Dallas Fort Worth Insurance Lawyer Blog

Suing The Insurance Company Adjuster In A Proper Manner

March 26, 2022 | Mark S. Humphreys

Bad Faith Insurance Lawyers learn early on that the preferred places to litigate claims against insurance companies are State and County Courts, not Federal Court. Here is a 2022, opinion from the Northern District of Texas, Dallas Division, wherein the insureds prevailed in their attempt to litigate in State Court. The opinion is styled, Searcy Ferguson and Hanna Ferguson v. Cincinnati Insurance Company and John W. Schuster.

This is a claim for residential property insurance coverage after a hail storm. Plaintiffs suffered hail damage and filed a claim with their insurer, Cincinnati. Cincinnati assigned Schuster to adjust the claim.

Schuster issued a report denying Plaintiffs claim for benefits based on an engineering from EDT, an engineering firm. Plaintiffs hired their on engineer to provide Schuster and Schuster turned the report over to EDT. EDT determined there was some damage but that the damage was minimal compared to Plaintiffs report.

Attorneys For Roofing/Hail Claims

March 21, 2022 | Mark S. Humphreys

The Amarillo Court of Appeals issued an opinion on February 2, 2022, that is important as it relates to cases involving hail and wind damages to roofs of structures. This opinion has a bit less to do with insurance and more to do with the roofing contractor business as it is regulated by the Texas Department of Insurance. The opinion is styled, Stonewater Roofing, Ltd. Co. v. Texas Department of Insurance et al.

Here is some background.

In 2005, the Texas Legislature enacted provisions under the insurance code
regulating “public insurance adjusting.” Public insurance adjusters are frequently hired by an insured to help resolve and settle insurance claims. The enacted provisions, Texas Insurance Code, Sections 4102.051, provide that a public insurance adjuster must be licensed in order to adjust insurance claims on an insured’s behalf. Under these provisions, pursuant to Code Section, 4102.163, any person or entity defined as a contractor is prohibited from adjusting insurance claims for properties at which the contractor is, or will be, providing contracting services. Likewise, licensed public insurance adjusters are prohibited from providing any contracting services on property at which they are, or will be, providing public insurance adjusting services. In other words, acting as a public insurance adjuster and a contractor on the same claim is a statutorily
defined conflict of interest according to Section 4102.158(a)(1).

Negligence And Insurance Agents

March 19, 2022 | Mark S. Humphreys

Insurance companies and insurance agents have no general duty to obtain coverage nor to make sure the coverage is adequate. On the other hand, courts have found insurance companies liable for affirmative misrepresentations, and an insurance agent who undertakes to procure insurance for another owes a duty to a client to use reasonable diligence in attempting to place the requested insurance and to inform the client promptly if unable to do so. This is discussed in numerous cases, including, the 1992, Texas Supreme Court opinion, May v. United Services Ass’n of America. Also, the 1999, 1st Court of Appeals opinion, Frazier v. Texas Farm Bureau Mutual Ins. Co.

An agent has a duty to keep the customer informed about the insurance policy’s expiration date when the agent receives information pertaining to expiration date that is intended for the customer. This was discussed in the 1985, Texas Supreme Court opinion, Horn v. Hedgecoke Ins. Agency.

Additionally, the court in May suggested an agent could be found negligent if an explicit agreement or course of conduct showed the agent undertook to determine the customer’s insurance needs and counseled the customer as to how they could be met.

Negligence And Claims Denial

March 14, 2022 | Mark S. Humphreys

Insurance claims denial and negligence related to the insurance policy and claims are questions for insurers and the insured. Here is a few things to keep in mind.

Negligence, in the insurance context as in others, consists of three elements:

(1) a legal duty owed by one person to another;

ERISA And Life Insurance

March 12, 2022 | Mark S. Humphreys

Here is an opinion from the United States 5th Circuit dealing with ERISA. This particular case discusses the Employee Retirement Income Security Act of 1974 (ERISA). While the case is not a life insurance case, the ruling would also apply to life insurance situations. The style of the case is Ramirez v. Inter-Continental Hotels.

Ramirez had filed suit in State Court, asserting various contract, tort, and statutory causes of action against his former employer and its insurance carrier, Travelers. The Defendants removed the case to federal court, asserting ERISA.

Ramirez concedes, this lawsuit is essentially one to recover benefits from an ERISA plan. As such, it comes within the scope of ERISA’s civil enforcement provision, Section 502(a)(1)(B), 29 U.S.C. Section 1132(a)(1)(B), which allows a civil action to be brought (1) by a participant or beneficiary (B) to recover benefits due to him under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.

Read The Policy!

March 7, 2022 | Mark S. Humphreys

Reading the life insurance policy all the way through is vital to understanding the coverage therein. This is illustrated in a 2022 opinion from the U.S. 5th Circuit. The style of the opinion is Landmark American Insurance Company v. SCE Memorial Place II, L.L.C.

This case is about whether an insurance policy covered flood-related damages sustained by a building during Hurricane Harvey. The district court decided in favor of SEC on competing motions for summary judgment. This appeal followed and this appeals court ruled in favor of Landmark.

The “Insuring Clause” of the Landmark policy outlines the type of damage for which it would cover the deductible of the primary insurance policy. Specifically, Landmark agreed to indemnify the insured for damage “caused by any of such perils as are set forth in item 3 of the schedule, and which are also covered by . . . the ‘Primary Insurer(s).’” It is an “All Risks” policy.

Who Is Entitled To The Life Insurance Proceeds

March 5, 2022 | Mark S. Humphreys

It is often times very difficult to answer the titled question. When there us uncertainty as to who is entitled to life insurance proceeds there is a process by which the life insurance company can “interplead” the life insurance proceeds into the registry of the Court. These are situation where the life insurance company knows they owe the life insurance money because the insured has died. What they sometimes don’t know is, who is entitled to the money. This interpleader process allows those who believe they may have an interest in the proceeds to litigate their respective interests.

This issue was presented in a 2022 opinion from the Northern District of Texas, Dallas Division. The style of the case is Sun Life Insurance Company of Canada v. Elizabeth McKinney, Tisha Diante, and Teresa Morris.

Here, Sun Life knew they owed the life insurance proceeds to someone, but was not sure who. After filing a lawsuits to interplead the money, the life insurance company must serve the potential beneficiaries with legal papers so that they may come to court and litigate between themselves as to who is entitled to the proceeds. In this case, Sun Life was having difficulty locating McKinney to have her served with the legal papers.

Bad Faith – Attempting To Sue The Adjuster

February 28, 2022 | Mark S. Humphreys

Bad Faith insurance claims are common complaints when dealing with claims being denied. When fighting these cases a common tactic is to sue the adjuster for the wrongs the adjuster did in causing the claim to be denied. When suing an adjuster the insurance company is going to always claim that the adjuster is not a proper party to be sued in the case. The relevance of whether the adjuster is sued or not often determines whether the case will be litigated in a State Court or in Federal Court.

Properly suing an adjuster was discussed in this 2022 opinion from the Northern District of Texas, Dallas Division. The case is styled, Art Dallas, Inc. v. Federal Insurance Company and Derek Franks.

In this case, ADI made a claim for wind and hail damage. The insurance company, Federal, sent it’s adjuster, Franks, to inspect the claim. Franks determined the damage from wind and hail was minimum and that the roof damage was due to “wear and tear.”

Insurance Company Trying To Rescind Policy

February 26, 2022 | Mark S. Humphreys

Bad Faith Insurance Lawyers understand the law in Texas, at least as of the date of this post, requires that an insurer show that any misrepresentation made in an application for insurance be shown to have been made intentionally for the insurance company to be able to rescind the policy based on that misrepresentation.

This issue came up in a 2022, case from the Fort Worth Court of Appeals. The case is styled, Maria Robles, J.S. and Jose Almaguer Vazquez v. Cox Insurance Group, LLC and Old American County Mutual.

This is an appeal from a summary judgment granted in favor of the insurer by the trial court.

Denied Insurance Claims And Federal Court Standards

February 21, 2022 | Mark S. Humphreys

Insurance claims lawyers are well aware that insurance companies prefer to litigate in Federal Court. Proper pleading can often times prevent a case from being litigated in Federal Court. Usually suing the adjuster who handled the claim will prevent removal to Federal Court. The key is properly pleading claims against an adjuster.

This is discussed in a 2022, opinion from the Northern District of Texas, Dallas Division. The style of the case is, Jackie Preston v. Nationwide Property & Casualty Insurance Company; Stevie Bruesewitz; and Matthew Vaughters.

Preston sustained damage to her property in 2019. Nationwide was her property insurer and thus, Preston made a timely claim to Nationwide. Preston became frustrated with Nationwide’s handling of her claim and sued Nationwide and the two adjusters, Stevie and Matthew.