Dallas Fort Worth Insurance Lawyer Blog

Get An Insurance Lawyer

July 29, 2017 | Mark S. Humphreys

The need to get an insurance lawyer is illustrated in a recent opinion from the Southern District, Houston Division. The opinion is styled, Trudy Sawyer v. Geico General Insurance Company.

On December 28, 2015, Sawyer filed a complaint and an application to proceed in forma pauperis in this case, which was granted. On October 26, 2016, the court ordered the parties to submit a Joint Discovery/Case Management Plan. Nevertheless, the parties filed independent discovery plans. In its discovery plan, Geico stated its intention to take Sawyer’s deposition between December, 2016, and May, 2017.

Geico did make arrangements to take Plaintiff’s deposition on January 18, 2017. Sawyer was given proper notice of the deposition, but she did not appear, and belatedly informed Defendant that she would not attend, because she was “the victim” in the action, and so she should not have to endure “such depressive measures.” Geico then rescheduled Sawyer’s deposition for February, 2, 2017. Again, she was properly notified of the deposition, but she again failed to appear, claiming that she could not, because she had been the “victim of robbery,” the night before.

ERISA And Contractual Limitations

July 27, 2017 | Mark S. Humphreys

Here is another opinion for ERISA lawyers to read. The opinion is styled, Ricardo Rodriguez and All Others Similarly Situated v. Hartford Life And Accident Insurance Company http://www.txs.uscourts.gov/offices/houston-division. It is from the Southern District, Houston Division.

This is a motion to dismiss filed by Hartford and granted by the Court.

Rodriguez initiated this suit to recover disability benefits under an ERISA plan with Rodriguez’s employer, Walmart. Rodriguez seeks to enjoin Hartford from imposing a contractual limitations period on long-term disability claims shorter than that permitted by Arkansas law. The Policy provisions states:

Innocent Spouse, Lying Insured, Concealment / Fraud

July 25, 2017 | Mark S. Humphreys

Here is a 2003 case from the Amarillo Court of Appeals that deals with a situation where the spouse is innocent but an insured on the policy is committing fraud. The case is styled, McEwin v. Allstate Texas Lloyds.

Here are the facts.

The husband and wife were both named insureds on their homeowners policy. The husband set the house on fire but the wife was unaware of the arson and was not involved. The proof of loss form did not inquire into whether the insureds were involved and did not reference the origin of the fire. An examination under oath was taken from both insureds who both denied knowledge or involvement in the loss. The husband was subsequently convicted of the arson and the couple divorced. The insurer denied the claim presented by the wife who had received all interest in the insurance proceeds in the divorce and the wife filed suit. The insurer argued that denial was proper based on the concealment or fraud provision of the policy, which stated in part that “this policy is void as to you or any other insured, if you or any other insured … intentionally concealed or misrepresented any material fact or circumstance, made false statements or committed fraud relating to this insurance ….” The trial court found this provision to be unambiguous and held that the husband’s fraudulent misrepresentations, concealment and fraud voided the policy as to all insureds, thereby precluding the wife’s recovery for the fire loss. The wife claimed she was an innocent spouse and that all policy benefits would be her separate property pursuant to the divorce decree. She further asserted that Texas Insurance Code, Section 705.003 required that the insurer prove it waived or lost a valid policy defense based on misrepresentation in order to void the policy. The trial court disagreed and granted the insurer’s motion for summary judgment. This appeal followed.

Liability Insurance Settling When You Think They Are Wrong

July 23, 2017 | Mark S. Humphreys

Insurance lawyers often will hear a story that goes like this. – I was involved in an accident last year. The other guy was at fault. I let my insurance company know about the wreck and then I found out that my insurance company paid the other guy. Can I sue them for doing that?

This issue is addressed in a 2000, Dallas Court of Appeals opinion styled, Stevens Transport, Inc. v. National Continental Insurance Company, et al.

Here are the facts of the case: National Continental Insurance Company, Progressive County Mutual Insurance Company, and Progressive Casualty Insurance Company provided a truckers insurance policy to Stevens Transport, Inc. The policy included a right to defend and settle any suit involving damages resulting from an accident caused by the use of a covered automobile. The policy had a $250,000 deductible.

Insurance Case And Attorney Fees

July 22, 2017 | Mark S. Humphreys

Insurance lawyers know that in a first pary insurance claim lawsuit, a claim for attorney fees can be made. When the insurance company challenges the attorney fees claim of the insured, a natural response by the lawyer is to seek to get the information related to what the insurance company paid their lawyers in attorney fees.

Can that be done? The question was answered by the Texas Supreme Court in this recent 2017, opinion. It is styled, In Re National Lloyds Insurance Company, Wardlaw Claims Service, Inc., And Ideal Adjusting, Inc. Relators.

The discovery dispute in this mandamus proceeding arises in the context of multi-district litigation involving allegations of underpaid homeowner insurance claims. The issue is whether a party’s attorney billing information is discoverable when the party challenges an opposing party’s attorney fee request as unreasonable or unnecessary but neither uses its own attorney fees as a comparator nor seeks to recover any portion of its own fees. This Court held that under such circumstances, (1) compelling en masse production of a party’s billing records invades the attorney work product privilege; the privilege is not waived merely because the party resisting discovery has challenged the opponent’s attorney fee request; and (3) such information is ordinarily not discoverable.

Segregation Of Damages – Property Damage Claims

July 20, 2017 | Mark S. Humphreys

Lawyers who handle property damage claims learn real fast that the damages that exist on the property have to be properly segregated when making an insurance claim. What does this mean? The most common situation that arises is after a hail and wind storm. An insured discovers damage to his home and makes a claim. Nest, the insurance company says that all the damage is not covered. A law suit results.

The law is clear that an insured has the burden of proving what damages occurred, when they occurred, and how they occurred. Often times there is damage from a hail storm but some of the damage may have occurred in at a different time and in a different storm. When this happens, it it he responsibility of the insured, not the insurance company to explain and prove when and how the damage occurred.

This is discussed in a 2006, Northern District of Texas case, styled, Atwill v. State Farm Lloyds.

Funding Fraud Prosecutions In Texas

July 18, 2017 | Mark S. Humphreys

The Insurance Journal published a story on June 6, 2017, that is titled, Private Insurer Will No Longer Fund Fraud Prosecutions In Texas.

Thanks to new money and oversight from the Texas Legislature, the state can now pursue workers’ compensation fraud cases without relying on an unusual and much-criticized funding deal between a private insurance company and the Travis County district attorney’s office.

The fix comes nearly two years after The Texas Tribune and the Austin American-Statesman revealed the controversial relationship between Texas Mutual Insurance Co., the largest provider of workers’ compensation insurance in Texas, and government prosecutors in Austin. Under the exclusive funding deal, which stretched back at least to the early 2000s, the giant insurer paid millions to fund a four-person team to investigate and prosecute alleged “crimes committed against the company.”

Surplus Lines Insurance

July 16, 2017 | Mark S. Humphreys

Insurance lawyers will run across situation where the insurance company is a surplus lines insurance company.

Surplus lines insurance is dealt with, in part, it chapter 981 of the Texas Insurance Code. Specific points about surplus lines carriers are discussed throughout the insurance code.

The May 25, 2017, Insurance Journal ran a story dealing with surplus lines that was recently passed into law by the legislature and signed by Gov. Greg Abbot. The law takes effect on September 1, 2017. The title of the story is, Texas ‘Industrial Insureds” Surplus Lines Bill Signed Into Law.

You Have To Properly Word Pleadings Against An Insurance Adjuster

July 15, 2017 | Mark S. Humphreys

The Eastern District, Sherman Division, issued an opinion in May 2017, that, yet again illustrates how to NOT sue an insurance adjuster. The opinion is styled, Hidden Cove Park and Marina v. Lexington Insurance Company and Glenn Hollmuller.

Severe storms caused damage to Plaintiff Hidden Cove. Plaintiff sued defendants Lexington and the adjuster, Glenn Hollmuller, alleging the adjuster failed to properly conduct an investigation into the cause of loss, failed to issue timely payments, and wrongfully delayed or denied claims.

The lawsuit was filed in State District Court and for breach of contract, and various violations of the Texas Insurance Code Chapter 541 and Chapter 542.

Claims Against The Insurance Sales Agent

July 13, 2017 | Mark S. Humphreys

The Western District, San Antonio Division issued an opinion in a case that helps an insurance company keep his client’s case out of Federal Court by suing the insurance agent. The opinion is styled, The New World Baptist Church, LLC v. Nationwide Property and Casualty Insurance Company, Kevin P. McLoughlin, and Michael Robert Stull.

Plaintiff owns a church under a policy issued by Nationwide and sold by McLoughlin, an insurance agent. With respect to the sale of the policy, Plaintiff alleges that “Nationwide or its agent, McLoughlin, sold the policy, to Plaintiff. Nationwide and / or McLoughlin represented to Plaintiff that the policy included wind and hailstorm coverage for damage to Plaintiff’s business …. When Plaintiff negotiated the premium amount, McLoughlin represented that the policy Plaintiff purchased provided coverage for hail and wind losses. Unfortunately, Nationwide later represented that the policy sold by McLoughlin did not afford full coverage. Specifically, the policy sold by McLoughlin was not a full coverage policy, but rather, one with specific exclusions, …. McLoughlin’s violations of the Texas DTPA include causing confusion as to policy benefits, and representing that the policy had benefits or characteristics that it did not possess. … McLoughlin is liable to Plaintiff for common law fraud. … Specifically, McLoughlin represented to Plaintiff during the sale of the policy that the policy had benefits or characteristics it did not possess.”

Plaintiff suffered hail damage and made a claim for benefits and eventually a lawsuit was filed on the claim in State District Court and the was removed to Federal Court by the Defendants claiming that McLoughlin was improperly joined in order to defeat diversity jurisdiction.