Dallas Fort Worth Insurance Lawyer Blog

When Is A Misrepresentation In An Insurance Application Not Material

June 24, 2017 | Mark S. Humphreys

The above question is usually not easy to answer. Aledo insurance lawyers need to read a 1976 case from the Waco Court of Appeals. The opinion is styled, Westchester Fire Insurance Co. v. English.

Posing as husband and wife when in fact they were not married, a couple purchased a house and at closing, also purchased home owners insurance coverage. The house burned down three months later. After the fire, the Westchester learned for the first time that the couple were not married.

The policy provides in part that it ‘shall be void if, whether before or after a loss, the insured has willfully concealed or misrepresented any material fact or circumstance concerning this insurance, or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.’

Specificity Of Claims Against An Adjuster

June 22, 2017 | Mark S. Humphreys

Tarrant County insurance attorneys will learn real fast that when asserting a claim against an insurance adjuster, the claim needs to be pled with specificity. This is illustrated in a recent case from the Southern District, McAllen Division. The opinion is styled, Ada Elizondo v. Great Lakes Insurance SE. et al.

This is an insurance case for damages to Ada’s property allegedly caused by a storm. Dissatisfied with the adjustment and payment of her insurance claim, Ada filed suit against Great Lakes and their adjuster Jose Lopez. The case was filed in state court and promptly removed to federal court based on diversity jurisdiction. Lopez then filed a motion to dismiss and Ada filed a motion to remand. Both motions concern whether Lopez is a proper party to this suit.

Under Federal Rule 15(a), Ada needs the consent of Lopez to amend her pleading and that is not given. Thus, she must seek approval from the Court. However, she did not attach a proposed amendment to her motion to amend. The purpose of the amendment appears to be to defeat diversity jurisdiction and for that reason the Court will not allow amendment.

Stephenville Homeowner Lawyers

June 20, 2017 | Mark S. Humphreys

Stephenville homeowner lawyers need to read this opinion from the United States 5th Circuit Court of Appeals. The opinion is styled, State Farm Fire & Casualty v. Cedric Flowers.

This is a appeal from a summary judgment granted in favor of State Farm in a declaratory judgement action.

In 2008, Cedric and Renee Flowers purchased a plot of land and asked Ricky and Jennifer Scott to build a house for them on the property. The Flower’s were unable to get financing, so they quit claimed the property to the Scotts, who then obtained a construction loan under their own names, using the property as collateral. The property was to be conveyed back to the Flowers after the house was built. The Scotts eventually defaulted on the loan amid disputes with the Flower’s and a lawsuit resulted over the property.

Prompt Payment Of Claims And Appraisal

June 18, 2017 | Mark S. Humphreys

Does a violation of the Texas Prompt Payment of Claims Act survive an appraisal that is promptly paid? This issue is addressed in an opinion from the San Antonio Court of Appeals. The case is styled, Barbara Technologies Corporation v. State Farm Lloyds.

Barbara Technologies had a policy of insurance with State Farm insuring property that was damaged in a hail storm on March 31, 2013. A claim was made on October 17, 2013 and on October 31, 2013, State Farm inspected the property. On November 4, State Farm sent a letter stating the property sustained damage of $3,153.57, but did not issue payment because the amount was less that the $5,000.00 deductible. On February 21, 2014, Barbara Technologies requested a re-inspection which was done and State Farm did not change it’s earlier statement.

Barbara Technologies filed suit for various violations of the Insurance Code including claims for violation of the Prompt Pay Act pursuant to Sections 542.058(a) and 542.060.

Hail Claims And Trial

June 17, 2017 | Mark S. Humphreys

Hail damage claims often get resolved short of an actual trial. The Houston Court of Appeals [1st Dist.] issued an opinion on a trial from a District Court. The opinion is styled, Mark Groba v. German American Farm Mutual Insurance Company.

After Hurricane Ike hit his area, Groba made a claim for hail and wind damage to his property. His insurer, German American, sent an adjuster who believed the loss totaled an amount slightly above Groba’s deductible. Based on this low estimate, Groba filed a lawsuit against Great American for violations of the Texas Insurance Code.

Groba hired a construction expert and investigator, Daryl Quinney, who concluded the damage was far above the deductible amount. Quinney visited the property twice at least six months after the hurricane. He testified that in conducting his investigation and making his estimate, he assumed that the damages he observed did not exist before Hurricane Ike, saying: “I was there to do a Hurricane Ike investigation so, therefore, my assumption is those damages resulted from the wind of Hurricane Ike.” His estimate of damages was based on his observations, photographs, and loss estimation software.

Filing Insurance Lawsuits

June 15, 2017 | Mark S. Humphreys

Insurance attorneys usually learn the hard way, the correct way to file lawsuits to stay out of Federal Court. Many times there is no way to stay out of Federal Court but when there is, it is usually to the client’s advantage to do so. A Southern District, McAllen Division opinion shows the wrong way. It is styled, Ada Carmona Elizondo v. Great Lakes Insurance SE.

This case arises out of a wind and hail storm damage to Ada’s property and the subsequent claim with Great Lakes. Dissatisfied with the adjustment and payment of the claim, Ada filed suit against Great Lakes in State Court and the adjuster Lopez. The case was removed to Federal Court. Lopez filed a motion to dismiss and Ada filed a motion to remand. Both motions concern whether Lopez is a proper party to the suit.

Under Federal Rule 15(a), a party may amend his pleadings once as a matter of course within 21 days after serving it, or if the pleading requires a responsive pleading, within 21 days after a responsive pleading is served. Thereafter, a party may amend only with written consent of the opposing party or by leave of the Court. Since Ada cannot amend as a matter of course and does not provide written consent of the defendants, Ada requires leave of Court to amend.

Compliance With Insurance Policy Provisions

June 13, 2017 | Mark S. Humphreys

This Eastern District, Sherman Division opinion is good reading for how the courts look at an insured’s responsibility to comply with policy provisions in an insurance contract. The opinion is styled, Tommy Wilson v. Allstate Insurance Company.

Wilson made a claim for damages to his home after wind and hail storm damage. A loss suit resulted based on allegations that Allstate grossly underestimated the amount of damage to the property. Allstate filed a motion to dismiss based on Wilson not having complied with the policy provision requiring he submit a sworn proof of loss 91 days before filing suit.

The relevant portion of the policy reads:

Suing The Insurance Adjuster

June 11, 2017 | Mark S. Humphreys

Most Llano insurance lawyers would prefer to stay out of Federal Court because Federal Courts tend to be more favorable to insurance companies. Suing the insurance company adjuster is one way to stay out of Federal Court. A Western District, Waco Division opinion shows one way to NOT sue the adjuster. The opinion is styled, Spring Street Apts Waco, LLC v. Philadelphia Indemnity Insurance Company and Crawford & Company.

Spring Street suffered hail and wind damage. Their insurance coverage was with Philadelphia, who hired Crawford to investigate the claim.

Spring Street filed suit in State Court for DTPA violations and Insurance Code violations and Philadelphia promptly had the case removed to Federal Court based on lack of diversity jurisdiction under 28 U.S.C. 1332, claiming that Crawford was improperly joined in the lawsuit. Crawford filed a Rule 12(h)(2) motion to dismiss for failure to state a claim upon which relief can be granted.

Hail Claims – Cosmetic Damage

June 10, 2017 | Mark S. Humphreys

Hamilton insurance lawyers need to read this opinion from the Western District, Waco Division, Federal Courts. It is styled, Stephen Hahn v. United Fire and Casualty Company.

Hahn filed this lawsuit against United Fire after United Fire refused to pay a hail damage claim submitted to them by Hahn. United Fire refused based on their assertion that the damage is cosmetic only and does not jeopardize the integrity of the roof and is an exclusion not covered under the policy. United Fire filed a motion for summary judgment in an effort to get the case resolved in their favor.

United Fire’s exclusion says:

Hail Damage – Segregating Covered And Uncovered Damages

June 8, 2017 | Mark S. Humphreys

For Hail Claims layers, the Western District, Waco Division, issued an opinion in April 2017, that needs to be read. It is styled, Stephen Hahn v. United Fire and Casualty Company.

Hahn suffered hail damage to his property after a recent hail storm and made a claim for damages. United Fire denied the claim based on their assertion that the damage was not segregated from the damage occurring in the recent storm and prior damage. They also denied based on the damage only being cosmetic in nature.

Hahn filed suit for breach of contract and insurance code violations and United Fire eventually filed a motion for summary judgment seeking to have the case dismissed.