Dallas Fort Worth Insurance Lawyer Blog

Proving Uninsured / Underinsured Coverage

December 29, 2018 | Mark S. Humphreys

The Fort Worth Court of Appeals issued an opinion on November 15, 2018, that is worthy reading for lawyers handling uninsured / underinsured motorist coverage (UIM). The case is styled, William Blevins v. State Farm Mutual Automobile Insurance Company.

This case is an appeal from a trial by Blevins against State Farm wherein the jury ruled in favor of State Farm. The opinion is lengthy and the majority of it deals with whether the decision by the jury was justified in light of the evidence. What is dealt with here is the ruling by the court to not allow in evidence regarding the UIM coverage.

Blevins argued the trial Judge erred by declining to allow testimony about Blevin’s UIM coverage.

Commercial Policy Case

December 27, 2018 | Mark S. Humphreys

The Fifth Circuit Court of Appeals issued an opinion on November 14, 2018, in a situation which is going to be rarely seen, but is something for insurance lawyers to know exists. The case is styled, Sentry Select Insurance Company v. Lorena Munoz, Individually and on behalf of the Estate of Lorenzo Munoz, and as Next Friend of L.M. and C.M., Minor Children; Virginia Munoz.

The Munoz’s were defendants in the case. Sentry had been granted a summary judgment in the District Court.

On August 17, 2010, Lorenzo Munoz, was killed when the semi-truck in which he was traveling veered off the highway and crashed into a concrete drainage channel. The semi-truck consisted of a tractor owned by Moore Freight Services and a trailer leased by Goal Transport. Sentry issued a commercial auto insurance policy to Goal.

Life Insurance Assignments

December 25, 2018 | Mark S. Humphreys

This 2018, Fort Worth Court of Appeals opinion is unique and involves a situation most life insurance lawyers will not ever see, however, it is worth knowing about due to some of the ruling by the appeals court. The case is styled, Old American Insurance Company v. Lincoln Factoring, LLC.

Lincoln is an assignee of a portion of benefits under a life insurance policy. Lincoln was assigned a portion of the benefits by the life insurance beneficiary for advancing costs of the burial of the insured. The insured had a life insurance policy with Old American.

When the insured died, the beneficiary made a claim for benefits. Instead of paying the benefits, Old American insisted they needed a copy of the death certificate. When a copy of the death certificate was provided, Old American withheld payment because the death certificate stated that the manner of death of the insured was pending investigation.

The Heart Of Bad Faith Insurance

December 23, 2018 | Mark S. Humphreys

Any Insurance Law Attorney knows the heart of the law regarding bad faith insurance is found in the Texas Insurance Code. Other sources include the Texas Department of Insurance and the Texas Administrative Code, among other sources.

The Texas Insurance Code, Chapter 541, defines and prohibits unfair and deceptive insurance practices.

The statutes allow 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 competition or unfair or deceptive act or practice in the business of insurance, or defined as an unlawful deceptive trade practice. This is found in Section 541.151. The definitions of unfair and deceptive practices are found in two places: (1) Texas Insurance Code, Sections 541.051 to 541.061; and (2) Section 17.46(b) of the Business & Commerce Code, the Texas Deceptive Trade Practices — Consumer Protection Act (DTPA).

Alleging Facts Sufficiently Against An Adjuster

December 22, 2018 | Mark S. Humphreys

As has been discussed before, insurance companies would rather litigate cases in Federal Court instead of State Court. The reasons are numerous.

One way to stay out of Federal Court is to defeat diversity jurisdiction under 28 U.S.C. Section 1332(a). This is most commonly done by suing a local adjuster for the wrongs the adjuster has committed when the insurance company is an insurance company that maintains its main head-quarters out of state.

The Southern District of Texas, Houston Division, issued an opinion on October 30, 2018, wherein the Court sue sponte remanded a case back to the State Court after the insurer had removed it to Federal Court. The case is styled, Joan Elaine Murray v. Allstate Vehicle and Property Insurance Company and Brandon Joseph Chisolm.

Life Insurance Lawsuits

December 20, 2018 | Mark S. Humphreys

Here is a situation almost never seen. It involves a case out of the Northern District of Texas, Dallas Division. It is styled, William M Arrington, Individually, as Beneficiary, and as Representative of the Estate of William L. Arrington v. Jackson National Life Insurance Company, Danny C. Burba, and Gordon B. Richardson.

William applied for a life insurance policy and Burba and he signed the application. Southwestern accepted the application and issued William a life insurance policy with a face value of $976,500. The policy was a flexible premium adjustable life insurance policy. Burba advised William as to the annual premium amount he had to pay to keep the policy in effect. Burba allegedly told William to make a down payment of $1,100 per month for the life of the policy. From 1998 to 2015, William paid more than $200,000 toward the policy.

In February 2007, William received notice that Southwestern merged with Valley Forge Live Insurance Company. In September 2007, Bill received notice that Valley had changed its name to Reassure America Life Insurance Company. On July 31, 2008, Margarita Arrington requested that Gordon Richardson replace Burba as the agent of record. However, Burba continued to be copied on correspondence regarding the policy, and internal records referred to Burba as the “active agent.”

Duty Of An Insurance Agent

December 18, 2018 | Mark S. Humphreys

Many times an insurance agent makes mistakes and those mistakes cost his customer, the insured. An experienced Insurance Law Attorney should be able to recognize when an agent violates a duty he owes to his customer.

There are arguably several duties that exist for insurance agents in Texas, among them:

(1) Duty to Procure, which requires an agent to actually obtain the coverage entrusted to his care, or failing to do so, to immediately notified the insured of this fact. This includes leading a client to believe he has coverage for a particular peril which he in fact does not have. This is discussed in the 1948, El Paso Court o f Appeals opinion, Burroughs v. Bunch. More recently, one Texas appeals court articulated this as two distinct duties: (i) the duty to use reasonable diligence in attempting to place the requested insurance, and (ii) the duty to inform the client promptly if unable to do so. This is from the 2004, Tyler Court of Appeals opinion, Critchfield v. Smith.

Value Of Insurance Claim

December 16, 2018 | Mark S. Humphreys

What is the value of a claim? That is always the question. Just how much can be recovered depends on lots of factors.

The Southern District of Texas, Houston Division, had a case recently wherein the insurance company filed suit in the Federal Court and the defendant tried to have the case dismissed due to the amount in controversy not being the minimum required under Federal law.

The case style is, Palomar Specialty Insurance Company v. Maria Penaloza M. Beltran.

Fort Worth Federal Judge Dismisses Insurance Claim

December 15, 2018 | Mark S. Humphreys

A Fort Worth Federal Judge dismissed a lawsuit on October 11, 2018, wherein the claimant was suing his insurance company for it’s denial of a hail and windstorm damage claim. The case is out of the Northern District of Texas, Fort Worth Division. The style of the case is, University Baptist Church of Fort Worth v. Lexington Insurance Company.

The facts of the case are extensive and will not be discussed at length here except the claim centered around the cost of labor and material that would be required to do the extra work during the roof repair needed to satisfy law and ordinance requirements.

The case was dismissed after Lexington filed a motion for summary judgment. The parties are in agreement, and the record establishes that Lexington paid Church the policy limit of $250,000 for the code upgrade work, and that Lexington complied with all of its policy obligations. Lexington paid Church a total of $852,149.52 for repair of the church buildings in satisfaction of its insurance policy payment obligations.

Insurance Coverage – Burden Of Proof

December 13, 2018 | Mark S. Humphreys

For Experienced Insurance Lawyers, the question of who has the burden of proof is made clear by Texas case law. (Not)

Pursuant to the 1994, San Antonio Court of Appeals opinion, Telepak v. United Serv. Auto. Ass’n., the insured has the initial burden of proof as to damages covered by their policy. However, as pointed out in the 1943, Texas Supreme Court opinion, Trevino v. American Nat. Ins. Co., the burden makes a prima facie case by showing that the policy was in force on the date the loss occurred.

The insurance company has the burden of proving the applicability of an exclusion that permits it to deny coverage. This is pointed out in the 2003, Fort Worth Court Appeals opinion, Venture Encoding Service, Inc. v. Atlantic Mut. Ins. Co.