Dallas Fort Worth Insurance Lawyer Blog

Insureds in Weatherford, Mineral Wells, Aledo, Azle, Willow Park, Hudson Oaks, Springtown, Millsap, Brock, and all other places in Parker County have to protect themselves immediately by seeing an Insurance Law Attorney when their insurance company refuses to defend them in a lawsuit.
A 1998, Dallas Court of Appeals case serves as an example of what happens when someone delays in hiring an attorney. The style of the case is, Greenberg, et al v. Cigna Lloyds Insurance Company. Here are some facts:
Greenburg was the independent executor as well as the trustee for his brother's children. The children eventually brought suit against Greenberg in Probate Court alleging among other things that Greenberg was liable for improper self dealing and breach of fiduciary duty. After receiving notice of the suit, Greenberg contacted two insurance companies that had secured insurance policies, including commercial general liability policies. Greenberg and his sons were told that there was no coverage under the policies. Greenberg hired an attorney to represent him in the probate suit. Judgment was rendered against him. Later, he entered into a compromise settlement agreement under which Greenberg agreed to pay $1.1 million. The trial in the underlying probate case began on September 25, 1989. In September 1994, Greenberg filed suit against Cigna as well as other insurance companies alleging breach of contract, breach of fiduciary duty, breach of duty of good faith and fair dealing, negligence, gross negligence, breach of express and implied warranties, violations of Texas Insurance Code, Section 541.060, and the DTPA, and intentional misrepresentation. Cigna filed a motion for summary judgment which was granted on the basis of a limitations defense. Greenberg then filed this appeal.
In reviewing this case, the Dallas Court of Appeals held that the summary judgment in favor of Cigna was affirmed. The court said that a cause of action for wrongful refusal to defend ordinarily accrues when the refusal to defend occurs. In this case, the underlying trial commenced on September 25, 1989. It is undisputed that the trial preceded in the probate suit without defense being provided by Cigna. Therefore, the refusal to defend occurred at the very latest on the day the trial commenced in September 1989. Greenberg did not file the breach of contract claim until September 1994. Therefore, the breach of contract claim is barred by the four year statute of limitations. All of the extra contractual claims are based on Cigna's failure to provide a defense. Those claims also began to run when Cigna failed to provide the defense in the underlying suit. The claims are subject to two or four year statutes of limitations. Therefore, the extra contractual claims are also barred by limitations.
Without talking to the parties involved there is no sure way of knowing why there was a delay. There are ways to excuse a delay and to get around the statute of limitations defense, but the facts have to be just right to be successful in this effort.
Bottom line - don't delay getting an insurance law attorney involved.

People in Weatherford, Aledo, Azle, Hudson Oaks, Willow Park, Mineral Wells, Millsap, Brock, Cool, Springtown, Peaster, Poolville, Whitt, and other places in Parker County need to make sure they know what they are doing when they sign a release for a claim they have against an insurance company.
The Texas Court of Appeals, Amarillo, issued an opinion on October 25, 2011. The style of the case is Trisha Braziel, Spencer Braziel and Kathy Wright v. Becton Insurance Agency, Inc.
This case was an appeal from a Motion For Summary Judgement which was granted against the Braziels and Wright.
Wright and the Braziels sued to recover damages allegedly suffered when a fire burned a home owned by the former and leased to the latter. Wright who purchased insurance on the abode from Travelers Lloyds of Texas Insurance Company (Travelers) through Becton (i.e. Travelers' agent) and alleged that Becton had been instructed to name the Braziels as additional insureds. Becton apparently failed to abide by the directive, though the trial court nonetheless found that the occupant's contents (that is, those of the Braziels) were covered by the policy. Eventually, Travelers, Wright, and the Braziels settled their dispute and executed an agreement releasing Travelers. It paid Wright $94,391.15 to satisfy her claim under the policy and an additional $25,000 to Wright and the Braziels in exchange for the release.
In his motion for summary judgment, Becton asserted that he was not liable because Wright and the Braziels settled with and released their claims against Travelers.
In reviewing the case the court noted that no one disputed that a settlement was had with Travelers and that a release was executed as part of that agreement. Per that document, Wright and each Braziel bound themselves to "RELEASE, ACQUIT, and FOREVER DISCHARGE Travelers from any and all Event Claims including those asserted, whether accrued or unaccrued, whether known or unknown, whether existing or that may arise hereafter." Furthermore, the settlement contract they signed defined not only the term "Travelers" but also "Event" and "Claims." Within the scope of "Travelers," the parties agreed to include not only the insurance company itself but also "... all of its past, present, and future underwriters, officers, directors, stockholders, agents, attorneys, insurers, servants ..." and others. In turn, "Event" was interpreted to mean "the fire loss occurring on or about December 8, 2007," while "Claims" was defined as "any and all past, present and/or future claims, demands ... settlements and causes of action ...."
Included in the court's record on this case was a copy of an agreement between Becton and Travelers. Through it, Travelers designated Becton as its "agent," and in accordance with that designation, Becton's name appeared under the moniker "Agent's Name and Address" in the insurance policy issued by Travelers to Wright. No one disputes that Wright and the Braziels seek damages from Becton and that the damages pertain to the loss caused by the fire occurring on or about December 8, 2007.
Based on the plain language of the release the court ruled in favor of Becton.
The relevance of this case is pointing out that a person needs to know what they are signing when they sign a release. It appears that Wright and the Braziels wanted to preserve their claim against the agent, Becton, but the language of the release they signed prevented them being able to pursue the claims against him. One way of preventing this is to see an experienced Insurance Law Attorney.

People needing an attorney in Grand Prairie, Arlington, Mansfield, Irving, Fort Worth, Dallas, and other places in Texas will probably get confused on this case and realize the necessity of hiring an experienced Insurance Law Attorney.
The Amarillo, Court of Appeals, issued an opinion on October 17, 2011, styled, In Re Farmers Texas County Mutual Insurance Company. This is a case where Farmers was seeking the issuance of a writ of mandamus from this appeals court. Farmers was asking this court to issue an order to Judge Carter Schildknecht of the 106th Judicial District Court of Garza County, Texas, to abate trial on extra-contractual claims asserted by real-party-in-interest, Terry Henrie. This court denied Farmers request.
Here is some background.
In September 2008, Henrie was involved in an auto accident when William Rainey collided with Henrie's parked vehicle. Henrie sued Rainey and, later sued Farmers, his personal auto carrier. The suit against Farmers was for failure to pay uninsured motorist (UIM) benefits, and extra-contractual claims for breach of the duty of good faith and fair dealing and for violations of the Texas Insurance Code.
In July 2011, Farmers filed a plea in abatement requesting the Judge to abate all extra-contractual claims until after resolution of the UIM claim. The court denied the plea on August 30, 2011. In a letter, dated September 30, Farmers informed the Judge that it "made a settlement offer to conclude the entire contract claim" of Henrie. Trial was scheduled for October 14, 2011.
Farmers contended that Texas law established that, when an auto insurance carrier makes a settlement offer for a UIM claim, a trial court is without discretion and must abate extra-contractual claims until the contractual UIM claim is resolved. Because the Judge did not abate the extra-contractual claims, Farmers contended it is entitled to mandamus relief.
In its analysis of this case, this court recognized that "mandamus" relief will issue only to correct a clear abuse of discretion for which the relator has no adequate remedy at law. The court agreed with Farmers that Texas case law establishes that abatement of extra-contractual claims is required in most instances in which an insured asserts a claim to UIM benefits. However, in a mandamus context, for a party to preserve its complaint that the trial judge failed to abate extra-contractual claims, that party must have brought the issue to the trial judge's attention by seeking the issuance of an abatement order from the trial judge.
This court notes that nothing in Farmer's petition for mandamus established that it sought an abatement order from the trial judge on the grounds upon which it now seeks mandamus relief. In July, Farmers filed a plea in abatement in which it raised the issue of abating Henrie's extra-contractual claims until his contractual UIM claim could be resolved. The trial judge held a hearing on this plea on August 30, at which the trial judge denied Farmer's abatement plea. In a letter to the Judge, Farmers informed the court that, at a September 29 mediation, it made Henrie a settlement offer to conclude his entire contract claim. The remainder of the letter read as follows:
"We appeared before you on August 30. On the record, you denied and overruled defendant's Plea in Abatement. I am enclosing a copy of the order to memorialize your ruling which was prepared by plaintiff's counsel and I have approved as to form only.
Unless you have reconsidered your ruling, we would ask that you now sign and enter the enclosed order to facilitate appellate review of the same."
Notably, this letter does not request the trial court reconsider its denial of Farmer's plea in abatement in light of its settlement offer to Henrie. However, Farmer's mandamus petition alleges that the Judge clearly abused her discretion by failing to abate Henrie's extra-contractual claims after Farmers made a settlement offer on Henrie's entire contract claim. As such, Farmers has failed to to preserve its complaint by failing to seek an abatement order from the trial judge on the grounds upon which it now seeks mandamus relief.
In making its ruling, this court stated, "Consequently, we cannot conclude that the trial court clearly abused its discretion or that Farmers does not have an adequate remedy available at law. Having failed to establish its entitlement to mandamus relief, we deny Farmers's petition."

It will happen to someone in Grand Prairie, Weatherford, Fort Worth, Arlington, Lake Worth, Benbrook, Crowley, North Richland Hills, or somewhere else in Tarrant County or a surrounding area. A spouse will be upset or depressed or temporarily out of control and while in one of these mindsets, burn the house down on purpose.
The San Antonio Court of Appeals issued an opinion in 1996, in a case where it appears a spouse burned down the house. Of course the insurance company denied the claim based on the policy defense of arson. The style of the case is, Jan Saunders v. Commonwealth Lloyd's Insurance Company.
This was an appeal from a summary judgment in an insurance bad faith case. Here is some background.
Jan and Dan Saunders' house was completely burned down by a fire. Commonwealth's investigation concluded that Dan Saunders was responsible for setting the fire and he was later convicted of arson, but this conviction was overturned and he was later acquitted of the crime.
Commonwealth continued with its denial of the claim.
Although Commonwealth treated Jan as an innocent spouse, it refused to pay any part of the claim because the house was community property. Later the company agreed to pay her half of the claim, plus interest, based on Texas common law. This put an end to her contract claim but she continued with the bad faith claim.
Under Texas law, an insurer who can prove that it possessed a reasonable basis for denying or delaying payment of a claim, even if that basis is eventually determined by the fact finder to be erroneous, enjoys immunity from statutory bad faith claims under the Texas Deceptive Trade Practices Act and the Texas Insurance Code.
So the issue here was whether Commonwealth proved it had a reasonable basis to deny the claim. Commonwealth argued that its reasonable basis for denying the claim of Jan was that Texas law did not allow the innocent spouse to recover insurance proceeds when community property was destroyed by the arson acts of the culpable spouse.
An examination of past Texas law on this issue showed that historically, Texas law did not allow either an innocent spouse or an innocent co-insured to recover insurance proceeds when community property was destroyed by the arson acts of her culpable spouse. At the time of this case, the Texas Supreme Court had not decided whether an innocent spouse could recover under the same circumstances if the property destroyed was community property.
This court examined how this issue regarding arson and community property was being handled by the Texas courts and by the Federal courts. Based on the analysis and the state of the law at that time, the insurance company was not acting in bad faith in denying the claim. Thus there was no claim left for Jan to pursue since her contractual claim had already been paid. Thus, this court upheld the summary judgment ruling of the trial court.
When someone loses property in an arson fire and the claim for the loss is denied, it is important to seek the counsel of an experienced Insurance Law Attorney. The facts of the case and the relationships of the parties involved all calculate into determining whether there is any coverage for the innocent party.

A house fire in Grand Prairie, Arlington, Garland, Mesquite, Richardson, Carrolton, Farmers Branch, Irving, or anywhere else in the North Texas area is a real nightmare for those involved. It is even worse when the insurance company accuses you of arson and denies the claim.
There are many things an experienced Insurance Law Attorney can do to help someone who is accused by the insurance company of having committed arson own their own house in order to recover the insurance proceeds.
One first needs to understand that arson is a criminal offense. The crime of arson is defined in the Texas Penal Code, Section 28.02. According to this section of the Penal Code:
(a) A person commits an offense if the person starts a fire, regardless of whether the fire continues after ignition, or causes an explosion with intent to destroy or damage:
(1) any vegetation, fence, or structure on open-space land; or
(2) any building, habitation, or vehicle:
...
(B) knowing that it is insured against damage or destruction;
...
(d) An offense under Subsection (a) is a felony of the second degree, ....
Next, one needs to understand that the Texas Code of Criminal Procedure outlines part of the procedure for handling a suspected arson case.
Article 50.01 states: When an affidavit is made by a credible person before any justice of the peace that there is ground to believe that any building has been unlawfully set or attempted to be set on fire, such justice shall cause the truth of such complaint to be investigated.
Article 50.02 states: The proceedings in such cases shall be governed by the laws relating to inquests upon dead bodies. The officer conducting such investigations shall have the same powers as are conferred upon justices of the peace ....
Article 50.03 states: The jury after inspecting the place in question and after hearing the testimony, shall deliver to the justice holding such inquest its written signed verdict in which it shall find and certify how and in what manner such fire happened or was attempted, and all the circumstances attending the same, and who are guilty thereof, and in what manner. If such a jury is unable to so ascertain, it shall find and certify accordingly.
Article 50.04 states: If the jury finds that any building has been unlawfully set on fire or has been attempted to do be, the justice holding such inquest shall bind over the witnesses to appear and testify before the next grand jury of the county in which such offense was committed.
Article 50.05 states: If the person charged with the offense, if any, be not in custody, the justice of the peace shall issue a warrant for his arrest, and when arrested, such person shall be dealt with as in other like cases.
Article 50.06 states: In all such investigations, the testimony of all witnesses examined before the jury shall be reduced to writing by or under the direction of the justice and signed by each witness. Such testimony together with the verdict ... shall be certified to ....
Going further here, the Texas Government Code, Section 417 defines the duties of the State Fire Marshall as it relates to arson cases.
Section 417.004(b), puts the State Fire Marshall in charge of all arson and suspected arson cases in the state and makes him responsible for investigations.
Section 417.0052, says the State Fire Marshall is responsible for investigating even incidences of suspected arson.
Section 417.006, gives him authority to appoint local peace officers to investigate arson cases.
Section 417.007, states that the State Fire Marshall "shall immediately investigate a fire" ... if requested by:
(1) the mayor, fire chief, fire marshall, or police chief of a municipality in which a fire occurs;
(2) a county or district judge, sheriff, county fire marshal, chief or fire marshal of a fire department in an unincorporated area, or county attorney of a county in which a fire occurs;
(3) a fire insurance company interested in a loss or the company's general, state, or special agent;
...
(5) a justice of the peace or constable of a precinct in which a fire occurs; or
(6) officials of a state or federal law enforcement agency or local or special governmental district involved or interested in a fire loss ...
This same section allows the fire marshall to enter the building or premises at any time, to "conduct the investigation at the place of the fire and before an insured loss may be paid. The fire marshall shall ascertain, if possible, whether the fire was caused intentionally, carelessly, or accidentally. The state fire marshall shall make a written report of the investigation to the commissioner." This section also allows further investigations as it deems necessary. It allows for the marshall to give its investigative results to a prosecuting attorney if there is reason to believe there is an arson.
What is relevant about all the above information is that seldom does the insurance company, who denies a claim based on a suspected arson, ever follow through with these steps which would obviously be helpful to their position. Which of course calls into doubt the validity and sustainability of their position.

Arson happens in places like Fort Worth, Dallas, Garland, Irving, Mesquite, Richardson, Plano, Duncanville, De Soto, and all other places in Texas at one time or another. But to be accused of arson and have your insurance claim denied because you are suspected by the insurance company is something else. Is there a typical case or situation where this comes about? The answer is no. Every situation has to be scrutinized based on the facts of that particular situation.
The Texarkana Court of Appeals issued an opinion in a 1990 case that discusses the way these arson cases are evaluated. The style of the case is, The St. Paul Guardian Insurance Company v. Teri Lynn Luker and Paul Kimbel Luker. In the case, a jury found in favor of the Lukers and compensated the Lukers for contractual damages of $27,000 and tort damages of $50,000 and mental anguish of $15,000. The court reversed all but the contractual damages of $27,000.
Here are some of the facts of this case.
At approximately 12:15 a.m. on the morning of June 12, 1985, a fire caused structural damages to the house in which Teri and Paul were residing and damaged or destroyed their household belongings. Emmitt Luker owned the home but did not occupy it. The house was the source of litigation proceeding between Paul and his previous wife, the result of which Paul owed Emmitt $17,000 on the house. As a result of these actions, Paul obtained a new mortgage and his house payments increased from $650 per month to $900 per month.
After Paul had obtained the new mortgage, he got a new policy which reduced his contents coverage from $40,000 to $27,000. The policy was actually in the name of Emmitt. Emmitt was paid for the damage to the house but St. Paul denied Teri and Paul's claim for the contents. St. Paul denied based on three grounds. That the fire was caused by arson by Paul and Teri or by someone instructed by them; that Paul and Teri misrepresented their losses by concealing their person involvement in the fire and by failing to report truthfully the extent and valuation of the destroyed personal property; and that the policy issued to Emmitt insured only Emmitt's interest in any personal property on the premises and not that of Paul and Teri.
The tort damages against St. Paul were for St. Paul violating the insurer's duty to deal fairly and in good faith with their insureds. This claim arises when there is no reasonable basis for denial of the claim or for delay in payment, or for a failure on the part of the insurer to determine whether there was any reasonable basis for the denial or delay. This was the standard set out by the Texas Supreme Court.
One argument by St. Paul was that the policy was issued to Emmitt, not Paul and Teri and thus the duty was owed to Emmitt, not Paul and Teri. This court, citing the Texas Supreme Court case, stated, "When a person contracts with an insurer for the benefit of another, both the person contracting and the third party have the right to expect that the insurer would owe the same duty to the designated third party as it would to the person making the contract. We hold that when an insurer agrees to insure a third party beneficiary under the terms of an insurance contract, it owes the same duty of good faith and fair dealing to the third party as it does to the purchaser of the insurance."
So, the preceding paragraph means that Paul and Teri won on the argument regarding whether or not they had a right to sue for a violation of the duty of good faith and fair dealing. Next, they had to prove the duty had been violated.
To establish a bad faith claim, the Lukers had to prove (1) the absence of a reasonable basis for denying or delaying payment of the benefits of the policy, and (2) that the St. Paul knew or should have known that there was not a reasonable basis for denying the claim or delaying payments of the claim. St. Paul retained the right to deny invalid or questionable claims.
This court then spent several pages of their opinion going over the many facts in this case. In its' conclusion this court stated, "We find that the Lukers produced insufficient evidence to show that there was no reasonable basis for St. Paul's denial of the claim, nor did the Lukers present sufficient evidence to show that St. Paul knew or should have known that there was no reasonable basis for denying or delaying the payment of the claim.
This case, like most arson cases, had a lot of interesting facts. Both the insureds and the insurance companies always seem to have evidence in their favor. Then it boils down to which side you believe the most. One thing for certain is that an experienced Insurance Law Attorney needs to be involved early on in these cases. Otherwise, it is the insurance company gathering all the evidence to win the case.

For someone in Grand Prairie, Arlington, Fort Worth, Dallas, Hurst, Euless, Bedford, North Richland Hills, Roanoke, Keller, and other places in North Texas, it is likely to happen. A spouse intentionally burns the house down. Well, what happens to the insurance money? Here is a case that provides some guidance.
The case was decided in 1999, by the Texas Supreme Court. It is styled, Texas Farmers Insurance Company v. Daisy Murphy. The question posed to the court was whether an innocent spouse can recover insurance proceeds when the other co-insured spouse has intentionally destroyed the covered community property.
Here is some background.
On September 23, 1993, Robert Murphy obtained a binder on a homeowners policy covering his and his wife Daisy Murphy's home and contents. On September 30, 1993, the home burned down. Robert sought reimbursement and Farmers investigated the claim. Farmers concluded Robert intentionally caused the fire and denied the claim.
On February 19, 1994, Farmers filed a declaratory judgment action asking the court to declare they had no liability under the policy.
Meanwhile, Daisy filed for divorce, and on March 8, 1996, she and Robert executed a partition agreement to divide their community interests in any proceeds from the policy. The divorce was final on October 11, 1996.
In Texas, until 1986, the deliberate destruction of jointly owned property by one co-insured barred recovery by other co-insureds, even when they were innocent and the policy did not expressly bar such recovery. In 1986, this changed and thus an innocent spouse is not now barred from recovery.
Farmers argued that "public policy" should not allow this recovery. To prevent an arsonist from having a community interest in any recovery, Texas courts have generally conditioned an innocent spouse's recovery on whether and when the community interests in the insurance policy were severed.
Farmers argued that innocent spouses should not recover even if there is an after-the-fact partition. It contends that such a rule would encourage spouses to enter into sham partition agreements, after which the wrongdoing spouse might still benefit from the insurance proceeds.
Daisy responded that it would be arbitrary to deny recovery even when the culpable spouse would receive no benefit. It would also be unfair to require an innocent spouse to obtain a divorce or partition before the claim was filed or denied. First, it assumes the innocent spouse knows that the other spouse committed arson and can obtain an equitable partition before the insurance company denies the claim. Second, it encourages an innocent spouse whose home burns down to hastily partition or divorce, even though a jury may later acquit the suspected spouse of any alleged wrongdoing. Daisy contended that if recovery must be conditioned on partition or divorce, she would have until time of judgment to obtain a severance of the community estate.
This court said that neither a rule conditioning an innocent spouse's recovery on partition or divorce is neither practical or satisfactory. Partition agreements require the consent of both spouses. The culpable spouse could still benefit by demanding, in exchange for his or her consent, a greater share of the remaining community estate. Or he or she could refuse to partition at all, leaving the innocent spouse with a choice between divorce or forfeiture. And an innocent spouse who wants a divorce might not be able to obtain it in time to protect her or his interest in any recovery. On the other hand, an innocent spouse who is committed to the marriage might enter into a partition agreement as a mere formality, fully intending to share any recovery with the culpable spouse. In short, a rule requiring partition may not effectively protect the innocent spouse's share or prevent the culpable spouse from benefitting. Additionally, it may have the unintended consequence of encouraging divorce.
In making the ruling the court stated, "It is not the courts' business to superintend what innocent co-insureds may do with any insurance proceeds they are contractually entitled to recover." They said that the preferable rule is to allow innocent spouses to recover according to their contracts, regardless of partition or divorce.
One thing for certain is that an experienced Insurance Law Attorney should be consulted in these situations. The facts of the case and the wording of the policy may make a big difference in the outcome of the claim.

Arsons happen in Weatherford, Mineral Wells, Aledo, Azle, Millsap, Hudson Oaks, Willow Park, Brock, Peaster, Springtown, and all over Parker County and Texas. But that does not mean the person who owned the property committed the arson. And when the insurance company does an investigation and finds the property owner is having financial problems that does not mean the property owner burned the property either. After all the vast majority of people have financial problems.
Here is a case that deals with arson and the insurance company attempt to blame the arson on the homeowners. The case opinion was issued in 2000, by the Dallas Court of Appeals. The case is styled, Texas Farmers Insurance Company v. Cloteal L. Cameron, et al.
The jury found against Farmers for violations of the Texas Insurance Code, bad faith, violation of the Prompt Payment of Claims Act, mental anguish, violations of the Texas Deceptive Trade Practices Act, knowing and intentional conduct, and attorney fees. This appeals court reversed the finding regarding the mental anguish claim and part of the attorney fees claim and the calculation of interest on the claim.
Set out here, is only the factual aspect of the claim. This is to give an ideal of the way some claims are denied. Hopefully it is obvious that an experienced Insurance Law Attorney should be involved in the cases early.
On Sunday, March 19, 1995, around 4:00 a.m., a fire destroyed the Camerons' residence and most of its contents. Neither Alfred Cameron nor his wife Cloteal was present at the time. Farmers was the insurer, and the Camerons' insurance policy had limits of $60,000 for the residential structure and $36,000 for the contents. The evidence is overwhelming that the setting of the fire was arson, and even Paul Sanders, an expert witness who testified on the Camerons' behalf, agreed the fire was incendiary.
After the Camerons reported the fire to Farmers, Wendy High, a claims adjuster, drove past the remains of the house. Concluding that the Camerons would need temporary living expenses, High authorized a $500 advance for the Camerons. On Tuesday, March 22, High met with the Camerons, public adjuster Curtis Hordge, and two contractors. She gave the Camerons the $500 check. She did a walk through of the residence and a basic inventory, noting items that would have been worth more than $100. She also gave the Camerons the appropriate claim forms to fill out and explained the forms to them. On May 1, 1995, the Camerons executed a sworn proof of claim, which reflected that the actual cash value of the structure was $60,000, with a replacement value of $75,000. The Camerons claimed $60,000 for the loss or damage of the structure and $36,000 for the loss or damage to the contents, the full limits of the policy.
Hordge assisted the Camerons in compiling an itemized inventory of their losses. Hordge took about six weeks before submitting anything to High. High noticed some discrepancies between her own rough inventory and Hordge's. When High did her walkthrough, for example, she noticed two sofas; at the time, Cloteal told her that one sofa was worth about $1,000 and the other was worth between $1,500 and $1,800. Hordge's inventory, however, valued the sofas at more than twice those amounts.
Both Camerons had alibis for the time of the fire. Alfred had left Dallas around 7:00 p.m. on Saturday, March 18, to go to the Horseshoe Casino in Shreveport, Louisiana. A friend, John McCrumbly, accompanied him. The two men left the casino around 4:00 a.m. on Sunday, March 19, and arrived back home in Dallas around 7:00 a.m. Cloteal was at her daughter's apartment assisting her packing for an anticipated move. Cloteal arrived at her daughter's apartment around 6:00 p.m. on Saturday, March 18. The two women got take-out food from Colter's Barbecue and returned to the apartment. Because her daughter had only one bed, the two slept together. Between 7:00 and 8:00 a.m. the next morning, Alfred telephoned to tell Cloteal about the fire. McCrumbly vouched for Alfred's whereabouts, and Cloteal's daughter, Sheritrice Spencer, vouched for Cloteal's.
On August 3, 1995, McCrumbly executed an affidavit confirming Alfred's alibi. On August 11, Spencer executed an affidavit confirming Cloteal's alibi. The affidavits were forwarded to Farmers. Tony Poncio, the branch manager for Farmers, reviewed the affidavits. Without interviewing either McCrumbly or Spencer personally, he rejected the Camerons' claim. Poncio took the position that "their testimony was already in front of us signed and notarized. There was nothing else to look into about it."
On September 18, 1995, Poncio wrote the Camerons a letter informing them that Farmers was denying the claim. The reason given was that Farmers had "a good faith belief that the fire in question was caused intentionally by you or by persons instructed by you to set the fire." The letter went on to accuse the Camerons of making material misrepresentations when Farmers' representatives investigated the claim. Poncio quoted in full the policy provision concerning concealment or fraud, which stated that, in the event of an insured's intentional concealment or fraud relating to a material fact, "this policy is void." The text of Poncio's letter, however, did not actually declare the policy void; it simply stated that the Camerons' alleged misrepresentations were an additional reason for denial of the claim.
All this time, however, Farmers had been paying the Camerons temporary living expenses. Because High wanted to give the Camerons "enough time to figure out where they needed to go," checks for these expenses continued throughout the month of September, despite the rejection in mid-September of the Camerons' claim. From the days immediately after the fire through September, Farmers made nine payments for a total of $10,044.62. At the same time, High did not investigate further the discrepancies she noticed between her contents work sheet and the itemized list provided by Hordge. Although she normally would reinvestigate if there were discrepancies between her contents work sheet and a proof of claim submitted by an insured, she did not do so in the Camerons' case: by the time she "got her contents work sheet and investigation through management," Poncio had already denied the claim.
The Camerons then sued for all the reasons stated earlier.
In upholding the findings of violations of the Texas Insurance Code and bad faith, this court reviewed the evidence of lack of follow-up by Farmers on investigating the inventory discrepancies. The lack of interviewing alibi witnesses. The lack of any proof the Camerons were involved in the fire. Allegations of past financial problems the Camerons had but no mention that they were current on all obligations at the time of the fire. The fact that if Farmers had actually cancelled the policy, that a pro rate share of the premiums should have been refunded.
The case lists several other things Farmers did or failed to do to properly investigate this claim before denying coverage to the Camerons. It is good reading to understand how some of these arson cases are investigated and evaluated.

Anyone living in Weatherford, Mineral Wells, Aledo, Azle, Hudson Oaks, Willow Park, Millsap, Brock, Cool, Springtown, or other areas in Parker County, or the State of Texas know what arson means. The question to be wondered about is, what happens if your home burns as the result of an arson fire?
The Waco Court of Appeals issued an opinion in 1998, in the case styled, State Farm Fire and Casualty Insurance Company v. Sandra Sue Vandiver.
In this case Vandiver had sued State Farm seeking to recover damages which resulted from the destruction of her home by a fire. The trial court made many ruling in favor of Vandiver, the result of which, she won her case. One of these ruling was a directed verdict against State Farm on its arson defense. State Farm appealed and this court reversed the verdict and set the case for a new trial. Here is some relevant information.
To establish the affirmative defense of arson, State Farm had the burden of proving by a preponderance of the evidence that Vandiver set the fire or caused it to be set. Generally, an insurer must rely on circumstantial evidence in arson cases.
The crime of arson, being in defiance of law, is ordinarily conceived in secrecy and executed in such a manner as to avoid detection and exposure; and proof of such an unlawful enterprise must, in the very nature of things, be made by circumstances, and every circumstance which tends to cast light upon the incident is legitimate and proper.
Citing another court this court said as follows:
In order to establish the affirmative defense, the insurer must offer evidence:
1) the fire had an incendiary origin;
2) the insured had a motive to set the fire or cause it to be set; and
3) the insured had an opportunity to set the fire or other circumstances linking the insured to the fire.
This courts' job was to review the trial court record for probative circumstantial evidence of the elements above rather than viewing each piece of evidence in isolation. That so long as the inferences arising from the circumstantial evidence are not equally consistent with the nonexistence of the ultimate fact, some probative evidence exists in the record to support the ultimate fact. To sustain a finding of fact based upon circumstantial evidence, it is not necessary to exclude beyond suspicion every other possible inference that could be drawn from the facts shown. It is necessary to show only that one conclusion or inference is more probable than any other.
The court had these facts to look at in making its decision.
The parties did not dispute that the fire which consumed Vandiver's home had an incendiary origin. As a result the court looked to only the latter two elements that are listed above.
Motive - The record revealed that Vandiver was experiencing financial stress at the time of the fire. She had a horse-raising business which was not making a profit. She had used this business to write off expenses from her IRS taxes for a number of years and the year of the fire loss was the last year she would have been able to deduct her expenses due to business losses. (26 U.S.C.A., Section 183(d)).
The record contained evidence that her monthly expenses exceeded her income. State Farm's analysis of her bank records revealed that she had a negative cash flow of almost $3,000 in the eight months prior to the fire with additional bank charges assessed for checks which were returned because of insufficient funds. He account contained less than $500 at the time of the fire.
She lived with a man that the records revealed she was supporting.
Vandiver's sister had almost $5,000 in unauthorized charges on one of Vandiver's credit cards.
The court said that the above constituted some evidence of motive thus satisfying the second prong set out above.
Opportunity or Other Connecting Circumstances - One of Vandiver's neighbors reported the fire around 10 P.M. Vandiver testified she was at her sister's condo, about forty-five minutes away until 10:30 or 11:00 that night. Her sister testified she though Vandiver left about 10:00. There were other discrepancies between the times Vandiver testified to and the times to which her sister testified.
Vandiver and her sister and the man she lived with had the only keys to the house. The man was out of town the day of the fire. Vandiver testified that she locked the house and had seven dogs on her property. Two neighbors testified that the dogs typically barked at strangers who came around but neither of the neighbors heard dogs barking the night of the fire, although both were outside that evening. One neighbor found the house secure when he came over to investigate the fire.
State Farm had paid a previous claim for a fire loss on Vandiver's property, the cause of which remained undetermined. Vandiver also had a pending theft loss of $1,500.
Neighbors and fire officials testified that there had been no other incidences of vandalism, burglary or arson in the area.
Vandiver admitted that she was on the premises a few hours before the fire. The house was locked at the time of the fire, and Vandiver and her sister were the only persons in the area with keys. The failure of the dogs to bark creates a reasonable inference that no one else came on Vandiver's property that evening. The other circumstances all combined to justify a conclusion that Vandiver was possibly the person who set the fire.
Based on this evidence the court concluded there was some evidence of the third element set out above.
The reasons the court reversed the ruling against State Farm are hard to argue with. One thing that is certain is that a person who has suffered an arson fire loss is going to be investigated by the insurance company for the possibility of being the person who set the fire. For that reason, an experienced Insurance Law Attorney should be consulted immediately.

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

Homeowners in Grand Prairie, Arlington, Irving, Duncanville, De Soto, Cedar Hill, Dalworthington Gardens, Fort Worth, Dallas, and other places in Texas might be interested in this story. It has to do with insurance and arson.
The story is from knoxnews.com and was written by Jamie Satterfield. The article was published on May 27, 2011, and is titled "Vonore couple accused of arson: Insurance firm sues, claiming pair blamed neighbor as cover-up."
The article tell us that the insurance company, American National Property and Casualty Company, a Missouri based insurance company, is accusing a lesbian couple of being arsonists who burned down their own home to receive the insurance proceeds. The couple say they are victims of hate crime.
The insurance company filed a lawsuit in a United States District Court against Carol Ann Stutte and Laura Jean Stutte, accusing them of torching their house and mounting a cover-up of the crime that included publicly blaming a gay-bashing neighbor for the fire.
The article tells us that the Stuttes' house was destroyed in a blaze reported September 4, 2011. They said then that the word "Queers" had been spray-painted in black letters on a detached garage near the charred ruins and blamed a neighbor Janice Millsaps in both media interviews and a lawsuit filed against Millsaps in Monroe County Chancery Court.
In the Stuttes' lawsuit, their attorney alleged Millsaps "repeatedly threatened the lives of the Stuttes" and also "specifically and repeatedly threatened to burn the Stuttes' house."
The Stuttes claimed in the lawsuit that Millsaps, a month before the fire, said to them: "Do you know what is better than one dead queer? Two dead queers."
Millsaps denied any role in the fire and has not been charged despite extensive probes by the FBI. the Tennessee Bureau of Investigation and local arson investigators, according to Millsaps' attorney.
American National notified the Stuttes last week that the company would not pay their claim, which the lawsuit totaled to just more than $276,000, and filed its case in the federal court.
"It was determined through investigation that the preponderance of evidence shows that the loss was intentionally caused by the Stuttes," according to the Chattanooga attorney who filed the lawsuit.
The federal lawsuit also accuses the Stuttes of "concealment and fraud" for "swearing that the loss did not originate by any act, design, or procurement on their part and statements made and documents submitted during the investigation of the loss."
The author of the article tried to get hold of the Stuttes and their attorney for comment and had been unsuccessful in both cases.
Noteworthy, is that the Stuttes attorney, earlier in the year, had accused the insurance company of intentionally dragging its feet in responding to the couple's fire claim and requests for living expenses payments under the provisions of the couple's insurance plan.
In earlier interviews the Stuttes attorney had claimed that she was having to "fight and claw for simple insurance reimbursement checks." At that time the Stuttes were having to continue paying their $1,200 monthly mortgage, taxes and insurance premiums on the burned house while also spending $900 to rent another place to live.
American National is asking the federal Judge, Senior United States District Judge Leon Jordan, to declare the Stuttes' insurance plan void as a result of their alleged arson and cover-up.
As a side note, the Stuttes' mortgage lender, Chase Home Finance, is listed as a defendant in the case because they may have a stake in the outcome.
It is probably safe to say that anytime an insured structure burns, that the insurance company is going to investigate for arson. In Texas, the Texas Government Code, Section 417.001 thru 417.010, designates the State Fire Marshall as being responsible for investigation of arson claims.
Anytime an insurance company does not promptly pay a fire claim, the insured should seek the immediate help of an experienced Insurance Law Attorney.

Someone in Grand Prairie, Arlington, Grapevine, Colleyville, Hurst, Euless, Bedford, Keller, Flower Mound, Roanoke, Haslet, Saginaw, and other places in the state of Texas would naturally be upset if their claim were denied. But next, they would want to hire an experienced Insurance Law Attorney and pursue a lawsuit against their insurance company to make them pay.
Here is a case where an attorney tried to get the insurance company to pay but most of the lawsuit was almost thrown out of court. The style of the case is, Rosa Garcia and Augustin Garcia v. Nationwide Property and Casualty Insurance Company. The opinion in this case was issued on May 16, 2011, by the United States District Court, S. D. Texas, Houston Division.
Here is what is going on in this situation:
The Garcia's are owners of a Texas Homeowners Insurance Policy issued by Nationwide and sold to the Garcia's, covering their home.
The lawsuit papers submitted by their attorneys, is similar to many by the same attorneys. The petition, recites that during Hurricane Ike, water intruded through the roof, significantly damaging the entire house and garage, including ceilings, walls, insulation, and flooring. The storm caused substantial structural and exterior damage to the building and damaged the Garcia's personal belongings, and as a result they also incurred additional living expenses. They submitted a claim to Nationwide for these expenses, but Nationwide denied the claim for repairs even though the policy provided coverage for such losses, and it underpaid their other claims for damages. Nationwide continued to delay payment owed under the policy for their damages.
In the lawsuit, the Garcia's asserted that Nationwide failed to perform its contractual duties to adequately compensate them under the terms of the policy, refusing to pay the full proceeds of the policy despite demands. This being in breach of the insurance contract.
As to specific statutory violations, the Garcia's alleged that Nationwide misrepresented that the damage to their property was not covered, in violation of Texas Insurance Code, Section 541.060(a)(1). They also asserted that, in violation of Section 541.060(a)(2)(A) Nationwide failed to make an attempt to settle the claim in a fair manner even though it was aware of its liability under the policy. In addition, that Nationwide failed to explain to them the reasons for its offer of an inadequate settlement. Nationwide also did not communicate any future settlements or payments that they would pay for the entire losses covered under the policy not explain why they failed to adequately settle the claims, in violation of Section 541.060(a)(3). They also accused Nationwide of failing to affirm or deny coverage of their claims within a reasonable time, in violation of Section 541.060(a)(4). Moreover Nationwide's refusal to fully compensate under the terms of the policy and failure to conduct a reasonable investigation of their claims, indeed its performance of an outcome-oriented investigation that resulted in a biased, unfair, and inequitable evaluation of their losses on the property, violated Section 541.060(a)(7). And, in violation of Section 542.055, the Garcia's contended that Nationwide failed to timely acknowledge the claim and to request all information reasonably necessary to investigate their claim within the statutorily mandated time of receiving notice of the claim. In violation of Section 542.056, Nationwide additionally failed to accept or deny the full claim within the statutorily mandated time of receiving all necessary information. Nationwide further delayed full payment of the claim longer than allowed in violation of Section 542.058.
Going on, the Garcia's alleged Nationwide breached their common law duty of good faith and fair dealing by refusing to pay them in full even though a reasonable insurance company would know there is no basis on which to deny them full payment.
Finally, the Garcia's claim that Nationwide knowingly or recklessly made false representations of material facts and or knowingly concealed all or some material information from them.
This court then cited well established Federal law found in Federal Rule of Civil Procedure 9(b) which says: "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally. The Fifth Circuit Court of Appeals strictly construes this rule and requires that plaintiffs pleading fraud in federal court "to specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent."
The bottom line in this case is that the court ordered the Garcia's to amend their lawsuit papers within 20 days, and to be specific according to the requirements of Rule 9(b) or almost all of the lawsuit would be dismissed except the portions dealing with breach of contract.
What is to be learned from this case is one of the distinctions between Federal Court and State Court. That being that their are different rules and that the differences must have attention paid to them or the case could be dismissed.

Here is one for residents of Weatherford, Mineral Wells, Aledo, Azle, Springtown, Hudson Oaks, Willow Park, Brock, Millsap, Poolville, and other places in Parker County and Palo Pinto County. This case is unusual.
The Texas Court of Appeals, San Antonio, issued an opinion on May 11, 2011, in a case appealed from the 73rd Judicial District Court. The style of the case is, Dora Gulley v. State Farm Lloyds.
A little legal information first. This is an agreed interlocutory appeal pursuant to Texas Civil Practices & Remedies Code, Section 51.014(d). It is arising out of an insurance case where in both sides in the case filed motions for Summary Judgment asking the court to rule in their favor as a matter of law. The Judge denied both parties motions and allowed them to pursue an appeal pursuant to the above statute. So this case was essentially being given to the appeals court to make a decision / ruling.
Here is some factual background.
Gulley made a claim under her homeowners insurance policy for damage caused by foundation movement resulting from a below-slab leak. State Farm found the damage was covered under the Dwelling Foundation Endorsement to the policy which covered "settling, cracking, shrinking, bulging, or expansion of the foundation ... caused by ... leakage of water ... within a plumbing ... system:" Therefore, Gulley's claim was subject to the endorsement's 15% coverage limitation. Gulley accepted the payment, but later sued State Farm for breach of contract contending she was entitled to additional benefits under a different policy endorsement she had purchased, the Water Damage Endorsement which covered "deterioration ... caused by the continuous or repeated ... leakage of water ... from a plumbing system."
The parties in this case and the trial court agreed that the following was a "controlling question of law" on which there is "substantial ground for difference of opinion." Here is the request made to the appeals court:
Whether damage to walls, floors, roofs or ceilings caused solely by foundation movement resulting from a below-slab plumbing leak is covered under either the Dwelling Foundation Endorsement (to Gulley's Homeowners Policy) or the Policy's Water Damage Endorsement."
This court got into a discussion about the role of trial courts in the resolution of disputes between parties and the role of the appeals courts in the same matter. After more than a four page analysis of these roles and the intent of the legislature in drafting the rules that control the courts, this appeals court sent this case back to the trial court for the trial court to make a decision.
This appeals court essentially told the trial court to make its' own decision on the matter and then if one side or the other disagreed with that decision then the side that disagreed could appeal the decision. Until that occurred, it was not the business of the appeals court to get involved.
The situation here was unusual. It was as if the trial court had decided that no matter how they decided, the other side was going to appeal. So the trial court punted on making a decision. Then the appeals court basically said, that is not the way things are done.
All this means that this case will come back around again. Remember that these are the types of cases that are made for an experienced Insurance Law Attorney. His advice is vital for knowing the best way to go forward.

No matter where you live, Grand Prairie, Arlington, Mansfield, Fort Worth, Dallas, Garland, Mesquite, Richardson, Coppell, Carrolton, or anywhere else in Texas, at some point you are probably going to have an insurance claim denied. To what extent will an insurance company go to prove they do not owe you anything?
The Texas Court of Appeals, Eastland, decided a case in December, 2008, wherein the insurance company appealed the findings of an injured persons own treating experts. The style of the case is, American Casualty Company of Reading, Pa. v. Donna Zachero. Here is some background information.
On March 17, 2003, Zachero was injured at work when she fainted and fell. She hit her chin, shoulder, chest, and elbow during the fall and developed bruises on those areas. She also injured her knee when she fell. On April 17, 2003, Zachero went to the emergency room due to pain and swelling in her knee. She was x-rayed and instructed to see an orthopedic, Dr. Luke, a specialist for the injury.
After seeing Dr. Luke and having an MRI, Zachero was diagnosed with a medial meniscus tear in her left knee. The MRI also revealed osteoarthritis and chondromalacia in the knee. Zachero had a surgery to remove the torn area of the meniscus. Zachero continued to have problems and Dr. Luke referred her to see Dr. Reilly. Dr. Reilly determined that Zachero had osteoarthritis of the left knee that was "traumatic in nature" and that Zachero needed a total knee replacement. Zachero had the surgery on November 1, 2004.
American Casualty disputed that the injury to Zachero's knee included osteoarthritis. American Casualty contended that Zachero's osteoarthritis was related to degenerative joint disease, which is an ordinary disease of life.
The coverage at issue here was determined by the Texas Labor Code, Section 401.011(10)., 401.011(26), and 401.011(34). These sections discuss and define injury and the last section defines the term "injury" to include the aggravation of a preexisting condition or injury.
A trial was held in this case and the jury found in favor or Zachero.
The insurance company appealed the case and one of their points of appeal dealt with their position that the expert testimony of Dr. Reilly was legally insufficient to support the jury's findings. Dr. Reilly had testified that Zachero's osteoarthritis was traumatic in nature from the work injury to the meniscus. Dr. Reilly explained to the jury how Zachero's injury to her knee required the removal of the meniscus and caused her arthritis to progress.
American Casualty specifically argued that Dr. Reilly was not qualified as an expert regarding the cause of osteoarthritis and chondromalacia. American Casualty complained on appeal that Dr. Reilly was not qualified to give expert testimony on causation, that his testimony was not reliable, and that his testimony was not based upon reasonable medical probability.
This court got into a discussion of the requirements of experts to testify and the requirements of their testimony. As is hopefully obvious, this type of testimony needs to be established and in insurance cases an experienced Insurance Law Attorney should be sought to help. The court then identified six factors that trial courts may consider in dertermining whether expert testimony is reliable:
1) the extent to which the expert's theory has been and can be tested;
2) the extent to which the expert's technique relies upon his own subjective interpretation;
3) whether the expert's theory has been subjected to peer review and publication;
4) the potential rate of error of the theory;
5) whether the expert's theory or technique has been generally accepted as valid by the relevant scientific community; and
6) the nonjudicial uses that have been made of the expert's theory or technique.
Having the above information before the trier of fact, whether a judge or jury, allows the trier of fact to have a basis upon which to render a decision.
This court upheld the trial court decision in favor of Zachero.
Fortunately, experts are not needed in all cases. Experts make the cost of cases and litigation go very high and the result of which is that often times an insurance company can out spend the person who might be sueing them. Even in cases where the insured wins, the costs of winning can sometimes exceed the compensation won. In other words a win may be very hollow in nature if the costs exceed the recovery. To get around this there are several things that must be done. One, on cases that are smaller in overall value, is to evauate a case at the beginning to see if the case can be litigated without excessive costs. This calls for spending the least amount of expense possible to prosecute the case.
Understand of course that the costs are not often considered by the insurance company. To them it is just a part of doing business.
When a case has a lot at stake, costs are not looked at that close, in other words you just do what you have to do to win.

Someone with uninsured and underinsured coverage in Grand Prairie, Arlington, Dallas, Fort Worth, Mansfield, Irving, Pantego, Dalworthington Gardens, or anywhere else in Texas would probably have a hard time understanding when it becomes too late to file a claim for benefits under these coverages. Maybe this will help.
A Texas Supreme Court case decided in 1974, is still good law and a reference point for answering this question. The case is styled, "Raul C. Franco et us. v. Allstate Insurance Company.
In this case, Franco and his wife sought to recover from Allstate Insurance Company, under the uninsured motorist provision of their insurance policy, for the death of their daughter and personal injuries to Franco, arising out of an accident alleged to have been caused by the negligence of an uninsured motorist. Their suit was filed approximately three years after the date of the accident and death. The question is whether the two or four year statute of limitations is applicable to either or both of the claims asserted.
The Texas Supreme Court ruled that the four year statute of limitations applied. Here is further information.
Allstate contended that the claims arose out of a tort action and thus are subject to the two year statute of limitations.
On the other hand, the Francos contended that the suit is based upon a written contract, i.e., an insurance policy issued to them by Allstate providing protection to the extent of $10,000.00 per person because of 'bodily injury, sickness or disease, including death,' resulting from the negligence of owners or operators of uninsured motorist vehicles. Therefore, the four year statute relating to suits on contracts is applicable.
Citing a 1942 case, this court stated, "the general rule is well established that similar claims for indemnity or losses under other insurance policies are based upon contracts in writing within the meaning of the four year statute of limitations."
The reasoning of the courts and texts on this issue is that, although ultimate recovery in these types of actions depends upon the proof of damges due to the tort of an uninsured third party, the cause of action against the insurance company arises by reason of the written contract.
The case above and many others make clear that a four year statute of limitations applies on these insurance policy claims. And it is important to draw the distinction between the "third party" claim against the person who caused the wreck which is subject to a two year statute of limitations and a "first party" claim by the policy holder against his own insurance company for benefits under his own policy.
The Texas Insurance Code, Section 541.162, updated this law in 2003 and 2005 making clear what the above case stands for. This statute reads in part,
(a) A person must bring an action under this chapter before the second anniversary of the following:
(1) the date the unfair method of competition or unfair or deceptive act or practice occurred; or
(2) the date the person discovered or, by the exercise of reasonable diligence, should have discovered that the unfair method of competition or unfair and deceptive act or practice occurrred.
Part (2) above can be a little tricky even for an experienced Insurance Law Attorney. This same statute tells where the applicable statute of limitations can be extended an additional 180 days. The best advice is too "not wait" but to seek advice as soon as possible when a situation arises where an insurance claim needs to be. And don't just rely on what the insurance company agent or adjuster says.