Articles Posted in Hail Claims

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.

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.

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.

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.