Dallas Fort Worth Insurance Lawyer Blog

Exclusions In Homeowners Policies

August 4, 2016 | Mark S. Humphreys

Fort Worth insurance attorneys will advise their clients to carefully read the exclusions in their homeowners policy. A 2006, Houston Court of Appeals [14th Dist.] case illustrates why. The opinion is styled, Fire Insurance Exchange v. Sullivan.
The insured brought suit against Fire Insurance Exchange for breach of contract, bad faith, violations of the DTPA and the Texas Insurance Code. A pipe in the attic had burst at the home of the insured, to which the carrier’s claims adjuster assessed the repairs at $2,944.75. The insured obtained a second estimate which was an additional $5,000. The insured hired an attorney who sent a written claim to the carrier, and after claiming they did not receive a satisfactory response from the carrier, the insured hired a contractor. The contractor found several additional leaks, which the insured reported to the carrier. The carrier assigned a second claims adjuster who concluded nearly the entire house had mold growth. Subsequently, the carrier issued two checks to the insured, totaling $82,430.57. The insured was unsatisfied with this amount and brought suit alleging the delay and mishandling of the claims by the carrier resulted in the deterioration of the home. In the trial court, the jury found that the carrier had breached the dwelling coverage portion of the policy, but not the personal property and additional living expenses coverage provisions. However, the jury awarded costs for mold remediation and repair of the home, as well as property damage. Ultimately, the trial court concluded that the insured was entitled to: (1) recover damages on the breach of contract and DTPA claims; (2) recover penalty under the Prompt Payment of Claims Act; and recover reasonable attorney fees. The trial court awarded $85,864.78 in total damages. The carrier appealed.
This Court reversed the trial court judgment in favor of the insured and rendered judgment that the insured take nothing on the claims against the carrier. The court improperly disregarded the jury’s finding that accidental leakage or discharge caused only 45% of cost of mold remediation; the trial court should have disregarded the jury finding on cost to clean or replace personal property since the policy provided no coverage for that loss; the cost to remediate damage to personal property could not be awarded to insureds under the DTPA or the Prompt Payment of Claims Act; any liability for interest stopped when the insurer tendered more than the amount it owed prior to trial; the insureds could not recover attorney fees on claims for breach of contract or DTPA; and the parties stipulation limited liability for attorney fees to 40% of interest. The potential total liability of carrier to the insured was $64,534.50, which was less than the amount the carrier had previously tendered to the insured. The court also noted that the jury did not find that the carrier breached the personal property portion of the policy and failed to attribute any cause of the damage to the covered causes. Therefore, the jury’s award for damages for that breach under the Prompt Payment Act should have been disregarded. Finally, the court found that the carrier’s unconditional payments should have been applied before assessing attorney’s fees and interest.

Bad Faith Insurance Law In Texas

August 2, 2016 | Mark S. Humphreys

Insurance attorneys in Dallas can tell you where the relevant laws to be used in insurance bad faith cases can be found. One place is the Texas Insurance Code.

Here is a starter.

Sec. 541.002. DEFINITIONS. In this chapter:

Life Insurance And Marijuana Business Man???

July 31, 2016 | Mark S. Humphreys

Life insurance attorneys might find this story interesting. It is from U.S. News. The story is titled, Marijuana Business Man Denied Life Insurance.

A successful businessman with a growing footprint in several states says he was shocked when he was refused a personal life insurance policy by Mutual of Omaha, one of the nation’s largest insurers.

The company informed Derek Peterson, CEO of Terra Tech Corp., in a letter dated June 13 that “we cannot accept premium[s] from individuals or entities who are associated with the marijuana industry.”

Agent Responsibility For Coverage

July 30, 2016 | Mark S. Humphreys

Dallas insurance lawyers need to be able to discuss with clients when an insurance agent may or may not have liability for their actions or lack thereof. A 2003, Beaumont Court of Appeals case is good reading on this subject. The case is styled, Stroman Realty, Inc. v. State Farm Lloyds.

Stroman sued State Farm for breach of contract, violations of the Texas Insurance Code, and breach of the duty of good faith and fair dealing. State Farm filed a motion for summary judgment.

Stromans’ Insurance Code claims focused on alleged false, misleading, or deceptive representations on the part of Barnhill as the insurance agent representing State Farm Lloyds. However, an examination of the deposition of Wayne Stroman, president of Stroman Realty, Inc., upon whose testimony they rely, provides no support for Stromans’ allegations. By Stroman’s own testimony, he was responsible ultimately for there not being named as an insured on any insurance policy. The entirety of Stroman’s testimony consisted of admitting to being unaware of even very basic or generalized knowledge of the insurance circumstances. Stroman’s deposition contains many responses using the ambiguous word “we” with regard to insurance coverage for his many companies and business interests. Stroman was under the mistaken impression that his company was covered by liability insurance as an entity separate and distinct from Stroman Realty, Inc. But nowhere in Stroman’s deposition testimony does he explicitly state that he or anyone else in his employ ever made a specific request to Mack Barnhill to cover Ad-Net, Inc. in a separate liability insurance policy. Nor does his deposition indicate that at any time Stroman specifically requested that Barnhill add Ad-Net, Inc. to the existing policy for Stroman Realty, Inc.

Get Experts For A Hail Damage Claim

July 28, 2016 | Mark S. Humphreys

Lawyers who handle hail damage claims can tell you that most of the time a person who has experienced hail damage and had their claim for benefits denied, needs to have an expert help them in the lawsuit that will result. An insured can always walk away and accept the insurance company denial but if you want to fight for the benefits you have paid for, an expert is well worth while.

Usually the roofer who will be doing the repairs will qualify as an expert and just as often he will not charge an expert fee or if he does, it will be minimal. An experienced insurance lawyer can tell you if your expert will be a good witness.

When an expert is not hired,or he does not do a good job, the result will be a disappointing loss like one of those described in the Insurance Journal in June, 2016. The Insurance Journal story is titled, Texas Insurers Hope Court Decisions Will Curtail Hail-Related Lawsuits.

What Is An “Occurrence” In An Insurance Policy?

July 26, 2016 | Mark S. Humphreys

Arlington insurance lawyers need to understand the definition of “occurrence” as used in an insurance policy. A 1998, San Antonio Court of Appeals opinion lends some insight into how the Courts look at that definition. The opinion is styled, Foust v. Ranger Insurance Company.

In 1994, Foust farmed various tracts of land which abutted land owned and farmed by Walters Farms. In May 1994, Walters Farms retained Lindeman to crop dust the milo crop on its property. The herbicide used is dangerous to cotton. Some of the herbicide drifted from the target area on to various tracts of land being farmed by Foust, causing severe damage to Foust’ cotton crop. Foust sued Lindeman, Walters Farms and the manufacturer of the herbicide for loss of income suffered as a result of the damaged cotton crop.

Ranger insured Lindeman under an aircraft insurance policy which had limits of $100,000 per occurrence and $200,000 per policy. Ranger provide Lindeman a defense in the underlying litigation and instituted this declaratory judgment action to determine whether the damages arose from a single occurrence or multiple occurrences under the terms of the policy. The trial court granted Ranger’s Motion for Summary Judgment finding, as a matter of law, that Lindeman’s application of the herbicide on May 14, 1994, amounted to a single occurrence under the terms of the Ranger policy.

Knowledge Of Policy And The Law

July 24, 2016 | Mark S. Humphreys

Irving insurance attorneys know that an insured is responsible for knowing what is in their policy. Courts have also ruled that insureds are responsible for knowledge of certain areas of the law. A Federal, Galveston Division opinion is a good read to understand this imputed knowledge. The opinion is styled, Danuta Lobeck v. Tina M. Licatino, et al.

The basic premise of each of Lobeck’s claims, when considered under relevant law, makes any lengthy summary of the facts in the light most favorable to Lobeck a waste of time. In a nutshell, Lobeck bought property that, unknown to her, was located within the boundaries of the Coastal Barrier Resources System. Lobeck’s mortgage loan required her to maintain flood insurance on the property so she innocently procured an SFIP through these Defendants. 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 coverage. She received nothing for her property damage. Consequently, Lobeck filed suit against, inter alios, these Defendants alleging that they 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 these Defendants, upon which she ignorantly, but reasonably relied, caused her losses.

The United States Supreme Court held that all citizens are charged with the knowledge of the law regarding federal insurance programs, like the NFIP. The Supreme Court has held that citizens seeking to benefit from a federal benefit program, like the NFIP, are charged with familiarizing themselves with the requirements of that program “and may not rely on the conduct of government agents contrary to the law.” The Fifth Circuit declared that a prospective SFIP holder cannot rely on a WYO’s representations to determine a property’s SFIP insurability, but instead has his own duty to determine whether its location in the CBRS disqualifies it. The Court has held that under this reasoning any reliance by a Plaintiff on misrepresentations of private insurance agents regarding the scope of coverage afforded by an SFIP are unreasonable as a matter of law and, therefore, cannot raise a genuine issue of material fact to avoid summary judgment.

Discussions With Insurance Adjusters

July 23, 2016 | Mark S. Humphreys

Fort Worth insurance lawyers will tell clients to be very careful when thinking they can trust an insurance adjuster to treat them properly. This is illustrated in the 2000, Court of Appeals [14th Dist.] case styled, Nell Warden v. Supertel Hospitality, Inc, et al.

On May 9, 1997, Warden sued appellees for personal injuries allegedly sustained on May 12, 1995 in an elevator at the Super 8 Motel in College Station, Texas. She did not request issuance of citation until September 25,1997. Supertel and Super 8 were served with citation on September 29, 1997 and Dover was served with citation the following day.

Each defendant filed a Motion for Summary Judgment arguing Warden failed to use due diligence in serving appellees with citation. They were not served until four-and-a-half months after the statute of limitations expired. Warden argued that summary judgment should be denied because the insurance adjuster indicated that service should be delayed to see if Warden’s claim could be settled through negotiations and due to the old age and poor health of appellant.

Double Check Your Insurance Agent

July 21, 2016 | Mark S. Humphreys

The Insurance Journal published an article in June 2016 that points out the minority of insurance agents. However, insurance attorneys all over the state can describe situations where an agent simply cheats people. The Journal article is titled, Texas Insurance Agent Arrested In Scam Targeting Elderly Clients.

A Lubbock, Texas-based insurance agent has been arrested on charges of defrauding elderly victims through an annuity scam.

The Texas Department of Insurance reported that Joseph Allen Gaines was arrested last month on charges that he kept clients’ money that was intended to be used to purchase annuities.

Does An Insurance Agent Have A Duty To Obtain Additional Coverage

July 19, 2016 | Mark S. Humphreys

Arlington insurance lawyers need to understand the situations where an insurance agent has responsibility to his customer and when not. A 1996, Fort Worth Court of Appeals cases discusses this issue. The case is styled, Sledge v. Mullin.

On January 25, 1988, Ruby Sledge notified her insurance agent, Mullin, that she had acquired a 1980 Chevrolet Citation and that she was selling a 1975 Nova to her son, Dale. Ruby had three cars insured with Republic Insurance Company and advised Mullin that she could not afford to insure a fourth car. Ruby instructed Mullin to substitute the Citation for the Nova on her policy. Ruby’s son, Dale, was involved in an accident on February 4, 1988. Republic denied coverage for the claim and Ruby and Dale sued Republic claiming coverage and alternatively sued Mullin for negligence and violations of the Texas Insurance Code and the DTPA for not properly advising Ruby and for not ensuring that the Nova remained covered.

In a prior appeal, the Court determined that because Ruby instructed Mullin to cancel the insurance on the Nova, there was no coverage by Republic for the collision. Ruby contends that Mullin should have told her that the policy’s provisions automatically extended insurance coverage to any car she acquired, such as the Citation, for the first thirty days of her ownership, and that if she had been so advised she would have had coverage on all four cars on the date of the collision. There was no evidence, however, that Ruby would have elected to accept that “automatic” insurance coverage. Further, in the absence of a showing that there is a special business relationship between an insured and its agent in which they share an expectation that the agent habitually will satisfy all of the customer’s insurance needs without consultation, that there is no legal duty on the part of an insurance agent to expand the insurance protection of its customer, even if the agent had knowledge of the customer’s needs for additional insurance. In this case, there was no special relationship between Mullin and Ruby, Mullin simply complied with Ruby’s specific instructions.