Dallas Fort Worth Insurance Lawyer Blog

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.

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.