Dallas Fort Worth Insurance Lawyer Blog

Homeowners Policy Interpretation

July 25, 2015 | Mark S. Humphreys

Irving insurance law attorneys who handle claims involving homeowner policy’s need to read this recent opinion out of the Dallas Court of Appeals. It is styled, David Fusaro v. Trinity Universal Insurance Company.

David Fusaro appeals from a summary judgment in favor of Trinity Universal Insurance Company (TUIC). Among other things he contends that his claims asserted against TUIC’s insured were covered under TUIC’s policy.

Christopher Becherer’s mother drove her Isuzu Rodeo to Becherer’s house where she left it with Becherer to replace the brakes. Becherer used a hydraulic jack centered on the front of the vehicle to jack up the vehicle, remove the front wheels, and work on the brakes. Although Becherer had jack stands nearby, he did not use them. Becherer’s friend, Fusaro, was at his house and offered to help when Becherer had difficulty removing a brake caliper. While Fusaro was partially under the front passenger wheel well struggling to loosen a caliper bolt, the hydraulic “jack gave way” and the vehicle suddenly fell on top of Fusaro.

Declaratory Judgment In Insurance

July 23, 2015 | Mark S. Humphreys

Farmers Branch insurance lawyers will run across situations where an insurance company is defending a lawsuit under a “reservation of rights” and then filing a declaratory judgment lawsuit against their insured. This is what happened in an opinion styled, Broussard v. Texas Farm Bureau. The opinion is from the Houston Court of Appeals [14th Dist.].

Farm Bureau issued a homeowner’s insurance policy to Becky and Joseph Broussard for their property. Becky injured an individual while she was operating an all-terrain vehicle. The Broussards reported a claim to Farm Bureau for the accident. The injured individual filed suit against the Broussards (the underlying suit), and the Broussards requested Farm Bureau defend and indemnify the underlying suit. Farm Bureau provided a defense to the Broussards with a reservation of rights.

At the same time, Farm Bureau filed a declaratory judgment action seeking a declaration that it has no duty to (a) defend or indemnify the Broussards for the underlying suit and (b) make medical payments to the injured plaintiff in the underlying suit. The Broussards answered with a general denial and a counterclaim for a declaration that Farm Bureau owed them both a duty to defend and indemnify and to make medical payments in the injured plaintiff in the underlying suit and for violations of the DTPA.

Renters Insurance

July 21, 2015 | Mark S. Humphreys

Irving insurance lawyers will run into situations where a renters insurance policy is at issue. The Dallas Court of Appeals issued an opinion in 2015, that should be read. It is styled, Chambers v. American Hallmark Insurance. This case is a good illustration why an experienced insurance law attorney needs to be involved.

This is an appeal by Chambers wherein the trial court granted summary judgment in favor of Hallmark.

Chambers purchased a renter’s insurance policy (the Policy) from Hallmark that went into effect on February 1, 2010. The insurance policy covered the Chambers premises. Chambers paid $252.00 in premiums on the Policy. On or about March 13, 2010, Chambers reported a loss of personal property from the residence identified on the Policy. Chambers submitted his claim for coverage with Hallmark. Hallmark claimed that the alleged theft was not a covered loss under the Policy and denied the claim.

Violating Prompt Pay Statutes

July 19, 2015 | Mark S. Humphreys

Arlington insurance lawyers should read the 1999, Tyler Court of Appeals case styled, Dunn v. Southern Farm Bureau. The opinion discusses an insurance company’e responsibilities under the Texas Prompt Payment of Claims statutes.

Dunn was insured under a standard form automobile liability policy issued by Farm Bureau which contained uninsured/underinsured motorist (“UM”) coverage. She was injured when her vehicle was struck from the rear by an underinsured motorist. In her suit Dunn sought to recover not only UM benefits, but additional damages and attorney fees as the result of Farm Bureau’s alleged violation of the prompt payment requirements of the Texas Insurance Code. After a bench trial, the trial court rendered judgment in favor of Dunn in the amount of $220,000.00 for personal injury damages and $118,251.22 for prejudgment interest. However, the trial court did not award Dunn the requested 18 percent additional damages and attorney fees provided for in the Prompt Pay Statute. In her sole issue presented, Dunn asserts that the trial court erred by refusing to award the 18 percent penalty, attorney’s fees, and prejudgment interest.

At the heart of this case is the interpretation and application of the prompt payment provisions. The relevant provisions of the statute state:

Subrogation On Insurance Claims

July 18, 2015 | Mark S. Humphreys

Subrogation is a big issue to be dealt with by Dallas insurance attorneys. The efforts to collect on subrogation rights is discussed in an article published by Bloomberg News in June 2015. It tells of a lawyer instrumental in the collection efforts, George Rawlings.

The article tells us George Rawlings grabs a stack of computer printouts and stretches them six feet across his office, admiring data from police reports of Florida auto accidents: the names of those hurt and the severity of their injuries.

For Rawlings, this information is gold. It’s his job to track these injured people down and collect money from them.

Hospitals Over Charging Patients

July 16, 2015 | Mark S. Humphreys

Dallas area attorneys need to know actions that can be taken to fight hospital over charging uninsured patients. The Washington Post published an article in June that named 50 hospitals that charge uninsured more than ten times the cost of care. Three of those were in the Dallas / Fort Worth area. Here is what the article says.

All but one of the facilities are owned by for-profit entities. The hospitals with the highest markups are not in pricey neighborhoods or big cities, where the market might explain the higher prices.

Topping the list is North Okaloosa Medical Center, a 110-bed facility in the Florida Panhandle about an hour outside of Pensacola. Uninsured patients are charged 12.6 times the actual cost of patient care.

Written Notice Of Claim To Insurance Company

July 14, 2015 | Mark S. Humphreys

Carrollton insurance lawyers need to make sure when a client is filing an insurance claim that the claim is a written claim for benefits. Most insurance companies will take an oral claim report but at least one court in Texas is requiring that a notice of claim be in writing. This is the situation in a 2005, Austin Court of Appeals opinion styled, McMillin v. State Farm Lloyds.

The claims underlying this appeal arose while the McMillins were renovating their house. The McMillins had removed a portion of the roof and covered the opening with tarp. On October 6, 2000, a storm hit and the tarp failed to prevent water from entering the house. The McMillins filed a claim with their homeowners’ insurance carrier, State Farm, and, within a few days, State Farm made a payment of $2508.35 for viewable damage. Later that same month, after additional inclement weather, the McMillins reported additional water damage, along with mold growth throughout the house. Unlike the case with the McMillins’ initial claim, several months passed before State Farm paid the second claims. On March 1, 2001, a mold remediator sent a fax to State Farm opining that remediation was so expensive that it was no longer cost-effective; State Farm did not share that estimate with the McMillins. On August 7, 2001, a week after getting another estimate from the mold remediator, State Farm paid $344,367.27 to the McMillins on their claim of water damage resulting in mold; thus, State Farm paid $346,875.62 to compensate the McMillins for their covered losses, an amount that excludes the $1000 deductible. By August 2001, the McMillins had purchased another home and moved there, partly in order to enable their planned adoption of a child to move forward.

The McMillins sued State Farm for among other things, violations of the Texas Prompt Payment of Claims Act.

Duties Of Insured Under Prompt Pay Statute

July 12, 2015 | Mark S. Humphreys

Saginaw insurance lawyers need to be able to discuss with their clients the duties the clients have to the insurance company regarding the Prompt Payment of Claims Act.

It boils down to this, a claimant has two duties to the insurance company.

(1) to give the insurer notice of the claim; and (2) to give the insurance company all the items the insurance company reasonable needs to secure proof of final loss.

ERISA And Plan Administrator As Fiduciary

July 11, 2015 | Mark S. Humphreys

ERISA attorneys need to read a recent opinion from the U.S. District Court for the Western District of Pennsylvania. It is styled, US Airways, Inc. v. James E McCutchen and Rosen, Louik & Perry, P.C.

The legal journey of this case is semi-complicated. What is relevant is that the employer, US Airways did not produce a copy of the ERISA Plan until US Airways agreed to produce the Plan during a meeting requested by the Office of the Solicitor General of the United States and the Department of Labor. The purpose of the meeting was to assist the Government’s attorneys in deciding whether to file an amicus curiae brief in the United States Supreme Court.

US Airways produced the actual Plan with numerous amendments, and Defendants contend that they then learned for the very first time that the Plan differed in material respects from the SPD, neither providing for a right to reimbursement nor mentioning the right to reimbursement from a recovery from one’s own insurance policy, i.e., underinsured motorist benefits.

Hail Damage

July 9, 2015 | Mark S. Humphreys

Duncanville insurance attorneys need to know how the courts looks at the appraisal provisions in an insurance policy. This issue came up in a recent Amarillo Court of Appeals opinion styled, Texas Farm Bureau Insurance Company v. Brittni Sampley.

Farm Bureau insured Sampley’s vehicle under a Texas personal automobile policy. The vehicle suffered hail damage and, when the parties disagreed over the cost of repairs, Sampley invoked the appraisal provision in the policy. It requires each party to select a “competent appraiser.” Each party selected an appraiser. After being notified of Sampley’s choice of Robert Batt as her appraiser, Farm Bureau sent her a letter advising her choice was “unacceptable as Mr. Batt is an employee of Bernard’s Advanced Collision, the body shop who repaired your vehicle. Texas law not only requires appraisers to be competent, but also disinterested in the outcome of the appraisal process.” The letter asked Sampley to “inform us once you have selected a disinterested appraiser.” When Sampley declined to change appraisers, Farm Bureau filed suit asking the trial court to remove Batt as appraiser. The parties stipulated Batt “is not disinterested as to the appraisal of the loss at issue because he is employed by Bernard’s Advanced Collision and that company will be paid from the results of the appraisal.”

Farm Bureau filed a motion for summary judgment which was denied. The court issued a further order stating in part that it “sees no requirement that an appraiser in this appraisal process must be both competent and disinterested and will not impose such a requirement.”