Dallas Fort Worth Insurance Lawyer Blog

Waiver Of Rights

May 9, 2015 | Mark S. Humphreys

Mineral Wells insurance lawyers know to tell clients to not negotiate checks from an insurance company that represent a refund of paid premiums. But what happens if the check is cashed by the client? A 2006, Federal District Court in Houston Texas is worth reading. The style of the case is, Kirk v. Kemper Investors.

This case arises from a life insurance policy issued by Kemper. Ms. Kirk passed away on while the policy was in effect. Because her death occurred within two years of the policy’s issuance, Kemper conducted a routine investigation, which revealed that Ms. Kirk had been treated for chest pain, respiratory disorder, mental disorder, and uncontrolled high blood pressure. Ms. Kirk had denied that she had ever had or been treated for any of these conditions in her application for the Kemper life insurance policy. Based on these alleged misrepresentations, Kemper denied payment of any benefits on the policy.

Kemper issued a refund check for the paid premiums that was cashed. Kemper then filed a motion for summary judgment saying Kirk had waived his rights to any benefits by cashing Kemper’s premium refund check.

Temporary Life Insurance Policy

May 7, 2015 | Mark S. Humphreys

Here is an interesting twist for local life insurance attorneys. This is a 1997, Fifth Circuit Court of Appeals case. It is styled, Riner v. Allstate Life Insurance Company.

Riner sued Allstate after Allstate refused to pay benefits under a temporary insurance agreement on the life of her father, Robert Marriott. Allstate defended on the theory that alleged misrepresentations in the insurance application absolved it of liability . The district court granted summary judgment (MSJ) in favor of Allstate, and Riner appealed. The Court reversed the MSJ and ruled in favor of RIner.

Prior to 1994, Mr. Marriott had five back surgeries, which left him with chronic back pain and in depression. Riner wanted to take a life insurance policy naming Riner as beneficiary. On June 29, 1994, Allstate sent an agent to Mr. Marriott’s home to take his application information. Allstate’s lengthy standardized application contained a list of medical questions. The applicant responded to those questions by checking boxes marked “yes” or “no.” When a box was marked “yes,” the application contained additional space for further explanation by the applicant. Mr. Marriott disclosed that he had chronic back problems and certain other medical problems. Mr. Marriott’s application is marked “no,” however, with respect to whether he had ever received treatment for the use of alcohol or received treatment for depression within the past three years.

Application As Part Of The Policy

May 5, 2015 | Mark S. Humphreys

Fort Worth life insurance lawyers can tell you that a policy of life insurance must have attached to it, a copy of the application. Texas Insurance Code, Section 705.103 clearly states:

Except as otherwise provided by this code, a life insurance policy must be accompanied by a copy of:

(1) the policy application; and (2) any questions and answers given in connection with the application.

Denial Of Life Insurance Claim Based On A Misrepresentation In An Application

May 3, 2015 | Mark S. Humphreys

Dallas insurance lawyers will see lots of situations where a person has their life insurance claim denied for the stated reason that the insured made a misrepresentation in the application for insurance. There are a few common law rules standards that apply. It is also important at this stage to understand what the Texas Insurance Code states.

There are several statutory provisions regulating an insurance company’s ability to avoid coverage based on a misrepresentation by the insured in their application for insurance. These statutes are found in the Texas Insurance Code sections 705 and 1201.

Texas Insurance Code, Section 705.003 states: A provision stating that a misrepresentation in a proof of loss makes the policy void or voidable is of no effect and is not a defense, unless the misrepresentation was:

Rescission Of Insurance Policy

May 2, 2015 | Mark S. Humphreys

Texas insurance lawyers need to have an understanding about the reasons an insurance can properly rescind a policy or to put it another way – the reasons an insurance company cannot properly rescind a policy.

As a general principle, prior to a loss an insurance company has the right to rescind a policy procured through mutual mistake or fraud. This was the ruling in a 1931, case from the Amarillo Court of Appeals and is still good law. The case is styled, Forrester v. Southland Life Insurance Company.

The 1980, Texas Supreme Court case styled, Mays v. Massachusetts Mutual Life Insurance Company has stated that an insurance company may rescind a policy based on the insured’s misrepresentation, if the insurance company pleads and proves the following elements:

DTPA Notice Letter Required

April 30, 2015 | Mark S. Humphreys

Mesquite insurance lawyers know that violations of Texas insurance laws are also violations of the Texas Deceptive Trade Practices Act (DTPA). They also know that a notice letter is required prior to pursuing a lawsuit under either category of statutes. A 1992, Texas Supreme Court case illustrates this point. The style of the case is, Hines v. Hash.

Dutch Hines sued C.W. Hash, Jr. for damages under the DTPA, complaining that the roof Hash had installed on his home leaked. In his original petition Hines alleged that notice of his claim had been sent to Hash by certified mail, return receipt requested, and had been returned unclaimed. In his original answer, Hash asserted as an affirmative defense that he had never received any notice of Hines’ complaint until he was served with suit papers, and therefore had not been able to tender Hines a settlement offer. However, Hash never requested the trial court to abate the suit so that he could make such an offer, nor does it appear that he was prevented from making a settlement offer even without the abatement. The evidence at trial concerning notice was undisputed. The notice letter to Hash and the envelope in which it was sent were admitted into evidence, showing three unsuccessful attempts at delivery before it was returned to Hines. Hash did not dispute that the envelope was accurately addressed to him. In fact, he testified he knew at the time that he had a certified letter at the post office but did not pick it up because he was leaving town each morning before the post office opened to work in another city and was not returning home until after the post office closed. He also testified that it was not convenient for him to arrange to have someone else pick up the letter. Hines did not challenge Hash’s explanation for not having received the letter. Hash moved for an instructed verdict after Hines rested and again at the close of all the evidence, urging lack of notice as a complete bar to Hines’ claim. The trial court denied Hash’s motions and refused Hash’s requested jury question on the issue of notice. The jury found that Hash knowingly violated the DTPA in several particulars and assessed Hines’ actual damages at $9,249.00. The trial court rendered judgment on the verdict for a total of $35,822.67, which included actual damages, twice that sum in statutory damages, prejudgment interest of $4,225.67, and attorney fees of $3,850.00.

The notice requirement of the DTPA is clearly mandatory.

Insurance And Damages

April 28, 2015 | Mark S. Humphreys

Fort Worth insurance lawyers need to know how to calculate damages under the Texas Deceptive Trade Practices Act (DTPA) and the Texas Insurance Code. A Beaumont Court of Appeals is a good case for instruction on this point. The style of the case is, National Lloyds Insurance Company v. Latosha A. Lewis.

The facts of the case are long and need to be read.

This case is an appeal from a jury trial where a jury found in favor of Lewis and against Lloyds for violations of the DTPA and the Texas Insurance Code. Lloyds appealed and the Court upheld the jury verdict with some minor adjustments.

Bad Faith Insurance

April 26, 2015 | Mark S. Humphreys

Dallas insurance lawyers handling bad faith claims need to read this 2015 opinion from the Beaumont Court of Appeals. It is styled, National Lloyds Insurance Company v. Latosha A. Lewis.

Lloyds appealed the trial court’s judgment in favor of Lewis following a jury trial. In seven appellate issues, Lloyds challenged (1) the legal sufficiency of the evidence supporting the jury’s findings regarding causation, damages for mental anguish, breach of contract, and breach of the DTPA, and exemplary damages, (2) the trial court’s inclusion in the charge of an instruction regarding waiver and its refusal to include an instruction on spoliation, (3) and the trial court’s rendition of a judgment that allegedly failed to force Lewis to make an election of remedies. This Court affirmed the trial court’s judgment as modified.

The facts of this case are long and detailed and need to be read for a good example of what the courts deem to be bad faith. In the case, this court upheld an award of mental anguish damages to Lewis because of the conduct of Lloyds in handling her claim for damage.

Insurance And Removal To Federal Court

April 25, 2015 | Mark S. Humphreys

Richardson insurance law attorneys will find that when suing insurance companies that the companies want to remove cases to Federal Court. Federals Courts are more favorable grounds for insurance companies to fight their legal battles. Insurance lawyers working for the insureds want to keep the fight in State Courts.

A 2015, opinion from the US District Court, Fort Worth Division is a good opinion to read. It is styled, Living Word Teaching Center v. Robert Morris Adams, Jr. and Allstate Insurance Company.

Living Word brought the instant insurance action in State Court. The church, secured an insurance policy from Allstate covering its 5,000 square foot church. The church later built a large arena next to the church and sought additional coverage for the arena from Allstate. In December 2013, the arena suffered a collapse and was damaged. When Living Word filed an insurance claim for the damage suffered, Allstate advised that the arena was not listed on the policy and therefore, was not covered.

What Is A “Motor Vehicle” In An Insurance Policy

April 23, 2015 | Mark S. Humphreys

Duncanville insurance lawyers will find that the definitions in insurance policies often have their own meaning. So, what is the definition of “motor vehicle” as it relates to an insurance policy? A 1977, Texas Supreme Court opinion helps. It is styled, Slaughter v. Abilene State School et al.

Slaughter, while an employee of the Abilene State School, was injured when another employee backed a tractor over Slaughter and pinned him between the tractor wheel, the ground and a building.

The trial Court entered judgment for Slaughter and the appeals court reversed.