Dallas Fort Worth Insurance Lawyer Blog

What if someone in Fort Worth, Arlington, Mansfield, Mesquite, Garland, Irving, Grand Prairie, Dallas, or anywhere else in Texas, is involved in an accident and goes to the hospital for treatment? Are there any special laws that apply?
The answer is yes. It depends on the circumstances, but often times, what is called a "hospital lien" comes into play. If this hospital lien is not properly dealt with it could cost a lot of money and heartache.
Texas public policy strongly supports hospital liens, and it is important to understand that these liens are not just applicable to hospitals; they may also operate for the benefit of EMS providers and doctors at teaching hospitals whose bills are not already included in the bill. The rights of hospitals and certain other medical providers to be paid from settlement proceeds or a judgment begins with the Hospital Lien Statute. This is found in the Texas Property Code, Chapter 55. It says, in relevent part, that a lien attaches to "any cause of action, judgment, or settlement" received as a result of an accident for which the person was admitted to a hospital within 72 hours of the injury, as well as any hospital to which the injured person is subsequently transferred for the same injuries. This is found in Texas Property Code, Section 55.002. These hopital liens must be filed prior to settlement in order to be valid, and hospital liens are limited to "reasonable and regular" charges within the first 100 days following the injury. Even the attorney representing the injured person may have to wrestle with the hospital for first priority, as seen in the Texas Supreme Court case styled, Bashara v. Baptist Memorial Hospital System, decided in 1985.
The Dallas Court of Appeals in 1979, in the case styled, Baylor University Medical Center v. Travelers, said that the intent of the Hospital Lien statute was to save lives, by "...inducing hospitals to receive a patient, injured by the negligence of others, by giving the hospital a lien on the claims, suit or settlement of the patient."
An important exception to the hospital lien statute is stated in the case, Members Mutual Insurance Company v. Hermann Hospital, decided in 1984, by the Texas Supreme Court. It says that a hospital lien does not attach to uninsured/underinsured motorists benefits. The reasoning is that the statute is to apply to settlements recovered from third parties and not to underinsured/uninsured benefits.
Another situation that the hospital lien statute does not apply to is a wrongful death case. Atleast that was the decision by the Fort Worth Court of Appeals in the case styled, Tarrant County Hospital District v. Jones, decided in 1984.
Rather than getting some relief by settling a case with the person who caused injuries in an accident, the end result could find the injured person being sued by the hospital if the hospital lien statute applies and is not properly handled.

Someone living in Flower Mound, Haslet, Grand Prairie, Arlington, Mansfield, Crowley, Cedar Hill, Carrolton, Irving, or anywhere else in Texas may wonder what happens or who is suppose to pay the towing and storage charges resulting from an accident. This was the issue in a recent court case.
The Court of Appeals, Eastland, Texas, decided a case on June 3, 2010, where this was the issue. Or more specifically, the issue was more along the line; How much does the insurance company for the at fault driver have to pay for these charges? The opinion was authored by Justice, Rick Strange. The style of the case is, Underwriters at Lloyds of London v. Robert Harris, Individually and d/b/a Harris Garage.
In this case, Robert Harris (Harris) filed suit against Underwriters at Lloyds of London (Underwriters) seeking towing and storage charges and attorney's fees. The jury found in favor of Harris in all three causes of action and Underwriters appealed.
The basic facts are that a tractor-trailer owned by Kasse Transportation was involved in a motor vehicle accident. Law enforcement officials asked Harris to tow the vehicle from the accident scene, and he took it to his storage facility. Underwriters was Kasse's insurance company. Harris contacted Underwriters and demanded payment of $14,972.50 for towing and storage. Underwriters paid Kasse's towing limits of $6,000. Harris filed the lawsuit seeking to collect the balance.
This appeal was the result of Harris's victory in the trial court. This Eastland court reversed the juries finding on attorney's fees and the reasons for that will not be discussed here. However, the court upheld Harris's judgment on the other two causes damages. In doing this, the court looked at the Texas Occupation Code, Section 2303.001, which is where the Texas Vehicle Storage Facility Act is located.
This case was a challenge to the legislative intent in passing the Texas Vehicle Storage Facility Act (The Storage Act) into law. And it got into discussing the meaning of the word "or" in the statute.
Section 2303.156(b) provides:
"An insurance company that pays a claim of total loss on a vehicle in a vehicle storage facility is liable to the operator of the facility for any money owed to the operator in relation to delivery of the vehicle to or storage of the vehicle in the facility regardless of whether an amount accrued before the insurance company paid the claim."
Underwriter contended that, if the legislature had intended for carriers to be responsible for towing and storage charges, it would have written the statute conjunctively by using the word "and" rather than the disjunctive "or."
The court got into a discussion of how courts are to interpret statutes written by the legislative branch of government and the policy reasons for such interpretation. In doing so they said, "Assume that Harris towed the vehicle to a storage facility owned by Acme, Inc. and that Harris incurred only towing charges and Acme only storage charges. Underwriter's construction of Section 2303.156(b) would not prevent them from both recovering."
As the court further discussed, "Treating the "or" as a disjunctive conjunction provides an incentive for companies such as Harris's to provide necessary towing services, vehicle storage, or both; this construction is consistent with the statute's language that operators can recover "any amount owed" for towing or storage; and it produces a just and reasonable result by providing private companies a means of securing compensation for services that promote public safety. Underwriter's construction on the other hand, would provide a disincentive for no apparent purpose beyond limiting the carrier's exposure. Because we presume the legislature favored public interest over private interest, we cannot agree that the legislature intended Section 2303.156(b) to allow Harris either towing or storage compensation but not both."

Policyholders in Arlington, Aledo, Farmers Branch, Grand Prairie, De Soto, Lancaster, Fort Worth, Mansfield, Weatherford, or any other town in Texas might have the following question. What happens if I am in an accident when I am out of state? Or they might ask, what happens when someone from out of state has an accident with me in Texas when they are at fault?
Let's consider the last question first. What happens when someone from out of state has an accident in Texas when that out of state person is at fault in the accident? The only part of an extensive answer to this question that is relevant is this:
In a state like Oklahoma, who has minimum policy limits that are less than the minimum limits in Texas, what happens. The Texas Transportation Code, Section 601.001 et seq. sets the minimum liability limits in Texas at $25,000 per person or $50,000 per incident on the bodily injury portion of an automobile policy. The State of Oklahoma has limits as low as $15,000 per person. When someone is driving in Texas with an automobile insurance policy issued from some state other than Texas, the minimum limits in Texas apply. This is the case regardless of the fact that the Oklahoma policy clearly says the minimum limits are $15,000. Other differences are not relevant or, are not going to arise very often.
So now lets get back to the first question from above. What happens if I am in an accident when I am out of state?
First, start from the premise that the law of the state where a policy is issued generally governs coverage issues. Texas has a provision in the Insurance Code that spills Texas law into some out of state policies. From a legal standpoint, Texas follows the "most significant relationship rule" articulated in the Texas Supreme Court case, Duncan v. Cessna Aircraft Company, issued in 1984, in applying a particular state's law to an insurance contract. This is detailed and discussed in the case, and basically looks at issues regarding where the insurance contract was entered into, where it was payable, where acts were to be performed, etc.
For Texas residents the answer to the question is found in Texas Insurance Code, Section 21.42. 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 goverened thereby, 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.
In the case, Scottsdale Insurance Company v. National Emergency Services, Inc., the Texas Court of Appeals, Houston [1st Dist.], in 2004, said that the above Insurance Code section mandates that Texas law will apply to the contract if, (1) the proceeds are payable to a Texas citizen or inhabitant, (2) the policy is issued by a carrier authorized to do business in Texas, and (3) the policy is issued in the course of the carrier's Texas business.
Much of this can be confusing and even the courts have different ways of ruling, depending on the facts of each particular situation. This is yet another example of why an experienced Insurance Law Attorney should be consulted when someone finds themselves in this type of situation. Often times the wording in the contract of insurance is improper and unenforceable.

A policyholder in Weatherford, Fort Worth, Grand Prairie, Arlington, Mansfield, Colleyville, Newark, or any other city in Texas could find themselves in a position where they are having to sue their underinsured/uninsured (UIM) insurance company. And at the same time, they might be having to sue the person with whom they had the accident with.
When the other driver, who caused an accident, has to be sued and that person does not have insurance or does not have enough insurance to cover the damages you have sustained, most experienced Insurance Law Attorneys will tell you to sue both the driver and your own insurance company at the same time rather than having to incur the time and expense of two separate lawsuits. When this becomes necessary there are usually several options about where the lawsuit can be filed. Choosing the best county to file a lawsuit can often times make a big difference as to the value of the case.
The Texas Civil Practice & Remedies Code, Section 15.002, cites the general rules governing where a lawsuit can be filed. Sometimes the options are limited, but other times there are many options and when a lawsuit is filed the attorney filing the lawsuit will want to file in a county where the best results are possible. In contrast, the person being sued will make efforts to get the lawsuit transferred or moved to a county they believe is more favorable to themselves, or as it relates to insurance, a county more favorable to the position the insurance company will be taking.
When the at fault driver is sued and the insurance company is sued, one or the other or both, will file papers with the court asking that the cases be separated, rather than tried at the same time. This does not always happen but sometimes when it does, the lawyers for the severed case will sometimes try to get the severed case transferred to a county that they believe will be more favorable to the defenses they will be claiming. The reasons are varied and include, (1) wanting a different Judge, (2) it is more convienient, (3) a favorable jury pool, etc.
When the other side tries to accomplish this transfer it is usually improper. The relevant law in this regard was set out not too long ago in the case, Finlan v. Peavy, in 2006. This Waco Court of Appeals case, was not an insurance case but is relevant for the procedural reasons applicable when a court makes a ruling that the cases cannot be tried at the same time.
The following are some of the statements made by the court in refusing to allow the transfer:
1) It is well settled that the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other courts.
2) Even though the cause is severed, the res controversa remains pending in the court of dominant jurisdiction, the parent suit. This would be to the exclusion of all other coordinate courts.
3) Thus, the severed cause of action remains pending in the court which it originated.
4) And if an action pending in one court is filed in a second court, generally, the second court must dismiss a subsequent suit involving the same parties and subject matter. Any subsequent suit involving the same parties and the same controversy must be dismissed if a party to that suit calls the second court's attention to the pendency of a prior suit.

Auto policy holders in Grand Prairie, Arlington, Fort Worth, Mansfield, Azle, Dallas, Weatherford, or any other city in Texas would want to know what all that "stuff" in their auto policy means. One part that is pretty easy to explain is the "Named Driver Exclusion." This is other times called the "515-A Exclusion" or "515-A Endorsement".
The normal automobile insurance policy is going to have a part that reads, "You agree that none of the insurance coverage afforded by this policy shall apply while ______________ is operating your covered auto or any other motor vehicle. These exclusions and endorsements are legal in insurance contracts. The language used is partly governed by laws published in the Texas Insurance Code. See Sections 1952.051 et al and Sections 2301.001 et al. As for the "Named Driver Exclusion", it is legal and is intended to give policy holders the option to exclude from coverage drivers who, by virtue of their driving history or other factors, are deemed high risk drivers. This category of drivers would include drivers who have been convicted of violating the Driving While Intoxicated laws found in the Texas Penal Code, drivers with too many moving violations, too many wrecks, and other high risk drivers such as teenagers who have just got their license. It is important to realize that almost all of these drivers can get insurance but the cost of the insurance is much higher than what other drivers must pay.
The Texas Corpus Christ Court of Appeals decided a case in 1996 that is often cited for the validity of the Named Driver Exclusion. The style of the case is, Janie Zamora, Pete Zamora, Jesus Toc, and Gracie Vela v. Dairyland County Mutual Insurance Company. In this case the excluded driver was Gracie Vela, who was driving Jesus Toc's vehicle. She had a wreck with the Zamoras causing them injury. In this case, the court upheld the validity of the exclusion and discussed the reasons for its validity.
Gracie Vela was a known risk to drive because she suffered from epileptic seizures, had been advised not to drive, and did not even have a driver's license.
The court stated that the Named Driver Exclusion furthered Texas public policy on two levels; first, the named driver exclusion furthers public policy by enabling drivers with family members having poor driving records to secure insurance they can afford, rather than being relegated to securing coverage from an assigned risk pool at a much greater cost. And, second, by detering insured drivers from entrusting their automobiles to unsafe drivers, thus, keeping those unfit drivers off public roadways.
Here, Dairyland County Mutual Insurance Company denied the claim made by the Zamora's when the Zamora's were sued for negligently entrusting their vehicle to Vela for her to drive. Toc sued along with rest of the plaintiffs, challenging the validity of the exclusion. It was upheld as being valid by the court.
An experienced Insurance Law Attorney on rare occassion can beat this exclusion. However, the facts allowing this exclusion to be deafeated are limited and each case has to be looked at closely.

What if you are a "good ole boy" in Weatherford, Texas? Or for that matter, in Arlington, Grand Prairie, Fort Worth, or Dallas, and you have a gun rack in your vehicle. In the gun rack you have a loaded firearm. Next, the firearm is accidently discharged. Will your insurance company cover the resulting damages to others? The answer is a lawyerly answer for you: It depends.
Here is an interesting case issued by the Texas Supreme Court. This case discusses how the facts should be analysed to see if coverge will exist. The case, decided in 1999, is styled, Mid-Century Insurance Company of Texas, a division of The Farmers Insurance Group of Companies, v. Richard Tanner. The cite is, 997 S.W.2d 153.
The question for the court to decide in this case was whether the underinsured motorist provision of a standard Texas personal auto policy covers the insured's bodily injuries resulting from the unintentional discharge of a shotgun on a gun rack in a pickup truck parked nearby. The answer, in this case, depended on whether, within the meaning of the policy, the injuries resulted from "an accident" "arising out of" the "use" of the truck.
The facts: Richard Metzer and his wife had been fishing with their nine year old son when the boy returned to their pickup to get his coveralls. The truck was locked and the boy climbed into the bed of the truck and attempted to enter the cab through the truck's sliding rear window. In doing this, he accidentally touched a loaded shotgun in the gun rack, in the rear window, causing the gun to discharge. The buckshot struck Richard Lindsey, who was seated in his mother's car parked next to the pickup. Lindsey sued Metzer and recovered the policy limits, which was far less than the total of his damages. He then claimed the underinsured policy limits from his mothers policy which was issued by Mid-Century. Mid-Century denied the claim. Lindsey sued.
The Mid-Century policy states:
We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured (or underinsured) motor vehicle because of bodily injury sustained by a covered person, ...
The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured (or underinsured) motor vehicle.
The sole dispute was over whether Lindsey's injuries were caused by, 1) an accident, 2) arising out of the use of Metzer's truck.
The court discussed the definition of an accident then ultimately stated, Metzer's son intended only to gain entry to the truck. He did not intend to cause the shotgun to discharge or Linsey to be injured, nor was it reasonably foreseeable that either consequence would result from the boy's trying to enter the pickup through the rear window. Metzer's son was not playing with the gun or acting recklessly. There is no evidence that he even knew it was loaded. His injuring Lindsey was an accident.
The next issue was whether this accident arose out of the use of the pickup. For liability to "arise out of" the pickup, a casual connection or relation must exist between the accident and the use of the motor vehicle. The court stated; "Whether a person is using a vehicle as a vehicle depends not only on his conduct but on his intent."
The court next got into a discussion using well established legal treatises on insurance law. One was, Couch on Insurance. The other was, Appleman's Insurance Law and Practice. Using these treatises they found numerous cases throughout the country using the following test for determining whether an injury arises out of the use of a motor vehicle for purposes of auto liability insurance coverage:
For an injury to fall within the "use" coverage of an automobile policy (1) the accident must have arisen out of the inherent nature of the automobile, as such, (2) the accident must have arisen within the natural territorial limits of an automobile, and the actual use must not have terminated, (3) the automobile must not merely contribute to cause the condition which produces the injury, but must itself produce the injury.
There was much further discussion on the above and what other courts in other states have decided. Applying all these considerations to the facts in this case the court concluded that Lindsey's injuries arose out of the use of the Metzer truck as a matter of law.
There are actually a lot of cases discussing what is covered and what is not covered. An experienced Insurance Law Attorney is familiar with these cases. He would be able to disuss these cases and give advice on whether the facts in any particular situation would be covered by insurance.

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

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

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

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

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

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

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..

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.

Diminished value claims have to be looked at from two different standing points. In Texas, whether you are in Dallas, Fort Worth, Arlington, Grand Prairie, or out in Weatherford, the same rules to go by are going to apply.
Diminished value would be the difference in the value of your car after a wreck, even though it has been repaired, and the value your car would have had, if the wreck had not occurred. A good example of this is as follows: You bought a new car 3 months ago for $30,000. Let's say the car is now worth $28,000. Your have a wreck. The car is repaired. Now, because the car has been in a wreck, the car is only worth $23,500. The reason it is worth less is because anyone buying the car will not pay as much for it, knowing it has been wrecked, than they would pay if it had not been wrecked. In our example, the car should be worth $28,000. This $4,500 difference is the "diminished value".
The first standing point, when making a diminished value claim, is when you are going to make a claim against another driver / insurance company. In making the claim against someone else who caused the damage to your car, they are responsible for the diminished value of your vehicle that was harmed in an accident. There are companies whose business purpose is to help people with these claims.
The second standing point, is when making the claim against your own insurance company under your own insurance policy. Depending on the wording of the insurance policy, most of the time the insurance company is not going to have to pay diminished value.
The case that deals with this issue is, American Manufacturers Mutual Insurance Company v. Schaefer. This is a case decided in 2003 by the Texas Supreme Court.
In this case, the Court sided with American Manufacturers Mutual Insurance saying that the policy's plain and unambiguous language did not require payment for diminished market value when a vehicle had been fully and adequately repaired. The Court noted that a carrier's obligation to compensate its insured for a loss was circumscribed by the policy's "limits of liability" section, which stated in relevant part that the insurance company's liability was limited to the damaged vehicle's actual cash value or the amount needed to repair or replace the vehicle, whichever was less. The Court stated that the concept of "repair" described something tangible, like removing dents or fixing parts, this being the ordinary meaning of "repair", and did not encompass compensation for diminished market value. The Court went on to say that because the policy provided that the insured was entitled to the lesser of actual cash value or the amount necessary to repair or replace the vehicle, incorporation of diminished value into the "repair or replace" provision would render the "lesser of" wording a nullity.
Wording in an insurance policy is important. More important, is understanding the wording. An experienced Insurance Law Attorney should be consulted whenever issues arise about the meaning of the words in an insurance policy.

Anytime a person buys insurance coverage for their automobile in Texas, they are given many options. These options include choices related to collision coverage, coverage for towing, rental cars, and even life insurance, to mention a few. No matter where you buy automobile coverage in Texas, whether it is Dallas, Fort Worth, Arlington, Grand Prairie, or in Weatherford , you are also given the option to buy uninsured / underinsured beneits and personal injury protection benefits also known as PIP.
In discussing PIP coverage, one should know that this coverage is regulated in the Texas Insurance Code, Sections 1952.151 thru 1952.161.
Section 1952.151 says that PIP provides payment of all reasonable expenses that arise from an accident for: A) necessary medical care, B) lost income for a wage earner, and C) reinbursement for reasonable expenses for essential services ordinarily performed by the injured person. An example of this last one would be reinbursing an injured person for having to pay someone to mow his yard because his injuries prevented him from doing it himself.
Another important thing to realize about PIP coverage is found in Section 1952.152. This section says an insurance company must provide PIP coverage in any and all polices issued in the State of Texas. This coverage is automatic unless the named insured rejects the coverage in writing.
Section 1952.153 requires that the minimum for PIP coverage be $2500. There is not a maximum required by law. A maximum is left to the discretion of the insurance company.
Section 1952.155 is another important part of PIP law. This section says that PIP benefits are payable without regard to the fault of a person seeking coverage. Also, this section says PIP is payable without regards to whether or not there is other insurance to cover the loss. In other words, this section actually allows for a "double recovery".
Section 1952.156 deals with time limits for presenting the claim for PIP benefits and the time frame for the insurance company to pay these benefits.
Section 1952.157 provides for the penalties an insurance company faces for not promptly paying claims under PIP benefits.
Another relevant section is Section 1952.159. This section allows an offset against a liability claim. This normally applies to a situation where a passenger is injured due to an insured drivers' negligence. The passenger would normally receive PIP benefits soon after an accident, then later on settle the liability claim against the driver. When the claim against the driver is settled under the liability portion of the settlement, the insurance company can take a credit or offset against the monies paid under the PIP portion of the policy.
PIP is a valuable coverage to be able to make a recovery from. And it is important to know and understand the way PIP coverage works so as to insure an insurance company adjuster does not accidentally or deliberately handle the claim wrong. Seeking the advice of an experienced Insurance Law Attorney can insure that your claim for benefits is handled properly.

Here is a situaton where a Dallas resident had a wreck in Mesquite, but it could have been Fort Worth, Arlington, Grand Prairie, or out in Weatherford. The injured persons had two insurance policies with the same insurance company.
This happened in a 1984 case, The Travelers Indemnity Company of Rhode Island, v. Lenny and Terri Lucas. Mr. Lucas was accompanied by his wife, Ms. Lucas, in an ambulance. A drunk driver ran head-on into the ambulance causing injuries to the Lucas'. They had two separate insurance policies with Travelers Indemnity, for Personal Injury Protection benefits and underinsured motorists benefits. Travelers paid the full amount under one policy to each of the Lucas' but refused to pay under the second policy. The damages to the Lucas' exceeded the limit of both the policies combined.
The ambulance also had underinsured benefits with a policy through Aetna. Travelers tried to limit what it had to pay by citing an "Other Insurance" clause within the Travelers policy.
The court ruled that an insurance company may not reduce its underinsured liability to an amount less than the policy limit by crediting itself an amount paid under another policy. The same ruling was made regarding payments made for Personal Injury Protection benefits.
A case decided in 2007, was essentially the same. The 2007 case was Kelley v. Progressive County Mutual Insurance Company.
Here, Kelley was injured by a motorist while riding her horse and her claim exceeded $1,000,000. She received the policy limit of $100,000 from the at fault driver and then received the limit of $500,000 under a policy issued to her by Progressive. However, on a policy issued to her father by Progressive, which also named her, Progressive refused to pay. Progressive asserted a policy provision that prohibited "stacking" the policies and argued that her recovery was limited to just one of the polices.
The court noted that the policies were separate policies, with separate policy numbers and separate vehicles listed. Just because Progressive issued both policies to members of the same family did not allow Progressive to prevent a "stacking" of these policies.
There are situations where an insurance company may not have to pay where there is duplicate coverage. When there is more than one policy that may cover a claim it is important to seek the advice of an Experienced Insurance Law Attorney to insure your rights are properly protected.