Dallas Fort Worth Insurance Lawyer Blog

Offer And Acceptance

August 22, 2015 | Mark S. Humphreys

Irving insurance lawyers need to be able to discuss with clients when offers of settlement should be accepted and how to accept the claim. A good illustration of this is found in a 2015, Houston Court of Appeals [1st. Dist.] opinion. It is styled, Kamisha Davis v. Texas Farm Bureau Insurance.

Kamisha Davis sued Farm Bureau, asserting several causes of action. The trial court granted summary judgment against Davis in favor Farm Bureau.

On August 26, 2009, Kamisha Davis was involved in a motor vehicle accident with Farm Bureau’s insured. Davis hired attorney Corey Gomel to pursue a personal injury claim arising out of the accident. On April 19, 2011, Gomel sent Farm Bureau a letter, stating that Davis would be willing to settle her personal-injury claims against Farm Bureau’s insured for $37,500. Farm Bureau, through its claims adjuster, Jody Roe, made a counter-offer of $10,000 on May 2, 2011.

ERISA And A Jury Trial

August 20, 2015 | Mark S. Humphreys

Fort Worth ERISA attorneys already know that an ERISA case is not entitled to a jury trial. The U.S. District Court For The Southern District Of Texas Houston Division issued an opinion wherein that issue was a point of contention. The style of the case is Lucinda Francis v. South Central Houston Action Council, Inc. D/B/A Central Care Community Health Center.

Francis alleges that on July 25, 2013, Central Care terminated her employment. Francis filed her Complaint alleging that Central Care violated section 510 of ERISA when it terminated her employment soon after she elected to enroll in Central Care’s employee health insurance program because Central Care wanted to avoid covering Francis’s benefit plan expenses. Francis also alleges that Central Care’s motivation for terminating her employment violated the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964. She requested a trial by jury on all of her claims. In Defendant’s Answer Central Care alleged that Francis’s termination was based on Francis’s insubordination in failing to follow proper policies and procedures with regard to clocking in and out. Central Care moved to strike Francis’s ERISA claim, arguing that Francis lacks standing to bring an ERISA claim and that ERISA claims are not triable by a jury.

Central Care argues that Francis’s ERISA claim should be stricken based on lack of statutory standing because Francis does not qualify as a “participant” in Central Care’s benefit plan. Francis responds that a motion for summary judgment, rather than a Rule 12(f) motion to strike under the Federal Rules of Civil Procedure, is the appropriate vehicle for dismissal of an ERISA claim based on lack of statutory standing. Central Care responds that its Motion to Strike was not raised pursuant to Rule 12(f), and that Francis’s ERISA claim should be stricken because Francis lacks standing and the court therefore lacks subject-matter jurisdiction.

Bad Faith Claim

August 18, 2015 | Mark S. Humphreys

Grand Prairie insurance lawyers need to be aware of the opinions issued by the appeals courts dealing with bad faith issues. The Dallas Court of Appeals issued an opinion on June 30, 2015, that discusses bad faith in insurance cases. The style of the opinion is, Bruce E. Bernstien v Safeco Insurance Company of Illinois.

This is Berstine’s appeal of a summary judgement in favor of Safeco.

Bernstien had an automobile insurance policy from Safeco to provide insurance coverage for his Porsche. The Porsche was damaged in an accident, and Bernstien notified Safeco. Safeco acknowledged the Porsche was covered by the insurance policy, but disagreed with Bernstien about the amount of money Safeco should pay Bernstien for the Porsche. The dispute was submitted to an appraiser, who concluded the value of the Porsche was $4,900 plus tax, title, and license. Nine days after the date of the appraisal award, Safeco sent a letter to Bernstien enclosing a check for $5,287.05. The letter stated Safeco was not applying Bernstien’s $1,000 deductible nor deducting money for the salvage value of the car.

Hail Claims And Statute Of Limitations

August 16, 2015 | Mark S. Humphreys

Weatherford insurance lawyers need to have a clear understanding how the statute of limitations is calculated in a hail damage claim. A U.S. District Court case from The Southern District, McAllen Division is necessary reading. It is styled, Hector Chapa, et al v. Allstate Texas Lloyds, et al.

This is a summary judgement case, wherein Allstate filed the motion for summary judgment based on among other things, the statute of limitations.

The following facts are undisputed. On March 29, 2012, a wind and hail storm struck causing significant damage to Plaintiffs’ home. Plaintiffs immediately filed a claim with Allstate on March 30, 201. On April 9, 2012, an adjuster from Allstate inspected the claim and determined the replacement cost value for the hailstorm damage amounted to $24,713.17. To pay the claim, Allstate made an initial cash value payment to Plaintiffs on April 10, 2012, which is the date they assert the claim was settled in accordance with the policy, and provided a recoverable depreciation payment when the repairs were completed on June 22, 2012. Allstate closed the claim on June 22, 2012 and had no further communication with Plaintiffs for almost two years.

Suing An Allstate Adjuster

August 15, 2015 | Mark S. Humphreys

Fort Worth insurance law attorneys will often find themselves in a position where they are suing an Allstate adjuster. One reason for doing so would be to keep a lawsuit in a State Court rather than a Federal Court which is where Allstate would prefer to litigate a case. A U.S. Corpus Christi Division of the Southern District of Texas court issued a remand in a case that Allstate had removed to Federal Court. The style of the case is, W. Ohio St. Condo Association v. Allstate Insurance Company, et al.

This is an insurance coverage dispute arising from wind and hail storm damage to W. Ohio commercial property. Allstate timely removed the case from state court on the basis of diversity jurisdiction, with its allegation that the non-diverse claims adjuster, Kevin Pakenham, was improperly joined.

Pursuant to 28 U.S.C. 1332, diversity jurisdiction requires the citizenship of all plaintiffs to be diverse from the citizenship of all defendants and the amount in controversy to exceed the sum or value of $75,000, exclusive of interest and costs. It is undisputed that the parties, with the exception of Pakenham, are diverse and that the amount in controversy exceeds the sum of $75,000. Therefore, the only issue for the Court is whether Pakenham was improperly joined such that his non-diverse citizenship may be disregarded.

Properly Suing The Adjuster

August 13, 2015 | Mark S. Humphreys

Dallas insurance lawyers have to know how to properly sue an insurance adjuster. This is important in many cases so that a case can be maintained in a State Court rather than being litigated in a Federal Court. A 2015, U.S. District Court case from the Northern District of Texas, Dallas Division, provides guidance for doing this properly. The style of the case is, Linron Properties, Ltd. v. Wausau Underwriters Insurance Company and Sara Springman.

Linron Wausau and adjuster Springman for the improper handling of an insurance claim under a Commercial Property Policy, which Linron purchased from Wausau. After a storm caused damage to the insured property, Linron sought coverage for the cost of repairs under the terms of the Policy and Wausau hired Springman to serve as the adjuster for Plaintiff’s claim. Linron asserts that Springman “conducted an outcome-oriented investigation and also hired experts she knew would under-scope Plaintiff’s damages in order to allow Wausau to avoid payment on the claim.” As a result of Wausau’s and Springman’s actions, Linron claims that it has been wrongfully denied full coverage for the damages sustained to the property.

Linron sued Wausau and Springman in State Court asserting claims for breach of contract and various violations of chapters 541 and 542 of the Texas Insurance Code.

Suing Insurance Companies

August 11, 2015 | Mark S. Humphreys

When suing an insurance company, the pleading of a lawsuit have to be proper or the case gets thrown out of court. An example of an insurance company trying to do this is found in a 2015 case from the United States District Court, Southern District of Texas. It is styled, Garza v. Scottsdale Insurance Company,et al.

This is an insurance coverage dispute arising from hail storm damage to Garza’s home. Scottsdale removed the case from state court on the basis of diversity jurisdiction, with its allegation that the non- diverse claims adjusters, Wardlaw Claims Service, L.L.P. and Michael Clark (jointly Adjusters), were improperly joined. The Court granted the motion of Garza to remand from the Federal Court to the State Court, ruling that in this case the proper pleading standard was met.

Scottsdale’s argument is that Garza has not satisfied pleading rules because, while federal courts often apply Texas “fair notice” pleading rules in removal decisions, Texas pleading rules are no longer as liberal as they once were. Scottsdale refers to newly adopted Texas Rule of Civil Procedure 91a, which provides for dismissal “on the grounds that [the cause of action] has no basis in law or fact.”

Farmers Insurance Taking Advantage Of Policy Holders

August 9, 2015 | Mark S. Humphreys

Insurance lawyers in the DFW area need to stay on top of the insurance news in Texas. One good resource for keeping informed is the Insurance Journal. The Insurance Journal published an article in March of 2015 and another related article in July of 2015.

The first article tells us that on the heels of a recent multi-million dollar refund agreement with the state’s largest homeowners insurer, the Texas Department of Insurance announced a revised settlement with the second largest homeowners insurer, Farmers Insurance, stemming from a 2002 lawsuit by the state against Farmers.

The settlement now goes before a Travis County District Court for approval.

Coverage Extensions In Insurance Policies

August 8, 2015 | Mark S. Humphreys

Fort Worth insurance lawyers who handle commercial case need to read a 2015, Austin Court of Appeals opinion. It is styled, 3109 Props, L.L.C.; Detour, Inc.; and Richard Linklater v. Truck Insurance Exchange.

Linklater appealed a summary judgement in the trial court in favor of TIE on their claims for breach of contract, unfair insurance practices, and violation of the prompt payment statute. This appeals court upheld the summary judgment.

3109 Props and Linklater, a filmmaker, were the named insureds on a commercial property insurance policy issued by TIE. A property owned by Linklater located at Cardinal Drive in Paige, Texas was destroyed by fire. Stored in the building and also destroyed in the fire was Linklater’s archive of materials from his various film projects. The archive had been appraised and was estimated to be worth at least $500,000. According to Linklater, the archive had been stored at 171 Cardinal Drive since at least 2010 in a building erected for that purpose and owned by Linklater.

National Flood Insurance Program Law

August 6, 2015 | Mark S. Humphreys

Lancaster insurance attorneys will occasionally see a claim covered by the National Flood Insurance Program. Each of these types of government programs are governed in their own particular way. The United States District Court for the Southern District of Texas, Galveston Division issued a ruling that attorneys handling these types of claims need to know about and read. The style of the case is, Ruby Pal v. Texas Farmers Insurance Company.

This is a summary judgment ruling wherein Farmers sought to have the court dismiss the case filed by Pal.

Pal’s property was damaged in flooding during Hurricane Ike in September 2008. At the time, Pal had insured the property for $110,000.00 against flood loss with Farmers, a WYO insurer with the National Flood Insurance Program. Pal’s initial claim was adjusted and paid, on December 29, 2008, in the amount of $53,610.45. The extended deadline for filing a Proof of Loss (POL) for Hurricane Ike claims expired on August 7, 2009. Seven months later, on March 11, 2010, piled filed her second POL seeking policy limits. Farmers negotiated Pal’s claim and by April 7, 2010, determined she was due an additional $7,644.68. The parties requested a waiver of a timely POL for that amount which was approved by FEMA on April 13, 2010. On October 1, 2010, Pal sued Farmers seeking additional proceeds under her policy. The parties continued to negotiate her claim, but reached impasse around May 30, 204. As a result, Farmers filed the summary judgment motion.