Dallas Fort Worth Insurance Lawyer Blog

Negligent Claims Handling

December 23, 2017 | Mark S. Humphreys

Here is a summary judgment case from the Eastern District, Sherman Division, where one of the causes of action is, negligent claims handling. The case is styled, Yoram Avneri v. Hartford Fire Insurance Company.

Here, the Court had previously denied Hartford’s motion for summary judgement but is now reconsidering the ruling. After the reconsideration the Court withdrew its previous ruling and granted it in part and denied in part.

Avneri suffered hail and wind storm damage at his property in Denton, Texas, that was insured through a Hartford policy. Avneri submitted the claim which was denied by Hartford based on their assertion that the damage, if any, did not exceed the policy deductible. Avneri filed suit in State Court and Hartford removed the case to Federal Court where it filed its motion.

Homeowners Claims And Estoppel

December 21, 2017 | Mark S. Humphreys

The Amarillo Court of Appeals issued an opinion on October 13, 2017, that is a must read for insurance lawyers who handle homeowner claims. It is styled, Christopher Hall v. Germania Farm Mutual Insurance Company.

This case involves a homeowners policy and damage to Hall’s insured property and Germania’s attempt to adjust the claim. A lawsuit was filed over the amount of the loss sustained by Hall and eventually Germania invoked the appraisal clause in the insurance contract. An appraisal was eventually performed and Germania tendered to Hall the appraised amount. In the lawsuit, Germania invoked the doctrine of estoppel.

A motion for summary judgment was filed by Germania and granted in their favor.

Fort Worth Insurance Lawyers – Pleadings

December 19, 2017 | Mark S. Humphreys

The Northern District, Dallas Division, issued an opinion on a case dealing with removal to Federal Court and a Motion To Remand. The opinion is styled, Arrow Bolt & Electric, Inc. v. Landmark American Insurance Company and Jason Keen.

Arrow filed suit in in State Court to recover for damages caused in a storm to property it owned in Fort Worth. Arrow alleged that Landmark and Keen (the adjuster) wrongfully denied its claim, breached the insurance contract and violated various duties of the Texas Insurance Code.

Landmark removed the case to Federal Court pursuant to 28 U.S.C. Section 1332 and 1441 on the ground that there is complete diversity of citizenship and the amount in controversy exceeds $75,000. Landmark contends Keen, a Texas resident, was improperly joined in an effort to defeat diversity of citizenship.

Roof Damage And Experts

December 17, 2017 | Mark S. Humphreys

The naming of experts in a roof or hail damage case is the same as naming an expert in other cases. The Eastern District, Sherman Division, recently had an opinion discussing experts. It is styled, Yoram Avneri v. Hartford Fire Insurance Company.

The Scheduling Order in this case set a deadline of April 5, 2017, for Avneri to name and disclose expert testimony in this roof damage case. Avneri named Julie Needham as an expert timely, but did not include Needham’s opinions, facts, exhibits, a list of Needham’s publications, or past cases.

Hartford filed a Motion to Exclude Testimony of Julie Needham, claiming the disclosure did not satisfy the requirements under Rule 26(a)(2)(B) of the Federal rules of Civil Procedure. Averni argued its disclosure met the requirements because Needham was a non-retained expert and that Hartford was not prejudiced by the non-disclosure because Needham had been named as a witness months earlier.

Proper Claims Against The Adjuster

December 16, 2017 | Mark S. Humphreys

Too many times, the claims against an adjuster fail when those claims are removed to Federal Court. There was a successful claim recently in the Southern District, Houston Division. It is styled, Lillie Jean Hooper v. Allstate Texas Lloyd’s, et al.

Hooper suffered storm damage and submitted a claim to Allstate for severe damage to her roof and home, and water damage.

The adjusters assigned to the claim were Katherine Hernandez and Joe Bobbitt. They conducted a assessment and later a second assessment of the claims submitted by Hooper. Hooper alleges the adjusters intended to deny her claim and fabricated explanations of the visible damage that attributed them to causes not covered by the policy. Hooper own evaluator estimated the damage at $26,459.86.

“Using” An Automobile For Insurance Coverage

December 14, 2017 | Mark S. Humphreys

Insurance lawyers will see situations where there is a question whether or not the “uninsured motorist” (UM) provisions of a policy apply to provide coverage. An interesting case was heard in the Amarillo Court of Appeals dealing with this issue. It is styled, Jesse Salinas v. Progressive County Mutual Insurance Co.

Jesse appeals a summary judgment in favor or Progressive.

Jesse was a passenger in a one vehicle accident that was stolen. No one had permission to drive, occupy, or otherwise use the vehicle.

Proof Of Loss Requirement

December 12, 2017 | Mark S. Humphreys

Probably all homeowner policies require a “Proof Of Loss” (POL) be filed before a lawsuit be filed against the insurance company. This issue is addressed in the Northern District, Dallas Division opinion, Gwendolyn Pamphile v. Allstate Texas Lloyds.

Before the Court was a motion to dismiss filed by Allstate. This arose out of an insurance dispute wherein Pamphile suffered hail damage during a storm and made a claim to Allstate for benefits. Allstate assigned an adjuster who evaluated the claim and Allstate made payment based on the adjusters evaluation. Unsatisfied with the payment Pamphile submitted a POL form with her own repair estimate and one day later, filed suit against Allstate. Allstate removed the case to federal court and filed their motion to dismiss.

Federal courts can adjudicate claims only when subject matter jurisdiction is expressly conferred and must otherwise dismiss for lack of subject matter jurisdiction.

Accidental Death Policy

December 10, 2017 | Mark S. Humphreys

Lawyers handling accidental death life insurance policies would want to read all cases dealing with this subject. Here is a 5th Circuit opinion styled, Abdul Salam Badmus v. Mutual of Omaha Insurance Company.

In August 2010, Mutual issued an Accidental Death Policy to Selem Babtunde Badmus (Selem), providing a $750,000 death benefit. The policy provided no beneficiary but was changed to designate Selem’s brother, Abdul Salam Badmus (Badmus) as beneficiary in July 2013. In March 2013, Badmus filed a claim seeking the policy benefits, alleging Selem died in an auto accident in Lagos, Nigeria, on January 24, 2014. Mutual sent Badmus forms to complete and requested documents in support of the claim. They received back partially completed forms and none of the requested documents. Upon discovery of numerous discrepancies Mutual hired Worldwide Resources, Inc. (Worldwide) to investigate the claim. Worldwide ultimately concluded that most of the information submitted was suspect and Mutual denied the claim.

In May 2015, Badmus filed suit for breach of contract and violations of numerous sections of the Texas Insurance Code. Again choosing to undertake an independent investigation, Mutual uncovered a series of name-change forms indicating that “Selem Babatunde Badmus,” residing at Badmus’s address in Houston, Texas, applied for a name change to “Abdul Salam Badmus” on May 21, 2016, over two years after Selem’s alleged death in Nigeria. shortly thereafter, Badmus was indicted for felony insurance fraud based on the insurance claim he filed with Mutual.

Lawsuits In Homeowners Cases

December 9, 2017 | Mark S. Humphreys

Insurance lawyers know that one of the more common claims arise from homeowners claims. Trying to keep the case in State or County Court is most favorable for the homeowner. However, doing that is more and more difficult. This is illustrated in the 2017, Northern District, Fort Worth Division opinion, William Mauldin v. Allstate Insurance, et al.

After damages were suffered to the residence of William, he made a claim against his homeowner’s policy with Allstate. A lawsuit was eventually filed against Allstate and the adjuster Mayella Gonzalez for violations of the Texas Insurance Code and the Texas DTPA.

Allstate and Gonzalez removed the case to Federal Court under 28 U.S.C. Section 1441(a), alleging that the adjuster Gonzalez was improperly joined in an effort to defeat diversity. When improper joinder is alleged, the Court does a Rule 12(b)(6) type of analysis to determine whether there is a chance of recovery against Gonzalez.

Responsibility Of Insureds

December 7, 2017 | Mark S. Humphreys

An insurance contract will impose conditions on the insured person or entity. For example, most policies require that the insured give notice of the claim and cooperate with the insurance company. Policies may require that the insured file a formal proof of loss, if the insurer requests one. When one party to a contract commits a material breach of that contract, the other party is discharged or excused from any obligations to perform. In the 1994, Texas Supreme Court opinion, Hernandez v. Gulf Group Lloyds, the court said that the breach be “material.” The court explained stating:

In determining the materiality of a breach, courts will consider, among other things, the extent to which the non-breaching party will be deprived of the benefit that it could have reasonably anticipated from full performance … The less the non-breaching party is deprived of the expected benefit, the less material the breach ….

The other factors courts consider in determining the materiality of a breach are: (1) the extent to which the injured party can be adequately compensated for the part of that breach of which he will be deprived; (2) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (3) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (4) the extent to whic the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.