Hail Claims

Remember – There Is An Obligation To Cooperate With Your Own Insurance Company When Making A Claim

May 16, 2017 | Mark S. Humphreys

Experienced insurance law lawyers in Hamilton, Texas, know the above is true. This obligation is illustrated in a 2017, hail damage claim opinion out of the Southern District, Houston Division. The opinion is styled, Metro Hospitality Partners, Ltd., d/b/a Crowne Plaza Hotel v. Lexington Insurance Company.

When a business sues its property insurer and the type of damage is clearly covered, the usual pattern is that the insurance company has failed to pay anything, has failed to pay anything close to what the insured claimed, or has taken too long to pay. This case is different. Here, the property insurer promptly adjusted the claim the insured presented and paid a large sum within the month after the hailstorm that damaged the insured’s hotel. The insurer identified and paid what it concluded were the remaining amounts owed about two months after that. The insured claimed that more money was owed. The insurer asked for documents and information substantiating the demand for additional payment. The insured refused. The policy required the insured to “cooperate” with the insurer. What we have here, says the insurer, is a failure to cooperate. What we have here, says the insured, is a breach of the insurance contract and of the duty of good faith and fair dealing.

After a hail storm, the insured, Metro, promptly notified its Lexington. Lexington quickly responded, inspected, and identified the amount of covered damage and the amount it owed. The parties disputed whether the hailstorm damage justified an insurer-paid new roof, or whether normal wear and tear made a new roof Metro’s responsibility.

Dallas Hail Claims – Making A Proper Pleading Against An Adjuster On Hail Claims

May 2, 2017 | Mark S. Humphreys

For insurance attorneys handling hail damage claims, the Northern District, Dallas Division, issued an opinion worth reading. The opinion is styled, Ronald E. Cohen, et al v. Seneca Insurance Co., Inc., J.S. Held, Inc., Haag Engineering Co., and R. Kean Jenner.

This is a case of an insurance claim denial after a wind and hail storm in Dallas County. The adjuster, Jenner, was the only non-diverse defendant. The lawsuit for denial of policy benefits was filed in Dallas County Court and removed to Federal Court by the other defendants claiming that Jenner was improperly joined in an effort to defeat diversity jurisdiction. Cohen filed a Motion to Remand based on his assertion that Jenner was not improperly joined.

The sole issue in this case is whether the joinder of Jenner was proper under Texas law. If the court finds a reasonable basis to predict that Plaintiffs can potentially recover on one of the causes of action asserted against Jenner, the court must remand the entire case.

Hail Damage And Lawsuits

April 25, 2017 | Mark S. Humphreys

Hail damage lawsuits can be tough when in Federal Court. Special attention has to be given to the way the lawsuit is drafted. This is illustrated in a 2017, opinion issued by the Northern District, Dallas Division. The case is styled, McKinney Square Properties No. 1 Ltd. v. Seneca Insurance Company, Inc.

McKinney filed a lawsuit against Seneca alleging hail storm damage that occurred about June 9, 2015. McKinney alleges they filed a claim as soon as possible after the storm when a leak was detected. Seneca denied the claim.

McKinney alleges that Seneca refused to provide the names of the individuals who inspected the property, a copy of the engineering report, and Seneca negligently damaged roof tiles during the inspection of the property.

Suing The Adjuster

April 4, 2017 | Mark S. Humphreys

A 2017, opinion from the Northern District, Dallas Division, is an example of how not to sue an adjuster to keep a case out of Federal Court. The opinion is styled, Hutchins Warehouse Limited Partners, v. American Automobile Insurance Company, et al.

Hutchins sued American and their adjuster in State Court after their claim for benefits was not properly paid. The allegations against the adjuster, McMillan, were that he made numerous errors in his estimate, which resulted in American underpaying and partially denying Hutchins’s claims.

28 U.S.C., 1441(a) permits the removal of any civil action brought in a state court of which the district courts of the United States have original jurisdiction. The statute allows a defendant to remove a state court action to federal court only if the action could have originally been filed in federal court.

Fort Worth Homeowners Hail Claims

April 2, 2017 | Mark S. Humphreys

The Fort Worth Court of Appeals issued an opinion in February 2017, that is good reading for insurance lawyers. It essentially points out in a case, what was not done correctly. The opinion is styled, Seim v. Allstate Texas Lloyds.

This is claim against a homeowners policy issued by Allstate to the Seims. It is an appeal from a summary judgment in favor of Allstate. The Allstate policy provided coverage on the Seims home for the period April 27, 2013, through April 27, 2014. On or about August 28, 2013, the Seims notified Allstate of damage that had occurred earlier in August. The property was inspected on or about September 10. The adjuster, Scott, testified in deposition that the Seims’ property had some interior water damage, but the roof did not have any wind or hail damage. Scott further testified that in order for the interior water damage to be covered under the Seims’ policy, “there had to be an opening in the roof caused by wind or hail … and the Seims did not have that. The claim was denied by Allstate and a few months later the Seims sued Allstate for insurance code violations and breach of contract.

In the pleading filed by the Seims, they claimed damage was caused by storms in 2013, April 2007, April 2008, and May 2012. In their lasted amended pleading, references to the 2007, 2008, and 2012, storms was removed.

Llano County Property Owners – When Is A Fence Part Of Your Home

March 25, 2017 | Mark S. Humphreys

The Insurance Journal published an article on an opinion issued by the Texas Supreme Court that will have an impact on all property owners in the State of Texas. The title of the article is, Texas High Court Sides With Policyholder In Ike Damaged Property Case.

When is a fence a “dwelling” structure for insurance coverage purposes and when is it an “other structure?”

The Texas Supreme Court, relying on disputed language in a Liberty Mutual homeowners policy, found that a fence is a covered dwelling structure when it is attached to the home.

Hail Claims In Texas

March 16, 2017 | Mark S. Humphreys

The Houston Chronicle published an article in February on a topic that lawyers who handle hail damage claims need to know about. The title of the article is, Insurers, Plaintiffs Lawyers Square Off In Austin Over Hail Storm Bill.

Lobbyists representing insurance companies are pushing legislation they say will prevent premium increases by weeding out “abusive” lawsuits over damages caused by hail and other storms in what is shaping up as a battle royal with consumers and plaintiffs’ lawyers.

Gov. Greg Abbott raised the stakes when he used his State of the State address earlier this week to proclaim that “hailstorm litigation is the newest form of lawsuit abuse.” He urged the Republican-controlled legislature to send him a bill that he can sign into law to limit those types of lawsuits.

Notice Of A Hail Claim Needs To Be Communicated To The Insurance Company ASAP

February 28, 2017 | Mark S. Humphreys

Weatherford insurance lawyers who handle hail claims will tell clients that a hail damage insurance claim needs to be reported to the insurance company as soon as possible. This issue is discussed in a 2016, United States 5th Circuit Court of Appeals opinion. The opinion is styled, Hamilton Properties v. American Insurance Company.

This short but interesting case is a per curiam case. In July 2009, a hailstorm damaged the Dallas Plaza Hotel in Dallas, Texas. The owner, Hamilton Properties, had property and casualty insurance covering the hotel with American Insurance Company (AIC). At the time of the hailstorm, the hotel was no longer in use as a hotel, but still had a few permanent residents. The damage was significant, with evidence suggesting significant roof leakage and destruction of ceiling tiles.

Hamilton did not immediately make a coverage claim. Instead, it waited until November of 2010 before hiring an inspector to look at the damage. Hamilton’s representative then emailed AIC in February of 2011. AIC responded that it was no longer Hamilton’s broker of record and refused to report a claim. Hamilton made a formal claim in October of 2011, which AIC denied due to the amount of time that had passed since the damage, the multiple intervening instances of hail damage (which would not be covered by the policy at issue, since it had expired in September 2009), and an early inspection report by an AIC engineer just a few weeks after the July hailstorm that had found no damage to Hamilton’s property from water or hail. Additionally, AIC asserted that the roof itself was not adequately designed, which suggested the damage may have resulted from a faulty roof.

Concurrent Cause

January 15, 2017 | Mark S. Humphreys

Lawyers who handle hail damage claims understand all too well that in Texas the law regarding concurrent cause is against home owners. But there may be light at the end of the tunnel. An article in The National Law Review is encouraging. The article is titled “Florida Property Insurers Must Pay All Losses If Any Concurrent Cause Is Covered.”

In the latest of a string of recent decisions adverse to insurers, the Florida Supreme Court (not Texas – yet) held that, where a residential property incurs damage due to the cumulative or combined effects of multiple “concurrent” causes, any of which a homeowners policy covers, the insurer must pay the entire loss even if its policy expressly excludes the other causes. The same rule will presumably be applied to other property lines and by analogy to liability policies also.

A homeowner’s luxury home was insured for over $8 million under a manuscript “all risk” policy with various exclusions. The exclusion for loss due to “design, specifications, workmanship, repair, construction” and materials so used became crucial to the dispute. Soon after purchase, the house suffered numerous rainstorm leaks; a few months later, a hurricane damaged it more; and eventually it was demolished. The policy covered rain damage. Neither the Supreme Court nor intermediate appellate opinion state whether it covered windstorm, but that seems likely. After the insured settled litigation against the seller, architect, and builder, he prevailed at trial in a declaratory action against the insurer, which had denied coverage beyond $50,000 for mold.

Hail Claims – Prompt Notice

December 25, 2016 | Mark S. Humphreys

For lawyers handling hail damage claims, a Southern District, McAllen Division opinion is an interesting read. The case is styled, Gloria Martinez v. State Farm Lloyds.

Martinez’s claims arise out of a storm that damaged her property in 2012 or 2014. It is undisputed that Martinez first gave notice of a loss on September 25, 2014. She eventually filed suit against State Farm alleging breach of contract and extra-contractual claims. State Farm caused the case to be removed to Federal Court and a few months later filed a motion for summary judgment.

Under Federal Procedural Rule 56, summary judgment is proper when there is no genuine dispute as to a material fact and the movant is entitled to as a matter of law. A fact issue is “material” if its resolution could affect the outcome of the action, while a “genuine” dispute is present only if a reasonable jury could return a verdict for the non-moving party.