Dallas Fort Worth Insurance Lawyer Blog

Excess Insurance

February 17, 2015 | Mark S. Humphreys

Irving insurance lawyers will see situations where someone has “excess insurance.” There are many variables that can result from these situations. A 2000, Texas Supreme Court case styled, Keck, Mahin & Cate v. National Union Fire Insurance Company, is an opinion to read to see one of the variables.

Granada Food Corp. held one million in primary insurance issued by the Insurance Company of North America as well as nine million in excess insurance issued by National Union. Wolf Point Shrimp Farm, a supplier, sued Granada and the Keck law firm was hired to defend the company. The supplier demanded $3.6 million to settle the lawsuit, but North America, National Union, and Keck were unwilling to settle.

Errors by Keck and the insurance companies compromised Granada’s defense before trial. Shortly before trial, Granada executed a release of malpractice claims against Keck in exchange for Keck’s forgiveness of Granada’s unpaid fees stemming from unrelated matters. On the first day of trial North America tendered its policy limits. National Union then took over the defense and ultimately settled for seven million.

Subrogation Settlement

February 15, 2015 | Mark S. Humphreys

Dallas insurance attorneys will sometimes run across semi-complicated subrogation issues. One of these situations arose in a 1998, Dallas Court of Appeals case styled, Universal Underwriters of Texas v. Transamerica Insurance Group, et al. Here is some of the relevant information from that case.

The case is a subrogation case between two insurance companies who settled a case. Morris was an employee of Race Promotions Management, Inc. d/b/a the Dallas Grand Prix. The Grand Prix had borrowed a 1988 Corvette owned by Young Chevrolet for promotions. Morris was involved in a single car accident which killed his passenger, Bradshaw. Morris was legally intoxicated. Bradshaw’s parents sued Morris and Young Chevrolet alleging negligence and negligence per se against Morris, and negligent entrustment and strict liability against Young Chevrolet. Young Chevrolet brought a third party action against Grand Prix as Morris’ employer. Universal insured Young Chevrolet and Transamerica insured Grand Prix. Transamerica, Universal and others settled with the Bradshaws for $695,000. Universal paid $275,000 on behalf of Young Chevrolet. Allstate paid $20,000 on behalf of Morris under his personal auto policy. Transamerica paid $400,000 in return for which the Bradshaws released Morris, Race Promotions Management, Southway Management Corporation, Grand Prix, Ronald Scott Wheeler, Darryl Snaden, Southern Sports Management, Allstate, Transamerica, and the adjuster. In all, the Bradshaws released ten individuals and entities.

After settling with the Bradshaws, Transamerica brought a declaratory judgment action against Universal asserting that Morris was insured under Universal’s policy. Transamerica’s policy provided that it was excess over any other collectable insurance. The trial court concluded that Transamerica proved that Morris was an insured under Universal’s garage policy, granted Transamerica judgment for the remainder of Universal’s policy limits of $225,000, as well as $30,000 in attorney’s fees. Universal filed this appeal.

2 Policies Covering Same Property

February 14, 2015 | Mark S. Humphreys

Arlington insurance attorneys will run across situations where a person, on purpose or by accident, has two insurance policies covering the same property. So what are some of the possible outcomes of this situation? A 2005, Fort Worth Court of Appeals opinion had this issue. The style of the opinion is, Harris v. American Protection Insurance Company. Here is some of the relevant information from that case.

This case arises from two insurance claims for successive casualty losses to the roof of a shopping mall.

On May 5, 1995, a severe hail storm damaged the roof of a vacant building known as Westridge Mall. At the time, the shopping mall was covered by two insurance policies, one issued by American and the other by Aetna Life & Casualty. Each policy effectively covered fifty percent of the loss and named Southwest Portfolio as the insured. On September 6, 1995, roofing contractor Gary Boyd discovered the hail damage during a warranty-related roof inspection. Southwest made a claim for the hail damage under the Aetna policy on October 6, 1995. Because it was unaware of the American policy, Aetna agreed to cover one hundred percent of the loss and settled the claim for $712,612.50. In accordance with the settlement agreement, Aetna paid Southwest $268,445 for the actual cash value of the loss (“ACV”) and retained $444,167.50 as the replacement cost holdback, which would be paid out as repair costs were incurred.

Stolen Vehicle

February 12, 2015 | Mark S. Humphreys

Dallas insurance lawyers will have potential clients come and ask questions dealing with their stolen vehicle and how the insurance company is handling the claim. The Dallas Court of Appeals issued a 2008, opinion that is worth knowing about. The case is styled Ysasaga v. Nationwide. Here is the relevant information from that case.

On March 2, 2002, Ysasaga reported that his 2001 Chevrolet Corvette had been stolen in Dallas and filed an insurance claim with Nationwide. Ysasaga subsequently initiated the Insurance lawsuit against Nationwide. In the Insurance Case, Ysasaga sought the recovery of damages arising out of the theft of the Corvette, including policy benefits and extra-contractual damages. Ysasaga claimed the Corvette was valued at $49,200. On March 4, 2004, the parties entered into a settlement agreement. Pursuant to the settlement, Ysasaga signed a release of all claims ” which arise out of the facts alleged and situation described in [the Insurance Case].” In consideration of the release, Nationwide paid Ysasaga $110,000. From these settlement proceeds, $34,281.09 was paid to Ysasaga and First State Bank for the release of the lien on the vehicle and $75,718.91 was paid to Ysasaga and his attorneys. As provided in the release, the Insurance Case was dismissed. Despite the payment to Ysasaga and the release of the lien, title to the vehicle was never formally transferred to Nationwide.

In June 2005, the vehicle was recovered in Mexico. Nationwide informed Ysasaga of the vehicle’s recovery and requested Ysasaga’s endorsement of the certificate of title. In response, on August 9, 2005, Ysasaga initiated a Conversion Case and asserted Nationwide had converted the vehicle.

What Happens When Insurance Company Pays Claim?

February 10, 2015 | Mark S. Humphreys

Grand Prairie insurance lawyers need to be able to explain to clients what happens when an insurance company pays a claim. There may be several things that happen. One of those things is that the insurance carrier has a subrogation claim to all amounts paid by the insurance carrier. A 2009, San Antonio Court of Appeals opinion helps explain how this sometimes works. The style of the case is, Bay Rock Operating Company v. St. Paul Surplus Lines Insurance Company. Here is some relevant information from that case.

The facts in this case are that the insured hired Bay Rock to design and drill a well. The insured had blowout insurance through St. Paul. The policy had a subrogation provision in it entitling St. Paul to contractual subrogation to all claims if it paid anything under the policy. Bay Rock performed negligently, and there was a blow out. The insured filed a claim which St. Paul eventually paid. The St. Paul brought a subrogation claim against Bay Rock. At trial, the jury found Bay Rock 51% liable. Bay Rock then filed this appeal.

On appeal, Bay Rock argued that St. Paul did not prove that the amount paid under the policy was covered by the policy and, therefore, St. Paul did not prove its entitlement to subrogation. This Court of Appeals held that St. Paul was suing under contractual, not equitable, subrogation. The Policy states in relevant part, … upon reimbursement hereunder to the Insured of any loss … St. Paul is subrogated to all the Insured’s rights of recovery against any other person … who may be liable for such loss …. Therefore, under the plain terms of the contract, St. Paul’s right to subrogation arose upon payment of any loss. Once St. Paul paid the money to insured, it had a contractual right to step into the shoes of the insured and initiate the suit against Bay Rock as subrogee of the insured. Under the law of subrogation, based on its contractual subrogation right, St. Paul stepped into the shoes of its insured, and obtained their insureds’ right to sue Bay Rock for negligently causing the blowout, subject to any defenses Bay Rock could assert against the insured. Therefore, St. Paul was correct that, upon convincing the trial court that it had a contractual subrogation right as a matter of law, it only had to prove the elements of its negligence claim to the jury. Thus, the ruling in favor of St. Paul was upheld.

Reading An Insurance Policy

February 8, 2015 | Mark S. Humphreys

Insurance lawyers in Dallas will tell you to “read the policy.” Now the reality is that very few people ever read their insurance policy. Most people rely on their insurance agent to sell them a policy they want. This expectation often makes the agent responsible for selling a person a policy that does not provide the coverage that is expected.

An insurance publication called the Insurance Journal contains lots of good information from the insurance world. Most people involved in the insurance business have ready access to this publication, including insurance company managers, agents, adjustors, and attorneys who do insurance work.

A January 5, article is worth reading. It is authored by Christopher J. Boggs and is titled “How To Read Any Insurance Policy: 12 Rules.” Here is what the article tells us.

Suing The Adjuster

February 7, 2015 | Mark S. Humphreys

Arlington insurance attorneys can tell you that it is sometimes hard to sue an adjuster. Federal Courts look at these situations really close. This is illustrated in the 2014, US Northern District Court, Dallas Division, case, One Way Investments, Inc. v. Century Surety Company, et al. Here is some information from that case.

One Way sued the insurance company and the adjuster, Mattoni. One Way asserts that its own roofing contractor and public adjusters determined, after conducting a thorough inspection of the exterior and interior, that hail had caused extensive damage requiring urgent repairs and replacement of the roof and building appurtenances, and that Mattoni under-scoped the damages during his investigation. One Way also avers that Century, VeriClaim, and Mattoni misrepresented that the damage to the property was not covered under the Policy, even though the damage was caused by a covered occurrence, thereby violating Section 541.060(a)(1); failed to make an attempt to settle One Way’s claim in a fair manner, although they were aware of their liability under the Policy, thereby violating Section 541.060(a)(2)(A); failed to affirm or deny coverage of One Way’s claim within a reasonable time, thereby violating Section 541.060(a)(4); refused to fully compensate One Way under the Policy, even though Mattoni failed to conduct a reasonable investigation, thereby violating Section 541.060(a)(7); and knowingly or recklessly made false representations as to material facts and/or knowingly concealed all or part of material information from One Way. One Way sued Mattoni under Section 541.151 based on the alleged violations of Section 541.060(a). The case was filed in State Court and the insurance company had the case removed to Federal Court.

Ome Way filed for remand back to the State Court.

Coverage Or No Coverage

February 5, 2015 | Mark S. Humphreys

Dallas insurance attorneys will tell you that in order to determine coverage or no coverage under an insurance policy that the entire fact situation needs to be examined. In a 2014, Fort Worth Court of Appeals opinion, in a case styled, City of Carrollton v. Fred Loya Insurance Company, reversed a trial court that said there was no issue to be decided. Here is the relevant information from that case.

This case revolves around whether an insured, Danelle Butts, validly added her daughter, Donna, back to her insurance policy so that the daughter’s car accident with a pedestrian was covered by the policy.

Danelle had an automobile insurance policy through Fred Loya Insurance. On August 3, 2007, Danelle amended her policy to exclude her daughter Donna from coverage under the policy because Donna moved out of the family home.

Insurance And Maintaining Vehicle

February 3, 2015 | Mark S. Humphreys

Fort Worth insurance lawyers need to be able to understand when coverage is afforded under a policy and when it is not. A 1994, Dallas Court of Appeals case is a good opinion to know about. It is styled, Nationwide Property & Casualty v. McFarland. Here is the relevant information from that case.

Nationwide and McFarland both filed motions for summary judgment. After a hearing, the trial court granted McFarland’s motion and denied Nationwide’s. In this appeal Nationwide argued the trial court erred in granting summary judgment for McFarland and denying Nationwide’s motion because Mashewske was not a “covered person” under the policy. This Appeals Court disagreed and upheld the trial court ruling.

McFarland was working underneath his Toyota. The car was sitting up on jacks. While McFarland was underneath the car, Mashewske got in the car to see if it would start. When Mashewske shifted the car into neutral, it rolled backward, fell off the jacks, and landed on McFarland. McFarland sustained injuries from the accident.

Insurance Company Duty To

February 1, 2015 | Mark S. Humphreys

Irving insurance lawyers will tell you that an insurance company’s duty to defend one of their insureds in a lawsuit depends on several factors. This is discussed in a 1997, Austin Court of Appeals opinion styled, State Farm v. White.

State Farm filed a suit for declaratory judgment that it owed no duty to defend its insureds.

Sean and Sandra Nash, sued numerous defendants, including White, on behalf of themselves and their minor children, for the sexual abuse of their children which occurred at the day care center operated by Daniel Keller and his wife, Francis Keller. The lawsuit papers allege that Daniel Keller physically and sexually abused the Nash children, as well as other children attending the day care center, while the children were in the center’s care and custody. Such abuse occurred on a regular basis throughout the Nash children’s attendance at the facility. The petition further alleges that the children were taken from the day care center’s premises to other nearby locations where Daniel Keller abused them and sometimes allowed others to witness or participate in the abuse.