Dallas Fort Worth Insurance Lawyer Blog

Underinsured Coerage

December 25, 2019 | Mark S. Humphreys

Insurance lawyers know to look at the Texas Insurance Code, starting at Section 1952.101, to see the requirement that insurance companies are required by the Texas Department of Insurance and by statute to provide underinsured (UIM) coverage in their automobile polices.

One of the steps an insurance lawyer is suppose to make when trying to collect UIM benefits is to get written permission from the UIM insurance carrier to settle with the responsible third party before actually settling the case with the responsible third party. This is required so as to not prejudice the right of the insurance carrier to subrogate against the third party in the appropriate situation.

This issue is discussed in a 2019, opinion from the Dallas Court of Appeals. It is styled, Curtis Davis v. State Farm Lloyds, Inc.

Delay In Paying Claim In Fort Worth

December 22, 2019 | Mark S. Humphreys

Here is an insurance case that was appealed to the Fort Worth Court of Appeals. The case is styled, Joseph Lambert and Susan Lambert v. State Farm Lloyds and Tevin Senne. The appeal involved a few issues but the one focused on here deals with the Texas Prompt Payment of Claims Act (TPPCA).

The Lamberts are appealing a grant of summary judgment in favor of State Farm.

The Lamberts had their home damaged in a storm in May 2015. The y made a claim for benefits and after the first inspection, the damages did not not exceed the Lamberts deductible. A second inspection was requested, after which the Lamberts were issued a check fo $1,700, in October 2015.

Suing Insurance Company In Federal Court

December 21, 2019 | Mark S. Humphreys

When insurance lawyers file a lawsuit that ends up in federal court, they have to make sure that the pleadings in the complaint will satisfy federal court pleading guidelines or they will end up being kicked out of court. This is illustrated in a case from the Southern District of Texas, Houston Division. It is styled, 9520 Homestead, LLC v. Westchester Surplus Lines Insurance Company.

This lawsuit arises from an allegation by 9520 that Westchester’s adjuster conducted a substandard investigation and inspection of 9520’s property after the property was damaged in a hurricane. Based on the substandard investigation, the adjuster’s report undervalued the claim and failed to include all of the damages and thus, Westchester violated various sections of the Texas Insurance Code.

Under Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The complaint need not contain detailed factual allegations, but it must include more than an unadorned, the-defendant-unlawfully-harmed-me accusation.

Federal Court And Stipulation

December 18, 2019 | Mark S. Humphreys

Insurance disputes involving smaller claims can properly be handled in a State or County courts if the insurance lawyer knows how to keep the case from being removed to Federal court. This is illustrated in the 2019, opinion styled, Michael Ihekoronye v. United Property & Casualty Insurance Company. Plaintiff, Michael Ihekoronye, filed the case in State court and United removed the case to Federal court. Plaintiff filed a motion to remand the case back to the State court.

Pursuant to 28 U.S.C., Section 1332(a), Federal district courts have original jurisdiction over civil actions between citizens of different states where the amount in controversy exceeds $75,000, exclusive of interest and costs. A state-court plaintiff seeking to avoid federal jurisdiction may do so by filing a binding stipulation with the original complaint that limits recovery to an amount below the jurisdictional threshold.

In this case, United argues that removal was proper because the parties are completely diverse and the amount in controversy exceeds $75,000. Plaintiff seeks remand based on a stipulation attached as Exhibit E to the state court petition, which states that “the total sum or value in controversy in this cause of action does not exceed $75,000 exclusive of interest and costs” and that “neither Plaintiff nor his/her attorney will accept an amount that exceeds $75,000 exclusive of interest and costs.”

Entitlement To Bad Faith Damages

December 15, 2019 | Mark S. Humphreys

The standard for recovery of bad faith or extra-contractual damages is discussed in this 2019, Northern District of Texas Dallas Division opinion styled, Carolyn Kee v. Safeco Insurance Company of Indiana.

Kee sued her homeowner insurer, Safeco, for improperly adjusting her claim for damages. Safeco’s adjuster adjusted the claim saying the amount of damages did not exceed the deductible under Kee’s policy. Kee filed suit against Safeco and then Safeco invoked the appraisal clause in the insurance contract.

After the appraisal came back in favor of Kee, Safeco paid the appraisal amount and filed a motion for summary judgement on Kee’s claims. The court refused the motion as it relates to the alleged Prompt Payment of Claims cause of action but on the claim for extra-contractual damages, the motion was granted. In discussing the case the court stated as follows.

Prompt Payment Of Claim – Proof

December 14, 2019 | Mark S. Humphreys

Just saying the claim was paid is not enough. In Court, the insurance company needs to prove the claim was paid and paid timely in order to prevail on a Motion For Summary Judgment.

Here is a case from the Northern District of Texas, Dallas Division. It is styled, Carolyn Kee v. Safeco Insurance Company of Indiana.

Kee alleges that Safeco, her home insurer, conducted an inspection after she made a claim and that the adjuster reported minimum damage, falling below her policy deductible. Kee sued for breach of contract and violation of the Texas Prompt Payment of Claims Act. Safeco then pursued binding arbitration and the resulting award was significantly higher than Safeco’s initial damage assessment.

Suing An Insurance Company – Don’t Do It Pro Se

December 11, 2019 | Mark S. Humphreys

Insurance lawyers may not be perfect in all their actions but if a person wishes to sue an insurance company, get an insurance lawyer, don’t do it yourself. This is illustrated in a recent Fifth Circuit opinion styled, Thomas Petty v. Great West Casualty Company.

This is an appeal resulting from the district court’s dismissal of Petty’s claim with prejudice after Petty, a commercial truck driver sued Great West pro se.

Petty contends he was involved in two accidents involving fatalities and he suffers from ongoing mental trauma that prevents him from being able to operate a commercial truck. As a result, he seeks monetary relief for lost business earnings and mental distress/anguish.

Suing An Insurance Company A Second Time

December 8, 2019 | Mark S. Humphreys

Here is a situation not discussed before and one that rarely happens. However, it does discuss law that may be relevant to insurance lawyers in other cases. The case is from the Southern District of Texas, Houston Division. It is styled, Randy Randel and Debra Randel v. Travelers Lloyds of Texas Insurance Company.

The Randels experienced a fire loss to their home and made a claim against their homeowners policy with Travelers. Travelers paid on the claim but the Randels allege they were underpaid. The Randels sought to have the claim appraised and Travelers refused, stating the case was closed.

The Randels filed a declaratory judgment action against Travelers seeking the Court to Order Travelers to appraise the claim. Travelers agreed to appraisal and the Randels dismissed their lawsuit with Prejudice to refiling the claim.

Insurance And Plumbing Leak

December 7, 2019 | Mark S. Humphreys

Here is a case involving a plumbing leak. What is a little unusual about this case is the insurance company is attempting to sue Texas Insurance Code, Section 542A.006(c), to have this case heard in Federal Court rather than the State Court in which the case was filed. The style of the case is James A. Macari, et al. v. Liberty Mutual Insurance Company, et al. The case is from the Southern District of Texas, Houston Division.

Liberty had issued a homeowners insurance policy to Macari. Macari experienced a plumbing leak and damage from the leak. Macari made a claim against the Liberty policy and Liberty assigned adjuster David Meaders to adjust the claim. The claim was denied and Macari sued Liberty and Meaders. This lawsuit was filed in State Court and then removed by Liberty to Federal Court.

After the lawsuit was filed, Liberty gave written notice pursuant to Chapter 542A of the Insurance Code assuming any liability Meaders might have to Macari.

Insured’s Process Victory

December 4, 2019 | Mark S. Humphreys

For insurance lawyers, a favorable way to increase the odds of a win or favorable settlement is to be able to litigate a case in State Court rather than Federal Court. Here is a win for keeping a case in State Court. This is a 2019, opinion from the Eastern District of Texas. The opinion is styled, Michael Hebert v. United Property & Casualty Insurance Company.

This is a lawsuit filed against United and it’s adjusters, Castro and Pharr, resulting from the way Hebert’s claim was handled. The case was filed in State Court. The State Court dismissed the adjusters and United then removed the case to Federal Court based on diversity of citizenship and the amount in controversy pursuant to 28 U.S.C. Sections 1441 and 1446.

This Court states that the case was not removable on its face because Pharr, Castro, and Hebert are Texas citizens and, therefore, there was not complete diversity. Under what is called the voluntary-involuntary rule, a case generally can become removable only by an affirmative act by the plaintiff. This is pursuant to 28 U.S.C., Section 1446(b)(3). United’s election of post-suit liability was an involuntary act with regard to Hebert. Thus, the case was not removable on its face or after United’s election of liability.