Dallas Fort Worth Insurance Lawyer Blog

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.

Assignment Of Insurance Claims

April 27, 2014 | Mark S. Humphreys

Arlington insurance attorneys will occasionally run across a situation where assigning an insurance claims seems like a good idea. Well it may be, but they need to be aware of this case from the United States Fifth Circuit Court of Appeals. It is styled, Nautilus Insurance Company v. Blanc Lila Villalta et al. Here is the relevant information.

Blanca Lila Villalta and Odis Armando Villalta, each individually and as the surviving parents of Odis Steven Villalta (the “Villaltas”), appealed the district court’s sua sponte grant of summary judgment for Nautilus Insurance Company (“Nautilus”). For the following reasons, the court decided to VACATE and REMAND with direction to ABATE or DISMISS the judgment for Nautilus.

Odis Villalta was shot to death by a security officer employed by Bellaire Security Patrol, Inc. (“Bellaire”). The Villaltas filed a lawsuit in Texas district court against Bellaire and others (the “Villalta case”). Nautilus provided general liability insurance to Bellaire and filed suit in federal district court against the Villaltas, seeking a declaration that the policy issued to Bellaire provides no coverage for damages sought in the Villalta case. The federal district court, sua sponte, issued summary judgment for Nautilus, holding that Nautilus had no duty to defend Bellaire as a matter of law because the “all assault or battery” policy exclusion clearly applied. On appeal, the Villaltas raised two primary issues: (1) whether the district court erred in granting summary judgment concerning Nautilus’s duty to defend; and (2) whether ruling on Nautilus’s duty to indemnify is premature based on the underlying Villalta case, which remains pending in state court.

Agent Misrepresentation Of Policy

April 26, 2014 | Mark S. Humphreys

Insurance attorneys in Irving and Dallas need to know the remedies when an insurance agent makes a misrepresentation about a policy. The United States District Court, Southern District of Texas, Houston Division, issued an opinion that is worth reading. The style of the case is Changiz M. Khoei, et al., vs. Stonebridge Life Insurance Company. Here is the relevant information.

Khoei sued Stonebridge alleging wrongful denial of benefits. Khoei claimed benefits for injuries sustained while they were sitting in a car. Stonebridge denied the claim on the grounds that the policy was for death and dismemberment, covering loss of life, loss of one or both hands or feet, and loss of the sight in one or both eyes. Khoel sued for violations of the Texas Insurance Code and the Texas Deceptive Trade Practices Act. (DTPA)

In August 1992, a telemarkerter contacted Khoei about purchasing insurance and allegedly told Khoei that he could purchase a comprehensive policy that would cover accidents and risks not already covered by his auto and health policies. The telemarketer “implied” that the policy would cover accidents up to the policy limits. The telemarketer did not say the policy covered only loss of life or of a foot, hand, or sight of an eye.

Life Insurance – Missed Payments

April 24, 2014 | Mark S. Humphreys

Aledo life insurance attorneys need to know the effect of payments missed on a life insurance policy. To begin with, each policy is different and thus the policy language needs to be read and then applied to the facts of the situation.

A February 2014, opinion from the Houston Court of Appeals, 1st District dealt with this issue to the detriment of the beneficiary. The style of the case is Lambana v. AIG. Here is some of the relevant information.

Pamela Lombana (“Lombana”), acting as the trustee of the Lombana Investment Trust challenged the trial court’s rendition of summary judgment in favor of AIG on her claims against AIG for breach of contract, breach of an oral or implied contract to reinstate, promissory estoppel, negligence, violations of the Texas Insurance Code, violations of the Texas Deceptive Trade Practices Act (“DTPA”), breach of the duty of good faith and fair dealing, fraud, and fraud by nondisclosure. This appeals court affirmed the trial court decision.