Dallas Fort Worth Insurance Lawyer Blog

Suing The Adjuster And Texas Insurance Code

July 26, 2020 | Mark S. Humphreys

Texas Insurance Code, Section 542A.006(c), is being a source of frequent litigation in Texas since it was en-acted. The various Federal Courts are treating it differently. Here is a case from the Western District of Texas, Austin Division, dealing with this issue. The case is styled, Shiv Partners LTD and Shiv Host, LLC D/B/A La Quinta Inn & Suites v. The Ohio Casualty Insurance Company and Kevin M. Witt.

La Quinta had suffered a loss as the result of storm damage. The insurer, Ohio, assigned the claim to Witt. Ohio is not a Texas resident but Witt is. La Quinta was displeased with the way the claim was handled and sued Ohio and Witt in State Court. La Quinta removed the case to Federal Court asserting that Witt had been improperly joined in the lawsuit thus, diversity existed between the parties giving the Federal Court jurisdiction of the lawsuit.

La Quinta failed to provide Ohio or Witt with pre-suit notification of 61 days prior to filing as required by Texas Insurance Code, Section 541.154 and 542A.003. The first notice of the lawsuit was when it was received by Ohio and Witt. Ohio then made immediate election of responsibility for Witt as allowed by Section 542A.006(c).

Suing The Adjusting Company

July 25, 2020 | Mark S. Humphreys

Here is another of the cases where the insured is suing the insurance adjuster and the insurance company is arguing the new law found in the Texas Insurance Code, Chapter 542A governs the case. The case is from the Southern District of Texas, Houston Division. It is styled, D.U.R. Properties LLC v. Amrisc LLC et al.

This case arises out of a storm damage claim. DUR had insurance coverage with Certain Underwrites at Lloyd’s London (Lloyd’s). DUR made a claim with Lloyd’s. Amrisc adjusted the claim for Lloyd’s and DUR alleges that Amrisc did a poor job adjusting the claim. DUR sued Lloyd’s and Amrisc in State Court and Lloyd’s had the case removed to Federeal Court based on the assertion that Amrisc, a Texas resident, was improperly joined and thus, diversity jurisdiction exists between Lloyd’s and DUR.

Fraudulent joinder – a heavy burden – requires the moving party to show either: (1) actual fraud in the jurisdictional pleadings of the facts; or (2) the plaintiff is unable to establish a claim against the non-diverse party in state court. Lloyd’s does not assert actual fraud and instead agrees that DUR and Amrisc are Texas citizens. Thus, the Court turns to whether Lloyd’s can show DUR is unable to establish a claim against Amrisc in State Court.

Life Insurance And ERISA

July 22, 2020 | Mark S. Humphreys

Here is a case arising out of the Employee Retirement Income Security Act (ERISA) which involves life insurance. The case is from the Northern District of Texas, Lubbock Division. It is styled, Elizabeth Hernandez v. Unum Group v. Sara Hernandez and Jose Hernandez.

The basic Facts are that Xavier Hernandez had a policy of live insurance with his employer that was part of an ERISA plan. On May 24, 2018, Xavier was killed in an auto accident.

From August 2015, until May 2018, Xavier was married to Sara Hemandez. In January 2018, Xavier designated Sara as the beneficiary of his life insurance policy. Weeks before Xavier’s death, he and Sara divorced. The divorce decree indicates that both Sara and Xavier were present at the proceeding and does not mention Xavier’s life insurance policy. Sara represents that, at the time of the divorce, she was unaware that she was the beneficiary under Xavier,s policy and only became aware once Xavier’s employer advised her of her status. She maintains that she did not waive her rights as a beneficiary under the policy in the divorce decree or elsewhere.

Non-Renewal Of Policy

July 19, 2020 | Mark S. Humphreys

Here is a homeowners claim from the Northern District of Texas, Amarillo Division, that is interesting. The case is styled, Valerie Smith v. State Farm Lloyds.

This is a summary judgment opinion wherein State Farm asserts that it is entitled to summary judgment because it notified Smith two months before a fire destroyed her home that her homeowners policy had not been renewed.

Smith asserts she never received notice that the policy had expired.

Life Insurance And Additional Recovery

July 18, 2020 | Mark S. Humphreys

Life insurance claims which are denied, often end up being litigated in Federal Court and thus, have to be analyzed differently than when in State Court. Here is a case from the Northern District of Texas, Dallas Division, which illustrates why an experienced insurance law attorney is needed. The opinion is styled, State Farm Life Insurance Company v. Mae Katheryn Bryant and Amy Cannon.

This is an interpleader case. The ruling is the result of State Farm filing a Rule 12(b)(6) Motion to Dismiss and a Rule 12(b)(1) Motion to Dismiss.

Bryant and Cannon both claimed to be entitled to the insurance proceeds after the death of Cannon’s deceased ex-husband. The Court eventually ruled that Bryant was entitled to the money. As a result of that ruling, State Farm requested that the Court dismiss Cannon’s claim against State Farm.

Interpreting An Insurance Policy When The Policy Establishes Limits

July 15, 2020 | Mark S. Humphreys

Here is a case that is seen frequently. It will be interesting to see if this is what all Federal Courts faced with this situation decide. This opinion is from the Northern District of Texas, Dallas Division, and is styled, Sharon Wihlenmaier v. Allstate Indemnity Company.

Plaintiff filed her Original Petition in State District Court against Allstate alleging that Allstate improperly denied her uninsured/underinsured motorist benefits (UIM) arising out of a vehicle accident. The Original Petition states that Plaintiff seeks monetary relief over $200,000.00 but not more than $1,000,000.00. Allstate’s policy limits for UIM benefits in the policy at issue are $30,000.00. Allstate timely removed the case from the State Court to this Federal Court and Plaintiff filed her Motion to Remand.

Stating the law, the Court said that pursuant to 28 U.S.C., Section 1441(a), it has jurisdiction over the matter if the amount in controversy exceeds $75,000.00 and the parties are diverse. Here, Allstate is a citizen of another state, so diversity exists. The next issue to decide is whether the amount in controversy exceeds $75,000.00.

Life Insurance Claims And Federal Court

July 12, 2020 | Mark S. Humphreys

Life insurance claims which are denied, often end up being litigated in Federal Court. Here is a case from the Northern District of Texas, Dallas Division, which illustrates why an experienced insurance law attorney is needed, particularly when the case is going to be litigated in Federal Court. The opinion discusses more than will be discussed here and is a must read for lawyers handling a case in Federal Court. The opinion is styled, State Farm Life Insurance Company v. Mae Katheryn Bryant and Amy Cannon.

This is an interpleader case. The ruling is the result of State Farm filing a Rule 12(b)(6) Motion to Dismiss and a Rule 12(b)(1) Motion to Dismiss.

Factually, Cannon and Bryant both submitted claims to recover Policy proceeds of $300,000.00 after the insured’s death. Cannon contends that she is entitled to the policy proceeds as the primary beneficiary under the Policy. Bryant maintains that she is entitled to the Policy proceeds as the successor beneficiary under the Policy and as the mother and heir of her son because the Insured’s and Cannon’s divorce decree did not designate Cannon as a beneficiary under the Policy,and the Insured did not re-designate Cannon as his beneficiary under the Policy after their divorce as required by Texas law. The Court eventually ruled against Cannon being entitled to any policy proceeds.

Life Insurance Through Employer

July 11, 2020 | Mark S. Humphreys

Insurance lawyers will get frequent phone calls from a life insurance beneficiary wherein the beneficiary had a spouse who has died and that spouse had life insurance that had been obtained through their employer/work. This was the case in a recent opinion from the Western District of Texas, El Paso Division. The style of the case is Vanessa St. Pierre v. Dearborn National Life Insurance Company.

The facts of this case a somewhat confusing the opinion needs to be read to get what the exact facts were in this case. However, the law related to insurance coverage when it is purchased through employment is discussed and knowing about this law is important when it comes to being able to properly discuss with clients the possible outcome in a case.

Quoting from the case:

Insurance Company Perspective On Insurance Lawsuits – Part 4

July 8, 2020 | Mark S. Humphreys

Most insurance cases settle. This sums up insurance lawsuits. The State Bar of Texas has a section called the Insurance Law Section. The Insurance Law Section puts out a quarterly journal called “Journal of Texas Insurance Law.” A recent article discusses having an insurance company as a client and how insurance company attorneys look at lawsuit against the insurance company. The article tells us some information about trying the case.

While most insurance cases settle. Some are resolved at the summary judgment stage of the lawsuit. Rarely, a case gets all the way to the courthouse. One tested approach to trying a case where an insurance carrier is a defendant is “less is more.” In other words, the goal is to be the voice of reason and redirect the jury away from the emotional appeals that the plaintiff can be expected to make. The insurance company client may represent itself on TV with a duck, a lizard, an emu, or a Flo, but the cuteness of those mascots is not generally translated to a feeling of warmth toward insurance carrier defendants.

It is advised that the attorney keep a running list of potential motions in limine during the discovery phase of the case. Discovery requests, motions to compel, and lines of deposition questions will reveal the types of evidence that a plaintiff may seek to introduce in order to color the jury’s view of your client. Although being thorough is always a positive attribute for an attorney, be careful when relying on form motions in limine. Courts may have standing orders governing the points raised, and judges do not appreciate rehashing issues that have already been addressed. Similarly, it is important to narrow areas of contention in motions to avoid wasting the court’s time during pretrial hearings. Coming to pretrial hearings prepared to argue only those points that are truly in contention will start the insurance lawyer off on the right foot with the court.

Insurance Company Perspective On Insurance Lawsuits – Part 3

July 5, 2020 | Mark S. Humphreys

Knowing how an insurance company looks at lawsuits that result after a claim is denied is valuable. The State Bar of Texas, Insurance Law Section, publishes a journal called Journal of Insurance Law. This Journal recently published an article discussing how lawyers who have insurance companies as clients, look at lawsuits that result from a claim being denied.

This third part of the article discusses the depositions of a corporate representative, the adjuster, and looks at experts.

Corporate representative depositions are make-or-break propositions. Sometimes, that choice is out of the hands of the insurance lawyer and many insurance carriers have identified particular employees for whom giving testimony on behalf of the company is part of their job description. He or she should also have an unflappable demeanor. In addition to selecting the right witness, it is important to ensure that the deposition topics are narrowly tailored and stated with “reasonable particularity.” It is useful to have a conversation with opposing counsel to clarify vague topics and to limit overly broad ones, as both parties have an interest in a shared understanding of the topics at issue and bringing a knowledgeable and well-prepared representative to the deposition. When deciding whether to involve the court, it is important to familiarize yourself with the case law on both federal and state requirements to protect your client from improper corporate representative deposition notices. For instance, depending on the jurisdiction, it may be prudent to move for a protective order instead of simply objecting to proposed topics. Once the deponent is selected, preparation is paramount. It is prudent to first have fact-gathering meetings. Since a corporate representative is obligated to present the information that is available to the company, it is useful to outline what information needs to be gathered and by whom. After those meetings are accomplished, it is then prudent to schedule at least two face-to-face meetings with the deponent. These sessions should allow for time to practice with mock cross-examination. This is important for experienced deponents as well as rookies.