Dallas Fort Worth Insurance Lawyer Blog

ERISA – Lawyers Fees

January 17, 2017 | Mark S. Humphreys

Lawyers who handle ERISA (Employee Retirement Income Security Act) claims need to read this opinion from the U. S. Western District, Austin Division. The opinion is styled, Genevie Ilene Maley, et al. v. Minnesota Life Insurance Co.

In this case, the insured had, at various times named two beneficiaries. When the insured died, both the beneficiaries sought benefits. They eventually agreed to split the policy proceeds and entered into an agreement with Minnesota for them to be paid half each. Later, Minnesota then asserted a policy defense of suicide and refused to pay. The insureds sued for breach of contract. In the breach of contract claim, the Court ruled in favor of Minnesota. Minnesota then sued for attorney fees under 29 U.S.C. 1132(g)(1).

ERISA provides that: in any action under this subchapter … by a participant, beneficiary, or fiduciary, the court in its discretion may allow reasonable attorney’s fees and costs of action to either party. Any party who achieves some degree of success on the merits may request attorney’s fees, not merely the prevailing party. This success cannot be merely trivial success on the merits or a purely procedural victory. Instead, the party satisfies this standard when the court can fairly call the outcome of the litigation some success on the merits without conducting a lengthy inquiry into the question whether the particular party’s success was established or occurred on a central issue. Here, the parties agree that the judgement qualifies as some degree of success on the merits for Minnesota.

Concurrent Cause

January 15, 2017 | Mark S. Humphreys

Lawyers who handle hail damage claims understand all too well that in Texas the law regarding concurrent cause is against home owners. But there may be light at the end of the tunnel. An article in The National Law Review is encouraging. The article is titled “Florida Property Insurers Must Pay All Losses If Any Concurrent Cause Is Covered.”

In the latest of a string of recent decisions adverse to insurers, the Florida Supreme Court (not Texas – yet) held that, where a residential property incurs damage due to the cumulative or combined effects of multiple “concurrent” causes, any of which a homeowners policy covers, the insurer must pay the entire loss even if its policy expressly excludes the other causes. The same rule will presumably be applied to other property lines and by analogy to liability policies also.

A homeowner’s luxury home was insured for over $8 million under a manuscript “all risk” policy with various exclusions. The exclusion for loss due to “design, specifications, workmanship, repair, construction” and materials so used became crucial to the dispute. Soon after purchase, the house suffered numerous rainstorm leaks; a few months later, a hurricane damaged it more; and eventually it was demolished. The policy covered rain damage. Neither the Supreme Court nor intermediate appellate opinion state whether it covered windstorm, but that seems likely. After the insured settled litigation against the seller, architect, and builder, he prevailed at trial in a declaratory action against the insurer, which had denied coverage beyond $50,000 for mold.

Allstate And Warranties

January 14, 2017 | Mark S. Humphreys

Insurance attorneys have to have an understanding of how warranties work. Sometimes it is hard to tell the difference between insurance and a warranty. An article in the Insurance Journal about Allstate purchasing a warranty company shows how the two can be connected. The title of the article is “Allstate to Pay $1.4 Billion for SquareTrade, Seller of Warranties for Mobile Devises, Appliances.”

The Allstate Corp. agreed to acquire SquareTrade, a consumer electronics and appliance protection plan provider that distributes through many of America’s major retailers.

SquareTrade’s plans protect mobile devices, laptops and tablets, and other consumer electronics and appliances from malfunctions, accidental damage and mishaps. It promises that its technology delivers “a zero hassle claims process.”

Life Insurance Application

January 12, 2017 | Mark S. Humphreys

Life insurance attorneys can tell you that the life insurance application is very important. This is illustrated in a 1997, United States 5th Circuit opinion. The case is styled, Riner v. Allstate Life Insurance Company.

Following his divorce in 1994, Mr. Marriott wanted to replace his life insurance policy, which named his ex-wife as beneficiary, with a new policy naming his daughters (Riner and Ms. Marriott) as beneficiaries. Mr. Marriott had endured five back surgeries and was in chronic pain at the time the Allstate agent took his application. In the application, Mr. Marriott disclosed that he had chronic back problems and certain other medical problems. The application, however, was marked “no” with respect to whether he had ever received treatment for the use of alcohol or depression within the last three years.

After completing the application, the agent accepted an initial premium check which was completed by the agent because Mr. Marriott was too affected by the pain killers to do so. The agent then issued a “Receipt and Temporary Insurance Agreement” which he left with Mr. Marriott. The agent did not leave a copy of Mr. Marriott’s application with Mr. Marriott. The Agreement provided that the temporary coverage would start when Mr. Marriott’s medical examination was completed. The medical examination was completed on July 26, 1994. Six days later, Mr. Marriott died of either an aneurysm or heart disease. Allstate refused to pay under the Agreement because Mr. Marriott failed to reveal his prior treatment for the use of alcohol and depression.

Suicide Or Accident – Life Insurance

January 10, 2017 | Mark S. Humphreys

Life insurance lawyers will see a situation where a client’s life insurance claim is denied due to a suicide exclusion in the policy. The 1998 Austin Court of Appeals issued an opinion that deals with this issue. The case is styled, Butler v. Group Life and Health Insurance Company.

During a social occasion, the decedent and a number of his friends picked up an unloaded gun, and began to point the gun into their mouths and pull the trigger. At some point, ammunition was placed in the gun. Decedent did not know this. After the gun was loaded, but while decedent still believed it was not loaded, decedent picked up the gun, pointed it in his mouth, pulled the trigger and killed himself. Decedent’s beneficiary made a claim for life insurance benefits, accidental death benefits and attorney’s fees and interest as provided by the Prompt Payment of Claims Act. The policy in question was issued by Group Life and Health Insurance Company under the terms of the Texas Employees Uniform Group Insurance Act. The Board administering the policy denied the claim because decedent died as a result of intentionally self-inflicted injuries and because his death was not accidental. The district court affirmed and Butler appealed.

The Court ruled accidental death and life insurance benefits are payable but because the Prompt Payment of Claims Act is inapplicable the trial court’s denial of attorney’s fees and statutory interest is affirmed.

Claim Denied Due To Misrepresentation

January 8, 2017 | Mark S. Humphreys

The reason someone is going to visit with an insurance lawyer is because a claim the person has made is being denied by their insurance company. One of the most common reasons for denial of insurance policy benefits in life insurance situations is that there has been a misrepresentation in the life insurance policy application.

So what is the law in Texas as it relates to misrepresentations in life insurance policies?

The Texas Insurance Code, Section 705.004 reads as follows:

Who Can Properly Sue An Insurance Company For Bad Faith

January 7, 2017 | Mark S. Humphreys

Dallas and Fort Wort insurance lawyers will commonly get calls from people who want to sue an insurance company because the insurance company was not treating them right in the claims process. Many times these people will be third party claimants. Third party claimants cannot sue the other guys insurance. First party claimants are those people who are dealing with their own insurance company. An insurance company does not owe any duty of good faith or fair dealing when dealing with a third party. This is illustrated in a 1994, Texas Supreme Court opinion styled, Allstate Insurance Company v. Watson.

Watson was injured in a car accident. Watson brought suit against the insured under an automobile liability policy issued by Allstate and also brought suit against Allstate alleging unfair claim settlement practices under Section 541.060 of the Texas Insurance Code and for failing to attempt in good faith to effectuate a prompt settlement where liability had become reasonably clear. Watson also brought suit under the Texas Deceptive Trade Practices Act, breach of contract, and the common law duty of good faith and fair dealing. The trial court granted Allstate’s Motion for Summary Judgment against Watson. The Court of Appeals reversed and remanded the trial court, holding that Watson, as a third-party beneficiary, could bring action under the Insurance Code without first proceeding directly against the named insured of the policy.

This Texas Supreme Court held that the Texas Insurance Code does not confer upon third-party claimants a direct cause of action against an insurer for unfair claim settlement practices. This section is an exclusive list of statutory unfair and deceptive acts or practices. However, the section does not define unfair claim settlement practices to be an unfair or deceptive act or practice. Section 541.151 provides a private cause of action for any practice defined by Section 17.46 of the DTPA as an unlawful deceptive trade practice. However, unfair claim settlement practices is not among the enumerated items defined by Section 17.46.

Bad Faith – How To Get There?

January 5, 2017 | Mark S. Humphreys

It’s easy to say “bad faith.” It’s not always easy to prove. Insurance lawyers have to look hard and rarely will be successful. A 1992, San Antonio Court of Appeals opinion helps explain why. The case is styled, State Farm Lloyds v. Polasek.

A fire destroyed the Polasek’s video rental business. State Farm denied insurance claim on ground of arson. The Polasek’s filed suit for breach of contract and bad faith. At trial, the jury found that the Polaseks had not committed arson and that State Farm had acted in bad faith because it did not have a reasonable basis for denying the claim. The jury awarded $40,000.00 property damages, $200,000.00 mental anguish, and $500,000.00 exemplary damages. State Farm appealed. On appeal, the San Antonio Court of Appeals reversed the bad faith judgment.

A bad faith cause of action is not satisfied by proof that State Farm should have paid the claim or that State Farm acted unreasonably in denying the claim. Instead, a bad faith cause of action requires proof of a negative: that no reasonable basis existed for denying or delaying payment of the insurance claim. Under a bad faith cause of action, carriers still maintain the right to deny invalid or questionable claims and will not be subject to liability for an erroneous denial of a claim. A bad faith cause of action requires a much different and more demanding proof than a suit for breach of the insurance policy.

Application And Life Insurance Policy

January 3, 2017 | Mark S. Humphreys

The application for a life insurance policy has to be attached to a life insurance policy. This is illustrated in a 1994, Texas Supreme Court case styled, Fredonia State Bank v. General Life Insurance Company.

The insured died as the result of a gunshot wound to the head. Prior to his death, he had purchased two life insurance policies, each in the amount of $250,000.00 issued by General. General denied the beneficiary’s claim for benefits. Fredonia State Bank, an assignee of one of the two policies and executor of the insured’s estate, sued to collect the proceeds of the policy.

General asserted as defenses that the insured had committed suicide and that the insured had made misrepresentations regarding his medical history, which were material to the risk assumed by General.

Intentional Acts?

January 1, 2017 | Mark S. Humphreys

Here is one for an insurance attorney to answer. A potential new client comes in the door. This person says they were drinking and got drunk, then they punched a friend in the face causing injury. The friend sues for the harm that was done and your potential new client asks his insurance company to defend him in the lawsuit. Is there coverage?

Guidance for the answer is found in a 1997, Dallas Court of Appeals opinion. The opinion is styled, Wessinger v. Fire Insurance Exchange.

This is a declaratory judgment action brought by Fire Insurance against its insured under a homeowner policy. Fire Insurance sought a declaration of no coverage for an incident in which the insured became intoxicated and assaulted a third-party friend. The insured and the third-party answered and counterclaimed asserting breach of insurance contract, violations of the Texas Deceptive Trade Practices Act and the Insurance Code. Fire Insurance moved for summary judgment stating that the insured’s actions were not accidental but were intentional conduct excluded from coverage. The trial court entered summary judgment in favor of the carrier.