Dallas Fort Worth Insurance Lawyer Blog

Hail Damage And Experts

May 29, 2023 | Mark S. Humphreys

Hail damage claims sometimes require experts to assist in the claim. This is the case in a 2023 opinion from the Western District of Texas, San Antonio Division. The opinion is styled, PMJ Bleu Terre Management, LLC, v. AmTrust Insurance Company Of Kansas, Inc.

AmTrust filed a motion to exclude the expert testimony of a roofing expert hired by PMJ to testify about wind and hailstorm damage to PMJ’s property. AmTrust denied the claim stating that the hail damage found on the property predated the policy period by a couple of months and therefore fell outside the scope of coverage. This lawsuit followed.

AmTust’s motion arises under the standards set forth in Rule 702 of the Federal Rules of Evidence. Rule 702 of the Federal Rules of Evidence was amended to provide that a witness “qualified as an expert . . . may testify . . . in the form of an opinion . . . if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. When expert testimony is challenged, the burden of proof rests with the party seeking to present the expert testimony.

Hail Damage – Cosmetic Exclusion

May 27, 2023 | Mark S. Humphreys

Hail damage claims are common and the wording of “Cosmetic Damage” exclusions that apply to these types of claims are important for an insurance attorney to understand. This issue is discussed in a 2023 opinion from the Western District of Texas, San Antonio Division. The opinion is styled, Charles Wall and Franze Wall v. Safeco Insurance Company Of Indiana.

This case is writing its opinion in response to Safeco’s motion for Summary Judgement.

Both sides agree that this case arises out of a May 2020 hailstorm. The primary dispute is whether the damage from the storm is excluded from coverage by an exclusion for cosmetic damage. As the summary judgment movant, Safeco bears the initial responsibility of informing the district court of the basis for its motion. Safeco argues that “there is no competent summary judgment evidence that Safeco was unreason- able in handling the insureds’ claim.” It contends that “this case concerns a bona fide dispute as to coverage.” It later argues that “there is no evidence it breached the policy.” As for Plaintiff’s bad faith and related claims, Safeco argues that Plaintiffs cannot show it acted unreasonably. And Safeco further argues that there is no evidence that it engaged in any conduct entitling Plaintiffs to treble or exemplary damages, mental anguish, emotional distress, or fraud.

Insurance Company Delay In Paying A Claim

May 22, 2023 | Mark S. Humphreys

When an insurance company delays in paying a claim, there are often times remedies. Each case has to be looked at to determine what can be done. This issue is discussed in a 2023 opinion from the Southern District of Texas, Victoria Division. The opinion is styled, Naomi Odom v. Central Mutual Insurance Company.

This is a case wherein Odom suffered hurricane damage and made a claim for benefits. Central Mutual made an initial payment and then two additional payments. Later, another payment was made.

Odom was unsatisfied and eventually filed suit alleging breach of contract and other extra-contractual claims. Central Mutual invoked appraisal and upon completion of the appraisal, paid substantially more money on the claim.

Who Is The Insurance Agent An Agent Of – The Insurer Or Insured

May 20, 2023 | Mark S. Humphreys

Most insurance lawyers would think an insurance agent is the agent of the insurance company. But, there are situations where the insurance agent is the agent of his customer.

Here is a 2023 opinion wherein this topic is discussed. The opinion is from the Thirteenth Court of Appeals and is styled, Bill Wendlandt, 120-MP Victoria Ltd, and Laurent Tower, LLC, v. Certain Underwriters at Lloyd’s, London, Subscribing To Policy Nos. AOP-170109 And AQS-170213, et al.

This is an appeal from a summary judgement in favor of Underwriters.

Life Insurance – Electronic Funds Transfer

May 15, 2023 | Mark S. Humphreys

Life Insurance lawyers will eventually receive a phone call wherein the potential new client complains that the life insurance company quit making agreed upon payments for the life insurance from the potential client’s bank account.

Here is a 2023 opinion from the Southern District of Texas, Victoria Division, that discusses this issue. The opinion is styled, Gloria Fric v. Allstate Life Insurance Company.

The opinion discusses several legal issues. The focus here will be the issue related to the electronic funds transfer.

Life Insurance – Duty Of Good Faith And Fair Dealing

May 13, 2023 | Mark S. Humphreys

Life insurance lawyers and other attorneys dealing with insurance companies will often speak of the insurance company “duty of good faith and fair dealing.” This issue is discussed in a 2023 opinion from the Northern District of Texas, Dallas Division. The opinion is styled, Avery D. Ensley v. Genworth Life and Annuity Insurance Company.

The facts of the case can be read in the opinion. It is the discussion related to the issue of the “duty of good faith and fair dealing” that is discussed here.

The Court addressed Plaintiffs bad faith claim. Plaintiff alleges that (1) Defendant breached its duty when it failed to adequately notify Plaintiff of premium changes, the Policy’s alleged depleted cash value, and the Policy’s pending lapse; (2) Defendant breached its duty by failing to proceed with automatic withdrawals until Plaintiff was notified of the deficit and given an opportunity to make the requisite payment; and (3) Defendant breached its duty when it failed to reinstate the Policy.

Bad Faith Insurance And Statute Of Limitations

May 8, 2023 | Mark S. Humphreys

Lawyers handling insurance claim must have an understanding of the statute of limitations for bad faith claims. This is illustrated in a 2023 opinion from the Western District of Texas, Waco Division. The opinion is styled, Yvan Jayne v. Health Care Service Corp., A Mutual Legal Reserve Co., D/B/A Blue Cross And Blue Shield Of Texas., et al.

A reading of the case will show the facts of this specific case but shown here is the law relating to the statute of limitations on bad faith claims.

Defendant moved to dismiss Plaintiff’s bad–faith breach and Chapter 541 causes of action, arguing that they are barred by the statute of limitations. Defendant has the burden of proving its affirmative defense, including the date on which limitations commenced.

Life Insurance Lawyers – Intent To Deceive

May 6, 2023 | Mark S. Humphreys

Life Insurance Attorney must read this 2023 opinion from the Texas Supreme Court. The opinion is styled, American National Insurance Company v. Bertha Arce.

This is arguably the most important life insurance opinion in many years in Texas and centers around whether or not the insurer must prove intent to deceive when denying a claim for life insurance benefits. The language of the Court in defining this issue is thus:

The primary issue before us is whether the common-law scienter requirement is repugnant to the plain language of section 705.051 of the Texas Insurance Code, which provides that “[a] misrepresentation in an application for a life, accident, or health insurance policy does not defeat recovery under the policy unless the misrepresentation: (1) is of a material fact; and (2) affects the risks assumed.”

The Insurance Policy Has To Be Read Carefully

May 1, 2023 | Mark S. Humphreys

Most people who buy a homeowners insurance policy think that if anything happens to cause damage to their home, that they are covered. Well, that is simply not case way to often. All those pages of the policy are pages explaining what is not covered or placing limitations on what is covered.

Here is a 2023 opinion from the Northern District of Texas, Amarillo Division that deals with a homeowners claim. The opinion is styled, Laur v. Safeco Insurance Company of Indiana.

This opinion is the result of a motion for summary judgment being filed by Safeco.

Reasons To Not Delay In Seeking A Remand

April 29, 2023 | Mark S. Humphreys

As has been discussed many times on this Blog, insurance companies prefer to litigate in Federal Court rather than State or County courts. When an insurance company removes a case to Federal court the insured needs to be prompt in seeking a remand to the State or County court from which is was removed.

This is illustrated in this 2023 opinion from the Northern District of Texas, Dallas Division. The opinion is styled, Thomas Dettmer v. Safeco Insurance Company of Indiana.

Dettmer alleges hail damage to his property. Safeco hired Madsky Managed Repair (Madsky) to inspect the property. Safeco asserts the damages do not exceed the deductible in the policy. Dettmer hired JT Roofing who asserts the damage exceeds $62,826. In an effort to reconcile the vast disparity, Safeco hired ProNet to double check Madsky’s assessment. ProNet’s engineer, Marc Camacho, inspected the property and concluded that the damage to the residence resulted from “intentional mechanical damaged performed … in an attempt to replicate storm damage.”