Commercial Policies

Commercial Insurance Policy and Interpretation

March 21, 2010 | Mark S. Humphreys

How an insurance policy is interpreted by Texas Courts is important. This is true whether you live in Grand Prairie, Arlington, Weatherford, Fort Worth, Mansfield, Dallas, or anywhere else in Texas.

A commercial insurance policy was recently interpreted by the United States District Court, Southern District of Texas, Houston Division. The style of this case is National Casualty Insurance Company v. Orion Transport, Inc. and Silvia Brune, Individually and as Representative of the Estate of James Brune, Deceased and Cody Brune and Cory Brune. The case was decided on February 22, 2010.

The undisputed facts in this case are that on February 4, 2009, Orion Transport, Inc. (Orion) hired welder, James Brune, to perform maintenance on its 1977 Heil Tanker Trailer. While Brune was performing the requested maintenance the trailer exploded injuring Brune, who later died of his injuries. The Brune estate and his survivors sued Orion and ETOCO. L.P., and ETOCO Management, LLC. in State District Court. National Casualty Insurance Company (National) brought this instant case in Federal District Court asking the court to rule that National had no duty or obligation under its policy of insurance with Orion to defend Orion or to pay any claims against Orion.

Coverage Or No Coverage?

March 19, 2010 | Mark S. Humphreys

The first thing a person wants to know who has insurance is; Does my policy protect me? This is true no matter if you are living in Grand Prairie, Fort Worth, Arlington, Mansfield, Dallas, or out in Weatherford, Texas.

The United States District Court, Southern District, Corpus Christi Division, had that decision to make in a case styled, National Fire Insurance Company of Hartford, et, al. v. Radiology Associates, LLP, et al., and issued an opinion on March 3, 2010. In this case, a couple sued Radiology Associates, LLP. (Radiology) and one of their employees, Brian K. Riley. Radiology had three insurance companies providing policies for them and Radiology presented the lawsuit to all three companies to provide a legal defense and settle any potential claims.

The facts in the case were that, Mrs. Pecore, a patient of Radiology, was to have a trans-vaginal ultrasound. It was alleged that during this exam, Riley inserted a finger into Mrs. Pecore’s vagina without permission and that Radiology should have informed Mrs. Pecore she had a right to have a chaparone present during the exam and that if a chaparone had been present the “assault” to Mrs. Pecore would not have occurred. There was nothing about the precedure involving the trans-vaginal exam that would have called for Riley to have committed the act he is accused of commiting.

Insurance Policy Language “Arising Out Of”

February 17, 2010 | Mark S. Humphreys

A decision in a Dallas, Texas, case was handed down on January 22, 2010. The results should have been the same in Fort Worth, Grand Prairie, Arlington, or Weatherford. This case was decided by the United States District Court, Northern District, Dallas Division.

The style of the case is Gemini Insurance Company v. Trident Roofing Company, L.L.C. The lawsuit arises from an incident where the Roman Catholic Diocese of Dallas and Our Lady of the Lake Catholic Church hired Trident Roofing Company, L.L.C., to perform roofing work on a Church building. In doing the roof work, Trident performed “torch down roofing”. “Torch down roofing” is defined in the insurance policy as “the use of any roofing system that requires the applying of a direct flame (torch) to asphalt/modified bitumen or in the application of any other roofing material.” The Church sued Trident after a fire started while Trident was using this roofing method.

Trident looked to their insurance policy with Gemini Insurance Company and demanded that Geminin protect them in the lawsuit including paying for defense costs and indemnity costs. Gemini denied coverage citing an exclusion in the insurance contract for work performed using “torch down roofing”. The specific language in the policy states: “It is agreed no coverage is afforded for any liability or claim that arise(s) out of, is related to, or connected with the following: TORCH DOWN ROOFING.”

Insurance Companies Fighting With Insurance Companies In Texas

February 1, 2010 | Mark S. Humphreys

Most people would not realize how much time and money is spent with insurance companies fighting with other insurance companies. Most of these fights result from situations where a person or company has more than one policy. An example would be where an Arlington resident buys some insurance in Grand Prairie, Dallas, Fort Worth, or maybe out in Weatherford or wherever but also buys another policy at the same time or later on from another company or agent. Next, an incident happens, the result of which is the policyholder has to file a claim or seek coverage through the policies of insurance. Then what happens is, the companies start fighting with each other about which one has to pay the claim or pay the costs of defending the claim asserted. The following case is yet another example of this type of situation.

The United States Fifth Circuit Court of Appeals handed down a decision is one of these cases on January 4, 2010. The style of the case is, Trinity Universal Insurance Company; Utica National Insurance; National American Insurance Company, Subrogees of Lacy Masonery Inc., v. Employers Mutual Casualty Company.

In this case, Employers Mutual Casualty Company (EMC) and the others issued commercial general liability insurance policies to Lacy Masonry, Inc. Lacy was sued. Trinity defended and eventually settled the case on behalf of Lacy. Utica defended and eventually settled the case on behalf of Lacy. And, finally, National defended and eventually settled the case on behalf of Lacy. EMC refused to defend or participate in the settlement.

Insurance Companies Duty To Defend Lawsuit In Texas

January 31, 2010 | Mark S. Humphreys

The United States Court of Appeals for the Fifth Circuit, decided another case this month dealing with the duty of an insurance company to defend a lawsuit filed against one of its insureds. The decision on this case was handed down by the court on January 4, 2010. The case was an appeal from the United States District Court for the Southern District of Texas. The Fifth Circuit, located in Louisiana, handles appeals that would arise out of Dallas, Fort Worth, Arlington, Grand Prairie, small towns like Weatherford, and all other places in Texas.

In the opening paragraph of the decision the court makes the following statement, “We have occasion once again to take up the seemingly simple task of determining whether an insurance company owes a duty to defend an underlying liability lawsuit, and because the insurer in this case indeed has such a duty, it is also an occasion to again remind: when in doubt, defend.” As stated in this blog in the past, the courts draw a distinction between the obligation of an insurance company to defend an insured who has been sued and the obligation of an insurance company to pay a claim.

The case at issue here is styled, Essex Insurance Company v. Hines. The policy was a “Commercial General Liability Coverage” and another one called a “Commercial Property Coverge” policy. The facts here are relevant to deciding the existence or lack there of, as it relates to coverage in the wording in the policy. What Essex was failing to see was how Texas law applies in the difference between the duty to defend and the duty to pay under a policy of insurance.

Appraisal In Insurance Texas Insurance Disputes

January 28, 2010 | Mark S. Humphreys

A lot of insurance contracts have written into them an appraisal clause or paragraph. Whether you bought the policy in Grand Prairie, Arlington, Dallas, Fort Worth, or out in Weatherford, Texas, you could be forced to submit to an appraisal process if the insurance company insists on enforcing that portion of the insurance contract.

A recent case, JM Walker, LLC v. Acadia Insurance Company, is an example of how these situations are sometimes handle. Each case would be different depending on the wording of the appraisal provision in the contract and the facts of the case.

In this case, Walker was the owner of five building in North Richland Hills, Texas. The roofs of the building suffered damage from a hailstorm. Walker submitted a claim to Acadia, but Acadia denied coverage after its adjuster determined that the roofs did not need to be replaced and that the damage that did exist, was less than the $5,000 deductible that applied in the case.

A Federal Case Discussing Notice To Insurance Company Of Claim

January 23, 2010 | Mark S. Humphreys

The United States Court of Appeals for the Fifth Circuit is a federal court located outside of Texas. Cases that originate in Texas, including the Dallas, Fort Worth, Arlington, and Grand Prairie areas will end up in this Fifth Circuit Court when it is on an appeal.

A case decided in late December of 2009 discusses “notice” provisions in insurance policies. These provisions are important for the people or businesses who have these policies to understand.

The case is styled, “East Texas Medical Center Regional Healthcare System v. Lexington Insurance Co”.

Commercial Insurance Policy In Texas And Insurance Company Duty

January 20, 2010 | Mark S. Humphreys

The Supreme Court of Texas issued an opinion on a case on December 11, 2009, that will make insurance companies who have issued commercial policies, to take a second look before denying a claim in certain situations.

The case involved here is titled, D.R. Horton-Texas, LTD. v. Markel International Insurance Company, LTD. This case came out of the Texas Court of Appeals in Houston. It could have been a case arising out of the Dallas or Fort Worth or surrounding areas like Arlington, Grand Praire, or Irving.

In this case, a couple, the Holmes, purchased a home from the builder, D.R. Horton-Texas, LTD. Defects in construction were discovered and as a result of these defects, mold had infested the home. The Holmes sued Horton, saying Horton was responsible for the problems Holmes was experiencing. It appeared ,a sub-contractor, Ramirez, was the person who caused the problems. Ramirez had an insurance policy from Markel International Insurance Company, LTD. Horton sought coverage from Markel, based on the Ramirez policy wherein Horton was an additional insured. Markel refused to get involved and Horton eventually settled the case, then sought reimbursement of defense costs and the settlement payment from Horton, the result of which was this lawsuit.

A Case Trying To Prove Insurance Coverage Exists In A Commercial Policy

January 18, 2010 | Mark S. Humphreys

The following is a short discussion of a case trying to interpret Missouri law, in part. The relevance to people in Dallas, Fort Worth, Arlington, or Grand Prairie areas is that the case was heard in a Texas Court in the Southern District of Texas and that the appeal was to the United States Court of Appeals for the Fifth Circuit, which is a Court that makes decisions regarding lots of Texas cases.

The case is Westchester Surplus Lines Insurance Company v. Maverick Tube Corporation. The opinion of the Court was issued on December 10, 2009.

The dispute involved the application of Missouri state law in determining if an insurance “occurrence” and the duty of the insurance company to indemnify existed.