Dallas Fort Worth Insurance Lawyer Blog

First Party Insurance

September 24, 2013 | Mark S. Humphreys

Mineral Wells insurance lawyers need to know the difference between first party claims and third party claims and how that relates to bad faith insurance claims.

The Texas common law duty of good faith and fair dealing extends protection to the insured, whether the insured obtained the insurance coverage directly or coverage was obtained some other way for the insured. The 1987, Texas Supreme Court, in the case, Arnold v. National County Mutual Fire Insurance Co. recognized a common law duty of good faith and fair dealing owed to an insured, which arises from the “special relationship” established by the insurance contract. In the 1988 case, Aranda v. Insurance Company of North America, the Texas Supreme Court extended this duty of good faith and fair dealing to a worker insured under a workers’ compensation policy purchased by his employer.

An injured third party claimant lacks standing to sue the negligent driver’s liability insurance company for breach of the duty of good faith and fair dealing. We know this from the 1994 Texas Supreme Court case, Allstate Insurance Company v. Watson.

Delay In Paying The Claim?

September 22, 2013 | Mark S. Humphreys

Palo Pinto attorneys who handle insurance situations will need to be able to distinguish between situations where an insurance company can be held liable for not paying a claim and where they cannot be held liable for paying a claim.

The United States District Court for the Southern District of Texas issued a ruling at the end of July that hits on this topic. The style of the case is, Sebring Apartments, et al., v. Lexington Insurance Companym et al.,

This was a summary judgment case decided in favor of Lexington. Here are points made by the court when it rendered its opinion.

Plumbing Leak Issue In Insurance

September 21, 2013 | Mark S. Humphreys

Dallas insurance attorneys will see commercial policies that need interpretation. A recent El Paso Court of Appeals case will help them to understand how courts interpret insurance policies. The style of the case is, American National Property & Casualty Company v. Fredrich 2 Partners, LTD.

This is a case that was decided on cross motions for summary judgment. Here is some relevant information.

Fredrich owned seven commercial buildings insured against property damage under a policy issued by American National. During a severe winter storm where temperatures remained below freezing for four consecutive days, an insulated copper pipe in one of the buildings froze and ruptured, causing water damage to the building’s two interior units. At the time of the incident, one unit was occupied and heated while the other sat vacant and unheated. The pipe that froze and ruptured was located in the attic above the vacant unit.

60 Day Pre-Suit Notice

September 19, 2013 | Mark S. Humphreys

Tarrant County insurance attorneys should know about pre-suit notice requirements. But for those who don’t, here is some information to keep in mind.

Both the Deceptive Trade Practices Act (DTPA), Section 17.505 and the Insurance Code, Section 541.154 require a 60 day pre-suit notice be given. There are specific requirements of the notice letter. It must state the consumer’s specific complaint in reasonable detail and the amount of economic damages, mental anguish damages, and expenses, including attorney’s fees. A good lawyer is going to require their client to write out in detail what happened and to write out in detail the loss that has been incurred and how the total dollar amount was calculated. This detailed account by the client prevents misunderstanding by the attorney and prevents something being forgotten by the attorney. Based on what the client has provided to the attorney, the attorney can then compare the acts or non-acts to the applicable statutes and do the “legal” part of the pre-suit notice letter.

It is important for the letter to be sent certified mail as required by the statute. Vocal or oral notice is not sufficient, nor is the fact they may already know what they did wrong, good enough.

DTPA – Defenses And Waivers

September 17, 2013 | Mark S. Humphreys

Johnson County insurance attorneys need to know how to use the Texas Deceptive Trade Practices Act (DTPA) to help their insurance clients. Here is some information that may be helpful.

The Texas Business & Commerce Code, Section 17.565, states clearly that the DTPA has a two year statute of limitations. This statute requires that suit “must be commenced within two years after the date on which the false, misleading, or deceptive act or practice occurred or within two years after the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the false, misleading, or deceptive act or practice.” Also, this limitations period “may be extended for a period of 180 days if the plaintiff proves that the failure to timely commence the action was caused by the defendant’s knowingly engaging in conduct solely calculated to induce the plaintiff to refrain from or postpone the commencement of the action.”

The only thing tricky about the above limitations is where it talks about using reasonable diligence to discover the wrong or wrongs that may have been committed. Sometimes this can be confusing.

DTPA – “Intentional” Conduct

September 15, 2013 | Mark S. Humphreys

Palo Pinto attorneys need to know how to use the Texas Deceptive Trade Practices Act (DTPA) to help them with their claims for Texas Insurance Code violations.

The Texas Business & Commerce Code, Section 17.50(b)(1), allows the jury in this type of case to award up to three times the amount of mental anguish damages and economic damages when they find the defendant acted “intentionally.”

Proving intentional conduct imposes a slightly higher burden than does proving knowing misconduct. The key difference is that “intentionally” requires proof that the defendant intended that the consumer act in detrimental reliance.

DTPA – “Knowing” Conduct

September 14, 2013 | Mark S. Humphreys

Texas insurance lawyers need to be know how to use the Texas Deceptive Trade Practices Act (DTPA) to help their clients.

Part of using the DTPA properly is to know when conduct by a company arises to the DTPA legal definition of “knowing.” Here is why. The Texas Business & Commerce Code, Section 17.50(b), tells us that mental anguish damages can be recovered under the DTPA when a “knowing” violation is shown. This is affirmed in Texas case law by the Texas Supreme Court in a 1993 case, and again in a 1995 case.

Section 17.45(9) tells us that “knowingly” means actual awareness, at the time of the act or practice complained of, of the falsity, deception, or unfairness of the act or practice giving rise to the consumer’s claim or, in an action brought under subdivision (2) of subsection (a) of Section 17.50, actual awareness of the act, practice, condition, defect, or failure constituting the breach of warranty, but actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.

Who Can Be Sued And How Much Can Be Recovered

September 12, 2013 | Mark S. Humphreys

Fort Worth insurance lawyers will have potential clients come in their doors complaining of being done wrong by an insurance company. One of the ways to help a client make a recovery in their case, besides the Texas Insurance Code, is the Texas Deceptive Trade Practices Act (DTPA).

The DTPA does not limit who may be sued except for one seldom used media exception found in Section 17.49. Instead, the right to sue depends on whether the plaintiff qualifies as a “consumer” under the DTPA. This is established with respect to the underlying transaction. Once it is shown that the plaintiff sought or acquired goods or services by purchase or lease, the plaintiff is a “consumer” as to all persons involved in the transaction. This is told to us by the DTPA and in case law. The case law is from the Texas Supreme Court case, Cameron v. Terrell & Garrett, Inc., a 1981 case.

There is a long line a Texas appeals court cases that say privity of contract is not required to be classified as a consumer.

Insurance And Tort Reform

September 10, 2013 | Mark S. Humphreys

Dallas area attorneys will keep up with changes in the law. This is true regarding tort reform that effects any part of insurance.

The consumer group, Texas Watch, published an article titled, “Ten Years Later: How House Bill 4 Has Harmed Texans.” Here is what the article tells us.

Riding an electoral wave that saw the election of Rick Perry to his first full term as governor, a large class of freshman members in the House, and speaker, Tom Craddick, the corporate immunity lobby tilled fertile ground during the 78th Legislature in 2003. This lobby and their functionaries in the Legislature rammed through HB 4 in 2003, an omnibus package of restrictions that were sweeping in scope and unprecedented in their destructive effect on the rights and lives of everyday Texans.

False, Misleading, And Deceptive

September 8, 2013 | Mark S. Humphreys

Dallas insurance lawyers know the ways the Texas Insurance Code and the Texas Deceptive Trade Practices Act (DTPA) interact with each other and how to use both to help clients who are being jerked around by an insurance company.

Texas Insurance Code, Section 541.151, says that a person who sustains damages by someone engaging in the business of insurance can bring an action against that other person for any act specifically enumerated in Section 17.46(b) of the Texas DTPA.

The DTPA provides a cause of action for conduct defined in the “laundry list” of Section 17.46(b). The most useful prohibitions for insurance cases found in the subparagraphs to this provision are: