Dallas Fort Worth Insurance Lawyer Blog

Flood Claims

March 8, 2016 | Mark S. Humphreys

Flood claims are a big part of insurance law. Knowledge of how these claims are looked at by the courts is important to an insurance lawyer. The United States 5th Circuit Court of Appeals issued an opinion in January 2016, that should be read. The style of the case is, Construction Funding, L.L.C. v. Fidelity National Indemnity Insurance Company.

Construction Funding filed a flood insurance claim against Fidelity after Hurricane Isaac struck in August 2012. The district court granted summary judgment in favor of Fidelity and Construction Funding appealed.

The National Flood Insurance Act of 1968 created the National Flood Insurance Program (“NFIP”) to provide affordable flood insurance on fair terms. The NFIP is administered and regulated by the Federal Emergency Management Agency (“FEMA”). Fidelity participates in the NFIP as a Write-Your-Own Program (“WYO”) carrier. As a WYO carrier, Fidelity issues Standard Flood Insurance Policies (“SFIP”) to NFIP participants and is responsible for handling all claims that arise under the SFIPs it issues. The terms of the SFIP are set by FEMA.

ERISA Wants All The Money

March 6, 2016 | Mark S. Humphreys

Attorneys handling ERISA claims can tell you that the ERISA plan wants back all the money they spend on their beneficiary’s claim. The United States Supreme Court rendered a notable opinion in January 2016. The case is styled, Board of Trustees of the National Elevator Industry Health Benefit Plan v. Robert Montanile. Here is what the Courthouse News Service has to say.

The Supreme Court threw out a decision Wednesday that would have a car-accident victim who settled with the other driver reimburse medical coverage.

The Board of Trustees of the National Elevator Industry Health Benefit Plan paid more than $121,000 after Robert Montanile, a covered employee, suffered injuries in a Dec. 1, 2008, car accident.

Loss Of Use – A Look

March 5, 2016 | Mark S. Humphreys

Texas insurance lawyers have to read the recent Texas Supreme Court case, J&D Towing, LLC v. American Alternative Insurance Corporation. The facts are set out in the March 3 writing. This is an appeal from the Waco Court of Appeals.

The Court starts out: We begin with first principles. Compensation is the chief purpose of damages awards in tort cases. Indeed, we have long held that the basic reason underlying rules for the ascertainment of damages for any tortious act is a fair, reasonable, and proper compensation for the injury inflicted as a proximate result of the wrongful act complained of. Reasonable and proper compensation must be neither meager nor excessive, but must be sufficient to place the plaintiff in the position in which he would have been absent the defendant’s tortious act. In this way, compensation through actual-damages awards functions as an instrument of corrective justice, an effort to put the plaintiff in his or her rightful position.

Actual damages must be either direct or consequential. Direct damages compensate for a loss that is the necessary and usual result of the tortious act. By contrast, consequential damages, also known as special damages, compensate for a loss that results naturally, but not necessarily, from the tortious act. Although consequential damages need not flow from the act, they must be both forseeable and directly traceable to the act. If the purported consequential damages are too remote, too uncertain, or purely conjectural, they cannot be recovered.

Loss Of Use – New Law In Texas

March 3, 2016 | Mark S. Humphreys

Arlington attorneys handling claiming involving “loss of use” have long had to tell clients the following: “If your car is repairable, the insurance company will pay for the loss of the use of the car for as long as the car is reasonably in the shop being repaired. But if your car is a total loss, there is no recovery for the time you are without the use of the car.” This loss of use normally involves payment of the cost of a comparable rental car. However, if the car is used for business purposes, it also involves the income lost. An example might be a car used for delivery purposes.

A new case from the Texas Supreme Court has changed this law. The case is styled, J&D Towing, LLC v. American Alternative Insurance Corporation. This case will be told in two parts. Today, is the set-up and next will be the case law.

Nearly a century ago, a Texas attorney argued that the rule at issue in this case made it “cheaper to kill a mare in Texas than it is to cripple her.” No American Pharoah herself, (American Pharoah became the first horse since 1978 to sweep the Triple Crown) this one-eyed, underfed mare lived a simple life. One night, however, she was caught roaming the city streets in search of food and was placed in the city pound. Her owner failed to pay her board bill. Thus, the city marshall hired a man known as Panhandle Pete to put her out of her misery. As the court of appeals then put it, “when Panhandle Pete’s pistol popped, she petered, for which the pound-keeper paid Pete a pair of pesos.” Her owner protested her death and sued for damages, including $350 for the loss of her services in his occupation of hauling. The court rejected that claim, holding that although “damages occasioned by the loss of the use and hire of an animal are recoverable where the animal is injured,” “no such damages are recoverable for the total loss or death of an animal.” Rather, the measure of damages in the case of a wrongful killing of an animal is its market value, if it has one, and if not, then its actual or intrinsic value, with interest.” That rule, the owner’s attorney responded, makes it “cheaper to kill a mare in Texas than it is to cripple her.”

Delay In Paying Claim After An Appraisal

March 1, 2016 | Mark S. Humphreys

Insurance lawyers in Mansfield and elsewhere should be able to explain to clients when payment is due under a claim. There are many situations and the situation determines when the claim should be paid and if a penalty applies.

The U.S. Western District Court of Texas, Waco Division issued an opinion in Cater v. State Auto Property & Casualty Insurance that needs to be read.

This is a case that was decided on two dueling motions for summary judgment.

Viatical Settlements

February 28, 2016 | Mark S. Humphreys

Here is something for life insurance lawyers to read. It is from the Texas Department of Insurance web-site.

Subchapter R. VIATICAL AND LIFE SETTLEMENTS 28 TAC §§3.1701 – 3.1717

The Commissioner of Insurance adopts amendments to §§3.1701 – 3.1703, 3.1705, 3.1707 – 3.1715, and new §§3.1704, 3.1706, 3.1716, and 3.1717 concerning regulation of viatical and life settlements. The sections are adopted with changes to the proposed text as published in the August 11, 2000 issue of the Texas Register (25 TexReg 7465).

Correctly Suing The Adjuster

February 27, 2016 | Mark S. Humphreys

Attorney’s who handle hail claims need to know the proper way to sue an insurance adjuster unless they want to litigate the case in Federal Court. A U.S. Western District, Waco Division opinion is worth reading. It is styled, Polansky’s Wrecker Service v. Universal Underwriters Insurance Company and William Gillis.

Polansky’s sued Universal and Giliis for violations of the Texas Insurance Code resulting after a claim for wind and hail damage was not sufficiently reimbursed. The case was filed in State Court and removed to Federal Court by Universal and Gillis on allegations of diversity and their assertion that Gillis was improperly joined in the lawsuit. Polansky’s is asking the court to remand the case stating that Gillis was not improperly joined. The Court’s job in this case is to examine whether or not Gillis was properly sued.

Polansky’s , makes the following factual allegations in regard to his claims against Gillis:

Federal Court And The Slayer Statute

February 25, 2016 | Mark S. Humphreys

Weatherford life insurance lawyers know that the “Slayer Statute” works the same in Federal Court as in State Court. A 1986, opinion from the Northern District of Texas says so. The style of the case is, American Nat. Ins. Co. v. Huckleberry.

This case is before the court on the motion for summary judgment of defendant Deborah Huckleberry Stevens (“Stevens” or “the guardian”). Upon review of the motion, response, affidavits, exhibits, and brief, it is apparent that no issues of fact exist for trial. Consequently, for the reasons stated below, Stevens’ motion is granted.

American interpled the $100,000 face amount of its policy insuring the life of Beverly Ann Huckleberry, deceased.

Med-Pay And USAA

February 23, 2016 | Mark S. Humphreys

Med-Pay is suppose to be an easy way to get medical bills paid when someone is injured in an automobile accident. As most insurance lawyers can tell you, that is not always the case. The San Antonio Express-News published an article on January 6, 2016, dealing with the way USAA, based in San Antonio, treats its customers when it comes to Med-Pay benefits in their policies. The article is titled, Med Pay Lawsuits Dog USAA.

San Antonio’s USAA continues to be dogged by lawsuits that allege it uses a “cost containment scheme” to delay, deny or reduce medical payouts to customers injured in auto accidents.

USAA has been vigorously defending such cases for more than a decade, though the number of lawsuits couldn’t be determined.

Things To Know About Life Insurance

February 21, 2016 | Mark S. Humphreys

Texas life insurance lawyers who keep up with the world of life insurance will find this article interesting. It is from Forbes. The article is titled, 10 Things You Absolutely Need To Know About Life Insurance.

Life insurance is one of the pillars of personal finance, deserving of consideration by every household. I’d even go so far as to say it’s vital for most. Yet, despite its nearly universal applicability, there remains a great deal of confusion, and even skepticism, regarding life insurance.

Perhaps this is due to life insurance’s complexity, the posture of those who sell it or merely our preference for avoiding the topic of our own demise. But armed with the proper information, you can simplify the decision-making process and arrive at the right choice for you and your family.