Dallas Fort Worth Insurance Lawyer Blog

Dallas Hail Claims – Making A Proper Pleading Against An Adjuster On Hail Claims

May 2, 2017 | Mark S. Humphreys

For insurance attorneys handling hail damage claims, the Northern District, Dallas Division, issued an opinion worth reading. The opinion is styled, Ronald E. Cohen, et al v. Seneca Insurance Co., Inc., J.S. Held, Inc., Haag Engineering Co., and R. Kean Jenner.

This is a case of an insurance claim denial after a wind and hail storm in Dallas County. The adjuster, Jenner, was the only non-diverse defendant. The lawsuit for denial of policy benefits was filed in Dallas County Court and removed to Federal Court by the other defendants claiming that Jenner was improperly joined in an effort to defeat diversity jurisdiction. Cohen filed a Motion to Remand based on his assertion that Jenner was not improperly joined.

The sole issue in this case is whether the joinder of Jenner was proper under Texas law. If the court finds a reasonable basis to predict that Plaintiffs can potentially recover on one of the causes of action asserted against Jenner, the court must remand the entire case.

House Fire Claims

April 30, 2017 | Mark S. Humphreys

House fire claims being denied is a regular part of doing for insurance law lawyers. “The Tribune” published a story in March titled, Tracking Phones: Insurers Deny Claims Based On Doubtful Data. Here is what the story tells us.

It took Jaclyn Bentley nearly three years to prove she didn’t burn her house down for the insurance money, allegations she and her lawyer say were born of the junk practice of analyzing cellphone tower data.

She was camping with her husband and co-workers at least 17 miles from her Iowa home in May 2014 when it burned down, she says. An investigator for State Farm Fire said cell tower data showed Bentley’s phone was 5 to 12 miles from the campsite in the direction of her home just after the fire was reported – the suggestion being she could have been heading back to camp after starting the blaze.

Value Of A Claim

April 29, 2017 | Mark S. Humphreys

A Texas Hill Country Insurance Lawyer will need to be able to discuss the value of a claim with a new client. This discussion needs to be had along with a discussion of what court the case will be fought. The Eastern District, Sherman Division, issued an opinion on how Federal Courts look at the value of a claim. The opinion is styled, Tommy Wilson v. Allstate Insurance Company.

Tommy Wilson (Plaintiff) sued Allstate (Defendant) in County Court for losses under a homeowners policy. Defendant caused the case to be removed to Federal Court based on diversity and the amount in controversy, stating the amount in controversy exceeds $75,000.00, which is the Federal Court minimal jurisdictional limits pursuant to 28 U.S.C., Section 1332(a).

Plaintiff argued that the amount in controversy was less than $75,000.00 and points to the following allegations regarding the amount in controversy alleged in his petition:

Prompt Pay And Appraisal

April 27, 2017 | Mark S. Humphreys

Llano County insurance lawyers need to know how the Prompt Payment of Claims Act works in situations where an appraisal clause is invoked. An example is found in a Western District, Austin Division opinion styled, Thomas Cheski v. Safeco Insurance Company of Indiana.

On April 10, 2016, Cheski experienced severe weather, which damaged his home. Cheski submitted a claim to Safeco. On April 13, 2016, Safeco initially assessed the damage at a value less than the deductible. Cheski requested a re-inspection and following the re-inspection, Safeco reassessed the claim at a value of $10,363.13 and issued payment of June 9, 2016. Cheski continued to disagree and Safeco invoked appraisal on June 28, 2016. On November 11, 2016, through the appraisal process, Cheski’s and Safeco’s appraisers agreed the amount of loss was $11,844.13 and Safeco issued payment for the difference on December 9, 2016.

Cheski sued Safeco alleging various violations of the Texas Insurance Code and Texas DTPA in addition to violation of the Prompt Payment of Claims Act and breach of contract. Safeco contends its payment following the appraisal process precludes Cheski’s causes of action and moved for summary judgment.

Hail Damage And Lawsuits

April 25, 2017 | Mark S. Humphreys

Hail damage lawsuits can be tough when in Federal Court. Special attention has to be given to the way the lawsuit is drafted. This is illustrated in a 2017, opinion issued by the Northern District, Dallas Division. The case is styled, McKinney Square Properties No. 1 Ltd. v. Seneca Insurance Company, Inc.

McKinney filed a lawsuit against Seneca alleging hail storm damage that occurred about June 9, 2015. McKinney alleges they filed a claim as soon as possible after the storm when a leak was detected. Seneca denied the claim.

McKinney alleges that Seneca refused to provide the names of the individuals who inspected the property, a copy of the engineering report, and Seneca negligently damaged roof tiles during the inspection of the property.

Life Insurance – Taking Delivery

April 23, 2017 | Mark S. Humphreys

Texas Hill Country life insurance lawyers will tell you that a life insurance policy has to be read carefully. This even means that the initial application has to also be read very carefully. This is illustrated in a 1999, San Antonio Court of Appeals opinion. The opinion is styled, Carolyn Noseff v. Tower Life Insurance Company, et al.

Mr. Noseff applied through an agent for a life insurance policy with Tower Life Insurance Company. He died before the policy was delivered. It is undisputed that delivery of the policy and collection of the first premium was a valid condition precedent to the policy’s going into effect. His wife sued alleging that Tower Life failed to use ordinary care in delivery of the policy. Tower Life moved for summary judgment, which was granted. Mrs. Noseff, the wife of Mr. Noseff, filed this appeal.

This San Antonio Court of Appeals affirmed the summary judgment in favor of Tower Life. The policy stated that it would not take effect until “the policy is delivered to the owner and the first full premium is accepted by the Company while the proposed Insured is alive …”. There is no question that Noseff died without taking delivery of the policy, and signing off on the policy amendments. While Texas courts have long recognized that an insurance agent owes a duty to a client at the inception of coverage, Texas does not recognize a claim against an insurance company for failure to deliver an insurance policy. The cases relied upon to establish that an insurance agent can be liable to an insurance applicant if the agent fails to follow through on the promised performance does not pertain to the insurance company’s liability. An agent or broker undertakes to procure insurance for another is paid therefore.

Can An Unauthorized Agent Bind The Insurance Company?

April 22, 2017 | Mark S. Humphreys

The above questions get some attention in a 1994, Texas Supreme Court opinion styled, Celtic Life Insurance Co. v. Coats.

The insured’s owner met with a soliciting agent of Celtic to discuss buying insurance. The owner advised the agent that he wanted a policy providing benefits for psychiatric care equal to or better than the $20,000 coverage provided by the company’s then existing policy. The owner explained to the agent that the coverage was needed because his oldest son had previously required psychiatric care, and he was concerned that his younger son might well require similar care. The agent said he understood. The agent then proposed the purchase of a specific policy written by Celtic with a maximum lifetime hospital benefit of $1,000,000. However, the agent did not point out that the psychiatric benefits under the policy were limited to $10,000. The insured’s business manager noticed the $10,000 limit and questioned the agent about its meaning. The agent assured the business manager that the $10,000 limit applied only to the out-patient psychiatric care. The policy was purchased.

Subsequently, the owner’s son was admitted to the hospital for psychiatric care. The insured filed a claim and was assured by the agent that the in-house hospital treatment was covered. Celtic, however, paid only $10,000 of the $27,000 in medical expenses.

Flood Insurance

April 20, 2017 | Mark S. Humphreys

For those insurance lawyers handling flood claims, a Corpus Christi Court of Appeals opinion issued in 2017, is a must read. It is styled, Housing & Community Services, Inc. and HCS 401, LLC D/B/A Lantana Square Apartments v. Texas Windstorm Insurance Association.

This is an appeal in favor of TWIA

HCS had policies providing coverage with TWIA through December 2012. On May 15, 2012, HCS sustained damage to covered property and on May 28, 2013, filed two claims with TWIA. On July 1, 2013, TWIA denied both claims on the grounds that HCS failed to fulfill its duty to file its claim with TWIA within one year of the loss.

Insurance Fights & Federal Court

April 18, 2017 | Mark S. Humphreys

Many insurance lawyers representing claimants want to avoid Federal Court due to the procedural rules and the court’s interpretation of those rules. These rules and their interpretation generally work in favor of the insurance companies which is why insurance companies always want a case in Federal Court and why lawyers representing insureds generally try to avoid Federal Court.

A 2017, opinion discusses some basic Federal Court rules. The case is styled, Campmed Casualty & Indemnity Company, Inc. v. Specialists on Call, Inc., et al. The opinion was issued by the Eastern District Court, Sherman Division.

This is an insurance coverage dispute related to whether Campmed is obligated to defend Specialists on Call (SOC) in the underlying litigation. On December 19, 2016, Campmed filed its motion for leave to amend its complaint. On December 28, 2016, SOC filed a response. On January 2, 2017, Another Defendant, Dr. Leonard DaSilva filed a response that adopted and incorporated the entirety of SCO’s response.

Flood Insurance – Know Your Policy

April 16, 2017 | Mark S. Humphreys

Coastal Texans – you have to know your flood insurance policies. This is perfectly illustrated in a 2016, Southern District, Galveston Division, opinion. It is styled, Lobeck v. Licatino, et al.

The case was decided on a summary judgment.

In a nutshell, Lobeck bought property that, unknown to her, was located within the boundaries of the Coastal Barrier Resources System (CBRS). Lobeck’s mortgage loan required her to maintain flood insurance on the property so she innocently procured an NFIP through the Defendants in this case. The policy was subsequently reissued and then renewed the following year. During the renewal year Hurricane Ike completely destroyed the building on the property and only then was Lobeck informed that her policy was void and had never afforded overage. She received nothing for her property damage. Consequently, Lobeck filed suit alleging that the Defendants knew or should have known that the property was ineligible for flood insurance under the NFIP, that the policy was void when issued, and that the policy offered absolutely no coverage. According to Lobeck, the express and implicit misrepresentations of the Defendants, upon which she ignorantly, but reasonably relied, caused her losses.