Dallas Fort Worth Insurance Lawyer Blog

ERISA And Misrepresentation

October 31, 2015 | Mark S. Humphreys

ERISA lawyers need to read the 2015 opinion from the U.S. District Court, Houston Division. It is styled, Michael Nall, et al, v. BNSF Railway Company, et al.

Nall was an employee of BNSF Railway. He alleged that based on his employment he was entitled to receive certain benefits under the plan provided by BNSF. This benefit plan was an ERISA benefit plan.

Nall was diagnosed with Parkinson’s disease and was having many problems that are discussed in the opinion. The relevant issue in this case is that while Nall was out on disability in 2013, he received his annual enrollment package regarding his 2014 coverage. According to this enrollment package, Nall did not need to submit anything in order to continue coverage for 2014. Nall relied on this notification and assumed that his benefits would continue on just as in the past. After getting some further treatment, Nall received a bill from one of his doctors and then learned that his benefits had ended.

Insurance Companies Getting Agressive

October 29, 2015 | Mark S. Humphreys

Lawyers handling insurance claims can tell stories where an insurance company gets aggressive against an insured based on their belief that the insured is committing some sort of insurance fraud. The Austin-American Statesman ran a story highlighting this topic in September of 2015. The title of the article is “Private Insurer Pays Government Lawyers To Pursue Fraud Charges.”

The article starts out telling us that if he had it to do over again, Odessa native Roy Kyees would have ignored what the doctor told him. He would have walked out of that office and never filed a work injury claim for his back pain. He would have just paid for it out of his own pocket.

Then he never would have tangled with the largest provider of workers’ compensation insurance in Texas. He never would have gotten indicted for insurance fraud. Never would have been arrested and put in leg chains in his hometown jail.

Promptly Reporting Hail Damage

October 27, 2015 | Mark S. Humphreys

Fort Worth insurance attorneys tell their clients to report all claims immediately. A 2015, 5th Circuit Court of Appeals case is a good illustration of why. The opinion is styled, Carlos Alaniz v. Sirius International Insurance Corporation.

This is a summary judgment case granted in favor of Sirius.

Alaniz owns four rental properties. Each property contains four apartment units.

Hail Claims And Proper Pleadings

October 25, 2015 | Mark S. Humphreys

Grand Prairie attorneys handling hail damage claims will find this case helpful in their law practice. It is a 2015, U.S. Eastern District, Sherman Division opinion. The style of the case is, Calvary United Pentecostal Church v. Church Mutual Insurance Company, Donny Brown, and George Ben Hodges.

This case arises out of a hail damage claim filed by Calvary. Church Mutual insured the property and hired Brown and Hodges to adjust the hail damage loss. Brown and Hodges concluded the amount of the loss was $17,285.38. Calvary hired their own adjuster who concluded the total damage was $964,124.98.

Calvary filed this lawsuit in State Court and Church Mutual had the case removed to Federal Court claiming that Brown and Hodges had been improperly joined in order to defeat Federal Court jurisdiction in the matter.

Fire Loss

October 24, 2015 | Mark S. Humphreys

Benbrook insurance lawyers who help people with homeowners claims involving a fire loss will find this story from the Insurance Journal interesting. The title of the article is “Oregon Woman Loses Home, Then Her Insurance.”

An elderly southern Oregon woman says she’s been left to depend on friends and family after her home was gutted in a suspected arson and her insurance company canceled her policy. Insurance industry officials contend the process of handling fire-related claims isn’t cut-and-dry.

Lola Powell, 81, says she wasn’t home when flames flared Jan. 9 inside her house on South Second Street in Talent. “I had to go to the eye doctor to get glasses,” she says.

Insurance Agent Getting Insurance For Their Customer

October 22, 2015 | Mark S. Humphreys

Mineral Wells insurance lawyers will have situations wherein the agent may have made a mistake in getting insurance for one of their customers. The 11th Court of Appeals issued an opinion in 2015, that provides some insight into how courts examine claims made against insurance agents. The style of the case is, Spurlock v. Grantham-Adkins Insurance Agency. There are other issues in this case, but only the issue related to insurance agent responsibilities will be discussed.

J.O. Spurlock died. Kelly Spurlock, representative of the J.O. Spurlock estate sued the insurance agency for negligent procurement of an insurance policy.

J.O.’s home, after his death, had personal property stolen from it. Kelly made a claim for benefits from the insurance company that was denied due to there being no coverage for the loss that had occurred.

Fraud Claims Against Insurance Companies

October 20, 2015 | Mark S. Humphreys

Fort Worth insurance lawyers need to have an understanding of the requirements for suing an insurance company for fraud. A 2015, United States District Court, Austin Division, case is a good place to start for grasping the requirements. The case is styled, Bige, Inc. v. Penn-America Insurance Company; Specialty Insurance Managers, Inc; Eric Kehs.

Bige alleges Penn-America sold them a Policy, representing it included wind and hailstorm coverage for damage to the Property. Bige further alleges the Property sustained damage from a storm. Bige submitted a claim to Penn-America for the damage.

Bige states Penn-America hired or assigned Kehs to adjust the claim, but Kehs failed to fully investigate the claim. Bige alleges, although Penn-America and Kehs acknowledged damage to the Property, Kehs conducted a substandard and improper inspection of the Property, which yielded a grossly inaccurate and unrealistic assessment of the cause, extent and dollar amount of the damage to the Property. Specifically, Kehs determined the amount of damage was less than Bige’s deductible under the Policy. Bige further alleges, upon receipt of the inspection reports, Penn-America failed to review the assessment thoroughly, resulting in a failure to provide coverage due under the Policy. Bige further alleges, following receipt of Bige’s demand letter, Penn-America and Kehs refused to conduct further investigation that was not “outcome-oriented.”

Flood Claims And Statute Of Limitations

October 18, 2015 | Mark S. Humphreys

Fort Worth insurance lawyers will not see as many flood claims as attorneys along the Texas coast but they still need to have some knowledge of how they work. The United States District Court, Galveston Division, issued an opinion and order in a dispute concerning a National Flood Insurance Policy. The style of the case is, Afredo Mamani and Patricia Gonzalez v. AIG National Insurance Company, Inc.

Before the Court was a Motion for Summary Judgment filed by AIG. The motion sought to dismiss Mamain and Gonzalez (Plaintiff”) complaint based on a statute of limitations defense.

Plaintiffs’ residential rental property was damaged by flood waters during Hurricane Ike. At the time, the property was insured under a Standard Flood Insurance Policy issued by AIG, a WYO carrier under the National Flood Insurance Program. AIG sent an adjuster to the property. The adjuster spoke with Mamani and the tenants who had remained during the hurricane. After examining the claimed flood damages the adjuster determined that any covered damage was insufficient to meet the Plaintiffs’ deductible. Consequently, AIG made no payment under the policy.

Misrepresentation In Selling An Insurance Policy

October 17, 2015 | Mark S. Humphreys

Kennedale insurance lawyers need to read this recent opinion from the United States District Court, Dallas Division. It is styled, Renee Davis and Reginald Davis v. State Farm Lloyds and Leah Suzanne McGee.

This is a case that was filed in State Court against State Farm and the agent, McGee, and removed to Federal Court by the Defendants based on Federal diversity jurisdiction. Davis sought to have the case remanded to the State Court. This court denied that request. There are more than a couple issues in this case but the part dealing with misrepresentation by the agent is what will be discussed.

Davis alleges that their insured property was damaged but that State Farm “failed to pay the full proceeds of the policy” and failed to settle the claim in an adequate and timely manner. With respect to the insurance agent McGee, Davis alleged that McGee “constantly assured Plaintiffs that they were adequately insured even though a reasonable and prudent insurance agent would testify otherwise.” They further allege that McGee “misrepresented to Plaintiffs that the insured person was covered by such peril although State Farm denied such coverage.” It thus appears that Davis claim they have been wrongfully denied full coverage for the damages sustained to their property, although there is no information as to the event that caused the damage, the nature or extent of the damage, and the circumstances underlying State Farm’s alleged denial of full coverage. As a result Davis sued McGee for negligent misrepresentation, among other causes.

Fraud Allegations And Federal Court

October 15, 2015 | Mark S. Humphreys

Insurance lawyers in the Dallas / Fort Worth area can tell you that when alleging fraud against an insurance company, agent, or adjuster, that the allegations for Federal Court have to be very specific. These specifics are discussed in a recent opinion from the U.S. District Court, Western District of Texas, Austin Division. The style of the case is, Bige, Inc. v. Penn-America Insurance Company; Specialty Insurance Managers, Inc.; Eric Kehs. When the allegations are not properly pleaded in the lawsuit papers, the insurance attorneys will seek the Federal Court to dismiss the lawsuit in what is called a Rule 12(b)(6) motion. In discussing the requirements in Federal Court for allegations of Fraud, the opinion said the following:

When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6) the complaint must be liberally construed in favor of the plaintiff and all facts pleaded therein must be taken as true. Although Federal Rule of Civil Procedure 8 mandates only that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief,” this standard demands more than unadorned accusations, “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertions” devoid of “further factual enhancement.” Rather, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” The Supreme Court has made clear this plausibility standard is not simply a “probability requirement,” but imposes a standard higher than “a sheer possibility that a defendant has acted unlawfully.” The standard is properly guided by “two working principles.” First, although “a court must accept as true all of the allegations contained in a complaint,” that tenet is inapplicable to legal conclusions” and “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Second, “determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Thus, in considering a motion to dismiss, the court must initially identify pleadings that are no more than legal conclusions not entitled to the assumption of truth, then assume the veracity of well-pleaded factual allegations and determine whether those allegations plausibly give rise to an entitlement to relief. If not, “the complaint has alleged-but it has not ‘shown’-‘that the pleader is entitled to relief.'”

Pleading fraud as a cause of action requires pleading “with particularity” pursuant to Federal Rule of Civil Procedure 9(a). Fifth Circuit precedent interprets Rule 9(b) strictly, requiring the plaintiff to “specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent.”