Dallas Fort Worth Insurance Lawyer Blog

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.

Agent Does Not Have To Inform About Terms Of Coverage

July 17, 2016 | Mark S. Humphreys

Grand Prairie insurance lawyers will often run into situations where a person says, “My agent didn’t tell me about that.” A Houston Court of Appeals [1st Dist.] opinion discusses some of what an agent is responsible for telling a customer. The case is styled, North American Shipbuilding v. Southern Marine & Aviation Underwriting.

This case involves a builder’s risk insurance policy to insure the hull of a ship during construction. North American purchased the builder’s risk policy through the insurance brokerage firm of Adams & Porter. Adams & Porter purchased the policy through a wholesale broker, Southern Marine, from the Underwriters. The policy insured against “all risks of physical loss of or damage to the vessel occurring during the currency of this policy except: … in the event that faulty design of any part or parts should cause physical loss or damage to the vessel.”

North American tested the welds on the hull. Certain welds failed the test. The cause was improperly mixed welding gas that North American had received from Swisco. North American replaced all the welds. North American then demanded $1,056,795.00 from Underwriters. The Underwriters denied coverage. North American sued the Underwriters for breach of insurance contract, breach of duty of good faith and fair dealing, fraud, violations of the Texas Insurance Code, and punitive damages. North American sued Southern Marine for breach of duty of good faith and fair dealing, fraud and intentional misrepresentation, negligent misrepresentation, common law negligence, violations of the insurance code and punitive damages. Both the Underwriters and Southern Marine filed motions for summary judgment. The trial Court granted summary judgments for the Underwriters and Southern Marine on all claims. North American appealed.

Does An Agent Have To Tell The Customer About Exclusions?

July 16, 2016 | Mark S. Humphreys

Texas insurance lawyers need to know when an insurance agent is liable for what he says or does not say and when he is not liable. This is partially illustrated in a 2000, San Antonio Court of Appeals case styled, Nwaigwe v. Prudential Property & Casualty Insurance Company.

Moses Nwaigwe was a landlord who purchased a fire insurance policy issued by Prudential. A fire destroyed the property (which was empty at the time) and Prudentail denied Nwaigwe’s claim for property damage based on the policy’s vacancy clause which excluded fire coverage for a building vacant for sixty consecutive days immediately before the loss. Nwaigwe sued Prudential and his insurance agent for violations of the Insurance Code and Deceptive Trade Practices Act (DTPA), breach of common law duty of good faith and fair dealing, fraudulent misrepresentation, negligence, and gross negligence. Prudential and the agent were granted summary judgment and Nwaigwe appealed.

The trial Court’s grant of summary judgment was affirmed by the San Antonio Court of Appeals. Nwaigwe claimed that the failure by the carrier and the agent to advise him of the vacancy clause constituted deceptive conduct which constituted violations of the DTPA and the Insurance Code. The San Antonio Court observed that “no specific misrepresentations were made concerning coverage, and no material information was withheld from Nwaigwe with the intent to induce him to enter into the transaction.” Having decided that there were no mispresentations, the Appellate Court dismissed all of Nwaigwe’s claims and upheld the trial Court’s verdict.

Reservation Of Rights Letter

July 14, 2016 | Mark S. Humphreys

Dallas insurance attorneys need to be able to understand “reservation of rights” letters. A 1999, Dallas Court of Appeals opinion discusses an issue with these letters. The opinion is styled, Aetna Casualty & Surety Co. v. Naran.

On July 28, 1986, Naran’s home, garage and two cars were destroyed in a fire. The fire was caused by a catalytic converter installed on Naran’s 1984 Mercedes. It was installed by a franchisee of Village Imports. Naran sued Village Imports alleging negligent installation, breach of warranty, and DTPA violations. Village forwarded the lawsuit with a notice of loss to Aetna, their insurer. Aetna issued four different policies to Village, but all policies expired prior to the date of the fire. However, when the notice of loss was sent to Aetna, it mistakenly indicated that the date of loss was July 28, 1985 instead of 1986. Aetna hired an attorney to defend Village. Subsequently, Aetna learned of the actual date of the fire, and Village agreed to allow the withdrawal of the attorney hired by Aetna. A judgment was entered against Village, and Naran sued Aetna directly as a judgment creditor. The trial court granted Naran’s motion for summary judgment, and denied Aetna’s motion for summary judgment and this appeal was filed.

This Dallas Court of Appeals reversed the trial court. Naran had the burden of proving that the damages occurred during the Aetna policy period. Naran contended that the damage to Naran’s car commenced in March of 1985 when Naran began to drive the car with the defectively installed catalytic converter. Naran introduced expert testimony that the heat of the converter caused the moisture to be removed from the carpet in the car thereby lowering the ignition temperature of the carpet. The carpet was then eventually ignited from the heat. Naran argued that the continued heating was a continuous process of damage to the car, and he took the position that the court should apply the exposure theory or the continuous exposure theory to determine if property damage occurred during the policy period.

Yes, Insurance Companies Cheat

July 12, 2016 | Mark S. Humphreys

Insurance Companies Cheat. Yes,it’s true. Insurance law attorneys see this all the time. While the majority of claims are handled in a competent manner and the policy holder is at least partially satisfied with the outcome, insurance lawyers are constantly confronted with the situations where the insurance company is doing wrong. The Insurance Journal published an article on May 31, 2016, titled, Supreme Court to Hear State Farm’s Appeal of Katrina False Claims Ruling. It is worth reading.

The U.S. Supreme Court on Tuesday agreed to hear an appeal by State Farm contesting a jury finding that the insurance company defrauded the federal government when assessing damage caused by Hurricane Katrina in 2005 along the Gulf of Mexico coast.

The court will review a 2015 ruling by the New Orleans-based 5th U.S. Circuit Court of Appeals upholding the verdict in a suit brought under the federal False Claims Act, which lets people sue over allegations that the government has been defrauded.