Dallas Fort Worth Insurance Lawyer Blog

Succesful Claim Against Home Builder In Texas

2010-03-10T14:26:16Z

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.

Do Texas Laws Govern All Texas Policies

2010-03-09T15:10:20Z

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.

Rate Hikes Result In Lawsuit

2010-03-08T15:42:37Z

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.

Health Insurance Exclusions

2010-03-07T20:40:12Z

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.

An Understanding Of How Exclusions Work In An Insurance Policy

2010-03-06T15:16:50Z

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.

Interpreting An Insurance Policy In Texas

2010-03-06T00:27:56Z

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.

Excluded Drivers In Texas

2010-02-26T14:41:17Z

There are lots of people in the Fort Worth, Dallas, Grand Prairie, Arlington, and Weatherford, areas of Texas who have problems getting affordable insurance. The reasons can be many, examples are, they are young, too many tickets, too many wrecks, a DWI conviction, license suspension issues, and medical conditions.
What happens if you have insurance on your car but when you bought the insurance you signed a document called a "named driver exclusion" on your spouse because the insurance company would not cover her because she suffered from epileptic seizures. That is what happened in the case, Janie Zamora, Pete Zamora, Jesus Toe, and Gracie Vela v. Dairyland County Mutual Insurance Company. This case was decided by the Court of Appeals in Corpus Christi, Texas.
The facts are, on December 2, 1993, Gracie Vela (wife of Jesus Toe) was operating Jesus' automobile when she was involved in an accident with Pete and Janie Zamora. At the time of the accident, Gracie was named as an excluded driver in Toe's policy with Dairyland County Mutual Insurance Company. The Zamora's sued Gracie for her negligence and Jesus for negligently entrusting his car to Gracie. Dairyland denied coverage to Gracie and Jesus based on the named driver exclusion in the policy.
The arguement was that the named driver exclusion should be be held invalid by the Court as being against public policy and in violation of the Texas Motor Safety -- Responsibility Act (the Act). Previous Courts have held a family member exclusion to be invalid.
Here though, the Court drew a distinction between the invalid, "family member exclusion," and the present "named driver exclusion." The Court said there is no analogy between the two.
In a named driver exclusion the policy holder is given an option to exclude from coverage drivers who, by virtue of their driving history or other factors, are deemed high risk drivers. The Court said, by focusing on the risk involved, the named driver exclusion does not contradict the public policy underlying the Act, but instead furthers Texas public policy on two levels.
First, this exclusion furthers public policy by enabling drivers with family members having poor driving records to get insurance they can afford. Second, this exclusion deters insured drivers from entrusting their automobiles to unsafe excluded drivers, thus keeping those unfit drivers off the road.
The Court looked at the policy which read in pertinent part, "You agree that none of the insurance coverage afforded in this policy shall apply while Gracie Toe ... [The Excluded Driver] is operating your covered auto or any other motor vehicle." The Court then said, "The exclusion's purpose is to suspend coverage when a specific person, considered or known to be an unsafe driver, is operating a covered vehicle." Gracie was in fact operating the vehicle covered by the policy of insurance and the Court ruled in favor of Dairyland.

Permission? To Operate The Vehicle

2010-02-25T15:00:54Z

A Dallas Appeals Court upheld a lower Court ruling in an interesting case. The ruling applies to the same facts anywhere in Texas, including, Fort Worth, Arlington, Grand Prairie, or Weatherford.
This case is valid law today but was decided in 1989. The fact pattern is unique. The style of the case is United States Fire Insurance Company v. United Service Automobile Association.
The underlying liability lawsuit arose out of an accident that occurred when an Anna Milliken was riding as a passenger, with a Douglas Martin, being the driver. The car Douglas was driving was owned by his father and was covered by the United States Fire Insurance Company (U.S. Fire) policy. Anna's insurance was United Service Automobile Association. Douglas testified about some swerving and horseplay prior to the accident. Anna testified that Douglas was zigzagging the wheel back and forth and that she grabbed the wheel on two occasions prior to the accident. She was doing this to play back with Douglas. The first time she did this, Douglas did not object, and the second time was when the accident occurred causing serious injury to Douglas. Douglas sued Anna for his injuries.
The issue in this case was between the insurance companies and which one should be defending and paying on behalf of Anna. U.S. Fire argued that Anna was not using the vehicle with a reasonable belief that she was entitled to use the vehicle.
The Court got into a lengthy discussion about what it means to "use" a vehicle. They cited many acts that constitute use of a vehicle. They ruled that the fact that she was a passenger in the Martin automobile was enough by itself to constitute "use" of the automobile. The Court cited many other interesting examples of "use."
"Use" was the first issue. The second issue was, whether or not Anna had a reasonable belief that she was entitled to be operating the vehicle. This discussion was also interesting in that U.S. Fire kept argueing from the standpoint of what Douglas may have thought about this belief. However, the Court focused on whether or not Anna believed she could be doing what she did. In other words, the inquery was whether Anna had a "reasonable belief" that she was entitled to operate the automobile at the time of the accident. Stated another way, did Anna have a "reasonable belief" that she was entitled to grab the steering wheel when she did. The Court ruled that she did.
In Texas, there are many different forms for the policy's issued. A close reading of these policy's is vital to determining the rights of people making claims against those policy's. One should not hesitate to speak with an experienced Insurance Law Attorney when making a claim against an insurance company. As can be seen in this case, two insurance companies were fighting between themselves over the meaning of the policy language to determine which of them should be responsible on the claim..

Cooperating With Your Own Insurance Company

2010-02-24T15:00:29Z

A case decided in Fort Worth, Texas on June 11, 2009, is important to understand. The result of this case is the same in Weatherford, Grand Prairie, Arlington, or Dallas.
The style of this case is Garry Jenkins v. State and County Mutual Fire Insurance Company. The facts in this case are undisputed. Garry Jenkins foot was crushed when a tank skid fell off a truck driven by Mark Lemmon. The accident happened when Mark applied the brakes too quickly, causing the skid to break free and fall on Garry's foot. Both Garry and Mark were working as independent contractors for L & G Pipe. L & G Pipe was owned by two people, Deborah Grisamer and Richard Lemmon.
At the time of the accident, State and County Mutual Fire Insurance Company had a policy of insurance with Deborah as the named insured. The policy was in effect on the date of the accident and the policy listed the truck as a "covered auto." The wording in the policy is important in this case and provided as follows:
2. DUTIES IN THE EVENT OF ACCIDENT, CLAIM, SUIT OR LOSS
...
b. ... you and any other involved insured must ... immediately send us copies of any demand, notice, summons or legal paper received concerning the claim or suit and cooperate with us in the investigation, settlement or defense of the claim or suit.
3. LEGAL ACTION AGAINST US
No one may bring a legal action against us under this Coverage Form until:
a. There has been full compliance with all the terms of this Coverage Form; and
b. Under Liability Coverage, we agree in writing that the insured has an obligation to pay or until the amount of that obligation has been fully determined by judgment after trial.
Mark was also listed as a "driver" on the policy.
Garry sued Mark, Deborah, Richard, and L & G Pipe for negligence. Garry obtained service of legal process on Deborah, Richard, and L & G Pipe, but not Mark. State and County obviously knew that Mark had been sued and in fact defended Deborah, Richard, and L & G Pipe. The case went to trial and the jury placed 100% responsibility for Garry's injury on Mark.
Garry then sued State and County, seeking to collect the judgment he had obtained against Mark. It is clear that Mark had not fulfilled the policy requirements set out above. Garry argued that State and County had actual knowledge of what was happening and the fact that Mark had not handed any legal papers to State and County did not make a difference in this situation.
The Court ruled in favor of State and County. The Court's reasoning was the policy language was clear and that prior Court rulings in the State of Texas, supported the wording of the policy. The policy makes clear what is required for an insured to do before the insurance company has to defend or pay claims made. One sentence the Court said was: "Put simply, there is no duty to provide a defense absent a request for coverage."
The Court explained that notice and delivery of suit papers provisions in insurance policies serve two essential purposes: (1) they facilitate a timely and effective defense of a claim against the insured and, more fundamentally, (2) they trigger the insurer's duty to defend by notifying the insurer that a defense is expected. The Court went on to say that mere awareness of a claim or suit does not impose a duty on the insurer to defend under the policy; there is no unilateral duty to act unless and until the insured first requests a defense - a threshold duty that the insured fulfills under the policy by notifying the insurer that the insured has been served with process and the insurer is expected to answer the lawsuit on its insured's behalf. The insurer does not have to assume such.
This case is important in making one realize the duties under an insurance policy. It is vital for a party involved in issues concerning insurance policies contact an experienced Insurance Law Attorney. The attorney will understand what needs to be done to get protection under the policy at issue. And the attorney will understand other constraints that might become relevant in these situations.

Deceptive Trade Practices Act

2010-02-23T15:00:55Z

The people living in Weatherford, Grand Prairie, Arlington, Dallas, or Fort Worth, is protected by the laws in Texas, against businesses that try to take advantage of them. These laws are found in the Texas Business & Commerce Code, Section 17.
To be eligible for protection under the DTPA, all you have do is prove your status as a consumer. Proving consumer status under the DTPA requires the plaintiff to prove it was a person or entity listed in Texas Business & Commerce Code, Section 17.45(4) that sought or acquired goods or services by purchase or lease. In determining the plaintiff's consumer status, the focus is on the plaintiff's relationship to the transaction, not on the plaintiff's contractual relationship with the defendant. Thus, the plaintiff does not need to prove it is in privity of contract with the defendant to have standing as a consumer. Instead of privity, the plaintiff is required to show that the defendant was "connected with" the transaction.
This Blog primarily deals with issues related to different forms of insurance issues. The importance of the DTPA is that most violations of the Texas Insurance Code are also violations of the DTPA and subject to the penalties of both sets of laws regulating the matters. Relevant Insurance Code Sections are, 541.003, and 541.051 thru 541.061.
Each state in the Union has its own sets of laws dealing with violations of the DTPA laws. But the laws between the states are very similar, as are the laws regarding insurance regulation in the various states.
The Miami Herald published an article on February 16, 2010, regarding a DTPA violation in Florida. The title of the article is "Thousands To Get Checks In Countrywide Settlement". In the article, it speaks of a lawsuit involving about 2,700 Floridians getting settlement checks from Countrywide Financial. In the lawsuit, the Florida Attorney General sued Countrywide under the Florida DTPA. Countrywide is alleged to have taken advantage of the Floridians in the way their home loans were handled. The 2,700 Floridians will be receiving checks from Countrywide for about $6,000 each.
Anytime a consumer believes they have been cheated or taken advantage of by a business the consumer should talk to an attorney who deals with DTPA claims. The consultation is usually free and the consumer has nothing to lose by talking with the attorney.

How To Beat Appraisal Clause In Insurance Contract

2010-02-22T15:02:59Z

A lot of homeowners insurance policies in Texas have "appraisal" clauses written into them. So whether you live in Weatherford, Texas, or in Grand Prairie, Arlington, Fort Worth or Dallas, if you have homeowners insurance you need to be aware of these appraisal paragraphs.
An appraisal paragraph is of benefit to the insurance company. That is why they put it into the insurance policy. When the homeowner and the insurance company cannot reach an agreement on the amount of money that should be paid on a claim, the insurance company will try to invoke the appraisal clause in the insurance contract. Appraisal happens when the insurance company knows they owe the homeowner money, but there is a dispute as to how much money is owed.
The United States District Court, Southern Division, recently handled a case where the issue was whether the homeowner properly defeated the insurance company trying to invoke the appraisal process. The style of the case is, Hector Sanchez v. Property and Casualty Insurance Company of Hartford and Irene Bernardo. The courts' opinion was handed down on January 27, 2010.
In this case Sanchez made a claim for benefits on October 26, 2008. This was after Hurricane Ike struck Harris County, Texas, on September 12, 2008. The next day Property and Casualty Insurance Company of Hartford (Hartford) sent adjuster Irene Barnardo out to inspect the Sanchez home. Bernardo concluded that Sanchez had suffered a loss, but that the loss was only $150, an amount below Sanchez's deductible of $5,850.
In a letter dated October 29, 2008, Hartford refused to make a payment on his claim. Sanchez called to complain the next day. Six months later, Sanchez called Hartford complaining about their handling of the claim and then filed a lawsuit on April 29, 2009, which Hartford received on May 12, 2009.
When making a claim for insurance benefits the Texas Insurance Code, Section 541.154 provides that a person must give a 60 day written notice to the insurance company before filing a lawsuit.
Hartford, successfully had the case removed to Federal Court on June 5, 2009 and filed an answer to the lawsuit on June 29, 2009. Two months later, on August 3, 2009, Hartford filed a motion with the Court having the case abated for 60 days so that the time required for notice could be observed. The case was unsuccessfully mediated in September. Then on October 15, 2009, Hartford sent Sanchez correspondence seeking to invoke the appraisal clause in the insurance policy.
The bad thing for policy holders is that most appraisal clauses have requirements in them similar the Sanchez appraisal clause. It required Sanchez to: 1) pay for his own appraiser and, 2) bear the other expenses of the appraisal and umpire equally with the insurance company.
Without getting into more details of this case and the law associated with it, Sanchez prevailed, and did not have to submit to the appraisal process. The bottom line to his victory were the arguements his lawsuit attorney was able to make regarding the time frame that had past without Hartford invoking its right to the appraisal process.
An experienced Insurance Law Attorney would understand how this process works. It is important for a policy holder to get an attorney involved early in this process to more assure the policy holder will not get cheated by having to submit to the appraisal process.

Claim For Underinsured Benefits Denied

2010-02-21T15:00:54Z

It is always smart to purchase uninsured motorist benefits coverage because of the number of people driving around with no insurance or insufficient insurance to cover a lot of losses that occur. This is particularly true in the Grand Prairie, Arlington, and Dallas - Fort Worth areas of Texas.
Uninsured or underinsured motorist coverage is required to be provided to drivers purchasing auto coverage in Texas. This requirement is found in the Texas Insurance Code, Section 1952.101.
The Court of Appeals, Texarkana, Texas, recently ruled in a case involving underinsured coverage benefits. The style of the case is Myrtis Williams v. State Farm Mutual Insurance Company. This case was decided on February 5, 2010.
The facts of this case are important to understanding the ruling of the court. Richard Conner was the only named insured in a State Farm Mutual Insurance Company (State Farm) policy. The policy covered a 2002 Cadillac Escalade. The address listed on the insurance policy for Conner was 1903 Circle Drive in Marshall, Texas. The listed drivers were Conner and his girlfriend Rewa Hubbard. The Escalade was titled to Hubbard.
Myrtis Williams, the claimant in this lawsuit, resided with Hubbard at 2505 West Francis Street in Marshall. Williams was involved in a wreck while driving her 1998 Lincoln Town Car. The other driver, who was at fault, did not have sufficient insurance to cover the loss to Williams. Williams then made a claim against Conner's, State Farm policy. State Farm denied the claim.
The court ruled in favor of State Farm. In doing so, the court analysed the policy and the facts of the case. In analysing the policy language, the court found that a "covered person", within the definitions of the policy, must fall within one or more of these categories: (1) the named insured shown in the declarations, (2) a family member of the named insured, or (3) any other person occupying the covered vehicle.
As to number (1); Williams was clearly not the named insured, Conner was. As to number (2); Williams was not a family member of the named insured, Conner. Her family relationship was mother to Hubbard. As to (3); Williams was not occupying the covered automobile. The covered automobile was Conner's Escalade. Williams was driving her own vehicle, the Lincoln Town Car.
There were a few legal reasons that attorneys for Williams probably relied on for finding a way to get coverage for Williams. Their efforts were laudable but a little too detailed to get into here. An experienced Insurance Law Attorney is helpful in seeing if a case has merit. No one wants to waste time, money, or effort in a losing cause. For that reason it is important to have these cases looked at and analysed.
It is noteworthy that the policy at issue here was one in the form prescribed and approved of by the Texas Department of Insurance.

Health Insurance And What They Pay Doctors

2010-02-21T15:00:29Z

People living in Grand Prairie, Arlington, Dallas, Fort Worth, Weatherford, or any where in Texas or the nation have a hard time understanding how their health insurance works when it comes to paying medical providers. This is particularly true with the "out of network" medical providers involved in a health claim.
The Palm Beach Post recently published an article. The article addressed the possibility that a class action lawsuit was going to get traction against some of the larger medical insurance companies. The Palm Beach Post article is titled "Lawsuits Filed Against Blue Cross Claims Reimbursement Rates Kept "Artificially" Low".
The first line in the article starts out; "Ever wonder why your insurance company claims a procedure that cost you dearly could be gotten for a fraction of the price you paid?" An example of this is given in the article where a Palm Springs resident was charged $1,210 for an MRI. Blue Cross said the cost should have been $419. Since he had not met his deductible, it would not cover the MRI. Further, it would not allow him to claim the full amount toward his deductible.
The lawsuit, which was filed in United States District Court, claims this happens because the so-called "usual, customary and reasonable rate" most insurance companies use to determine how much they will pay are "rigged to artificially deflate" the cost of the treatment. This practice effects consumers who use doctors who do not participate in their health insurance plans and the physicians who provide so called out-of-network services.
Some of the insurers who use the same methods as Blue Cross include, United Healthcare, Aetna and Cigna. They use the same flawed ways of calculating rates as Ingenix, a Minnesota based health data company.
As the article points out, these same insurers and Ingenix last year, agreed to pay a total of $100 million to help start a nonprofit to determine how much insurance companies should reimburse patients who see out-of-network doctors. This agreement was worked out to settle lawsuits filed by the New York Attorney General office. The database that will replace Ingenix, will not be in place until later this year.

Uninsured Coverage and Punative Damages In Texas

2010-02-20T15:01:15Z

Punative damages and "exemplary" damages are essentially the same thing in Texas. The way exemplary damages works in Texas is the same regardless of whether you live in Arlington, Grand Prairie, Fort Worth, Dallas, or Weatherford.
The Texas Court of Appeals in Houston, Texas, recently dealt with the issue of how exemplary damages are handled when the claim made is a claim against a person's own insurance carrier for uninsured motorist benefits. This case was decided on February 4, 2010. The style of the case is, Sandra Gervais Laine, v. Farmers Insurance Exchange.
In this case Laine's mother was killed in an auto accident. The other driver was at fault and was intoxicated. Laine made a claim against Farmers Insurance Exchange for benefits under her uninsured motorist benefits portion of the auto policy. Farmers paid the uninsured benefits limit of $250,000. She then made a claim against her umbrella policy which provided the same benefits as the auto policy except for a higher amount. The limit under the umbrella policy was $1,000,000.
Farmers denied the claim under the umbrella policy and Laine sued Farmers. A jury found the uninsured driver at fault and assessed actual damages of $175,000. The jury then found exemplary damages in the amount of $1,500,000 as punishment against the intoxicated driver. The trial Judge overruled the jury's verdict against Farmers on the exemplary damages. The appeals court affirmed the Judge's ruling.
The Judge's looked at the policy language and public policy considerations in making their decision. The policy defined damages as "the total of damages that the insured must pay (legally or by agreement with our written consent) because of bodily injury, personal injury or property damage caused by an occurrence covered by this policy..." The policy goes on to talk about "bodily injury". The policy is silent on the issue of exemplary damages. The court held that exemplary damages are amounts in excess of actual damages. And it did not matter that the policy did not contain an exclusion for "damages which are punitive or exemplary."
As for public policy considerations, the Texas Supreme Court has rejected as against public policy, coverage under uninsured motorist policies, when the insured seeks to recover from his own insurer exemplary damages assessed against a responsible third party wrongdoer. Further, that both public policy and the language contained in the Insurance Code and the Motor Vehicle Safety Responsibility Act, limit recovery under an uninsured motorist policy to compensatory damages. Here, the court cited the Texas Insurance Code, Section 1952.001 and Texas Transportation Code, Sections 601.001 - 601.054, and stated that this policy does not support rendering damages against an insurance company since neither deterrence of wrongful conduct nor punishment ... of the wrongdoer is achieved by imposing exemplary damages upon the insurance company.
To further affirm their position, the court looked to Chapter 41 of the Civil Practice and Remedies Code as further indication that the punishment imposed through exemplary damages is to be directed at the wrongdoer. And, the Texas legislature ensured that persons injured by uninsured motorists be compensated for their actual injuries, when they enacted Section 1952.101, Texas Insurance Code.

Where Will An Insurance Company Lawsuit Be Fought?

2010-02-18T15:06:54Z

Most insurance company's have their main offices located outside of Texas. If you live in Weatherford, Texas, Arlington, Grand Prairie, or the Dallas - Fort Worth area, and you sue an insurance company, how do you know you won't have to travel to Delaware or some other state to fight the lawsuit?
The United State District Court, Southern District, Houston Division, recently had a case dealing with this issue. The case decision was handed down on January 26, 2010, and was styled, Houston Baptist University, v. Ace American Insurance Company and York Claims Service, Inc.
Houston Baptist University (HBU) had a policy of insurance with Ace American Insurance Company (Ace). HBU suffered losses as the result of Hurricane Ike hitting the Houston area and made a claim against Ace. Ace assigned York Claims Service, Inc. (York) to adjust and inspect the claim. HBU and Ace could not reach an agreement on the value of the claim and HBU filed a lawsuit against Ace and York. The insurance policy had a policy provision that read: Any dispute arising under this policy shall be exclusively subject to the jurisdiction of the federal and state courts located in the Commonwealth of Pennsylvania.
After the lawsuit was filed in Texas, Ace and York filed a motion with the court to have the case transferred to Pennsylvania in accordance with the forum selection clause contained in the policy.
28 U.S.C. Section 1404(a) is the law that governs this area of the law and states: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Under this statute, the court "must make an individualized, case-by-case consideration of convenience and fairness." The court is required to look at two issues. First, the court must determine if the transferee court is one in which the case originally could have been brought. The answer in this case is, yes.
Second, the court must determine whether the convenience of the parties and witnesses and the interest of justice require that the case be transferred. On this issue the court looked closer and said no.
Even though the court is to consider the clause in the policy contract, it is not the determining factor. Consideration is also to be given to convenience of witnesses and those public interest factors of systemic integrity and fairness under the heading of "the interest of justice." The burden of proving where the case should be litigated is on the party trying to get it moved to another location.
The law requires courts to balance private and public factors in determining if a case should be transferred. Private factors to be considered include: (1) the availability and convenience of witnesses and parties; (2) trial expenses; (3) the location of books and records; (4) the place of the alleged wrong; (5) the plaintiff's choice of forum; (6) the possibility of delay and prejudice if transfer is granted; and (7) the location of counsel. Public interest factors address broader objectives, such as the fair and efficient administration of the judicial system and the degree of local interest in the matter.
In this matter the court ultimately ruled against allowing the case to be transferred. In making it's decision the court stated, "Everything related to this case, the witnesses, experts, documents, physical evidence, and the damaged building itself are all located in Houston. The case is governed by Texas law. The city of Houston and the State of Texas have strong interest in this case; Pennsylvania has none."