Dallas Fort Worth Insurance Lawyer Blog

Hurricanes And Flood Insurance

December 31, 2016 | Mark S. Humphreys

Palo Pinto residents may not think they will ever need flood insurance but those living around the Brazos River may think otherwise. In any event, knowing what is going on in the hurricane and flood insurance industry is helpful for insurance law attorneys. The Insurance Journal published an article in November 2016 dealing with this topic. The article is titled, Q&A: Deloitte Insurance Expert Discusses Hurricane Season And Flood Insurance.

Although Atlantic hurricane season ends in November, cleanup from any damage seen on the East Coast could last beyond the end of the season. Some coastal areas, such as Virginia Beach, were impacted this season, particularly by flooding.

Flooding is the nation’s number one natural disaster, with roughly 25 percent of all flood insurance claims filed in low to moderate risk areas, according to data from the Insurance Information Institute. Many standard homeowners’ policies don’t cover flood damage, making it an important consideration for insurers and their clients as Atlantic hurricane season comes to an end and the cleanup continues.

Policy’s That Exclude Drivers

December 29, 2016 | Mark S. Humphreys

One situation insurance lawyers see often is where a person is involved in an accident with another driver and the other driver is at fault. When it comes to making a claim against the insurance company for the other driver, you find out the other driver does not have coverage due to wording in the insurance policy. Or maybe that situation happens to you. So what is the law in the situations.

Named drive exclusions are common. That is where a policy specifically excludes a named person or driver. This is most common in households where there is a young driver such as a son or daughter who, because of the increased risk, the insurance company will charge a much higher premium, so the parent has the child excluded rather than pay the high premium. The problem arises when the child drives the car anyway and gets involved in a wreck. There will be no coverage.

However, an insurance driver may not exclude drivers by class, i.e., a “all unlicensed drivers.” Texas Transportation Code, Section 601.076 says:

Uninsured / Underinsured Cases

December 27, 2016 | Mark S. Humphreys

Lawyers who handle uninsured and underinsured motorist (UM) cases need to read this 2016, Corpus Christi Court of Appeals opinion. The case is styled, In re Luna.

In this UM case, the Court conditionally granted a petition for mandamus where the insured sought to obtain the deposition of State Farm’s corporate representative. In this case, Luna originally sued Armando Antunez, the intoxicated, uninsured motorist who caused Luna to sustain severe injuries. Luna also sued State Farm for UM benefits and for extra-contractual claims. The Court severed all three cases from each other and abated the UM and the extra-contractual case during the case against Antunez.

During the original case filed against Antunez, Luna requested the deposition of State Farm’s corporate representative. The trial court denied that request, and Luna did not challenge the Court’s decision in the case against Antunez. Eventually, Luna took a default judgment against Antunez and began prosecuting the UM case against State Farm.

Hail Claims – Prompt Notice

December 25, 2016 | Mark S. Humphreys

For lawyers handling hail damage claims, a Southern District, McAllen Division opinion is an interesting read. The case is styled, Gloria Martinez v. State Farm Lloyds.

Martinez’s claims arise out of a storm that damaged her property in 2012 or 2014. It is undisputed that Martinez first gave notice of a loss on September 25, 2014. She eventually filed suit against State Farm alleging breach of contract and extra-contractual claims. State Farm caused the case to be removed to Federal Court and a few months later filed a motion for summary judgment.

Under Federal Procedural Rule 56, summary judgment is proper when there is no genuine dispute as to a material fact and the movant is entitled to as a matter of law. A fact issue is “material” if its resolution could affect the outcome of the action, while a “genuine” dispute is present only if a reasonable jury could return a verdict for the non-moving party.

Properly Suing The Adjuster

December 24, 2016 | Mark S. Humphreys

Insurance lawyers will usually attempt to keep their clients cases in State Court rather than Federal Court. Trying to do so and being successful at doing it are two different matters. Here is a case where it was successful. It is a Southern District, Houston Division opinion. The case is styled, Marcus Richard, et al v. Geovera Specialty Insurance Company, et al.

Plaintiffs allege in essence that there was a leak and water overflow from the plumbing system within their home that caused significant damage to walls, flooring, windows, and balcony of the home, as well as damage to Plaintiffs’ personal belongings and contents of the home. Plaintiffs allege they submitted a claim under their policy with Geovera and that the adjusters handling the claim were inadequately and/or improperly trained and supervised, and failed to perform a thorough and reasonable investigation.

A lawsuit was filed in State Court and promptly removed to Federal Court by the Defendants. The Defendants claim the removal was proper pursuant to diversity jurisdiction, 28 U.S.C. Sections 1332(a), 1441(a), and 1446. The Defendants allege that the adjuster were improperly joined in an effort to defeat diversity jurisdiction. This Federal Court ultimately ruled in favor of Plaintiffs.

Uninsured Motorist Coverage And Workers Comp

December 22, 2016 | Mark S. Humphreys

An insurance law lawyer might be asked how uninsured motorist coverage works with workers compensation insurance. One way that it works is explained in a 2016, Austin Court of Appeals opinion. The opinion is styled Soledad v. Texas Farm Bureau.

Soledad was a passenger in a vehicle owned and leased by her employer, Schneider National Carriers, when it was involved in a single vehicle accident. Jeff Noe, a fellow employee, was driving the vehicle. Both were working with Schneider at the time of the accident, which was the result of Noe’s negligence. Soledad suffered injuries.

Soledad had uninsured motorist (UM) coverage on her own personal vehicle with Farm Bureau. Schneider had workers compensation insurance on its employees and also had liability coverage on its vehicles.

Hail Claims And Discovery

December 20, 2016 | Mark S. Humphreys

Lawyers who handle hail and storm claims need to read this 2016,case from the Beaumont Court of Appeals. It is styled, In Re Windstorm Association, Brush Country Claims, Ltd., and David Guitierrez.

This is a mandamus proceeding wherein the parties named above allege the court abused it’s discretion by compelling them to produce all photographs and damage estimates on Hurricane Rita claims that they adjusted or investigated on property located within a one mile radius of the property that is the subject of the unfair claims settlement suit. The real parties in interest here are, David and Sue James. The James’s argue that the documents would likely include a significant number of homes similar in age and construction to their home and that it would be reasonable to expect that other houses in the immediate vicinity would be subject to wind and rain of similar intensity for a similar time period, and the homes would have sustained similar interior water damage. The Court granted the mandamus relief.

In it’s ruling the Court states that discovery requests must not be overbroad because overbroad requests for information are improper whether they are burdensome or not. The James’s submitted supplemental affidavits from their experts. Both experts stated that it would be beneficial to review historical photographs and estimates of real property damaged by Hurricane Rita within a one mile radius. Both experts opined that such information, photos, and data would be reliable, credible and objectively verifiable evidence for them to review in order to render opinions and conclusions regarding the extent and severity of damage sustained by the property at issue.

Federal Court Pleadings

December 18, 2016 | Mark S. Humphreys

Brock insurance lawyers who help people with hail and storm claims need to read this opinion from the McAllen Division. The opinion is styled, Claudia Cavazos, et al v. Sussex Insurance Company, et al.

Brian Ring was an adjuster assigned by Sussex to investigate a hail and storm damage claim asserted by Cavazos. Cavazos filed a lawsuit alleging various claims rooted in underpayment of the claim. The lawsuit was filed in State Court and removed to Federal Court by Sussez. Sussex alleged improper joinder of Ring.

The 5th Circuit recognizes two manners by which improper joinder may occur: (1) actual fraud in the pleading of jurisdictional facts, or (2) the inability of a plaintiff to establish a cause of action against the non-diverse party in state court. The 5t Circuit has interpreted the second manner to mean that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant. The removing party bears the burden of proving improper joinder.

Homeowner’s Policy And Intentional Act

December 17, 2016 | Mark S. Humphreys

Insurance lawyers in Brock Texas need to understand what a homeowners policy covers and what it does not cover. A 1997, United States 5th Circuit opinion lets us know one of the occurrences not covered. The style of the opinion is, State Farm Fire & Casualty Company v. Fullerton.

Fullerton killed his wife and step daughter. His motive was never explained. He immediately called to the sheriff’s department and turned himself in. Based on advice of his attorney, Fullerton pleaded guilty to the lesser offense of simple murder. The Court sentenced him to life in prison. The heirs of two of the victims brought a wrongful death action against Fullerton in state court. At the time of the shooting, Fullerton held a homeowners policy that provided coverage for, among other things, personal liability for bodily injuries. In general, the policy covered injuries “caused by an occurrence” and defined an “occurrence” as “an accident, including exposure to conditions, which results in bodily injury … during the policy period.” It excluded, however, injuries caused intentionally by or at the direction of the insured.

State Farm provided Fullerton with a defense under a reservation of rights and filed a declaratory judgment action. Fullerton himself did not answer the suit. He stated by affidavit: “I do not believe that insurance coverage exists for these claims because any action taken by me was intentional and intended to cause harm” to his wife and step daughter. The Court granted the defendant’s motion to appoint a guardian ad litem. State Farm moved for summary judgment on the theory that Fullerton’s conviction collaterally estopped the heirs from litigating Fullerton’s intent and that the evidence that Fullerton shot his wife and Jones intentionally left no genuine issue of material fact. The trial court denied the motion for summary judgment. At trial, the jury found that the killings were unintentional. State Farm appealed.

Duty To Defend

December 15, 2016 | Mark S. Humphreys

When a Texas homeowner is being sued by someone, will the homeowner’s policy defend against the lawsuit. This is a good question and a 1998, Houston Court of Appeals [1st Dist.] opinion gives some insight to the answer. The case is styled, Freedman v. Cigna Insurance Company.

The Freedmans sold their house in 1990 to Marx. After buying the house, Marx noticed the roof leaked. In 1992, a portion of the roof collapsed. Marx sued the Freedmans for not disclosing the problems with the roof asserting causes of action for fraud, DTPA violations, negligence and fraud in a real estate transaction. The Freedmans asked their insurers, Cigna and ICNA, to defend them. The insurers refused to defend the Freedmans. The Freedmans eventually settle with Marx and then sued Cigna and ICNA claiming the insurers breached their contracts by not defending the Freedmans and not indemnifying the Freedmans from the resulting liability. The Freedmans also asserted a cause of action for violations of the Tex. Ins. Code. The trial court granted Cigna and ICNA a summary judgement. The Freedmans appealed.

The judgment of the trial court was affirmed by this Court of Appeals. An “occurrence” is defined as an accident, including exposure to conditions, resulting in the bodily injury or property damage during the policy period. As a matter of law, fraudulent promises, misrepresentations, and untrue statements do not fall within the plain meaning of the definition of occurrence. Marx sued the Freedmans not for the roof collapse, but rather for the Freedmans misrepresentations about the condition of the roof. Marx alleged the Freedmans represented that the roof was seven years old and needed no repairs, and that they took affirmative steps to conceal the roof’s defects. On the face of the pleadings, Marx was suing the Freedmans for intentional acts, not an “accident.” The trial court correctly granted the insurers’ summary judgement.