Dallas Fort Worth Insurance Lawyer Blog

Insurance Claims And Using An Expert

August 8, 2022 | Mark S. Humphreys

Insurance lawyers find it helpful, in the right case, to use an expert. What is important to understand is the criteria courts look at to determine whether someone qualifies as an expert. This issue is discussed in a 2022 opinion from the Western District of Texas, San Antonio Division. The opinion is styled, Craig Janssen v. Allstate Vehicle & Property Insurance Company.

This case arises out of a hail and wind storm event alleged to have caused damage to Plaintiff’s property.

Allstate filed a Daubert Motion to Exclude and/or Limit Testimony of Plaintiff’s Designated Expert. This motion seeks to exclude the proposed testimony of Plaintiff’s designated handling expert, Gary Johnson.

ERISA – Equitable Relief

August 6, 2022 | Mark S. Humphreys

Lawyers who handle claims related to the Employee Retirement Income Security Act of 1974 know how hard this cases can be. Unlike other types of claims, such as personal injury, auto wrecks, on the job injury, and medical malpractice, under ERISA, a prevailing claimant is only entitled to actual benefits and in some situations, attorney fees. Those other types of claims will generally have attorneys bragging and boasting about the excellent work they did on behalf of their client. This is illustrated by large recoveries that go beyond the actual medical bills or lost wages. There are punitive damages and damages related to intangibles such as pain and suffering and mental anguish, impairment, disfigurement, etc.

The Northern District of Texas, Dallas Division issued an opinion in June 21, 2022, that opened the door for “equitable relief” for a claimants. While that remedy has long been available, it is rare to see it occur.

The opinion is styled, David Corsaro v. Columbia Hospital At Medical City Dallas Subsidiary LP, et al.

ERISA Lawyers – A Win!

August 1, 2022 | Mark S. Humphreys

Lawyers who handle Employee Retirement Income Security Act cases will want to know about this June 2022, opinion from the Northern District of Texas, Dallas Division. The opinion is a win for ERISA cases. It is styled, Michael Cloud v. The Bert Bell/Pete Rozelle NFL Player Retirement Plan.

This case represents the first time in many years where a court has ruled in favor of a claimant. For reference, there are many good cases that resolved/settled prior to a court rendering an opinion. But, for those cases that do not get resolved it is rare for the person making the claim to prevail.

The opinion in this case is 84 pages long. Very little of the opinion will be cited here but for attorneys handling ERISA cases, it is a must read.

Oral Insurance Contract?

July 30, 2022 | Mark S. Humphreys

Is there such a thing as an oral insurance contract? Well, according to the 1949, Texas Supreme Court opinion styled, Pacific Fire Insurance Company v. Donald, …, Yes.

In the Donald case, Paul Donald sued Pacific Fire to recover for the loss of 5500 bales of hay which were destroyed by fire. The lawsuit is based on an alleged oral contract between himself and agent Henry Moore, who represented Pacific Fire.

The controlling question presented here is whether there was any evidence to sustain the trial court’s finding that Pacific Fire and Donald entered into a valid parol contract to insure respondent’s hay.

Insurance Policies And Breach Of Contract

July 25, 2022 | Mark S. Humphreys

Insurance policies are contracts, and as such are subject to rules applicable to contracts generally. This is stated in the 1994, Texas Supreme Court opinion styled, Hernandez v. Gulf Group Lloyds.

An insured seeking to recover on an insurance contract must prove that the contract was in force at the time of the loss. Also, as discussed in the 1975, Tyler Court of Appeals opinion, Hartford Acc. & Indem. Co. v. Spain, a party who claims under a policy is required to produce the insurance contract upon which he sues or to prove the terms. To prove a breach of contract, the insured must establish:

(1) the existence of the contract sued upon

Incontestability Periods In A Life Insurance Policy

July 23, 2022 | Mark S. Humphreys

The incontestability period of an insurance policy is one of the most important parts of a life insurance contract.

Life insurance policies must contain an incontestability clause — a provision that the policy will be incontestable after it has been in force during the lifetime of the insured for two years from its date, except for nonpayment of premiums. This requirement is found in Texas Insurance Code, Section 1131.104. It is also found it sections 705.101 thru 705.105. The effect of these clauses is to limit the misrepresentation defenses so they can apply only during the first and second years.

As stated in the 1972, Texas Supreme Court opinion styled, Minnesota Mutual Life Insurance Company v. Morse, the purpose of the incontestability clause is to protect the insured from a contest as to the validity of the policy after the set period has expired.

Insurance Lawyers – Read The Policy

July 18, 2022 | Mark S. Humphreys

Here is a policy interpretation case from the United States Fifth Circuit. The opinion was issued on June 2, 2022, and is styled, Kiolbassa Provision Company, Incorporated v. Travelers Property Casualty Company of America.

Kiolbassa ran out of storage space in its warehouse and loaded 49,016 pounds of organic beef trim onto a “reefer trailer” (a trailer with an attached refrigeration unit) located on its premises. The refrigeration unit malfunctioned; the beef spoiled; and Kiolbassa lost about $167,000 worth of product. Kiolbassa then filed an insurance claim under the Equipment Breakdown Policy.

Travelers denied coverage under the Equipment Breakdown Policy because the refrigeration unit was mounted on the reefer trailer, which (Travelers argues) does not meet the definition of “Covered Equipment” in the Policy. Kiolbassa sued for its denial of coverage under only that policy, which insures damage to “Covered Property” caused by a “Breakdown” of “Covered Equipment” on “Covered Premises.”

Life Insurance And Discovery Of A Misrepresentation

July 16, 2022 | Mark S. Humphreys

Life Insurance Lawyers need to be aware of Texas Insurance Code, Section 705.005.

This statute says in relevant part that an insurance company may use as a defense a misrepresentation made in the application for or in obtaining an insurance policy only if the insurance company shows at trial that before the 91st day after the date the insurance company discovered the falsity of the representation, the insurance company gave notice that the insurance company refused to be bound by the policy to the owners or beneficiaries of the insurance policy, if the insured is deceased.

The above statute is discussed in a 1969, San Antonio Court of Appeals opinion styled, Prudential Insurance Company of America v. Torres.

Life Insurance Attorney – Suicide

July 11, 2022 | Mark S. Humphreys

What if a life insurance company denies a claim for life insurance benefits based on their contention that the insured committed suicide?

A 1982, opinion from the 14th District Court of Appeals styled, Parchman v. United Liberty Life Insurance Company, correctly states that life insurance policies typically exclude suicide as an assumed risk.

In the Parchman case, the policy excluded suicide as an assumed risk for two years from the policy date and provided a reduced benefit of the return of all premiums paid if death resulted from suicide within that period.

Life Insurance Claims Attorneys – Paying Wrong Person

July 9, 2022 | Mark S. Humphreys

Life insurance claims attorneys have information about how life insurance claims should be handled that is valuable to someone who believes they have been wronged by an insurance company.

It will occasionally happen that the life insurance company pays the wrong person as the beneficiary of the policy.

Texas Supreme Court law going back to 1894 says that if insurance benefits are paid to a beneficiary who does not have an insurable interest, that beneficiary holds the proceeds for the benefit of those entitled by law to the proceeds. The 1894, case is Cheeves v. Anders. This position is supported as late as a 1998, opinion from the Tyler Court of Appeals styled, Stillwagoner v. Travelers Insurance Company.