Dallas Fort Worth Insurance Lawyer Blog

Insured people in Grand Prairie, Fort Worth, Dallas, Lake Worth, Benbrook, Saginaw, Crowley, Mansfield, and other places in Tarrant County and Texas need to be cautious when dealing with their insurance company agent.
A case from the Austin Court of Appeals decided in 2000, is a good example of the above. The style of the case is, "Stan Stumph, d/b/a Concrete Concepts/Dallas Fire Insurance Company v. Dallas Fire Insurance Company/Stan Stumph, d/b/a Concrete Concepts."
Here is some background.
Stumph is the sole proprietor of Concrete Concepts. In 1992, Stumph purchase a commercial policy from Dallas Fire (the "first policy"). The first policy was purchased through Dallas Fire's local recording agent, don Harvey. Harvey owned Emerald Insurance. The policy was to be in effect from November 17, 1992, through November 17, 1993. Stumph made a down payment on the policy's premium and financed the remainder through a premium finance company, to whom he sent monthly payments. The premium finance company forwarded the payments to Harvey. Harvey was to send the payments, minus a commission, to Dallas Fire. Dallas Fire did not receive Stumph's payments and eventually discovered that Harvey had not forwarded payments on other accounts as well. On July 14, 1993, Dallas Fire quit doing business with Harvey.
Shortly after this, Dallas Fire sent a cancellation notice to Stumph, stating that his policy would be cancelled on July 26, 1993, for "non-pay agent to co." Upon receiving the cancellation notice, Stumph called Harvey. Harvey told Stumph to continue making payments as usual and that this "had to be a paperwork mix-up." Stumph then called Dallas Fire and spoke to Liz Jennings, an "underwriter" at Dallas Fire. There is a disagreement about their conversation but Stumph claims Jennings told him that there must have been a "mix-up," Harvey was a "good man," Stumph should continue to make payments to Harvey and should keep his canceled checks, and Jennings would call him if he needed to send the checks to her or if there was a "problem."
This continued with a second policy (the "renewal policy"). With the renewal policy however, Stumph made the monthly premium payments directly to Harvey. Soon a claim was made against the policy.
In September 1994, Stumph sued Harvey, which settled, then later he sued Dallas Fire for violations of the Texas Insurance Code and the Texas Deceptive Trade Practices Act (DTPA).
Dallas Fire asserted they could not be sued because they had suspended Harvey's authority to issue policies. Stumph countered by asserting that Jenning's conversation with Stumph created apparent authority for Harvey to issue Dallas Fire policy's and that Stumph relied upon that apparent authority.
This court found that Dallas Fire was liable for misrepresentations by its underwriter that Stumph could continue to send premium payments to Harvey, described by the underwriter, Jennings, as a "good man" but who was in fact suspended.
This case is a situation where an employee, in this case the underwriter, made misrepresentations that the insured relied on and as a result suffered harm. Usually the misrepresentation is made by the insurance agent or there is a misrepresentation in the policy itself.
This situation, where the insured payed his premiums, suffered a loss, then made a claim that was denied, is exactly the type of insurance wrong doing where an Insurance Law Attorney is needed to assist the insured.

Here is something that insured people in Grand Prairie, Weatherford, Arlington, Fort Worth, Dallas, Mansfield, and other places in Texas might be curious about. What happens if you have an insurance policy on your house. Next, the house burns down and a claim is made and denied. Next, the homeowner dies! Can the heirs pursue a claim against the insurance company for violations of the Texas Deceptive Trade Practices Act or violations of the Texas Insurance Code?
The Fourth Court of Appeals District of Texas issued an opinion on July 27, 2011, that addressed this question. The style of the case is, Texas Farm Bureau Mutual Insurance Co. v. Shannan Rogers and Cristen Bazan, as legal heirs of Cynthia Bazan, deceased. This case was tried to a jury in the 198th Judicial District Court, Kerr County, Texas, which returned a verdict favorable to the heirs. This appeals court reversed. Here is some background.
In 2008, Cynthia Bazan purchased a house and was required to purchase insurance by the mortgage company. She applied for a policy with Farm Bureau. Farm Bureau initially refused coverage based on a wood-burning stove having inadequate protection. This was remedied and a policy was issued. Later, a fire completely destroyed Bazan's house and all the contents. Bazan made a claim and Farm Bureau began an investigation which included a background check of Bazan and a "cause and origin" investigation of the fire. Farm Bureau obtained Bazan's criminal record. Farm Bureau's fire investigator listed the cause of the fire as "undetermined."
Later, Bazan admitted in an interview with a Farm Bureau investigator that she had a criminal record, although she expressly denied in both of her insurance applications that she had ever been convicted of a criminal offense. In fact, her record was lengthy. When Farm Bureau's underwriting manager became aware of the criminal record he made the decision to rescind the policy. Farm Bureau sent notice to Bazan rescinding the policy and returning Bazan's premium payment based on the concealment of her criminal record on the policy application. The policy contained the following provision:
2. Concealment or Fraud. This policy is void as to you and any other insured, if you or any other insured under this policy has intentionally concealed or misrepresented any material fact or circumstance, made false statements or committed fraud relating to this insurance, whether before or after a loss.
Bazan's attorney sent a notice letter to Farm Bureau demanding payment and other damages. Farm Bureau still refused to pay and Bazan subsequently sued Farm Bureau.
Bazan later died, a few weeks before the trial. Her children filed a "suggestion of death" with the court asking to proceed as their mother's legal heirs. Farm Bureau objected but the court allowed the heirs to proceed.
After the trial in which Bazan's heirs prevailed, Farm Bureau filed this appeal. In the appeal Farm Bureau challenged the Bazan heirs right to pursue the DTPA claim.
This court cited Texas law that says a DTPA claim does not survive the death of the original consumer. The court held that a deceased consumer's estate cannot pursue a cause of action under the DTPA because the statute does not expressly provide for survival and because the right to recovery under the DTPA is punitive in nature --- "a purely personal right."
As to Farm Bureau's claim of misrepresentation being grounds to rescind the policy the court said that to void an insurance policy based on the insured's misrepresentations in the policy application, the insurer has the burden of proving the following: (1) the insured made a representation, (2) the representation was false, (3) the insurer relied upon the false representation, (4) the insured made the false representation with the intent to deceive the insurer, and (5) the false representation was material.
As to this part dealing with misrepresentation the jury found in favor of Farm Bureau and this court upheld that finding.

Consumers in Grand Prairie, Fort Worth, Arlington, Dallas, Mansfield, Burleson, Crowley, Benbrook, Lake Worth, Rendon, Keene, Burleson, and other places in Texas have the protection of the Texas Insurance Code and the Texas Deceptive Trade Practices Act (DTPA) when it comes to having rights against businesses and insurance companies that treat people in an unjust manner.
Regarding these two areas of law, Texas court cases and the statutes themselves tell us that the Insurance Code provisions are to be liberally construed and applied to promote its underlying purposes to define and prohibit unfair and deceptive insurance practices. This is specifically stated in the Insurance Code, Section 541.008, where it says, "This chapter shall be liberally construed and applied to promote the underlying purposes as provided by Section 541.001." This is also made clear in the 1988, Texas Supreme Court case, Vail v. Texas Farm Bureau Mutual Insurance Company.
The Supreme Court has stated that the similar liberal construction mandate in the DTPA requires that the statute be given "its most comprehensive application possible without doing any violence to its terms." The courts apply this same reasoning to insurance cases, which is made clear in other court cases.
Both the Insurance Code and the DTPA provide that the statutory remedies are cumulative of other remedies. This is told to us in the Vail case above which looks at the the Texas Business & Commerce Code, Section 17.43, which tells us in part, "The provisions of this subchapter are not exclusive. The remedies provided in this subchapter are in addition to any other procedures or remedies provided for in any other law; ...."
As a limitation on potential recoveries, Section 541.453, tells us, "A person may not recover damages and penalties for the same act or practice under both this chapter and another law."
So what are the limits to the punishment a person can recover? Here is one for consideration:
With regards to Personal Injury Protection (PIP) benefits, Section 1952.157 (b) tells us the following when someone entitled to PIP benefits has to sue to recover the benefits: "If the insurer is required to pay benefits described by ..., the person entitled to the benefits is entitled to recover reasonable attorney's fees, a penalty of 12 percent, and interest at the legal rate from the date those amounts became overdue."
Okay, now look at the Prompt Payment of Claims Act, Section 542.061. This section speaks to when an insurance company does not pay a claim in a timely manner. 542.061, says, "The remedies provided by this subchapter are in addition to any other remedy or procedure provided by law or at common law."
So, what happens if a claim for PIP benefits is not paid in a timely manner? The Insurance Code section that deals specifically with PIP says that the claimant is entitled to the amount owed, plus a 12 percent penalty, plus interest at the legal rate (assume it is 5%), plus attorney fees.
Next, the Insurance Code section dealing with prompt payments of claims says a claim that is paid late is entitled to the amount owed, plus interest on the amount owed at 18 percent a year, plus attorney fees.
Then, the Insurance Code section dealing with prompt payments of claims has the Section 542.061, cited above.
Result: On a $2500 PIP claim that is paid a year late, the insurance company would owe the $2500, plus the 12 percent penalty of $300, plus interest at the legal rate of 5 percent which is $125, plus the 18 percent late payment penalty which is $450, for a total of $875 in penalties on top of the $2500. Add to that, the attorney's fees which could be thousands of dollars.
$2500 is a relatively small number to be working with but the total penalty amount is about 35 percent, not counting attorney fees. Try earning that at the bank in a C.D. or some other investment.
As should be obvious, consultation with an experienced Insurance Law Attorney is worthwhile and should be considered early when a claim gets denied by an insurance company.

Insured people in places like Grand Prairie, Arlington, Fort Worth, Dallas, Mansfield, Burleson, Crowley, Joshua, Keene, Alvarado, and other places in Texas would know very little about Texas Insurance Law or the Texas Deceptive Trade Practices Act. The two are connected and maybe this article will help to make that clear.
A large part of this information is taken from a lawyer resource called, Texas Practice Guide - Insurance Litigation.
The Texas Insurance Code, Section 541.151(2) cross-references and prohibits conduct defined in the Texas Business & Commerce Code, Section 17.46(b). This 17.46 is part of what is commonly called the Deceptive Trade Practices Act (DTPA). the DTPA applies to all types of consumer transactions, not just insurance, so many of the provisions are not directly relevant. The most relevant provisions prohibit:
1) causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services. This DTPA language is similar to that found in the Texas Insurance Code, Section 541.051.
2) representing that services have ... benefits, ... which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which it does not. This is similar to Section 541.052.
3) representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law. This is similar to Section 541.051.
4) the failure to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed. This is similar to Section 541.051.
Lawyers will tell you that Section 17.46(b) is referred to as the "laundry list" of things companies cannot legally do to consumers. Insurance transactions fit within these prohibitions because courts have held that insurance is a "service."
Insurance Code, Section 541.151(2) tells us that a consumer can sue for violations of the acts prohibited by the insurance code as long as the person can show they relied on the illegal act or practice to their detriment.
The Texas Supreme Court, in 1987, in the case styled, "Aetna Cas. & Sur. Co. v. Marshall, " ruled that the insurance company's breach of its contractual promise to pay future medical benefits was precisely the sort of conduct forbidden, citing the DTPA, Section 17.46(b)(5), which prohibits misrepresenting "benefits."
In 1979, the same court in, Royal Globe Ins. Co. v. Bar Consultants, Inc., ruled that by misrepresenting that the policy affords coverage it does not have violates, Section 17.46(b)(12) of the "laundry list" items.
It is important to keep in mind that an experienced Insurance Law Attorney should be consulted in cases where there seems to be improper conduct. Strategy becomes important in deciding what is the best way to pursue a remedy when a wrong is committed. By looking at a 2000, case, decided by the Corpus Christi Court of Appeals, it is important to realize that although the Insurance Code and DTPA provisions both prohibit misrepresentations and nondisclosures, it can be important for an insured to carefully choose the prohibition that best fits the evidence or that has an easier burden of proof. For example, in this case, the insured was able to prove the insurance company violated the Insurance Code, Section 541.061 by failing to disclose information, but could not prove a violation of DTPA, Section 17.46(b)(24), because there was no evidence that the insurance company withheld the information with the intent to induce the insured to buy the coverage.

Everybody in Grand Prairie, Weatherford, Parker County, Tarrant County, Fort Worth, Arlington, Mansfield, Cleburne, Mineral Wells, or any other place in Texas has a property line associated with his property. Title to land (property lines) is part of the coverage in a title insurance policy. As a result, the following case should be of some interest to all property owners.
The case deals with an opinion handed down by the Court of Appeals, Fort Worth. It was delivered on March 24, 2011. The style of the case is Jimmy D. Hand v. Old Republic Title Insurance Company. Here is some background.
Hand's neighbor, Glen Jones, sued Hand over a rock wall that Hand built along the border separating their properties. Specifically, Jones claims that the rock wall "fails to follow the true boundary line and encroaches upon the boundary of his property." Jones sued for trespass to try title and adverse possession.
Hand filed a claim with his insurance company, Old Republic, and requested that it intervene and defend the lawsuit. Old Republic denied the claim on the basis that Hand's policy explicitly excludes coverage for "any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments, or any overlapping of improvements" and "rights of parties in possession." Hand subsequently filed a third party petition against Old Republic in the underlying case and asserted claims based on Old Republic's denial of coverage including breach of contract and violation of the Texas Deceptive Trade Practices Act.
The trial court granted judgment in favor of Old Republic and then this appeals court affirmed the judgment.
Old Republic argued two issues. One, that because Jones never made a claim to title to any portion of Hand's lot, coverage under Hand's policy was not invoked. Two, that even if Jones were making a claim to Hand's property, all of Jone's claims were based on the location of the boundary line between the two lots and therefore were specifically excluded under the policy. Hand argued that Jones was making a claim to Hand's property, but he did not address the exclusion in his arguements.
In this case, because Hand did not appeal or present evidence about one of the reason's that the trial court granted judgment in favor of Old Republic, then the appeals court could affirm the trial court based on the appeal point that was not addressed.
This court got into a couple pages long discussion as to the legal reasons they had to affirm the finding of the lower court when one of the points for the ruling was not properly presented in the trial court or properly addressed on appeal.
There are a couple of points to realize from this case.
One is that like this case, most title insurance policies are going to have language in them that specifically exclude coverage for boundary line disputes. What that means is that if your neighbor sues you for encroaching upon your neighbors property that you are going to have to defend the lawsuit with your own money. In other words, your title insurance company is not going to provide attorneys or pay for the expenses of the lawsuit or pay for any damages in the event that you lose the lawsuit. Something else to know is that your homeowners policy is not likely to provide coverage for this type of claim.
The second point to keep in mind is to quickly seek the advice of an experienced Insurance Law Attorney if you find yourself in a situation like the one above. Some more facts about the case is that the property was water front property and dealt with the location of a boat dock in addition to the rock wall. Only the persons involved and the attorneys know what other eveidence did or did not exist as it relates to the second point argued by Old Republic above.

Consumers in Grand Prairie, Arlington, Dallas, Fort Worth, Mansfield, Irving, De Soto, Duncanville, Cedar Hill, Lancaster, Mesquite, and other places in Texas recently got exposed to what can be called a violation of the Texas Deceptive Trade Practices Act. This argueably occurred at the Super Bowl at Cowboys Stadium.
An internet publication called the "Business Wire" ran an article on February 8, 2011. This article is titled, "Class Action Lawsuit Filed by Eagan Avenatti, LLP Against Jerry Jones, the Dallas Cowboys and the NFL over Treatment of Super Bowl Ticker Holders." The lawsuit claims fraud on displaced fans and Cowboys Stadium "Founders."
The article in part, tells us:
-- Eagan Avenatti, LLP, a law firm specializing in consumer rights, filed a class action lawsuit earlier in the day in the United States District Court for the Northern District of Texas, Dallas Division, alleging breach of contract, fraud and deceptive sales practices by Jerry Jones, the National Football League, the Dallas Cowboys Football Club and related defendants in connection with Super Bowl XLV.
The complaint, which seeks compensary damages of over $5 Million, claims that the unlawful acts of Jones, the NFL and the Cowboys resulted in approximately 400 fans who purchased tickets and traveled to the game being denied a seat, despite having spent thousands of dollars in tickets and travel expenses to attend the Super Bowl. The complaint also alleges that Jones and the Cowboys deceived Cowboys season ticket holders known as the "Founders" into paying $1,200 a seat for Super Bowl tickets that turned out to be temporary seats with obstructed views.
The "Founders," who collectively account for over $100 Million in personal seat licenses sold to help fund construction of the stadium, each paid at least $100,000 per seat for their seat license, which the Cowboys and Jones promised would entitle them to the "best sightlines in the stadium" and the right to purchase a ticket to the Super Bowl at face value. Instead, they arrived at the stadium to discover that they had been assigned to sit in obstructed view, temporary metal seats, which had only recently been installed in an effort to meet Jones' goal of breaking NFL Super Bowl attendance records.
"You don't have to own the Cowboys or run the NFL to know that you cannot lawfully treat people like this," stated lead attorney Michael Avenatti. "At an absolute minimum, Jones, the Cowboys and the NFL need to accept full responsibility and reimburse fans one hundred percent for their expenses and damages. Anything short of that is a slap in the face to the fans of the NFL and the Cowboys." --
The law that governs this type of wrong doing is found in part in the Texas Business & Commerce Code, Section 17.46.
Section (a) tells us, "False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful and are subject to action by the consumer protection division under Sections 17.47, 17.58, 17.60, and 17.61 of this code.
Section (b) and it's relevant subparts say:
(b) Except as provided in Subsection (d) of this section, the term "false, misleading, or deceptive acts or practices" includes, but is not limited to, the following acts:
...
(5) representing that goods of services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have ...
(7) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; ...
(9) advertising goods or services with intent not to sell them as advertised; ...
(12) representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, ...
The above would be only a partial list of the legal claims that may be applied to the facts in the lawsuit mentioned above.
Section 17.50(b)(1) tells of the relief that may be available to the claimants above in the event they prevail after going all the way to a trial. It says:
(b) In a suit filed under this section, each consumer who prevails may obtain:
(1) the amount of economic damages found by the trier of fact. If the trier of fact finds that the conduct of the defendant was committed knowingly, the consumer may also recover damages for mental anguish, as found by the trier of fact, and the trier of fact may award not more than three times the amount of economic damages; or if the trier of fact finds the conduct was committed intentionally, the consumer may recover damages for mental anguish, as found by the trier of fact, and the trier of fact may award not more than three times the amount of damages for mental anguish and economic damages.
Violations of the Texas Deceptive Trade Practices Act can be severe. Subsection (d) allows recovery of court costs and attorneys fees.
Any time a consumer believes a business has violated one of the provisions of the Act they should consult with an attorney who handles these types of cases.

People in Grand Prairie, Arlington, Mansfield, Crowley, Benbrook, Burleson, Keene, Joshua, Cleburne, Granbury, Pecan Plantation, Acton, and other places in Texas need to have a basic understanding of some of the consumer protection laws enacted to protect them against businesses that violate basic rules of fairness.
The Texas Business & Commerce Code, Section 17.46(b) has a "laundry list" of false, misleading, or deceptive acts or practices that have been declared unlawful by the Texas Legislature. In the appropriate situation, even the district and county attorneys throughout the state will get involved in making sure the public is protected from illegal acts that some businesses engage in.
Here is a partial list of some of the unlawful conduct found in the above section:
1. passing off goods or services as those of another;
2. causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
3. causing confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another;
4. using deceptive representations or designations of geographic origin in connection with goods or services;
5. representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he does not;
6. representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or secondhand;
7. representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;
8. disparaging the goods, services, or business of another by false or misleading representation of facts;
9. advertising goods or services with intent not to sell them as advertised;
10. advertising goods or services with intent not to supply a reasonable expectable public demand, unless the advertisements disclose a limitation of quantity;
11. making false or misleading statements of fact concerning the reasons for, existence of, or amount of price reductions;
12. representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law;
13. knowingly making false or misleading statements of fact concerning the need for parts, replacement, or repair service;
14. misrepresenting the authority of a salesman, representative or agent to negotiate the final terms of a consumer transaction;
15. basing the charge for the repair of any item in whole or in part on a guaranty or warranty instead of on the value of the actual repairs made or work to be performed on the item without stating separately the charges for the work and the charge for the warranty or guaranty, if any;
16. disconnecting, turning back, or resetting the odometer of any motor vehicle so as to reduce the number of miles indicated on the odometer gauge;
17. advertising of any sale by fraudulently representing that a person is going out of business;
18. (this section deals with health insurance and prescription cards)
19. (this section deals with chain selling plans)
20. representing that a guarantee or warranty confers or involves rights or remedies which it does not have or involve, ...:
21. promoting a pyramid promotional scheme as defined by Section 17.461;
22. representing that work of services have been performed on, or parts replaced in, goods when the work or services were not performed or the parts replaced;
23. (this section is semi-complicated and deals with filing lawsuits)
24. failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed;
25. using the term "corporation," "incorporated," or an abbreviation of either of those terms in the name of a business entity that is not incorporated under the laws of this state or another jurisdiction;
26. (this section deals with anuity contracts)
27. taking advantage of a disaster declared by the govenor under Chapter 418, Government Code, by: (a) selling or leasing fuel, food, medicine, or another necessity at an exorbitant or excessive price; or (b) demanding an exorbitant or excessive price in connection with the sale or lease of fuel, food, medicine, or another necessity.
Even the above list is only a partial list of wrongs that businesses can commit and be in violation of state law. A careful reading of the list will show that these are necessary protections for the public to prohibit wrongful conduct on the part of bussinesses.
Other sections in the Texas Business & Commerce Code provide exemptions and exclusions for businesses, depending on the type of business or service they are providing.
Other sections refer to other laws such as laws found in the Federal Trade Commission rulings and acts.
One thing for certain; it is necessary to check with an attorney who handles Deceptive Trade Practice cases whenever you find yourself in a situation where a company is trying to take advantage of you.

Weatherford, Parker County, Aledo, Azle, Mineral Wells, and other residents through out Texas would wonder what are the different ways of recovering losses that result from an insurance company or insurance company agent doing something wrong in the sale of an insurance policy.
The Texas Department of Insurance has a web-site that provides some information about insurance companies and insurance agents. There is also information at this site about insurance adjusters.
The Texas Supreme Court hears and issues opinions about situations that have happened across the state dealing with insurance related issues. Plus the lower appeals courts and the local courts have to hear and decide on insurance related cases on a fairly regular basis.
The best source for learning about the different theories of recovery in insurance cases would be an experienced Insurance Law Attorney. An attorney who handles a lot of these cases will be familiar with how the courts handle these cases and he would know about the resources available through the Texas Department of Insurance that are helpful in dealing with these insurance cases.
The Texas Insurance Code has rules and regulations dealing with just about everything you can imagine related to insurance.
One of the most common basis for an insurance dispute is the complaint that someone misrepresented something. After a claim arises, the insured person or business entity may feel that the coverage accepted by the insurance company is less than the coverage promised at the time of the sale of the policy. Depending on the facts of the case, a representation by the insurance company or its agent may lead to liability for breach of contract, unfair insurance practices, deceptive trade practices, negligence, or fraud.
The insurance agent may be held liable for misrepresentation even where the insured fails to read the coverage, when the jury could find the insurance company and the agent misrepresented the extent of coverage under the policy. This was the decision in the case, Omni Metals, Inc. v. Poe & Brown of Texas, Inc., decided by the Texas Court of Appeals -- Houston [14th Dist.], decided in 2002.
Closely related to misrepresentation is the theory that the insurance company, insurance agent, or insured person failed to disclose information. For example, if an exclusion is not adequately disclosed, the insurance company may be liable for breach of contract by relying on the exclusion to deny a claim. Failing to adequately disclose limitations or exceptions to coverage may also make the insurer or agent liable for unfair practices or deceptive trade practices.
There are several statutory prohibitions specifically aimed at settlement practices in the Texas Insurance Code. Liability may arise from failing to pay benefits that are owed under the policy, for failing to pay benefits that were promised by the insurance agent, for failing to act promptly to settle once liability is reasonably clear, for paying too little, or for paying too slowly. Liability may also arise from the insurance company's failure to adequately investigate a claim.
Other disputes may arise that do not fit neatly within the above categories, such as unreasonable cancellation of a policy, unconscionable conduct, or unfair discrimination.
The theories of liability discussed above may vary depending on who is seeking recovery. It may make a difference whether the person is the insured, a named beneficiary, an intended beneficiary, or an injured person seeking recovery under another's liability policy. Questions also arise whether an agent can sue his own insurance company, and under what theories, and whether other persons affected by the insurance company's conduct can sue.

Buyers in Dallas, Fort Worth, Grand Prairie, Arlington, Irving, Garland, DeSoto, Cedar Hill, Burleson, North Richland Hills, Hurst, Euless, Bedford, and any other place in Texas can find themselves being taken advantage of by a company they have purchased a product or service from. It appears that even a well known and respected company like Dell Computers will cheat a consumer and do it in a calculated way when they think they can get away with doing it.
This is illustrated in an article published in The New York Times. The article was published on November 18, 2010, and was written by Ashlee Vance. The title of the article is, "An Unsealed Lawsuit Indicates Dell Hid Faults of Computers."
The article starts out; "Documents unsealed Thursday in a three-year-old lawsuit against Dell have raised more questions about how the company handled an unprecedented number of faulty computers sold to governments, schools, and corporations from 2003 to 2005."
A Federal District Court in North Carolina unsealed hundreds of documents linked to a lawsuit filed by Advanced Internet Technologies that had accused Dell of trying to hide defects in its desktop computers from customers.
The article tells of governmental organizations and large well known businesses who had problems with Dell computers.
The documents show how Dell had resisted informing many of its customers about the extent of the problem. Despite widespread reports from the field, Dell salespeople and technicians were encouraged to keep customers in the dark about the known defects that left computers inoperable.
It appears Dell refused to recall systems and did what it called "proactive field replacements" for customers that met certain sales and failure rate thresholds.
As to the problems themselves, they appear to have been problems with the motherboards and capacitor issues. There also appears to have been data loss issues.
Dell says they have fixed the problems and in 2005 Dell took a $300 million charge tied to the cost of fixing and replacing troubled computers.
As for Texas consumers - The Texas Deceptive Trade Practices Act is a remedy for people and businesses (consumers) who find themselves being wronged by a company like Dell. The Texas DTPA, Section 17.45(4) defines consumers as ... "an individual, partnership, corporation, this state, or a subdivision or agency of this state who seeks or acquires by purchase or lease, any goods or services, except that the term does not include a business consumer that has assets of $25 million or more, or that is owned or controlled by a corporation or entity with assets of $25 million or more."
Most people understand that when they as individuals are taken advantage of they can pursue the business that took advantage of them. Fewer people understand that even if they are a business entity, they also can pursue those who take advange of them, by using the DTPA as long as their assets are less than $25 million.
What is important about being able to pursue a legal remedy by way of the DTPA against a company that is deceptive and or cheats you in a business transaction is that the remedies available by way of the DTPA have more "bite" or strength than normal "breach of contract" claims or "negligence" claims that were available prior to adoption of the DTPA.
Section 17.50(b)(1) allows recovery of mental anguish damages when the illegal acts committed are found to be committed knowingly. If the acts are found to be committed intentionally then the consumer may be awarded up to three times his actual damages and mental anguish damages. Section 17.50(d) orders recovery of court costs and attorneys fees.
Bottom line is that the majority of the time that a consumer is taken advantage of by a company in selling its product or service, there is a remedy availble to the consumer. All one needs to do is seek out an attorney experienced in handling these types of matters.

People in Arlington, Grand Prairie, Mansfield, Burleson, Dallas, Fort Worth, Irving, Mesquite, Garland, and all over the State of Texas buy cars. When they buy cars they buy them from dealerships rather than individuals 95% of the time. Have you ever wondered if those dealerships are deceitful in their dealing with you. The answer is yes, and in fact a lot of people are convinced the dearlerships are not honest.
Here is a victory for the books, and car purchasers across the nation. The Kansas City Star ran an article on August 12, 2010. The article was written by Meredith Rodriguez and was titled, "Couple Wins More Than $1 Million in Court Case Against Owner of Defunct Auto Dealership."
The article tells of a Kansas jury in Clay County, Kansas, that awarded a Harrisonville couple more than $1 million in damages against Chad Franklin and his defunct Suzuki dealership in North Kansas City.
The jury found that Chad Franklin Auto Sales North violated the Missouri Merchandising Practices Act when it lured Glenna and Max Overbey into buying a Suzuki with a too-good-to-be-true promotion. It turns out it was too good to be true.
The Overbey's responded to an advertisement in 2007 that promised they could pay $49 per month for six months on a new Suzuki and at the end of the period trade in their car for another to keep the same low monthly payments. This was stated by their attorney. But when the Overbey's returned at the end of six months, they alleged, the dealership did not honor the agreement, and their monthly payment rose to $719.
Noteworthy here, is that atleast thirty five other people made the same complaints about this promotion.
The attorney for the dealership and Franklin did not have any comments to make.
This article tells us that similar lawsuits have been filed against Chad Franklin Suzuki dealerships in North Kansas City and Kansas City, Kansas, but this case was the first one that came to a judgment.
The jury awarded $76,000 in actual damages and $250,000 in punitive damages against Chad Franklin National Auto Sales North, and $4,500 in actual damages and $1 million in punitive damages against Franklin.
In Texas, a dealership doing something similar to what was done in Kansas would be liable for violations of the Texas Deceptive Trade Practices Act. There could be several provisions of this act that a consumer could file suit for relief but the most obvious would be Section 17.46(b)(9) which says it is a violation to advertise goods or services with intent not to sell them as advertised.
Section 17.50 sets out some of the relied that a consumer who prevails in one of these cases is entitled to receive.
Advice for anyone who thinks they have been deceived by a business would be to seek out the assistance of an attorney who can handle Deceptive Trade Practice claims.

Everybody in Mansfield, Arlington, Grand Prairie, Dallas, Fort Worth, Coppell, De Soto, Burleson, Granbury, Aledo, and other towns in Texas will suffer the loss of a loved one. In fact it will probably happen many times. Have you ever wondered about the quality of services offered by the funeral home at this time of loss?
The Houston Chronicle recently ran a story about the services of a funeral home that were not acceptable. The article ran on August 9, 2010, and was authored by Allan Turner. The title of the article is, "Funeral Home Faces Suit Over State of Corpse."
Allan Turner writes that a Richmond man is sueing a Pasadena funeral home claiming he suffered nausea, nightmares, emotional breakdowns, severe pain and suffering and emotional trauma, grief and sorrow after his son's body arrived for burial in his native Uganda in a state of advanced decomposition.
He says in the article that Nicholas Jjemba, identified by his lawyers as an oil company employee, said in the lawsuit against Fairmont Funeral Home and Cremation Services that he had difficulty identifying his son's remains when he arrived in Kampala, Uganda, about three weeks after he died in an accident.
It is reported that Jjemba's son, 26 year old Noah Jjemba, died instantly on July 1, when he was pitched from the bed of a pickup truck while helping an acquaintance move.
The lawsuit papers seek unspecified damages from the funeral home and one of its employees for negligence, negligent infliction of emotional distress and breach of contract. What is not mentioned is whether or not the lawsuit seeks damages under the Texas Deceptive Trade Pratices Act. The law has enforcement provisions to assist those who are the victims of violators of this law.
As for the funeral home, Heather Martin, a co-owner, said she was "shocked" by the lawsuit's allegation, adding that the elder Jjemba had not informed the morturary of the problems. A requirement of a DTPA claim would be to give the funeral home a 60 day written notice of the complaint against them. Even in a breach of contract claim, a 30 day written notice of the complaint should be sent.
It is reported that Noah Jjemba's corpse was so badly decomposed that the plaintiff ... became violently ill as a result of not only the odor emanating from the coffin, but also from the visual impact of seeing a deceased child in such a decayed condition.
Judy Mingledorff, the lawyer said, "I know people are shipped from the Middle East war zone and don't arrive in this state. I don't know any reason why the body of this young man arrived in the shape it was in."
The corpse's condition is said to be documented on video.
The dead man's brother, Jeremy Jjemba, said a local memorial service arranged by the funeral home was well handled, but he agreed that the body had "spoiled" en route to Uganda.

Someone in Aledo, Azle, Haslet, Saginaw, Cedar Hill, Grand Prairie, Arlington, Dallas, Fort Worth, Hurst, Bedford, or anywhere else in Texas might ask: What happens when I lose the use of my car because of the actions of another person?
This usually happens in a car wreck situation but also happens in situations where engine repairs are not properly completed. Other insurance situations might be when a car is lost or destroyed due to fire, flood, or theft, and the owner is trying to get their own insurance company to take care of the matter.
As it relates to the Texas Deceptive Trade Practices Act (DTPA) the issue of compensation for "loss of use" came up in a case decided in 1984. The style of the case is "Yolanda Luna v. North Star Dodge Sales, Inc. and was decided by the Texas Supreme Court.
The basis facts of the case were that in March 1980, Luna sought to purchase a 1980 Dodge Omni from North Star Dodge Sales, Inc. (North Star). A 30-day/1,000 mile "money back guarantee" was offered to Luna. If a purchaser was not satisfied with the car, then the purchase price would be refunded if the car was returned prior to the expiration of 30 days from the purchase date or before the 1000 mile limitation occurred. Luna took delivery of the car and while driving it home noticed a constant vibration and rattling with steering wheel.
Two days later Luna took the car back to North Star and asked the salesman, Lewis, to refund her purchase money. They did not, nor did they ever say they would. Luna was told the refund decision was up to someone who was not available at that time. North Star offered to fix the car. Luna claimed it was never fixed. She returned to North Star several times with the car. She testified that she requested the refund each time which was not honored. She felt she had no choice but to let North Star attempt to repair the car. Luna thought that if North Star did not fix the car, then she would still get her purchase money back.
Eventually, she just left the car at North Star where it remained at the time of the trial. Luna continued to make monthly payments on the car for 15 months. The jury awarded Luna $5,200 for loss of use of the car from April 11, 1980 to the time of trial. This court upheld that finding.
There were several other issues at the trial but only the loss of use is being discussed here. Luna testified she thought the reasonable rental value for her car was approximately $100.00 per week. Luna was unable to afford to rent a replacement car. A man in the auto leasing and rental business testified the reasonable rental value for Luna's car in April 1980 was $108.00 per week plus approximately $0.18 per mile.
The Court held that in order to prove loss of use of an automobile, the plaintiff need not rent a replacement automobile or show any amounts actually expended for alternative transportation. They cited another court which stated:
If we were to hold that a plaintiff who has lost the use of his pleasure automobile ... cannot be compensated because he has not hired a substitute automobile, we would be placing upon recovery a condition of financial ability to hire another automobile to take the place of the injured automobile. The law cannot condone such a condition. He would be denied compensation for his inconvenience resulting from the defendant's wrongful act.
This Court went on to say that to prove up loss of use, the reasonable rental value of a substitute automobile is sufficient evidence to support an award of actual damages. The period of compensatory loss of use will be the reasonable rental value by the day, week, or month.
The Court said it is not perhaps possible to lay down a rigid and unbending rule, applicable to all cases because it must of necessity vary with the character of the property, and somewhat with the peculiar circumstances of each case. But the thing to keep in view is that the harmed party shall be compensated for the injury done.
There are some rules that can seem kind of strange related to "loss of use" claims and claims related to substitutes by rental. An experienced Insurance Law Attorney will look at the Texas Transportation Code. Section 501.091 of this code and the sections following to give some guidance as it relates to "loss of use" claims.

Residents of Dallas, Fort Worth, Arlington, Grand Prairie, Weatherford, and other cities, beware. There are businesses out there that will cheat you.
Think about this for a second. There is a saying that says there are only two things in this world a person can be sure of; death and taxes. A person can be a little light hearted and joke by saying they are getting screwed by both of them.
But here is a different twist. According to a Houston Chronicle news story that was published on July 19, 2010, the tax man, or in this case "TaxMasters" is screwing you over also. The author of the article, Mike Tolson, titled the article, "TaxMasters target of state AG, customers." The article tells how the tax assistance company, TaxMasters, appears to be in violation of the Texas Deceptive Trade Practices Act and the Texas Debt Collection Act.
Most of us in Texas have seen or heard the TaxMasters advertisements with its founder, Patrick Cox, urging people with IRS problems to give him a call. Well, it appears that a lot of people did call him and it also appears that a lot of people are very unhappy with the way their cases were handled. You can be sure that things have gotten out of hand when you learn that this past May, Texas Attorney General, Greg Abbott, has filed suit against TaxMasters. Adding to their woes is a class-action lawsuit filed on behalf of former clients earlier this month in Pennsylvania that echoes many of the complaints of the AG's lawsuit. The Pennsylvania lawsuit also alleges violations of federal and Pennsylvania laws.
As reported by the article, both the class-action lawsuit and the AG lawsuit include allegations from TaxMasters customers that the company would do no work on any IRS issue until it was paid in full, even if that meant crucial IRS deadlines were passed, and that their attempts to cancel the agreements not only failed to net a refund, but also demands from TaxMasters to be paid in full, even if it did no work and did not have a signed contract.
One example cited in the article is that of Karen Sanchez, a 65 year old resident of suburban Atlanta. Sanchez swore in an affidavit that she paid TaxMasters $4,083 of an agreed $6,250 in 2009 but that it did nothing on her behalf to settle an IRS debt. She claims TaxMasters employees told her the company would take steps to protect her home, then learned from the IRS that nothing had been done and that her right to appeal had expired.
When she finally reached a TaxMasters supervisor, Sanchez claims she was told nothing would be done further until the company received her final installment in April. Until then, Sanchez alleges, she was told that she would have to handle the matter herself. Sanchez claims she was never told upfront that no actions would be taken to help her until the fee was paid in total or that the fee would not be refunded even if TaxMasters ended up doing no work.
Neither Patrick Cox nor his attorney are returning calls for comment. However, the company issued a statement through its public relations firm that said:
"While faced with these charges raised by the attorney general of Texas, TaxMasters and CEO Patrick Cox are working diligently with the attorney general's office to provide all information necessary to negate any wrongful charges and continue serving its clients as the nation's largest tax representation company."
Essentially is appears that TaxMasters and its CEO are taking the position that they are targets of their competitiors because they have been so successful. It is reported that a steady stream of advertising combined with a nationwide economic downturn translated into explosive growth for TaxMasters, which saw its revenue grow from $6.5 million in 2007, its first year, to more than $36 million last year.
Under the Texas Deceptive Trade Practices Act, there are many potential violations. Here are some that may or may not apply to what TaxMasters did in this situation. They are found in the Texas Business & Commerce Code, Section 17.46:
17.46(b)(5) representing that services have characteristic, uses, benefits, which they do not have,
(7) representing that services are of a particular standard or quality when they are of another,
(9) advertising services with intent not to sell them as advertised,
(12) representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve,
(24) failing to disclose information concerning services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed.
If the allegations against TaxMasters are found to be true, then the consumer would be entitled to the relief found in Section 17.50.
Additionally, the AG lawsuit could result in a restraining order being issued pursuant to Section 17.47.

Am I paying too much for my insurance? Whether you live in Cedar Hill, Mansfield, Benbrook, Saginaw, Keller, Fort Worth, Dallas, Grand Prairie, Arlington, or some other place in Texas, that would be a question most people would ask at one time or another when thinking about their finances.
For a California woman, the answer to the above question seems to be, yes. She has sued Blue Shield of California, accusing the nonprofit health plan of overcharging thousands of policyholders who bought safety net insurance for peole who were sick or jobless.
This was reported by the Los Angeles Times in an article written by Duke Hefland and published on July 8, 2010.
The title to the article is, "Blue Shield of California is accused of overcharging for safety-net insurance."
A 64 year old lady by the name of Amalia Lample said in her lawsuit that Blue Shield, the state's second largest not for profit insurer, knowingly exceeded maximum insurance rates set by the state and falsely reported to regulators that the charges stayed within official guidelines.
Lample is argueing that she is owed $4,475 in excess charges she paid from 2007 to 2009. She also claims that more than 6,000 Blue Shield policyholders with similar coverage also were overcharged since 2001.
"This is for justice. It's not only for the money," said Lample, who decided to file her lawsuit in Los Angeles County Superior Court after reading a story in The Times about Blue Shield's rates. "It's not right what they do."
The lawsuit seeks class- action status. There has been no comment from the San Francisco company.
Blue Shield denied two refund requests by Lample, who filed a complaint with the California Department of Managed Health Care. Regulators said they could not conclude that Blue Shield had violated state law.
On Wednesday a department spokeswoman said the law's definition for calculating maximum rates was ambiguous, making it difficult to determine whether health plans were charging too much. As a result, the department is sponsoring a bill in the Legislature to "eliminate any question" on rates insurers can charge.
At issue is health coverage available under the federal Health Insurance Portability and
Accountability Act (HIPAA). Insurers are required by the federal law to sell insurance to people who have lost their jobs or who would otherwise be ineligible because of preexisting medical conditions.
HIPAA policyholders maintain that Blue Shield and one of its chief competitors, Anthem Blue Cross, have substantially overcharged subscribers for several years. Blue Shield says that its HIPAA rates comply with state guidelines.
Anthem, on the other hand, determined that it had overcharged customers between 2006 and 2009, and agreed to issue refunds.
As it relates to Anthem, one policyholder, Culver City attorney Les Greenberg, accused Anthem of returning only a fraction of what was due. Anthem had given Greenberg a $12 refund. He took the company to Small Claims Court. A judge agreed with Greenberg in September, awarding Greenberg with more than $7,300.
Greenberg filed another lawsuit in December on behalf of another Anthem subscriber, saying the insurer owed additional refunds to more than 10,000 HIPPA policyholders. Anthem issued a statement Wednesday saying its refunds were "appropriate."
Greenberg is also representing Lample in the lawsuit filed against Blue Shield.
"They have gone off on a lark of their own to overcharge their subscribers," Greenberg said of the two insurers. "I would call it egregious behavior."

Let us say you are a guy in Dallas, Fort Worth, Grand Prairie, Arlington, Irving, De Soto, Duncanville, Lancaster, Rowlett, Aledo, or anywhere else in Texas and you see an advertisement. How do you know whether the advertisement is being deceptive or misleading? The answer: You probably don't know.
Travelers Insurance was recently running an advertisement that was deceptive. There was a story on this on Wednesday, July 7, 2010. The story ran in the Austin paper, American-Statesman and was written by Tim Eaton. The title of the story is, "Consumer group says Travelers ad is deceptive, wants it pulled."
The Texas consumer advocacy group, Texas Watch, claims a television ad run by Travelers Companys, Inc. is deceptive in its content. The Executive Director of Texas Watch, Alex Winslow, has written to the Texas Attorney General, Greg Abbott, and to the Texas Insurance Commissioner, Mike Geeslin, seeking a cease-and-desist order to keep the ad off the air in Texas.
The article by Eaton tells the reader about the content of the ad saying, "In the advertisement, titled "Driving Your House," a man is seen driving throught the desert in what appears to be a wall-less house on wheels. The man gets into an accident, which spreads the house's contents across the desert roadside. As the homeowner-driver flies through the air - along with furniture and a cat - a voiceover says: "Without the right auto insurance, a crash might impact more than your car. Make sure you're properly covered, so when you're driving your car, you're not risking your house."
Eaton writes that the advertisement ends with the tagline: "Travelers. Take the scary out of life."
Texas Watch says the message implies that if homeowners don't carry adequate automobile insurance, then they could lose their homes. But the Texas Constitution has homestead protections that prevent the forced sale of a home in most circumstances. The Texas Watch director, Winslow, says, "What's particularly troubling about this ad is that it is preying on the fears that many people have about losing their home in our current economic crisis," and that, "Insurance companies shouldn't be allowed to deceive their customers into buying more overpriced insurance."
The Texas Department of Insurance has confirmed receiving the complaint and according to a spokesman, they plan to act quickly.
Both the Texas Department of Insurance and the Texas Attorney General have the authority to demand that a company stop running an advertisement.
As a side note, it is reported in Eaton's article that in 2005, Attorney General, Greg Abbott issued a cease and desist order to Allstate Corp. after the company ran an ad that featured a family that lost its home and savings because it didn't carry enough auto insurance. In that case, Allstate was informed that they were in violation of the Texas Deceptive Trade Practices Act and the Texas Insurance Code. Allstate did stop the ad and a lawsuit was not necessary.