Dallas Fort Worth Insurance Lawyer Blog

Insurance Lawsuits – Pre-Suit Notice

October 3, 2015 | Mark S. Humphreys

Duncanville insurance lawyers need to understand the pre-requisites to filing a lawsuit against an insurance company. The most important of these pre-requisites is found in Texas Insurance Code, Section 541.154. This section requires pre-suit notice. The failure to follow this requirement is discussed in a recent opinion from the U.S. District for the Northern District of Texas, Dallas Division. The case is styled, Johnson Medical Associates v. State Farm Lloyds.

State Farm Lloyds removed this insurance dispute from state court to federal court on February 25, 2015. Shortly thereafter, State Farm timely filed a Verified Plea in Abatement pursuant to Section 541.155(a) of the Texas Insurance Code on grounds that it did not receive the statutorily-required pre-suit notice of Plaintiff’s claims. On March 23, 2015, the Court abated the action and ordered Johnson Medical Associates to file a notice indicating the date on which it tendered the statutorily-required notice to State Farm. Johnson Medical failed to comply with the Court’s Order or otherwise respond. Thus, on August 12, 2015, the Court again ordered Johnson Medical to file a notice with the Court indicating the date on which it tendered the statutorily-required notice to State Farm. The Court set August 24, 2015 as the deadline for Johnson Meidcal to comply and admonished Johnson Medical that “failure to timely file the notice with the Court will result in dismissal of this case for want of prosecution.” To date of this opinion, State Farm had failed to file any notice with the Court. The Court then determined that this case should be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b).

A district court has authority to dismiss a case for want of prosecution or for failure to comply with a court order. This authority “flows from the court’s inherent power to control its docket and prevent undue delays in the disposition of pending cases.” Such a dismissal may be with or without prejudice. A dismissal with prejudice is appropriate only if the failure to comply with the court order was the result of purposeful delay or contumacious conduct and the imposition of lesser sanctions would be futile.

Texas , New Areas Require Flood Insurance

October 1, 2015 | Mark S. Humphreys

Flood insurance in Texas is about to change. The Claims Journal published an article in August of 2015, dealing with flood insurance coverage in Texas. Specifically, new areas that are now required to have flood insurance. The title of the article is, New FEMA Maps Could Force Central Texas Residents To Buy Flood Insurance. Here is what the article tells us.

Hundreds of Central Texas residents could be forced to buy flood insurance or face stricter building regulations for new structures nearly three months after deadly flooding, according to new Federal Emergency Management Agency advisory maps made public Friday.

The maps, which face a yearlong review process, would dramatically expand flood plains along the banks of the Blanco River and tributary creeks, the Austin American-Statesman reported.

Hurricane Damage Numbers For Katrina

September 29, 2015 | Mark S. Humphreys

Dallas area insurance lawyers need to know what is happening in the world of insurance claims. The Claims Journal, an insurance company business, published an article in August 2015, that showed information from Hurricane Katrina. The article is titled, Hurricane Katrina Facts & Figures.

The article tells us that Hurricane Katrina made landfall in Southern Florida as a Category 1 hurricane 10 years ago this week. It moved into the Gulf of Mexico where it strengthened into a Category 5 hurricane, it then made a second landfall on August 29 in Southern Louisiana as a Category 3 hurricane and finally made a third landfall close to the Louisiana Mississippi border.

The U.S. Census Bureau released a special edition of its Facts for Features highlighting the areas that sustained the most damage: New Orleans and the Mississippi coast.

Getting The Insurance Adjusters File

September 27, 2015 | Mark S. Humphreys

Haltom City insurance lawyers need to know about a 1986, Texas Supreme Court case. The case is styled, Turbodyne Corporation et al. v. The Honorable Wyatt H. Heard. This case allows a claimant to have access to the file investigating the claim of an insured that is put together by the adjuster and the company.

Turbodyne filed this original mandamus action to order Judge Hyatt Heard of Harris County to rescind his order denying discovery of 39 documents from Travelers Insurance Company. Travelers contends that these documents are privileged under Texas Rules of Civil Procedure 166b. This Court held that the trial court abused its discretion in denying discovery, and conditionally grant the writ.

A fire and explosion occurred at Texas City Refining. Turbodyne was the manufacturer of a part of a catalytic cracking unit involved in that fire. Texas City’s casualty insurer, Travelers, initiated an investigation into the causes and damages of the accident. Approximately nine months after the accident, on July 30, 1980, Travelers and Texas City reached a settlement on the coverage. On October 30, 1981, Travelers and Texas City filed a subrogation suit against Turbodyne and other manufacturers. Turbodyne filed a motion to compel production of 39 documents prepared by employees of Travelers or experts employed by Travelers. Travelers asserts that all documents but one were prepared prior to the date Travelers settled with Texas City, July 30, 1980.

Insurance And Common Law Marriage

September 26, 2015 | Mark S. Humphreys

Grand Prairie insurance lawyers will have situations where a man and woman live together and have an insurance claim. It usually has to do with a life insurance policy claim but can be any type of insurance. When it comes to insurance benefits, the issue will be one of whether or not one of them is entitled to benefits as a spouse of the other.

The Austin Court of Appeals issued an opinion related to a “common law marriage” that needs to be understood. The style of the opinion is, Karen Kuester v. Ivor Green.

This is appeal by Kuester from a summary judgment in favor of Green.

Hail Damage Claims And Removal To Federal Court

September 24, 2015 | Mark S. Humphreys

Fort Worth insurance lawyers handling hail damage claims need to read this U.S. District Court, Northern District, Dallas Division ruling. It is styled, Angela Glidewell v. Safeco Insurance Company of Indiana, et al.

This case arises from the alleged mishandling of Glidewell’s insurance claim for damage to her home caused by a hailstorm. The case was filed in County Court, then removed to Federal Court based on Safeco’s allegation that Glidewell improperly joined the adjuster, Davis, to defeat diversity jurisdiction.

Glidewell alleges that Davis improperly adjusted the claim on the damaged property by conducting a “substandard investigation and inspection.” Davis allegedly failed to report all of the damage he observed during the inspection and “undervalued the damages.” Glidewell further alleges that Davis’s misrepresentations led Safeco to underpay on the insurance claim. In sum, Glidewell asserts that “Safeco and Davis performed an outcome-oriented investigation, . . . resulting in a biased, unfair, and inequitable evaluation” of Glidewell’s property losses.

Life Insurance Denial

September 22, 2015 | Mark S. Humphreys

Dallas life insurance lawyers keep up with court decisions related to life insurance claims. The most recent from the date of the post is from the U.S. 5th Circuit Court of Appeals. It is styled, Lila McWhirter v. AAA Life Insurance Company.

Eugene McWhirter purchased a life-insurance policy from AAA covering accidents that occurred while “exiting from any private passenger automobile . . . .” In December, McWhirter attended a party with his daughter Karen and wife Lila. After the party, Karen drove the family home and backed into the driveway. Shortly thereafter, McWhirter fell. Neither Lila nor Karen witnessed the incident. They discovered McWhirter lying in the grass near the car. McWhirter died as a result of the head injury he sustained during the fall.

Lila filed a claim with AAA seeking death benefits. In the claim forms, she described the accident as follows: “While exiting the vehicle and entering the home hit the entry step and fell backwards into the yard hitting the back of his head to the ground.” She also submitted McWhirter’s death certificate, an EMS report, an affidavit from a neighbor who observed the scene, and a drawing and photograph in which the neighbor showed that McWhirter was found lying parallel to the car on his back. AAA concluded that these documents, as well as Lila’s description of the accident and statements made by Karen in letters to the company, indicated that McWhirter fell after exiting the car. As a result, it determined that the fall was not covered under McWhirter’s policy and denied Lila’s claim.

ERISA Claim Or Not?

September 20, 2015 | Mark S. Humphreys

The above question is always being asked by insurance lawyers when someone sees them about an insurance claim. Whether a claim is covered by ERISA or not, makes a huge difference in how the claim is handled. A little insight into whether a claim is an ERISA claim or not is gleamed from a 2015, Fifth Circuit case. It is styled, Kelsey-Seybold Medical Group PA v. Great-West Healthcare of Texas, Incorporated.

Kelsey sued Great-West in Texas state court, alleging that Great-West had not paid the contractually required rate for medical services that Kelsey had provided to members of Great-West-affiliated healthcare plans. Great-West removed the case to federal court on the ground that Kelsey’s claims were completely preempted by ERISA. Kelsey moved to remand on the basis that its claims were not completely preempted and, therefore, the district court lacked subject matter jurisdiction. The district court declared the claims preempted and entered a take-nothing judgment in favor of Great-West. To determine whether a claim is completely preempted by ERISA, the Court applies the two-part test set forth in the case Aetna Health Inc. v. Davila: a claim is completely preempted if

(1) the claimant “could have brought his claim under ERISA § 502(a)(1)(B),” and

Crime Protection Insurance Policy

September 19, 2015 | Mark S. Humphreys

Fort Worth insurance lawyers will not see this situation very often. But it does happen. This is a case from the U. S District Court, Houston Division. The style of the case is Apache Corporation v. Great American Insurance Company.

Apache purchased a Crime Protection Policy from Great American. The Policy was an insurance policy meant to insure against several types of risk. One such category of risks the policy covered was “computer fraud.” The Computer Fraud section, or Section B.5 of the Policy read as follows:

5. Computer Fraud

Statutes Of Limitations

September 17, 2015 | Mark S. Humphreys

Dallas insurance attorneys know about limitations. As a reminder, a 2015 case from the U.S. District Court, Southern District of Texas, Houston Division, is worth reading. It is styled, Charles Van Tassel v. State Farm Lloyds, et al. Their are a number of issues in this case but this focus will be on the limitations imposed contractually by State Farm.

In this case, State Farm filed a motion for summary judgment based on the defense of limitations. The Court stated that the party asserting an affirmative defense, such as the statute of limitations or estoppel, bears the burden of proof on it.

In Texas, pursuant to Texas Civil Practices & Remedies Code, Section 16.051, the statute of limitations for a breach of insurance contract action is four years from the day the cause of action accrues. Under the “legal injury rule,” a cause of action accrues when a wrongful act causes the legal injury, even if the injury is not discovered until later.