Dallas Fort Worth Insurance Lawyer Blog

Delay In Paying Claim And Prompt Pay

September 27, 2018 | Mark S. Humphreys

Here is a case where the Prompt Payment of Claims Act was not violated, even though at first glance it appears it was violated. Knowing how the facts and the law square on these issues is important in evaluating a case. This 2018, case is from the Amarillo Court of Appeals and is styled, Steven Biasatti And Paul Gross D/B/A Topdog Properties v. GuideOne National Insurance Company and John Karl Graves.

TopDog was insured with GuideOne and suffered property damage during a storm. A claim was made and GuideOne adjusted the loss as being $1,896.88. TopDog requested an additional inspection. GuideOne retained an engineer who confirmed the adjuster’s findings. TopDog wished to proceed with an appraisal and GuideOne responded that only they, GuideOne, could invoke the appraisal process.

TopDog filed this lawsuit and then GuideOne invoked the appraisal clause in the insurance contract. The trial court ordered appraisal, the parties designated appraisers, and the court appointed an umpire. The umpire filed the appraisal award, in which the parties’ appraisers and the umpire unanimously set the amount of loss at $168,808.

Insurer Paid – Is There Still Any Liability

September 25, 2018 | Mark S. Humphreys

Insurance lawyers who handle home owner and property claims must know this case. It is a 2018 case from the Northern District of Texas, Dallas Division. It is styled, Meisenheimer v. Safeco Insurance Company of Indiana.

This is a storm damage claim. Plaintiff suffered damage and made a claim. Safeco sent out an adjuster who found total damage that was less than the $7,700 deductible amount. Plaintiff hired a public adjuster who determined the loss to be $129,794. Safeco re-inspected the property and the parties still could not reach a resolution. Plaintiff claims the inspections were substandard.

The insurance contract includes an appraisal provision for resolving disputes over the proper amount of the claim. Safeco invoked the appraisal process and both parties participated. An umpire issued a final appraisal award of $54,535. Safeco timely paid the final appraisal amount.

Removal To Federal Court

September 23, 2018 | Mark S. Humphreys

Anytime an insurance company is sued from conduct arising from insurance policy and the investigation of a claim, the insurance company is going to seek to have the case heard in a federal court. This is seen again in the 2018, opinion from the Western District of Texas, San Antonio Division, styled, Electro Grafix, Corp. D/B/A Aetna Sign Group, LTD., D/B/A Aetna Sign Company, Inc. v. Acadia Insurance Company, and Marlin Douglas Odermatt.

This is a lawsuit filed in State District Court arising out of claim for property damage wherein Acadia claims there was no damage or minimal damage to Aetna’s property. Marlin was an engineer assigned to investigate the claim by Acadia. Aetna claims Acadia has not accepted responsibility for the conduct of Marlin and thus Marlin is being sued in his individual capacity.

Acadia had the case removed to federal court and Aetna is filing this motion remand based on Marlin being improperly joined.

Processes In Adjusting A Claim

September 22, 2018 | Mark S. Humphreys

Insurance lawyers need to know what the policy at issue says and how the courts interpret those policies and make their rulings.

For a homeowners policy, the 2018 Eastern District of Texas, Sherman Division, opinion styled, Rainey Rogers v. Nationwide General Insurance Company, is a good read.

The Rainey case arises out of a dispute between a policyholder and Nationwide regarding the extent of damages and the amount of loss suffered to Rainey’s property. On March 26, 2017, the property suffered damage due to storm-related conditions and Rainey made a claim for benefits.

Home Owners Claims For Insurance Code Violations

September 20, 2018 | Mark S. Humphreys

The Southern District of Texas, McAllen Division issued an opinion in August 2018, for insurance lawyers to read that is styled, Alfredo Murillo Jr., et al v. Allstate Vehicle and Property Insurance Company.

The Murillo’s filed a lawsuit in State court against Allstate after Allstate did not handle a storm damage claim to the satisfaction of the Murillo’s. The Murillos alleged violations of the Texas Insurance Code, the DTPA, and breach of contract. Allstate removed the case to Federal court and filed a motion with the Court seeking dismissal of the Murillos Insurance Code and DTPA violations pursuant to Federal Rule of Civil Procedure 12(b)(6).

Rule 12(b)(6) requires plaintiff to plead “enough facts to state a claim to relief that is plausible on its face.” The pleading requires “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Conclusory allegations are disregarded.

Reading The Insurance Policy

September 18, 2018 | Mark S. Humphreys

Insurance lawyers will tell their clients to read the insurance policy and then the attorney can discuss with the client how courts interpret the language in the policy. A 2018, opinion from the Southern District of Texas, Corpus Christi Division, styled, Mark Eller V. United Property & Casualty Insurance Company, is a good read for seeing how at least this particular court interprets the policy at issue in this case.

United filed a “Motion to Abate Proceedings to Complete Appraisal Process” and Eller responded.

Eller owns property damaged in Hurricane Harvey on or about August 25, 2017. United was the insurer and provided an estimate of the loss that was far less than what Eller says. A pre-suit demand was made under Texas Insurance Code, Chapter 542A on February 1, 2018.

Disability Coverage And Disability Due To Illness

September 16, 2018 | Mark S. Humphreys

According to the 28 Texas Administrative Code, Section 3.3012(b), in a definition of “total disability” in an individual accident and sickness policy or hospital, medical, and dental service corporation subscriber contract, the inability to perform duties may not be based solely on an individual’s inability to perform “any occupational duty,” but the insurer may specify the requirement of the inability of the insured to perform all of the substantial and material duties pertaining to his or her regular occupation, or words of similar import.

A policy may further provide coverage for “partial disability,” which is typically defined as the insured’s inability to perform one or more but not all of the essential duties of his or her employment or occupation.

Disability policies normally require that any claimed disability occur while the policy is in effect or within a specified time after any claimed accident or injury.

Disability Policy Lawsuits

September 15, 2018 | Mark S. Humphreys

Here are a few examples of cases that have been litigated regarding disability policies and how the courts look at these cases.

In a 2003, Texas Supreme Court opinion, Provident Life and Ac. Ins. Co. v. Knott, the Court read the policies in question defining the term “total disability” to mean that the insured must, in order to be considered totally disabled under the policies, be unable to “perform all of the important daily duties of his occupation.” The court then held that the trial court’s granting of summary judgment in favor of the insurer was appropriate given that the insured, a gynecologist seeking benefits for total disability under those policies was able to see patients, perform surgery, consult with other physicians and perform administrative duties.

In a 2002, United States 5th Circuit opinion, Lain v. UNUM Life Ins. Co. of America, a long-term disability policy that denied disability in part as the inability to perform “each of the material duties” of the insured’s regular occupation required only that the insured be unable to perform any single material duty of her occupation in order to be considered disabled, not that she be unable to perform all duties of that occupation. In the case, no concrete evidence disability insurer’s determination of nondisability for insured who suffered recurring severe chest pains, while overwhelming evidence supported disability claim, warranting benefit award under ERISA civil enforcement provision: the insured’s time at home doing research on her medical condition did not equate to ability to practice law, as insurer contended; insurer focused on certain “normal” test results to support its finding, but test results were primarily abnormal and also could not clinically measure insured’s pain; and insurer’s reliance on insured’s failure to seek psychiatric care prior to ceasing employment was misguided since her disability was physical.

Disability Income Policies

September 13, 2018 | Mark S. Humphreys

Insurance lawyers who handle disability income policies will see two types of policies.

One is the policy purchased through employment of provided by the employer. The other type is the type purchased independent of employment, usually through an independent agent or in response to advertisements.

Those purchased through employment by the employee will often times be ERISA policies. ERISA stands for Employee Retirement Income Security Act. ERISA policies are governed by Federal law. All other types of disability income policies are governed by State law. ERISA policies are in a classification all their own. This blog is not discussing ERISA policies and a person needs to know which type is at issue.

Removal Win

September 11, 2018 | Mark S. Humphreys

As is normal, an insurance company will remove a case to federal court anytime they can. When an insured sues parties besides the insurer, the insurance company claims the joinder of the other party is fraudulent. To often the insurer wins this removal battle. Here is a case where the insured won the removal battle.

The case is a 2018 case styled, Ramona L. Smith v. Government Employees Insurance Company and R&M Towing and Recovery. The case is from the Eastern District of Texas.

Smith’s husband was killed in an accident. R&M towed Smith’ vehicle. Smith contends R&M agreed to maintain possession of the vehicle while she pursued a civil action against the manufacturer. R&M subsequently released the vehicle to GEICO. She then contacted GEICO and reached an agreement for GEICO to ensure the continued storage and preservation of the vehicle. GEICO then sold the vehicle for salvage without Smith’s permission and allowed it to be destroyed.