Dallas Fort Worth Insurance Lawyer Blog

It just makes you mad! Most drivers in Dallas, Fort Worth, Grand Prairie, Arlington, Mansfield, De Soto, Duncanville, Weatherford, Azle, Aledo, and throughout Texas do the right thing by maintaining liability coverage on their automobiles. But, way too many drivers are on the road without insurance.
The Dallas Morning News ran an article on Saturday, July 17, 2010, addressing this subject. The article is written by Terrence Stutz. The title of the article is, TexasSure program finds about 25 percent of vehicles uninsured in Dallas County.
This article points to a scary statistic. This stastistic is that 25 percent of all vehicles in Dallas County, according to records, 429,478 cars and trucks, remain without liability insurance. This statistic comes from the Texas Department of Insurance.
Records of this type are availble because of a fairly new program in Texas called, TexasSure. This is a system to verify insurance coverage. When a driver is involved in an accident or stopped for an infraction, the law enforcement officer can enter the license plate number and vehicle identification number (VIN) into the TexasSure system to verify insurance coverage.
Those drivers identified without insurance are ticketed, subject to a fine of up to $350 on the first offense and up to $1,000 and posible suspension of their license on the second offense. Those who rack up multiple offenses and take no action are subject to arrest.
According to the Dallas Morning News article, Dallas County has the highest percentage of uninsured vehicles of the six largest urban counties in Texas. Tarrant County has about 21.6 percent of its vehicles uninsured.
As bad as the above numbers are, they have improved in recent years. Officials are unsure if the improvement is due to the TexasSure program. The program is funded by an annual $1 fee paid by all Texans when renewing vehicle registrations. Of course, drivers not having basic liability coverage is what forces responsible drivers to purchase uninsured motorist coverage to protect themselves against the unresponsible drivers on the roads and highways.
The article tells us that the south Texas counties are the ones with the highest percentages of uninsured vehicles, with almost 32 percent of vehicles uninsured in Cameron County. But this is down about 6 percentage points from less than a year ago.
A big stick the State hits people with is a surcharge for not having vehicles insured. The Public Safety Commission imposes surcharges on drivers of uninsured vehicles of up to $250 a year. There are also surcharges for driving violations and driving while intoxicated convictions, along with a whole bunch of other violations.
The TexasSure verification program relies on a massive database containing the names of all insured drivers and their insurance companies, matched to their license plates and VINs.
One problem the program has had is that such a large number of people have had these surcharges placed on them that they have simply refused to pay. This results in a license suspension and more surcharges and reinstatement fees that low income people cannot afford to pay. As a result, and in an effort to get people to be compliant, the Commission is adopting new rules lowering the costs to indigent people. Indigents would be those making less than $14,000 per year.

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."

What is common to a lot of residents of Dallas, Fort Worth, Grand Prairie, Arlington, Mansfield, Benbrook, Burleson, Aledo, and other areas of Texas? One, there are a lot of veterans living in the state and two, there are a lot of people who are behind on their child support payments.
First of all, there is no correlation between the two, except they are easy and short discussions. Let's talk about VA subrogation first.
When someone is injured as the result of a third person's negligent activity and the Veterans Administration has paid benefits to the injured person, the VA is entitled to be repaid for the amount of money they spent on the veteran's behalf. The reimbursement rights of the VA are written into law and are set out in the 1990 case, United States v. Maryland. This is a United States 4th Circuit case and in part says:
Federal law pertaining to veterans benefits places the Unites States on an equal footing with private hospitals in its attempts to recover from third parties the cost of medical services provided veterans for non-service-related injuries. Such equity is ensured by 38 U.S.C., Section 629(a)(1), which provides:
In any case in which a veteran is furnished care or services under this chapter for a non-service-connected disability ... the United States has the right to recover or collect the reasonable cost of such care or services ... from a third party to the extent that the veteran (or the provider of the care or services) would be eligible to receive payment for such care or services from such third party if the care or services had not been furnished by a department or agency of the United States.
The above statute defines at 38 U.S.C., Section 629(i)(3), third parties to include health care providers, employers, automobile insurance carriers, and "a State or political subdivision of a State."
Bottom line - these Veterans Administration subrogation interests have to be protected and the failure to do so correctly could put someone in the position of being sued by the Veterans Administration.
So now, what about child support liens? What do they have to do with injury claims? Most important, Texas Family Code, Section 157.317(a), says a lien for unpaid child support attaches to the personal injury claim of a person owing the child support. The lien is enforced by the Texas Attorney General. This lien is inferior to that of a health care provider with a valid lien, which essentially means that health bills get paid before the child support lien. Also, a child support lien does not attach to the injured persons' attorneys fees in the personal injury case. Think about it this way. If the attorneys could not be paid out of the settlement, then there is no incentive to get an attorney involved and thus there is no recovery to assist with the back child support payments.
An important note on child support liens is that there must be actual notice of the lien before it attaches to settlement proceeds. Contrast this with the other government liens where there does not necessarily have to be actual notice of the lien. These child support liens arise by operation of law and attach to all of the obligor's property, as well as to an injury claim. Texas Family code, Section 157.261(a) and 157.312(d) make this clear. Child support liens may be filed with the County Clerk in the county where the injury suit is filed, the county where the divorce (or suit in the interest of the child) originated, or in the county of the child support obligor's residence. Child support is not just for the dad - it applies to moms and dads.
The above are just two more examples why an experienced Insurance Law Attorney needs to be consulted when dealing with insurance companies.

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

What is a lien? The person in Flower Mound, Haslet, Saginaw, Irving, Carrolton, De Soto, Grand Prairie, Arlington, Mansfield, Fort Worth, or anywhere else in Texas may ask that question.
Generally speaking, in the insurance context a lien is a right to money that a third person may eventually get. Others describe it as a property right which remains attached to an object tht has been sold, but not totally paid for, until complete payment has been made. Another way of putting it is, a hold or claim which one person has upon the property of another as a security for some debt or charge.
In the insurance world a lien normally arises where some person or business causes injury to someone. After the injury, the injured person seeks and receives medical care that his personal health insurance pays for. When this occurs the health insurance company will usually have a subrogation lien against the person or business that caused the injury.
A personal injury settlement or judgment may create tension between insured people and their health insurance company and their medical providers. The right of an insurer of a medical provider to be paid from the proceeds of a settlement falls under the general category of subrogation. Subrogation is defined as, "The substitution of one person for another, expecially the legal doctrine of substituting one creditor for another."
Both "subrogation" and "lien" are terms of art with specific meanings, and it is sometimes hard to be true to the meanings. Legally, this is a challenge, as the terms are often used interchangeably by legislatures and courts and Judges. In the insurance context, it generally means the right to money that a third party may eventually get. Liens are perfected (that is, made collectable) by filing them with the appropriate County Clerk. Subrogation, which again is a term sometimes used interchageably with "lien," and sometimes along with it, as in "subrogation lien," is a right of repayment that can be created by a statute or by contract.
Before going further, when talking about liens and subrogation, it is vital that an experienced Insurance Law Attorney be consulted. Otherwise, a person receiving money and benefits can find themselves being sued. Sometimes a criminal wrong is committed unknowingly when these issues are not handled properly.
Subrogation interests are created by contract, and a third party's liability for same can be extinguished by a release of the wrongdoer by the injured person.
One example is where a person's car is damaged in a wreck with another person and the other person was at fault. The person's car who was damaged makes a claim with the insurance of the atfault person but the insurance company is too slow to fix the damage so the person with the damaged car gets his own insurance company to fix his car. He gets his car fixed and goes on about his life when two weeks later the atfault driver's insurance company calls and concedes they are atfault and pays money for the damage to the car. If the person who has his car damaged accepts the money he can get in trouble. Why? Because when he got his own insurance company to fix his car, his insurance company became the one who had the right to receive the money from the atfault driver's insurance.
Another example is, same as above but the person was also injured and went to the hospital and had his health insurance pay for his medical bills. Later when the atfault driver's insurance admits fault and pays the injured person for his injuries, the injured person's health insurance company has a subrogation interest that must be satisfied to the extent of all monies paid to the injured person.
The confusing thing about the above is all the exceptions that can come into play.

Here is a question a resident of Mansfield, Grand Prairie, Arlington, De Soto, Hurst, Benbrook, Burleson, Fort Worth, or any other city in Texas might ask. What happens if my insurance company goes bankrupt?
First of all, insurance companies that have financial problems do not go into or declare bankruptcy. Financially insolvent insurance companies go into receivorship. The Texas Insurance Code, Section 443.004, defines receivorship as any liquidation, rehabilitation, or ancillary conservation.
Companies that write insurance policies in Texas are heavily regulated, and the Texas Legislature has provided numerous safeguards to protect the residents listed above against insurance company insolvency. The Texas Property and Casualty Insurance Guaranty Act is found in the Texas Insurance Code, Chapter 462. Also see, Texas Transportation Code, Section 643.105. (This section 643.105, deals with commercial carriers on the highway such as the companies that insure 18-wheelers) In connection with these statutory safeguards, Article 5.06-1 of the Texas Insurance Code requires the definition of "uninsured motorist" to include a vehicle for which the liability carrier is or becomes insolvent. Furthermore, the Texas Property and Casualty Insurance Act provides further protection for the public against failure of licensed insurance companies as a result of insolvency.
This Act creates a Guaranty Association for the purpose of paying unpaid claims, including those claims which are the fault of other people, known as third parties, that arise out of and are within their coverage. The liability of the Guarantee Association is still limited by the limits these third parties had on their insurance policys. This is addressed in Sections 462.002, 462.007, 462.008, and 462.305. Another limitation is found in Section 462.213. This section limits covered claims to $300,000.
While the Texas Property and Casualty Insurance Guaranty Act does provide the insurance policy holder with a source for recovering damages that would be assessed against an uninsured motorist, the Act does not alter a solvent insurance company's obligation to pay UM/UIM coverage, and, in fact, requires the insured to first exhaust UM/UIM coverage that may be available under his or her own policy. In this regard this is further discussed in Sections 462.251, 462.252, 462.253, and 462.254.
More information about situations where an insurance company is declared insolvent and goes into receivorship can be found with the Texas Department of Insurance or an experienced Insurance Law Attorney can be helpful in working through the situation.

No matter where you live, Grand Prairie, Arlington, Mansfield, Weatherford, Haslet, Keller, North Richland Hills, Newark, Fort Worth, or any other place in Texas, you hate the thought that your insurance company may be taking advantage of you.
This blog is primarily devoted to claims denial issues and lawsuits that can be brought against insurance companies, agents, and adjusters. Sometimes the wrongs being committed against people by insurance companies are corrected by the Texas Department of Insurance. One example of this is in regulation of rates that the insurance companies are allowed to charge people.
The Austin American-Statesman recently ran an article on this issue. The title of the article is "Hartford agrees to insurance refunds, rate reduction." This article was written by Tim Eaton on the American-Stateman staff. It was published on July 1, 2010.
In this article, he tells about Texas customers who bought homeowners policies from two subsidiaries of Hartford Financial Services Group, Inc., will receive refunds for overcharges. This was announced by state officials the week before.
These refunds affect about 43,000 policyholders according to the Texas Department of Insurance.
According to Deeia Beck, head of Texas' Office of Public Insurance Counsel, the refunds total $3.8 million, including interest and will be sent out before the end of the year.
The article says that the agreements were finalized last week with the companies and the Office of Public Insurance Counsel and the Texas Department of Insurance.
More good news is that these companies will reduce rates. One company, The Property and Casualty Company of Hartford agreed to a reduction of its rates of 10 percent. The other company, Hartford Lloyds Insurance Company, will drop its rates by 3.1 percent.
Beck said, "We felt that the rate increases these companies implemented last year were too high." She also said, "We were able to work something out to get the rates reduced and return the overcharges to the policyholders."
The refunds only average about $41 per home but it is important to note that this only applies to overcharges since January 29, 2010. Further note is that Hartford is not actually admitting they did any overcharging.

If someone in Hurst, Euless, Bedford, Fort Worth, Cedar Hill, Crowley, Burleson, Irving, Grand Prairie, Arlington, Mansfield, or anywhere else in Texas, has to file a lawsuit because their homeowners insurance company is denying their claim, one thing they want for sure is a successful outcome. The best outcome is usually going to occur in a State or County court, not in a Federal Court. As a result of this knowledge among insurance company attorneys, they will always try to get a case moved to Federal court if there is any way possible of doing so.
This was attempted in the case styled, James N. Wofford, et al v. Allstate Texas Lloyd's and Randy Paul Johnson. The opinion in this case was signed on June 9, 2010, By Federal Judge, Kenneth M. Hoyt, a Judge in the United States District Court, S. D. Texas, Houston Division.
In this case, the homeowner, James Wofford, had a policy of insurance with Allstate Texas Lloyd's. Wofford's home was damaged by Hurricane Ike. Wofford filed a claim with Allstate and Allstate assigned adjuster Randy Paul Johnson, to handle the claim. Johnson was named as one of the defendants in the lawsuit. This case was filed in the 11th Judicial District Court of Harris County, Texas, and Allstate immediately filed papers to have the case removed to federal court.
Allstate is a business with its headquarters located outside the state of Texas. When a person or business who resides outside the state is sued in a state court the person or business sued has a right under Federal laws, to have the case removed to a Federal court. This is what Allstate was attempting to do. But these same laws say that if more than one person or business is sued and one or more of those sued is a resident of the state of Texas, then the case must remain in the District or County court in which it is filed and cannot be removed to Federal court.
What was being alleged by Allstate in this case was that the adjuster, Johnson, was improperly sued by Wofford and that the only reason Wofford sued Johnson was not because Johnson had really committed any wrong but because Wofford was just trying to keep the case in a state or county court. Allstate contended that Wofford failed to make the required "factual fit" between his asserted theories of recovery and his allegations. As a consequence, Allstate argued that there is no reasonable possibility of recovery against Johnson. Based on this arguement by Allstate, Wofford had to articulate the reasons why the allegations against Johnson were allegations that were particular to Johnson and could have been brought against Johnson by himself without the joiner of Allstate.
In response, Wofford set out the pertinent parts of Texas Insurance Code, Section 541.060 that Johnson violated as an adjuster.
Summarizing the allegations against Johnson the Federal court stated, "the plaintiff's allege in their petition that: (1) their property was damaged as a result of Hurrican Ike; (2) their property was insured at all material times hereto under a Policy issued by Allstate; (3) Allstate assigned Johnson to adjust their claim and inspect their property; and (4) Johnson allegedly mishandled their claim, by inter alia, failing to fulfill his duties in the manner prescribed by the Texas Insurance Code, including misrepresenting the extent of the Policy's coverage, failing to attempt a fair settlement, failing to explain Allstate's reasons for offering an inadequate settlement and/or denying payment. Based on these allegations, the plaintiffs allege that Johnson's conduct amounts to violations of the Texas Insurance Code for which he can be held personally liable."
Thus, Allstate's attempt to have the case removed from the State District court to the Federal Court was denied.
An experienced Insurance Law Attorney will understand what an insurance company is going to attempt prior to filing the lawsuit. Knowing this, the attorney will draft paperwork to defeat the attempts by the insurance company if there is any way possible of doing so.

What does it take for someone in Weatherford, Aledo, Dallas, Mesquite, Garland, or some other city in Texas to be guilty in negligently entrusting their vehicle to another person? What happens if you sue someone for negligent entrustment and a court finds that you should not have sued for that reason?
The Texas Court of Appeals in Austin, decided a case on August 1, 2008, that addresses both questions. The style of the case is, T. Christopher Robson v. Garrett Gilbreath and David Gilbreath.
In this case, the driver of a car, Garrett Gilbreath, struck and killed Elizabeth Daley a relative of Christopher Robson. The owner of the car was David Gilbreath, the father of Garrett. Robson asserted that David was guilty of "negligently entrusting a large vehicle, such as his Chevrolet Suburban, to a sixteen year old minor, Garrett, who had little driving experience."
The attorneys for the Gilbreath's requested that the attorney for Robson, dismiss the negligent entrustment claim because there was no legal basis for maintaining that claim. The attorneys for Gilbreath maintained that the cause of action against David was groundless and without merit.
"Negligent entrustment" is defined by USLegal in the following:
Negligent entrustment is a concept in tort law that arises where one party (the entrustor) is found responsible for negligently providing another party (the entrustee) with a dangerous instrumentality, and the entrusted party caused injury to a third party with that instrumentality. The issue typically arises in the context of a person allowing another to drive their automobile.
Texas case law says that to establish negligent entrustment of an automobile, a plaintiff must prove the following elements:
1) the owner entrusted the automobile,
2) to a person who was an unlicensed, incompetent, or reckless driver,
3) who the owner knew or should have known was incompetent or reckless,
4) the driver was negligent, and
5) the driver's negligence proximately caused the accident and the plaintiff's injuries.
The above is stated the Texas Appeals Court - Houston [1st Dist] and by the Texas Supreme Court.
The elements set forth above were not stated as reasons Robson had for sueing David. Rather he relied on the basis that David "negligently entrusted a large vehicle, such as his Chevrolet Suburban, to a sixteen year old minor who had little driving experience."
In this case, Robson was sanctioned by the trial court Judge with a $10,000 fine for failure to conduct a reasonable inquiry prior to filing a negligent entrustment claim against David.
This case discusses elements for justifying the $10,000 fine and is necesary reading before filing lawsuits for reasons that may not be fully justified under existing law.

What can someone in Grand Prairie, Arlington, Mansfield, Bedford, Hurst, Euless, De Soto, Duncanville, Fort Worth, or anywhere else in Texas do when they are being "jerked around" by an insurance company? Answer number one - Find an experienced Insurance Law Attorney to consult with. Answer number two - file a complaint.
Seeking the aid of an experienced Insurance Law Attorney is sometimes hard to do. There are a lot of attorneys that help victims of accidents. These attorneys are usually referred to as Personal Injury Attorneys. These types of claims are called third party claims. The other type of claim is called a first party claim. This is a claim against your own insurance company. There are not that many attorneys that have experience in handling these types of claims. These attorneys are usually referred to as Insurance Law Attorneys.
The majority of the time an attorney is going to be able to get you the money you are entitled to plus more depending on how wrong the conduct of the insurance company has been in handling the claim. Consultations are usually free and there is nothing to lose by having an attorney look at your situation.
As to "answer number two", filing a complaint, the Texas Department of Insurance has a website that a consumer can go to for filing a complaint. After studying the complaint, the consumer protection division sends the insurance company a copy and asks for a detailed written response to the complaint. The Texas Department of Insurance is understaffed for properly supervising insurance companies but one way for an insurance company to get their attention is to not respond to the complaint. As a result a response is almost gauranteed. The problem is that once the response is received, very little else is done. As you could assume, the insurance company response is going to be self serving.
What next happens is the Texas Department of Insurance staff determines if the claim or any other issue was handled properly under the policy. Again, the response from the insurance company is self serving and there is little ever done.
The Texas Department of Insurance staff also reviews the file to assess whether laws were violated. Most these laws are found in the Texas Insurance Code. If violations are found, the department institutes an enforcement action that can result in sanctions ranging from a fine and restitution to revocation of the insurance company's state license.
As previously stated, usually nothing is done as long as the insurance company files a response. Failing to file a response results in an investigator going to the insurance company. Based on the response received, the normal outcome is that the department communicates with the person complaining saying that there seems to be an honest dispute between the person and the insurance company and that the person complaining should seek an attorney. Thus, we are back to answer number one.
It should be remembered that filing complaints is still important. If legal action by an attorney is commenced against an insurance company it sure helps the case for the attorney to be able to get his hands on copies of the complaints filed against the insurance company.

What if your home is defective? If you live in Grand Prairie, Arlington, Sasche, Plano, De Soto, Azle, Aledo, or anywhere else in Texas and you have problems with your home, you may ask the same question.
The Miami Herald ran an article on May 28, 2010, reporting where a class-action lawsuit had been filed against numerous homebuilders for using Chinese drywall in the construction or remodeling of their homes. The title of this article is, Chinese Drywall Lawsuit Gets Class-action Status. As many as 152 families from three neighborhoods in Homestead, Florida, will be part of the first class-action lawsuit in the country over tainted drywall imported from China.
The drywall is made by Knauf Plasterboard Tianjin, and has been reported on extensively after it was used in repairs following hurricanes along the Gulf Coast region of the United States. These builders will be sued under the Deceptive Trade Practices Act and other causes of action including fraud and breach of contract.
The lawsuit targets homebuilder South Kendall Construction Corp., Palm Isles Holdings, Keys Gate Realty and Banner Supply and includes condo, townhome, and single-family homeowners living in the Palm Isles, Arbor Place, and Augusta Green subdivisions, in and around the Key Gates neighborhood of Homestead, Florida.
Other homeowners are being given the opportunity to join in the lawsuit. Homeowners will receive a notice in the mail asking if they would like to join the lawsuit. This is being done for judicial economy. As if stands now, these lawsuits are being brought on an individual basis as the problems are being encountered by homeowners.
The problem is, some brands of drywall imported from China have been found to emit large amounts of hydrogen sulfide, which corrodes and blackens some metals in homes and can make a house smell like rotten eggs. Many homeowners also believe the drywall is responsible for breathing problems and nosebleeds.
As the article reports, nationwide, about 3,300 homeowners have complained to the Consumer Product Safety Commission about drywall in their homes. Some homeowners have been forced to move to rental homes because the conditions in their own homes are too unbearable. Almost all the homeowners are in homes they can't sale because of the drywall nor can they get insurance because the normal insurance companies refuse to insure homes that have this Chinese drywall in them.

Policyholders in Arlington, Aledo, Farmers Branch, Grand Prairie, De Soto, Lancaster, Fort Worth, Mansfield, Weatherford, or any other town in Texas might have the following question. What happens if I am in an accident when I am out of state? Or they might ask, what happens when someone from out of state has an accident with me in Texas when they are at fault?
Let's consider the last question first. What happens when someone from out of state has an accident in Texas when that out of state person is at fault in the accident? The only part of an extensive answer to this question that is relevant is this:
In a state like Oklahoma, who has minimum policy limits that are less than the minimum limits in Texas, what happens. The Texas Transportation Code, Section 601.001 et seq. sets the minimum liability limits in Texas at $25,000 per person or $50,000 per incident on the bodily injury portion of an automobile policy. The State of Oklahoma has limits as low as $15,000 per person. When someone is driving in Texas with an automobile insurance policy issued from some state other than Texas, the minimum limits in Texas apply. This is the case regardless of the fact that the Oklahoma policy clearly says the minimum limits are $15,000. Other differences are not relevant or, are not going to arise very often.
So now lets get back to the first question from above. What happens if I am in an accident when I am out of state?
First, start from the premise that the law of the state where a policy is issued generally governs coverage issues. Texas has a provision in the Insurance Code that spills Texas law into some out of state policies. From a legal standpoint, Texas follows the "most significant relationship rule" articulated in the Texas Supreme Court case, Duncan v. Cessna Aircraft Company, issued in 1984, in applying a particular state's law to an insurance contract. This is detailed and discussed in the case, and basically looks at issues regarding where the insurance contract was entered into, where it was payable, where acts were to be performed, etc.
For Texas residents the answer to the question is found in Texas Insurance Code, Section 21.42. It says:
Any contract of insurance payable to any citizen or inhabitant of this State by any insurance company or corporation doing business within this State shall be held to be a contract made and entered into under and by virtue of the laws of this State relating to insurance, and goverened thereby, notwithstanding such policy or contract of insurance may provide that the contract was executed and the premiums and policy (in case it becomes a demand) should be payable without this State, or at the home office of the company or corporation issuing the same.
In the case, Scottsdale Insurance Company v. National Emergency Services, Inc., the Texas Court of Appeals, Houston [1st Dist.], in 2004, said that the above Insurance Code section mandates that Texas law will apply to the contract if, (1) the proceeds are payable to a Texas citizen or inhabitant, (2) the policy is issued by a carrier authorized to do business in Texas, and (3) the policy is issued in the course of the carrier's Texas business.
Much of this can be confusing and even the courts have different ways of ruling, depending on the facts of each particular situation. This is yet another example of why an experienced Insurance Law Attorney should be consulted when someone finds themselves in this type of situation. Often times the wording in the contract of insurance is improper and unenforceable.

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

How do I know I'll win if I sue? Whether you live in Grand Prairie, Weatherford, Arlington, Mansfield, Newark, Keller, Irving, or any other place in Texas, that would be a good question. The first part of answering that question would be to find out whether your case is in State Court or Federal Court. Whenever an individual is sueing an insurance company, an experienced Insurance Law Attorney will tell you that your best chance for success is to be in State Court.
In the case, Sharman McGilbert v. Safeco Insurance Company of Indiana, Odette Goer, and Gary Waddell, McGilbert sued in State Court and Safeco Insurance Company of Indiana immediately tried to have the case removed to Federal Court. Safeco failed in their effort.
This case was decided on April 22, 2010, in the United States District Court, Southern District Texas, Houston Division, by District Judge Gray H. Miller. The case was originally filed in the 11th Judicial District Court of Harris County, Texas. Judge Miller remanded the case back to the 11th after Safeco's unsuccessful attempt to have it removed.
McGilbert brought suit against Safeco, Goer, and Waddell alleging multiple causes of action, including breach of contract, breach of good faith and fair dealing, common law fraud, violations of Texas Insurance Code Chapters 541 and 542, and violations of the Texas Deceptive Trade Practices Act. This was done after McGilbert's home was damaged in Hurricane Ike and her property damage claim was not properly paid.
For Safeco to be successful in having the case removed to Federal Court, Safeco would have to show that the amount in controversy exceeded $75,000, which it did, and that the people sued were not residents of Texas. Safeco was not a Texas resident, nor was Waddell. But Goer was, so Safeco had to show that Goer was not properly in the lawsuit. That Goer was only in the lawsuit so that McGilbert could keep the case in State Court and that the claims against Goer were improper. This can be done in either of two ways. One, is actual fraud in the pleading of jurisdictional facts which was not in dispute and two, the inability of McGilbert to establish a cause of action against Goer in State Court. This part was at issue in this case.
Here, the factual allegations against Goer must be enough to raise a right to relief above the speculative level.
Safeco argued that McGilbert did not intend to pursue their claim against Goer as evidenced by the fact that Goer had not yet been served with legal papers in this case. The Court pointed out that there had been atleast five attempts to get the legal papers delivered to Goer and the fact that they had been unsuccessful was not proof that McGilbert did not intend to persue her claim against Goer. Thus, Safeco's first arguement was defeated.
Second, Safeco argued that the complaint did not allege specific, individual actions attributable to Goer. The Court pointed out the allegations that Goer and Waddell were the adjusters assigned to adjust the claim. That they conducted an inspection of McGilbert's property. That they were tasked with the responsibility of conducting a thorough and reasonable investigation of McGilbert's claim, including quantifying the damage done to the home and personal property. Subsequent to the inspection, Goer and Waddell issued a damage estimate that failed to fully quantify the damage done to the property, thus demonstrating that they did not conduct a thorough investigation of the claim. That they failed to fairly evaluate and adjust the claim as they are obligated to do under the terms of the policy and Texas law. By failing to properly investigate the claim and by issuing a grossly undervalued damage estimate, they engaged in unfair settlement practices by misrepresenting material facts as to the true value of the covered loss. That Goer and Waddell also failed to provide a reasonable explanation as to why Safeco was not compensating McGilbert for the full value of her covered losses.
All of the preceding paragraph is enough to show that McGilbert has pled sufficient facts against Goer to establish a reasonable possibility of recovery. Thus, Safeco's second arguement was without merit.
This case is a good example of how an attorney can properly defeat an insurance company from successfully removing a case to Federal Court.

Lots of business owners in Grand Prairie, Mesquite, Arlington, Fort Worth, Aledo, or any other town in Texas are going to have insurance coverage for the vehicles they use in their businesses. The question is: Do they have the right coverage for the vehicles?
The United States District Court, Southern District of Texas, issued a judgment on April 21, 2010 that addressed this issue. In this case, United States District Judge, Lynn N. Hughes, ended up telling one business that they did not have the insurance coverage they thought they had. The style of the case is, Canal Indemnity Company v. Williams Logging and Tree Services, Inc. et al.
Willie Williams owns a logging company, Williams Logging and Tree Services, Inc. One morning he was driving his company car, a 2003 GMC Sierra pickup, when he hit a motorcyclist. The injured man sued Williams in the 278th District Court, Walker County, Texas.
The title for the pickup is in Williams and his business name. Williams drove the truck to work and carrried tools and fuel in it for vehicles at work sites. He insured the pickup with a $50,000 per person accident policy. This policy paid in full.
Williams business, Williams Logging and Tree Services, Inc., also had purchased a surplus liability coverage policy with Canal Indemnity Company with a policy limit of $1,000,000. The Canal policy covered vehicles listed in the policy. The pickup was not listed. Logging argued that while the pickup was not listed, the attached MSC-90 endorsement and Form-F endorsement obliged Canal to pay.
The MCS-90 is a public liability endorsement that interstate motor carriers are required to have and proof that the carrier has the required minimum level of insurance.
The pickup, though, does not transport cargo for hire as contemplated in the Motor Carrier Act and regulations of the Federal Motor Carrier Safety Administration. While Logging's hauling trucks may be regulated by the Act, the pickup does not transport items for compensation. It transports Williams as a cost doing business. The fact that Logging has some fuel in cans or even tools to service other vehicles does not transform this "company car" into a motor vehicle.
Form F is the Texas state counterpart to the MCS-90. Texas law requires that motor carriers operating in the state have minimum bodily injury and property damage liability insurance. This law is Texas Transportation Code Annotated, Section 643.101. The law defines a commercial motor vehicle as one that is above 26,000 pounds, transports more than 15 people, or transports hazardous material. See Section 548.001 and 43 Texas Administrative Code, Section 18.2(6). The minimum insurance required is $500,000, per 43 Texas Administrative Code, Section 18.16(a)(8).
Based on the facts in this case that the pickup does not meet the requirements for the Canal policy to provide coverage, the court ruled against Williams.