Dallas Fort Worth Insurance Lawyer Blog

Two Hail Storms – Two Different Insurance Companies

November 28, 2015 | Mark S. Humphreys

Layers who handle hail damage claims will frequently run into the situation where an adjuster admits there is hail damage on a roof but that the damage is old or there is old damage and new damage to the roof. The question becomes, what is the best course of action in getting a full recovery. The answer is to file claims / sue both insurance carriers. The U.S. District Court, Western District of Texas, Austin Division had this issue in a recent case. The style of the case is, Evridges, Inc. v. The Travelers LLoyds Insurance Company.

In this case, Evridges filed suit against Travelers for hail damage to its property. When evidence that some of the damage was from another storm when another insurance company and policy were in force, Evridges sought to have Travelers added to the lawsuit. This insurer is Landmark American Insurance Company.

Travelers opposed the joining of Landmark, arguing to the court that the joinder was improper under Federal Rule 20(a) because the claims against Landmark do not arise from the same transactions or occurrences as the claims against asserted against Travelers, and since the claims against Landmark do not present common questions of law or fact as the claim against Travelers, that the joinder is improper.

Concurrent Causation Clauses

November 26, 2015 | Mark S. Humphreys

Dallas area insurance attorneys are most likely to see insurance companies argue “concurrent causation” in claims related to homeowners policies. The Claims Journal published an article discussing this topic in October of 2015. The title of the article is “Texas Supreme Court Upholds Anti-Concurrent-Causation Clauses In Property Policies.”

The article tells us the Texas Supreme Court in JAW the Point, LLC v. Lexington Ins. Co., 460 S.W.3d 597 (Tex. 2015) held, on first impression, that losses incurred in demolishing and rebuilding property damage resulting from Hurricane Ike to comply with city ordinances were excluded under the policy’s anti-concurrent-causation clause. Prior to the Texas Supreme Court’s JAW decision, federal and lower state courts of appeal had interpreted and upheld the applicability of anti-concurrent-causation clauses under Texas law.

Taking its lead from the United States Circuit Court of Appeals for the Fifth Circuit, the Texas Supreme Court held that a policy anti-concurrent-causation clause together with an exclusion for losses caused by flood, when read together, excluded from coverage any damage caused by a combination of wind and water. Previously, the Fifth Circuit Court of Appeals in Leonard v. Nationwide Mut. Ins. Co., had concluded in situations involving combinations of covered wind damage and excluded flood damage that the only species covered under a policy with an anti-concurrent-causation clause is damage caused exclusively by wind. But when wind and water synergistically cause the same damage, such damage is excluded.

Suing The Insurance Adjuster

November 24, 2015 | Mark S. Humphreys

Attorneys handling hail damage insurance claims need to read this opinion from the U.S. District Court, Northern District of Texas, Fort Worth Division. The case is styled, Monclat Hospitality, LLC vs Landmark American Insurance Company.

This case was filed in State District Court in Tarrant County and then removed by Landmark to Federal Court base on there being a lack of diversity of citizenship subject matter jurisdiction as contemplated by 28 U.S.C. Section 1332(a). Insurance companies always want to fight insurance disputes in Federal Court because matters are more in their favor in Federal Court. Monclat had attempted to prevent the removal by suing the adjuster and then trying to convince the Court why suing the adjuster was proper in this case.

Monclat filed this lawsuit to recover benefits from Landmark under a policy issued by Landmark. Monclat alleged that it had suffered damages due to wind and hail.

Suing An Insurance Company And Trying To Stay Out Of Federal Court

November 22, 2015 | Mark S. Humphreys

Most Palo Pinto insurance lawyers already know that it helps their clients to be able to stay out of Federal Court on insurance disputes. They are many points that need to be kept in mind. A few of those are discussed in a U.S. Southern District of Texas, McAllen Division opinion. It is styled, Jose Villareal v. State Farm Lloyds.

Villareal filed his lawsuit in state court, asserting various insurance related causes of action for damages resulting from a wind or hail storm. State Farm removed the case to Federal Court asserting diversity jurisdiction pursuant to 28 U.S.C. Section 1332. Villareal countered that the amount in controversy does not exceed $75,000, thus the court lacks jurisdiction.

A court does not have subject matter jurisdiction 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. Here, however, the state practice does not permit a demand for a specific sum. State Farm can show the amount in controversy exceeds $75,000 by

Suing An Insurance Company For Uninsured / Underinsured Coverage

November 21, 2015 | Mark S. Humphreys

Most Mineral Wells insurance lawyers already know the rules governing uninsured / underinsured (UIM) cases. But a reminder is put forth in an Austin Court of Appeals decision. The style of the case is, In re Farmers Texas County Mutual Insurance Company.

The real party in interest is Guy Gimenez. He sued a third party and upon receiving written permission from Farmers, settled the third party case, then brought suit against Farmers for UIM. The UIM case was severed from the extra-contractual claims but the trial court refused to abate the extra-contractual claims. As a result, this mandamus action was filed.

Farmers argued that court abused it’s discretion by refusing to abate the extra-contractual claims which had not accrued and may be rendered moot by the outcome of the contract action.

Offers To Settle

November 19, 2015 | Mark S. Humphreys

Dallas area insurance lawyers need to be aware of a case currently pending before the United States Supreme Court. USA Today published an article discussing the case. The title of the article is, Supreme Court Conundrum: How To Make A Lawsuit Go Away. Here is the discussion.

The Supreme Court debated to a draw Wednesday over an unusual question with broad implications for businesses and consumers: If a defendant in a civil case offers to pay the plaintiff in full, is the lawsuit moot? Is it settled? Or can it live on?

What the justices decide either could give companies a way to avoid class-action lawsuits or prevent consumers from having their challenges ended with a simple payoff.

Suing The Adjuster

November 17, 2015 | Mark S. Humphreys

Duncanville insurance attorneys need to know how to properly sue an insurance adjuster who improperly adjusts a claim. This issue was brought in a U.S. District Court, Dallas Division opinion. The style of the case is, The Denley Group, LLC v. Safeco Insurance Company Of Indiana and Lisa Seutter.

After a fire loss, Denley sued Safeco and Seutter for wrongful denial of full coverage stained to their insured property.

The lawsuit was filed n Dallas District Court for violations of Chapters 541 and 542 of the insurance code and other causes of action. Safeco had the case removed to Federal Court, asserting that Seutter had been improperly joined in the lawsuit.

Residential Premises And Fences

November 15, 2015 | Mark S. Humphreys

Arlington insurance attorneys, as well as all insurance attorneys might run across a situation that was seen in a recent 14th Court of Appeals opinion. The style of the case is Nassar v. Liberty Mutual Fire Insurance Company.

This is an appeal from a motion of summary judgment in favor of Liberty.

The Nassars owned a residence situated on six acres. In addition to the residence itself, these six acres contain a system of fences, barns, and outbuildings. Liberty insured the dwelling and other structures pursuant to a Texas Homeowners Policy Form A. This policy was in effect when Hurricane Ike hit the area and caused losses.

Hail Claims And Appraisal

November 14, 2015 | Mark S. Humphreys

Forth Worth lawyers handling hail damage claims need to read a recent opinion from the Amarillo Court of Appeals. The case is styled, In Re GuideOne National Insurance Company.

The case involves two insurance claims: one for fire damage and another for wind or hail damage to property. The insurer is GuideOne who sought appraisal in this case. A lawsuit had been filed and the property owners requested that the Court not allow the appraisal. This request was sought long after the law suit had been filed and the property owners had incurred substantial costs. The Court denied the appraisal request and this mandamus action followed. This Court upheld the trial Court decision.

Appraisal clauses provide a means to resolve disputes about the amount of loss for a covered claim. As the Texas Supreme Court has explained: “In every property damage claim, someone must determine the ‘amount of loss,’ as that is what the insurer must pay. An appraisal clause ‘binds the parties to have the extent or amount of the loss determined in a particular way.'”

Misrepresentation In Application

November 12, 2015 | Mark S. Humphreys

Fort Worth insurance lawyers have to be able to answer the question – What if there is a misrepresentation in an insurance application. The Dallas Court of Appeals helped give guidance to an answer in a case styled, Medicus Insurance Company v. Frederick Todd, II, M.D. This was an appeal by Medicus in a take nothing declaratory judgment.

Medicus provides medical malpractice insurance for physicians and health care practitioners. The company began selling insurance in September 2006. Its business plan is to keep its costs low by offering insurance at low premiums only to physicians with few claims, generally fewer than five claims.

Dr. Todd handled his malpractice insurance through his insurance broker, Larry Zimmer. When Dr. Todd applied for insurance in October 2006, Medicus did not ask him to fill out its nineteen-page application. Instead, it permitted him to submit only its two-page application and the Texas Standardized Credentialing Application, a form that physicians use to receive credentials to practice in a particular hospital. Dr. Todd sent Medicus a credentialing application he had signed on May 4, 2005. The credentialing application asked if Dr. Todd had “ever been the subject of an investigation by any licensing authority,” and he checked the “No” box. In fact, Dr. Todd had been twice investigated by the Texas Medical Board for having three or more medical malpractice claims in a five-year period. The credentialing application also asked if he had “ever had any malpractice actions within the past 5 years pending, settled, arbitrated, mediated or litigated,” and appellant checked the “Yes” box and attached a description of four lawsuits filed against him between May 2000 and when he signed the application in May 2005. Dr. Todd omitted one lawsuit from the list of claims filed between May 2000 and May 2005. Dr. Todd also failed to disclose another lawsuit filed between his signing the credentialing application and his applying to Medicus.