Dallas Fort Worth Insurance Lawyer Blog

Who Do You Sue?

January 15, 2015 | Mark S. Humphreys

Most Dallas insurance attorneys can give a quick answer to the above question. A November 2014, Texas Supreme Court opinion helps with the answer. The style of the case is, In re Essex Insurance Company. Here is relevant information from that case.

Rafael Zuniga sued San Diego Tortilla (SDT) for personal injuries and then added a declaratory judgment claim against SDT’s liability insurer, Essex Insurance Company, seeking a declaration that Essex must indemnify SDT for its liability to Zuniga. The trial court denied Essex’s motions to dismiss, and the court of appeals denied Essex’s petition for writ of mandamus. In Texas, the general rule . . . is that an injured party cannot sue the tortfeasor’s insurer directly until the tortfeasor’s liability has been finally determined by agreement or judgment.

Zuniga sued SDT after he lost his hand while operating a tortilla machine at SDT’s facility. Essex, which had issued a commercial general liability policy insuring SDT, investigated the accident and concluded that the policy does not cover Zuniga’s claims because Zuniga was an SDT employee at the time of the accident. Zuniga and SDT denied that Zuniga was an employee and asserted instead that he was working at SDT as an independent contractor. While maintaining its position that Zuniga was an employee, Essex nevertheless agreed to defend SDT under a reservation of its right to refuse to indemnify SDT against any judgment, based on the policy’s employee exclusion.

Exclusion For Recreational Vehicle

January 13, 2015 | Mark S. Humphreys

Mineral Wells insurance attorneys handling home owners claim will someday see something similar to the issued dealt with in this 2014, opinion. The opinion was issued by the Houston Court of Appeals [1st Dist.]. The style of the case is, Oleksy v. Farmers Insurance Exchange. Here is the relevant information.

In 2007, Oleksy went snowmobiling in New York with his friend Paul Pochron and several other people. Pochron was seriously injured when his snowmobile collided with Oleksy’s. Pochron and his wife later sued Oleksy.

Oleksy filed a declaratory judgment action against Farmers, his homeowner’s insurance carrier, seeking a declaration that Farmers has a duty to defend and to indemnify him in the lawsuit filed by Pochron. Although his homeowner’s policy includes an exclusion for personal injuries arising from the use of motor vehicles, Oleksy based his claim for coverage on an exception to that exclusion. The relevant policy provisions are:

Life Insurance And Competing Claims

January 11, 2015 | Mark S. Humphreys

Life insurance attorneys in Dallas will run across situations where there are competing claims for policy benefits. Sometimes those claims are legitimate concerns and sometimes not. A 2014, opinion from the US Court of Appeals, 7th Circuit needs to be read. The style of the case is, State Farm Life Insurance Company v. Troy Jonas, et al. Here is relevant information from that case.

Troy Jonas and his wife Jennifer purchased reciprocal policies of life insurance: she owned the policy on her life, with him as beneficiary; he owned the policy on his life, with her as beneficiary. When they divorced in 2011, the court reassigned the policies’ ownership: after the divorce, Troy owned the policy on Jennifer’s life. Each policy provided that “a change of Owner or Successor Owner does not change the Beneficiary Desig-nation.” Troy therefore thought it unnecessary to redesignate himself as the beneficiary of the policy insuring Jennifer’s life.

Jennifer died on August 30, 2012. Troy promptly submitted a claim for the proceeds. State Farm did not pay. It expressed concern that the proceeds might belong to the couple’s children who had been named as secondary beneficiaries or to Jennifer’s estate as a result of Texas Family Code, Section 9.301, which provides that if a divorce occurs after one spouse has designated the other spouse as a beneficiary of an insurance policy, the designation lapses with some exceptions and, unless a new designation is made, the proceeds belong to any alternative beneficiary or the decedent’s estate. Jennifer was domiciled in Texas when she died, and the policy had been issued there; the parties agreed that Texas law applied to this litigation. Troy replied that this provision did not apply when the divorce decree reassigns the policy’s ownership to the named beneficiary.

When Is A Policy A “Renewal Policy?”

January 11, 2015 | Mark S. Humphreys

Most Grand Prairie insurance attorneys will some day be presented with the above question. A 2014, Houston Court of Appeals [14th Dist.] issued an opinion that addresses this issue. The style of the case is Cain V. Progressive County Mutual Insurance Co. Here is what it tells us.

This is an appeal from a summary judgment dismissing the Cain’s claims against Progressive under his auto policy. The main issue was whether the insurance policy in effect at the time of the accident falls within the plain meaning of the term “renewal insurance policy” in sections 1952.101(c) and 1952.152(b) of the Texas Insurance Code. The Court concluded that it did and that Progressive was not required to provide uninsured or underinsured motorist coverage or personal injury protection coverage in this policy.

On May 5, 2003, Corliss Madison obtained an automobile insurance policy from Progressive. At that time, Madison rejected in writing uninsured or underinsured motorist coverage (“UIM Coverage”) and personal injury protection coverage (“PIP Coverage”). Madison and Larry Bradford were named insureds under the policy. When the policy expired six months later, Madison entered into another insurance policy for the next six-month period. Madison then entered into seven more successive insurance policies every six months over the next four years.

Hail Storms In Texas 2014

January 10, 2015 | Mark S. Humphreys

Dallas attorneys who handle hail storm claims need to know where the hail events are happening. The reasons are many. Usually when an insurance company denies a hail claim, a major reason cited is that the damage is pre-exixting. This is a reason for knowing when the storms have occurred and the gathering of records showing the exact locations of the hail and the size of the hail.

The Insurance Council of Texas is a good source for keeping up with where hail events are occurring. A May and June report are cited here.

The first one is titled, Denton Storm Number Rises. Here is what it tells us.

Who Is An User Of A Vehicle?

January 8, 2015 | Mark S. Humphreys

Fort Worth insurance lawyers can tell you about all kinds of situations they get questions about. A 1997, Dallas Court of Appeals case is a case not seen everyday. The style of the case is American Economy Insurance Co. v. USAA.

This is one insurance company suing another. In the underlying case, Scott Johnson was driving a vehicle belonging to his father. Three friends, including Benjamin Ellis, were passengers. Scott and the passengers were intoxicated. The vehicle collided with a second car and Scott was killed. The passengers injured.

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

Life Insurance In A State Other Than Texas

January 6, 2015 | Mark S. Humphreys

Texas life insurance attorneys need to have a basic working knowledge of how other states handle life insurance claims. Often times a Texas attorney will have a situation where the law of another state may apply to a life insurance claim. Here is a case to read. It is styled, Minnesota LIfe Ins. Co. v. Jones. It is a 2014, case from the United States Court of Appeals, Seventh Circuit.

Jones, who left no will, owned a life insurance policy that his employer had obtained for him from Minnesota Life. He did not designate a beneficiary, but the policy provided that the proceeds, which at his death amounted to nearly $307,000, would go first to a surviving spouse (there was none), second to any surviving child or children, third to any surviving parents, and fourth to Lenord’s estate.

An Illinois resident named Quincy Jones, claiming to be Lenord Jones’s son submitted a claim to the insurance company-as did another Illinois resident, Annie Moore, claiming to be Lenord’s daughter. The insurance company, being a nonresident of Illinois, was able to and did file an interpleader action in the federal court in Chicago. Fed.R.Civ.P. 22.

How Not To Handle A Hail Claim

January 4, 2015 | Mark S. Humphreys

Dallas area attorneys handling hail damage claims have a case to review as an example of how NOT to handle a claim. This is a United States Northern District Court case. It is a 2014 opinion and is styled, Stevenson v. Nationwide Property and Casualty Insurance Company.

Beatrrice Stevenson filed suit against Nationwide. Her claims include: (1) breach of contract; (2) violation of Section 542 of the Texas Insurance Code; (3) violation of the Deceptive Trade Practices Act; (4) violation of Section 541 of the Texas Insurance Code; (5) breach of duty of good faith and fair dealing; (6) fraud; and (7) conspiracy to commit fraud. She also states that Nationwide has waived and is estopped from asserting any coverage defenses, conditions, exclusions, or exceptions to coverage not contained in any reservation of rights letters to her. She seeks damages, plus prejudgment interest, attorney’s fees, additional damages, and exemplary damages. The case was removed to Federal Court.

Stevenson submitted a claim to Nationwide for damage, water damage, hail damage, windstorm damage, and mold damage to the Property as a result of the storm. She states that she asked Nationwide to cover the cost of repair to the Property pursuant to the Policy and any other available coverages under the Policy. She contends that the adjuster failed to properly adjust the claim made by her. Additionally, she contends that Nationwide has denied at least a portion of the claim without an adequate investigation. She asserts that Nationwide has failed to compensate her adequately under the terms of the Policy.

Homeowners Insurance And Foreclosure

January 3, 2015 | Mark S. Humphreys

Lawyers who deal with homeowners insurance policies might face the following situation at some point in their legal career. It is an interesting case and is from the 5th Circuit Court of Appeals. It is a 2014 opinion styled, Nationwide Mutual Insurance Company v.Baptist. here is some relevant information from the case.

The district court held that the Baptists initially purchased a valid homeowner’s insurance policy from Nationwide, but that subsequent renewals of that policy were void ab initio because they occurred after the Baptists lost ownership of their home to foreclosure.

The parties do not dispute the relevant facts. The Baptists purchased the Nationwide policy in October 2006. Just over two years later, in November 2008, they lost their home to foreclosure. They did not inform Nationwide of the foreclosure sale, however, and they continued to occupy in the home. The Bank of New York, which had purchased the home at the foreclosure sale, sought and obtained a judgment evicting the Baptists on December 9, 2011. That should have caused the Baptists to vacate the home by January 13, 2012, but it was seriously damaged by a fire or fires on December 27 and 28, 2011. It was in conducting a post-loss investigation of the Baptists’ claims arising from these fires that Nationwide first discovered that they no longer held title to the property.

Abilene Texas Hailstorm Damage – 2014

January 1, 2015 | Mark S. Humphreys

Attorneys handling Texas hailstorm claims need to keep up with events happening throughout the state related to hailstorms. Insurancenewsnet.com ran an article in June of 2014, that talks about some of the recent hailstorm events in Texas. Abilene, Texas got hit particularly hard. Here is some of the information from that article.

As reports of damage from the recent hail storms continue to pour in, people wait for insurance adjusters to estimate repair costs.

Three Abilene Independent School District elementary schools received roof damage. Repairs will cost the district at least $250,000, the amount of the district’s deductible, said Phil Ashby, communications director. This is a high deductible which essentially means the School District was self-insured up to that amount.