Articles Posted in Insurance Adjusters

Any insurance lawyer who has filed very many lawsuits knows that one key to helping their client have a good result is to be able to keep their case out of Federal Court.  One way of doing this is by properly suing the claim adjuster.  One successful way of doing this is illustrated in a Northern District of Texas, Amarillo Division opinion.  The opinion is styled, Sparky’s Storage Solutions Ltd. v. Lexington Insurance Company, et al.

Sparky’ sued Lexington and their adjuster, Tim Fitzgerald for violations of the Texas Deceptive Trade Practices Act (DTPA) and Insurance Code violations.  The suit was filed in State District Court.  Lexington and Fitzgerald had the case removed to Federal Court due to the amount in controversy and alleging that Fitzgerald was improperly joined in the lawsuit in order to prevent diversity of citizenship which is required pursuant to 28 U.S.C. 1332(a).

Sparky’s filed a motion to remand the case back to the State District Court asserting that the joinder of Fitzgerald was proper.

Grand Prairie insurance lawyers need to read this case for seeing one way to properly sue an insurance company adjuster.  The case is from the U.S. Western District, Del Rio Division.  It is styled, Alfonso Gaytan and Tere Gaytan v. State Farm Lloyds and Alberto Garza.

This litigation arises out of storm that hit Eagle Pass, Texas, in April 2014.  The Plaintiffs submitted a claim for repairs under the State farm policy and Garza was the adjuster assigned to handle the claim.  Garza’s inspection was unacceptable to Plaintiffs and a lawsuit was filed in State Court and State Farm had the case removed to Federal Court based on 28 U.S.C. Section 1441(a).

Plaintiff’s filed a motion to remand and there was an argument about the 30 day deadline imposed by 28 U.S.C. Section 1447.  The Plaintiffs prevailed on this argument.

The Western District, San Antonio Division issued an opinion in the case styled, McClelland v. Chubb Lloyd’s Insurance Company of Texas and Robert Pritchard.

The McClellands suffered a loss to their home and Chubb sent adjuster Pritchard to evaluate and adjust the loss.  The McClellands did not like the result and sued Chubb and Pritchard in State Court.  Chubb and Pritchard had the case removed to Federal Court.

Pursuant to 28 U.S.C., Section 1441, defendants may remove to the appropriate district court any action in which the district courts have original jurisdiction.  Under Section 1332, district courts have original jurisdiction in diversity actions between citizens of different states that involve an amount in controversy exceeding $75,000.  District courts are prohibited from exercising jurisdiction when a party has been improperly or collusively joined to manufacture federal diversity jurisdiction.  Improper joinder may be established by (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.

The Texas Insurance Code has a list of violations ofter committed by insurance adjusters that most Fort Worth Insurance Attorneys know well. This list is found in Section 541.060 and covers most wrongs adjusters commit.

(a) It is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to engage in the following unfair settlement practices with respect to a claim by an insured or beneficiary:

(1) misrepresenting to a claimant a material fact or policy provision relating to coverage at issue;

Fort Worth insurance lawyers will tell clients to be very careful when thinking they can trust an insurance adjuster to treat them properly. This is illustrated in the 2000, Court of Appeals [14th Dist.] case styled, Nell Warden v. Supertel Hospitality, Inc, et al.

On May 9, 1997, Warden sued appellees for personal injuries allegedly sustained on May 12, 1995 in an elevator at the Super 8 Motel in College Station, Texas. She did not request issuance of citation until September 25,1997. Supertel and Super 8 were served with citation on September 29, 1997 and Dover was served with citation the following day.

Each defendant filed a Motion for Summary Judgment arguing Warden failed to use due diligence in serving appellees with citation. They were not served until four-and-a-half months after the statute of limitations expired. Warden argued that summary judgment should be denied because the insurance adjuster indicated that service should be delayed to see if Warden’s claim could be settled through negotiations and due to the old age and poor health of appellant.