Dallas Fort Worth Insurance Lawyer Blog

Federal Court And Underinsured Coverage

January 19, 2016 | Mark S. Humphreys

Weatherford lawyers who sue insurance companies need to know how to stay out of Federal Court if they want to properly represent their clients. It cannot always be done but understanding the law in these matters is important. A U.S. Northern District, Dallas Division case is good reading on this issue. The style of the case is, Felecia D.Davis v. Eduardo Vargas Reyes, et al.

Davis filed suit in State Court against Vargas for injuries arising from a car wreck. After Davis settled with Vargas, she amended her petition and added Amica Mutual Insurance (Amica) to this lawsuit, seeking underinsured benefits and she sued the Amica adjuster, Carolina Glenn. She then filed a second amended petition alleging that her claims against Vargas had been settled. Amica properly removed the case and alleged in its removal that Vargas, a Texas citizen, should be disregarded because the claim against him had already been settled. Amica is a citizen of Rhode Island and thus there was diversity of citizenship allowing the removal.

Davis contended that even though she had settled with Vargas, diversity of citizenship is determined as of the time she originally filed suit in State Court, meaning Vargas’ Texas citizenship precludes removal. Davis also contended the State Court had never entered an order dismissing the claims against Vargas so Vargas’ Texas citizenship cannot be disregarded.

Hail Damage Claims

January 17, 2016 | Mark S. Humphreys

Dallas area attorneys who handle hail damage claims need to read this opinion from the 5th Circuit Court of Appeals. The style of the case is, Vincent Stagliano v. The Cincinnati Insurance Company.

This is a first-party insurance dispute over coverage for damage to commercial property allegedly caused by a hailstorm. The District Court granted summary judgment in favor of Cincinnati.

The facts in this case are straightforward. Plaintiffs own a number of properties in and around Dallas, and Cincinnati provided loss protection from August 14, 2010, to August 14, 2011. On June 21, 2011, a claim was submitted for damage to one of the properties that occurred as a result of a hail storm on May 24, 2011. The claim was paid. A year and eight months later, claims for several other properties alleged to have been damaged in the same storm were submitted and Cincinnati denied these claims.

ERISA Accidental Death Benefits

January 16, 2016 | Mark S. Humphreys

Dallas area attorneys handling life insurance benefits under an ERISA plan need to read this 5th Circuit opinion. It is styled, Judy Hagen v. Aetna Insurance Company; Hewlett Packard Company.

David Hagen was an employee of Hewlett and had life insurance coverage under a company benefits plan administered by Aetna.

The terms of the Policy state that to receive payment under the accidental death benefit provisions, Aetna must receive proof that, inter alia, death “was a direct result of a bodily injury suffered in an accident.” The Policy states that an “accident” is “a sudden and external trauma that is; unexpected; and unforeseen; and is an identifiable occurrence or event producing, at the time, objective symptoms of an external bodily injury.” To qualify as a covered “accident,” an occurrence or event “must not be due to, or contributed by, an illness or disease of any kind including a reaction to a condition that manifests within the human body or a reaction to a drug or medication regardless of the reason the insured has consumed the drug or medication.” The Policy defines “injury” as “an accidental bodily injury that is the sole and direct result of . . . an unexpected or reasonably unforeseen occurrence or event . . . or the reasonable unforeseeable consequences of a voluntary act by the person.” The Policy specifies that “an injury is not the direct result of illness,” and defines illness as “[a] pathological condition of the body that presents a group of clinical signs and symptoms and laboratory findings peculiar to it and that sets the condition apart as an abnormal entity differing from other normal or pathological body states.”

ERISA And Efforts To Avoid It

January 14, 2016 | Mark S. Humphreys

Lawyers handling ERISA claims can tell horrible stories of the injustice that has occurred in the handling of ERISA claims. The State Bar of Texas, Insurance Section published an article that discussed some of the issues harming people.

Although the Act’s purpose was to promote the creation of employee benefit plans and protect those benefits for employees, since ERISA’s enactment most employees with pension or welfare benefit claims do whatever they can to escape the “protections” of the Act, while insurance carriers and employers that fund and administer the benefit plans push to have the claims governed by ERISA. Case law portraying an employee’s struggle to have his or her pension or welfare benefit claim governed by ERISA is almost non-existent. Instead, ERISA benefit case law over the last forty years reveals a common theme: the employee’s Sisyphean struggle to avoid ERISA.

The mountain of cases finding preemption is tall and imposing. The employee stands in the valley with her claim, her rock, using every ounce of physical energy and creative power to push her rock up and over the mountain, to free herself from the Act designed for her benefit. The fiduciary stands calmly upon the side of the mountain, seeking to return the rock to the valley where the protections of the Act lie, pressing the already heavy rock against the employee’s skin, muscle, and bone, forcing it back downhill. Naturally, given the slope of the mountain and the application of pressure by the fiduciary, the rock almost always returns to the valley. The employee watches hopelessly as her heavy burden crashes back down the hill, seeing with despair that all of her toil was for nothing. She is confined to the valley. Many claimants, especially those who are already impaired when they began their quixotic ascent, remain beaten.

Allegations Of Fraud Against Adjusters – Insurance Lawsuits

January 12, 2016 | Mark S. Humphreys

When suing an adjuster, the requirements are very specific to keep a case out of Federal Court. This is illustrated in a U.S. Northern District, Fort Worth Division, opinion. The case is styled Southlake Campus, Inc. v. Allstate Insurance Company, et al.

This action arises from a dispute over insurance coverage of a property damaged during a storm. Southlake alleges various causes of action which are specifically asserted against Allstate only. The only part of the petition that includes allegations against the adjuster is the section requesting a declaratory judgment.

This case was removed to Federal Court by Allstate under 28 U.S.C. 1332, for reason of diversity of citizenship and the amount in controversy exceeding $75,000.00. Allstate contends the adjuster was not properly joined as a defendant.

Insurance – Breach Of Contract – Hail Damage

January 10, 2016 | Mark S. Humphreys

Hail damage claims are a big source of litigation for insurance attorneys in the Dallas and Fort Worth areas. An opinion from the Federal Court , Southern District of Texas, McAllen Division is worth reading. It is styled, Armando Martinez, et al v. State Farm Lloyd’s, et al.

This is a granting of summary judgement in favor of State Farm.

Martinez’s claims arise from damage sustained to their property as the result of hail storms in April 2012. On May 7, 2012, Martinez reported an insurance claim for property loss and State Farm inspected the property of May 14, 2012, estimating the loss to the dwelling at $10,802.78. The adjuster found damage to the dwelling roof, shed roof, gutters, and a metal carport. On the same day, State Farm issued a check for $8,325.08, after applying depreciation and deductible.

Insurance Regulation

January 9, 2016 | Mark S. Humphreys

Duncanville insurance lawyers keeping abreast of insurance laws may find this article from the Insurance Journal interesting. The title is, “Best, Worst States For Insurance Regulation.”

Vermont, Utah, Iowa, Virginia and Kentucky get an “A” and North Carolina an “F” in one think tank’s annual grading of states on how they regulate the property/casualty insurance industry.

The 2015 Insurance Regulation Report Card, the R Street Institute’s annual publication, assigns scores in 10 different areas including solvency monitoring, anti-fraud efforts, rating and underwriting freedom, minimizing politicization of regulation, consumer protection and fostering competitive markets.

Cedar Hill, Texas Insurance Lawyer

January 7, 2016 | Mark S. Humphreys

This 2014, Texas Supreme Court opinion should be of local interest. The case is styled, In re National Lloyd’s Insurance Company.

In this narrow holding, the Texas Supreme Court held that the trial court abused its discretion by ordering the defendant insurance company to produce evidence related to insurance claims of third parties.

After her Cedar Hill home was damaged by storms, Mary Erving filed claims with her homeowners insurance company, National Lloyds Insurance Company. Although National Lloyds paid the claims, Erving became concerned that her claims had been undervalued. As a result, Erving sued National Lloyds for breach of contract, breach of duty of good faith and fair dealing, fraud, conspiracy to commit fraud, and violations of the Texas Deceptive Trade Practices Act, and Chapters 541 and 542 of the Texas Insurance Code.

Concurrent Causation Clauses

January 5, 2016 | Mark S. Humphreys

Attorneys handling hail damage claims need to read this case. It is a 2015, Texas Supreme Court opinion styled, JAW The Point, L.L.C. v. Lexington Insurance Co.

In this case, the “anti-concurrent causation” (ACC) exclusion reads:

loss or damage caused directly or indirectly by any [excluded cause or event], regardless of any other cause or event that contributes concurrently or in any sequence to the loss.

Rejection Of UIM And PIP Coverages

January 3, 2016 | Mark S. Humphreys

All insurance law lawyers are going to understand how Personal Injury Protection (PIP) and uninsured motorist (UIM) coverage works. For some of the situations that may be confusing, a recent opinion from the Court of Appeals, Houston [14th Dist.] may be helpful to read. It is styled, Donald Cain v. Progressive County Mutual.

This is an appeal from a motion for summary judgment. The main issue is whether the policy at issue falls within the plain meaning of the term “renewal insurance policy” in Texas Insurance Code, Sections 1952.101(c) and 1952.152(b).

Corliss Madison obtained an auto policy from Progressive. At that time, she rejected in writing UIM coverage and PIP coverage. Madison and Larry Bradford were named insureds under the policy. When the policy expired six months later, Madison entered into another insurance policy for the next six-month period. Madison then entered into seven more successive insurance policies every six months over the next four years.