Articles Posted in Hail Claims

Lawyers who handle hail and storm claims need to read this 2016,case from the Beaumont Court of Appeals.  It is styled, In Re Windstorm Association, Brush Country Claims, Ltd., and David Guitierrez.

This is a mandamus proceeding wherein the parties named above allege the court abused it’s discretion by compelling them to produce all photographs and damage estimates on Hurricane Rita claims that they adjusted or investigated on property located within a one mile radius of the property that is the subject of the unfair claims settlement suit.  The real parties in interest here are, David and Sue James.  The James’s argue that the documents would likely include a significant number of homes similar in age and construction to their home and that it would be reasonable to expect that other houses in the immediate vicinity would be subject to wind and rain of similar intensity for a similar time period, and the homes would have sustained similar interior water damage.  The Court granted the mandamus relief.

In it’s ruling the Court states that discovery requests must not be overbroad because overbroad requests for information are improper whether they are burdensome or not.  The James’s submitted supplemental affidavits from their experts.  Both experts stated that it would be beneficial to review historical photographs and estimates of real property damaged by Hurricane Rita within a one mile radius.  Both experts opined that such information, photos, and data would be reliable, credible and objectively verifiable evidence for them to review in order to render opinions and conclusions regarding the extent and severity of damage sustained by the property at issue.

Brock insurance lawyers who help people with hail and storm claims need to read this opinion from the McAllen Division.  The opinion is styled, Claudia Cavazos, et al v. Sussex Insurance Company, et al.

Brian Ring was an adjuster assigned by Sussex to investigate a hail and storm damage claim asserted by Cavazos.  Cavazos filed a lawsuit alleging various claims rooted in underpayment of the claim.  The lawsuit was filed in State Court and removed to Federal Court by Sussez.  Sussex alleged improper joinder of Ring.

The 5th Circuit recognizes two  manners by which improper joinder may occur: (1) actual fraud in the pleading of jurisdictional facts, or (2) the inability of a plaintiff to establish a cause of action against the non-diverse party in state court.  The 5t Circuit has interpreted the second manner to mean that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.  The removing party bears the burden of proving improper joinder.

When an insurance company complies with an appraisal can there still be bad faith?  That question was answered with a “no” in a 1996, San Antonio Court of Appeals opinion.  The opinion is styled, Toonen v. United Services Automobile Association.

USAA insured Toonen’s home.  The policy contained an appraisal clause.  Toonen reported a claim for damage as a result of a hail storm.  USAA’s adjuster found no storm damage.  Toonen hired a private adjusting firm to represent her in handling her claim and to adjust her loss and deal with USAA.

USAA’s adjuster reported her findings to Toonen’s private adjuster.  USAA named an appraiser pursuant to the appraisal clause.  Toonen then retained an attorney who notified USAA that Toonen would file suit if Toonen had not received $4,914.00.  In the meantime, Toonen’s private adjuster reached an agreement and appointed an umpire under the appraisal clause who found that Toonen was entitled to an award of $1,266.35 which USAA tendered to Toonen.  Toonen sued USAA for breach of contract and violations of the Insurance Code, DTPA, negligence, intentional infliction of emotional distress, fraud, misrepresentation, and breach of duty of good faith and fair dealing.  USAA answered and filed a Motion for Summary Judgment.  USAA’s Motion for Summary Judgment was granted.  Toonen appealed.

Palo Pinto County insurance attorneys know the insurance companies want to litigate their cases in Federal Court.  Insurance attorneys representing individuals and small businesses know they can often times get a better result for their clients in State or County Court.

Another U.S. McAllen Division opinion discusses the same issue as discussed here two days ago, yet with a different result.  The style of the case is, Pablo Martinez v. Allstate Texas Lloyds.

Martinez was insured with Allstate and sued Allstate based on their handling of a claim resulting from a storm.  Martinez alleged that Allstate failed to “fully compensate” them.  Martinez sued in State Court and Allstate removed the case to Federal Court.  Martinez sought a remand of the case.

As has been stated here many times, insurance companies prefer to litigate cases in Federal Court, whereas, attorneys representing claimants prefer to litigate cases in State Court.  The Northern District, Dallas Division, issued an opinion wherein the fight over which court a case would be heard was the subject of a Motion to Remove and Motion to Remand.  The case is styled, Ministerio International Lirios Del Valle v. State Farm Lloyds, et al.

Plaintiff sued State Farm and the adjuster Galvan.  The purpose of suing Galvan was to keep the case out of Federal Court.  State Farm alleges Galvan was improperly joined to defeat diversity jurisdiction.

The 5th Circuit recently held that, when deciding whether a defendant has been improperly joined, a federal court must apply the federal pleadings standard.  This standard requires the plaintiff to plead enough facts to state a claim to relief that is plausible on its face.  A claim has factual plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.  Where the well pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not shown — that the pleader is entitled to relief.  Although the pleading standard Rule 8 announces does not require detailed factual allegations, it demands more than labels and conclusions.  And a formulaic recitation of the elements of a cause of action will not do.

Attorneys who handle hail damage claims have to know the law discussed in this Northern District, Dallas Division opinion.  The opinion is styled, One Way Investments, Inc. vs. Century Surety Company, et al.

This is a summary judgment case for breach of contract.  One Way had property insurance with Century and made a claim for damages alleged to have happen in a severe hail storm that caused significant damage to the roof and appurtenances and interior of One Way’s property.

Century’s adjuster estimated the cost of repairs to be $2,372.43, which was less than the amount of One Way’s deductible and resulted in One Way filing this lawsuit.

The Statute of Limitations for insurance claims will vary with the facts of the case.  In general this limitation begins to run once a claim is denied.  A Southern District , Galveston Division case arose in 2016, that is a good read.  The case is styled, Linda Grayson v. Lexington Insurance Company.

The case was a summary judgment decided in favor of Lexington.

On September 22, 2009, Grayson’s home was damaged by fire resulting from a lightning strike.  The house was insured for $370,000.00.  As Lexington began to adjust the claim, Grayson expressed concern about the potential for lingering smoke odor.  Lexington determined the damage could be repaired and all smoke odor could be eliminated by a process of “encapsulation.”  Grayson decided to insist that the entire house be demolished and rebuilt.

Insurance lawyers in the Dallas and Fort Worth area know that insurance companies prefer to litigate cases in Federal Court while the opposite is true for lawyers representing an insured.  A recent Northern District, Dallas Division case deals with suing the agent in Federal Court.  The case is styled, B&B Car Wash and Mini Storage v. State Automotive Mutual Insurance Company, Jennifer Caldwell, and Danny Duncan d/b/a Duncan Insurance Agency.

This is a case about State Auto allegedly denying coverage for B&B’s wind and hail damaged storage facility.  B&B owns a car wash, five storage buildings, and an RV shed.  B&B purchased a State Auto policy from agents Jennifer Caldwell and Danny Duncan.  The parties dispute the extent of coverage provided by that policy.  B&B says it covers the entire complex and the defendants disagree.

After B&B filed its complaint, State Auto removed the case to Federal Court, arguing that, because B&B is a Texas citizen and State Auto is an Ohio citizen, complete diversity exists, and thus, federal jurisdiction.  The next day, B&B amended its complaint to add Caldwell and Duncan as additional defendants, based on the fact that they sold the policy in question.  Thus, because Caldwell and Duncan are both Texas residents, B&B filed a motion to remand the case to State Court since diversity jurisdiction no longer existed.