Dallas Fort Worth Insurance Lawyer Blog

Assignment Of Liability Claims

January 2, 2018 | Mark S. Humphreys

What if it can be proved that the insurance company was wrong in denying coverage of a claim when a third party is suing the insured?

A June 2017, Texas Supreme Court opinion addresses this issue in the case styled, Great American Insurance Co. v. Hamel. The issue in this case was, what constitutes a full adversarial trial.

In Texas, when someone is being sued and the person being sued cannot get their insurance company to provide a defense and pay the claim, and the person being sued believes his insurance company should be providing a defense and paying the claim, then when a judgment is taken against him, he can assign the claim he has against his insurance company to the person who sued him and obtained a judgment.

New “Hail Bill” In Texas

December 31, 2017 | Mark S. Humphreys

Texas has a new law regarding hail damage claims.

Here are five things to know about the new law.

First, it creates a new chapter in the Texas Insurance Code, Chapter 542A, which applies to property damage claims caused by “forces of nature.” This includes damage caused by earthquakes, wildfires, floods, tornados, lightning, hurricanes, hail, wind, snowstorms, and rainstorms. The law applies to any lawsuit the insured may bring against the insurer or its agent even if the insured does not sue the insurer. Besides, Insurance Code violations, this new law applies to breach of contract claims and common law claims. Further, “forces of nature” are not specifically limited to weather related events and litigation will probably result over what else is included.

Sworn Proof Of Loss

December 30, 2017 | Mark S. Humphreys

Almost all insurance policies require a “sworn proof of loss” be filed when making a claim. The Dallas Division, Northern District of Texas, issued an opinion in October 2017, dealing with a situation where the sworn proof of loss was waived by the Court. The opinion is styled, Alexander Vilaythong v. Allstate Insurance Company.

Vilaythong (Plaintiff) had a homeowners policy with Allstate. Plaintiff suffered a hail storm damage and submitted a claim to Allstate, who estimated damage at $17,053.76. Plaintiff hired an adjuster who estimated the damage at $40,905.22.

A lawsuit ensued and Allstate moved to have the case dismissed under Rule 12(b)(1) for lack of standing because Plaintiff did not satisfy a condition precedent for filing the lawsuit, because he had not filed a signed and sworn proof of loss at least ninety one days before suing Allstate.

Give Notice To The Insurance Company

December 28, 2017 | Mark S. Humphreys

The United States 5th Circuit Court issued an opinion in October 2017, that is basic to insurance law. The opinion is styled, Nautilus Insurance Company v. Irma Miranda-Mondragon.

This is a declaratory judgment action filed by Nautilus against its insured Houston Star Security Patrol and Mondragon. Nautilus argued it had no duty to indemnify Houston Star regarding a claim brought by Mondragon. Summary Judgement was granted in favor of Nautilus.

Mondragon worked as a waitress at a nightclub when armed gunmen entered and began shooting customers and employees. Mondragon was shot and required significant treatment.

Abatement And Uninsured Motorist Benefits

December 26, 2017 | Mark S. Humphreys

Here’s one for Grand Prairie insurance lawyers handling uninsured motorist (UM) cases. It is from the Corpus Christi Court of Appeals and is styled, In Re Farmers Texas County Mutual Insurance Company.

This case arose from a wreck with an UM driver. The real party in interest, Luzminda Llasos brought suit against her auto insurance carrier, Farmers, for UM benefits. Llasos sued Farmers for breach of contract, violations of the Prompt Pay Act, and violations of the Texas Insurance Code, Section 541.060. Her original lawsuit papers incorporated written discovery consisting of fifteen interrogatories, twenty-six requests for production, and thirty requests for admission.

Farmers filed a motion to sever and abate Llasos’s extra-contractual claims form the underling UM claim.

Insurance Lawsuits And Experts

December 24, 2017 | Mark S. Humphreys

Here is another case looking at experts in insurance cases. The case is from the Eastern District, Sherman Division, and is styled, La Verdure & Associates v. Depositors Insurance Company.

Plaintiff, La Verdure filed suit against Depositors for alleged violations of the Texas Insurance Code, the DTPA, and breach of contract. A Scheduling Order was entered into which set a deadline of March 24, 2017, for naming expert witnesses.

Plaintiff named its experts on April 7, 2017. On May 19, Defendant filed its Motion to Strike or Limit Expert Testimony. Plaintiff filed its Motion for Leave to Amend Designation of Expert Witnesses.

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.