Dallas Fort Worth Insurance Lawyer Blog

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.

Insurance Policy Language

February 11, 2014 | Mark S. Humphreys

Arlington insurance attorneys know how important the language in a policy is and how that language relates to the facts in a claim. The Houston Court of Appeals issued an opinion in 1996, in the case styled, “Schulz v. State Farm Mutual Auto.” Here is some the relevant information in this summary judgment case.

The summary judgment evidence shows that Gunar Fulk, Schulz’s son, was driving a pickup truck owned by Schulz’s husband and insured by State Farm. Fulk, accompanied by a friend, gave a ride to Lonnie Earl Johnson. Some time thereafter, Johnson shot three fatal rounds into Fulk’s face and chest as Fulk was standing outside the truck. Johnson then killed Fulk’s friend with a shot to his back.

Schulz sued State Farm seeking to recover benefits under the personal injury protection (PIP) and auto death indemnity (ADI) coverages provided under a State Farm insurance policy that covered the vehicle. In her original petition, Schulz claimed Johnson pulled the gun in an apparent attempt to hijack the truck. She also claimed that, at the time the shots were fired, Fulk was either seated in the truck or, in the alternative, had been ordered at gunpoint to get out and was kneeling next to the truck. However, there is nothing in the record, other than Schulz’s assertions in her original petition, to support the allegations that Fulk’s truck was hijacked, that Fulk was ordered out of the truck or that Fulk was kneeling next to the truck when shot.

Life Insurance Claim Denial

February 9, 2014 | Mark S. Humphreys

Life insurance attorneys will tell you that the language used in the insurance policy is important to determining coverage. An experienced Insurance Law Attorney will also tell you there are many ways of getting around some of the language in a policy.

Here is a case where the facts were bad but the case still serves as an example of how the courts interpret policy language. The style of the case is Douglas v. Southwestern Life Ins. Co. It is a Tyler Court of Appeals opinion that was issued in 1964.

Here is some of the relevant information.

Jury Trials Declining In Texas

February 8, 2014 | Mark S. Humphreys

Trial attorneys are probably aware of a general decline in the number of cases going to trial in Texas.

Judge Patrick Higginbotham of the U.S. Court of Appeals for the Fifth Circuit has warned a group of lawyers and federal judges that civil jury trials are headed for extinction.

Judge Higginbotham has said “There are certain elites in this country who don’t trust juries.” And “The future of our jury system is very much in danger.”

When Is A Person “Totally Disabled”

February 6, 2014 | Mark S. Humphreys

Aledo insurance law lawyers need to be able to discuss how insurance companies interpret their policies that provide coverage for “total disability.” An old 1932 case from what was then called the Court of Commission of Appeals of Texas, Section A, is a good place to start reading. The style of the case is Kemper v. Police & Firemen’s Ins. Ass’n. Here is some information from that case.

The Kemper sued the insurer to recover $2,000 alleged to be due as insurance on the life of William H. Kemper, deceased husband, on a contract of insurance issued by the insurer to the deceased during his lifetime, in which certificate Kemper was named beneficiary. Trial in the district court with a jury resulted in a verdict and judgment for Kemper for the full amount of the policy. The policy of insurance made the basis of this suit contains, among others, the following provisions:

“Any and all such payments or liability to pay shall be and is in accordance with, subject to, each and all of the provisions of the by-laws of said association and of the provisions of any and all amendments, alterations and new issues of said by-laws, which said by-laws are hereby referred to and made a part hereof as fully as if they were recited at length over the signatures hereto affixed as soon as such amendments, alterations or new issues of said by-laws respectively are or may be duly adopted, and the said William H. Kemper hereby and by the acceptance hereof agrees to abide and be bound by said by-laws and each of them and by any and all lawful amendments, alterations and new issues thereof or of any of them.”