Dallas Fort Worth Insurance Lawyer Blog

Penalties For Delay In Paying Claim

September 18, 2016 | Mark S. Humphreys

Benbrook insurance attorneys can discuss the penalties for delays in paying a claim. These penalties are spelled out in the Texas Prompt Payment of Claims Act (TPPCL) and are found in the Texas Insurance Code.

The amount of an insured’s claim (and/or the amount for which an insurer is liable) is often based on third-party invoices that the insured has not incurred, in amounts the insured cannot necessarily predict, at the time the insured submits its notice of claim to the insurer. Consider duty to defend or environmental clean-up coverage, where the amount of the claim can increase every month.

Naturally, there are questions regarding when the 18% penalty begins to accrue on such claims. The TPPCA language does not provide specific guidance on these calculations, but courts in the Fifth Circuit have recently indicated the methodology is based on the date of the TPPCA violation and not necessarily the date the cost was incurred.

Prompt Pay Law

September 17, 2016 | Mark S. Humphreys

Burleson insurance lawyers know that when an insurance company is slow to pay a claim that there are possible consequences to the insurance company under the Texas Prompt Payment of Claims Act (TPPCA).

Historically, one area of contention in TPPCA disputes has been the calculation of the penalty when an insurer violates an early claims-handling deadline and later denies a covered claim. Insurers have pointed out that §542.058 is the only subsection that references the enforcement provision (§542.060), and thus argue that only a violation of §542.058 triggers the penalty. The Fifth Circuit recently rejected this argument and ruled any violation of §§542.055-542.058 triggers the penalty, while the Texas Supreme Court has not addressed the issue.

Because courts have previously calculated the penalty interest when only a violation of §542.058 is pleaded and proved, there has been a dearth of guidance regarding when the penalty begins to accrue when an insurer violates §§542.055 or 542.056.

Prompt Payment Of Claims Act In Texas

September 15, 2016 | Mark S. Humphreys

It is important for Dallas and Fort Worth Attorneys to understand how the Texas Prompt Payment of Claims Act (TPPCA) works.

The deadlines imposed by the TPPCA are presented chronologically in terms of the claims-handling process.

First, §542.055 states the insurer shall acknowledge receipt of the claim, request information the insurer believes it requires, and begin investigation of the claim, within 15 days [or 30 days, for surplus lines insurers] of receiving notice of the claim;

Life Settlements – Life Insurance

September 13, 2016 | Mark S. Humphreys

Life insurance lawyers will at some point have a situation involving a life insurance policy and a life settlement. Understanding these life settlements is important. WealthManagement.com published an article that is educational. The article is titled “Survey Shows Life Settlements Remain Misunderstood.”

The life settlement industry has an exceptional opportunity to re-cast how it is perceived by the financial planning community. It should begin soon and stress eduction and opportunity.

Executives know that a key to growing any business is understanding the market and customers. The life settlement industry is no different, and for years it has relied on the financial services industry to help promote our message and value proposition. Recently, it was learned that despite more than 20 years in existence and countless educational efforts, life settlements remain misunderstood among many financial advisors – and there is the research to prove it.

Appealing Appraisal Awards

September 11, 2016 | Mark S. Humphreys

Palo Pinto County insurance lawyers know that it is very difficult to appeal appraisal findings. A hail damage case from the Sherman Division, Eastern District illustrates this. The opinion is styled, Ronald Studer v. State Farm Lloyds.

The issue before the Court was whether the appraisal award should be set aside due to mistake. Plaintiff’s home was damaged due to hail stones during a storm. Plaintiff filed a claim for damage to his roof, gutters, siding, windows, skylight, and glass solarium with State Farm. State Farm hired Rimkus Engineering to inspect the solarium and give a cause of loss. This report is contained in the courts’ opinion.

A lawsuit filed by Studer resulted and State Farm invoked the appraisal provision in the insurance contract. An appraisal was conducted that was adverse to Studer and he filed a motion to set aside the appraisal and State Farm filed a motion for summary judgment based on the appraisal.

Mediation And Insurance Lawsuits

September 10, 2016 | Mark S. Humphreys

Cresson insurance lawyers as well as those insurance lawyers in the rest of the Dallas and Fort Worth area will usually be ordered to mediate a case prior to any Judge allowing the case to go to trial. The reason for this is because of the high success rate of mediation. The San Antonio Division of the Western District recently had a case where an insurer tried to expedite the mediation time line by filing an “Expedited Motion to Compel” mediation. The case is styled, Vinings Insurance Company v. Todd Hughes and Pasadera Builder, L.P.

Vining alleges the policies at issue in this case require the insured to “cooperate with Vining in the investigation or settlement of the claim or defense,” and may not “voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without Vinings consent.” The policies further state that Vinings will “pay those sums that the insured becomes legally obligated to pay as damages” to those claims to which the policy applies, and has the “right and duty to defend the insured against any suit seeking damages” covered under the policy.

Vinings argues that it will suffer irreparable and significant harm if the case proceeds to arbitration before the parties engage pre-arbitration mediation, because Pasadera will demand that Vinings satisfy any arbitration award with Mr. Hughes, and will also require Vinings to pay its private attorneys’ fees. Further, Vinings states that Mr. Hughes agreed to mediate the case with mediator Lee Shidlofsky before engaging in arbitration. Vinings does not state that Pasadera ever agreed to participate in mediation. Pasadera argues that it should not be compelled to mediation less than three weeks before the commencement of arbitration; it also argues that Vinings does not appreciate the significance of Mr. Hughes claim in the context of the Cordillera Ranch community where Pasadera has constructed many luxury homes.

Covered Claims

September 8, 2016 | Mark S. Humphreys

Here’s one for an insurance lawyer to answer – What if I sell my house to someone and in the disclosure documents I fail to list many of the problems with the house? What if the buyers of the house sue me for fraud and negligent misrepresentations? Does my homeowners policy protect me when I am sued and does the policy cover any judgment that may be taken against me?

This is exactly what happened in a 2005 Northern District case, the opinion is styled, Allstate Texas Lloyd’s v. Meyers.

The plaintiff’s purchased a home from the sellers who were covered under the insurer’s standard form homeowners’ policy. After the buyers moved into the home, they learned that the house, pool and deck had various defects and that the sellers had known of and intentionally concealed those defects from the buyers. The buyers sued the sellers asserting claims of fraud and negligent misrepresentations seeking mental anguish and economic damages associated with the cost of purchasing the defective home and for repairs to it. The insurer initiated this declaratory judgment action seeking a determination that it had no duty to defend or indemnify the sellers.

Excluded Drivers And Named Driver Policies

September 6, 2016 | Mark S. Humphreys

Excluded drivers and Named Driver auto policies are the last thing someone wants to find out about the driver who caused the wreck. Here is some law that is helpful to know when an insurance company tells you the driver was not covered under the policy.

A starting point is the Texas Transportation Code, Section 601.076. This is contained in the Texas Driver Responsibility Act. Sec. 601.076. REQUIRED TERMS: OWNER’S POLICY. An owner’s motor vehicle liability insurance policy must:

(1) cover each motor vehicle for which coverage is to be granted under the policy; and (2) pay, on behalf of the named insured or another person who, as insured, uses a covered motor vehicle with the express or implied permission of the named insured, amounts the insured becomes obligated to pay as damages arising out of the ownership, maintenance, or use of the motor vehicle in the United States or Canada, subject to the amounts, excluding interest and costs, and exclusions of Section 601.072.

Can You Trust Insurance Company Claims Reports?

September 4, 2016 | Mark S. Humphreys

Insurance attorneys in the Dallas / Fort Worth area know to be suspicious of reports from insurance companies but even a story that recently ran in the New York Times was surprising. The story is titled, Long Island Company Charged In Insurance Scheme After Hurricane Sandy.

A Long Island engineering company and one of its former executives were charged on Monday in a scheme to minimize insurance payments to homeowners whose residences were damaged by Hurricane Sandy in 2012.

In a 50-count indictment, Eric T. Schneiderman, the New York attorney general, accused the company, GEB Hi-Rise Engineering, of Uniondale, N.Y., and Matthew Pappalardo, a former director, of forging documents and engaging in illegal business practices. The government said they had altered engineering reports that had been used to assess the structural damage to homes caused by the storm.

Insurance Court Fights

September 3, 2016 | Mark S. Humphreys

Sometimes the fights put up by insurance companies seem unnecessary. It is nice when a court agrees. This was the case in a Southern District, Houston Division case. It is styled, Houston Granite & Marble Ctr., LLC v. Mesa Underwriters Specialty Ins. Co.

Houston sued Mesa in State Court and Mesa had the case removed to Federal Court over an insurance coverage dispute. Houston, soon thereafter, filed a motion for non-suit without prejudice because its president had recently undergone triple by-pass heart surgery and would be unable to respond to discovery or assist in prosecuting the case, plus, the president is a material witness in the case.

Mesa responded by stating there must be conditions placed on the non-suit. One, that Mesa be reimbursed for expenses it had incurred including attorney fees. Two, that any re-filing of the lawsuit be in the Southern District of Texas. Three, that upon re-filing, Granite fully comply with Mesa’s requests for production and answer interrogatories.