Dallas Fort Worth Insurance Lawyer Blog

A Grand Prairie life insurance policy holder passes away. His beneficiaries live in Dallas, Fort Worth, Arlington, Weatherford, and Mansfield. Who has "standing", or the right to enforce the policy of insurance?
Uslegal.com defines "standing" as follows: Standing is the ability of a party to bring a lawsuit in court based upon their stake in the outcome. A party seeking to demonstrate standing must be able to show the court sufficient connection to and harm from the law or action challenged. Otherwise, the court will rule that you "lack standing" to bring the suit and dismiss your case.
As further general information, there are three constitutional requirements to prove standing:
1) Injury: The plaintiff must have suffered or imminently will suffer injury. The injury must not be abstract and must be within the zone of interests meant to be regulated or protected under the statutory or constitutional guarantee in question.
2) Causation: The injury must be reasonably connected to the defendant's conduct.
3) Redressability: A favorable court decision must be likely to redress the injury.
The Texas Insurance Code, Section 541.151, grants a cause of action to a person who sustains actual damages caused by another person engaging in any unfair insurance practices or deceptive trade practices.
To be able to assert a cause of action against an insurance company the person must be: (1) a "person" as defined by the statute; and (2) injured by another's unfair or deceptive acts. This is stated in the 2000 Texas Supreme Court case, Crown Life Insurance Company v. Casteel.
So who is defined as a "person"? Texas Insurance Code, Section 541.002(2), defines "person" to mean "an individual, corporation, association, partnership, reciprocal or interinsurance exchange, Lloyd's plan, fraternal benefit society, or any other legal entity engaged in the business of insurance, including an agent, broker, adjuster or life insurance counselor." It is important that the 541.151 language "engaged in the business of insurance" does not apply to the person bringing the lawsuit. This was an issue in the case, Ceshker v. Bankers Life Insurance Company, decided in 1978, by the Texas Supreme Court.
The categories of plaintiffs who have standing to sue under the statute include:
* insureds
* named benficiaries (this is the category of our beginning question)
* intended third party beneficiaries
* agents
* claimants who relied on representations by the insurer
What is important here is having an understanding of who the people are who can file a lawsuit against an insurance company for a wrong that may have been committed by an insurance company or one of its agents. An experienced Insurance Law Attorney is a valuable resource for getting this advice. The answer is not always obvious and is in fact at times difficult.

A few things for people in Dallas, Fort Worth, Grand Prairie, and Arlington to know. First, and most important would be to seek the help and advice of an experienced Insurance Law Attorney when having arguements with an insurance company. The second, is to use the Texas Department of Insurance web-site as a source of some information.
The Texas Insurance Code and the Deceptive Trade Practices Act (DTPA), which is found in the Texas Business & Commerce Code, were adopted together in 1973 by the Texas legislature as part of a package of reform legislation, are interrelated, and incorporate each other. Thus, as is stated by the Texas Supreme Court in the case, State Farm Life Insurance Company v. Beaston, in 1995, and in, Vail v. Texas Farm Bureau Mutual Insurance Company, in 1988; Courts construe the two statutes together.
Texas Insurance Code, Section 541.008, clearly states that the provisions of the code are to be liberally construed and applied to promote the underlying purposes which are to define and prohibit unfair and deceptive insurance practices.
In 1981, the Texas Supreme Court stated in, Cameron v. Terrell & Garrett, Inc., that the similar liberal construction mandate in the DTPA requires that the statute be given "its most comprehensive application possible without doing any violence to its terms." The Supreme Court has applied the same reasoning in insurance cases. This is stated in, Kennedy v. Sale, decided in 1985.
The statutory remedies found in the DTPA and the Insurance Code are cumulative of other remedies found in the law. Business & Commerce Code, Section 17.43, makes clear these cumulative remedies. Texas Insurance Code, Section 541.453, makes clear this principle also, citing, Waite Hill Services, Inc. v. World Class Metal Works, Inc., wherein the Supreme Court, disallowed double recovery of same damages for breach of contract and statutory violations.
An experienced attorney knows the proper way of seeking these damages. He will usually plead the case "in the alternative" listing all possible ways of recovery and seeking the highest amount legally possible, given the facts of the case.

Grand Prairie residents and residents of Arlington, Fort Worth, Dallas, Weatherford, and every other town in Texas should know a few things about holding insurance companies accountable. One is, they should always report wrongs to the Texas Department of Insurance. The other thing they should do is contact an experienced Insurance Law Attorney.
An attorney will discuss the fact that remedies for the wrongs committed by insurance companies are addressed in at least two areas of law in Texas; The Texas Insurance Code and the Texas Business & Comerce Code which contains the laws dealing with violations of the Deceptive Trade Practices Act (DTPA).
The Texas Insurance Code, Section 541.151(2) cross-references and prohibits conduct defined in The Business & Commerce Code, Section 17.46(b) of the DTPA. The latter statute applies to all types of consumer transactions, not just insurance, thus not all of the provisions are relevant to insurance issues. The sections that matter most in insurance cases are:
Section 17.46(b)(2) - causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services.
Section 17.46(b)(5) - representing that goods or services have ... benefits, ... which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he does not.
Section 17.46(b)(12) - representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law.
Section 17.46(b)(24) - the failure to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed.
The above Section 17.46 is known as the "laundry list" of claims by attorneys. Insurance business fits within these prohibitions because courts have held that insurance is a "service." The supporting law for this was declared in a 1984, Corpus Christi Courts of Appeals case, McCrann v. Klaneckey.
Insurance Code, Section 541.151(2), says that to sue for conduct in violation of one of the above provisions, the wronged person must show they relied on the act or practice to their detriment.
Here is a couple of examples:
The Texas Supreme Court case, Aetna Casualty & Surety Company v. Marshall, says "An insurer's breach of its contractual promise to pay future medical benefits was precisely the sort of conduct forbidden by Texas Business & Commerce Code, Section 17.46(b)(5), which prohibits misrepresenting "benefits." This case was decided in 1987.
Another Texas Supreme Court case, Royal Globe Insurance Company v. Bar Consultants, Inc., states, "Misrepresenting that the policy affords coverage it does not have violates Section 17.46(b)(12). This is a 1979 case.
It must be remembered that even though the Insurance Code and the DTPA both prohibit misrepresentations and nondisclosures, it can be important for a potential plaintiff to carefully choose the part of the statutes that best fit their exact situation and which is the easier to prove. This is where an attorney is most valuable.

Grand Prairie residents, residents of Arlington, Mansfield, Fort Worth, Dallas, Weatherford or anywhere else in Texas have the same insurance laws apply to each other. They all need to know there is a law that prohibits unfair settlement practices in the State of Texas.
Texas Insurance Code, Section 541.060, is titled "Unfair Settlement Practices". It is the law that prohibits these types of actions. The statute prohibits engaging in any of the following settlement practices with respect to a claim by an insured person or his beneficiary:
(1) misrepresenting to a claimant a material fact or policy provision relating to coverage at issue;
(2) failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim:
(a) with respect to which the insurer's liability has become reasonably clear; or
(b) a claim under one portion of a policy of a claim with respect to which the insurer's
liability has become reasonably clear in order to influence the claimant to settle
an additional claim under another portion of the coverage, unless payment under
one portion of the coverage constitutes evience of liability under another portion of
the policy;
(3) failing to provide promptly to a policyholder a reasonable explanation of the basis in the policy, in relation to the facts or applicable law, for the insurer's denial of a claim or for the offer of a compromise settlement of a claim;
(4) failing within a reasonable time to:
(a) affirm or deny coverage of a claim to a policyholder; or
(b) submit a reservation of rights to a policyholder:
(5) refusing, failing, or unreasonably delaying an offer of settlement under applicable first-party coverage on the basis that other coverage may be available or that third parties are responsible for the damages suffered, except as may be specifically provided in the policy:
(6) undertaking to enforce a full and final release of a claim from a policyholder when only a partial payment has been made, unless the payment is a compromise settlement of a doubtful or disputed claim;
(7) refusing to pay a claim without conducting a reasonable investigation with respect to the claim;
(8) with respect to a Texas personal auto policy, delaying or refusing settlement of a claim solely because there is other insurance of a different type available to satisfy all or any part of the loss forming the basis of that claim; or
(9) requiring a claimant, as a condition of settling a claim, to produce the claimant's federal income tax returns for examination or investigation by the person unless:
(a) a court orders the claimant to produce those tax returns;
(b) the claim involves a fire loss; or
(c) the claim involves lost profits or income.
Here are a couple of examples where courts have held that the insurance company violated the above section of the Insurance Code. The first is a 1988, Texas Supreme Court case. The style is, Vail v. Texas Farm Bureau Mutual Insurance Company. In this case Texas Farm Bureau Mutual Insurance Company denied a fire loss claim, based on an arson defense that the jury rejected. The court found that Texas Farm committed an unfair insurance practice by failing to act in good faith to settle once its liability became reasonably clear.
The second case, is a 2000 case, decided by the Texas Court of Appeals in Corpus Christi. The style of this case is, Colonial County Mutual Insurance Company v. Valdez. Here, the court ruled that proving Colonial County Mutual Insurance Company did not meet the deadlines in the Prompt Payment of Claims statute, Texas Insurance Code, Section 542.051 thru 542.061, may be proof to show Colonial County committed an unfair settlement practice by not meeting the "reasonable time" requirements in the above statute.
Whenever a person gets the feeling they are not being treated right by an insurance, they should seek legal help with an experienced Insurance Law Attorney. In fact, they should talk to an attorney any time they are having to make a claim against an insurance company.

Grand Prairie residents and residents of Arlington, Dallas, Fort Worth, Mansfield, Weatherford, and any other town or city in Texas have a right to have their insurance company and agent be honest with them. Misrepresentation of an insurance policy in Texas is illegal under the Texas Insurance Code and Texas Deceptive Trade Practices Act.
The Texas Insurance Code, Section 541.061, states that misrepresentation of an insurance policy in Texas is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance. The title of Section 541.061 is "Misrepresentation of Insurance Policy".
A violation of this section of the Texas Insurance Code is also a violation of the Texas Deceptive Trade Practices Act. As it relates to insurance misrepresentation, this section of the Insurance Code states that it is illegal to misrepresent features of an insurance policy by:
(1) making an untrue statement of material fact;
(2) failing to state a material fact necessary to make other statements made not misleading, considering the circumstances under which the statements were made;
(3) making a statement in a manner that would mislead a reasonably prudent person to a false conclusion of a material fact;
(4) making a material misstatement of law; or
(5) failing to disclose a matter required by law to be disclosed, including failing to make a disclosure in accordance with another provision of this code.
Some of this seems rather easy to understand and other parts of it can be quite confusing. One thing that should be obvious is that if you believe an agent or insurance company adjuster has mislead or misrepresented something about an insurance policy, you should contact an experienced Insurance Law Attorney. He would be able to discuss with you the representations made to you and your understanding of them and assist in seeing if you have a claim worth pursueing for violations of this section of the Insurance Code.
In 2003, the Court of Appeals of Texas, Austin, decided a case that discusses what constitutes "negligent misrepresentation". The style of the case is, New York Life Insurance Company; New York Life Insurance and Annuity Corporation and Michael Coffey v. Phillip M. Miller.
This case involves a life insurance policy issued by New York Life Insurance Company to the CEO of Mary Kay Cosmetics. The real dispute here was between the different agents who sold the policy. But what is important to the purpose of this article is that it set out the requirements for a claim for "negligent misrepresentation". The court said that what is needed to establish a claim for negligent misrepresentation is to prove that, without exercising reasonable care or competence, a representation was made in a transaction which contained "false information" for anothers guidance in his business affairs. That the misrepresentation caused the injured party to suffer a loss by relying on the information.
The biggest problem with the above New York Life case, is that it seems to make it much harder than it really is, to pursue a claim for a violation of Section 541.061. Of course this is another reason why legal counsel should be sought.

Someone in Grand Prairie has their insurance company pay a benefit for them. Or maybe the person is in Arlington, Dallas, Fort Worth, Mansfield, or out in Weatherford, Texas. When a claim is paid by a person's own insurance company, and the claim resulted from the fault of another person or company, then the person's own insurance company has a subrogation right. Well, what does that mean to you?
One web-site defines subrogation as the substitution of one person in the place of another with reference to a lawful claim or right. Subrogation commonly occurs in insurance matters, when an insurance company which pays its insured client for injuries and losses then sues the party which the injured person contends caused the damages.
There are three types of subrogation: equitable, contractual, and statutory.
Here is equitable subrogation as stated in the case, Lexington Insurance Company v. Gray, in 1989, by the appeals court in Austin, Texas. "Equitable subrogation arises by operation of law." While insurance contracts typically give an insurance company a right of subrogation, when it pays a loss, it is equitably subrogated to any right the policyholder may have against the person causing the loss, whether or not the policy provides expressly for subrogation.
This equitable subrogation is granted the insurance company because otherwise the policyholder would receive a double recovery, upon payment by the wrongdoer, which the law does not sanction. This was stated by the Texas Supreme Court in, Ortiz v. Great Southern Fire & Casualty Insurance Company, in 1980.
Contractual subrogation - also called "conventional" subrogation - arises by contract between the parties. Some, or most, insurance policies expressly provide a subrogation right to the insurance company and the policy language addresses its scope and limits.
The third kind of subrogation is called, statutory subrogation. Statutory subrogation is a right created by law, or written statute, and is governed by the terms of the statute under which it is claimed as a matter of statutory construction. This is discussed in the case, Texas Association of School Boards, Inc. v. Ward, by the Texas appeals court in Waco, in 2000.
An experienced Insurance Law Attorney can help with these subrogation issues. It is important that these issues are handled properly. Failure to properly handle these issues is actually a criminal offense as it relates to some government subrogation rights. At the least, failure to properly handle subrogation issues can be a financial hardship. There are large numbers of people who collect benefits from their own insurance company, then settle with the people who caused the loss without the assistance of an attorney. Later, they are contacted about these subrogation rights and find themselves in legal and financial trouble.

A Grand Prairie resident makes a claim to his insurance company for benefits. This could be a resident of Arlington, Dallas, Fort Worth, Weatherford, or any other city in Texas.
A question often comes up that goes like this, "How long does the insurance company have before they have to pay me?" The answer is "It depends." Sounds lawyerly, right. Well it does depend. It depends on a number of factors, including the type of claim, the circumstances surrounding the claim, the type of insurance and the type of insurance company. However, guidelines to go by, are laid out in the Texas Insurance Code, Section 542.051 thru 542.061.
This area of the Texas Insurance Code is know as the "Prompt Payment of Claims statute". It imposes certain deadlines for an insurance company to acknowledge, investigate, and accept or reject a claim. In situations where the insurance company violates the statute, they are punished by being liable for attorney's fees and an additional 18% per annum penalty on the amount of the claim. These penalties are set out in Section 542.060.
The 18% penalty described above along with responsibility for attorney's fees is substantial in and of itself but the next section, Section 542.061, says that other remedies are also available and that these other penalties are in addition to the penalty and attorney's fees. These penalties are found in the section of the Business & Commerce Code, dealing with violations of the Texas Deceptive Trade Practices Act and in the Texas Insurance Code, for violations by the insurance company related to unfair methods of competition and unfair or deceptive acts or practices found in Section 541.051 thru 541.061.
The Prompt Payment of Claims statute sets out the steps an insurance company must follow when presented with a claim by one of its policy holders. To recover a penalty under this statute, the insured person must establish that: (1) the insured had a claim under an insurance policy; (2) the insurance company is liable for the claim; and (3) the insurance company has failed to comply with a requirment of the Prompt Payment of Claims Act. This has been spelled out in the Texas Supreme Court case, Allstate Insurance Company v. Rhonda Bonner, decided in 2001.
If someone feels they are being violated by the insurance company as it relates to having their claim handled promptly, they should do two things. First, get in touch with an experienced Insurance Law Attorney. Do not be concerned with costs at this point. Most attorneys will talk to you at an initial conseltation at no charge and then, if further action is needed, the insurance company is going to have to pay for the attorney's fees, if they are at fault. And second, contact the Texas Department of Insurance and file a complaint. Most companies consider these very serious. They do not want to be investigated by the Texas Department of Insurance. Plus, this helps set up some relevant issues for a lawsuit if the matter is not resolved properly.

It would be interesting to see if what happened out west, would happen here in Texas, with a resident of Grand Prairie, Dallas, Arlington, Fort Worth, Mansfield, or Weatherford. It probably depends on your insurer.
The Los Angeles Times ran an article on March 15, 2010, about a health insurer in California. The title of the article is, "Anthem Blue Cross Should Reimburse California Man For Transplant, Jury Says".
This article tells about a Los Angeles jury finding that Anthem Blue Cross (Anthem) should cover the cost of an out-of-state liver transplant that a California man paid for after Anthem Blue Cross balked at paying. The liver transplant cost $206,000.
The facts in the story said that the California man who needed the transplant, had already been approved for a liver transplant by Anthem, but he had been put on a waiting list by the UCLA Medical Center. While on the waiting list, the man became gravely ill and fearing for his life, decided to have the operation in Indiana, where the wait times are far shorter than in California.
The jury panel, which included at least three members who had Anthem medical coverage, voted that the company had breached its contract with the man by not paying for the liver transplant simply because he had the surgery out-of-state.
As a continuation of this verdict, there is a hearing next week where the man's attorney will seek to broaden the jury's verdict under the California's unfair competition law, to allow Anthem's members to pursue organ transplants at hospitals nationwide, that do business with Anthem's parent company, Wellpoint Inc., the nations largest health insurer.
It is interesting that Anthem in a statement acknowledged that the transplant should have been approved despite the fact that the health insurance contract states that transplants must be performed only at California Centers of Excellence.
In the jury verdict, the California man was also awarded attorneys fees which could far exceed the $206,000 verdict. It is noteworthy that the man was offered an amount in excess of the verdict prior to the trial, which he turned down. The man and his attorney were seeking punative damages against Anthem, which the jury refused to find.
The man claims that the lawsuit was not about money. He pledged before the trial to donate any winnings to liver research. His goal was to get Anthem to stop denying out-of-state transplants.

Regardless of what kind of insurance you have purchased or where in Texas the purchase occurred, the same law applies. So residents of Grand Prairie, Arlington, Mansfield, Dallas, Fort Worth, or Weatherford, all get treated the same.
This will be the first part of a several part writing on "unfair insurance practices".
Chapter 541 if the Texas Insurance Code, is where the definition and prohibition for unfair and deceptive insurance practices is found. These sections of the Insurance Code are Sections 541.001 thru 541.061, Section 541.151 thru 541.162, and 541.453.
Unfair insurance practices violations are also a violation of the Texas Deceptice Trade Practices Act (DTPA). DTPA violations are found in the Texas Business & Commerce Code, Section 17.46. This list is long and is also known as the "laundry list" of violations subject to civil prosecution.
The Insurance Code statutes listed above allow a private cause of action by a wronged person who has sustained actual damages caused by another's engaging in any act or practice that is defined as an unfair method of competition or unfair or deceptive act or practice in the business of insurance, or defined as an unlawful deceptive trade practice. This is set out in statute in Section 541.151. The usual violators or this section would be insurance agents and insurance adjusters.
The definitions of unfair and deceptive practices are found in two places: (1) Texas Insurance Code, Sections 541.051 to 541.061; and (2) Business & Commerce Code, Section 17.46(b), also known as the DTPA.
The Insurance Code sections prohibit the following:
1) misrepresentations and false advertising of policy contracts;
2) false information and advertising generally;
3) defamation of insurers or persons engaged in the business of insurance;
4) boycott, coercion, and intimidation in the business of insurance;
5) false financial statements;
6) stock operations and advisory board contracts;
7) unfair discrimination;
8) rebates;
9) deceptive names, words, symbols, devises, and slogans;
10) unfair settlement practices; and
11) misrepresentation of insurance policies.
Of these listed prohibitions, the most commonly used by experienced Insurance Law Attorneys are those related to unfair settlement practices and misrepresentations of insurance policies. Certainly the others apply in some situations and each case has to be looked at closely.

Everybody in the Dallas, Fort Worth area, including Grand Prairie, Arlington, Mansfield, and out in Weatherford have some form of health insurance. The majority of this insurance is private plans.
The Texas Supreme Court decided a case in 1994 that still has relevance today. The style of the case is, Union Bankers Insurance Company v. Thomas D. Shelton and Ann Shelton. The issue in the case dealt with misrepresentation in the insurance policy application.
Here are the facts. In April 1988, Mr. Shelton applied to Union Bankers Insurance Company (Union) for a health insurance policy. Mr. Stone completed the application with the agent's assistance. In response to certain medical history questions, Mr. Shelton indicated that he had never been treated for, and had no indications of, any disorders of the skeletal or muscular systems. Union subsequently issued a policy. Seven months after the policy was issued, Mr. Shelton underwent a total hip replacement to correct necrosis of his left hip joint. He then filed a claim for benefits. Union denied the claim, saying that the necrosis was an undisclosed pre-existing condition.
The Sheltons sued Union and its agent, alleging breach of contract, violations of the Texas Deceptive Trade Practices Act and the Texas Insurance Code, and breach of the duty of good faith and fair dealing. A jury trial resulted and failed to find that Mr. Shelton intended to deceive Union by misrepresenting his condition. The lower appeals court found that Union had breached its contract as a matter of law and remanded the case to the trial court for further findings concerning whether Union breached the duty of good faith and fair dealing in connection with its cancellation of Mr. Shelton's policy.
Union argued that Texas Insurance Code, Section 1201.208, allows an insurance company to cancel a health insurance policy within two years from the date of its issuance on the basis of an insured's innocent misrepresentation in the application for insurance. Union also pointed to policy language that allowed them to do this.
In a further appeal, the Supreme Court pointed out that, Texas Insurance Code, Section 1201.272, says that a misrepresentation in an application for any type of insurance must be material in order for an insurance company to avoid the policy. The idea that an insured's intent to deceive is likewise required is well established in Texas law.
The Supreme Court stated, "It is now settled law in this state that these five elements must be pled and proved before the insurer may avoid a policy because of misrepresentation of the insured: (1) the making of the representation; (2) the falsity of the representation; (3) reliance thereon by the insurer; (4) the intent to deceive on the part of the insured in making the same; and (5) the materiality of the representation."
All of the cases in Texas properly stand for the proposition that, in Texas, an insured's intent to deceive must be shown in order for an insurance company to successfully raise a defense of misrepresentation on the basis of a false statement made by the insured in the application for any type of insurance.
The Supreme Court ruling was - "We hold, therefore, that an intent to deceive must be proved to cancel a health insurance policy within two years of the date of its issuance when the cancellation is based on the insured's misrepresentation in the application for insurance."
When someone has their health insurance policy cancelled within two years of it being obtained, or for that matter, anytime after it has been obtained, it is important that an experienced Insurance Law Attorney be consulted to make sure the cancellation is proper. Insurance companies often rely on the reality that most people will not truly fight the decision the insurance company makes. Most people will call the company or their agent and complain but will not take any action beyond filing some sort of complaint.

How an insurance policy is interpreted by Texas Courts is important. This is true whether you live in Grand Prairie, Arlington, Weatherford, Fort Worth, Mansfield, Dallas, or anywhere else in Texas.
A commercial insurance policy was recently interpreted by the United States District Court, Southern District of Texas, Houston Division. The style of this case is National Casualty Insurance Company v. Orion Transport, Inc. and Silvia Brune, Individually and as Representative of the Estate of James Brune, Deceased and Cody Brune and Cory Brune. The case was decided on February 22, 2010.
The undisputed facts in this case are that on February 4, 2009, Orion Transport, Inc. (Orion) hired welder, James Brune, to perform maintenance on its 1977 Heil Tanker Trailer. While Brune was performing the requested maintenance the trailer exploded injuring Brune, who later died of his injuries. The Brune estate and his survivors sued Orion and ETOCO. L.P., and ETOCO Management, LLC. in State District Court. National Casualty Insurance Company (National) brought this instant case in Federal District Court asking the court to rule that National had no duty or obligation under its policy of insurance with Orion to defend Orion or to pay any claims against Orion.
The court spent considerable time discussing procedural issues in the lawsuit and then addressed the basis for the lawsuit. The court restated well established law in this area that under a typical insurance policy an insurance company assumes two distinct responsibilities: one, the duty to defend and, two, the duty to indemnify. To make this clear, the duty to indemnify protects the insurance company customer from payment of damages they may be found legally obligated to pay, while the duty to defend protects the same customer against the expense of any lawsuit seeking damages. What is important here is that the insurance company owes neither duty when the type of claims made in a lawsuit are specifically excluded from policy coverage.
To determine whether or not National had a duty, the court uses the "eight corners" rule. The first four corners are the allegations in the papers related to the lawsuit and the second four corners are the words found in the insurance policy. The insured, or in this case, Orion, bears the initial burden of showing that coverage exists, and once established, the burden shifts to the insurer to show that policy exclusions apply.
In this case, it was alleged in the lawsuit papers that Orion used its Heil Tanker Trailer to haul salt water from a well owned by the Etoco defendants. It is also alleged that the salt water contained dangerous and explosive hydrocarbons. That Orion hauled the salt water to a disposal well and purportedly emptied the trailer. The Brunes alleged that a potentially explosive residue remained in the trailer. That the trailer was taken to Orions place of business where Brune was asked to do repairs and maintenance. While performing this work the trailer exploded.
National denied coverage and pointed to a Pollution Exclusion in the policy. This exclusion spoke to pollution and pollutants, and whether or not under the policy the pollutants were being stored.
An arguement over whether or not the salt water with hydrocarbons was a pollutant was resolved in Nationals favor. The next arguement was over whether or not the pollutant in the tanker was being "stored" in the tanker as that term is defined in the National insurance policy. For guidance the court looked to Webster's Ninth New Collegiate Dictionary. Webster's defined stored as "for preservation or later use or disposal." The court decided that was not the situation in this case and ruled that the Pollution Exclusion did not apply.
An experienced Insurance Law Attorney is needed for guidance in these situations. A complete reading of this case gives insight into how courts reach their decisions in these cases. An attorney can read the policy at issue in a situation and apply the reading of that policy to the facts and discuss likely outcomes.

The insurance company in this headline does business in all of Texas, including Weatherford, Grand Prairie, Arlington, Mansfield, Fort Worth, and Dallas. This story originates out of Ohio.
The Columbus Dispatch published an article on March 10, 2010 titled, "Nationwide Lawsuit Settled For $6 Million". The lawsuit was a case filed in the Franklin County Common Pleas Court in 2005. In the lawsuit, it is alleged that Nationwide collected more than the maximum annual premiums outlined in their term-life insurance policies. This atleast is what court documents say. The allegations include accusing Nationwide of fraud and violating State of Ohio consumer protection laws. More than likely, these Ohio consumer protection laws are similar in many ways to the Texas consumer laws found in the Texas Business & Commerce Code and known as the Texas Deceptive Trade Practices Act.
A Nationwide spokeswoman declined commenting on the case and the settlement. Further, Nationwide, in agreeing to the settlement, is not admitting to any wrongdoing. Nationwide claims to be entering into the settlement agreement to avoid any additional expense, inconveniences, burdens, and distractions associated with the lawsuit.
The Columbus Dispatch article says the agreement has Nationwide paying out $6 million dollars as a settlement. It also says that the number of current and former Nationwide term-life insurance customers who are receiving the settlement is 230,000. The article says the average payout is $47. $47 times 230,000 policy holders equals $10,800,000. It is also noteworthy that there is no mention of the attorneys fees involved in the settlement which is likely in the millions nor is there any mention of the cost involved which could reasonably be at or near a million dollars.

The first thing a person wants to know who has insurance is; Does my policy protect me? This is true no matter if you are living in Grand Prairie, Fort Worth, Arlington, Mansfield, Dallas, or out in Weatherford, Texas.
The United States District Court, Southern District, Corpus Christi Division, had that decision to make in a case styled, National Fire Insurance Company of Hartford, et, al. v. Radiology Associates, LLP, et al., and issued an opinion on March 3, 2010. In this case, a couple sued Radiology Associates, LLP. (Radiology) and one of their employees, Brian K. Riley. Radiology had three insurance companies providing policies for them and Radiology presented the lawsuit to all three companies to provide a legal defense and settle any potential claims.
The facts in the case were that, Mrs. Pecore, a patient of Radiology, was to have a trans-vaginal ultrasound. It was alleged that during this exam, Riley inserted a finger into Mrs. Pecore's vagina without permission and that Radiology should have informed Mrs. Pecore she had a right to have a chaparone present during the exam and that if a chaparone had been present the "assault" to Mrs. Pecore would not have occurred. There was nothing about the precedure involving the trans-vaginal exam that would have called for Riley to have committed the act he is accused of commiting.
This lawsuit between Radiology and its three insurers was a dispute over whether or not the type of claim being asserted by the Pecores was the type of claim covered by any of the policys of insurance.
The three insurance companies were, National Fire Insurance Company of Harford (National), Continental Casualty Company (Continental), and American Physicians Insurance Company (API). The court dismissed the claims against National and Continental but allowed the lawsuit to proceed against API.
In determining the insurance companies duty to defend the lawsuit being asserted by Mr. and Mrs. Pecore, the court cited Texas law, stating "The duty to defend arises when the facts alleged in the complaint, if taken as true, potentially state a cause of action within the terms of the policy". They also said that an insurance company is obligated to defend one of its insureds as long as the complaint alleges at least one cause of action within the policy's coverage. And that the duty to defend is determined by examining the latest amended pleading upon which the insurance company bases its refusal to defend the lawsuit.
The Pecores claim was an assault or wrong committed in the course of medical treatment. These types of wrongs were specifically excluded from coverage in the National and Continental policies. These medical treatment causes of action were not specifically excluded under the type of coverage that may be covered in the API insurance policy.
The court pointed out that even though API is judged to have a duty to provide a defense for Radiology, that does not mean they will have a duty to pay any claim or judgement against Radiology.
This case is a good read for trying to understand the distinction in a claim that has potential medical malpractice implications and one that has assault allegations together in the same case.

Grand Prairie policy holders, Arlington, Fort Worth, Weatherford, or anybody else in Texas who has a policy with underinsured motorist coverage (UIM) should be aware of a recent case decided in Texas.
The case is Mid-Century Insurance Company of Texas v. Synthia McClain. This case was an appeal from the 42nd District Court in Taylor County, Texas. The appeal was heard by the Eleventh Court of Appeals and an opinion was issued on March 11, 2010.
The facts are pretty simple. Synthia was injured in a wreck caused by Becky Morey. Becky had insurance which paid to Synthia the policy limits of $20,100. Synthia, then made a claim against her own insurance company, Mid-Century Insurance Company of Texas (Mid-Century), for UIM benefits. Synthia's policy with Mid-Century provided UIM benefits of $20,000. Mid-Century had already paid the personal injury payments limits of $2,500 and Mid-Century made an offer of $1,500 additional money. Synthia then filed this lawsuit to recover the full measure of her damages.
A jury found that Becky's negligence was the cause of the accident and awarded Synthia $116,726. Mid-Century then offered its limits of $20,000. This appeal discusses the requirements for recovery of UIM benefits from a legal perspective.
The long established law in Texas is that a plaintiff seeking recovery against an insurance company for UIM benefits resulting from the negligence of an UIM motorist must prove and plead that, at the time of the accident, the plaintiff was protected by UIM coverage. In other words, the policyholder must prove the existence of the insurance contract between the policyholder and the insurance company.
Next, the policyholder must prove that the policyholder is entitled to recover under the UIM policy by establishing the other person was liable and must prove the amount of damages resulting from the other persons actions. Until this is done, the insurance company is under no contractual duty to pay benefits. Finally, the claimant must prove the atfault driver was underinsured.
Synthia's attorneys, in this lawsuit and appeal tried to shift some of the burdens of proof in this case to Mid-Century. Synthia's attorneys argued that Mid-Century was required to plead, as affirmative defenses, the policy limits and any offset such as the credit Mid-Century would get for the policy limits of Becky and the amounts Mid-Century had already paid under the personal injury protection benefits portion of the policy. And since Mid-Century did not do as Synthia's attorneys argued they should have done, that Mid-Century was responsible for the full amount of the judgement, plus interest and costs.
There were other issues in the case dealing with how the jury reached amounts dealing with lost wages and amounts for future medical expenses. The court of appeals found in favor of Mid-Century on these issues.
The more important part of this case relates to how an insurance policyholder who has UIM benefits on their policy has to prove their case in order to legally recover these benefits. It is unfortunate but also a reality that an insurance company can easily force a policyholder to seek the help of an experienced Insurance Law Attorney in order for the policyholder to protect their rights.
In conclusion the court re-stated what must be proven in order for a policyholder to be entitled to recover UIM benefits - (1) that the policyholder had UIM coverage: (2) that the other driver was at fault and caused the damages being sought; and (3) that the other driver was, in fact, underinsured. All of this may initially seem easy, but as the parties involved in this case discovered, it is not always as easy as it seems.

Homeowners in Grand Prairie, Arlington, Weatherford, Fort Worth, Mansfield, Dallas, and the rest of the State of Texas, need to have a basis understanding of homeowners policies when it comes to buying homeowners insurance. There a several different types of homeowners policies available for the Texas consumer.
Because of "form deregulation", insurance companies now may offer approved alternative policies. There are differences in coverage, which may be significant. These different forms have been the source of much confusion for consumers looking to purchase a homeowners policy. A tool for comparing coverage is provided by the Office of Public Insurance Counsel. This a good resource for consumers to look and compare the various policies being offered by insurance companies. It is a good way to make sure apples are being compared with apples and not with oranges.
The most common policy is the Texas Homeowners Policy -- Form B (HOB). This article is briefly discussing only the HOB.
The HOB policy is an "all-risks" policy with respect to any loss on the dwelling and a "named peril" with respect to any loss to the contents. A note of caution here: Some insurance companies label their policies "all risk", when in fact they are not. Texas courts have been reluctant to hold the insurance companies who do this, liable for violations of the Texas Deceptive Trade Practices Act (DTPA). This topic is discussed in the case, Muniz v. State Farm Lloyds, a 1998, San Antonio Court of Appeals.
Property coverage in the HOB policy is separated into Coverage "A", which insures the house, and Coverage "B", which insures the contents. Separate structures, such as garages and sheds are also insured under Coverage "A".
Contents, or personal property, under Coverage "B" can be expensive and each policy needs to be read to see the different ways these contents are covered. One relevant part of Coverage "B", is understanding the limits of coverage for certain items, such as jewelry, cash, guns, etc.
A part of each policy is going to list items or types of items that are not covered in the event of a loss. Exclusions under Coverage "B", usually includes things like animals, mowers, golf carts, trailers, etc.
Another distinction between Coverage "A" and "B" is that "A" covers losses as the result of all risks unless specifically excluded. "B" only covers twelve specific causes of loss. The Texas Department of Insurance usually has an example of a HOB policy on its web-site.
The HOB Policy contains fifteen exclusions. A few of these include "inherent vice" which is loss from internal decomposition, losses from mold and fungus, foundation settlement, cracking, bulging, shrinking, etc. With these types of losses it is important to get a copy of your policy and contact an experienced Insurance Law Attorney. He or she should be able to read the policy and compare the wording in the policy with the actual facts occurring with the house and determine whether or not the policy should cover the damages.
An HOB policy covers losses that are incurred while the policy is in force. This is the case even if the loss is not discovered until after the policy has expired. Relevant here is what is called in Texas law as the "Fortuity Doctrine". Fortuity is an inherent requirement of all risk insurance policies. This concept is discussed in the case, Two Pesos, Inc. v. Gulf Insurance Company, which is a 1995 case decided by the Texas Appeals Court in Houston, 14th District.
Sometimes a loss to a dwelling occurs from two events. One of the events is covered by the policy and the other is not. The question then is, How is that handled? The answer seems to be in Texas Insurance Code, Sections 554.001 to 554.002. These sections, adopted in 2005, seem to put the burden on the insurance company of proving how the division of the loss is allocated. Prior to these Insurance Code sections, the law seemed to put the burden of proof on the customer.
The HOB policy defines what a policyholder's duties are after a loss and for the most part are common sense requirements. Where this part gets dangerous is when the insurance company starts questioning the policyholders truthfulness or culpability in the loss. Regardless of what may have actually happended, this is where legal help needs to be sought.
Finally, the HOB policy is going to have an appraisal clause in it. It's intent is to serve as a contractual form of alternative dispute resolution in the event of a dispute between the insurance company and their customer. There are some important legal requirements here that only an experienced Insurance Law Attorney is going to be able to effectively work around.

Anybody who has bought a house in Grand Prairie, Arlington, Fort Worth, Dallas, Mansfield, Weatherford, or anywhere else in Texas has probably had to buy a title insurance policy on the house. This is always a requirement when a house is financed and only cash purchasers sometimes do not buy this coverage.
Texas Lawyer magazine publishes a book called Texas Insurance Law Digest. A lot of attorneys who practice insurance law will have this book in their library for quick reference. The book is over 800 pages and the pages are 8 1/2 by 11. In other words a lot of information. The section dealing with Title Insurance is only two pages and cites a total of four cases.
For someone interested in what can be done when a title insurance company does something wrong the first case listed is probably a good example. This case is, Chicago Title Insurance Company v. McDaniel. The case was decided in 1994 by the Texas Supreme Court.
Here are the facts: The McDaniels purchased a home from Couch Mortgage and a title insurance policy from Chicago Title Insurance Company (Chicago) at the time of the home purchase. The policy guaranteed that the McDaniels had "good and indefeasible title to the estate or interest in land described." Later, the McDaniels received notice from the Bankruptcy Trustee of Couch Mortgage telling the McDaniels that the home was subject to a pre-existing lien. The McDaniels sued Chicago for violations of the Texas Deceptive Trade Practices Act (DTPA) based upon Chicago's representations regarding title to the home. Chicago asserted that it had discharged its obligations under the title insurance policy by paying the McDaniels losses and that it could not be liable under the DTPA because it made no misrepresentations regarding the status of title.
The Court ruled that Chicago had made no misrepresentations. They said the title insurance policy is a contract to indemnify the insured and the only duty imposed is to indemnify the McDaniels against losses caused by defects in title. In other words, pay the money they lost. Issuance of a title policy does not constitute a representation regarding the status of the property's title. Rather, it constitutes an agreement to indemnify against losses caused by any defects. The Court stated, there were no allegations of affirmative representations or breach of duty under the contract. As a result, Chicago wins and the case was ruled against the McDaniels.
This case does not mean that the McDaniels got nothing. It means the McDaniels got nothing beyond being reimbursed for the losses they incurred in purchasing the property that had a lien on it. A person is going to be required to get an experienced Insurance Law Attorney involved when there is a problem with a title policy. Even though the claim may be limited against the title policy that does not mean there are not other ways to make a recovery, depending on the facts.

Whether you live in Weatherford, Texas, Grand Prairie, Arlington, Mansfield, Dallas, or Fort Worth, the answer to the above would be the same. Texas insurance law is going to apply to all residents of Texas, no matter where in the state they live.
Of course there is no one answer to the above title. The answer depends on the policy and the fact situation. A case decided in 1992, gives some insight into a scenario that is fairly common across the state.
The case, Margot Bergensen v. Hartford Insurance Company of the Midwest and Harry Bergensen, was decided by the 1st Court of Appeals in Houston, Texas. Here are the relevant facts.
Hartford Insurance Company of the Midwest (Hartford) issued a policy to the Bergensen's that was in effect for the relevant period of time. The policy provided liability coverage of $100,000 and underinsured coverage. Margot Bergensen (Margot) was severly injured in an accident in her covered automobile that was driven by her husband, Harry Bergensen (Harry). Harry was at fault and Hartford paid Margot $100,000 under the liability portion of the policy. Margot then made a claim against Hartford for coverage through the underinsured portion of the insurance policy with Hartford and Hartford denied the claim for the underinsured benefits.
The relevant portions of the policy, which are the same in most but not all policies of insurance in Texas, read as follows:

We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person, or property damage, caused by an accident. The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.
...
"Covered person" as used in this Part means: 1. You or any family member:
"Uninsured motor vehicle" means a land or motor vehicle...
4. Which is an underinsured motor vehicle. An underinsured motor vehicle is one to which a liability bond or policy applies but its limit of liability:
a. is less than the limit of liability for this coverage; or
b. has been reduced by payment of claims to an amount less than the limit of liability for this coverage.
However, "uninsured motor vehicle" does not include any vehicle...
1. Owned by or furnished or available for the regular use of you or any family member.

The "does not include" language two lines above here is relevant. The court in its opinion stated, "The underinsured motorist provision of the contract explicitly states that it does not apply to vehicles "owned or furnished or available for the regular use of you or any family member."
The court went on to say that "the negligence of others" language in the insurance policy refers to the negligence of persons who are "not" members of the policyholder's family, and so, does not apply to her husband, Harry.
The court in conclusion said that the Bergensens contracted with Hartford for a policy which provided a maximum of $100,000 in liability coverage. The underinsured portion of the policy was intended to protect the Bergensens from "other" motorists who failed to have adequate coverage "on their vehicles", not to protect the Bergensens from their own failure to maintain adequate liability coverage.
This case is still good law and has been cited as authority in two Fort Worth Court of Appeals cases. One on 12-18-08 and another on 7-30-09. The Houston Court of Appeals in Houston cited it again on 4-17-08.
There are exceptions to the ruling in these cases. An experienced Insurance Law Attorney would be able to look at the facts in a case and apply the current law and give a good opinion as to what should be done any particular case.

Substantially less than half the automobile drivers in Mansfield, Dallas, Fort Worth, Arlington, Grand Praire, Weatherford, or any other place in the State of Texas carry Personal Injury Protection (PIP) benefits on their automobile insurance policy. Dollar for dollar it is one of the more expense insurance benefits a person can purchase.
PIP covers losses for medical bills and lost wages that are incurred for incidents arising out of the use of a covered automobile. This requirement is set out in the Texas Insurance Code, Section 1952.151. It is required to be offered on all automobile insurance policies issued in the state of Texas. This requirement is found in Section, 1952.152.
This purpose of this article is to help the reader understand Texas Insurance Code, Section 1952.155 and to tell the reader that the law in this section is enforced by holdings in the Texas Supreme Court. It states some of the Texas law dealing with PIP. The title of this section is, "Benefits payable without regard to fault or collateral Source; Effect on Subrogation."
The section starts out:
(a) The benefits under coverage required by this subchapter are payable without regard to:
(1) the fault or nonfault of the named insured or recipient in causing or contributing to the accident; and
(2) any collateral source of medical, hospital, or wage continuation benefits.
Ok, what does (1) and (2) mean? One means that PIP benefits are payable no matter who is at fault in causing the loss. So regardless of who caused the injury, you or some other person, PIP will pay benefits. Number two means that the PIP benefits are payable even if you already had a medical benefits plan pay your bills or a hospital benefits plan already paid the bill. And it pays lost wages even if you had some other disability or other type of wage loss plan pay the lost wages. Both these essentially mean that a person could legally get a "double recovery" This is the only place in Texas law where this is a possibility.
Next, this section says:
(b) Except as provided by Subsection (c), an insurer paying benefits under coverage required by this subchapter does not have a right of subrogation or claim against any other person or insurer to recover any benefits by reason of the alleged fault of the other person causing or contributing to the accident.
This part (b) means that if you receive PIP benefits and it is determined that some other person was at fault for causing the injury or loss, then your the insurance company cannot attempt to recover from the other person or his insurance company any monies that have been paid to you.
The last section says:
(c) An insurer paying benefits pursuant to this subchapter, including a county mutual insurance company, shall have a right of subrogation and a claim against a person causing or contributing to the accident if, on the date of the loss, financial responsibility as required by Chapter 601, Transportation Code, has not been established for a motor vehicle involved in the accident and operated by that person.
So this section (c) is an exception to (b) in that if another person causes the accident, and the other person does not have the liability insurance required under Texas law, then the insurance company providing the PIP benefits can pursue the at fault person for the monies paid on the PIP claim.

Grand Prairie, Arlington, Mansfield residents and residents of Dallas, Fort Worth, and Weatherford who have uninsured and underinsured motorist coverage on their automobile insurance policy should fill good about a case decided by the Texas Supreme Court in 1974. The case is styled, Raul C. Franco et ux. v. Allstate Insurance Company.
The facts of this case are fairly short and simple. Raul C. Franco and his family (Franco) had uninsured motorist benefits in an insurance policy they carried with Allstate Insurance Company (Allstate). An accident occurred wherein Franco suffered injuries and his daughter was killed. The accident was caused by the negligence of an uninsured driver. Franco made a claim for benefits from Allstate and eventually three years later sued Allstate.
Allstate denied the claim and asked the court to dismiss the lawsuit. Allstate asserted that a claim for the wrongful death of his daughter and the claim for his injuries, were both governed by a two year statute of limitations. Allstate claimed that because the two years had passed, it was too late for Franco to be seeking recovery.
Franco asserted that the policy of insurance with Allstate was a contract and that contracts are governed by a four year statute of limitations. The statute concerning limitations for a contract is currently found in the Texas Civil Practice & Remedies Code, Section 16.004. It says a lawsuit for breach of contract must be filed within four years after the cause of action for the breach occurs.
The statute of limitations for a personal injury is two years. This statute governing the limitations period for personal injury is found in the Texas Civil Practice & Remedies Code, Section 16.003. This same statute also governs time limits for filing a wrongful death claim.
Allstate's arguement was that Franco could not file a claim against the uninsured driver after two years because the statute of limitations for a lawsuit against the uninsured driver had expired. In this regard, Allstate was right. As an extension, since the uninsured driver could not be sued, Allstate claimed it could not be sued.
The Texas Supreme Court disagreed. The claim against Allstate was a claim on the contract of insurance between Franco and Allstate. Thus, they ruled that the limitations period was four years, not two.
It is important that an experienced Insurance Law Attorney be consulted in these matters. The reason, is there are different beginning points for when the statute of limitations begins to start on a claim. There can be situations where well over four years has expired and a claim can still be made against an insurance company. Each case has its own specific set of facts that have to be looked at in light of the law to fully understand the rights a person may have in a situation.

Grand Prairie residents beware; Weatherford residents beware; Arlington, Mansfield, Dallas, Fort Worth residents beware. Here is a case that makes you angry at the insurance company when you get into the details of how this person was treated by her insurance company and those associated with them.
The case is kinda old, decided in 2001. The style of the case is long, Lois Jones v. Ray Insurance Agency a/k/a Azteca Insurance and / or Alamo Insurance, and Collision Clinic, Inc., State & County Mutual Fire Insurance Company and Harbor Insurance Managers. It was decided by the Court of Appeals of Texas, Corpus Christi.
The facts of the case are long, but not really complicated. Lois Jones purchased a new 1998 Pontiac and purchased a State & County Mutual Fire Insurance Company insurance policy (State & County). This policy was purchased from the agent, Ray Insurance Agency a/k/a Azteca Insurance and / or Alamo Insurance (Ray). The policy administrator was Harbor Insurance Managers (Harbor). When purchasing the policy, Jones informed the agent that her sister lived with her, and was advised by the agent, that would not be a problem, and that as long as she paid her premiums on time she would have insurance. The policy with State & County excludes coverage for anyone residing with Jones age fourteen or over unless listed. Ms. Jones paid the November and December premium payments. The policy was to be effective from November 7, 1997 (the date of purchase) thru May 7, 1998.
On December 28, 1997, Jones Pontiac was severely damaged when hit by another auto driven by an uninsured drunk driver. Her Pontiac was towed to Collision Clinic, Inc. (Collision) The day after the accident, she was told she was fully covered for the accident. Less than thirty minutes later she was phoned and told the policy cancelled because she had not excluded her sister as a driver. Later she was told the cancellation was because she had not provided a copy of her driver's license. State & County and Harbor allege the cancellation was mailed on November 25, 1997, but Ms. Jones denies ever receiving the letter. The letter allegedly advised Ms. Jones that her policy would cancel on December 4, 1997. During this dispute, Collision foreclosed on the Pontiac for repairs that had been performed despite the fact that Jones had never been given a repair estimate. Collision's foreclosure caused Jones bank to foreclose and repossess the Pontiac even though she had continued to make her monthly payments. State & County never returned Jones December premium payment, which had been made on December 1, 1997, or any part thereof.
There are many issues presented in this case that are related to laws found in the Texas Insurance Code. Texas Insurance Code, Section 551.001, deals with how cancellations are to be handled with personal automobile insurance policies. In this case, the facts appear to be that the required ten day notice of cancellation was not properly handled in that the notice of cancellation was allegedly mailed at such a time that the earliest it could have been received by Ms. Jones was December 3 or 4. Yet, she had made a payment on December 1, 1997, which was accepted and never refunded in whole or in part. This failure to refund the premium became a big reason the court ruled in Jones favor. Plus the court found that as a matter of law the cancellation notice was void because it did not satisfy the requirement that there be a ten day notice prior to cancellation.
Other issues about her sister not being listed on the policy and the insurance company not having a copy of her drivers license were addressed as follows. The court pointed out that Jones had informed the agent about her sister and the agent said that Jones would be covered and the policy would stay in effect as long as she paid her premiums. So, atleast the agent knew of Jones sister and thus as an agent of the company this knowledge was imputed to the company. As for the license, the court pointed out that the insurance company had Jones drivers license information on the application, her name, address, date of birth, drivers license number, etc.
Going back to the failure of the insurance company to refund the premium payment, the court ruled that the insurance company's acceptance and processing of the check and refusal to refund the monies argueably prevents them from now asserting the policy was cancelled.
There are other insurance law issues in this case plus lots of issues falling under the Texas Deceptive Trade Practices Act. The case is a good and fairly easy read for someone trying to understand how atleast one of these insurance lawsuits was dealt with by the Texas courts.

The topic of this piece is a case that arose out of Mansfield, Texas. The case could have just as easily arisen in Arlington, Grand Prairie, Fort Worth, Dallas, or out in Weatherford.
The Fort Worth Star-Telegram published a story about a claim against a home builder for the builders faulty construction work.
Even when a claim is against a home builder for mistakes in the construction of the home, often times the same claim can be made against the insurance company that insures the home. The advantage of claiming against the home owners insurance is to, hopefully, get the matter resolved quickly rather than get involved in an extensive and long drawn-out court battle with the builder. Of course, sometimes it is just the opposite.
The title of the article is, "Jury Awards $58 Million to Mansfield Couple In Home Builder Lawsuit". The article tells that the lawsuit lasted almost a decade.
The Mansfield couple had purchased their home from their builder, Perry Homes, and also involved in the lawsuit was a home warranty company. They also included in the lawsuit, their insurance company, Warranty Underwriters Insurance Company, a Houston company.
The couple had paid nearly $234,000 and was the only new home the couple had ever had. They had bought it for their retirement after moving from a home in Arlington they had lived in for 25 years, and where they had raised their three children.
After moving into the home in 1996, problems became apparent by the following January. A representative for Perry Homes assured them that the home was just settling and that everything would be ok. However, cracks kept appearing in walls, and doors and windows jammed shut. They also discovered that a drainpipe that was punctured during construction had soaked a kitchen wall, requiring them to move out for several months while mold was removed.
This case was submitted to arbitration in 2001 where Perry Homes lost. They appealed and the case was again arbitrated in 2002, where Perry Homes lost again. Perry Homes then appealed to the Texas Supreme Court where the case was sent back to the trial court and the verdict resulted.
Home claims are in a classification to themselves. Home claims also involve insurance claims and claims against the builder for violations of the Texas Deceptive Trade Practices Act. It is important to get an attorney involved early when having disputes related to homes. This same advice applies to used / older homes the same as to new ones and also to major reconstruction, such as after a fire or flood.

An important issue for any resident of Grand Prairie, Arlington, Dallas, Fort Worth, or even a resident of a smaller community such as Weatherford is: What happens if I get into an insurance dispute with my insurance company? What laws apply in fighting with the insurance company?
This question is atleast partially answered by a section of the Texas Insurance Code. Article 21.42 of the Texas Insurance Code is titled, Texas Laws Govern Policies. It says, "Any contract of insurance payable to any citizen or inhabitant of this State by any insurance company or corporation doing business within this State shall be held to be a contract made and entered into under and by virtue of the laws of this State relating to insurance, and governed therby, notwithstanding such policy or contract of insurance may provide that the contract was executed and the premiums and policy (in case it becomes a demand) should be payable without this State, or at the home office of the company or corporation issuing the same".
Wow, no wonder attorneys are needed to decipher the law!
What this insurance law says is that policies of insurance issued by insurance companies doing business in Texas, to Texas citizens, are governed by Texas laws. This is important because different states will have different laws governing insurance policies.
There are exceptions to the law. One exception is a federal case decided in 1979. The style of the case is Butler v. Mutual Life Assurance Company of Canada. Another exception is found in an old case decided in 1896. This is also a federal case styled, Manhatten Life Insurance Company v. Fields. These cases with exceptions to the above law have to be scrutinized carefully to make sure they are still good law today. Most of the cases finding exception to the Texas law are older cases.
It is important to realize that insurance companies fight over which laws apply because they are trying to get the laws of the state most favorable to them to be the laws that are applied to a lawsuit. Any person sueing an insurance company has to seek the advice of an experienced Insurance Law Attorney to make sure their rights are properly protected. Sometimes the laws the laws of another state may actually be more favorable to the insured.

It does not matter where in the State of Texas that you live. Whether you are in a small community like Weatherford or in the middle of the Dallas, Fort Worth, area, in cities like Arlington or Grand Prairie, you will see rate increases in your health insurance.
In the state of California, a consumer group filed a lawsuit on March 1, 2010. This was reported by the San Francisco Chronicle. The article is found in the health care section of the paper and is titled "Anthem Blue Cross Sued Over Rate Increases". The lawsuit alleges that Anthem Blue Cross, by raising rates, was forcing policy holders to move into other policies with higher deductibles and lower benefits.
The consumer group, called Consumer Watchdog, accuses Anthem of violating state law by failing to offer policy holders comparable coverage and minimized rate hikes after the company directs customers to alternative plans when closing existing plans. One lady in the lawsuit, said the company offered her the option of switching to a policy with a higher deductible and skimpier benefits by a specific deadline, but also told her she could stay in her current policy. The company then notified her of the enormous premium increases in her plan after the deadline for switching had passed.
The lawsuit, which was filed in Ventura County, effects about 800,000 people. Anthem, which is owned by WellPoint Inc. has come under state and federal scrutiny for hiking its 800,000 individual policy holders, or those not covered through a group plan, by as much as 39 percent.
One piece of good news is, the company has agreed to delay the rate increase that were taking effect on Monday, until May 1, to allow the state time to investigate.
The lawsuit also accuses Anthem of forcing older and sicker members, who are unable to switch carriers, to pay higher and higher premiums until they accept inferior coverage or drop coverage altogether.
As further information, another lawsuit was filed in San Mateo County Superior Court, on February 11, accusing the insurer of unfair competitive business practices.

All over the Dallas, Fort Worth, Arlington, Grand Prairie areas and even out in Weatherford in Parker County, are immigrants. What many people fail to understand because of all the media coverage on illegal immigration in the United States, is that there is a large and growing number of legal immigrants in our country.
A newspaper in Massachusetts recently ran an article about health insurance and legal immigrants. The newspaper was The Boston Globe. The title of the article is "Immigrants Sue State Over Exclusion From Health Care".
The State of Massachusetts, prior to 2006 provided health care to legal immigrants. According to the article, in an effort to save money, the legislature voted to eliminate coverage to about 26,000 immigrants. About a third of the money cuts were restored and the immigrants were given a stripped down health care plan with significantly higher copayments for medications and other treatments.
Since 2006, more than 8,000 more legal immigrants had become eligible but were denied coverage. The reason for the denial of coverage was because the same law that restored the third coverage also capped future enrollment.
This insurance is called Commonwealth Care. The state's Connector Authority and its executive director, Jon Kingsdale, are named in a lawsuit, accusing each that they violated the immigrants' right to equal protection under the state and federal constitutions when the administrators cut coverage in the Commonweath Care program.
The article in the Boston Globe gives two examples of legal immigrants being effected by the state's denial of health insurance benefits. The first example is a 51 year old immigrant from Zimbabwe with college degrees in psychology and business management, who was a project manager in London before coming legally to the United States. She was denied coverage in the Commonwealth Care program and she suffers from oral health infections, vision loss, and kidney and heart problems.
The second example is a legal immigrant from the Phillippines. She is a licensed architect with a master's degree in building science. She has breast cancer and is unable to find cancer specialists from the list provided to immigrants in the state's stripped down health plan.
The Massachusetts Immigrant and Refugee Advocacy Coalitions is attempting to assist in the lawsuit.

Insurance policy holders in Arlington, Grand Praire, Fort Worth, Weatherford, or Dallas, will all notice something called "Exclusions" in their policies. Maybe most people don't look at their insurance policy's until they have a reason to make a claim, but when they do they may read something they do not like. This something will usually be in the section of the policy titled "Exclusions."
When Courts in Texas are called upon to read and interpret an insurance policy, the rule is, they are going to look at and interpret exclusions very narrowly. Their construction of the policy provisions are going to be very liberal with the aim being to favor coverage for the insured policy holder.
The Texas Supreme Court case, Puckett v. United States Fire Insurance Company, was decided in 1984, and states that insurance policies are strictly construed in favor of the insured to avoid excluding coverage. A historically long line of cases says that exceptions or limitations (exclusions) on liability are strictly construed against the insurer and liberally in favor of the insured. Here are a few of those Texas Supreme Court cases, National Union Fire Insurance Company v. Hudson Energy Company, decided in 1991. Barnett v. Aetna Life Insurance Company, decided in 1987. A 1982 case, Blaylock v. American Guarantee Bank Liability Insurance Company. Glover v. National Insurance Underwriter, was decided in 1977. And here is one, Brown v. Palatine Insurance Company, decided in 1896.
When it comes to exclusions in an insurance policy, the Texas Supreme Court, in the case, State Farm Fire & Casualty Company v. Reed, said, "An intent to exclude coverage must be expressed in clear and unambiguous language."
An experienced Insurance Law Attorney can give good advice to a client on how a Court would potentially read the interpretation of an "exclusion" in an insurance policy and how the rule of interpretation would apply. This rule of interpretation does not apply when the term in question is susceptible of only one reasonable construction.
Here is an example taken from the above case, National Union Fire Insurance Company v. Hudson Energy Company. In this case, an airplane crashed. It was unclear who was piloting -- the instructor, the student, or both. The policy excluded the student, covered the instructor, and was unclear if they were both piloting. The Court found the policy was ambiguous and covered the loss if they were simultaneously piloting. The court reasoned that an intent to exclude joint piloting must be expressed in clear and unambiguous language. The insurer knew the plane had dual controls. If the insurer wanted to exclude simultaneous piloting, it was incumbent on the insurer to state the exclusion expressly and clearly.

When a Court in Texas makes a ruling on an insurance issue in Texas, that ruling has the same effect on Texas residents regardless of where they live in the State. Living in Grand Prairie, Arlington, Dallas, Fort Worth, or out in Weatherford or anywhere else in the State, would all be the same.
What happens if an insurance contract is ambiguous? Ambiguous is when an insurance policy is subject to more than one reasonable interpretation. When an insurance policy is ambiguous the Courts in Texas have ruled that the interpretation of the policy that is most favorable to providing coverage will be adopted, as a matter of law. The reasoning for this is discussed in a line of Texas Supreme Court cases. A few of these cases are: (1) Grain Dealers Mutual Insurance Company v. McKee, decided in 1997, (2) State Farm Fire & Casualty Company v. Vaughan, decided in 1998, (3) Kelly Associates., Ltd. v. Aetna Casualty & Surity Company, decided in 1984.
The above cases say that it is for the Judge of the Court to decide if a reading of the insurance policy is ambiguous. If the policy is found to be subject to more than one interpretation, then the Court "must" rule in favor of coverage being provided under the policy. The intention of the insurance company in drafting the policy does not matter.
The following are rules that apply to ambiguities in policies of insurance:
1) whether an insurance policy is ambiguous is a legal question to be decided by examining the entire policy in light of the circumstances that existed when the policy was taken out;
2) if a policy is worded such that it can be given a definite meaning, then it is not ambiguous;
3) different interpretations of the policy does not automatically mean ambiguity;
4) if a policy is subject to two or more interpretations, after a Court has applied legal rules of construction, then it is ambiguous;
5) when a policy is found to be reasonably read in two different ways, then the Court most adopt the reading favorable to providing coverage under the policy;
6) the Court must interpret the policy most favorable to coverage being provided as long as that interpretation is not unreasonable;
7) an insured persons reasonable interpretation must be adopted even when the insurance company's interpretation appears to be more reasonable or a more accurate mirroring of the intent at the time the policy was signed;
8) these rules regarding policy ambiguity are a natural product of the general rule that uncertain contractual language is interpreted against the drafter of the contract;
9) these rules, though sometimes rough, are justified because of the unequal bargaining power between the insurance company and its customer.
Whenever an insurance company denies coverage under a policy, it is proper for them to explain the reason for the denial of coverage. In doing this, the insurance company adjuster or agent will often times cite policy paragraphs as justification for their denial of a claim. An experienced Insurance Law Attorney understands the above listed rules that apply to insurance policy's and knows how to read a policy with these rules in mind. It is vital that a policy holder seek legal advice when a claim is being denied.