ERISA lawyers should read the opinion 2016, opinion from the Houston Division, Southern District of Texas. The case is styled, Margaret Myklebust v. McDermott, Inc., et al.
Plaintiff sued MetLife seeking a declaration that she is entitled to recover life insurance benefits attributable to the decedent, John Drayton, as his surviving spouse.
A Motion For Summary Judgment was filed and the Court ruled in favor of Plaintiff. In rendering its decision the court discussed the facts of the case.
The “Eight Corners Rule” is unique to insurance law. Dallas / Fort Worth insurance lawyers should be able to explain this rule to their clients. A 2016, Fourteenth Court of Appeals opinion explains the law related to this rule. The style of the case is, Allstate County Mutual Insurance Company v. Bobby Wootten and Mary Wootten, D/B/A Wootton Construction and is an appeal from the 434th Judicial District Court.
In the Policy at issue, Allstate promised to defend and indemnify the Woottons. The duty to defend is distinct from, and broader than, the duty to indemnify. An insurer must defend its insured if a plaintiff’s factual allegations potentially support a covered claim, while the facts actually established in the underlying suit determine whether the insurer must indemnify its insured. Thus, an insurer may have a duty to defend but, in the long run, no obligation to indemnify.
In determining whether an insurer has a duty to defend its insured, Texas courts follow the eight-corners rule, also known as the complaint-allegation rule, which the Supreme Court of Texas has described as follows: An insurer’s duty to defend is determined by the third-party plaintiff’s pleadings, considered in light of the policy provisions, without regard to the truth or falsity of those allegations. Thus, even if the allegations are groundless, false, or fraudulent the insurer is obligated to defend. In making the duty-to-defend determination, the court must resolve all doubts regarding the duty to defend in favor of the existence of a duty, and the court will construe the pleadings liberally. If the petition does not contain factual allegations sufficient to clearly bring the underlying case within or without the coverage, the general rule is that the insurer is obligated to defend if the petition potentially includes a claim that falls within the coverage of the policy. The duty to defend is not affected by facts ascertained before suit or developed in the course of litigation, or by the ultimate outcome of the suit. In applying the eight-corners rule, courts may not read facts into the pleadings or look outside the pleadings; but, the eight- corners rule does not require the court to ignore the inferences that logically flow from the facts alleged in the petition. If a petition potentially includes a covered claim, the insurer must defend the entire suit. With this legal standard in mind, the courts then turn to the language of the Policy.
Insurance lawyers in Texas might find this article interesting. It was published by the Insurance Journal in April 2016. The title of the story is “Carmakers Want Insurers To Help Boost Compliance With Recalls.” It might not be a bad idea.
Major carmakers want U.S. auto insurance companies to help persuade millions of American car owners to get recalled vehicles fixed.
The new push comes as a U.S. House panel will hold a hearing Thursday on efforts by the National Highway Traffic Safety Administration (NHTSA) to reduce the number of uncompleted vehicle recalls.
Texas insurance lawyers, with the prevalence of hunting in the state, may see a situation where hunting needs to be defined. A 1989, Corpus Christi Court of Appeals case addressed this issue in an opinion. The opinion is styled, Warrilow v. Norrell.
In that case three hunting friends, Norrell, Kerr, and Wolfe, had been on a deer hunting trip in Colorado. Upon arriving, the three men rented a four-wheel drive vehicle from a local resident for easy transport to and from the hunting fields. On the last day of the hunt, Norrell shot a deer and secured it to the vehicle, while Kerr did not. To take advantage of the last few hours of the hunt, Norrell suggested that Kerr keep his holster and fully loaded pistol handy in case they spotted a deer on the way to return the vehicle.
On the way to return the vehicle, the left rear tire went flat, and the three hunters exited the vehicle to change the tire. To assist in the operation, Kerr removed his belt and moved to set his holster on the ground. Tragically, he dropped the pistol, which then discharged and hit Norrell in the left temple. Norrell died almost a week later. Norrell’s family first brought suit agains the pistol manufacturer, Ruger, on product defect theories. Ruger then made Kerr a third-party defendant and sought contribution. Kerr’s homeowners insurer, Foremost, provided a defense and also tendered its $50,000 limits in contribution to Ruger. The Norrell’s next brought suit directly against Kerr.
What if someone is killed while that someone is committing a felony. Life insurance lawyers in the Dallas – Fort Worth area may be presented with that scenario. Here is how a 1997, Dallas Court of Appeals court looked at the situation. The case is styled, Grant v. Group Life & Health Insurance Company.
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 judgment 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.
Because Grant’s death was not accidental, the trial court correctly granted Group Life’s Motion for Summary Judgment. Grant argues that because Group Life did 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’s exclusions are irrelevant.
Dallas insurance lawyers can tell you that one of the quickest ways to get a claim denied is for there to be a mis-representation in an application for insurance. The Insurance Journal published a story discussing mis-represntations in April of 2016. The title of the story is, Half of Insurance Shoppers Giving Inaccurate Information.
It seems there’s no shortage of financial dishonesty. Two recent surveys seem to indicate that many of us are perfectly willing to lie to save a few bucks.
A survey of 2,115 American adults from NerdWallet released last month shows a surprising number of people will tell a financial lie, and that many would even consider lying if it could result in federal prosecution.
Fort Worth insurance lawyers will usually have a story to tell about an insurance agent they caught cheating. The Insurance Journal published a story in April 2016, that should make all insurance consumers beware. The title of the story is, Former Oklahoma Insurance Agent Pleads Guilty To $500K Scam.
A former insurance agent in Oklahoma has pleaded guilty to scamming $505,126.43 from his clients, the Oklahoma Insurance Department announced.
A joint investigation including the OID’s Anti-Fraud Unit led to the charges against Gary Edward Hibbing, 52, formerly of Grove.
Insurance lawyers in Dallas and Fort Worth areas will often deal with uninsured motorist situations. Some of the situations are strange and the question becomes whether or not the uninsured motorist statutes in the Texas Insurance Code and actual provisions of policies apply to the fact situation being confronted. A 1999, Texas Supreme Court case deals with one strange situation. The style of the case is State Farm Mutual Automobile Insurance Company v. Whitehead.
In this case the Court considered whether an uninsured motorist policy provision covers damages sustained by the insured’s survivors when a passenger in another vehicle shot and killed the insured while he was driving his vehicle. After a bench trial, the trial court held that the policy provided uninsured motorist benefits. The court of appeals affirmed. This Court reversed and rendered judgment that the plaintiffs take nothing.
The underlying facts are largely undisputed. Kevin Hawkins was riding in a van driven by his brother, Howard Hawkins, Jr., when he saw a passenger in a pickup truck with whom he believed he had quarreled earlier in the evening. As the van pulled alongside the pickup, Kevin pointed a pistol at the pickup and fired several shots. Brent Taylor, the driver of the pickup, was shot and killed. The pickup then went out of control and struck a bridge stanchion. Starlette Whitehead, a passenger in the pickup, was injured in the crash.
Insurance attorneys rarely see an insurance company apologize. What might happen if they did?
In a society that highly values a genuine apology, it is shocking that most in-house counsel and most trial lawyers never even consider whether an apology might be appropriate to resolve a claim or lawsuit. We teach our children to apologize at a very young age. As adults, we are well-versed in giving and receiving apologies with our spouses, coworkers, friends, and families. It seems one week cannot pass without a high-profile celebrity, sports figure, or politician issuing a public apology for some transgression. It seems, however, that the concept of even considering an apology rarely enters the thought process of claim professionals and trial lawyers when evaluating strategic options for dealing with the claims and lawsuits that cross their desks. The absence of any academic discussions within the field of insurance is certainly not because of the lack of psychological and legal work regarding the science of apology. Apology research is as old as the study of rhetoric and it has gained widespread popularity in other disciplines in the last two decades.
Regardless of the relationship or magnitude of the transgression, the first step towards evaluating whether an apology is owed is always self-assessment. As for apologies within a personal relationship, for some people this seems to be very easy and for others very hard. In businesses, it seems to be exceptionally hard.Initially, the group-think of some organizations seems to create a presumption of righteous perfection. It’s exceptionally rare for group assessment to conclude that some kind of wrongdoing occurred and that an apology may be owed. While among some individuals this eemingly arrogant group-think is the result of pride, the greater driving force seems to be fear. Most business leaders fear the implications of an apology. Fundamentally, however, those who both lead companies and the trial bar must be challenged to have a more candid, transparent, and accurate assessment of the shortcomings of any organization, its claim handling, and its litigation decision making. An organization can’t accurately contemplate whether an apology is owed unless it can accurately assess whether something went wrong for which an apology might be owed. As simplistic as this sounds, it is mind boggling how hard it is for many business organizations to make an accurate self-assessment. Needless to say, far more work is needed in our industry to accurately assess when and how to apologize.
Lawyers who handle hail claims know that the quicker a claim is made, the better. Communication with the insurance company is also important. Both these points are made in Southern District of Texas, McAllen Division opinion styled, Juan Sanchez Fregoso, et al v. State Farm Lloyds, et al.
In this case, the court granted State Farm’s motion for summary judgment.
Plaintiffs’ claims arise from damage sustained to their property as a result of a hailstorm event occurring in March / April 2012. The property is insured under a State Farm policy providing replacement cost benefits. Shortly after the storm, Plaintiffs reported an insurance claim to State Farm for the damages sustained to their property. Thereafter, State Farm inspected the property on May 6, 2012, estimating the loss to the property to be $6,910.44. On that same day, State Farm issued to Plaintiffs an actual cash value payment of $3,160.27, the amount remaining after deducting the recoverable depreciation ($1,796.17), and the deductible ($1,954), from the replacement cost value ($6,910.44).
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