Dallas Fort Worth Insurance Lawyer Blog

Insureds in Grand Prairie, Arlington, Weatherford, Fort Worth, Mansfield, Dallas, and other places in Texas, who have some form of disability insurance will too often, have to seek the assistance of an experienced Insurance Law Attorney when they make a claim. This is because insurance companies that issue disability policies are reluctant to pay these types of claims.
A case decided in 1978 serves as a good example. This is a Beaumont Court of Appeals case. The style of the case is, Lone Star Life Insurance Company v. Joseph B. Griffin. Here is some background.
Griffin testified that as he was returning to his home from his farm, he passed by his drugstore. As was his custom, he entered the store to see if everything was normal (having been burglarized several times in the past). He smelled smoke which he found to be coming from the rear of his building. He testified that he emptied his fire extinguisher but his efforts were futile; that he was trying to get out of the building when an aerosol can exploded in his face; that he lost consciousness while upon the floor of the store near a door, and regained consciousness later in a hospital.
A Dr. Popejoy testified as to his treatment of Griffin beginning at about two in the morning following the fire. He told of finding external burns on several parts of Griffin's body but the most serious injury was to his lungs from the inhalation of smoke and fumes. Griffin was hospitalized for several weeks and testified that he was unable to do any work for several months thereafter.
Dr. Popejoy testified positively and unequivocally that Griffin's injuries were caused by the inhalation of the smoke and fumes which resulted in his total and permanent disability. A Dr. Anderson examined Griffin for Lone Star. His examination was more than two years after the accident and he found Griffin to be only partially disabled, at the worst. Anderson attributed Griffin's condition to his constant smoking of cigarettes which he admitted to have been addicted to for approximately fifty years. Anderson testified that Griffin could do all of the work of a pharmacist but could not do any sustained heavy lifting.
The policy of insurance provided that Lone Star would pay plaintiff $1,000 per month for sixty months for an accidental injury resulting in total disability and that it would pay $1,000 per month for twenty four months for total disability resulting from sickness. Lone Star paid several monthly payments of $1,000, noting on each check that the payment was for accidental injuries. Without any change in its medical information in its file and for some undisclosed reason the checks were coded to indicate that the disability was the result of sickness, not an accident. The twenty-fourth payment was coded to indicate a sickness disability payment and a letter was written. The check indicated it was the last payment.
Griffin hired a lawyer and filed a lawsuit.
A jury awarded Griffin $34,518.40, plus twelve percent penalty, $4,142.21, plus $9,900 in attorney fees. Pursuant to the Texas Business and Commerce Code, Section 17.50, each of such awards was trebled so that the total judgment against Lone Star was in the sum of $132,181.83, with interest at nine percent per annum. (this section does not allow a trebling of attorney fees or a trebling of the interest amount)
On appeal this appeals court reversed the trebling of damages.

A lot of people in Grand Prairie, Arlington, Irving, Fort worth, Dallas, and other areas in Texas will have a disability policy. Sometimes these policies are from work and other times a person will purchase one for themselves. But what happens if the insurance company refuses to pay benefits under one of these policies when a person becomes eligible for benefits.
What happened in one case is discussed by the Houston Court of Appeals, in a 1976 case styled, Republic Bankers Life Insurance Company v. B.L. Jaeger.
This lawsuit concerned a disability insurance contract. B.L. Jaeger sued Republic Bankers Life Insurance Company to recover accrued and unaccrued disability benefits for an accidental injury.
In the lawsuit, Jaeger testified that he was injured on September 10, 1974, and that Republic refused to pay benefits due him on his disability insurance policy issued March 20, 1973. At the trial a letter was introduced from Republic to Jaeger's attorney stating:
As the policy contract is still within the contestable period, we feel it to be in the best interests of all concerned to rescind the policy and refund all the premiums paid by Mr. Jaeger since the contract's inception. Enclosed find our check in the amount of $429.75 which represents a refund of all premiums paid ....
Jaeger initially brought suit only for accrued benefits under the policy, however, before judgment a trial amendment was allowed whereby Jaeger pled anticipatory breach and sought recovery of all benefits under the policy accrued and unaccrued. The trial judge permitted the trial amendment.
At this point the appeals court began a discussion as to whether or not the trial judge should have allowed the trial amendment and got into a discussion of the ways this can be allowed or disallowed, depending on the circumstances of the case. The statute that deals with this issue is found in the Texas Rules of Civil Procedure, Rule 66.
For there to be recovery of unaccrued benefits, there must have been a renunciation of the contract.
In order to justify the adverse party in treating the renunciation as a breach, the refusal to perform must be of the whole contract or of a covenant going to the whole consideration, and must be distinct, unequivocal and absolute.
The letter introduced in this case showed Republic's distinct, unequivocal and absolute intent to refuse to perform its obligation under the insurance contract.
As the court pointed out, "This is not a case where the insurance company did nothing and was sued on the theory of repudiation, .... In this case, Republic took action by writing a letter repudiating their contract with Jaeger. Jaeger is justified in treating the renunciation as a breach enabling him to sue for accrued and unaccrued benefits under the policy."
One thing relevant here, to Insurance Law Attorneys, is the measure of damages in an action for breach of contract by repudiation is the present value at the time of trial of all that the plaintiff would have received if the contract had been performed. This involves a calculation of all that would have been received under the insurance contract, then reducing that amount to its present value. This calculation is a calculation that involves interest rates, but is not something that is usually very hard to figure.

Whether you live in Grand Prairie, Fort Worth, Dallas, Weatherford, Arlington, Mansfield, Irving, or anywhere else in the state of Texas, too many times when making a claim for insurance benefits, you are forced to hire an attorney. An experienced Insurance Law Attorney is valuable for recovering monies due under an insurance policy and a disability insurance policy in particular.
An example of the above in noted in a 1966 case that was decided by the Houston Court of Appeals. The style of the case is Continental Casualty Company v. Walter Earl Vaughn. Here are a lot of facts in this case.
The evidence showed that on April 10, 1962, Vaughn wrote Continental a letter stating he had sustained a back injury on March 30, 1962, and that he was in Leggett Memorial Hospital, and did not know how long he would be hospitalized or unable to work. Vaughn returned a standard claim form he had been sent, reporting that he had "a back injury in the nature of a ruptured disc that occurred on March 30, 1962 while loading a load of tubing on a truck in Houston." The same report contained a statement by Vaughn's doctor saying Vaughn had a ruptured intervertebral disc between Lumbar 4 and Lumbar 5; that the accident occurred on March 30, 1962; that Vaughn first consulted the doctor on April 1, 1962; and that Vaughn was to have a spinal fusion. Continental sent a one month's indemnity and a thirty days' hospital indemnity. The indemnity continued for another month after another claim form was filed.
Continental then sent an inquiry to the hospital to examine the record of Vaughn. In response Continental received a history stating "patient was lifting a pipe and felt sudden pain in lower back with radiation to left leg." Another report showed Vaughn was injured "while unloading my truck with a load of tubing. I picked up a joint of tubing, rupturing a disc in my back. It happened about 4 p.m."
Continental did not question that Vaughn had injured his back. Continental questioned "Was it an accidental injury?" Its definition of "injury" according to its representative was "an abnormal, localized condition of the body that is not caused by an existing illness or disease process": whereas the policy defined "injury" as a "bodily injury caused by an accident and resulting directly and independently of all other causes, in loss ...."
On July 13, 1962, a Continental representative wrote Vaughn explaining that his description of how his disability occurred indicated that such disability was not the result of an accident, and that benefits were, therefore, not payable. Thus, Continental denied liability on the basis that what had happened to Vaughn could not be considered an accident.
Continental took the position that the occurrence in question was not an accident since Vaughn in lifting the pipe was doing what he intended to do, and hence any bodily injury sustained by him was not the result of an accident.
To make matters worse, Continental was telling Vaughn to return the money that he had already received.
The disability policy is this case, which was in 1962, paid benefits of $100 per month for the rest of Vaughn's life.
This case went to trial and a jury found in favor of Vaughn. The jury awarded $29,200 on the policy and attorney's fees of $8,850. The trial judge reduced the $29,200 to $14,246. This was based on the present current value of the award. The court also awarded 12% penalty on 43 past due accrued monthly installments and 6% interest thereon.
It is worth noting that today, 2011, the Texas Insurance Code, Section 542.060 requires an 18% penalty rather than the 12% that existed when this case was decided. Further, the present law allowing for more ways of financially punishing the insurance company for conduct that is committed "knowingly" or "intentionally" as those terms are defined in the insurance code. Per section 541.152, the "trier of fact may award an amount not to exceed three times the amount of actual damages."

A lot of people in Grand Prairie, Arlington, Mansfield, Irving, Fort Worth, Dallas, Hurst, Euless, Bedford, and other places in Texas will have a disability policy. What they need to understand is the conditions under which the policy pays benefits.
The Texas, 14th Court of Appeals, issued an opinion recently styled, "Chester Humphrey v. AIG Life Insurance Company, in which a disability policy was at issue. Here is some background.
Chester Humphrey, sought total disability benefits from his employer's insurance company, AIG, following an on-the-job injury. Because AIG denied Humphrey's claim, he sued.
AIG moved for summary judgment, asserting there was no evidence that AIG breached the terms of the policy because Humphrey could not establish any coverage obligation under the terms of the policy. The trial court granted the summary judgment to AIG, specifically holding that Humphrey failed to present legally sufficient evidence to controvert AIG's motion.
Humphrey was employed as a truck driver in 2001. In June 2001, he injured his back while attempting to lift a tarp to cover a load on his truck. He sought medical attention a few days after the incident; a physician examined him and prescribed medication and physical therapy. His pain did not resolve and he later received an MRI, which showed he had "multiple herniated disks" in his back.
At the time of his injury, the AIG policy provided a "weekly accident indemnity" when a covered employee, such as Humphrey, suffered an injury that totally and continuously disabled and prevented him from performing his job duties. After the injury, Humphrey sought and received weekly accident disability payments through the AIG policy.
Pursuant to the policy terms, these benefits expired in June 2003. AIG informed Humphrey he could seek "continuous total disability benefits" if he could provide "due proof" that, inter alia, he was totally disabled and that such total disability "resulted solely and directly" from the June 2001, on-the-job injury.
In response to the motion for summary judgment, Humphrey filed affidavits from himself and his wife which stated he was fine before the on-the-job injury and had no prior problems.
The trial court, in its summary judgment order, specifically ruled Humphrey failed to present at least "a scintilla of evidence that Plaintiff's total disability resulted solely and directly from the injury." The court refused to consider the unqualified lay opinions of Humphrey and his wife.
In Humphrey's response, he asserted that the trial court should not have granted AIG summary judgment because he did not need to provide expert testimony to establish that his total disability resulted "solely and directly" from his injury.
In discussing the case, the court pointed out that according to the Texas Supreme Court, "Generally, expert testimony is necessary to establish causation of medical conditions that are 'outside the common knowledge and experience of jurors.'" However, under limited circumstances, non-expert evidence may sufficiently support a causation finding that links an event with one's physical condition. This exception applies only in certain cases in which general experience and common sense enable a layman to determine the causal relationship with reasonable probability. In such cases, "lay testimony establishing a sequence of events which provides a strong, logically traceable condition between the event and the condition is sufficient proof of causation."
Here, however, Humphrey's medical issues are neither common nor basic. The record reflected that Humphrey suffered from multilevel disc herniation at the L1-L2 and L2-L3 levels, with additional non-contiguous "posterocentral spondylitic subligamentous herniation" at the L5-S1 level, and additional disc bulges at several other levels. According to one of Humphrey's treating physicians, these disc herniations have resulted in lumbar radiculopathy.
Further, although some of Humphrey's disc complaints are located in the lumbar region, they are not readily traceable to the lifting injury alone because Humphrey has had previous spinal fusion surgery. The record also reflects that Humphrey is morbidly obese and suffers from edema and cellulitis of the lower extremities, which renders him unable to walk without assistance. He produced a letter from another physician who opined Humphrey is totally and permanently disabled. But the physician linked that condition to a "combination" of several medical ailments unrelated to his 2001 back injury: "Because [Humphrey] suffers from Congestive Heart Failure, Hypertension, Morbid Obesity, Lumbar Radiculopathy and Diabetes Mellitus, I feel that he is totally and permanently disabled and cannot return to any type of gainful employment."
In sum, given (1) the complex nature of Humphrey's purported back injury; (2) the combination of medical ailments unrelated to his 2001 back injury that were identified by his doctor as contributing to Humphrey's permanent disability; and (3) his prior spinal fusion surgery, the court concluded that the task of evaluating whether his "total disability" was caused "solely and directly" by his 2001 back injury - as required by the terms of the policy at issue here - is not within the general experience and common sense of a layman.
This court concluded that expert testimony was necessary in this summary judgment proceeding and such expert testimony was not provided, thus AIG prevailed.

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

Anyone in Grand Prairie, Arlington, Irving, Mansfield, Dallas, Fort Worth, Cockrell Hill, Oak Cliff, De Soto, Duncanville, Lancaster, or any other place in Texas, who has disability insurance to help in a time of need, would be interested in the following case.
The case was decided by the The United States Court of Appeals for the Fifth Circuit. It is an appeal from a summary judgment in the district court in favor of the insurance company. The case is styled, Gwendolyn Byrd v. Unum Life Insurance Company of America. The opinion was issued on April 7, 2011.
The plaintiff, Gwendolyn Byrd, filed suit challenging Unim Life Insurance Company's decision to terminate her long term disability benefits. The job of this appeals court was to review the case for an abuse of discretion by the district court. Here is some background.
Byrd was employed as a chargeback associate for Accenture LLP when, on March 26, 2003, she suffered a repetitive-trauma work related hand injury later dianosed as carpal tunnel syndrome. Her subsequent medical complaints include that she suffered from bulging discs in her lower back, lumbar radiculopathy, cervical discogenic pain, cervical spondylosis, and other associated ailments. Byrd alleged the conditions persisted at the time of trial.
Byrd participated in Accenture's group long-term disability program administered by Unum. In July 2004, Byrd applied for and received disability benefits. Unum paid Byrd benefits under the program from September 2003 through July 2008, when Unum terminated Byrd's benefits after concluding that Byrd no longer was physically unable to return to her occupation. Unum made its decision to terminate Byrd's benefits after asking at least three independent physicians and two occupational experts to review Byrd's full medical file. Those experts agreed that Byrd would be physically able to perform her former job.
After Unum's appeals were denied, she filed suit in district court under ERISA, Section 502(a), 29 U.S.C., Section 1132(a), seeking past damages including unpaid long-term disability benefits, a declaratory judgment that she was entitled to future benefits under the policy, and attorney's fees.
In arguing that Unum abused its discretion, Byrd raised two arguements. First, Byrd argued that Unum improperly failed to consider her lumbar radiculopathy. Byrd argued that Unum's decision relied on an independent medical examination performed on April 25, 2008, that did not evaluate her spine. Byrd claimed that she was diagnosed on July 3, 2007, with lumbar radiculopathy, and that she received treatment for that condition from two treating physicians, whose opinions were improperly ignored by Unum. The district court in its ruling had correctly noted, the record indicated that Byrd's cervical and lumbar conditions were reviewed thoroughly by three board certified orthopedic surgeons and considered by two vocational specialists. At least one of the doctors explicitly addressed Byrd's specific lumbar complaints and noted that her lumbar problems did not justify an "overly restrictive" work designation. A second physician, explicitly addressed Byrd's complaints and noted that those ailments would not preclude Byrd from performing an eight hour workday in a sedentary occupation. The court noted that Unum plainly considered Byrd's lumbar problems and found them insufficient to justify further benefits and thus that arguement was rejected.
Second, Byrd contended that Unum failed to consider her cervical and upper extremity impairments. The written brief of Byrd states "Byrd is limited to lifting 5 pounds and cannot do repetitive motion ...." They argued that since Unum concluded that Byrd could exert up to 10 pounds of force - or double the amount of force Byrd believes she can exert - that Unum abused its discretion. This court disagreed saying, Unum's experts reviewed Byrd's full medical records carefully, and each concluded Byrd could return to her previous sedentary occupation. At least one physician concluded Byrd could exert 20 pounds of force occasionally and 10 pounds of force frequently. Unum's decision took into account Byrd's cervical and upper extremity impairments and the courts decision is supported by substantial evidence.
Someone can never know how these cases will turn out. Many times an insurance company denies a claim without good reasons. It is sometimes just a calculated denial in hopes the claimant will disappear. Other times it is based on good reason. Each of these cases have to be looked at carefully by an experienced Insurance Law Attorney with an eye toward finding an impropriety.

If someone in Dallas, Fort Worth, Grand Prairie, Arlington, Irving, Mesquite, Garland, Richardson, Plano, Coppell, Mansfield, Cedar Hill, or anywhere else in Texas has a claim under their disability insurance policy denied, what can be done?
Start with the legal reality that an insurance policy is a contract. When a party to a contract is obligated by the contract to another, absolutely repudiates the obligation without justification, the obligee is "entitled to maintain his action in damages at once for the entire breach, and is entitled in one suit to receive in damages the present value of all that he would have received if the contract had been performed, and he is not compelled to resort to repeated suits to recover the monthly payments." This was stated in the 1937, Texas Supreme Court case, Universal Life & Accident Insurance Company v. Sanders.
Here are some of the facts of the Sanders case:
In March, 1928, Universal Life & Accident Insurance Company issued to Sanders a policy of health and accident insurance wherein it bound itself to pay Sanders a stipulated sum per week for sickness resulting in total disability. While such policy was in force and effect Sanders alleges she became totally and permanently paralyzed. She instituted the lawsuit to recover for payments alleged to have accrued and for the value, as of the date of the trial, of all future installments to mature during her life expectancy, which expectancy was alleged to be 27 years from and after January 23, 1933, based upon the American Experience Table of Mortality.
Prior to this case, the Texas Supreme Court had announced the rule that when a party who is obligated by contract to make monthly payments of money to another absolutely repudiates the obligation without just excuse, the obligee is "entitled to maintain his action in damages at once for the entire breach, and is entitled in one suit to receive in damages the present value of all that he would have received if the contract had been performed, and he is not compelled to resort to repeated suits to recover the monthly payments."
In this case, the court re-interated its prior rule of law and reaffirmed that Sanders could maintain her action against Universal Life for the full amount of monies she would be entitled to under the disability insurance policy even though the future amounts had not actually been due. By virtue of Universal Life denying the benefits, the entire amount became due when Sanders was successful in her lawsuit based on repudiation of the disability policy / contract.
So, what is repudiation?
This is made and reaffirmed in the 1981 case, Group Life And Health Insurance Company, decided by the Dallas Court of Appeals.
This case arose when Group Life And Health Insurance Company (Group Life) discontinued paying monthly disability benefits to an insured on the theory that the insured was no longer disabled. The principle question was whether Group Life repudiated the contract. The jury found repudiation and judgment was rendered in favor of the insured for accrued installments, future installments discounted to present value, statutory penalty, and attorney's fees.
In discussing this case the court stated, "In Texas, where a party ... obligated by contract to make monthly payments of money to another absolutely repudiates the obligation without just excuse, the obligee is entitled to maintain his action in damages at once for the entire breach, and is entitled in one suit to receive in damages the present value of all that he would have received if the contract had been performed."
They also cited other cases in saying, "Repudiation consists in 'such words or actions by a contracting party as indicate that he is not going to perform his contract in the future'." "It is conduct which shows a fixed intention to abandon, renounce, and refuse to perform the contract."
A 1976, Texas Supreme Court case, Republic Bankers Life Insurance Company v. B. L. Jaeger, says:
"The measure of damages in an action for breach of contract by repudiation is the total of all accrued payments plus interest, plus the present value of all unaccrued payments that the plaintiff would have received if the contract had been performed."
When someone has their claim for disability benefits denied by an insurance company, it is important that the policy holder seek the advice of an experienced Insurance Law Attorney.

Someone is Burleson, Granbury, Cleburne, Bembrook, Crowley, Dallas, Fort Worth, Grand Prairie, Arlington, or any other place in Texas who has a disability insurance policy probably is not sure exactly how the policy works. Most people who have these types of policies get them through their job. When obtained through work the person usually gets a pamplet explaining some of the benefits but rarely is much attention paid to it. A few people will purchase them through an independent insurance agent who explains the coverage but even then, the explanation is quickly forgotten or not completely understood.
The Beaumont Court of Appeals decided a case in 1978, dealing with an insurance policy. The policy had different periods of disability that applied depending on whether the disability resulted from an accident or an illness. The style of the case is, Lone Star Life Insurance Company v. Joseph B. Griffin.
At the trial level, Griffin obtained a judgment against Lone Star Life Insurance Company (Lone Star). Lone Star appealed.
The facts in this case were as follows:
Griffin testified that on the night of February 2, 1975, as he was returning to his home from his farm, he passed his drugstore. As was his custom, he entered the store to see if everything was normal (having been burglarized several times in the past). He smelled smoke which he found to be coming from the rear of his building. He testified that he emptied his fire extinguisher but his efforts were futile; that he was trying to get out of the building when an aerosol can exploded in his face; that he lost consciousness while upon the floor of the store near a door, and regained consciousness later in a hospital.
Dr. Lee Popejoy testified as to his treatment of Griffin beginning at about two in the morning following the fire. He told of finding external burns on several parts of Griffin's body but the most serious injury was to his lungs from the inhalation of smoke and fumes.
Griffin operated a one-pharmacist store and he secured the services of a retired pharmacist to help him for a while. He testified that he was unable to do the work of a pharmacist because of his difficulty in breathing and that while his health had improved, he was still unable to do his work in the store.
Dr. Popejoy testified positively and unequivocally that Griffin's injuries were caused by the inhalation of the smoke and fumes which resulted in his total and permanent disability. Dr. Charles Anderson examined Griffin for Lone Star. His examination was more than two years after the accident and he found Griffin to be only partially disabled, at the worst. Anderson attributed Griffin's condition to his constant smoking of cigarettes which he admitted to have been addicted to for approximately fifty years. Anderson testified that Griffin could do all of the work of a pharmacist but could not do any sustained heavy lifting.
The policy of insurance provided that Lone Star would pay Griffin $1,000 per month for sixty months for an accidental injury resulting in total disability and that it would pay $1,000 per month for twenty-four months for total disability resulting from sickness. Lone Star paid several monthly payments of $1,000, noting on each check that the payment was for accidental injuries. Without any change in its medical information in its file and for some undisclosed reason the checks were coded to indicate that the disability was the result of sickness, not an accident. The twenty-fourth payment was coded to indicate a sickness disability payment and a letter was written. The check indicated it was the last payment.
The letter said, "If we can be of further assistance to you, please do not hesitate to contact us."
Griffin alleged and contended that Lone Star, by sending the letter, "repudiated the provisions of its policy dealing with payment of benefits for disability resulting from accident" so as to entitle him to recover not only the past due payments but "also the present cash value of the future payments which are unaccrued."
The jury found in Griffin's favor.
There are two relevant points in this case:
1) to point out that disability policies have various provisions written in them and understanding this is important to understanding your rights in a policy when making a claim for benefits, and
2) when, as here, there are two time periods of payment that may be applicable, that alleging and proving a repudiation of the insurance policy may allow the insured to recover future benefits immediately, subject to a reduction for present value.
A third lesson would be, consult with an experienced Insurance Law Attorney whenever you find yourself in a position of being denied benefits under a disability insurance policy.

Disability income insurance coverage for someone in Grand Prairie, Dallas, Fort Worth, Arlington, Bedford, Euless, Hurst, Lake Worth, Aledo, or anywhere else in Texas is usually expensive. In addition to being expensive, the policy language is sometimes difficult to interpret.
Disability income policies typically specify an amount that will be paid in the event of a disability (as defined in the policy) and a maximum length of a disability (as defined in the policy) and a maximum lenght of time for which such benefits will be paid (e.g., "$200 per month for up to 60 months").
A beginning place to look to see how Texas regulates disability income insurance policies is the Texas Administrative Code. Title 28, Part 1, Chapter 3, Subchapter S, Rule Section 3.3005 deals with the definitions in policies. It reads:
Except as otherwise provided by law or these sections, no individual accident and sickness insurance policy or hospital, medical and dental service corporation subscriber contract delivered or issued for delivery in this state may contain definitions respecting the matters set forth in Sections 3.3006 - 3.3029 of this title (relating to Minimum Standards and Benefits and Readability for Accident and Health Insurance Policies) unless such definitions comply with the requirements of said sections.
One should keep in mind that the person claiming benefits need not prove that he or she actually lost the amount of income protected. In other words, the benefits are payable even if the insured is unemployed at the time of the disability.
The Administrative Code quoted above, Section 3.3012 reads:
(a) A general definition of "total disability" may not be more restrictive than one requiring the individual to be totally disabled from engaging in any employment or occupation for which he or she is or becomes qualified by reason of education, training, or experience, and such individual is not in fact engaged in any employment or occupation for wage or profit.
...
The Texas San Antonio Court of Appeals said in 1966, in the case, Occidental Life Insurance Company v. Duncan, "The test for 'total disability' is whether a reasonably prudent person in the insured's condition would, in the exercise of ordinary care, engage in the insured's business; it is not necessary that the insured be immobile, bedridden, or totally unable to work before he or she can recover."
The above Administrative Code Section, subpart (b) reads:
"Total disability" may be defined in relation to the inability of the person to perform duties, but such inability may not be based solely upon an individual's inability to:
(1) perform "any occupation whatsoever" or "any occupational duty"; or
(2) engage in any training or rehabilitation program; however, an insurer may specify the requirement of the inability of the person to perform all of the substantial and material duties pertaining to his or her regular occupation, or words of similar import.
In 1978, the Fort Worth Court of Appeals in the case, Metropolitan Life Insurance Company v. Duncan said that a disability insurer selling a policy designed to provide coverage in the event of being unable to engage in their occupation, may define "total disability" in terms of:
(1) the insured's usual occupation (e.g., "unable to perform any and every duty pertaining to his or her own occupation");
(2) an occupation for which the insured is qualified by virtue of education, training, and experience (e.g., "unable to engage in any gainful occupation or employment for which he is reasonably qualified by education, training, or experience").
The Texas Insurance Code, Section 1252.001, defines "total disability." It says in sub-part (5):
"Total disability" or "totally disabled" means:
(A) with respect to an employee or other primary insured covered under a health benefit plan, the complete inability of that individual to perform all of the substantial and material duties and functions of the individual's occupation in which the individual earns sustantially the same compensation earned before the disability; and
(B) with respect to any other individual covered under a health benefit plan, confinement as a bed patient in a hospital.
Disability policies are a big source of litigation. An experienced Insurance Law Attorney is a must have when dealing with disability policies. Another factor making these cases different than other insurance policies is that a majority of these disability policies are ERISA policies, which means the legal fight with these policies have to be waged in a Federal Court. In addition to that, these cases have very strict guidelines that must be followed. And finally, in an ERISA type of policy, the claimant is not going to be entitled to a jury trial, rather the process is an administrative process with strict timelines which are ultimately decided by a judge based on a stringent standard.

Lots of people in Arlington, Grand Prairie, Fort Worth, Dallas, Mesquite, Garland, Richardson, Burleson, Benbrook, Crowley, and other places in the Dallas-Fort Worth metroplex area have purchased insurance policies that provide payment to them in the event they become disabled and are unable to work. A natural question would be: What happens if the insurance company denies a claim for disability benefits because of total disability and the case goes to trial?
This is what happened in the case styled, Occidental Life Insurance Company of California v. Robert L. Duncan. This case was decided by the San Antonio Court of Appeals in 1966.
The record in this case shows that Duncan was engaged in the selling of labels as an independent contractor for Louis Roesch Company on a commission basis. Louis Roesch Company manufactures labels and Duncan sells them, generally to canners. He has been in the label selling business for some twenty years. He was in an airplane accident on October 25, 1957, and was rather severly injured, Occidental Life Insurance Company of California, (Occidental) paid him for total disability from the time of the accident until September, 1963, when it stopped payment. Duncan sued.
Duncan was injured in his back, right knee and right foot. He was in the hospital for five months and thereafter confined to his home for some time. At the time of trial, he still had pain to his back but learned to live with it, his right knee was somewhat recovered. His right foot problem still existed. The joints in the metatarsal section were fused, the pressure caused the joints in his foot to separate, and he wore a brace with a steel plate under his foot to relieve some of the pressure. Motion in that area of his foot caused great pain. His right ankle was shorter and completely stiff. The ankle was solid bone. He could not walk up slopes; he once fell trying to negotiate a slope in Houston, a year and a half before trial, calling on a customer. The fall caused a brain concussion. He had numerous other falls, averaging one a month. He could not negotiate rough terrain, wet ground, snow or ice. Uneven gravel surfaces were hard for him to walk on. It was difficult for him to get into some of the plants that have slopes. Before the accident he would run and catch trains, from time to time; at trial he could not run at all. Prior to his accident he had a total of one hundred and ten accounts that he had sold at one time or another; at trial he had only nineteen of those accounts remaining. He could not follow through with his accounts because of his limited ability to travel long distances.
Before his injury he often drove his automobile 50,000 miles per year, and traveled a total of about 100,000 miles. At trial he was unable to drive more than 6,000 to 10,000 miles per year. A great deal of traveling was necessary in his business. At trial he introduced into evidence his income.
He showed is was unable to establish major accounts since the accident.
In this case the jury found in favor of Duncan, however, this appeals court remanded the case for a new trial based on issues surounding jury misconduct. The part of the case dealing with the way insurance disability cases are analysed is still good law.
The Occidental insurance policy defined total disability as:
'Disability shall be deemed to be total whenever the Insured becomes disabled as the result of injury or disease so as to be wholly unable to engage in any occupation and to perform any work for compensation or profit.'
The court in analysing this case said:
"The controlling issue in this case is whether an ordinarily prudent person in the exercise of ordinary care would have refrained from working under the same or similar circumstances."
The trial court in connection with the issue summitted to the jury regarding whether or not Duncan was totally disabled, gave the following instruction:
"In connection with the above question you are instructed that disability shall be deemed to be total whenever an individual becomes disabled as the result of injury or disease so as to be wholly unable to engage in any occupation and to perform any work for compensation or profit. It does not mean, however, an absolute physical inability to perform any of the duties pertaining to his occupation; but total disability, as inquired about in the above question, exists if such disability prevents the individual from substantially performing every essential operation necessary to the performance of his occupation."
An experienced Insurance Law Attorney is needed whenever a denial of benefits is received from an insurance company. The above case is a good beginning point for evaluating these cases.