Dallas Fort Worth Insurance Lawyer Blog

Tornado Damage And Appraisal Award

June 18, 2016 | Mark S. Humphreys

Dallas County insurance attorneys see tornado claims. Here is a case resulting from a tornado claim. It is from the Dallas Court of Appeals. It is styled, Halton v. American Risk Insurance Company, et al.

This is an appeal from an adverse summary judgment granted in favor or American. The parties dispute whether American properly and fully paid an appraisal award to repair damage to Halton’s home that was damaged by a tornado. This Court reversed the summary judgment.

The Halton’s home was damaged and American paid damages totaling $42,083.87. After the lawsuit was filed an umpire was hired to appraise the loss. The lose was determined to be $180,273.92 in replacement cost and $163,613.92 in actual cash value. The Halton’s deductible was $1,631.89. American issued additional checks totaling $102,548.04.

Attempting To Sue The Adjuster

June 16, 2016 | Mark S. Humphreys

Most insurance lawyers will attempt to keep any case they are involved with, out of Federal Court. One way of doing this is to sue the local adjuster who handled the claim. The Laredo Division, of the Southern District was inclined to agree with that method except the problem was showing that the adjuster the insured sued, did anything wrong. The style of the case is, Maria Rudolph v. Nationwide General Insurance Company, et al.

This is an insurance coverage dispute arising out of hail and storm damage to Rudolph’s property. Nationwide is an out of state insurer but adjuster Catherine Brown is the adjuster and a Texas resident. Brown’s Texas residency defeats the diversity jurisdiction to stay out of Federal Court. Rudolph filed a motion to remand.

The lawsuit was filed in State Court and Nationwide removed the case to Federal Court saying that Brown was fraudulently sued in order to defeat the diversity requirements of Federal Court removal.

ERISA Versus State Law

June 14, 2016 | Mark S. Humphreys

ERISA lawyers in the Dallas / Fort Worth can tell you how powerful ERISA is and that the rules governing ERISA plans pre-empt State rules governing insurance. This is argued in a Northern District, Dallas Division case styled, Curtis v. Metropolitan Life Insurance Company.

This case concerns a three-party contractual relationship between Curtis (Plaintiff), his employer (EFH), and MetLife. The contractual relationship is governed by ERISA.

Three documents encapsulate the terms of this relationship: the EFH Master Plan Document, the EFH Summary Plan Description (SPD), and the MetLife Certificate of Insurance (COI).

Hail Damage – Amount In Controversy

June 12, 2016 | Mark S. Humphreys

Lawyers who handle hail claims need to ready a McAllen Division opinion from the Southern District of Texas. The case is styled, Mirosalva Cantu v. Allstate Vehicle and Property Insurance Company.

Cantu filed suit in State Court and Allstate timely removed the case to Federal Court arguing that the amount in controversy exceeds $75,000. Cantu filed a motion to remand stating that the amount in controversy did not exceed $75,000. The Court denied the motion.

The removing party bears the burden of establishing whether federal jurisdiction exists, and the Court must resolve all doubts regarding whether removal jurisdiction is proper in favor of remand. The Court does not have subject matter jurisdiction under 28 U.S.C. § 1332 unless the parties are completely diverse and the amount in controversy exceeds $75,000. Generally, “the sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy.” However, when the state practice does not permit a demand for a specific sum, removal is proper if the removing party proves by a preponderance of the evidence that the amount in ontroversy exceeds $75,000. Defendant can satisfy this burden by (1) showing it is “apparent from the face of the petition that the claims are likely to exceed $75,000” or (2) setting forth “summary judgment-type evidence of facts in controversy that support a finding of the requisite amount.”

Co-operating With Insurance Investigation

June 11, 2016 | Mark S. Humphreys

Texas insurance attorneys will tell you that one of your obligations under your insurance policy is to co-operate with the insurance company investigation of your claim. A Houston Division, Southern District case illustrates how difficult matters can be when the co-operation is questionable. The case is styled, Resie’s Chicken & Waffles Restaurant, et al. v. Acceptance Indemnity Company, et al.

This case went to trial and the jury found in favor of Resie’s and against AIC. However, AIC argued that the jury finding in favor of Resie’s should be disregarded due to the jury making findings against Resie’s as it relates to Resie’s turning over financial records that were sought from Resie’s by AIC.

This declaratory judgement action was for breach of contract, violations of Chapters 541 and 542 of the Texas Insurance Code and DTPA violations.

Insurance And Hospital Liens

June 9, 2016 | Mark S. Humphreys

One of the issues Arlington insurance lawyers have to deal with is hospital liens.

Texas public policy strongly supports hospital liens, and it is important to understand that these liens aren’t just applicable to hospitals; they also operate in the benefit of EMS providers and doctors at teaching hospitals whose bills are not already included in the hospital bill. The right of hospitals and certain other medical providers to be paid from settlement proceeds or a judgment begins with the Hospital Lien Statute, found in Chapter 55 of the Texas Property Code. It olds, in pertinent part, that a lien attaches to “any cause of action, judgment or settlement” received as a result of an accident for which the person was admitted to a hospital within 72 hours of the injury, as well as any hospital to which the injured party subsequently transferred for the same injuries. This is found in at Section 55.002(a),(b). These liens must be filed prior to settlement in order to be valid, and hospital liens are limited to “reasonable and regular” charges within the first 100 days following the injury. Even the attorney representing the injured party may have to wrestle with the hospital for first priority, according to the 1985, Texas Supreme Court case styled, Bashara v. Baptist Memorial Hospital System.

The intent of the Hospital Lien statute was to save lives, by “…inducing hospitals to receive a patient, injured by the negligence of others, by giving the hospital a lien on the claims, suit or settlement of the patient.” This is cited in the 1979, Dallas Court of Appeals opinion styled, Baylor University Medical Center v. Travelers.

Life Insurance And Committing A Crime

June 7, 2016 | Mark S. Humphreys

Dallas area life insurance attorneys will occasionally see a situations like this 1997, Dallas Court of Appeals case. The case is styled, Grant v. Group Life & Health Insurance Co.

Grant used a pry bar to break into the residence of Stokes. When Grant entered the residence Stokes shot him five times, killing him. Grant’s wife sued Group Life to recover benefits under an accident policy for the death of her husband. Group Life moved for summary judgement on the basis that Grant died while committing a burglary and, therefore, his death was not accidental. The trial court granted the summary judgment and Grant appealed.

In it’s ruling, the Court said that because Grant’s death was not accidental, the trial court correctly granted Group Life’s motion for summary judgement. Grant argues that because Group Life id not furnish her with a certificate of insurance, it is estopped from relying on undisclosed exclusions. Because the policy in question does not provide coverage for Grant’s death the policy exclusions are irrelevant.

Vacancy Clause In Homeowners Policy

June 5, 2016 | Mark S. Humphreys

Colleyville insurance lawyers should be able to discuss “vacancy” clauses in homeowners policies. A 1997, San Antonio Court of Appeals case discusses the vacancy clause found in a USAA homeowners policy. The style of the case is Lynn v. USAA Casualty Insurance Company.
Mr. and Mrs. Lynn’s country home was insured by USAA. The house was completely destroyed by fire and USAA denied coverage based on vacancy and arson. The Lynn’s brought suit against USAA for breach of contract and breach of duty of good faith and fair dealing. The trial court granted USAA’s Motion for Summary Judgement and this court affirmed the ruling.
Although there were some contents in the house six months before the fire, the testimony established that the house was vacant when it burned. The Court of Appeals stated that the house was “without contents of substantial utility” due to the lack of heating equipment, air conditioning, appliances, sleeping accommodations or efforts to preserve the contents for several months. Therefore, the “vacancy” clause precluded recovery. Furthermore, although the illegal acts (such as arson) of a co-insured do not bar recovery under an insurance policy, the “vacancy” clause, on the other hand, does not have a limitation for who “caused” or was aware of the “vacancy.” The clause excludes coverage regardless of the innocent spouse’s knowledge of the “vacancy.” Finally, a bad faith claim is established by showing that the insurer had no reasonable basis for denying the claim or that the insurer failed to investigate. In this case, USAA was justified in denying the claim under the “vacancy” clause. Therefore, there was no bad faith.

Life Insurance – Intentionally Killing Insured

June 4, 2016 | Mark S. Humphreys

A Texas life insurance lawyer will want to keep this case in his file. It is a 1941, opinion from the Waco Court of Appeals and is styled, National Life & Accident Ins. Co., Inc., et al. v. Thompson.

Velma Thompson instituted this suit for the recovery of $200 and statutory penalties alleged to be due her as beneficiary in a policy of insurance on the life of her husband, Era Thompson. Defendant answered with a plea in abatement on the ground that plaintiff had assigned the policy sued upon to one Braswell, and, subject thereto, with general demurrer and general denial. The brother and sisters of the insured filed their plea of intervention, asserting their right to recover the proceeds due under said policy, by reason of their allegation that plaintiff wilfully brought about the death of her husband. Defendant answered further, alleging that it was unable to determine who was entitled to receive the proceeds due under said policy and that it was paying into the registry of the court the sum of $200 to abide the judgment in the cause, and it prayed that it be dismissed from further liability with its costs.

The case was submitted to a jury on special issues, in response to which they found that plaintiff did not wilfully bring about the death of the insured; that a common-law marriage was in existence between plaintiff and the insured at the time of the latter’s death; and that $100 would be a reasonable attorney’s fee for the legal services rendered in prosecuting plaintiff’s case. Interveners and defendant each presented separate motions for judgment in their favor, respectively, non obstante veredicto. The court rendered judgment in favor of plaintiff and against defendant for the sum of $200, with interest and court costs, and that interveners take nothing. Each of the parties filed separate motions for new trial, all of which were overruled, and to which each duly excepted and gave notice of appeal.

Hail Damage And Prompt Notice Of Claim

June 2, 2016 | Mark S. Humphreys

Lawyers handling hail damage claims will tell you to immediately check for damage after a hail storm and immediately report any damage to your insurance company. The reasons for doing this are illustrated in an opinion from the U.S. District Court, Dallas Division. The style of the case is, Hamilton Properties v. American Insurance Company.

This case arises out of a dispute regarding an insurance company’s decision to disclaim coverage and deny its customer’s claim for property damage following a hailstorm. Plaintiffs are suing for:

(1) breach of contract; (2) violations of the Texas Deceptive Trade Practices Act; (3) violations of the Texas Insurance Code; (4) breach of the duty of good faith and fair dealing; (5) breach of fiduciary duty; (6) misrepresentation; and (7) common law fraud by misrepresentation. Defendant The American Insurance Company (“AIC”) has moved for summary judgment with respect to all of these claims. This Court granted the motion.