Dallas Fort Worth Insurance Lawyer Blog

Hail Damage Claims And Delay In Payment

April 21, 2015 | Mark S. Humphreys

Fort Worth insurance lawyers handling hail damage claims as well as any other insurance claims need to read this 2004, Texas Supreme Court opinion. It is styled, Republic Underwriters Insurance Co. v. Mex-Tex, Inc.

This is a first part claim. Following a hail storm Mex-Tex, Inc. notified its property insurer, Republic, of damage to the roof of Signature Mall, a retail shopping center that Mex-Tex owned. Mex-Tex claimed that the roof had been destroyed and should be replaced. Republic immediately investigated the claim but disputed the amount of damage attributable to hail. The roof had leaked for a long time, and months before the storm Mex-Tex had obtained estimates to replace it. While Republic was still investigating the claim, it learned that Mex-Tex had retained a contractor to go ahead, without waiting on Republic, and replace the roof at a cost of $179,000 with one of the same kind, but which would be fixed to the building mechanically rather than by ballast (that is, rocks) as the old roof had been. Republic’s first response was to offer what it believed was the cost to repair the minimal hail damage, $22,000, as what it termed “partial payment” of Mex-Tex’s claim, but when Mex-Tex rejected that offer, Republic sent Mex-Tex a check on August 20, 1999, including $145,460, an amount representing what Republic’s engineer had determined was the cost of replacing the mall’s roof with an identical one, attached by ballast.

Mex-Tex returned the check. Republic re-sent it. Mex-Tex re-returned it. Republic then replied that it would hold the money until Mex-Tex accepted it, which Mex-Tex did on October 12, 2000, as partial payment of its claim. Meanwhile, Mex-Tex had sued Republic for breach of the policy and delay penalties under the Prompt Pay Statute. After trial the court found that Republic’s failure to pay Mex-Tex the $179,000 was a breach of Republic’s policy obligation to replace the roof with one of “like kind and quality”-despite the fact that Mex-Tex’s cost exceeded the replacement cost of an identical roof by $33,540-and awarded Mex-Tex that difference in damages. The court also awarded Mex-Tex 18% per annum on $179,000 from November 4, 1999, the date the court determined that Republic should have tendered that amount, which was 75 days after it tendered $145,460, to the date Mex-Tex accepted that partial payment almost a year later, and thereafter on the $33,540 difference until judgment.

Grand Prairie Insurance Lawyer Proving Claim

April 19, 2015 | Mark S. Humphreys

Here is how at least one Grand Prairie insurance lawyer would prove a claim related to property damage. By looking at the 2011, Texas Supreme Court case, Reid Road MUD No. 2 v. Speedy Stop Food Stores, Ltd.

In this case the Court addressed whether an employee of the corporate general partner of a limited partnership qualifies to testify about the fair market value of partnership property under either the Property Owner Rule or Texas Rule of Evidence 701.

Speedy Stop is a Texas limited partnership that owns and operates convenience stores in Texas. Reid Road MUD sought to acquire a waterline easement across land owned by Speedy Stop. The District and Speedy Stop were unable to agree on compensation for the easement, so the District initiated condemnation proceedings pursuant to Texas Property Code, Section 21.012(a).

“User” Of A Vehicle

April 18, 2015 | Mark S. Humphreys

Parker County insurance attorneys need to know how to identify who a “user” is as it relates to someone using a vehicle. A 1997, Dallas Court of Appeals case is helpful. It is styled, American Economy Insurance Company v. United Services Automobile Association. Scott Johnston, herein referred to as Driver was driving a vehicle belonging to his father. Three friends, including Benjamin Ellis, were passengers. The driver and passengers were intoxicated. The vehicle collided with a second car and the Driver, Scott, was killed.

The occupants of the second car brought suit against the Father, alleging that the vehicle had crossed the center line while traveling at an excessive rate of speed. The plaintiffs also alleged that the three passengers had encouraged, aided and abetted the Driver’s negligent acts and reckless driving, and that the passengers’ occupancy of the vehicle constituted a “use” of the vehicle.

The Father was insured by USAA. Ellis was insured by AEIC. When the Passenger was served with lawsuit papers, the complaint was delivered to an AEIC agent with a request for defense. AEIC wrote to USAA requesting that USAA assume the defense. USAA refused stating that there was doubt whether the Passenger qualified as a permissive “user” of the Johnstone vehicle. AEIC assumed the Passenger’s defense. The plaintiffs settled their claim against the Passenger and the Passenger executed a general release in favor of USAA in return for $11,000.00 in payment. Plaintiffs then dismissed their lawsuit against the Passenger with prejudice. AEIC wrote to USAA requesting reimbursement for defense costs. USAA refused.

Insurance Non-Assignment Clauses

April 16, 2015 | Mark S. Humphreys

Arlington insurance attorneys need to be aware of non-assignment clauses in insurance contracts. The 2005, Dallas Court of Appeals case, Hoffman v. St. Paul Guardian Insurance Company opinion is a good case to read.

This is an appeal from a take-nothing summary judgment in a dispute arising out of the denial of an insurance claim. Hoffman through its successor in interest and assignee of insurance proceeds, Dallas Medical Holdings, Ltd., sued St. Paul after St. Paul denied an insurance claim for alleged plumbing leak damages to a medical clinic building that occurred when Hoffman owned the building. This Court affirmed the ruling.

In November 1999, Hoffman filed a claim under its commercial property insurance policy with St. Paul for damages to Hoffman’s clinic building allegedly caused by plumbing leaks. In January 2000, while the insurance claim was pending, Hoffman sold the clinic building and other items to Dallas Medical Holdings, Ltd. The contract for sale provided that, ” . . . if a claim has been made by Seller against any insurance carried on the Property, . . . Seller will assign any rights Seller has under such policy to Purchaser at Closing.” The contract further provided, “Seller agrees to assign to Purchaser at Closing all rights of Seller in and to the insurance policy or policies carried by Seller to provide insurance protection of the Property.”

Insurance Lawyers Need To Stay On Top Of These Changes

April 14, 2015 | Mark S. Humphreys

Texas insurance lawyers need to be keeping abreast of the changes to insurance law being proposed in the 2015 Texas Legislature.

The Dallas News columnist, Dave Lieber, is doing a good job keeping up with the news laws being proposed. One article titled, Watchdog: Texas Insurance Lobbyists Have A Plan You Won’t Like is worth reading. It tells us this:

The Watchdog wants you to know that the insurance industry is trying to slide something slick through the Texas Legislature toward Gov. Greg Abbott’s signing pen that’s designed to pay you smaller insurance claims.

Life Insurance Claims Denial

April 12, 2015 | Mark S. Humphreys

Fort Worth life insurance lawyers need to read the 1983 case Gloria Cartusciello v. Allied Life Insurance Company of Texas. The case is from the Houston Court of Appeals [1st Dist.].

The facts are simple and virtually undisputed. Michael Cartusciello obtained a credit life insurance policy from the Allied after executing an application on March 7, 1978, which stated in pertinent parts as follows:

I hereby certify that I am in good health and gainfully employed and that my age is as stated above,… I certify that I have read and that the information provided hereinbefore to the best of my knowledge is true and I understand that any false statement, inaccuracy, or misrepresentation material to the risk, may be used by Allied Life Insurance Company of Texas to contest a claim. I have not been attended by a physician or been a patient in a hospital within the last 12 months preceding the date of this Application for any of the following impairments: Diseases of the (1) heart, (2) lungs or respiratory system, (3) stomach or digestive system, (4) brain or nervous system, or (5) cancer to any part of the body, except as follows:

Insurance For Identity Theft

April 11, 2015 | Mark S. Humphreys

Palo Pinto County lawyers who handle insurance related claims may someday have to deal with a situation regarding identity theft and insurance. If so, this article may be of interest. It is from the Claims Journal and is titled, “Identity Theft Insurance: Is It Worth It?

The article tells us that anyone who isn’t in a high state of alert about safeguarding his or her identity is either in massive denial or is a fatalist. The data breach at Anthem put about 80 million consumers at risk of ID theft, states are seeing a spike in fraudsters using stolen identities to file for income tax refund checks and new hacks seem to be discovered every week. That’s made ID theft protection a booming industry, with new products being launched and existing ones tweaked to help with, and profit from, the anxiety.

H&R Block is the latest player to get into the business. In January, it launched “Tax Identity Shield,” which, for $29.95 a year, does an annual, pretax season scan for your name on websites suspected of selling personal information, sends an e- mail if your information is on another tax return filed through H&R Block, and gives basic help navigating red tape. TransUnion also unveiled a new product in January, a mobile app that, among other things, lets users paying $17.95 a month freeze and unfreeze their credit report with a swipe of their finger. Existing products are going strong: The largest niche player, Lifelock, saw 40 percent of all new members in 2014 join in the year’s final quarter.

Texas Homeowners Policy’s And Costs

April 9, 2015 | Mark S. Humphreys

Dallas insurance lawyers need to keep up with general information in the insurance world. Claims Journal published an article recently worth reading. It is titled, State Farm to Pay $352.5M to Settle Texas Residential Overcharge Case. It says:

A settlement has been reached in a long-running dispute between the nation’s largest homeowners’ insurer and the state of Texas over premium overcharges.

The Texas Office of Public Insurance Counsel (OPIC) announced Feb. 27 that a settlement had been reached requiring State Farm subsidiary, State Farm Lloyds, to refund $352.5 million in premium overcharges and interest to its Texas policyholders.

Health Insurance Claim Denied

April 7, 2015 | Mark S. Humphreys

Dallas insurance lawyers need to know about this ruling from the Northern District, Fort Worth Division. The case is styled, Hinna v. Blue Cross Blue Shield of Texas.

This is a lawsuit for declaratory relief filed by Kelly Hinna. Hinna sued for a declaration that Blue Cross had an obligation to pay claims under her health insurance contract and for breach of contract, violations of the Texas Insurance Code, and other causes of action. Blue Cross filed a motion for summary judgment, which was DENIED.

Hinna applied for individual health care coverage with Blue Cross and on her application gave a “No” answer to each of the following questions:

There Must Be Intent To Deceive

April 5, 2015 | Mark S. Humphreys

Palo Pinto life insurance lawyers who handle life insurance claims that are denied need to read this case from the Houston Division of Texas Southern District. The case is styled, Kirk v. Kemper Investors Life Insurance Company. The case deals with misrepresentations made in an application for life insurance.

This case arises from a life insurance policy issued by Kemper Investors Life Insurance Company (“KILICO”) to Walta G. Kirk, on March 14, 2002. Ms. Kirk passed away on August 31, 2003, while the policy was in effect. Because her death occurred within two years of the policy’s issuance, KILICO 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 KILICO life insurance policy. Based on these alleged misrepresentations, KILICO denied payment of any benefits on the policy.

The beneficiaries then filed this lawsuit. KILCO filed a motion for summary judgment saying stating Kirk misrepresented her medical conditions.