Dallas Fort Worth Insurance Lawyer Blog

Who Are Less Obvious Beneficiaries Of An Insurance Policy

September 26, 2020 | Mark S. Humphreys

An intended beneficiary of an insurance policy may sue under the Texas Insurance Code for any resulting harm. This is made clear in the 1996, 5th Circuit Court of Appeals opinion styled, Palma v. Verex Assurance , Inc. After reviewing Texas cases and other Fifth Circuit cases, the court concluded that “if the Texas Supreme Court were presented with the question before us it would hold that standing under Article 21.21 is satisfied by not only those who can establish privity of contract or reliance on a representation of the insurer, but also by those who can establish that they were an intended third party beneficiary of the insurance contract.” The court set out the standards under Texas law for third-party beneficiary status this way:

1) the claimant was not privy to the written agreement between the insured and insurer;

2) the contract was made at least in part for the claimant’s benefit; and

Insurance Companies – Who Can Sue Them?

September 21, 2020 | Mark S. Humphreys

Who can sue insurance companies is sometimes obvious to much people but just in case it is not obvious, here is what the laws tell us.

Texas Insurance Code, Section 541.151 grants a cause of action to a person who sustains actual damages caused by another person engaging in any unfair insurance practice or deceptive trade practices.

To assert a cause of action the plaintiff must be: (1) a “person” as defined by the statute; and (2) injured by another’s unfair or deceptive acts. This is shown in the 2000, Texas Supreme Court opinion styled, Crown Life Insurance Company v. Casteel.

Interpreting Insurance Laws

September 19, 2020 | Mark S. Humphreys

Lawyers who handle insurance claims need to know how insurance and other related laws are interpreted by the Courts.

The Texas Supreme Court made clear in its 1995 opinion styled, State Farm Life Insurance Co. v. Beaston, that the Insurance Code sections the Texas Deceptive Trade Practices Act (DTPA) were adopted together in 1973 as part of a package to reform legislation, are interrelated, and incorporate each other.

The Insurance Code provisions are to be be liberally construed and applied to promote the underlying purposes to define and prohibit unfair and deceptive insurance practices, according to the 1988, Texas Supreme Court opinion styled, Vail v. Texas Farm Bureau Mutual Insurance Co. This is also made clear in Insurance Code, Section 541.008.

Insurance Code And The Texas Deceptive Trade Practices Act

September 14, 2020 | Mark S. Humphreys

Insurance lawyers should understand the interaction between the Texas Insurance Code and the Texas Deceptive Trade Practices Act (DTPA).

Texas Insurance Code, Section 541.151(2) cross references and prohibits conduct defined in Section 17.46(b) of the DTPA. The DTPA statute applies to all types of consumer transactions, not just insurance, so many of the provisions are not directly relevant. The most relevant subsections prohibit:

DTPA, Section 17.46(b)(2) – causing confusion or misunderstanding as to the source , sponsorship, approval, or certification of goods or services,

Insurance Company Misrepresentations

September 12, 2020 | Mark S. Humphreys

What are examples of misrepresentations made by insurance companies that they can be held liable for making?

Different types of misrepresentation are prohibited by the Texas Insurance Code. Misrepresentations are also unlawful under the incorporated DTPA, Section 17.46(a). These misrepresentations also include non-disclosure.

Section 541.051 broadly prohibits making any statement misrepresenting the terms of a policy, or the benefits, advantages, or dividends of a policy, making misrepresentations about the financial condition of an insurer, misrepresenting the true nature of any policy or class of policies, or making any misrepresentation to a policy holder for the purpose of inducing or intending to induce the policy holder to allow an existing policy holder to lapse, forfeit, or surrender his insurance. This provision is sometimes referred to as the “anti-twisting” provision, because the latter portion is aimed at preventing one insurer stealing away the insureds of another insurer by making misrepresentations.

What Is “Bad Faith” Insurance As It Relates To Settlements?

September 7, 2020 | Mark S. Humphreys

In an answer to the above question, one attorney said, “It’s hard to define but I know it when I see it.” That response is fine but what a regular insured person thinks is clearly “bad faith,” the Courts look at differently.

The Texas Insurance Code, Section 541.060, sets forth specific acts that can be considered bad faith in context of settling a claim. The statute prohibits engaging in any of the following unfair settlement practices with respect to a claim by an insured or beneficiary:

misrepresenting to a claimant a material fact or policy provision relating to coverage at issue;

Actionable Conduct Against An Insurance Company

September 5, 2020 | Mark S. Humphreys

Let’s list some of the conduct that is actionable against an insurance company.

The Texas Insurance Code, Chapter 541, defines and prohibits unfair and deceptive insurance practices. The Sections include Sections 541.001 to 541.061, 541.151 to 541.162, and 541.453. Prior to April 1, 2005, the statute appeared as Article 21.21, so most authorities cite that version of the statute.

Section 541.151 allows a private cause of action by any person who has sustained actual damages caused by another’s engaging in any act or practice that is defined as an unfair method of compensation or unfair or deceptive practice in the business of insurance, or defined as an unlawful deceptive trade practice. The definitions of unfair and deceptive practices are found in two places. Those two places are the Texas Insurance Code, Sections 541.051 to 541.061 and the Texas Business & Commerce Code, Section 17.46(b).

Statute Of Limitations And Being Aware

August 30, 2020 | Mark S. Humphreys

Insurance lawyers will often get a call from a potential new client and this potential new client describes a pretty good case against the insurance company. But as the discussion progresses the attorney learns the event the potential new client is describing or relating to the attorney happened many years ago. The problem is that there are statutes of limitations that apply to almost every wrong a person or business commits.

According to the Texas Civil Practices & Remedies Code, Section 16.051, the statute of limitations in insurance breach of contract lawsuits is four years, the same as other breach of contract suits. Even worse than that, insurance companies have begun to use endorsements intended to reduce the period in which an insured may bring suit against the insurance company. Some companies for example, have begun using a “Suit Against Us Endorsement,” which provides that “an action against us must be made within two years and one day after the cause of action accrues.” Sometimes the period is for three years. Insureds should be aware of these contractual limitations periods.

The reason for the two years and one day is that the laws of Texas do not allow a breach of contract claim to be less than two years. This law is found in the Texas Civil Practices & Remedies Code, Section 16.070. It clearly says that regarding contractual limitations periods, any period of time shorter than two years is made void. This includes stipulations, contracts, or agreements. When the period is made shorter than the two years and thus void, the normal four year limitations period will apply instead. This has been made clear in the 1984, 14th Court of Appeals opinion styled, Duster v. Aetna Insurance Company.

Insurance Cases – Burden Of Proof

August 29, 2020 | Mark S. Humphreys

So, who has the burden of proof in an insurance case, the insurance company or the insured. Like most issues in the law, it depends.

According to the 1994, San Antonio Court of Appeals opinion styled, Telepak v. United Service Automobile Association, the insured has the initial burden to prove damages are covered by the policy. According to the 1943, Texas Supreme Court opinion styled, Trevino v. American National Insurance Company, the insured may make a prima facie case by showing that the policy was in force when the loss occurred.

On the flip side, a 2003, opinion by the Fort Worth Court of Appeals styled, Venture Encoding Service, Inc. v. Atlantic Mutual Insurance Company, the insurance company bears the burden of proving the applicability of an exclusion that permits it to deny coverage.

Insurance And Examination Under Oath

August 26, 2020 | Mark S. Humphreys

There is a part of the claims handling process that insureds need to be wary about. That part is when an insurance company asks the person making a claim to submit to an Examination Under Oath (EUO).

If the insurance contract provides for it, the insurance company may require an EUO as a condition to a suit on the policy. The purpose of such EUO clauses has been described this way:

The insured agrees agrees, at reasonable ties and places, as often as required , to submit to examination by an agent of the insurance company, and to submit all relevant books of account, invoices, vouchers, etc. If is clear that the chief purpose of this privilege to the insurance company is the ascertainment and adjustment of the loss which has already occurred. The insurance company, in its policy, evidences in many ways its desire to avoid the necessity of litigation in the settlement of its losses. It reserves the right to have the benefit of the examination provided for before suit can be sustained.