Dallas Fort Worth Insurance Lawyer Blog

Kimble County Texas Auto Insurance Owners

March 5, 2017 | Mark S. Humphreys

Not just Kimble County automobile owners but everyone should be concerned about a story published recently in the New York Times. It is titled, “Millions Live Where Car Insurance Is Unaffordable, Study Says.”

Millions of Americans live in areas where auto insurance is unaffordable according to a new analysis from the federal government.

The report, from the Federal Insurance Office, analyzed premiums for basic liability automobile coverage in more than 9,000 zip codes with high proportions of “underserved” consumers, including minorities and people with low to moderate incomes. It found that rates were unaffordable in 845 of such zip codes, or about 9 percent of them. Nearly 19 million people live in the unaffordable areas, the report found.

Wrong Age On Insurance Application

March 4, 2017 | Mark S. Humphreys

What can happen when the wrong age is on a life insurance application? If you are a Mason County insurance lawyer, you should read this Northern District, Dallas Division, opinion. It is styled, Jackson National Life Insurance Company v. Lance Robbins, et al.

On a prior opinion in this case, the court granted Jackson National’s motion to interplead funds into the court registry, minus attorney fees and court costs totaling $7,000.

Jackson National now moves the court to amend the motion because they have learned the aged of the insured was misstated in the policy application and as a result, the one million dollar policy is now $907,502.02.

What Is The Value Of A Claim

March 2, 2017 | Mark S. Humphreys

There probably is not any insurance lawyer that can specifically tell a client exactly what the value of a claim is. But there are issues, legal and otherwise, to consider when trying to determine the value of a claim. A 14th Court of Appeals opinion offers so guidance. The opinion is a 2017, opinion and is styled, In Re State Farm Lloyds.

This case is a dispute between insureds and their insurer under an appraisal clause in the insurance contract. It is a mandamus proceeding seeking to have the trial judge enforce the appraisal clause.

After a claimed loss sustained under the policy, State Farm’s adjuster agreed that there was a loss but valued the loss at $432 which was less than the $8,000 deductible. The insured had hired a public adjuster who valued the loss at $73,000. The insured’s sued State Farm for breach of contract and various violations of the Texas Insurance Code.

Notice Of A Hail Claim Needs To Be Communicated To The Insurance Company ASAP

February 28, 2017 | Mark S. Humphreys

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.

Insurance Policies – Waiver And Estoppel

February 26, 2017 | Mark S. Humphreys

A problem for Kimble County insurance lawyers is knowing and being able to predict how a Judge will interpret an insurance policy. This topic is discussed in a State Bar of Texas, Insurance Section article. The article is titled, The Tentative Draft Of The Restatement (Third) Of Liability Insurance: How Could It Affect Texas Insurance Law?

Under Section 5 of the Restatement of Insurance (Third), a party may waive a right under the policy if, with actual or constructive knowledge of the right, the party (a) either expressly relinquishes the right or engages in conduct that would reasonably be regarded by the other party as relinquishing the right, and (b) that waiver is communicated to the other party.

Waiver permits the enforcement of terms different from the original contract or bars enforcement of such terms without creating a new contract. A party may waive only terms that benefit it; thus, the insured cannot waive policy conditions. The law of agency determines when the agent’s words or conduct binds the principle and waives its rights. Waiver necessarily requires extrinsic evidence.

Insurance Company Failure To Pay Claim

February 25, 2017 | Mark S. Humphreys

What happens when an insurance does not pay a claim that it was suppose to pay? That issue is dealt with in the Texas Insurance Code by statute and by courts interpreting the statute.

A particularly strict deadline for insurance companies is the requirement in Texas Insurance Code, Section 542.058(a) that the insurance company pay a valid claim within 60 days after receiving all required items requested from the claimant. This means that if the insurance company ultimately loses on the coverage issue and has to pay the claim, then it necessarily has violated the 60 day payment provision and is subject to the 18% damage set forth in Section 542.060(a) and attorney’s fee provisions of the statute. This is true even if the delay on the part of the insurance company was in good faith.

In a 5th Circuit Court of Appeals opinion from 1997, styled, Higginbotham v. State Farm Mutual Automobile Insurance Company, the court held that by rejecting the claim, the insurance company necessarily failed to pay within 60 days, in violation of the statute. As the court put it:

ERISA = No Jury Trial

February 23, 2017 | Mark S. Humphreys

Most people who find themselves in court like to think they are entitled to a jury trial. Claims against ERISA insurance policies is one of those places where a jury trial is not permitted. A recent Southern District, Houston Division opinion illustrates this. The opinion is styled, Deo G. Shanker v. United of Omaha Life Insurance Company.

The attorney for Shanker in this case tried to be creative in asserting a state law declaratory judgment action in order to get a jury trial.

This is an insurance coverage case. Shanker suffered a heart attack and underwent open heart surgery. After the attack, he was unable to perform his routine job duties, including driving, using fine motor skills, lifting medium and large loads, and standing for extended periods of time. Shanker submitted a claim to Omaha for long term disability benefits. After an exchange of documents, Omaha ultimately denied the claim. Shanker sued Omaha alleging Omaha disregarded relevant medical information and improperly denied coverage.

Insurance And Unjust Enrichment

February 21, 2017 | Mark S. Humphreys

Do you own the property that is insured? That is a question that matters in an insurance claim. This is illustrated in a Southern District, Houston Division opinion issued in late 2016. The opinion is styled, Cynthia Banion V. Geovera Specialty Insurance Company and Rick Calvert.

Cynthia sued Geovera to recover policy proceeds for damage to the insured property on a homeowners policy. Geovera counterclaimed, alleging that it had paid Cynthia over $57,000 for the property damage and then discovered that Cynthia never owned the property despite her representation to the contrary on the policy application.

The court dismissed Cynthia’s claim and Geovera filed a motion for summary judgment on its unjust enrichment claim and sought attorney fees and court costs.

Abuse Of Discretion – ERISA

February 19, 2017 | Mark S. Humphreys

Dallas and Fort Worth lawyers who handle ERISA claims need to read this recent Eastern District of Texas, Sherman Division opinion. It is styled, Martha Shindoll v. United of Omaha Life Insurance Company.

Shindoll had an ERISA plan through her employer that provided short and long term disability benefits. In 2005, Shindoll was diagnosed with fibromyalgia and Chronic Fatigue Syndrome (CFS). She continued working but in 2010, her condition worsened. In November 2012, her doctor, Kippels, ordered her off work. In June 2013, Shindoll obtained a Vocational Analysis from a Dr. Hansen, who opined that she was completely disabled. Shindoll applied for and received short term disability which was denied. She appealed and submitted to an IME with a Dr. Daniel. Daniel found she was completely disabled due to medication overdose syndrome. United approved the short term benefits in October 2013. The next month, Daniel issued an addendum to his initial analysis, stating Shindoll did not suffer from any cognitive dysfunction or physical functional impairment.

After exhausting short term benefits, Shindoll began receiving long term benefits. In November 2014, United submitted Shindoll’s file for additional IME testing. A peer review doctor, Dr. Raff, supplied a psychiatric and psychological peer review report that stated Shindoll did not have an impairing condition. A second peer review doctor, Dr. Sartin, issued an infectious disease peer review report that found no cause for Shindoll’s symptoms and he disagreed with the diagnosis of any infectious disease. In December of 2014, United’s doctor, Dr. Reeder, sent a letter to Kippels that set forth a review of Shindoll’s medical records, the IME, and peer reviews. Reeder concluded that Shindoll suffers from an anxiety disorder and somatoform symptoms but no physical or cognitive impairment.

Interpreting An Insurance Policy

February 18, 2017 | Mark S. Humphreys

One of the first things Dallas and Fort Worth insurance lawyers want to do in an insurance case is to read the policy. The next thing would be to know how the courts interpret policies. A recent article from the State Bar of Texas, Insurance Section, is a must read for insurance attorneys. The article discusses proposed changes to the Restatement (Third) of Insurance Liability. Here is a short exert from the 12 page article.

A. General principle — plain meaning is the preferred interpretation.

Under Section 2, policy interpretation is the process to determine the meaning of policy terms; enforcement is determined by other substantive law. Absent other law to the contrary, the ordinary rules of contract interpretation apply.