Interpreting An Insurance Policy

What Does A Policy Cover

December 13, 2014 | Mark S. Humphreys

Aledo insurance attorneys will have clients who have commercial and business related insurance. When an occasion arises wherein it is necessary to make a claim, it is a sad time when they find out the policy does not cover all they believed it covered. It is important to sit down with your agent and make sure what the policy covers and what you want it to cover. Keeping in mind the discussion with the insurance agent helps if all or part of a claim is denied. Relating to an attorney the substance of those conversations, reading the policy, and knowing the facts of the situation allows the insurance attorney to suggest an appropriate course of action. This is illustrated somewhat in a 1998, Dallas Court of Appeals case styled, Fidelity and Casualty Company of New York v. Thompson, et al. Here is some of the relevant information from the case.
Thompson was a licensed, practicing optometrist who also owned and operated an optical clinic. A fire destroyed all of the property. Thompson was insured by Fidelity and made a claim demanding payment of the entire $250,000 policy proceeds. Fidelity paid Thompson $205,342.92 for losses to his medical equipment, office furniture and fixtures, and other “improvements and betterments.” Fidelity denied coverage for the value of Thompson’s optical clinic inventory which included, eyeglass frames, corrective lenses, contact lenses and other items held for sale. Thompson filed a declaratory judgment action seeking a declaration that the policy he purchased from Fidelity afforded coverage for inventory of his optical business. Both Thompson and Fidelity filed motions for summary judgment. The trial court granted Thompson’s motion and denied Fidelity’s. Fidelity filed this appeal.
This Dallas Court of Appeals held that the judgment in favor of Thompson was improper and reversed and rendered in favor of Fidelity. This case involved an optometrist’s professional liability policy. Optometry is the “art of occupation consisting of the examination of the eye for defects or faults of refraction and the prescription of correctional lenses and exercises.” An optometrist prescribes eyewear while an optician dispenses or sells the eyewear. Looking to the definitions of optometrists in Webster’s International Dictionary and the definition of supplies in Black’s Law Dictionary, this Appellate Court found that none of these definitions carries the meaning that supplies usual to the practice of optometry include inventory or prescriptive eyewear held for sale. The policy does not cover items held as inventory for the purpose of sale. Thompson’s medical profession as an optometrist is not, by definition, involved in the sale of frames, contact lenses, or other eyewear.

Insurance Coverage And Intentional Acts

December 11, 2014 | Mark S. Humphreys

Most Garland insurance lawyers will be able to tell you that the majority of insurance policies do not cover claims that are the result of an intentional act. But just because an act is intentional does not mean that acts of others that may have facilitated the intentional act are excluded from coverage. This is explained in a 1998, Houston Court of Appeals [14th Dist.] case styled, Williamson v. Vanguard Underwriters Insurance Company. Here is some of the relevant information from that case.

Vanguard Insurance Company had issued a homeowners insurance policy to Mr. and Mrs. Wilson. The Wilsons’ son was involved in a plot to rob Mathew Vickers, and during the robbery, Kimberly Williamson was killed. Kimberly’s parents brought a wrongful death suit against Mr. and Mrs. Wilson alleging that they were negligent in their supervision of their son, Michael Wilson. The Wilsons settled the case, and they then sought to be indemnified under the homeowner policy issued by Vanguard. Vanguard filed a declaratory judgement claiming that the “intentional injury” exclusion in the policy barred coverage. The exclusion stated that the insurance did not apply to:

a. bodily injury or property damage which is caused intentionally by or at the direction of the insured.

Use Of Vehicle

December 2, 2014 | Mark S. Humphreys

A Grand Prairie insurance lawyer needs to be able to hear the facts in a case and compare those facts to the policy and the law. When it comes to how the courts look at situations where “use” of a vehicle is at issue there is a 1994, Dallas Court of Appeals case that is good to know about. The style of the case is, Nationwide Property v. McFarland. Here is the relevant information from that case.

McFarland was working underneath his auto. The car was sitting up on jacks. While McFarland was underneath the car, Mashewske got in the car to see if it would start. When Mashewske shifted the car into neutral, it rolled backward, fell off the jacks, and landed on McFarland. McFarland sustained injuries from the accident.

At the time of the accident, McFarland was covered by an automobile insurance policy issued by Nationwide. The policy covered McFarland, as the named insured, and any other person “using” the covered auto. The policy identified McFarland’s auto as the “covered auto.” McFarland sued Mashewske for negligence. Mashewske tendered his defense to Nationwide, claiming he was entitled to coverage under McFarland’s policy because he was “using” the covered auto at the time of the accident. Nationwide agreed to provide Mashewske’s defense under a reservation of rights.

Named Property In An Insurance Policy

November 16, 2014 | Mark S. Humphreys

Fort Worth insurance attorneys will tell you that they need to know a few things to be able to properly discuss the legal aspects of a claim with a potential new client. One, what are the facts of the claim. Two, what does the policy say. And three, how do the courts interpret situations similar to the situation being dealt with.

Unpublished opinions historically are not given a lot of notice but they do give an attorney insight into how the courts look at specific situations. A 1996, unpublished opinion from the Dallas Court of Appeals is worth reading. It is styled American Indemnity Company v. McFarland Insurance Agency. Here is some of the relevant information from that case that is worth knowing.

The insurance carrier, American Indemnity, in this case issued a Texas commercial package through McFarland which contained four different commercial coverages: fire and extended, glass, general liability, and inland marine. The insured purchased the inland marine to insure video equipment.

Exclusions In An Insurance Policy

November 15, 2014 | Mark S. Humphreys

Grand Prairie insurance lawyers need to know how “exclusions” in an insurance policy work. This is partially explained in a 1994, San Antonio Court of Appeals case. The style of the case is, Telepak v. United Service Automobile Association. Here is the relevant information from the case.

The question before the court concerned whether the insured or the insurer has the burden of proof as to the applicability of an exception to an exclusion in an insurance policy. The court held that the applicability of an exception to an exclusion is a question of coverage, on which the insured has the burden of proof.

The insured brought a claim under an all-risk homeowner’s insurance policy for damage to their home. It is undisputed that the damage was incurred by the settling of the foundation. In its answer, the insurer pled the affirmative defense that “exclusion k” of the insurance policy excluded from coverage damage resulting from settling or cracking of the foundation. The insured asserted that the settling was caused by water which leaked from an air conditioner and escaped under the foundation of their home. They asserted that their loss fell under an exception to exclusion k, which stated that exclusion k would not apply to settling caused by accidental leakage from an air conditioning system. The jury charge read as follows:

Who Is Insured Under An Insurance Policy

November 8, 2014 | Mark S. Humphreys

Mansfield insurance lawyers have to be able to read an insurance policy and advise a client about what the policy means. A 1998, Houston Court of Appeals [1st Dist.] case shows how this court interpreted a policy. The style of the case is, Sears, Roebuck and Co. v. Commercial Union. Here is some of the relevant information.

Sears and Weingarten Realty, Inc. (Weingarten) entered into a lease agreement whereby Sears was to lease space in a shopping center owned by Weingarten. Under the terms of the lease, Weingarten was obligated to maintain comprehensive public liability insurance protecting Sears against liability for injury to persons or property occurring in the common areas of the shopping center. The relevant provision of that lease is as follows:

The landlord further agrees to maintain in an insurance company qualified to do business in the State of Texas, Comprehensive Public Liability Insurance, including property damage, insuring Landlord and Tenant against liability for injury to persons or property occurring in or about the Common Areas on the Entire Premises or arising out of the ownership, maintenance, use or occupancy thereof. The limits of liability under such insurance shall not be less than $2,000,000 per occurrence for death or bodily injury and for property damage.

Insurance Law And Technicalities

October 18, 2014 | Mark S. Humphreys

Grand Prairie insurance attorneys need to know about technicalities and insurance policies. The Texas Supreme Court just issued an opinion in a case styled, Greene v. Farmers Insurance Exchange. This case deals with the Texas Anti-Technicality Statute found in the Texas Insurance Code, Section 862.054. Here is some of the information relevant to the lawsuit.

In this case a house that had been vacant for several months was damaged when fire spread to it from a neighboring property. The house was insured under a Texas homeowner’s policy containing a clause suspending dwelling coverage if the house was vacant for over sixty days. The homeowner had not purchased an available endorsement providing coverage for extended vacancies, and the insurer denied the homeowner’s claim, even though the vacancy was not related to the loss. On cross-motions for summary judgment, the trial court granted judgment for the homeowner. This was reversed by the Court of Appeals and upheld by the Texas Supreme Court.

Greene owned and lived in a house in Irving that she insured with Farmers Insurance Exchange. The policy Farmers issued to Greene was a Texas Homeowners-A Policy prescribed by the Texas Department of Insurance. The policy was effective from February 10, 2007 to February 10, 2008. On June 30, 2007, Greene moved into a retirement community. On July 5, 2007, she notified Farmers that she was going to sell her house and provided Farmers with change of address information. On November 14, 2007, fire from a neighboring house spread to Greene’s house and damaged it. Farmers denied Greene’s fire damage claim on the basis that the house had been vacant for more than sixty days. The denial prompted a lawsuit on Greene’s behalf.

Dallas Insurance Lawyers Need To Know This

October 7, 2014 | Mark S. Humphreys

A 1997, Texas Supreme Court case is important for insurance law attorneys to know. The style of the case is, Trinity Universal Insurance Company v. Cowan.

Here are some of the facts to know about in the case.

A male, Gage, was working at an HEB photo shop. He developed a roll of revealing pictures of Cowan. He made extra prints for himself. He shared these prints with friends. This eventually got back to Cowan. Cowan sued Gage and HEB alleging negligence and gross negligence, among other allegations. Cowan alleged she had suffered severe mental pain, loss of privacy, humiliation, embarrassment, fear, frustration, mental anguish, etc. She did not allege any physical manifestation of these injuries. Gage notified his parents’ homeowners insurance company, Trinity. Trinity initially defended Gage under a reservation of rights, but later denied coverage and withdrew the payment of defense lawyers. Cowan settled with HEB and Gage in return for a covenant not to execute against any of Gage’s assets except the Trinity insurance policy. At trial, Gage did not appear or defend. Cowan and her mother testified that she suffered mental anguish, along with headaches, stomachaches and sleeplessness. The trial Judge found Gage responsible and awarded Cowan $250,000.00.

Emotional Distress And Bodily Injury

October 5, 2014 | Mark S. Humphreys

Knowing what is covered and what is not covered under a policy is something Fort Worth insurance lawyers need to be able to discuss with clients. A 1994, United States 5th Circuit Court of Appeals case is instructive as to when emotional distress is a covered claim. The style of the case is Travelers Indemnity Company v. Holloway. It is a declaratory judgement action.

In this lawsuit, the insurance company, Travelers, contended that it had no duty to defend its insured, Wanda Holloway, against a lawsuit for intentional infliction of emotional distress, since this type of claim is not covered by the policy issued by Travelers. Holloway is the mother of a junior high school student who was competing for a cheerleader position, and allegedly plotted to kill Heath, the mother of one of her daughter’s competitors. The mother of the competitor brought a lawsuit against Holloway alleging “outrageous conduct causing severe emotional distress.” Holloway sought a defense from Travelers, however, Travelers argued that Holloway was not entitled to a defense and that there was no coverage, since (1) the conduct did not constitute an “occurrence” under the policy, (2) the conduct was excluded from coverage as intentional conduct, and (3) the conduct was not alleged to have caused “bodily injury” as that is defined in the policy.

In making its ruling, the 5th Circuit affirmed the District Court’s opinion that there was no duty to defend or coverage since there was no allegation or evidence of a bodily injury.

Uninsured Coverage

September 7, 2014 | Mark S. Humphreys

Richardson insurance attorneys need to be aware of this Eastland Court of Appeals case. The style of the case is Anderson v. Texas Farm Bureau. Here is some of the relevant information.

Anderson appeals the trial court’s judgment that granted Texas Farm Bureau’s motion for summary judgment. Texas Farm Bureau moved for summary judgment because the pickup that injured Anderson was not a scheduled vehicle on Anderson’s policy and was owned by Anderson’s adult son, Dean, who was staying in Anderson’s home at the time of the accident. Anderson claimed he was covered under his UM coverage because a thief took the pickup, which Anderson did not own, and, as the thief fled, the thief drove the pickup into Anderson and injured Anderson.

Anderson lived at 610 Texas Street in Throckmorton, Texas. On January 23,