Dallas Fort Worth Insurance Lawyer Blog

Insurance Claims – Proving Damages

May 15, 2014 | Mark S. Humphreys

Lake Worth insurance lawyers need to know this case. It is a 1971 opinion issued by the Texas Supreme Court. It’s style is, Travelers Indemnity Co. v. McKillip. Here is the relevant information.

Troy L. McKillip and wife brought this action against the Travelers Indemnity Co. to recover for damages to their poultry house under the terms of a policy of insurance issued by that Company. After a trial to a jury, respondents were awarded a recovery for $7,450.

The insureds were the owners of a turkey farm in Eastland County, which included two sheet metal buildings and a wooden building used as conditioning houses for breeder turkeys. The one damaged building was of steel truss type construction, 408 feet long by 40 feet wide. The other two buildings, located some distance from the damaged building, were undamaged. The second building was essentially of the same construction as the damaged building and was some fifty feet shorter. The third building was of wooden construction.

Segregating Losses On Insurance Claim

May 13, 2014 | Mark S. Humphreys

Saginaw insurance lawyers need to know about this insurance case. The case is a 1999, San Antonio Court of Appeals case styled, Wallis v. United Services Automobile Association. Here is the relevant information.

In the spring of 1993, the Wallises noticed evidence of foundation damage in their home. Suspecting such damage was caused by a plumbing leak, the Wallises filed a claim under their homeowner’s policy. Through its investigation, USAA determined that the foundation damage was caused by a combination of several excluded perils under the Wallises’ policy, including settlement, poor surface drainage, the topography of the lot, and surrounding vegetation. Plumbing leaks, which are covered perils, were also detected; however, based on soil testing and continued earth settlement following repair of the Wallises’ plumbing system, USAA concluded that the leaks were negligible and had not caused or contributed to the complained-of damage. USAA believed improper compaction of the fill dirt upon which the Wallises’ foundation rests was the primary source of the problem. Elevation tests indicated that the Wallises’ home, which was built upon a sloping lot, had settled as much as fifteen inches on the low end of the hill where soil was placed to create a plane for the foundation. In short, USAA’s investigation revealed that the Wallises’ home was sliding down the lot. Experts for the Wallises did not refute USAA’s evidence regarding the excluded perils. They did, however, challenge the conclusion drawn regarding the effect of the plumbing leaks, and claimed instead that the leaks could not be excluded as a contributing cause of the damage.

At trial, the jury was asked to determine whether “earthquake, landslide, or earth movement,” perils excluded under exclusion k of the policy, caused the Wallises’ damage. The jury was also charged under question two of the charge with determining whether “accidental discharge, leakage, or overflow of water from within a plumbing system” contributed to the Wallises’ damage. The jury answered both questions affirmatively and, under question three, found that thirty-five percent of the Wallises’ damage was caused by plumbing leaks.

Child Support And Insurance Claims

May 11, 2014 | Mark S. Humphreys

Weatherford insurance attorneys already know there are situations where a settlement with an insurance company has to, in part, go to satisfying out-standing child support liens.

Under Texas Family Code, Section 157.317(a), a lien for unpaid child support attaches to the child support obligor’s personal injury claim. This lien is inferior to that of a health care provider with a valid lien, and a child support lien does not attach to the injured party / child support obligor’s attorney fees in the personal injury case. Actual notice of the lien is required for enforcement. These liens arise by operation of law and attach to all of the obligor’s property, as well as to an injury claim. Texas Family Code, Sections 157.261(a) and 157.312(d) make this clear.

Child support liens may be filed with the County Clerk in the county where the injury suit is filed, the county where the divorce (or suit in the interest of the child) originated, or in the county of the child support obligor’s residence. Child support isn’t just for dads, either; a court may order either or both parents to pay support pursuant to Texas Family Code, Section 154.001.

Veterans Benefits And Insurance Claims

May 10, 2014 | Mark S. Humphreys

Grand Prairie insurance attorneys need to know how subrogation and liens work as it relates to insurance claims. One of these interests to be aware of is the Veterans Administration rights to recover money they spend on behalf of their members.

The reimbursement rights of the Veterans’ Administration are statutory, and are set forth the United States 4th Circuit Court of Appeals case styled, United States v. Maryland. It is a 1990 case. It says that “Federal law pertaining to veterans benefits places the United States on an equal footing with private hospitals in its attempts to recover from third parties the cost of medical services provided veterans for non-service related injuries.” Such equality is ensured by 38 U.S.C. Section 629(a)(1), which provides:

“In any case in which a veteran is furnished care or services under this chapter for a non-service connected disability … the United States has the right to recover or collect the reasonable cost of such care or services … from a third party to the extent that the veteran (or the provider of the care or services) would be eligible to receive payment for such care or services from such third party if the care or services had not been furnished by a department or agency of the United States.”

Medicaid And Insurance Claims

May 8, 2014 | Mark S. Humphreys

Fort Worth insurance lawyers need to have an understanding as to how to handle subrogation interests and liens. As for Medicaid, maybe this will be helpful.

Medicaid is a Federal program which is administered by the State. When discussing Federal Government liens and subrogation claims, it is prudent to assume that such liens attach and are superior to other liens, even if a person has no actual notice of them. There is case law and statutes that apply. As to the statutes see, 42 U.S.C.A. 1395(y)(b) and 42 C.F.R. 411.20, 411.23, 411.24, and 411.26. However, a Medicaid lien and a Medicare lien are very different creatures, especially following the United States Supreme Court case, Arkansas Department of Health and Human Services v. Ahlborn. This case suggests there may be room for parties to discuss reductions of Medicaid liens. The United States Supreme Court held that Medicaid subrogation would be limited to the funds allocated to medical costs. A copy of the 2006 memo setting forth the Federal Government’s position on Ahlborn’s impact on Medicaid reimbursement / subrogation is available on the Internet at: http://www.nasmd.org/issues/docs/CMS_Advisory_Settlement_Options_July%202006.doc This memo contains the following language about the Ahlborn decision: “A State’s lien laws may only operate to recover from that portion of a settlement that is allocated to healthcare items or services, even if it means that Medicaid must forego full recovery of its claim.” The memo included the following section:

What This Means for Medicaid Third Party Liability Recovery Programs:

Medicare And Insurance Claims

May 6, 2014 | Mark S. Humphreys

Dallas insurance lawyers know to be aware of liens and subrogation interests related to insurance claims. As these relate to Medicare, a 2006, Beaumont Court of Appeals case is a must read. The style of the case is, Tom Lewis v. Allstate Insurance Company. Here is what it tells us.

Lewis, who was insured under an automobile liability policy issued by Allstate Indemnity Company (“AIC”), made a claim for uninsured motorist benefits after being injured in an automobile accident. After corresponding for several months with AIC about his claim, Lewis retained counsel. Lewis’s counsel sent a demand letter to AIC for full uninsured motorist benefits under the policy. A representative of AIC responded, indicating she would be responsible for handling the claim and requesting additional information. Allstate’s representative subsequently sent a letter to counsel which stated, in pertinent part:

You have asked us to make payment to you and your client without protecting the federal government’s right of subrogation in this claim. We have information that Medicare has made payments for treatment rendered as a result of this accident and we do not feel that we can safely send a check to you and your client without protecting their interest.

Insurance Claims File

May 4, 2014 | Mark S. Humphreys

Insurance attorneys in Fort Worth would want to know what is in the insurance company claims file when they are involved in a lawsuit with an insurance company.

When extra-contractual lawsuits are filed, there is often a pitched battle over discovery wherein the insured seeks to prove his case by showing deficiencies or omissions in the claim file. Many attorneys on both sides of the docket maintain that bad faith cases are won and lost in discovery. Typically, the claim file is not discoverable in a simple contract case, but it is discoverable in an extra-contractual case, up to the date suit is anticipated.

Texas Rules of Civil Procedure 166b(3)(d) provides certain communications between a party’s agents, employees and representatives, when made after the occurrence upon which the suit is based, and in anticipation of litigation, are privileged and exempt from discovery. The party claiming the privilege has the burden of producing evidence to establish its applicability to the materials sought to be protected and must prove the evidence was acquired and developed in anticipation of litigation. In other words, the privilege may be invoked if the documents were prepared after a lawsuit has been filed or if there is good cause to believe suit is likely. The mere fact that one party has hired an attorney is not sufficient to place the other party in anticipation of litigation; there must be some objective manifestation of the intention to bring suit. The proof required to sustain the privilege must be specific and detailed and is set forth in the Texas Supreme Court in Peeples v. Fourth Court of Appeals. In Peeples the court stated:

Who Can Sue An Insurance Company And Win

May 3, 2014 | Mark S. Humphreys

Experienced insurance law attorneys know at least part of the answer to the above question. In that regard, a 1994, Texas Supreme Court case is helpful to read. It is styled, Allstate v. Watson. Here is the relevant information.

Watson was injured in a car accident. The driver of the other car was Townley, an insured under an automobile liability policy issued by Allstate. Watson filed suit against Townley alleging that Townley was negligent and that his negligence was a proximate cause of the accident and her injuries. In the same action, Watson also sued Allstate under the current Insurance Code, Section 541.060(a)(2) for alleged unfair claim settlement practices in failing to attempt in good faith to effectuate prompt settlement of her claims where liability had become reasonably clear and in denying or unreasonably delaying payment of her claim. Watson also alleged that Allstate’s conduct violated 28 Tex. Admin. Code Section 21.3 (Board Order 18663) and section 17.46 of the Texas Deceptive Trade Practices (DTPA), thereby giving rise to her cause of action under Texas Insurance Code, Section 541.060(a)(2). In addition to her claim under Section 541.060, Watson alleged violations of the DTPA, breach of contract, breach of the duty of good faith and fair dealing, and sought a declaratory judgment that Watson was an intended third party beneficiary of the Allstate liability policy.

On Allstate’s motion, the trial court severed the claims against Allstate, struck Watson’s pleadings as to Allstate for failure to state a claim, and granted Allstate’s motion for summary judgment.

Dealing With Uninsured Drivers

May 1, 2014 | Mark S. Humphreys

Dallas and Fort Worth insurance attorneys will find this article interesting. It is from the Insurance Journal. Here is what it tells us.

Most uninsured motorists in the U.S. are responsible, safe drivers who simply cannot afford to purchase liability coverage with their income but who still need to drive for their work, according to a consumer advocacy group.

The Consumer Federation of America (CFA) recommended that instead of cracking down on such motorists with harsh penalties, a better policy would be to find ways to provide more affordable insurance and lower the minimum liability limits for safe, uninsured drivers who have lower income.

Insurance Company Deceptive Advertising

April 29, 2014 | Mark S. Humphreys

Palo Pinto County insurance lawyers will find this article interesting. It is from the Insurance Journal. Here is what it says.

Nationwide Mutual Insurance Co.’s use of the slogan “On Your Side” constitutes false and deceptive advertising because the insurer does not represent insureds as the slogan implies, according to the Tennessee adjuster who is in a trademark battle with the giant insurer over the slogan.

Jeremy Snyder, owner of On Your Side Adjusters Inc., says that his firm, unlike Nationwide, represents the insured policyholder in a claim and his firm’s name, license and contracts reflect this.