Dallas Fort Worth Insurance Lawyer Blog

Here is an example for insured's in Weatherford, Mineral Wells, Aledo, Hudson Oaks, Willow Park, Millsap, Brock, Peaster, Cool, Springtown, and other parts of Parker County and Texas to pay attention to.
As has been mentioned before on this blog, insurance companies will almost always attempt to have a case moved from State Court to Federal Court. One reason is that Federal Courts seem to look for reasons to throw cases out of court or to strike down pleading by the plaintiff. This is a reason to always get an experienced Insurance Law Attorney when dealing with an insurance company. The attorneys for the insured in the following case are good attorneys but still the Federal Court ruled in favor of the insurance company in striking down some of the pleading of the plaintiff.
Here is some background.
The case is styled, Guillermo A. Luna v. Nationwide Property and Casualty Insurance Company. Guillermo's pleading alleged that his property was extensively damaged by Hurricane Ike. The resulting damage was to his roof, extensive damage throughout the entire house, including ceilings, walls, windows, screens, and flooring, as well as structural and exterior damage. Guillermo's patio, fence, and shed were also damaged. He filed a claim with Nationwide seeking damages for his home, food and contents loss and other wind and water damage.
Nationwide assigned an adjuster who Guillermo alleges was improperly trained and unable to adequately perform a thorough inspection of the damages. Guillermo alleges the time spent on the claim was inadequate and points out specific examples of things not done by the adjuster or things that were done poorly.
The complaint that Nationwide had special knowledge and skills of the insurance industry, superior to that of Guillermo and was aware that the estimated payments they eventually gave Guillermo ($140.52 and $140.89), were inadequate to compensate Guillermo.
The complaint alleges violations of the Texas Insurance Code, Sections 541.060 and noncompliance with Sections 542.055, 542.056, and 542.058. The complaint also alleges common law fraud, breach of insurance contract, and breach of the common law duty of good faith and fair dealing owed by insurance companies to their insureds in insurance contracts because of their unequal bargaining power, here because of the inadequate investigation and unreasonable denial or partial payment of Guillermo's claims.
Nationwide alleged that the pleading in the case were not specific enough to satisfy the requirement of Federal Rules of Civil Procedure 8, 9(b) and 12(b)(6). Nationwide claimed the allegations are comprised of vague generalities and formulaic recitations of statutory language that are insufficient to state a claim.
Examples given of the above were, the amended complaint does not allege facts to support his conclusions that Nationwide unreasonably refused to pay Guillermo's claim, that the investigation was unreasonable, or specify what Nationwide should have done to conduct a reasonable investigation, or which of Guillermo's damages were allegedly overlooked or undervalued and how, what Guillermo thinks constituted full payment that he was denied, what his claims should have settled for, and what was not fair about Nationwide's conduct. Guillermo does not point out how Nationwide delayed the payment and when Guillermo should have received payment.
The court in this case ruled for Nationwide and struck many of Guillermo's pleading. In doing so the court stated, "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice to set out a viable cause of action."
There is a sense by this writer that the courts ruling in this matter was improper. This is a case we may hear further about on appeal. What this case does illustrate is the strict standards Federal Courts set for plaintiffs and why insurance companies try to have the cases in Federal Court rather than State Court. There is more of a "gotcha game" with technicalities that is not allowed in State Court.

Appraisals are a reality in most insurance policies, regardless if you live in Grand Prairie, Arlington, Fort Worth, Dallas, Mansfield, or anywhere else in the state of Texas.
The United States District Court, Southern District, Houston Division, issued an opinion on July 1, 2011, in the case styled, EDM Office Services, Inc. v. Hartford Lloyds Insurance Company, et al.
This was a lawsuit to recover insurance proceeds and damages under the Texas Insurance Code and common law. Hartford was demanding an appraisal pursuant to the insurance policy and EDM was saying that Hartford had not complied with the conditions precedent identified in the insurance policy for appraisal because it had not conducted a reasonable investigation of the claim as required by Texas Insurance Code, Section 541.060(a)(7). Plus, EDM argued that even if Hartford was entitled to the appraisal, that Hartford had waived its right to the appraisal.
The court in this case agreed with Hartford and ordered that the appraisal take place before the litigation continued.
A brief background shows that EDM suffered damage to a building after Hurricane Ike. Hartford conducted estimates that did not satisfy EDM. Plus there was an argument related to lost profits. There was disagreement as to the exact reasons why the claim was not fully paid with both EDM and Hartford making allegations towards each other. EDM filed this lawsuit and nine months later, Hartford moved to compel appraisal.
In making an analysis of the appraisal provision in the insurance policy, the court basically said that Texas insurance policies frequently include provisions specifying appraisal to resolve disputes about the amount of loss under the policy. An appraisal clause binds the parties to have the extent or amount of the loss determined in a particular way. The effect of an appraisal provision is to estop one party from contesting the issue of damages in a suit on the insurance contract, leaving only the question of liability for the court. An appraiser must "decide the amount of loss," not construe the policy or decide whether the insurer should pay. Unless the amount of loss will never be needed ... appraisals should generally go forward without preemptive intervention by the courts.
The court also said that even if it assumed that Hartford failed to comply with the conditions precedent to provisions of the insurance policy, that did not prevent Hartford from seeking appraisal .
Rather than the condition precedent issue being the biggest issue discussed by the court, they spent most their time discussing whether or not there had been a "waiver" by Hartford, because of the amount of time that had passed before Hartford sought the appraisal process.
In discussing the waiver issue the court said, "The contractual right to appraisal may be waived." Waiver is defined as the intentional relinquishment of a known right. Courts applying Texas law follow the standard articulated in the case, Scottish Union & National Insurance Company v. Clancy, an 1888, Texas Supreme Court case. This very old case and court said, "To constitute waiver, the acts relied on must be such as are reasonably calculated to induce the assured to believe that a compliance by him with the terms and requirements of the policy is not desired, or would be of no effect if performed. The acts relied on must amount to a denial of liability, or a refusal to pay the loss."
This court then looked at other Texas law that points out that "Mere delay is not enough to find waiver; a party must show that it has been prejudiced. Prejudice to a party may arise in any number of ways that demonstrate harm to a party's legal rights or financial position." The Texas Supreme Court has observed that it is difficult to see how prejudice could ever be shown when the policy gives both sides the same opportunity to demand appraisal. If a party senses that an impasse has been reached, it can avoid prejudice by demanding an appraisal itself.
In conclusion this court said, "The parties have reached an impasse. They could not successfully mediate their claims. EDM argues that Hartford delayed seeking appraisal. EDM, however, has not demonstrated prejudice. Mere delay is not enough to find waiver; a party must show that it has been prejudiced."

Accidental deaths would be common in Grand Prairie, Arlington, Fort Worth, Hurst, Euless, Bedford, Keller, Saginaw, Grapevine, and any other place in Texas. It is simply one of those things that is going to happen.
A lot of people have insurance policy's that provide coverage in the event of an accidental death. These policies are known as "accidental death" policies. The United States District Court, Southern District of Texas, Houston Division, issued an opinion on June 29, 2011, in the case styled, Cheryl Likens v. Hartford Life and Accident Insurance Company. This case made a summary judgment ruling regarding an accidental death policy that people who have these types of policies should understand. Here is some background.
Wesley Vincent fell at his home in February 2008, and suffered injuries to his cervical spine. He died as a result of that injury four days later. The discharge summary from the hospital listed his cause of death as "anoxic brain injury secondary to cardiopulmonary arrest."
Vincent had a group life insurance policy with Hartford through his employer which provided a benefit for "accidental" death. Likens was the listed beneficiary on the policy, and she sought payment of the benefits. Hartford denied the claim due to Vincent's intoxication at the time of his injury. More specifically, Hartford relied upon provisions of the policy requiring that the injury must arise from an accident "independently of all other causes," and that the policy excludes injuries "sustained as a result of being legally intoxicated from the use of alcohol. Likens then filed this lawsuit.
The policy provided for an accidental death and dismemberment benefit for an injury leading to death in the maximum amount of $300,000. An "injury" is defined as "bodily injury resulting from accident and independently of all other causes which occurs while [Vincent] is covered under the policy. The "Exclusions" section of the policy provides in relevant part as follows:
The policy does not cover any loss resulting from ... 8. Injury sustained as a result of being legally intoxicated from the use of alcohol.
The evidence in the case showed that Vincent drank alcohol at a local bar and he arrived home at approximately 11:30 p.m. An EMS report contains the following description of events:
Family stated that Vincent went out drinking tonight and that he was brought home by the bartender around 11 or 11:30. Vincent's wife states that he was very intoxicated and kept falling down, she states that she tried to help him, but he told her that he was fine and that he was going to sit out on the porch ... her granddaughter came home and found Vincent between the bbq pit and the hedge ... she moved him onto his back ... realized that he was not breathing ...
A hospital report confirms that plaintiff reported an initial fall by Vincent, and that she also reported that Vincent was unable to make it from the yard into the house. A sheriff's report for that same incident states that it was Vincent's daughter who later found him on the ground, but she was "not alarmed because this was a regular occurrence." Vincent was transported to the hospital, and his serum blood alcohol content shortly after the incident was reported as being .328 mg/dl. He never regained consciousness, and his life support was removed. The cause of death was reported as "anoxic brain injury secondary to cardiopulmonary arrest."
A Certificate of Death lists the "immediate cause" of his death as "complications following blunt trauma with fracture of cervical spine," and the "manner of death" is listed as "accident." Also listed under "significant conditions contributing to death but not resulting in the underlying cause" is "chronic ethanolism."
In analyzing this case, the court discussed legal rules for deciding these types of cases. They pointed out that if an insurance policy is worded so that it can be given a definite meaning or certain legal meaning, then the policy is not ambiguous and is construed by the court as a matter of law. An ambiguity exists where a policy is susceptible to more than one meaning. If, and only if, a court finds an ambiguity in the contract provisions, particularly in exclusionary clauses, the court should construe the policy strictly against the insurance company. And, if the insured's construction of an exclusionary provision is reasonable, it must be adopted, even when the insurer's construction is more reasonable.
As this court correctly pointed out, under Texas law, an insured has the burden of establishing coverage under the terms of an insurance policy. If the insured proves coverage, then to avoid liability the insurer must prove that the loss is within an exclusion. If the insurer proves that an exclusion applies, the burden shifts back to the insured to show that an exception to the exclusion brings the claim back within coverage. Sounds like a game of chess doesn't it?
In making its ruling, in favor of Hartford, the court stated, "In this case, no reasonable jury could find facts that would avoid the intoxication exclusion of the policy. The facts of this case clearly establish that Vincent's intoxication on the night he fell in his front yard is the proximate cause of his death, and this prevents plaintiff from recovering under the policy. The policy does not cover any loss resulting from ... injury sustained as a result of being legally intoxicated from the use of alcohol. Hartford's evidence conclusively establishes that the injuries Vincent sustained ... and which led to his death, were caused by his extreme intoxication."
The attorneys for Likens argued about the wording of the death certificate and where the words were placed and other such similar arguments. Thought these arguments on behalf of Likens were commendable, they did not persuade the court.

Policy holders in Grand Prairie, Arlington, Fort Worth, Mansfield, Crowley, Burleson, Rendon, Lake Worth, Benbrook, Hulen, and other areas of Texas probably get worried about attorney fees if they find themselves in a position where they need to fight with an insurance company. Some experienced Insurance Law Attorneys will work on a contingency fee basis rather than forcing someone to pay large retainer fees that scare away most people.
The ultimate questions would be: If I win, can I recover my attorney fees? The answer to that question in most all insurance claim lawsuits is "yes." The District Court for the Western District of Texas, Austin Division, issued an opinion on June 28, 2011, that addresses this question. The style of the case is Berkley Regional Insurance Company, as Subrogee of Venus Rouhani and as Assignee/Subrogee of the Tower of Town Lake Condominium Association v. Philadelphia Indemnity Insurance Company. Here is some background.
In this case, Venus Rouhani is a third party who obtained a judgment against the Towers, the insured under an insurance contract with Philadelphia. Therefore, under Texas law, Rouhani was entitled to enforce the terms of the Philadelphia insurance contract. The court had, in earlier proceedings, held that Berkley obtained Rouhani's rights under a judgment, either through contractual assignment or statutory subrogation,at which point Berkley became entitled to enforce the contract terms at issue in this case.
This claim was brought under the Texas Civil Practice & Remedies Code, Section 38.001. This section is the section that deals with recovery of attorney fees. It is relevant to point out that there are many sections of Texas statutes that allow recovery of attorney fees including sections in the Texas Insurance Code. For whatever strategic reasons, the plaintiffs in this case sought to recover their attorney fees under Section 38.001 rather than some other section.
This sections says that the award of attorney fees is mandatory if the plaintiff prevails in his or her breach of a contract claim and recovers damages.
As this court pointed out, "For purposes of recovering attorney's fees under an insurance contract, a third party who has obtained a judgment against an insured is an intended third party beneficiary of the insurance contract and entitled to enforce the contract." This is well settled case law. Additionally, Section 38.001 says a third party beneficiary may also recover attorney fees.
Philadelphia in this case spent a great deal of time and effort arguing with the court that somehow the plaintiff's claims were less worthwhile than other claims because their claims were obtained by way of assignment. Evidently there was some sort of anti-assignment clause in the insurance contract which the court had earlier ruled was not applicable to the facts in this situation. The earlier ruling stated:
"Under the circumstances of this case, Philadelphia does not have the right to insist on compliance with the terms of the policy. By failing to pay on Towers' claim when it had a legal duty to do so, Philadelphia materially breached its contract ... Philadelphia apparently believes the rules of law and equity allow it to hold others strictly to the terms of its policy, while at the same time ignoring those terms itself. Philadelphia is mistaken."
This court further pointed out that the earlier court (1) ruled against Philadelphia on its anti-assignment argument with respect to Rouhani's claims; (2) concluded Phildelphia is not entitled to enforce the clause at all, in light of its breach of the insurance contract; and (3) considered and denied Philadelphia's motion for reconsideration. In light of these facts, the Court was not particularly moved by Philadelphia's statements that it disagrees with the Court's conclusion, and "that any assignment of Rouhani"s rights to Berkley is ineffective due to the anti-assignment clause in the Philadelphia policy."
This case can be a bit confusing as to the assignments even for a lawyer. What is important about this case to the policyholder is the re-affirmation that attorney fees are recoverable in insurance disputes with your insurance company.

Whether you live in Weatherford, Aledo, Azle, Willow Park, Hudson Oaks, Mineral Wells, Millsap, Brock, Peaster, Springtown, Poolville, Cool, or anywhere else in Parker County, a fire loss to your home can be a devastating loss. It is compounded when your insurance company refuses to pay for the loss. It is compounded further when they accuse you of arson.
The Texas Supreme Court issued an opinion in a case in 1998, styled "State Farm Fire & Casualty Company v. James and Cynthia Simmons." The legal issue presented to the court was whether there was sufficient evidence to support a jury finding that State Farm breached its duty of good faith and fair dealing and whether there was some evidence to support a punitive damages award. We will go over the good faith and fair dealing only point due to technicalities surrounding the punitive damages award.
Background information:
James and Cynthia Simmons purchased their first home in 1983. The house was located on a large rural lot and they later bought the State Farm policy.
In the first year after moving in, the Simmonses and their two young children substantially improved the property. They installed a driveway and sidewalk, remodeled the bathroom, improved the home's water well and for safety's sake, moved a butane fuel tank farther from the house. James constructed a hog pen. He also built a dining room table for his wife and beds for each of his children, as well as purchased a number of picture frames.
In the first year after buying the house, James, a construction supervisor, experienced some down-time from work. As a result they missed several monthly mortgage payments but then refinanced and worked out the problem with the bank.
In the same month they refinanced their home, someone burglarized their home and they turned in a claim. Items taken included a television, silverware, a shotgun, and the kids piggy banks. This daytime burglary was not witnessed. However James followed the tracks of a wheelbarrow through the woods to the home of a nearby eighteen year old named, Tim Mattix. James confronted Mattix and another youth, Charles Wooddell. Mattix later confessed to the burglary. State Farm paid the claim within a few weeks of the burglary.
After the confrontation with Mattix and Wooddell, the Simmonses experienced a spate of vandalism: their telephone line was tapped into, eggs smashed in their mailbox, and their dog died under circumstances suggesting poisoning.
On Sunday, June 2, 1985, the Simmonses, along with James's mother, left the house to take the children to an aunt's home for the summer. They locked the doors and windows before they departed. A short time later, a neighbor noted a fire and called the fire department. The house was a total loss.
The loss was reported to State Farm the following day. State Farm immediately tagged the fire "suspicious" because of the recent theft claim. The claim was turned over to State Farm's Special Investigation Unit. Four months later, in October, State Farm denied the claim.
Thirteen months later, the Simmonses sued. A jury found the Simmonses' had not burned their home, thus establishing coverage under the policy. The jury also found that State Farm had breached its duty of good faith and fair dealing in handling the Simmonses claim and knowingly violated the Deceptive Trade Practice Act (DTPA). Finally, the jury found that State Farm acted with conscious indifference in determining whether there was a reasonable basis to deny the Simmonses' claim.
This Supreme Court had earlier clarified the standard for recovery in bad faith cases in the case, Universe Life Insurance Company v. Giles. There the court held that an insurer breaches its duty of good faith and fair dealing by denying a claim when the insurer's liability has become reasonably clear.
In order to assist the jury in finding bad faith the Simmonses put forth evidence that State Farm did not make a good faith effort to objectively investigate the Simmonses' claim. This evidence included that State Farm immediately deemed the claim "suspicous" because of the earlier theft claim. That by the time State Farm had denied the fire claim, the legitimacy of the earlier burglary claim was unquestioned. In fact the police had returned a shotgun taken in the burglary, which James turned over to State Farm because the company had already paid for it.
Further there was evidence that State Farm's investigation was not reasonable because State Farm failed to investigate the possibility that other potential suspects might have started the fire. Mike Hvasta, State Farm's adjuster, testified at trial that revenge and spite are some of the more common motivations for arson, as did the County Fire Marshal. The Simmonses had identified five people who might have grudges against them including Mattix and Wooddell. Yet, State Farm never attempted to locate or contact any of these potential suspects.
The above is a pretty good listing of improper actions by State Farm and does not include everything that was testified to at trial. What is important here is that even companies that a lot of people think well of, such as State Farm, will do a poor job investigating a claim and unjustly deny a claim. When payment for a claim is not immediately forthcoming, an experienced Insurance Law Attorney should be sought. Delays in payment of a claim are often times in direct violation of not just one, but several provisions of the Texas Insurance Code.

Someone in Grand Prairie, Arlington, Dallas, Irving, Carrolton, Farmers Branch, Lewisville, Hurst, Euless, Bedford, or anywhere else in the metroplex area would just get mad and frustrated with an insurance company treating them wrong, by continuing to ask for paperwork and documents that they don't really need to evaluate and settle a claim. Usually the insurance company is just trying to wear you out. Here is a case where they did not get away with it.
In 2004, the Corpus Christi Court of Appeals issued an opinion in the case styled, Minnesota Life Insurance Company v. Elia L. Vasquez. Elia sued Minnesota Life for knowing violations of the Texas Insurance Code and for mental anguish associated with those violations. We will deal with the knowing violations part of the opinion. Here are some of the allegations and facts.
Elia alleged that Minnesota Life unreasonably delayed payment of the proceeds of an accidental death policy that insured the life of her deceased husband. Minnesota Life contended that the cause of death was not clearly accidental and the delay was caused by its need to obtain additional medical records. The hospital from which the records were sought was unresponsive and did not turn over the requested documents to Minnesota Life for five months. Upon receipt of these records, Minnesota Life paid Elia's claim.
After a trial in the state court, the jury found a knowing violation of the insurance code. The jury awarded actual damages of $250,000, plus attorney's fees of $37,000, plus other damages not addressed here.
Minnesota Life contended that the evidence supporting the jury's finding of a knowing insurance code violation was legally and factually insufficient. The jury was instructed to find that the company had engaged in an unfair or deceptive practice if it failed to "attempt in good faith to effectuate a prompt, fair and equitable settlement of a claim with respect to which the insurer's liability has become reasonably clear" or if it failed "within a reasonable time (A) to affirm or deny coverage of a claim to a policyholder or (B) submit a reservation of rights to a policyholder." These instructions correspond to the statutory language of the Texas Insurance Code Sections 541.060(a)(2)(A) and 541.060(a)(4)(A) and (B). A knowing violation occurs if the company had "actual awareness of the falsity, deception, or unfairness of the conduct in question," which may be inferred if "objective manifestations indicate that a person acted with actual awareness." This complies with Texas Insurance Code, Section 541.002(1). Case law tells us that, "Actual awareness implies that a party knows that what she is doing is false, deceptive or unfair but continues in her course of action regardless."
Texas Insurance Code, Section 541.060(a)(2) requires a good faith attempt to promptly settle claims once liability has become "reasonably clear." Following the death of Mr. Vasquez, Minnesota Life requested proof-of-loss documents from Elia. These documents, a death certificate and a medical examiner's report, both indicated that the cause of death was accidental and were quickly supplied by Elia. At this point, Minnesota Life's liability under the policy was "reasonably clear," and it therefore had a duty to comply with the Insurance Code and make a good faith effort to complete its investigation and settle the claim promptly.
Minnesota LIfe argued that its liability did not become "reasonably clear" until it actually received the additional hospital records for which it was waiting. As the court pointed out, "By this argument, Minnesota Life is essentially asking this Court to adopt a rule allowing insurance companies to delay settlement of a claim until liability is absolutely and conclusively established, not just 'reasonably clear.'" This interpretation, equating "reasonably clear" with "completely certain" would allow insurance companies, aware that they likely will have to pay a claim, to delay indefinitely concluding their own research of a claim without violating the Texas Insurance Code. The Texas Supreme Court has noted, "An insurer will not escape liability [under the insurance code] merely by failing to investigate a claim so that it can contend that liability was never reasonably clear ... [An] insurance company may also breach its duty of good faith and fair dealing by failing to reasonably investigate a claim." This court pointed out that Minnesota Life was fully entitled to make additional inquiries and investigations into the cause of death for Mr. Vasquez, as there was allegedly some concern that a seizure may have contributed to the cause of death. However, once the proof-of-loss documents noting an accidental cause of death were received, Minnesota Life's liability became "reasonably clear" and it was under a duty to use its best efforts in good faith to avoid further delay.
This case serves as a good example of what insurance companies will often try to do but are not suppose to do. They routinely try to wear claimants down to either get away with denying the claim or getting the claimant to accept less than they are entitled to, just to get it over with. At the first sign of delay an experienced Insurance Law Attorney should be sought. Documentation of what is happening helps. Rather than relying on memory, a claimant should write down events when they happen including in the information, persons, letters, e-mails, and other communications that may be helpful in making an insurance company pay for wrongs they may be committing.

Insureds in Grand Prairie, Arlington, Grapevine, Keller, Flower Mound, Rhome, Ponder, Justin, Haslet, Saginaw, Farmers Branch, and other places in Texas might think they know the meaning of household resident. They would be surprised that often times an insurance company is going to fight over what it means when someone makes a claim. Here is an example.
The Texas Court of Appeals, Waco, determined a case in 1977, which is still good law. The case is styled, Southern Farm Bureau Casualty Insurance Company v. Kenneth C. Kimball et al. Here are some facts of the case.
Kenneth Kimball was the named insured in a family automobile policy issued by Southern Farm Bureau. Kenneth's wife, Connie, was killed in an automobile accident with an uninsured motorist when the policy was in force. At the time of her death, she and Kenneth were separated, living in separate residences, and a divorce action filed by her was pending. Farm Bureau filed a declaratory judgment asking the court to declare that they did not owe any benefits under the policy. The case was heard on stipulated facts. The only issue raised was whether Connie and Kenneth were "residents of the same household," as that term is used in the policy, at the time of Connie's death.
At trial, the jury found in favor of Kenneth and Farm Bureau appealed. This Waco appeals court confirmed the jury's verdict.
In discussing this case, the court stated, "The controlling test of whether persons are residents of the same household at a particular time, within the meaning of the policy in question, is not solely whether they are then residing together under one roof. The real test is whether the absence of the party of interest from the household of the alleged insured is intended to be permanent or only temporary i.e., whether there is physical absence coupled with an intent not to return." The court then pointed out that under proper facts, it has been held that separations from the common roof by college students, by members of the military services, and by spouses did not, per se, destroy their household membership with their families and spouses.
Cases cited by Farm Bureau in support of their contention that Connie was not a resident of the household at the time of her death, were cases that showed evidence to support that contention. In this opinion the court discussed in detail three of those cases in an effort to distinguish them from the present case.
As pointed out by the court, the facts and evidence in this case showed that Kenneth and Connie were a couple in their 20's who were married in May, 1972. Their only child, a daughter, was born in September, 1973. Connie was killed on December 21, 1975. Before their their separation, they resided in their mobile home in the City of Waco. Early after their marriage, they suffered substantial financial losses in the construction business. Thereafter, during the last two years of their marriage, Kenneth was a "long haul" truck driver, based in Waco. He would be on the road three and four weeks at a time, with no longer than three days at home between trips. Sometimes he would get in at night and leave the next morning. On the trips, he virtually lived in his truck. It was arranged with employer that Connie could draw on his earnings and pick up his paychecks. She cashed the checks, bought the family needs, and paid the bills, including payments on the mobile home and several department store accounts she maintained. Connie also held a job. During the day, she left their child with her mother who lives near Waco. After work when Kenneth was gone, Connie would go home, clean up, carry her work clothes for the next day to her mother's house, and she and the child would spend the night there. Connie filed suit for divorce on November 5, 1975. Later, she separated from Kenneth and moved into her mother's house, taking all of her work clothes. After the separation, Connie kept most of her things in the trailer home. One week before her death, Connie rented an apartment near Waco and moved all of her belongings into it. She left a set of dishes in the mobile home for Kenneth. The divorce suit and the separation were precipitated by emotional stress suffered by Connie which was caused by Kenneth's long absences from home and by the dunning of creditors of their defunct construction business. During the separation, Connie would either meet Kenneth at the truck depot in Waco when he returned from a trip, or she would have their car there for his use and he would go to her. They would go out together for supper when he was home, and would visit into the evening with each other and other trucker couples at local night spots. Neither were romantically interested in another person. They continued with the arrangement for Connie drawing on his pay, cashing his checks, using the money as she saw fit, including her needs and those of the child, and paying the bills. He talked with her several times about a reconciliation, but she had not agreed to it at the time of her death. On December 5, 1975, Kenneth returned home to attend his father's funeral. That night, he and Connie slept together in a room in his mother's house. Their child was with them. On December 20th, the night before Connie died, she fixed supper for Kenneth in her apartment. Their daughter was with them. They discussed plans for the child's Christmas. Kenneth had arranged his schedule to be home on Christmas.
These facts allowed the court to rule in Kenneth's favor. There are many cases where the question of whether or not someone is a resident of the household arises. It is vital that the advice of an experienced Insurance Law Attorney be sought when this happens.

It is doubtful anyone in Grand Prairie, Hurst, Euless, Bedford, Arlington, Dalworthington Gardens, Mansfield, North Richland Hills, Fort Worth, or anywhere else in Tarrant County is going to run a cross this particular situation, but it is kinda interesting.
The Texas Supreme Court issued an opinion in June 2011, in the case styled, Lancer Insurance Company v. Garcia Holiday Tours, Et Al. The question for this court to decide in this case was whether the transmission of a communicable disease from the driver of a motor vehicle to a passenger is a covered a loss under a business auto policy, which affords coverage for accidental bodily injuries resulting from the vehicle's use. This Texas Supreme Court said no. Here is some background information.
Garcia Holiday Tours operates a commercial bus company. It contracted with the Alice ISD to provide a bus and driver for a field trip to Six Flags Fiesta in San Antonio. The trip was for Alice High School band members, several of whom observed the driver coughing during the trip. Upon return, the driver was hospitalized after being diagnosed with an active case of tuberculosis.
Turberculosis or TB, is a bacterial infection that can live in a person's body without making the person sick. In this inactive state, referred to as latent TB, the disease is not contagious. Active TB, on the other hand, is contagious and commonly transmitted by the infected person coughing or sneezing.
The immune systems of most people who breathe in TB are able to fight off the disease. Only about 10% of those infected with TB develop an active case. Active TB, however, can be quite serious not only because it is contagious but also because the bacteria cause tissue death in the infected organs.
The students were tested for the disease after learning of the driver's diagnosis, and several tested positive for TB. These passengers subsequently sued the driver and bus company, asserting they were negligently exposed to the disease as a result of being confined in the bus with the infected bus driver. The bus company notified Lancer Insurance Company, its insurance carrier, but Lancer refused to defend the claim, maintaining that such claims were not covered under the policy. The bus company defended itself and went trial where a jury awarded over $5 million in damages to the passengers who had contracted the disease.
The bus company and driver then sued Lancer, asserting violations of the Texas Insurance Code and breach of contract for Lancer's refusal to defend them in the lawsuit.
Lancer's business auto policy stated that coverage is afforded for damages the insured is legally obligated to pay "because of 'bodily injury' ... caused by an 'accident' and resulting from the ownership, maintenance or use of a covered 'auto.'" The terms accident, auto, and bodily injury are defined in the policy as:
A. "Accident" includes continuous or repeated exposure to the same conditions resulting in "bodily injury" or "property damage."
B. "Auto" means a land motor vehicle ... designed for travel on public roads ...
C. "Bodily injury" means bodily injury, sickness or disease sustained by a person including death resulting from any of these.
Lancer conceded to the court that the bus was a covered "auto," the passengers' claims involve an accident, and tuberculosis is a "bodily injury" under the policy's definitions. Lancer maintained, however, that the accident and the injuries did not result from the use of the bus, as the policy requires, but rather from other causes, such as the use of a contagious bus driver. Lancer submitted that the risk of being exposed to an infectious individual and contracting a disease is general liability risk, not an auto liability risk, even when the infectious individual happens to be the vehicle's driver. In short, Lancer contended that the nexus between the passengers' injuries and the bus's use was insufficient to invoke the policy's coverage.
The bus company and passengers responded that the policy generally provides coverage for passenger injuries so long as the bus is being used as a bus. They submitted that the term "use" is broadly defined in Texas case law to extend coverage well beyond vehicular accidents or collisions. They maintained that because the bus was being used to transport the passengers at the time of their injury that a sufficient nexus existed between that use and their injuries.
Again, this court ruled in favor of the Lancer. Their reasoning in this case was spelled out in the opinion and makes for interesting reading for someone trying to understand how the courts look at these policy interpretation cases. When in doubt, a person should look to an experienced Insurance Law Attorney for advice on how to best proceed with a situation where there is a dispute about whether or not the insurance policy provides coverage.

Persons with uninsured coverage in Weatherford, Mineral Wells, Aledo, Azle, Newark, Hudson Oaks, Willow Park, Cresson, Peaster, Millsap, Brock, and other places in Parker County need to have a bit of an understanding of the following case. Or they need to know how to get in touch with an experienced Insurance Law Attorney.
The opinion in this case was issued by the Houston Court of Appeals, 14th District. It was issued on June 21, 2011, and the style is, Chezaray Melancon v. State Farm Mutual Automobile Insurance Company.
In this case, Melancon sued State Farm under the underinsured coverage part of her insurance policy. At trial, the jury found the amount of her personal injuries to be an amount that was less than what she had settled for with other parties in the case. This court said that the unambiguous language of the policy showed that State Farm had no further liability.
The State Farm policy said State Farm must "pay the 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 the accident." The policy limits State Farm's liability to the lessor of
a. The difference between the amount of [Melancon's] damages for bodily injury or property damage and the amount paid or payable to [Melancon] for such damages, by or on behalf of persons or organizations who may be legally responsible; and
b. The applicable limit of liability for this coverage [$100,000].
Melancon was injured in an automobile accident involving multiple vehicles. He brought suit against two other drivers involved in the accident, Noel Sholes and Miguel Garcia, and Garcia's employer, Lane Freight, Inc. Melancon joined State Farm as a defendant based on the uninsured portion of the policy. Melancon and State Farm stipulated that (1) Melancon settled his claims against Garcia and Lane Freight for $170,000; (2) Melancon settled his claims against Sholes for $20,012; and (3) State Farm paid Melancon $5,000 in personal injury protection benefits under the policy. The total of these three amounts is $195,012.
A jury found Sholes's negligence to be the sole cause of the accident and that Melancon's damages were $168,800. Melancon then demanded State Farm pay the $100,000 of coverage based on this judgment and that Sholes had only paid $20,012.
This appeals court denied Melancon's demand against State Farm for more money and pointed out the language in the policy and some other points on Texas law.
Attorneys for Melancon pointed to the Texas Insurance Code, Section 1952.106 as justification for their demand to be paid the extra money available in the policy. This court pointed out that the interpretation of the statute was good as far as it went but that it did not state that third-party settlements should not be considered in determining the amount of coverage. Under this statute, underinsured motorist coverage must provide for payment to the insured of all amounts that the insured is legally entitled to recover as damages from owners or operators of underinsured motor vehicles because of bodily injury or property damage. Under Civil Practice & Remedies Code, Section 33.012(b), in determining the amount an insured is legally entitled to recover from the driver or owner of an underinsured vehicle, the court deducts the sum of all settlements, including third-party settlements. It states that "if the claimant has settled with one or more persons, the court shall further reduce the amount of damages to be recovered by the claimant with respect to a cause of action by the sum of the dollar amounts of all settlements."
Thus, as the court stated, "if an insured obtains third-party settlements in excess of the amount of the insured's damages, the insured is not legally entitled to recover any damages from the owners or operators of underinsured motor vehicle.
The biggest lesson to be learned from this case is that reading a law or statute by itself is very dangerous. A person has to know how that law or statute interacts with other laws and statutes that exist. Guess what ... ? That means get an experienced attorney.

If you have insurance in Grand Prairie, Arlington, Mansfield, Garland, Richardson, Mesquite, Rowlett, Fort Worth, Dallas, or anywhere else in the Dallas and Fort Worth metroplex area, you most likely have the same obligation as everyone else in the State of Texas, and that is the duty to cooperate with any investigation your insurance company wants to conduct with respect to any claim you are involved in.
The Dallas Court of Appeals issued an opinion in a case on June 21, 2011, that dealt with this duty to cooperate with your insurance company. The style of the case is quite long and is abbreviated here to, Ann Martinez v. ACCC Insurance Company.
In this case there were three insurance entities sued together and the trial court granted a summary judgment in favor of the three entities. Here is some background:
On July 2, 2002, Martinez and her friend, Davilla, were involved in an automobile accident with Carmensa Romero. Martinez and Davilla alleged they were traveling through a controlled intersection when Romero ran a red light and slammed into their vehicle. At the time, Romero was insured under and subject to the terms and conditions of a personal automobile policy issued by the insurance entities. The policy included the following provisions regarding the obligations of a person seeking any coverage:

PART E - DUTIES AFTER AN ACCIDENT OR LOSS
A. We must be notified promptly of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses. If we show that your failure to provide notice prejudices our defense, there is no liability coverage under the policy.
B. A person seeking any coverage must:
1. Cooperate with us in the investigation, settlement or defense of any claim or suit;
2. Promptly send us copies of any notices or legal papers received in connection with the accident or loss.

The policy also contained the following provision regarding legal action agains the insurer:

PART F - GENERAL PROVISIONS .... LEGAL ACTIONS AGAINST US
A. No legal action may be brought against us until there has been full compliance with all the terms of this policy.

After the collision, Martinez and Davilla presented claims for injury. On September 6, 2002, counsel for Martinez and Davilla, sent a letter to ACCC which included the following paragraph: We will provide you with every opportunity to provide a defense for your insured. Specifically, we will send you a copy of the Petition when it is filed, and notify you of the date that your insured is served with process. We will also notify you of your insured's deadline to file an Answer. If no answer is filed, we will seek a default judgment. They lived up to this letter.
According to the evidence before the court, Romero failed and refused to cooperate with ACCC Claims' investigation of the loss. Romero failed to notify ACCC of the accident and failed to provide ACCC with suit papers. ACCC sent multiple letters to Romero requesting information but Romero failed to respond. They hired an investigator to attempt personal contact with Romero.
The insurance entities filed a declaratory judgment saying they owed nothing and had no duty because Romero failed to abide by the terms and conditions of his policy.
In discussing this case, the court stated, "An insurer's obligation depends upon proof that all conditions precedent have been performed. Romero's failure to cooperate in the investigation, defense and settlement of the claims against her is sufficient grounds to support the summary judgment."
The court pointed out that the record reflects that Romero failed to cooperate with the investigation of the accident and the claims against her. Romero never contacted her insurer or its agents regarding the collision, and failed to respond to their telephone calls and letters requesting information. Investigators were unable to locate her. There was no police report from which the facts could be confirmed with respect to the collision and the claimants' alleged injuries. Romero's failure to provide information and the lack of a police report made it impossible for ACCC to identify any witnesses to the accident. The record also reflects that Romero failed to cooperate in any way with the defense of Martinez and Davilla's claims against her.
This case had bad facts but if an experienced Insurance Law Attorney is consulted, the majority of the time there will be ways to make the insurance company get involved in the claim and pay the claim.

Residents of Grand Prairie, Arlington, Mansfield, Fort Worth, Dallas, Garland, Mesquite, Richardson, Carrolton, and other places in Dallas County and Texas should be concerned about insurance scams. They drive up the cost of insurance and nobody likes the thought of someone profiting from illegal actions. Most of the time when you think of this, what comes to mind is staged car wrecks, intentional fires to collect insurance money, and other similar actions. What you do not normally think of is, the insurance company being who is doing the scamming.
Here is a story worth reading.
The Houston Chronicle published an article on May 13, 2011, written by Patrick Danner. The title of the article is, "USAA sued anew over medical payouts in crashes Plaintiffs say insurer's reviews are 'shams'; firm defends pratices."
This article tells us that USAA is again defending itself against charges it utilizes a "cost containment program" to improperly reduce or deny medical payouts to insurance customers injured in auto accidents.
The latest claims against the San Antonio financial and insurance company were made in a federal lawsuit filed the first week of May in the State of Oregon.
That lawsuit, seeks national class-action certification. It charges that USAA uses an outside auditor to assess claims and to "uniformly conclude that medical treatment was not needed" in claims that were submitted.
USAA, as expected denied the claims.
USAA has previously settled two class-action lawsuits that accused it of using flawed data to arbitrarily deny a portion of the medical benefits for injured custommers who have personal injury protection (PIP) or other medical payments coverage on their USAA auto insurance policies.
One of those cases, filed in Arizona, was settled last summer. Claims are still being processed, so the amount to be paid out under the settlement hasn't been determined.
The other case, filed in Illinois was settled in 2005. Lawyers for the plaintiffs valued the settlement on their website at $35 million, a figure USAA spokesman Paul Berry called "probably wildly" inflated.
USAA settled the two case because it was the "right thing to do for our membership," Berry said. He noted both courts endorsed USAA's bill review practices.
"We pay all reasonable, necessary and accident related bills," Berry said. "That doesn't mean we pay all bills. If you had injuries or you received some treatment that had nothing to do with an auto accident, we're not going to pay those bills."
USAA relies on Alabama based Auto Injury Solutions to help review medical bills to determine whether they are reasonable and necessary and to weed out duplicative and fraudulent claims. Bills deemed suspicious are reviewed by a doctor or other health care professional, Berry said. Even when one of its doctors concludes the medical care wasn't necessary, the bill still goes through several other reviews, he said.
USAA also can choose to override any instance where a bill is rejected, according to Berry.
In the latest Oregon lawsuit, four unrelated USAA customers in separate accidents allege the medical reviews were a "sham."
USAA is not the only insurance company that does this. In fact a few companies, Allstate being one, uses a computer program to tell them whether or not they should pay a bill.
These are examples where the only way some people can get what they bargained for when they purchased the insurance policy is to seek the assistance of an experienced Insurance Law Attorney.

Car owners from Grand Prairie, Saginaw, Colleyville, Keller, Grapevine, Haslet, Boyd, Rhome, Hurst, Euless, Bedford, and other areas in the Dallas - Fort Worth metroplex would be interested in this case.
The style of the case is, Hector Valdez v. Colonial County Mutual Insurance Company. The opinion was issued in 1999, by the Texas Court of Appeals in Austin. It is an appeal from a summary judgment ruling in favor of Colonial. Here is some background.
On November 9, 1994, Valdez purchased insurance on his 1992 Plymouth Acclaim. Shortly after Christmas of that same year, Valdez sold and transferred the title of the vehicle to his adult son, Rene. Rene, with cosigner Liliana De La Garza, obtained new financing for the vehicle from Mercantile Bank. On December 29, 1994, Valdez notified Colonial about the new lien holder. Valdez did not report the change in title to Colonial, but Colonial's Change in Policy Request form did not request such information.
At the time he purchased the car, Rene worked in Mexico City. Because he could not take the car into Mexico, Rene left the vehicle with Valdez at Valdez's residence. Valdez continued to use the vehicle and pay the policy premiums. He renewed the policy from November 9, 1995, through November 9, 1996. On January 14, 1996, more than a year after Rene bought the car, the vehicle was stolen while parked outside Valdez's residence. Valdez filed a claim with Colonial. Despite accepting Valdez's premium payments for over a year after the reported change in lienholder, Colonial refused to honor the claim and filed suit seeking a declaratory judgment that Valdez did not have an insurable interest in the stolen vehicle.
There were a couple of legal arguments in this case but the relevant issue for this article is the one dealing with "insurable interest." Colonial argued and the trial court agreed that this was the main point to be resolved.
This appeals court then said that for Valdez to recover under the automobile insurance policy, he need only have an insurable interest in the vehicle; ownership of the covered vehicle is not required. An insurable interest exists when the insured "derives pecuniary benefit or advantage by the preservation and continued existence of the property or would sustain pecuniary loss from its destruction." This is citing from Couch on Insurance. An insurable interest may be defined as any lawful and substantial economic interest in the safety or preservation of the subject free from loss, destruction or pecuniary damage. The purpose of the insurable interest requirement it to discourage insurance for illegitimate purposes.
Citing another legal treatise this court said that while an insurable interest "is not dependent upon an absolute right to ownership of, or possession of, property, and while neither legal or equitable title is necessary, a person must have such a right or interest as the law will recognize and protect." Citing an Austin Court of Appeals case, Jones v. Texas Pac. Indem. Co., this court stated "If a claimant cannot suffer any pecuniary loss or derive any benefit from the property, he has no insurable interest."
The Texas Supreme Court in, Smith v. Eagle Star Insurance Co., where a house located on land owned by the State was destroyed by fire. said, "It was undisputed that Mrs. Smith had undisturbed use of the house prior to and at the time she purchased fire insurance on the house and at the time the loss occurred. Because the fire caused her a loss of this use, Mrs. Smith was entitled to the insurance proceeds because she held an insurable interest in the property."
Based on the language in the above treatise and prior case law this appeals court reversed the summary judgment ruling in favor of Colonial and remanded the case to the trial court for further findings.
These cases are fact specific and the assistance of an experienced Insurance Law Attorney is a must in order to make sure the insureds' interests are properly protected.

Employers in Grand Prairie, Weatherford, Arlington, Fort Worth, Dallas, Mansfield, Irving, Garland Mesquite, Richardson, and other places across Texas will have insurance coverage on their vehicles, equipment, and employees. At some point there is likely to be times where there is a dispute about the coverage the insurance provides. Here is a case to think about when the term "domestic employee" is used in the policy of insurance that the company has purchased.
The case is styled, Paul Robertson v. Home State County Mutual Insurance Company. The opinion was issued by the Texas Court of Appeals for the Second District in Fort Worth. Here is some background information.
Paul Robertson had obtained a judgment against his employer, Ray Redi-Mix, Inc., for damages for personal injuries that he sustained while on the job. Home State County Mutual Insurance Company (Home State) was an insurer of Redi-Mix. Home State denied coverage under several exclusions contained in the policy of insurance. Home State obtained a summary judgment based on these exclusions.
Factually, here is what happened. Robertson was an employee of Redi-Mix. On November 3, 2005, Robertson informed Redi-Mix that the truck assigned to him had a defective tarp but Redi-Mix instructed him to make do with the tarp. The next day, the tarp malfunctioned and Robertson was seriously injured.
Redi-Mix did not provide workers' compensation insurance. It did have the Home State policy covering the trucks. The policy provided coverage for "all sums an insured legally must pay as damages because of bodily injury or property damage to which the insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto." The policy contained the following relevant exclusions to which coverage did not apply:
3. WORKERS COMPENSATION
Any obligation for which the insured or the insured's insurer may be liable under any workers compensation, disability benefits or unemployment compensation law or any similar law.
4. EMPLOYEE INDEMNIFICATION AND EMPLOYER'S LIABILITY
Bodily injury to:
a. An employee of the insured arising out of and in the course of employment by the insured; and
b. The spouse, child, parent, brother or sister of that employee as a consequence of paragraph a. above.
This exclusion applies:
(1) Whether the insured may be liable as an employer or in any other capacity; and
(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.
But this exclusion does not apply to bodily injury to domestic employees not entitled to workers compensation benefits or to liability assumed by the insured under an insured contract.
Robertson obtained a final judgment against Redi-Mix for, among other things, damages in the amount of $967,631.52.
Home State prevailed in its summary judgment motion on two relevant grounds (1) that coverage under the policy for Robertson's claims is excluded under the workers' compensation exclusion and (2) that coverage under the policy for Robertson's claims against Redi-Mix is excluded under the employee exclusion and did not fall within the "domestic employees" exception.
Robertson contended that the "domestic employees" exception to the employee exclusion applied to extend coverage to him under the policy because he was "employed in the United States" and because he was not entitled to workers' compensation benefits as an employee of Redi-Mix, a nonsubscriber. He thus advocated interpreting "domestic employees" to mean persons who work in the United States as opposed to persons who perform certain duties at a personal residence. Alternatively, he argued that the term "domestic employees" is, at the very least, ambiguous and, therefore, that his interpretation must be adopted.
In this case, the court pointed out that there is no dispute that Robertson was an employee of Redi-Mix. Thus the court focused on the applicability of the "domestic employees" exception to the employee exclusion.
In discussion the court recognized that the term "domestic" has several accepted meanings. It is defined as both "relating to the household or the family" and "relating and limited to one's own country." In light of these two definitions, Robertson argued that a "domestic employee" as used in the policy's employee exclusion - is a person who works in the United States or, alternatively, that the term is ambiguous because there is more than one accepted meaning. But the court pointed out that "no one phrase, sentence, or section of the policy should be isolated from its setting and considered apart from the other provisions." And that Robertson is doing exactly that by isolating "domestic employees" from the "not entitled to workers compensation benefits" part of the exception.
This appeals court got into an in depth discussion regarding the definition of "domestic employees" by looking at that term as defined and used in the Texas Workers Compensation Act and the Texas Motor Vehicle Safety Responsibility Act. This would be Texas Labor Code, Section 406.002(a) and 406.091(a)(1) and the Texas Transportation Code, Section 601.051(1) and 601.075(2).
The value in reading this case is in understanding how the courts in Texas look at insurance policies and their interpretation. Of course the best course of action is to get an experienced Insurance Law Attorney involved when having problems.

Workers in Grand Prairie, Fort Worth, Arlington, Irving, Dallas, Mansfield, Cedar Hill, Duncanville, Mesquite, Garland, and other places in the metroplex area would have an interest in the following case.
This a United States Court of Appeals for the Fifth Circuit case styled, Habiba Ewing v. Metropolitan Life Insurance Company. The opinion was issued on June 7, 2011, after an appeal from the district court. The appeals court confirmed the finding in favor of Metropolitan.
Here is some information:
Ewing worked for Shell Oil Company and was covered by the company's long term disability benefits plan ("PLAN"). Metropolitan (MetLife) insures the payment of benefits under the plan and reviews claims filed thereunder. Ewing filed for long term disability benefits after Ewing injured her shoulder, leading to shoulder surgery followed by ongoing complaints of pain. MetLife denied her claim on the ground that she was not "disabled," as the term is defined by the Plan. Ewing administratively appealed MetLife's determination, but was unsuccessful.
The terms of the Plan grant MetLife "discretionary authority to interpret the terms of the plan and to determine eligibility for and entitlement to plan benefits in accordance with the terms of the plan." This court pointed out that the law in this area of controversy says that where a plan governed by ERISA grants the administrator "discretionary authority with respect to the decision at issue," the court is to look only for abuse of this discretion. The administrator's decision must be supported by substantial evidence. "Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Ewing argued that MetLife abused its discretion by applying an incorrect definition of "disabled." The Plan provided the following definition of disability:
that, due to an Injury or Sickness, you require the regular care and attendance of a Doctor and ...:
1.a. During the Elimination Period [before long term disability payments become available] and the 24 month period immediately following the Elimination Period, you are unable to perform each of the material duties of your regular job or a Comparable Occupation with the Employer which the Employer will have offered to such Employee, provided a Comparable Occupation is available; and
b. after the first 24 months of benefit payments, you must be unable to perform each of the material duties of any gainful work or service for which you are reasonably qualified taking into consideration your training, education, experience and past earnings.
MetLife's summary plan description provided a briefer but similar definition:
To qualify for LTD benefits you must be disabled; that is you must:
Be under a doctor's care;
Be unable by reason of your illness or injury to perform the duties of your own job, or another job available within a participating company for which you are reasonably qualified, for at least 52 consecutive weeks;
Apply for benefits, including submitting medical evidence of disability acceptable to MetLife; and
Obtain MetLife's approval of your claim.
Ewing argued that MetLife misinterpreted these definitions by erroneously considering Ewing's employer's willingness to accommodate her symptoms when evaluating whether those symptoms prevented her from doing the duties of her job. The court disagreed, stating, "By the terms of both the Plan and the summary description, MetLife was required to consider whether Ewing's injury or illness prevented her from performing the duties of her job or a comparable position within the company. It was not an abuse of discretion for MetLife to consider the employer's accommodations as part of its inquiry into the scope of Ewing's duties."
Ewing next argued that MetLife abused its discretion by failing to employ a vocational rehabilitation expert. The court rejected this because it was not brought up at the district court level and to do it now, on appeal, was too late. But the court addressed this issue anyway saying that Ewing has not shown that it was an abuse of discretion to decline to employ a vocational rehabilitation expert in this case.
Ewing's final argument was a procedural one. Ewing claimed the district court erred by not allowing Ewing to supplement the record with additional medical records. The court correctly pointed out that the law is clear in these ERISA cases. "The law of this circuit is that 'when assessing factual questions, the district court is constrained to the evidence before the plan administrator.'"
ERISA cases can be very difficult. Only an experienced Insurance Law Attorney should be consulted on these types of cases. There are ways of defeating the decision of the plan administrator but it is difficult and requires careful work. Even then, the results cannot be guaranteed. However, in the event an administrator is denying a claim for benefits there is nothing to be lost by getting an attorney to look over the case.

Here is one that would be interesting to people in Weatherford, Mineral Wells, Aledo, Azle, Millsap, Brock, Cool, Peaster, Hudson Oaks, Willow Park, Springtown, and other places in Parker and Palo Pinto counties. It involves events after a car theft.
The style of this case is, Jose Manuel Campa Gonzalez v National Insurance Crime Bureau; Progressive Casualty Insurance Co. The opinion was issued on June 7, 2011, by the United States Court of Appeals for the Fifth Circuit. Here is some background on the case.
Gonzalez was arrested and incarcerated for eleven days in Mexico for hawking a car that the Mexican authorities erroneously believed was stolen. Gonzalez later sued National Insurance Crime Bureau (NICB) and Progressive claiming they were legally liable for the actions of the Mexican police. While Gonzalez's arrest and imprisonment were traumatic and, on hindsight, unnecessary, the court nevertheless agreed with the district court ruling, that it was no fault of NICB or Progressive.
Here is a sequence of events:
In 2005, a Cadillac Escalade was stolen in Queens, New York. Progressive insured the vehicle and compensated the owner for the loss: Progressive in turn took the vehicle's title. The NCIB investigated the theft and found that the Escalade had been recovered in New Mexico. Progressive placed the Escalade for auction with an auto auctioneer, Copart.
Gonzalez saw the Escalade with Copart and decided to purchase it. Because he did not have a Copart purchasing license, he instructed one of his friends with a license to purchase the Escalade on his behalf. The friend won the auction, paid Copart a cashier's check and took title to the Escalade. The friend gave Gonzalez the Escalade and the relevant purchase documents, but Gonzalez never officially took title to the Escalade.
Although Gonzalez intended to use the Escalade as a family car, he discovered that the transfer document from Copart was stamped "for export only," and therefore, he could not register the car in his home of El Paso, Texas. In an effort to recoup his losses, Gonzalez took the Escapade across the border to Juarez, Mexico, where he attempted to sell it at a swap meet for cars. In doing so, Gonzalez attracted the attention of Mexican law enforcement officers, who ran a background check on the VIN. The database on which the background check was conducted, however, apparently had not been updated in some time, and the Escalade was still on file as stolen. Even though Gonzalez presented the sales documents from Copart, the Mexican officials arrested him, and he was prosecuted in Juarez for possession of a stolen vehicle. He spent approximately eleven days in jail before posting bond.
Meanwhile, in reliance on an NICB report, the American Consulate in Juarez requested that the Escalade be returned to the United States. Later, on July 25, 2007, Progressive notified the NICB by letter that the Escalade was no longer stolen at the time of Gonzalez's arrest.
Gonzalez sued NICB and Progressive under four theories of law.
First, Gonzalez sued for malicious prosecution arguing that NICB and Progressive caused his arrest and incarceration in Mexico because "but for their actions the prosecution would not have occurred." He argued that his prosecution in Mexico was "clearly foreseeable" to Progressive and the NICB, and their claims of ignorance are unfounded.
The court pointed out that a malicious prosecution claim under Texas law requires a showing of, among other things, "the absence of probable cause for the proceedings" and "malice is filing the charge." The court said "that the Mexican officials' information turned out to be outdated does not defeat the fact that they had probable cause at the time of the arrest, in part because Gonzalez had no documents proving his title to the vehicle. Moreover, Gonzalez offered no evidence that Progressive or the NCIB acted with 'malice' as the law requires."
The second claim was for conversion. Gonzalez asserted that Progressive and the NCIB wrongly exercised dominion and control over the Escalade, and that as a result, he was entitled to recover for conversion. As the court said, the evidence showed no exercise of control over the Escalade by Progressive since it was sold through Copart. And there was no evidence that the NICB obtained the Escalade on behalf of Progressive.
It is pointed out by Gonzalez that NICB retrieved the vehicle after Gonzalez arrest. But the court pointed out that NICB never refused to return it to Gonzalez. Thus, Gonzalez had not shown that the NICB took "unauthorized and unlawful exercise of dominion and control" over the Escalade "to the exclusion of, or inconsistent with, Gonzalez's rights" to the vehicle.
Third, Gonzalez argued that the NICB and Progressive were negligent in failing to disclose the stolen vehicle report for the Escalade at its auction sale. Gonzalez believed further that Progressive and the NICB should have, among other things, reported to other government agencies that the vehicle had been recovered.
The court pointed out that neither Progressive or the NICB had any legal duty to prevent a law enforcement agency from mistakenly arresting Gonzalez.
The fourth and final claim by Gonzalez was fraud. Gonzalez claimed fraud was committed in failing to disclose to Gonzalez that the Escalade had been stolen. The burden on Gonzalez was to show that there was a duty to disclose this information to him. The court pointed out that no such duty existed under the facts of this case.
The lesson to be learned here is: get the title put in your name.

Here is one for people in Grand Prairie, Arlington, Irving, Mansfield, Fort Worth, Dallas, Mesquite, Garland, Richardson, Farmers Branch, and other places in Texas to think about.
What if you get sued but do not tell your insurance company but the person who sued you does tell the insurance company, does the insurance company have to defend you in the lawsuit?
In 2008, the Texas Supreme Court in the case styled, National Union Fire Insurance Company of Pittsburg, PA. v. Beatrice Crocker, issued an opinion dealing with this issue. Here is some background and a discussion.
Beatrice Crocker was a resident of Redwood Springs Nursing Home, which is owned by Emeritus Corporation. She filed suit in state court against Emeritus and Richard Morris, a nursing home employee, seeking compensation for injuries suffered when she was hit by a door swung open by Morris. Crocker's claim against Emeritus were covered under a commercial general liability policy issued by National Union Fire Insurance Company of Pittsburg, PA. Because Morris was acting within the course and scope of his employment when the accident occurred, he qualified as an additional insured under the policy. National Union defended Emeritus, the named insured, but did not defend Morris even though the claims against him were covered by the policy and National Union knew he was a named defendant that had been served. Morris was not aware he was an additional insured under the policy. National Union did not inform Morris he was an insured, nor did it offer to defend him. Morris was served with the lawsuit papers but he did not forward them to National Union or Emeritus. Morris did not answer the suit nor appear at trial to defend himself. National Union did attempt to contact Morris but to no avail. Repeated phone messages were not returned.
A judgment was taken against Morris for $1,000,000.
Crocker then sued National Union asserting she was a third party beneficiary to the policy. National Union argued that Morris never triggered the duty to defend because he failed to forward the suit papers or otherwise notify National Union that he had been sued and he did not ask National Union to provide a defense. The policy provides:
"Before coverage will apply, you must notify us as soon as possible of an occurrence or offense which may result in a claim or suit against you.
Notice should include:
*How, when and where the occurrence or offense took place;
*Names and addresses of any witnesses and injured people;
*Nature and location of any injury or damage.
Before coverage will apply, you must notify us in writing of any claim or suit against you as soon as possible. You must:
*immediately record the specifics of the claim and the date you received it;
*send us copies of all demands, suit papers or other legal documents you receive, as soon as possible."
The relevant question before the court was, "Where an additional insured does not and cannot be presumed to know of coverage under an insurer's liability policy, does an insurer that has knowledge that a suit implicating policy coverage has been filed against its additional insured have a duty to inform the additional insured of the available coverage? The court answered, no.
In explaining its answer the court stated, "Insurance policies are written contracts, and, as with other contracts, we interpret and enforce them according to settled rules of construction. Most importantly, we must give the policy's words their plain meaning, without inserting additional provisions into the contract."
The case used several paragraphs of it's opinion clarifying this point. What is important to realize is that this is not a real unusual situation and an experienced Insurance Law Attorney needs to be consulted when it does happen. There are ways of handling these types of cases to make sure coverage is provided.

Grand Prairie residents and residents of Arlington, Mansfield, Burleson, Crowley, Benbrook, Fort Worth, Lake Worth, Hulen, and other areas of Tarrant County who have automobile insurance coverage are always given the opportunity to purchase, with their automobile insurance, Personal Injury Protection, otherwise know as PIP.
PIP coverage is required to be offered along with automobile insurance coverage pursuant to the Texas Insurance Code, Section 1952.152. Here is a case dealing with that coverage.
The style of the case is, Texas Farmers Insurance Company v. Carabell Fruge. This is a case decided by the Texas Court of Appeals, Beaumont, in 2000. Here is some background information.
Jackie Ryan had purchased an automobile liability insurance policy from Farmers that provided her with $2,500 in PIP coverage. Fruge was a passenger in Ryan's vehicle and was injured in a car wreck. After her injury, Fruge's attorney filed on her behalf a PIP claim with Farmers supported by documents reflecting medical expenses of $3,490. Some of the supporting documents contained some reference to Medicare. At least one document was stamped "Benefits Assigned." Farmers responded to Fruge's claim by mailing her six checks totaling $2,500.30. Four of the checks, totaling $1,854.30, named medical providers, Medicare, or both as co-payees with Fruge. All six checks named the law firm representing Fruge as a co-payee. Fruge's attorney returned all six checks with a letter advising Farmers that "some or all" of the medical bills related to the checks naming co-payees had been paid, complaining that it would take six months to get all of the necessary endorsements, and demanding payment naming Fruge as the sole payee.
As the court stated, this case raises questions related to PIP coverage provided in the Farmers contract of insurance. The issue is whether Farmers breached its contract by placing the names of medical providers and Medicare as co-payees on checks paying PIP benefits to Fruge. This court held that Farmers did breach its contract as it relates to all except naming Medicare as a co-payee.
Fruge's attorney brought an action pursuant to Section 1952.157 against Farmers to recover $2,500 in benefits, as well as penalty and attorneys fees as provided. The trial court ruled against Farmers and this appeal followed.
This court rejected Farmers assertion that it was obligated to honor assignments to Fruge's medical providers because according to the terms of the policy the stamped notations "Benefits Assigned" was not an assignment. According to the terms of its policy, Farmers would honor assignments for medical expenses if it received a written assignment signed by the covered person to whom such benefits were payable. As such, Fruge was right to expect that PIP benefits would be made payable to her alone.
But as the court said, naming Medicare as a co-payee is another matter. Federal law provides that any portion of medical costs by Medicare for which private insurance is the primary payer is conditioned upon reimbursement from the insurer. This is per 42 U.S.C. Section 1395y(2)(B)(i). Medicare is a secondary payer for services covered under no-fault insurance per 42 U.S.C. Section 1395y(2)(A)(B)(ii). And "no-fault" insurance includes PIP coverage per 42 C.F.R. Section 411.50(b). This is an instance where federal law preempts state law. State law can be preempted by federal rules as well as federal statutes. To avoid the risk of making the same payment twice, Farmers may have been correct in not making an unconditional payment to Fruge reimbursing her for expense it should have known had already been paid by Medicare.
The court went on to rule that while Farmers is correct in its assertion that federal statutes and rules preempted state law, it cannot, on the fact of the record, claim that it had reason to suspect that Medicare was entitled to the sum represented by the checks that named Medicare as co-payee. Though the record speaks of six checks and Farmers appears to have named Medicare as payee on checks totaling $1,352, the record only showed a Medicare payment of $168.56. Thus it appeared that Farmers wrongfully named Medicare as a co-payee to part of the PIP benefits.
The judgment was ordered to be reformed to reflect this opinion.
Even on something that should be as simple as PIP payments, a person should seek the advise and counsel of an experienced Insurance Law Attorney to insure their rights are not being abused by the insurance company.

Residents of Weatherford, Aledo, Azle, Hudson Oaks, Millsap, Brock, Willow Park, Mineral Wells, Springtown, Cool, Peaster, Poolville, and other places in Parker County would be surprised by the fact that driving without a drivers license and being involved in a wreck does not mean the unlicensed driver is at fault.
The Texas Supreme Court issued an opinion in a case in 1959, that is still good law today and is interesting reading. The style of the case is, James Eugene Flanigan et al v. Jack Carswell et al. The issues and the facts in the case are kinda complicated and confusing but we will focus on the part dealing with a drivers license.
Carswell was the owner and operator of an ambulance which had been issued a permit as an emergency ambulance by the Texas State Board of Health. At trial, a jury found that at the time of the collision Carswell was on an authorized run, and that the ambulance was traveling at a rate of speed in excess of 30 MPH, but less than 40MPH. It was undisputed that Carswell had only an ordinary Texas operator's license while driving the ambulance. Flanagan and the other plaintiffs argued that because Carswell was operating the vehicle with only an ordinary license rather than a chauffeur's license when he was exceeding the 30 MPH speed limit, that his actions were negligence per se. So the jury had no choice but to find as a matter of law that Carswell's action in exceeding the 30 MPH limit was negligence. Understand the argument by Flanigan was that as an ambulance driver Carswell could have been operating legally up to 40 MPH. But because he did not have the chauffeurs license, he was breaking the law and negligent per se.
In ruling on this case the court could not agree with the plaintiff's argument. In discussion the court said this contention would lead to a holding either (1) that an ambulance meeting the statutory definition of an "emergency vehicle" in all respects, but which at the time of the collision was being driven by Carswell, who was not licensed as a chauffeur, was not an "emergency vehicle" within the purview of the statute permitting an "emergency vehicle" to exceed ordinary speed limits, or (2) that, even though the ambulance was an emergency vehicle and could lawfully travel at a speed of 40 MPH, the nonchauffeur-licensed driver of that ambulance could not accelerate its speed faster than 30 MPH. The contention would thus be reduced to the narrow proposition that the status of an emergency vehicle operated on an emergency run is dependent upon the driver's license, at least in so far as the vehicle is authorized to exceed the ordinary speed limits.
The court stated it is unimportant to their decision whether or not an ambulance driver is required to be licensed as a chauffeur. Therefore, for the purposes of the case, they assumed that Carswell should have had such a license, and that his driving without a proper license was a violation of the penal code. But they held that an ambulance was an "emergency ambulance" and that the failure of Carswell to have a chauffeur's license did not render his driving negligence per se.
Important to the ruling was the fact that Carswell was driving the emergency ambulance without securing a valid driver's license would not absolve Flanigan of negligence as the operator of the other motor vehicle.
The important thing to realize from this case is that a person who is violating the law while operating a motor vehicle is not automatically at fault for any resulting accident. A victim would have to show that the violation of the law was a contributing factor to the accident. Here is a good example. Suppose an unlicensed, drunk driver, with an expired inspection sticker and license plate is legally stopped at a red light. Then suppose that another driver runs into this stopped driver. Who's fault is the accident? Hopefully you will agree that the driver who drove into the rear of the driver who was legally stopped at the red light was the one at fault.
For the driver who was legally stopped at the red light to be at fault there would have to be proof that some of the illegal things he was doing caused the accident. In the scenario as described there is simply no fault to be put on him.