Dallas Fort Worth Insurance Lawyer Blog

Drone Insurance?

June 20, 2015 | Mark S. Humphreys

Texas insurance lawyers need to be on the look out for this – drone insurance. I’m kinda curious about it – are you? The Insurance Journal published an article about this issue on May 13, 2014. It is titled, Market For Drone Insurance Expected To Take Off In Nest 5 Years. Here is what it says.

The use of drones could become common practice for almost 40 percent of businesses in fewer than five years, according to corporate risk managers.

Those same risk managers say they will buy drone insurance even if it’s not mandated.

Collecting Uninsured Motorist Coverage

June 18, 2015 | Mark S. Humphreys

Springtown insurance lawyers need to understand how to help a client recover uninsured motorist benefits (UM). In doing so, they would need to be aware of a 2015, Houston Court of Appeals [1st Dist.] opinion. The style of the case is, Oliver Vans, Jr. Mickey Dinh, Santos Reyna, and Lo Dinh v. Infinity County Mutual Insurance Company and Sandra Hightower.

Vans, Reyna, and Dinh (appellants) were traveling in a 1996 Camry, owned by Dinh, when it struck another vehicle. All three were injured. Vans took photos of the other vehicles license plant which was id’ed as a 1999 Olds owned by Orozco.

Appellants sued Orozco. Orozco filed a handwritten answer stating that she was neither the driver or owner of the Olds and that she had sold the vehicle to Zamora. She also sent a copy of the Bill of Sale that was signed by her and Zamora. She also sent a letter stating she did not have insurance on the vehicle and that Orozco did not have insurance either. Thus, appellants made a UM claim against Infinity.

How To Get Extra-Contractual Liability

June 16, 2015 | Mark S. Humphreys

Azle insurance lawyers need to be able to recognize when a case might have extra-contractual issues to litigate.

A mere breach of an insurance contract is not actionable under the DTPA or Insurance Code. There must be something more in the way of fraud or misrepresentation in order to establish a cause of action. A breach of contract, even if proven, does not constitute an “unconscionable” act.

A reasonable basis for an insurance company to deny a claim may establish a defense to a claim for breach of the duty of good faith and fair dealing. But this defense to a bad faith suit does not foreclose any other contractual claims, such as violation of the DTPA. violation of the Insurance Code or common law negligence. The Texas Supreme Court has repeatedly instructed that an insurance company will not be faced with a tort suit for challenging a claim of coverage if there was any reasonable basis for its denial of that coverage.

Notice To An Insurance Company Before Filing A Lawsuit

June 14, 2015 | Mark S. Humphreys

Saginaw insurance lawyers have to know the requirements to filing a lawsuit against an insurance company. The company is entitled to a pre-suit notice and failing to give notice can result in the case being thrown out of court.

Just sending a letter is not good enough. There are requirements to the content of the letter.

As a prerequisite to filing a lawsuit seeking damages for wrongs believed to be committed, the insured must give written notice at least 60 days before filing the lawsuit. The notice must tell the insurance carrier the specific complaint, the amount of actual damages and expenses, including attorney’s fees, incurred in asserting the claim. This requirement is found in the Texas Insurance Code, Section 541.154. Keep in mind it is not enough to just say, “hey you owe me $x.” The letter must be clear as to what the insurance company has done that is wrong and clear as to how any dollar figure asserted is calculated.

Is Smell A Loss Under Your Insurance Policy?

June 13, 2015 | Mark S. Humphreys

Here’s something for Texas insurance lawyers to have in their bag of knowledge. This comes from the “Claims Journal” and is about an opinion in New Hampshire but is relevant to Texas also.

The New Hampshire Supreme Court recently held that a persistent odor could constitute a “physical loss” under a homeowner’s insurance policy as long as the smell distinctly and demonstrably changed the condition of the property. The decision represents an important statement about policy interpretation, defining “physical loss” and applying pollution exclusions.

In the case before the court the insureds owned a condo that they rented to various tenants. Shortly after renting the upstairs unit, a tenant moved out complaining of a cat urine odor which had come through an open plumbing chase from the downstairs unit where another tenant owned multiple cats. After the insureds moved into the unit themselves and noticed the odor, a health inspector advised them to move out temporarily while the units were cleaned. Unfortunately, they could not rid the smell. They were unable to find new tenants and ultimately sold the condo at a significant loss.

Loss Of Use In Insurance

June 11, 2015 | Mark S. Humphreys

Benbrook insurance lawyers need to be aware of this case. The reason to be aware of this case is that the case is, as of the date of this post, on appeal to the Texas Supreme Court. Hopefully their decision will put to rest some of the arguments in the Courts of Texas dealing with how to handle “loss of use” issues. The style of this case is, American Alternative Insurance v. Davis. It is from the Waco Court of Appeals.

The crux of this case involves whether a chattel owner should be compensated for measurable loss-of-use damages suffered when the owner’s chattel is totally destroyed and the owner is unable to replace the chattel or obtain a substitute immediately. The dispute arises from an automobile accident on December 29, 2011. At the time of the accident, Davis was driving a wrecker owned by his business, J & D. The only issue submitted to the jury pertained to J & D’s damages for the loss of use of its wrecker.

Davis testified that the wrecker in question was a 2002 Dodge 3500 with an 806 Vulcan wheel-lift unit on the rear. Davis stated that this was J & D’s only wrecker. Davis did not replace the wrecker until the second week of March 2012 because he claimed that he was financially unable to purchase a replacement wrecker. Accordingly, J & D was unable to continue operations for a period of approximately four months.

Hire A Texas Insurance Law Lawyer

June 9, 2015 | Mark S. Humphreys

Dallas insurance lawyers will all have tales of people who lost cases they might have otherwise won if only they had hired an experienced Insurance Law Attorney. This is illustrated in a Dallas Court of Appeals case styled, Marqueth Wilson v. Colonial County Mutual Insurance Company. Please understand that even with an attorney Wilson may have lost this case but here they did not even stand a chance.

According to Wilson’s original petition, on June 24, 2012, he was driving on Scyene Road in Dallas when an object fell off of the car traveling in front of him. The object hit his car, causing property damage. He further alleged the impact of “hopping the curb” caused bodily injury to his lower back, neck, shoulders, and legs.

At the time of the incident, his insurance policy included uninsured motorist, underinsured motorist, comprehensive and collision coverage, rental reimbursement, and personal injury protection (“PIP”). Wilson alleged that despite giving Colonial the opportunity to honor his policy, the insurance company refused; therefore, he filed suit for breach of contract, negligence, bad faith, and private nuisance.

Potential Recovery In Insurance Claims

June 7, 2015 | Mark S. Humphreys

Crowley insurance lawyers should be able to discuss with clients the potential recovery when an insurance company wrongfully denies a claim.

One element of recovery is the actual damage. In other words the actual amount due under an insurance policy. An example would be a life insurance policy with a $100,000.00 benefit to beneficiary. If that claim is denied and it is found to be a wrongful denial, then the claimant / beneficiary is entitled to the actual damages of $100,000.00.

Another potential recovery when a trier of fact, whether that be a Judge or Jury, finds that the insurance company acted “knowingly” the trier of fact can award not more than three times the amount of actual damages. This relief is found the Section 541.152 of the Texas Insurance Code. This is commonly referred to as “treble damages.” This term originated from the days when the Texas Deceptive Trade Practices Act (DTPA) mandated an automatic tripling of the injured parties’ damages. The current state of the law states this trebling must accompany a finding of “knowing” conduct. It is important to know that the trebling is not an automatic number. For example a trier of fact could find the insurance company “knowingly” committed a wrong but then choose to not award any amount of extra damages. It is entirely up to their discretion according a 1994, Texas Supreme Court case styled, Celtic Life Insurance Company v. Coats.

Health Insurance Attorney

June 6, 2015 | Mark S. Humphreys

Burleson insurance attorneys who handle health insurance situations need to read this 1989 opinion from the Houston Court of Appeals [14th Dist.]. It is styled Paramount National Life Insurance v. Williams.

On March 5, 1981, insurance agent Cliff Cox met with Frankie Williams and her husband Willie and took an application for a hospital insurance policy to be issued by Paramount. Mrs. Williams was sixty-four and had a long history of medical problems which the couple described to Cox. Cox told the Williamses he needed to know only about the preceding five years. He filled out the application and had them read and sign it. Paramount approved the application and issued the policy on March 20, 1981. Mrs. Williams was hospitalized in July 1981 and again in December 1981. She filed two claims totaling over $40,000 in connection with these hospitalizations. Paramount denied the claims and cancelled the policy on the grounds that Mrs. Williams had failed to disclose her full medical history on the insurance application and that the conditions for which she was being treated were preexisting conditions. The company refunded her premiums. Mrs. Williams then sued Paramount for breach of contract, breach of the duty of good faith and fair dealing, fraud and violations of both the Texas Insurance Code and the Texas Deceptive Trade Practices Act.

Paramount denies there was a breach of contract. It alleged that it rejected Mrs. Williams’ two hospital claims on the basis that the conditions for which she was being treated (primarily colon-related) did not comply with the definition of sickness under the policy as well as her failure to disclose preexisting medical conditions. Paramount claims that certain language in the documents relating to the policy puts the applicant on notice that accurate and complete information is required. On her application Mrs. Williams stated she was in good health and free from any physical or mental defects and her only prior medical problems were a kidney stone in 1952 and a cancerous uterus in 1975, both with full recovery. However, the evidence showed Mrs. Williams had experienced numerous physical and mental problems, including the removal of a kidney stone, colitis, possible diverticulitis, recurring pneumonia and schizophrenia. Paramount’s president testified that had the company been aware of Mrs. Williams’ complete medical history, the policy would not have been issued.

Insurance — Who Can Be Sued?

June 4, 2015 | Mark S. Humphreys

Everman insurance attorneys need to be aware of the people and entities that can be liable under the Texas Insurance Code. Section 541.151 provides that a person who has sustained damages caused by another’s engaging in unfair or deceptive insurance practices may sue the person engaging in those acts or practices. Section 541.002(2) defines “person” to mean “an individual, corporation, association, partnership, reciprocal or interinsurance exchange, Lloyd’s plan, fraternal benefit society, or any other legal entity engaged in the business of insurance, including an agent, broker, adjuster or life insurance counselor.”

In 1998, the Texas Supreme Court applied the plain language of the statute to hold that the term “person includes businesses and individuals “engaged in the business of insurance.” However, the statute would not apply to an insurance company employee that was not engaged in the “business of insurance.” The style of the opinion is, Liberty Mutual Insurance Company v. Garrison Contractors, Inc.

Engaging in unfair practices in “the business of insurance” is the key to liability. Those engaged in it may be liable. Those who are not may not be. Thus, when the Texas Supreme Court concluded that contracts of suretyship are not part of the business of insurance, the court also held that a surety could not be liable for unfair insurance practices. This was a 1995 opinion styled, Great American Insurance Company v. North Austin Municipal Utility District No. 1.