Dallas Fort Worth Insurance Lawyer Blog

Dangerous Ways Insurance Companies Can Settle

November 18, 2014 | Mark S. Humphreys

Dallas and Fort Worth insurance lawyers need to be able to explain to clients the different responsibilities insurance company’s have regarding settling cases. A 1999, U.S. 5th Circuit case is worth reading. The style of the case is, Travelers v. Citgo Petroleum. Here is what it says.

Travelers issued three polices to Wright Petroleum: a business auto policy, an umbrella policy, and a general liability policy. Citgo had a franchise agreement with Wright. Citgo was made an “additional insured” to each policy. The business auto policy provided that the carrier could investigate and settle any claim and its duty to defend or settle ended when the limits of coverage had been exhausted by payments of judgments or settlements.

In October 1992, one of Wright’s tanker trucks and an automobile collided. The tanker allegedly ran a red light at an intersection. Both drivers were killed. The tanker was carrying petroleum products for Citgo, as well as several other oil companies.

Named Property In An Insurance Policy

November 16, 2014 | Mark S. Humphreys

Fort Worth insurance attorneys will tell you that they need to know a few things to be able to properly discuss the legal aspects of a claim with a potential new client. One, what are the facts of the claim. Two, what does the policy say. And three, how do the courts interpret situations similar to the situation being dealt with.

Unpublished opinions historically are not given a lot of notice but they do give an attorney insight into how the courts look at specific situations. A 1996, unpublished opinion from the Dallas Court of Appeals is worth reading. It is styled American Indemnity Company v. McFarland Insurance Agency. Here is some of the relevant information from that case that is worth knowing.

The insurance carrier, American Indemnity, in this case issued a Texas commercial package through McFarland which contained four different commercial coverages: fire and extended, glass, general liability, and inland marine. The insured purchased the inland marine to insure video equipment.

Exclusions In An Insurance Policy

November 15, 2014 | Mark S. Humphreys

Grand Prairie insurance lawyers need to know how “exclusions” in an insurance policy work. This is partially explained in a 1994, San Antonio Court of Appeals case. The style of the case is, Telepak v. United Service Automobile Association. Here is the relevant information from the case.

The question before the court concerned whether the insured or the insurer has the burden of proof as to the applicability of an exception to an exclusion in an insurance policy. The court held that the applicability of an exception to an exclusion is a question of coverage, on which the insured has the burden of proof.

The insured brought a claim under an all-risk homeowner’s insurance policy for damage to their home. It is undisputed that the damage was incurred by the settling of the foundation. In its answer, the insurer pled the affirmative defense that “exclusion k” of the insurance policy excluded from coverage damage resulting from settling or cracking of the foundation. The insured asserted that the settling was caused by water which leaked from an air conditioner and escaped under the foundation of their home. They asserted that their loss fell under an exception to exclusion k, which stated that exclusion k would not apply to settling caused by accidental leakage from an air conditioning system. The jury charge read as follows:

What Happens When An Insurance Company Denies A Claim

November 13, 2014 | Mark S. Humphreys

The answer to the above question when asked of a Dallas insurance attorney will result in an answer of, “it depends.” There are many factors that come into play when trying to understand the consequences of the denial. The worst result for the claimant and best result for the insurance company might be that the insurance company does not have to pay anything on the claim.

The best result for the claimant and the worst for the insurance company might be what was reported by The Pennsylvania Record in an October 2014 article. The title of the article says it all, “Bad Faith Settlement With Allstate Awards $22 Million To Accident Victim.” Here is what the article tells us.

The rejection of a $250,000 claim has ultimately cost insurance giant Allstate $22 million following a settlement this week with the victim of a 2009 car accident. The agreement is the largest insurance bad faith settlement in Pennsylvania history, and the largest involving a motor vehicle accident in the nation, according to Ross Felley Casey, which represented the victim.

Denial Due To Late Payment

November 11, 2014 | Mark S. Humphreys

Tarrant County insurance lawyers need to know the circumstances that will allow coverage when a late payment of premiums is in the picture and times when the late payment does not make a difference. A 2005, Amarillo Court of Appeals case is a good opinion to read. The style of the case is, Avila v. Loya. Here are some facts.

Avila brought this appeal from a take-nothing summary judgment in favor of Loya. In her appeal, she asserts the trial court erred in granting its summary judgment because 1) issues of fact exist with regard to her claim of misrepresentations made under the Texas Insurance Code, and 2) issues of fact exist as to misrepresentations under 17.46(b)(12) of the Texas Business and Commerce Code.

Avila procured an auto insurance policy from Home State acting through the Agency, covering a policy period ending September 25, 2001, unless extended by the payment of a monthly premium. The policy contained a provision calling for the automatic termination of the policy if the insured failed to pay the continuation premium when it was due. Although a renewal notice was sent, the continuation premium was not paid by its due date. On September 28, 2001, Avila was involved in an automobile accident. On that same day, Avila’s daughter tendered a payment premium check to the Agency, the local agent of Home State. The check was accepted by the Agency which gave the daughter a liability insurance card that showed the period of Avila’s coverage with the effective date as 09/28/01 and the expiration date as 10/28/01.

Fraud In Insurance By Doctors

November 9, 2014 | Mark S. Humphreys

Tarrant County Insurance Lawyers will see situations where a health insurer turns down claims. Those same attorneys sue health insurance companies for mis-treating claimants. The Insurance Journal ran a story that shows the doctors doing wrong. The title of the story is, N.Y. Doctor Found Guilty In Massive No-Fault Insurance Fraud Claim.

Authorities announced that a Brooklyn, New York-based doctor has been found guilty in a no-fault insurance fraud scheme following a two-week jury trial.

According to a statement Monday from Preet Bharara, the U.S. Attorney for the Southern District of New York, Tatyana Gabinskaya was found guilty on Oct. 3 of various health care fraud and mail fraud offenses.

Who Is Insured Under An Insurance Policy

November 8, 2014 | Mark S. Humphreys

Mansfield insurance lawyers have to be able to read an insurance policy and advise a client about what the policy means. A 1998, Houston Court of Appeals [1st Dist.] case shows how this court interpreted a policy. The style of the case is, Sears, Roebuck and Co. v. Commercial Union. Here is some of the relevant information.

Sears and Weingarten Realty, Inc. (Weingarten) entered into a lease agreement whereby Sears was to lease space in a shopping center owned by Weingarten. Under the terms of the lease, Weingarten was obligated to maintain comprehensive public liability insurance protecting Sears against liability for injury to persons or property occurring in the common areas of the shopping center. The relevant provision of that lease is as follows:

The landlord further agrees to maintain in an insurance company qualified to do business in the State of Texas, Comprehensive Public Liability Insurance, including property damage, insuring Landlord and Tenant against liability for injury to persons or property occurring in or about the Common Areas on the Entire Premises or arising out of the ownership, maintenance, use or occupancy thereof. The limits of liability under such insurance shall not be less than $2,000,000 per occurrence for death or bodily injury and for property damage.

How Are The Policy Limits Paid?

November 6, 2014 | Mark S. Humphreys

An insurance attorney in Grand Prairie will run across a situation where a loss has been the result of multiple causes. When this happens, how are the policy limits determined is a question that needs to be answered. All situations are different and each case needs to be examined on a case by case basis would be the short answer. A 2004, a United States Federal, Southern District of Texas case gets specific and gives some guidance as to how the courts look at the various situations that may arise. The style of this case is, Ramirez v. State Farm Lloyds. Here is some of the relevant information from that case.

Pedro and Paulita Ramirez purchased a homeowner’s policy from State Farm Lloyds insuring their residence against property damage with liability limits of $90,800.00 for the property damage and $54,480.00 for loss to the contents of the home. In April 2001, they notified State Farm that they had water damage in the home due to leaking appliances and wind driven rain. State Farm investigated the claim and determined that seven different water sources caused the damage and set up a separate claim for each source. The cost to repair the damage to the home exceeded the policy limit. State Farm paid the policy limit but Ramirez filed suit alleging breach of contract, breach of the duty of good faith and fair dealing, violations of the Texas Insurance Code and violations of the Prompt Payment of Claims Act, and violations of the Texas Deceptive Trade Practices Act (DTPA). State Farm filed a motion for summary judgment on all counts. The trial court granted the summary judgment in favor of State Farm.

In the holding of the court, the court found that the loss settlement provision in the Texas Homeowners Policy limits the insured’s recovery to a single policy limit as stated on the declaration page, despite the fact that seven different water sources resulted in damage to the insured residence and despite the fact separate claims were set up for each water event. Since the policy limits were paid, State Farm did not breach the contract.

Claims Denial Under Reservation Of Rights

November 4, 2014 | Mark S. Humphreys

Insurance lawyers in Saginaw and other Dallas and Fort Worth areas should be able to discuss with a client the significance of a Reservation of Rights letter from an insurance company and what it means. One aspect of this is discussed in a 2003, United States 5th Circuit Court of Appeals case. The case is styled, Esco Transportation Company v. General Insurance Company of America. Here is some of the relevant information from that case.

Esco’s loaded trailer containing a shipment of clothing for Sam’s Wholesale Club was stolen while it was left unattended on a public street. The tractor and trailer were eventually recovered, but not the cargo. The cargo of clothing was valued at $372,000. Esco submitted a claim for the loss of the cargo of clothing to General Insurance and, prior to receiving a response from General Insurance, filed for bankruptcy protection. General Insurance denied Esco’s claim under the “Unattended Trailer Exclusion” contained in the policy after concluding that there were no signs of forced entry into the trailer. In the denial letter, General Insurance expressly reserved all rights, privileges and defenses under the policy. After Esco filed suit for damages and a declaratory judgment of coverage, General Insurance also asserted that Esco failed to comply with the policy’s provisions for establishing loss. The policy provided that General Insurance would cover the loss “in accordance with the Tariff, Bill of Lading, or Shipping Receipt.” After the lawsuit was filed, Esco’s secured creditor substituted into the lawsuit as the real party in interest. Because neither Esco nor his successor were able to produce any document showing its legal liability, the value of the stolen cargo, or the cargo’s owner, the trial court granted summary judgment in favor of General Insurance. This appeal was filed.

The 5th Circuit Court of Appeals affirmed the district court’s grant of summary judgment in favor of General Insurance, rejecting Esco’s argument that by denying the claim based on the “Unattended Trailer Exclusion,” General Insurance had waived any other defenses to coverage. This appeals court found that in the denial letter, General Insurance did not deny the claim on one ground alone but specifically “reserved all rights, privileges and defenses under the policy.” Addressing the legal liability issue, the court noted that while the policy covered Esco’s legal liability for third party loss and Esco presented a conclusory affidavit indicating that it was required to reimburse Sam’s for the value of the cargo, there was no evidence establishing the basis for Esco’s legal liability. Thus, a condition precedent to the coverage had not been met by Esco’s successor in interest and the court saw no need to address the unattended trailer exclusion.

Uninsured Motorist And Vehicles Available For Regular Use

November 2, 2014 | Mark S. Humphreys

Fort Worth insurance lawyers need to know how Texas insurance law applies when presented with a certain set of facts. As it relates to Uninsured Motorist coverage, a San Antonio Court of Appeals case is important to know. It is a 1990, opinion styled, Briones v. State Farm. Here is the relevant information from the case.

Briones appealed a take nothing summary judgment granted in his suit against State Farm seeking recovery on his family automobile insurance policy under the uninsured motorists clause, for bodily injuries suffered in a one vehicle automobile accident. In one point of error Briones contended that:

The Trial Court erred in granting State Farm’s Motion for Summary Judgment because there is a genuine issue as to material facts regarding the one remaining issue to be litigated by the parties, namely whether the tractor-trailer in which Briones was a passenger at the time of his bodily injuries was furnished or available for his regular use.