Dallas Fort Worth Insurance Lawyer Blog

Filing A Proof Of Loss

August 9, 2020 | Mark S. Humphreys

Attorneys who handle insurance claims know that almost all insurance policies have a cooperation clause in them. This means that the insured has a duty under the policy to cooperate with the insurance company in its investigation of the claim. One of these duties is to file a proof of loss.

As discussed as early as the 1926, Texas Supreme Court opinion styled, Commercial Union Assurance Company v. Preston, policies sometimes require that the insured file a proof of loss, as a condition precedent to enforcement of the policy. This was restated in the 1954, Fort Worth Court of Appeals opinion styled, Whitehead v. National Casualty Company. A “proof of loss” is a statement to the company, stating, among other things, the cash value of each item of property lost or damaged by fire, and the amount of loss. Further, the company may require that the insured swear to the accuracy of the proof of loss.

A 1960, Fort Worth Court of Appeals opinion styled, International Service Insurance Company v. Brodie, says the policy provision requiring a proof of loss is for the insurer’s benefit and may be waived by the company. In the Brodie case, the insurance company was found to have waived the proof of loss requirement where it would only accept proof asking for amount its adjusters agreed to, although the insurer wanted more.

Duty To Cooperate – Not

August 8, 2020 | Mark S. Humphreys

The law is as clear as it can be in the State of Texas. An insured has a duty to cooperate with his insurance company regarding the investigation of a claim.

The next question is – Are there exceptions to this duty? Here is my response.

The insurance contract may impose conditions on the insured. For example, most policies require that the insured give notice of the claim and cooperate with the insurance company. Policies may require that the insured file a formal proof of loss, if the insurer requests one. The Texas Supreme Court in a 1994 opinion said that when one party to a contract commits a material breach of that contract, the other party is discharged or excused from any obligation to perform. The opinion is styled, Hernandez v. Gulf Group Lloyds. It is necessary that the breach be “material.” The Court explained it this way:

Doctrine Of Concurrent Causes

August 5, 2020 | Mark S. Humphreys

Lawyers handling roofing claims and damage to property need to know and understand 2020 case from the Eastern District of Texas, Beaumont Division. The case is styled, Starco Impex, Inc. v. Landmark American Insurance Company.

The legal backdrop to the case and the facts need to be read in the opinion but here is a brief description of the issues.

Starco had a commercial policy with Landmark that was to cover damage caused by wind, hail, hurricane, etc. Starco claims to have suffered damage in a storm that occurred on March 29, 2017.

Life Insurance And The Named Beneficiary Having Died

August 2, 2020 | Mark S. Humphreys

This case is a dispute over who is entitled to the life insurance proceeds. The case is from the Southern District of Texas, Houston Division, and is styled, John Hancock Life Insurance Company v. Marilyn J. Greer, Individually, As Independent Executor of The Estate of Marilyn B. Greer, and As Trustee of The Marilyn J. Greer Trust; and The Estate of William J. Greer.

William owned and was the sole named beneficiary of the policy at issue, which was a policy insuring the life of his mother Mary. William predeceased Mary. Mary then died.

The executor of William’s estate is Kennedy.

Prompt Payment Of Claims Act After Appraisal

August 1, 2020 | Mark S. Humphreys

Recent Texas Supreme Court opinions have been helpful to Texas insureds. The help comes in the form of the Court deciding that an insurer by merely paying an appraisal award is no longer able to wash their hands of the case. The insured can still seek remedy under the Texas Prompt Payment of Claims Act (TPPCA).

The case is from the Texas Supreme Court and is styled, William Marchbanks v. Liberty Insurance Corporation.

At issue in this insurance dispute is whether an insurer’s payment of an appraisal award bars an insured’s claims under the TPPCA, codified as Chapter 542 of the Insurance Code. The court of appeals concluded it did. Because the court of appeals’ opinion is inconsistent with recent decisions on this issue, this Court now reverses.

Suing The Adjuster On Storm Damage Claims

July 29, 2020 | Mark S. Humphreys

Yet another case after the passage of Texas Insurance Code, Section 542A.006, dealing with suing the adjuster in storm damage claims. This is an issue that will eventually be addressed by the 5th Circuit. For now, this case is from the Northern District of Texas, Dallas Division, and is styled, Grant Stowell v. United Property & Casualty Insurance Company and Samantha Jenkins.

Stowell has a policy of insurance with United Property (UPC). Stowell suffered property damage after a hail storm and filed a claim with UPC. UPC assigned the claim to Jenkins. Stowell was not happy with the way the claim was handled in sued UPC and Jenkins in State Court for various violations of the Texas Insurance Code.

After the lawsuit was filed, UPC filed it’s election of responsibility, pursuant to Section 542A.006(c), in the State Court. UPC then removed the case to this Federal Court. Both Stowell and Jenkins are Texas citizens and thus, the joinder of Jenkins in the lawsuit beats diversity jurisdiction and thus, renders a lack of jurisdiction for this Federal Court.

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.