Dallas Fort Worth Insurance Lawyer Blog

The next question in this series related to violations of the Texas Prompt Payment of Claims Act is, what are some of the defenses the insurance company has for not making prompt payment on a claim.

The statute contains several provisions by which insurance companies may extend the deadlines.  While, technically, these are not “defenses,” they may help insurance companies avoid liability.  The following events or conditions can extend the deadlines:

a.  Texas Insurance Code, Section 542.055(a) allows eligible surplus lines insurers extra time for acknowledging claims, commencing investigation, and requests for information.

Additional remedies under the Texas Prompt Payment of Claims include attorney fees.  Attorney fees under the statute are governed by the 1997, Texas Supreme Court opinion, Arthur Andersen & Co. v. Perry Equipment Corp.  In that case, the court held that a reasonable fee must be based on eight factors set out by the disciplinary rules.  Fees cannot be awarded simply as a percentage of the recovery, but must be awarded as a dollar amount.  The jury can consider the fact that the plaintiff has agreed to a contingent fee as one factor in deciding what fee is reasonable.  This is discussed in the 1999, Tyler Court of Appeals opinion, Dunn v. Southern Farm Bur. Cas. Ins. Co.

In light of the Arthur Andersen opinion, earlier opinions allowing recovery of a percentage fee under the statute are no longer good law.

If fees an be segregated between the statutory claim and other claims, it is proper to do so, but the defendant needs to object.  Other wise an unsegregated award will be upheld according to the 1998, Waco Court of Appeals opinion, Allstate Insurance Co. v. Lincoln.

Under the 18% penalty imposed by Texas Insurance Code, Section 542.060, what is the effect if there is a finding of multiple violations?  Does the result of result of multiple violations result in multiple penalties?

In applying the Texas Prompt Payment of Claims Act and Section 542.060, the 1999, Tyler Court of Appeals opinion, Dunn v. Southern Farm Bureau, the court found four separate violations by the insurer, but did not discuss whether this made a difference in the damages.

Something to keep in mind is that arguably, an insurance company that violates the statute more than once ought to be more liable than an insurance company that violates the statute only once.  This view is consistent with liberal construction of the statute, and furthers the purpose of encouraging prompt payment of claims.

How to label the 18% penalty in the Texas Prompt Payment of Claims Act is a topic of much discussion in Insurance Law circles.  How is Section 542.060 to be labeled?  Maybe the damages awarded under the prompt payment statute are awarded simply for a failure to comply with a deadline.  The damages are not based on any level of malfeasance of the insurer.  Referring to the treatise, Couch on Insurance, the authors make the following point:

When the statute is silent on the matter, the determination of what kind of conduct of the insurer comes within the scope of the penalty statutes depends basically upon whether the statute is viewed as punitive or as compensatory.  Where it is the latter, the only conduct of the insurer required is of the negative character that the insurer did not pay, and therefore, was sued by the insured, and successfully.  When, however, the statute is viewed as punitive as is generally the case, there must be some misconduct of the insurer to justify the imposition of the penalty.  In general terms, these statutes apply to any improper conduct of the insurer with respect to delay in making payment, refusing to make payment, or stopping the making of payments.

With this analysis, the Texas prompt payment statute would fall within the “compensatory” group because the only conduct required of the insurer is the failure to pay or to timely process the claim, not other misconduct.

Opinions related to the Texas Prompt Payment of Claims Act and in particular the 18% penalty found in Section 542.060, have differed as to whether or not the 18% damages must be exemplary damages and not actual damage.  In that regard;

First, it is not clear at all that the legislature provided this relief without regard to the harm suffered by insureds.  As the respected authorities quoted in other Blogs point out, harm to the insured is a very important consideration.  Absent legislative history either way, or express statutory language either way, courts sometimes assume the grant of the remedy was made without reference to harm suffered by the insured.

Second, the awards necessarily are made with reference to the harm suffered.  An insured suffers harm in the amount of the benefits withheld.  The 18% damages increases and decreases in direct proportion to that harm.  The decisions to the contrary are wrong, because the 18% is multiplied exactly by the “amount of harm” to the insured.

Respected writers, Robert E. Keeton and Alan I. Widiss, argue that damages under the Texas Prompt Payment of Claims Act, Section 542.060(a), have a purpose of providing compensation to the insured.  They write:

The statutory provisions establishing remedies for the late payment or nonpayment of insurance claims are often regarded, and sometimes are characterized by the legislation specifically, as penalties.  Consequently, it is not surprising that some courts have adopted the view that because such legislation is “penal in nature,” the provisions should be subject to strict construction.  However, such awards may also appropriately be viewed as allowing an insured to recover compensation for consequential damages the claimant sustained (1) by having to pay an attorney (as well as other litigation expenses) to secure the insurance benefits and (2) by not having the use of the insurance benefits from the time when the insurance should have been paid.  Even when such a statute provides for an additional recovery of an amount that is calculated as a percentage of the insurance benefit that was due to the insured, in many instances such an amount does not fully indemnify the claimants for all of the adverse consequences that have resulted from the insurer’s wrongful denial of an insured’s claim.  Accordingly, in most circumstances, there is considerable justification for not according such statutory provisions a “strict” construction. 

When an insurer withholds insurance benefits, it deprives the insured of those benefits.  Arguably, that deprivation merits some form of compensation.  When the insurer forces the insured to litigate to recover money that is due under the contract, it imposes additional expenses and aggravation on the insured.  Those are elements the legislature reasonably could find deserve compensation.

Insurance lawyers who publish books, such as Robert E. Keeton and Alan I. Widiss, who publish Keeton and Widiss’ Basic Text on Insurance Law, have detailed the purposes of the 18% penalty found in the Texas Prompt Payment of Claims Act.

Imposing legislatively prescribed remedies whenever an insurer unsuccessfully contests a claim, even though the insurer acts reasonably in doing so, serves to compensate the insured for both the delay in the receipt of payment and the costs of engaging in the controversy with the insurer in order to recover (which in some circumstances are substantial).  A denial of an insurance claim typically has several consequences for an insured.  First, any time there is a denial of an insurance claim, that action obviously extends the period during which the insured must incur the adverse economic consequences of the loss without the benefit of being indemnified by the insurance.  Second, an insured who is forced to litigate to recover insurance incurs legal expenses – which include, but are not limited by the fees charged by a attorney – to secure the insurance payments.  Third, many insureds also sustain a variety of consequential problems, including harm to credit standing and loss of business.  When an insured is compelled to resort to litigation to recover insurance benefits, the insured is denied indemnification for what, at least in many instances, is a very significant aspect of the economic risks incident to the hazards against which the insured sought protection when the insurance was purchased.  Thus, when the payment of insurance benefits is only made after an insured has sought the assistance of an attorney and the legal process, the insured not only sustains added legal expenses but is denied the right to indemnification (which is one of the risks insureds seek to avoid through the acquisition of insurance).  Third,  most insureds have reasonable expectations that the net value to them of their insurance coverage, in the event of a loss, will not be reduced by a recalcitrant insurer.  If, because the insurer is found to have acted reasonably in rejecting the claim, an insured’s recovery is limited to an award of the amount of insurance benefits due, the amount provided by the insurance coverage – after the insurance recovery is reduced by the insured’s payment of the lawyer’s fee and other litigation expenses – is obviously diminished.  The net amount actually received by such a claimant is then insufficient to indemnify the insured, often falling far short of that which the insured reasonably anticipated would be available as an insurance benefit to offset the economic loss that resulted as a consequence of the insured event.  In such instances, it is surely a defensible legislative choice to determine that a layperson’s reasonable view of insurance benefits should be protected by allowing the insured to recover full indemnification whenever an insured is compelled to resort to a lawsuit in order to recover the insurance benefits – that is, to receive a total recovery from the insurer that provides net to the insured no less than the insurance benefits the claimant reasonably anticipated would be paid in the event of a loss.  Professors Keeton and Widiss conclude:  This is another situation in which contradictory canons of statutory construction potentially apply to a question of legislative interpretation: on the one hand, the canon of “strict” construction of “penal” statutes, and on the other hand, the canon of “liberal” construction to effectuate the apparent legislative purpose of protecting victims of wrongful denial of insurance benefits.

The law in Texas regulating the timely payment of claims is the Texas Prompt Payment of Claims Act.  It starts in the Texas Insurance Code, Section 542.051.  The 18% penalty is found in Section 542.060.

One commentator in, Couch on Insurance, has recognized that statutes which impose penalties for denying or delaying payment of a claim are penal in nature as to insurers and compensatory as to insureds.

The treatise states, ” Statutes imposing penalties on an insurer for its failure to meet its obligation on a contract of insurance have been described as “penal” and “highly penal” in character.  Couch also notes: