney hasn’t had someone call after the statute of limitations has already run on the case?

The Dallas Court of Appeals issued an opinion in July 2022, that deals with statute of limitations issues. The opinion is styled, Knox Mediterranean Foods, Inc., v. Amtrust Financial Services.

Knox has incurred a burglary loss on June 16, 2016, and submitted a loss claim to its insurance company, Amtrust. Amtrust paid part of the claim March 15, 2017, along with a letter requesting further information. On June 13, 2017, Amtrust sent a follow up letter that stated in relevant part that due to the requested information not being provided that Amtrust was closing the file. The current lawsuit was filed on May 20, 2020. This summary judgment motion was filed by Amtrust asserting the statute of limitations defense. The judgment was granted.

Insurance Claims And Appraisal

September 3, 2022 | Mark S. Humphreys

Probably all auto and home insurance policies have appraisal paragraphs in them. So how do the Courts view appraisal paragraphs? This is discussed in a 2022, opinion from the Western District of Texas, San Antonio Division. The opinion is styled, Diane Castanon, Katherine Castanon v. Safeco Insurance Company of Indiana.

This is a lawsuit that arises from a plumbing claim. A plumbing leak is alleged to have occurred on or about July 20, 2019. Plaintiffs sued Safeco on July 20, 2021, for various violations of the Texas Insurance Code and breach of contract.

The wording of the appraisal paragraph can be read in the opinion.

Insurance Claims And Experts (Plumbing)

August 29, 2022 | Mark S. Humphreys

Insurance claims often do not need an expert to help the case. When an expert is needed, it is important to know how courts look at experts. Here is a homeowners case wherein an expert is being used to bolster the case. This is a 2022 opinion from the Western District of Texas, San Antonio Division. The opinion is styled, FB & SB Leasing, LLC v. Chubb Lloyds Insurance Company of Texas.

In this first–party insurance dispute involving a property experiencing plumbing problems and foundation issues, Chubb presents two reliability arguments to support excluding the opinion
testimony of Plaintiff FB &SB Leasing’s sole causation expert, Michael B. Couch. Chubb urges first that Couch’s report provides insufficient information about his methodology. Second, Chubb argues Couch relied on mistaken or incorrect underlying data when opining that there were multiple leaks at the property. There’s no dispute that Couch’s testimony, if reliable, would be relevant. Chubb also doesn’t dispute Couch’s qualifications. As argued, and on this record, Chubb’s complaints go to the eventual weight a jury might afford the testimony and are most appropriately addressed at trial via cross-examination or through introduction of competing expert testimony.

As to the first argument, there’s no dispute that Couch inspected the property on multiple occasions and relied on a plumbing report that noted multiple breaks in plumbing lines. Relying on this underlying data and his ample training and experience, Couch opined on the cause of the damage to the property. This is sufficient given the parties’ arguments presented here. The second of Chubb’s arguments relies on a distinction Chubb draws between “leaks” and “breaks” in plumbing, which on this record is an issue better reserved for cross examination at trial. Both side’s experts relied on the same plumbing report that noted multiple plumbing issues. Even Defendant’s expert appears to use the terms “break” and “leak” interchangeably in his expert report. Moreover, Chubb didn’t depose Couch, which might have provided more detail and nuance on these issues to further inform a motion to exclude. Accordingly, on this record and based on the arguments presented by Chubb, the Motion, is Denied Without Prejudice. Chubb may re-urge its arguments later in the case, via a motion in limine or at trial.

Which Insurance Code Section Applies To Fraud?

August 13, 2022 | Mark S. Humphreys

Insurance lawyers live on the Texas Insurance Code, Section 541.060. There is disagreement among the Federal Courts about which of the sub-sections under 541.060 require the specifics of a “fraud” pleading. This issue is discussed in a 2022, opinion from the Northern District of Texas, Dallas Division. The style of the opinion is UGM Of Dallas, Inc. d/b/a Union Gospel Mission Of Dallas, Inc. v. Harleysville Insurance Company And Laura Jones.

UGM has a insurance policy with Harleysville that covers hail damage to the insured property. UGM claimed a loss that was eventually adjusted by Jones. The facts of the case can be read in the opinion. What is discussed here is the courts coverage of whether or not the requirements of a fraud pleading applied to the section of the insurance code that was pled by UGM when a lawsuit resulted against Jones.

Defendants respond that Plaintiff fails to state a claim against Defendant Jones
that is cognizable under Texas law and also fails to satisfy the higher federal pleading
standard under Federal Rule of Civil Procedure 9(b) because these claims are “grounded
in fraud”

Oral Insurance Contract?

July 30, 2022 | Mark S. Humphreys

Is there such a thing as an oral insurance contract? Well, according to the 1949, Texas Supreme Court opinion styled, Pacific Fire Insurance Company v. Donald, …, Yes.

In the Donald case, Paul Donald sued Pacific Fire to recover for the loss of 5500 bales of hay which were destroyed by fire. The lawsuit is based on an alleged oral contract between himself and agent Henry Moore, who represented Pacific Fire.

The controlling question presented here is whether there was any evidence to sustain the trial court’s finding that Pacific Fire and Donald entered into a valid parol contract to insure respondent’s hay.

Insurance Policies And Breach Of Contract

July 25, 2022 | Mark S. Humphreys

Insurance policies are contracts, and as such are subject to rules applicable to contracts generally. This is stated in the 1994, Texas Supreme Court opinion styled, Hernandez v. Gulf Group Lloyds.

An insured seeking to recover on an insurance contract must prove that the contract was in force at the time of the loss. Also, as discussed in the 1975, Tyler Court of Appeals opinion, Hartford Acc. & Indem. Co. v. Spain, a party who claims under a policy is required to produce the insurance contract upon which he sues or to prove the terms. To prove a breach of contract, the insured must establish:

(1) the existence of the contract sued upon