Dallas Fort Worth Insurance Lawyer Blog

Texas Windstorm Claims

March 1, 2014 | Mark S. Humphreys

Attorneys working in the area of insurance law need to keep up with events happening in the insurance field. The Insurance Journal ran an article recently that may be of interest to some. Here is what it tells us.

The Texas Windstorm Insurance Association (TWIA) announced it has released to a litigator what it calls “potentially offensive” emails as part of discovery in a lawsuit against the insurer brought on behalf of the Brownsville Independent School District.

The lawsuit was filed by a Houston-based attorney over claims from Hurricane Dolly, which made landfall in South Texas in 2008. The attorney has alleged that TWIA employees had used racist language in emails to disparage Hispanics, Arabs and African-American.

Sending Copies Of Lawsuit Papers To Insurance Company

February 27, 2014 | Mark S. Humphreys

Dallas insurance attorneys will advise a client to immediately turn over to the insurance company any lawsuit papers they receive. A 1978, Texas Supreme Court case illustrates why this should be done. The style of the case is, Weaver v. Hartford Accident and Indemnity Company. Here is some of the relevant information.

This is a suit by a judgment creditor against an insurer to recover under an automobile liability policy on the basis of a judgment secured against an omnibus insured. It is stipulated that the alleged omnibus insured failed to comply with the provision of the policy requiring him to forward to the insurer “every demand, notice, summons, or other process” he received. At issue is whether compliance with this policy provision by the named insured, in forwarding the citation which was served on him, should also be held to operate as compliance by the omnibus insured.

Thomas Enterprises is the named insured on a comprehensive automobile liability insurance policy issued by Hartford. The policy defines an “insured” under the policy to be the named insured and any other person using the vehicle with the permission of the named insured. Clyde Busch was an employee of Thomas Enterprises. While driving one of Thomas’ trucks in September 1969, Busch was involved in an accident with Weaver. Notice of the accident was given to Hartford who made an investigation.

Timely Notice Of Insurance Claim

February 25, 2014 | Mark S. Humphreys

Dallas insurance lawyers know to tell their clients to give timely notice of a claim to the insurance company. A 2006, Dallas Court of Appeals case discusses this issue. The style of the case is, Blanton v. Vesta Lloyds Insurance Company. Here is the relevant information.

This is a suit for declaratory judgment concerning insurance coverage. Don Blanton appeals the granting of Vesta Lloyds Insurance Company’s second motion for summary judgment, and Vesta appeals the denial of its initial motion for summary judgment. Because Vesta conclusively established that Blanton breached the “timely notice of occurrence” provision of the policy and that Vesta was prejudiced as a result this court ruled against Blanton.

In June 1997, Blanton leased certain property to Justin Burgess to operate a retail store of “one-of-a-kind restored art-deco furniture and related items.” On August 27, 1998, Vesta wrote a commercial general liability coverage policy for the property; the policy ran for a term of one year.

Adjuster Actions That Make Them Liable

February 23, 2014 | Mark S. Humphreys

Insurance attorneys in Grand Prairie know that making the adjuster part of a lawsuit increase the chances that the case will not removed to Federal Court. The United States District Court, McAllen Division issued and opinion in January 2014, wherein the Court remanded a case the insurance company had removed to Federal Court. The style of the case is Rocha v. Geovera Specialty Insurance Company, et al.

Rochas had filed in State Court making specific allegations against the adjuster, Alex Sanchez. Rochas file a motion to remand the case to State Court.

Federal Courts do not have subject matter jurisdiction under 28 U.S.C. § 1332 unless the parties are completely diverse and the amount in controversy exceeds $75,000. In light of the conjunctive requirements of the statute, failure to satisfy the diversity requirement is fatal to subject matter jurisdiction and, therefore, to a successful removal.

Claims Against Adjusters

February 22, 2014 | Mark S. Humphreys

Dallas County insurance attorneys know to make an adjuster part of a lawsuit whenever it is possible to do so. One reason is to make sure the case is fought in Federal Court rather than State Court.

The United States District Court, McAllen Division, issued an opinion recently in the case styled Garza v. Geovera Specialty Insurance Company. Here, Geovera had the case removed to Federal Court. Garza was successful in getting the case remanded to State Court by pointing to specific violations of the Texas Insurance Code committed by the adjuster who is named Kenneth Allen DeMaster.

In the petition filed by Garza, Garza pointed to these actions on the part of DeMaster asserting DeMaster conducted a substandard inspection of Garzas’ property. For example, DeMaster spent a mere forty-five minutes inspecting Garzas’ entire property for hail storm and/or windstorm damages. Furthermore, DeMaster told Garza that, because he believed their damages were low, they would not have insurance coverage if they continued with their claim. DeMaster was neither qualified nor authorized to make coverage determinations. The inadequacy of DeMaster’s inspection is further evidenced by his report, which failed to include all of Garzas’ hail storm and/or windstorm damages noted upon inspection. Moreover, the damages that DeMaster actually included in his report were grossly undervalued. DeMaster also improperly withheld material sales tax and a contractors’ overhead and profit from his estimate, in total contravention of applicable Texas Department of Insurance directives. Ultimately, DeMaster’s estimate did not allow adequate funds to cover the cost of repairs to all the damages sustained. DeMaster’s inadequate investigation was relied upon by GeoVera in this action and resulted in Garzas’ claim being undervalued and underpaid.

Vehicle Use And Permission

February 20, 2014 | Mark S. Humphreys

Dallas insurance attorneys understand how the “permissive driver” rule works in Texas. Here is a case that helps explain it. It is a 2003, Texas Supreme Court case styled, Sink v. Progressive. Here is some of the relevant information.

This case concerns coverage for a “temporary substitute” vehicle under the standard Texas Personal Auto Policy. The issue is whether the policy provides liability coverage when the insured, whose own vehicle is disabled, takes and drives an automobile owned by someone who is not a family member without permission or the reasonable belief that he has permission and is involved in an auto accident with a third party. The trial court correctly held that there is no liability coverage under these circumstances.

Joshua McCauley’s pickup truck became disabled. He was at that time employed by Alamo Rent-A-Car, and while on the job, he took one of its rental cars to drive to a location that is not disclosed in the record to get his tools so that he could attempt to repair his truck. It is uncontested that McCauley did not obtain permission from Alamo to use any of its vehicles and did not believe that he had permission to use the car in question. While returning to work in Alamo’s car, McCauley was involved in an accident with Paul Sink.

Intentional Acts Exclusion

February 18, 2014 | Mark S. Humphreys

Weatherford insurance attorneys know that most insurance policies are going to exclude coverage for intentional acts. A 1997, Texas Supreme Court case makes this clear. The style of the case is Farmers Texas County Mutual Insurance Company v. Griffin. Here is some of the relevant information.

This is a declaratory judgment action. Farmers sought a declaration that it had no duty to defend or indemnify its insured, James Royal III, in a suit brought by Robert Griffin. The trial court granted summary judgment for Farmers. This court held that, under the facts alleged against Royal, Farmers had no duty to defend Royal in the underlying suit.

On October 22, 1991, gunshots from a passing vehicle hit and injured Robert Griffin as he walked down the street. Griffin sued the driver of the vehicle, James Royal III, and others for negligence and gross negligence resulting in injury to his right leg. Griffin alleged that Royal drove the vehicle while his two passengers fired the shots. Royal invoked Farmers’ duty to defend him under his personal automobile liability insurance policy. Farmers defended Royal subject to a reservation of rights and then filed this declaratory judgment action to challenge its duty to defend and indemnify Royal.

Fortuity Doctrine In Insurance

February 16, 2014 | Mark S. Humphreys

Dallas insurance lawyers need to know how the “fortuity doctrine” works in insurance law. The 2001, Dallas Court of Appeals case styled, Scottsdale Insurance Company v. Travis, is a good case to read.

In this case, Scottsdale appealed a summary judgment granted in favor of South Texas Building Services, Inc. (“South Texas”) and Richard R. Robinson, ordering that Scottsdale owed South Texas and Robinson a duty to defend them in a lawsuit filed by William Barrett Travis, Maintenance, Inc., Maintenance of Houston, Inc. (“Maintenance Houston”), and Maintenance of Corpus Christi, Inc. (collectively referred to as “Maintenance”). Scottsdale contends the trial court erred in determining it had a duty to defend South Texas and Robinson because the allegations in the underlying petition arose out of a scheme that predated the inception of Scottsdale’s insurance policy and the original petition did not present claims triggering Scottsdale’s coverage. This court concluded the terms of the policy and the fortuity doctrine excluded coverage and reversed the trial court’s judgment.

Here is some factual background.

Loading Or Unloading A Vehicle

February 15, 2014 | Mark S. Humphreys

Insurance attorneys need to be able to read and interpret insurance policies in light of how the courts in Texas interpret the policies.

A 1970, Texas Supreme Court case styled, Commercial Standard Insurance Company v. American General Insurance Company is worth reading.

American brought this suit against Commercial and Berry Contracting, Inc., and its employees, Eugene J. Adams and J. W. Rosson, seeking a judgment declaring that its automobile liability policy (issued to Harris Concrete Co.) did not provide coverage to Berry and its employees against claims asserted against them by employees of the general contractor, Fuller Construction Company.

Disability Claims

February 13, 2014 | Mark S. Humphreys

Attorneys who handle disability claims in the Dallas – Fort Worth area need to have an understanding as to how “disability” is defined.

The most commonly used definition used in Texas law is the Worker’s Compensation definition. In the 1944, Texas Supreme Court opinion styled, Texas Employers’ Insurance Association v. Mallard, the Court held that the standard definition of “total incapacity” is that “a person is disqualified from performing the usual tasks of a workman, in such a way as to enable him to procure and retain employment …” This definition has been broadened over the years. Total disability as that term is defined under the Workers’ Compensation Act and as that term was defined for the jury in the workers’ compensation case does not preclude the possibility of rehabilitation. The definition of “total incapacity” given to the jury in the workers’ compensation case stated that it “does not imply absolute inability to perform any kind of labor, but means that one is disabled from performing the usual task of the worker, not merely the usual task of any particular trade or occupation, to such an extent that he cannot get and keep employment requiring the performance of the usual task of a worker.” This has been stated in at least two cases. One was the 1963, Texas Supreme Court case, Texas Employers Insurance Association v. Hawkins. The other is a 1992, Texarkana Court of Appeals case styled, Southwestern Electric Power v. Martin.

The definition of “Total Disability” is a little different. Total disability is a relative matter and depends chiefly on the circumstances of each case and on the nature of the occupation and the capabilities of the person injured. It does not mean absolute physical disability of the insured to transact any kind of business pertaining to his occupation, but exists if he is unable to do any substantial portion of the work connected therewith. This is told to us in the 1961, Texas Supreme Court case styled, Prudential Insurance Company of America v. Tate.