Dallas Fort Worth Insurance Lawyer Blog

Insurance And Amount In Controversy

December 15, 2015 | Mark S. Humphreys

Texas insurance lawyers know insurance companies always want to wage litigation in Federal Court. A recent case illustrates this. The case is from the U.S. District Court, Northern District of Texas, Dallas Division. The style of the case is Clear Vision Windshield Repair, LLC v. Allstate Fire and Casualty Insurance Company.

This lawsuit was originally filed in State District Court wherein Clear Vision alleged violations of the Texas Insurance Code, Chapters 541 and 542. Allstate caused the case to be removed to Federal Court asserting there was diversity of citizenship and the amount in controversy exceeded $75,000. Clear Vision disagreed and contended that Allstate had not shown the amount in controversy exceeded $75,000. Specifically, Clear Vision contended there were nine individuals who had windshield repairs that were not paid or not fully paid and that the individual claims cannot be segregated to meet the jurisdictional threshold for diversity jurisdiction. Allstate countered that the rule against aggregation of claims does not apply because Clear Vision is the only plaintiff and Clear Vision has stated it seeks monetary relief in excess of $100,000.

A federal court has an independent duty, at any level of the proceedings, to determine whether it properly has subject matter jurisdiction over a case. This duty must be policed by the courts on their own initiative even at the highest level.

Permission To Drive Car

December 13, 2015 | Mark S. Humphreys

Insurance lawyers want to know when coverage is provided in the situations they are presented with. Who is covered when a car is being loaned or borrowed? That question is addressed in a 1967, Corpus Christi Court of Appeals case styled, Phoenix Insurance Company v. Allstate Insurance Company.

The material facts in evidence are undisputed. At all times relevant here, Phoenix was the insurer of a car owned by the named insured Ralph Gilster, Jr. Father Wallace J. Stiles, assistant pastor and Youth Director of St. Mary’s Church, Victoria, Texas, contacted Gilster for the purpose of borrowing this car on June 27th to return to their homes in Victoria six girls who were attending a Summer School of Catholic Action for Youth in Corpus Christi. Borrowing the car and returning the girls to their homes in Victoria was in line with Father Stiles’ duties as Youth Director, a fact which Gilster well knew. He had on a number of other occasions borrowed Gilster’s car for out of town trips in connection with such duties. Gilster knew the purpose for which Father Stiles wanted the car, and readily agreed with his request. The distance from Victoria to Corpus Christi and return is a total of 180 miles. Nothing was said between the two as to who would drive the car during the trip, nor had anything been said as to who should drive on any of the other occasions that Gilster had let Father Stiles use the car in his church work. Gilster testified that as a matter of fact, he didn’t give the matter of who would drive any thought; though he further stated that he considered that Father Stiles would be the one to take the car, use it, and bring it back. The words ‘use’ and ‘borrow’ were the terms used in the conversation between Gilster and Stiles, and no reference was made by either party as to who would actually operate the car.

On June 25th, two days before the trip to Corpus Christi, Father Stiles asked James DeLane to drive on this trip. It was agreed by both of the parties that Gilster had not given express permisson for James to drive; but Father Stiles after testifying about the former times he had borrowed Gilster’s car for such trips, on which occasions some one other than himself had driven, stated that he believed it all right that DeLane drive. James, 16 years of age, was president of the Church’s Catholic Youth Organization (C.Y.O.) He had obtained his drivers’ license two years before this, and frequently on these Church trips drove for Father Stiles, who considered him a very good and careful driver. On the morning of June 27th, James went to the Gilster residence, got the car keys from a servant and drove the car to the Rectory where he picked up Father Stiles, and they proceeded to Corpus Christi. They got the six girls and, with James DeLane driving, went back to Victoria. Father Stiles then instructed James to let him off at the Rectory where he had some church duties to perform, and to take the girls to their homes and then to return the car to Gilster’s home. While the girls were being delivered to their homes, an accident occurred between the car driven by James and one driven by Sandra Lou Barr and owned by her father. James had not deviated from his route at any time, and at the time of the accident was engaged in carrying out the instructions of Father Stiles, and in executing the purpose for which the car had been borrowed from Gilster. At a meeting between Gilster, Father Stiles and James DeLane in Gilster’s office two or three days after the accident Gilster made no adverse comment on the fact that James was driving at the time of the accident.

ERISA Payback

December 12, 2015 | Mark S. Humphreys

ERISA lawyers will be watching this United States Supreme Court case. It is styled Montanile v. National Elevator Industry Health Benefit Plan. The Insurance Journal published a story discussing this case. The story is titled, Supreme Court in Bind Over Insurer’s Right to Insured’s Damages Money.

Which do the conservative justices hate more: personal-injury lawyers or interpreting a law loosely to expand the power of lower courts? That question was to be on the table Monday at the U.S. Supreme Court. The justices are hearing oral argument in a potentially important case about whether you have to pay back your insurance company for medical bills after you’ve sued and recovered from the person who injured you in the first place.

Montanile v. National Elevator Industry Health Benefit Plan has all the marks of a case only lawyers could love. It involves insurance, money, a drunken driver and what may arguably be the most complicated statute in the entire U.S. Code, the Employee Retirement and Income Security Act of 1974, known as ERISA.

Liability Claims

December 10, 2015 | Mark S. Humphreys

Insurance lawyers need to recognize when coverage will be provided in cases when an insured is being accused of being liable for harm caused to a third party. A 1988, Texas Supreme Court case is insightful to this issue. The style of the case is, Adela Snellberger v Rosita Hernandez.

This is an appeal in a wrongful death action brought by the heirs of Harold Snellenberger against Rosita Hernandez Rodriguez. The trial court granted a summary judgment for Rodriguez. This Court affirmed that finding.

Rodriguez drove her automobile over and critically injured a small child. At the time of the accident, Snellenberger was employed as a police officer. When he and another officer were notified of the accident, they immediately proceeded to the scene in their separate patrol cars. Upon arrival, the other officer administered CPR to the child, while officer Snellenberger moved back the crowd of people which had gathered at the scene. Included in the crowd was the grief-stricken mother of the injured child. As officer Snellenberger began controlling the crowd, he suddenly collapsed and later died of a heart attack. His widow and children brought this action relying upon the rescue doctrine.

Insurance Policy Language

December 8, 2015 | Mark S. Humphreys

Dallas insurance lawyers can tell a client that one of the most important things to do when looking at an insurance claim is to read the policy. What the policy says, coupled with the facts of the claim, go a long way in determining whether or not a claim should be paid. The Texas Supreme Court issued an opinion in 2015, that is a must read for insurance law attorneys. The case is styled, RSUI Indemnity Company v. Lynd Company.

This claim involves two insurance companies, RSUI which provided excess coverage and Westchester Fire Insurance Company which provided a $20 million dollar limit. The total loss was $24.5 million spread over several properties owned by Lynd. The parties agreed that the loss was from a loss from a single occurrence. Westchester paid it’s $20 million dollar limit but RSUI refused to pay the remaining $4.5 million and instead paid Lynd only $750,000.

RSUI cited the excess policy’s “Scheduled Limit of Liability” endorsement as the basis for its denial of coverage. Lynd sued RSUI to recover the difference between its $24.5 million in losses and the $20,750,000 Westchester and RSUI paid out under the policies. As a result, the question of whether coverage existed under the excess policy depended on the interpretation of the “Scheduled Limit of Liability” endorsement.

Put Names On Those Beneficiary Forms Or Else

December 6, 2015 | Mark S. Humphreys

Springtown life insurance lawyers would want to know about an opinion from a Florida Court dealing with beneficiaries under a life insurance policy. The Court looked at the law in Florida at issue and then looked at the language of the policy and issued a ruling that many would disagree with. The opinion is discussed at WealthManagement.com. The article is titled, When Is An Adoption Not Effective To Change Inheritance Rights?

In a case styled Lubin v. AT&T Ret. Sav. Plan (2015 WL 4397703), an adoption was not given effect in determining who would receive the life insurance benefits at issue.

In this case, Austin Hardy participated in a Retirement Savings Plan (“Plan”), which included a life insurance benefit. At his death, he was survived by his sisters, Pauline Lubin and Frances Koryn (Plaintiffs), and his biological daughter, Jennifer Krokey. Although Krokey was Hardy’s biological child, she had been subsequently adopted by a step-father. Under Florida law, a child who is adopted is the child of the adopting parent and ceases to be a child of the biological parent for all purposes.

Insurance Companies Buying Justice In Texas

December 5, 2015 | Mark S. Humphreys

Insurance lawyers keeping up with insurance news will find a recent Texas Tribune article interesting. The title is, “Emails: Prosecutors Got Texas Mutual Great Publicity.”

The article says that Travis County prosecutors say the money they get each year from a large insurance company to prosecute workers’ compensation fraud helps both consumers and businesses by holding down premiums and maintaining a stable market for employers.

But behind the scenes, top officials in the district attorney’s office are highlighting other benefits: They say they’re generating a lot of money and good PR for Texas Mutual Insurance Company.

Wildfire Insurance Claims

December 3, 2015 | Mark S. Humphreys

Texas insurance lawyers will see wildfire insurance claims. Texas Watch published an article that is helpful for Texas insurance attorneys and people who experience damage due to a wildfire. The title of the article is, 5 Things To Know When Filing A Wildfire Insurance Claim.

The article tells us that firefighters continue to bravely battle the Hidden Pines wildfire in Bastrop County Texas, with 80% of the fire contained. The fire has already damaged or destroyed dozens of residential and commercial properties. As families and businesses begin the process of rebuilding, here are some tips for property owners when dealing with their insurance company.

Demand that your insurance company hold up its end of the insurance contract you have with them.

Hail Damage Claim And Adjusters

December 1, 2015 | Mark S. Humphreys

Fort Worth insurance lawyers handling hail damage claims need to ready an opinion from the U.S. District Court for the Southern District of Texas Houston Division. It is styled, Dianne Leidy, et al v. Alterra America Insurance Company, et al.

Leidy sued Alterra and the adjusters assigned to her claim for hail damage. Leidy alleged her property was damaged during a hail storm on August 16, 2013. Leidy alleged she noticed the damage right after the storm and contacted Alterra by phone. Alterra assigned independent adjusters to adjust the claim. Leidy alleged the adjusters failed to conduct a reasonable and adequate investigation, which resulted in the improper denial of Leidy’s claim. The lawsuit was filed in State Court. Alterra removed the lawsuit to Federal Court asserting that the adjusters had been improperly named as defendants in order to defeat diversity jurisdiction. Leidy then filed a motion to remand the case back to State Court.

In response to Leidys’ Motion to Remand, Alterra concedes that independent insurance adjusters can be liable for violations of the Texas Insurance Code. Alterra argues, however, that Leidy failed to allege an adequate factual basis for imposing such liability on the adjusters, Colley or Voelkner in this case. The adequacy of the allegations in Plaintiffs’ complaint is evaluated, for purposes of the improper joinder analysis, under the “fair notice” pleading standard in Texas courts.

Actual Cash Value versus Replacement Value

November 29, 2015 | Mark S. Humphreys

Insurance lawyers in Parker County need to read a Houston Court of Appeals [1st Dist.] opinion issued in October 2105. It is styled, John Davis D/B/A J. D. House of Style v. National Lloyds Insurance Company.

This is an appeal by Davis from a Judge’s ruling on a JNOV in favor of National.

The court submitted two measures of damages to the jury, and the jury determined that Davis sustained $0 damages based on the actual cash value of the property claim and that he sustained $100,000 in damages based on the replacement value of the property claim. National Lloyds moved to disregard the replacement value finding, arguing, in part, that the plain language of the policy itself limited Davis to recovery for the actual cash value of his property damage claim.