Dallas Fort Worth Insurance Lawyer Blog

Homeowners in the Dallas, Fort Worth, Grand Prairie, Arlington, and Metroplex areas are not as affected by what appears to be a mass settlement for homeowners in the Gulf Coast area of Texas. But it is still a victory, and a victory for one should be considered a victory for all when the insurance company finally does the right thing by accepting responsibility for the homeowners policies it issues.
The Beaumont Enterprise, a newspaper published in Beaumont, Texas, recently ran an article disussing the above topic. The article is written by Mike D. Smith and was published on July 13, 2010. The title of the article is, Mass settlement offered in Ike windstorm cases.
The article tells how the wait could be over for countless Bolivar Peninsula property owners locked in a group stalemate with the Texas Windstorm Insurance Association over Hurricane Ike damages.
It is interesting to note that the Texas Windstorm Insurance Association has been in the news recently for wrongs and improper practices it has been caught commiting.
According to the article, within the next month, homeowners involved in the insurance fight should get notices from their respective attorneys about whether they want to accept a slice of a $189 million "mass settlement" with the state windstorm insurance pool.
One attorney involved in the litigation stated that the offer is substantially more than what was previously offered in these cases.
The settlement involves "slab" cases, or buildings where Ike's winds and storm surge left little behind. Another attorney said the settlement would be a triumph for "slab" owners and the Galveston County economy.
It appears attorneys for the homeowners were able to counter arguements by the insurance industry of whether damage was caused by water or wind by using weather modeling and weather experts. The result of this being that the insurance association agreed to pay full negotiated amounts to the property owners and to pay attorneys fees.
"These slab claims were very complicated and numerous, and they required a great deal of time and analysis in determining the impact from wind and storm surge damage since Texas Windstorm Insurance Association policies only cover direct loss caused by wind," insurance association general manager jim Oliver said in a released statement. "We hope that this global resolution will help those families rebuild their lives and homes. TWIA recognizes the important role that windstorm coverage and the recovery of policy benefits will have on economic development in Galveston County, and we are proud to help this vibrant community and help ensure its stability during future storms." It is kinda ironic for them to be saying this now, after fighting it for so long.
It is reported that one of the above attorneys is still working about 5,000 Ike lawsuits mainly in the Houston and Galveston areas. After about a year of fighting, mediation is speeding up settlements on about 98 percent of those cases and are moving much quicker that the Hurricane Rita cases.
The main difference between the two storms is that Ike hit more heavily in a much more populated area.

No matter where you live - Grand Prairie, Dallas, Fort Worth, Arlington, Mansfield, De Soto, Duncanville, or anywhere else in Texas, you have to keep your eye on insurance companies. If you don't, they will cheat and try to get away with doing people wrong.
A few weeks ago on this blog there was an article talking about the Texas Windstorm Insurance Association. Well, they are back in the news.
One of our favorite reporters, Purva Patel, with the Houston Chronicle, did a follow up story on the Texas Windstorm Insurance Association. This article was published on July 7, 2010, and is titled, "State criticizes windstorm insurer." Purva Patel has had a number of articles describing wrongs committed by insurance companies. In the article published on July 7, about the Texas Windstorm Insurance Association, he writes about poor record keeping procedures that Texas Winstorm evidently does not have. Of course, this is wrong. The Texas Insurance Code, Section 542.005(b), says:
"An insurer shall maintain a complete record of all complaints received by the insurer during the preceding three years or since the date of the insurer's last examination by the department, whichever period is shorter. The record must indicate:
(1) the total number of complaints;
(2) the classification of complaints by line of insurance;
(3) the nature of each complaint;
(4) the disposition of the complaints; and
(5) the time spent processing each complaint."
According to Patel's article, the Texas Windstorm Insurance Association hasn't logged consumer complaints or complied with its own internal hiring procedures. This is from a report released by state regulators.
This is a Texas Department of Insurance report of TWIA's operations from January 2006 to December 2008.
The TWIA is a state-created insurance company that sells wind insurance coverage to coastal homeowners who can not buy it elsewhere. They have been the target of over 2,000 lawsuits over how it handled Hurricane Ike related claims.
Coupled with the above TWIA has been the subject of state investigations about allegedly deceptive claims handling practices.
TWIA is refusing to talk about the wrongs it is being accussed of.
Here are a couple of examples of complaints against TWIA:
Permitted conflicts of interest by hiring family members.
Did not have claims managers in the field to train adjusters and handle problems.
Did not update pricing guidelines.
This is one company with one little niche of the insurance market. There is no excuse for this behavior.
Any time someone is having to make a claim with an insurance company, it would be good advice to consult with an experienced Insurance Law Attorney. A little consultation can prevent a lot of heartache and trouble.

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.

Most homeowners in Cedar Hill, Grand Prairie, Arlington, Mansfield, Benbrook, Burleson, Haslet, Saginaw, Fort Worth, or any other city in Texas is not going to have a mold problem with their home. But the ones who do will wonder: What now? Will my insurance cover the costs the mold problem is causing?
Unfortunately, there is no easy answer to these questions.
The quick answer is: It depends on what your homeowners insurance policy says.
The longer answer is: It depends on what the courts have ruled that your insurance policy means.
And the real answer is that you will have to consult with an experienced Insurance Law Attorney. His answer will depend on the previous two answers but atleast he or she will be able to discuss with you, your options and what has been the result in cases with similarities to your own case.
Almost all homeowners policies, and for that matter, policies that cover other types of structures, will have exclusions for mold coverage unless you specifically ask for mold coverage and pay the higher premium for that coverage.
To learn a little about mold and how it affects people you can go to MedicineNet.com. Mold is very large group of microscopic fungi that live on plant or animal matter. Most are filamentous organisms and produce spores that can be air, water, or insect borne. Mold is a common trigger for allergies.
For people who are sensitive to molds, exposure can cause symptoms such as nasal stuffiness, eye irritation, or wheezing. People with serious allergies to molds may have more severe reactions. Severe reactions may occur among workers exposed to large amounts of molds in occupational settings or in mold infected homes. Severe reactions may include fever and shortness of breath. People with chronic illnesses, such as obstrusive lung disease, may develop mold infections in their lungs.
There are many other places to learn more about problems created by mold.
The Texas Supreme Court, on June 11, 2010, issued an opinion in the case, State Farm Lloyds and Erin Strachan v. Wanda M. Page, where the issue was the interpretation of a homeowners insurance policy and whether or not it covered mold damages.
In this case, State Farm Lloyds had issued a Texas Standardized Homeowners Policy -- Form B to insure the dwelling and its contents of the home owned by Wanda Page. (More about these various forms can be studied at the Texas Department of Insurance web-site). The adjuster, Strachan, hired Industrial Hygiene & Safety Technology, Inc. to perform an indoor envoronmental quality assessment. The assessment revealed a variety of different molds growing in the home. To abate the mold, Industrial Hygiene recommended that the home and its contents be remediated. So the next question was; Who is going to pay for this?
The court got into a lengthy discussion about the law in this area and how other courts had ruled. In the discussions about other court rulings, this court distinguished the facts and insurance policies in the other courts from the facts and insurance policy in this case. In the end, this court ruled that the State Farm Lloyds policy covers mold damage to the personal property of Page but not the dwelling itself.
In these mold coverage cases it needs to be understood and emphasized that each case can be drastically different based on the causes of the mold and the wording in the policy.

Homeowners in Flower Mound, Haslet, Saginaw, Newark, Benbrook, Crowley, Cedar Hill, Hutchins, Grand Prairie, Arlington, Mansfield, Weatherford, or anywhere else in Texas will have insurance on their homes. Most, if not all are concerned about the cost of their insurance and the coverages provided by their policy if they suffer a loss.
Even though it is not often a problem for homeowners in the towns and cities listed above, homeowners along the gulf coast areas of Texas, will many times have problems getting coverage for wind damage to their homes. When they can get their standard insurance carrier such as State Farm, Allstate, Farmers, or one of the other standard companies to provide coverage, it is at an expensive cost. So what can they do to get coverage and get it at a cost they can afford?
The answer is to get coverage through the Texas Windstorm Insurance Association (TWIA). Homeowners along the gulf coast still have to pay premiums that exceed thousands of dollars for coverage through TWIA. In spite of these already expensive rates, the TWIA has asked the Insurance Commissioner, Mike Geeslin, to allow a rate increase of 5 percent starting next year.
Writer, Purva Patel, for the Houston Chronicle, wrote an article that was published on June 23, 2010. This article, titled, "Windstorm insurer wants 5 percent annual rate increase," explains some of the reasons that TWIA is asking for the rate increase. The TWIA board voted 5 to 3 to raise rates 5 percent next year, with the intention of filing the same increase each of the following four years.
The TWIA sells wind coverage to owners of hurricane vulnerable homes who can't buy it elsewhere. The article by Purva Patel discusses reasons for the rate increases and where TWIA gets its money,
At the same time that TWIA is considering and asking for these rate increases, it is noted that policyholders who are still recovering from hurricanes Ike and Dolly, won't be able to afford higher rates. TWIA has received over 92,000 Ike related claims and continues to receive about 12 to 15 a week. TWIA is said to have paid nearly $1.6 billion in Ike losses to date and expects to pay out a total of $1.9 billion.
TWIA is simply running out of money according to its spokespeople and must have the rate increases to stay viable.
Senator Mike Jackson, La Porte, have opted to give TWIA the ability to issue bonds which would be less costly to them and lessen the need to increase premiums.

Home owners in Grand Prairie, Arlington, Mansfield, Colleyville, Keller, Aledo, Bedford, and all through the State of Texas should be comforted about a recent case. This case was in Florida, but will help home owners all over the United States, including Texas.
On June 19, 2010, The Miami Herald reported on a story concerning a lawsuit over the Chinese drywall that has been in the news the last few years. The author of the story is Nirvi Shah. The reporter tells us that after two and a half years, a Miami couple was awarded $2.5 million in damages and expenses, after blaming odors and corrosion problems on defective Chinese drywall.
The article, the title of which is, "Chinese drywall verdict is in: $2.5 million," tells us that Armin and Lisa Seifart sued Miami-based Banner Supply after the drywall that the company provided corroded copper pipes and fixtures, ruined their air conditioner and other appliances and made their home stink.
This case was the first jury trial in the United States, over Chinese drywall. It could set a precedent for other lawsuits. Plus, Banner has dozens of cases pending over this same issue.
An interesting note in this case is that it was discovered that a 2007 agreement between Banner and Knauf Plasterboard Tianjin existed, wherein they were allowed to replace the Chinese drywall with a domestic product. It turned out that Banner only replaced Chinese drywall it had supplied to select builders and installers who had complained about a smell. In this light, it is important to realize that Banner knew of problems and could have prevented other homes from being affected by the drywall had they gone public with the complaints years ago.
In this case, Banner conceded that the drywall was defective, but the company wanted only to pay for actual expenses -- not for negligence or any stigma the home will carry.
It is important to realize that the Seifarts did not move into their home until more than a year after the confidential agreement mentioned above had been signed. In other words, they could have been warned about these problems. They ended up moving out less than a year later.
Also assigned blame in this case was the importer La Suprema and China based exporter, Rothchilt International.
Prior to this case, a federal Judge in Louisiana awarded $2.6 million to seven Virginia homeowners, finding drywall manufacturer Taishan Gypsum Company liable for damage.
Repairs on the Seifart home, which was essentially gutted and rebuilt, will not be complete until atleast January.

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.

When a house burns in Grand Prairie, Arlington, Colleyville, Keller, Mansfield, Fort Worth, Azle, Aledo, or Weatherford, or anywhere else in Texas; What happens when the house catches on fire? Will the insurance company pay for the damages?
In, State Farm Fire & Casualty Insurance Company v. Simmons, the answer was no until the case went to court. At that point, State Farm Fire & Casualty Company (State Farm) was eventually ordered to pay the damages. This is a 1998, Texas Supreme Court case. In this case, the Simmons had moved into a new home and spent monies improving the property and buying items for the inside of the house. Their house had been burglarized in the middle of the day and later those responsible were located.
Mr. Simmons, a construction supervisor, had experienced down time from work and the Simmons had missed house payments. They later refinanced the house. They continued to experience problems with vandalism and other strange occurrances around the house.
Eventually, one day they left the house for a trip and the house burned down. They made a claim to State Farm for benefits. State Farm denied the claim. State Farm asserted that the Simmons burned down their own home on purpose.
The Simmons sued State Farm for breaching its duty of good faith and fair dealing, violations of the Deceptive Trade Practices Act (DTPA) and punative damages. The jury found in favor of the Simmons and awarded $275,000 in actual damages and $2 million in punative damages. The Supreme Court took away the punative damages.
In supporting the jury finding that State Farm violated its duty of good faith and fair dealing the court pointed out the following;
1) the earlier burglary claim, which State Farm said was suspicious, later the culprits were found and Mr. Simmons returned merchandise to State Farm that State Farm had paid for when the police returned it to Simmons, yet State Farm still considered this "suspicious."
2) State Farm refused to investigate for other suspects in the fire even when there was evidence that others may have been involved;
3) State Farm's claims supervisor conceded that State Farm's investigation was not properly conducted;
4) on expert testimony of eight reasons why people commit arson, six did not apply to the Simmons; the seventh had to do with people removing furniture and personal items from the property and even though they had taken some of the kids summer clothes out of the house, other items, some very personal in nature were not taken, and the eigth reason dealt with financial burdens. Here, the Simmons had always had problems but State Farm relied on the Simmons burden of a $1,343 monthly house payment. The evidence showed they had refinanced and that their actual burden was $540 a month less;
5) the Simmons mortgage obligation exceeded the policy limits on their homeowners insurance by several thousand dollars, thus leaving them still in debt;
6) conflicts in the investigation process which could have been addressed by talking to the Simmons were never resolved because State Farm did not talk with them.
The bad law in this case is the court setting a high standard for punative damages by way of the Texas Civil Practices & Remedies Code, Section 41.001.
The court did allow for the damages under the Texas DTPA, and remanded the case to the trial court for a finding on those damages.

There are homeowners in Grand Prairie, Arlington, Mansfield, Weatherford, Aledo, Fort Worth, and everywhere else in Texas. 95% of those homeowners have insurance. So how do you know if your insurance company is violating the "bad faith" laws in Texas?
Here is a 1997, Texas Supreme Court case to read to give some insight into the above question. The case is, State Farm Lloyd's v. Ioan and Liana Nicolau.
In the insurance claim giving rise to this dispute, the Nicolau sought coverage for extensive foundation damage to their home. The homeowners policy, issued by State Farm Lloyds, (State Farm) generally excludes losses caused by "inherent vice," or by "settling, cracking, bulging, shrinkage, or expansion of foundations." Under an express exception, however, these exclusions do not apply to losses caused by an "accidental discharge, leakage or overflow of water" from within a plumbing system.
The Nicolau suspected damages for an extended period of time and had it investigated before turning to State Farm. They hired a foundation repair contractor and a structural engineer with Maverick Engineering. After much time went by and numerous tests, they finally concluded the problem was the result of a substantial leak in the plumbing system.
State Farm, hired an adjuster with ABJ Adjusters, Inc., who submitted two reports expressing doubt about the foundation problem being the result of the plumbing leak. State Farm then hired Haag Engineering Company who did a report concluding that the leak was not causing the foundation problems. Based on this report State Farm denied the claim made by Nicolau.
The Nicolau then hired Trinity Engineering Testing Corporation (Tetco) who filed a professional and detailed report stating the foundation problem was the result of the leak and detailing why that conclusion was reached.
The Nicolau then sued State Farm, asserting breach of contract and several extracontractual claims based on State Farm's conduct. The jury found for the Nicolau and State Farm filed this appeal.
At the trial of this matter, evidence was introduced that Haag worked almost exclusively for State Farm. That they always found in favor of State Farm in ways to exclude coverage on the policy. That in the two cases where they had made finding against State Farm that the employees responsible for the findings were terminated.
In ruling in favor of the Nicolau the jury also assessed punative damages against State Farm. The Texas Supreme Court took away some of these punative damages but remanded the case to the trial court for findings of damages under the Texas Deceptive Trade Practices Act.
The relevance of this case is seeing how the appeals court looks at these bad faith cases to determine whether or not the insurance company has actually acted in "bad faith." An experienced Insurance Law Attorney is very helpful in understanding how the courts in Texas look at these cases. He can advise as to the best course of action to get a remedy for the wrongs that are committed.

Pretend a couple in Grand Prairie, Fort Worth, Arlington, Dallas, Weatherford, or anywhere else in Texas is running a business out of their home and someone gets injured as a result of that business activity. Does a normal Texas homeowners insurance policy cover any claim that may be made?
As a general rule the answer is no. The normal Texas howeowners policy includes a "business pursuits exclusion." This means that incidents arising out the course of that business are excluded from coverage under the insurance policy. There are exceptions to this general rule mainly because the Texas Department of Insurance, several years ago started letting insurance companies write their own policies. Prior to this the policys were standard and followed recommendations from the state. Now, each company writes their own policy and so, there are differences between one policy and the other that now exist. Plus, homeowners can buy endorsements to cover their business pursuits that they are pursueing from their home.
The normal / typical homeowners policy excludes coverage for "bodily injury or property damage arising out of or in connection with a business engaged in by an insured." This is articulated in the case, State Farm Fire & Casualty Company v. Vaughan. This case was decided by the Texas Supreme Court in 1998, and is still good law. Here, State Farm Fire & Casualty Company challenged a claim being made by Vaughan and the court ruled in favor of State Farm, on this business exclusion policy language.
In another case, United Service Auto. v. Pennington, the San Antonio Court of Appeals, decided in 1991, guidelines to go by in determining whether or not the activity being conducted out of a home was a business pursuit.
"Business pursuit" for these purposes encompasses two elements:
1) continuity or regularity of the activity; and
2) a profit motive, usually as a means of livelihood, gainful employment, earning a living, procuring subsistence or financial gain, a commercial transaction or engagement.
In this case the court said that the profit need not be realized; that the issue is the expectation or anticipation of profit in the future. They explained further saying, the insured can even hope that the pursuit will succeed and eventually become profitable, but if his or her present intention and goal were not motivated by profit, then there is no business pursuit.
Anytime this question arises an experienced Insurance Law Attorney should be consulted so that the facts of any one situation can be applied to the existing law and an opinion can be discussed.
In the Pennington case, the homeowner was a car salesman but also ran a quarter horse breeding business with his father. Apart from the breeding business, he and a coworker at the car lot bought a quarter horse to experiment with a new training system to condition horses for racing. They advertised for someone to ride the horse. The woman who answered the ad was injured when the horse fell on her. The court found evidence to support the jury's finding that the ownership of the horse was not a business pursuit. With regard to the continuity element of the definition noted above, the court found that the insured had engaged in the experiment of interval training for a race horse for a month, that there was testimony that the ownership of the horse was separate from the breeding business, that there was no evidence that the homeowner intended to breed the horse or that the father held any ownership interest in the horse, and finally that there was no evidence that the undertaking was engaged in with regularity. As for the second element, profit motive, the jury heard ample evidence upon which it could find that the homeowner did not anticiplate making a profit.

Lightning strikes a home in Grand Prairie, or Arlington, Fort Worth, Dallas, or out in Weatherford. The lightning damages electronic equipment. The homeowner calls his insurance company to make a claim. Then the insurance company invokes an appraisal clause in the insurance contract. What does this mean?
This is what happened in the case, Steven Woodward, et al, v. Liberty Mutual Insurance Company. This case was decided by the United States District Court, N.D. Texas, Dallas Division on March 26, 2010. The Judge was the Honorable, A. Joe Fish. In this lawsuit, Liberty Mutual Insurance Company (Liberty) filed papers with the Court for an order to be issued to compel appraisal and to stay the Court actions in this matter pending the completion of appraisal. Judge Fish granted the motion and ordered the parties to complete the appraisal process.
In this case, the appraisal clause required each side to select a competent, independent appraiser, notify the other side who had been chosen and if the appraisers did not agree to choose an umpire to settle the matter.
The time sequence here was that Liberty notified the Woodwards that they were invoking the appraisal process and named an appraiser. The Woodwards then asked for the appraisers qualifications. Liberty then named a different appraiser and sent his resume. The Woodwards told Liberty that they did not believe that Liberty's appraiser was qualified and the Woodwards named their own appraiser. Liberty then withdrew the named second appraiser and attempted to name a third.
The Woodwards then had their own appraiser estimate the loss and submitted the estimate to Liberty, along with a demand for payment. Liberty refused payment and the Woodwards filed the lawsuit.
The Woodwards arguement was that Liberty had waived their right to appraisal when they withdrew the names of the appraisers they had originally named. Liberty said they had good reasons for their actions and that the appraisal process had not been completed and also pointed out that the process had not been completed yet because they had not been to the umpire.
In ruling for Liberty the Court pointed out that the Texas Supreme Court had as recently as last year, enunciated a strong policy in favor of enforcing appraisal clauses in insurance contracts. This was stated in the case, State Farm Lloyd's v. Johnson. They also stated law that said, "A completed appraisal that complies with the terms of an appraisal clause in an insurance contract is a condition precedent to bringing a suit on that contract." Citing the ruling in another case the Court said, "Indeed, if an appraisal clause is properly invoked and one party to the contract refuses to participate in the appraisal process, a court lacks discretion not to issue an order compelling that party to participate."
The Court went on to discuss issues concerning "waiver" and another legal pleading of "estoppel" and why these theories did not apply in this case. An experienced Insurance Law Attorney knows about these appaisal clauses in insurance contracts and where applicable, knows ways of defeating them. For the most part these appraisal clauses are more favorable to insurance companies and have lots more legal advantages for the insurance company than the persons insured, which is why the insurance companies put them in the insurance contracts and why they try to invoke these clauses.

There are lots of older homes in Grand Prairie, Arlington, Fort Worth, Weatherford, and all through Texas. These homes need homeowners insurance coverage. That insurance coverage needs to be have proper limits in case a loss is suffered. The following is an example of what might happen it there are not proper limits.
The Texas Court of Appeals, Third District, handed down a decision on April 1, 2010, affirming a judgment against a homeowner and in favor of the homeowners insurance company. The style of the case is, William D. Bryce and Sarah R. Bryce v. Unitrin Preferred Insurance Company and Evans, Ewan & Brady Insurance Agency, Inc.
The Bryces' home was built in 1889 and is located in a registered historic district. The Bryces purchased the house in 1983 for $210,000 and immediately invested approximately $242,000 in renovations, bringing the total purchase and renovation cost to approximately $452,000. In April 2006, a fire destroyed the Bryces' home. As a result of the fire, Unitrin Preferred Insurance Company (Unitrin) paid the Bryces their full policy limits of $474,000 for the dwelling and $284,400 for the contents of the home. The problem here is that the home replacement value cost was approximately $1.7 million and the contents approximately $864,000. From the time of the purchase until some time after the fire, the Bryces used Evans, Ewan & Brady Insurance Agency, Inc. (EEB) as their insurance agent.
The history from the purchase date in 1983 til the fire is long and well documented regarding the value of the home and the efforts of other insurance companies and their adjusters in attempting to properly value the home and it's contents. There was also lots of evidence about efforts by the Bryces in trying to limit the amount of money they were paying for homeowners insurance.
The Bryces sued Unitrin and EEB for violations of the Texas Insurance Code and the Texas Deceptive Trade Practices Act for allegations that Unitrin and EEB failed to properly insure the Bryces' home and contents. The Texas Supreme Court has stated that "an insurance agent who undertakes to procure insurance for another owes a duty to a client to use reasonable diligence in attempting to place the requested insurance and to inform the client promptly if unable to do so." Relying on this language, the Bryces argued that by allowing their home to be insured for less than its full replacement cost, EEB failed to obtain the requested coverage and therefore should have informed them of its inability to do so. The Bryces further argued that the Supreme Court standard should apply to insurance carriers as well, so both Unitrin and EEB breached a duty to inform the Bryces that they were underinsured.
In response, this Court said the Supreme Court did not create a duty on the part of either an agent or an insurance company to monitor a homeowners policy to ensure that the requested coverage is adequate. The Court further stated that it is not necessarily the case that a replacement cost policy covering less than 100% of the replacement cost of the dwelling is inadequate, as Unitrin's expert witness testified that it is widely accepted in the insurance industry that a homeowner might choose to insure their home at less than the full replacement cost, particularly if the homeowner wants to reduce their insurance premiums, as was the case here.
The Court said that the record is clear that Unitrin did not set the Bryces' policy limit, but simply adopted the dwelling coverage amount requested by the Bryces on their application. Similarly, the Court said, the evidence reflects that Unitrin did not negligently maintain or fail to correct the replacement cost limit, as it was up to the Bryces to make any desired adjustments to their replacement cost coverage.
A final point the Court relied upon was the annual renewal letters from EEB to the Bryces, directing them to review the coverage limits on their policy and notify EEB immediately if the coverage amounts were insufficient.
This case result was hard news for the Bryces and an alert to other homeowners to make sure they have adequate coverge for the loss of their home and contents. It should be noted that all cases have their own fact pattern and issues and that whenever a loss is incurred an experienced Insurance Law Attorney should be consulted.

Homeowners in Grand Prairie, Arlington, Weatherford, Fort Worth, Mansfield, Dallas, and the rest of the State of Texas, need to have a basis understanding of homeowners policies when it comes to buying homeowners insurance. There a several different types of homeowners policies available for the Texas consumer.
Because of "form deregulation", insurance companies now may offer approved alternative policies. There are differences in coverage, which may be significant. These different forms have been the source of much confusion for consumers looking to purchase a homeowners policy. A tool for comparing coverage is provided by the Office of Public Insurance Counsel. This a good resource for consumers to look and compare the various policies being offered by insurance companies. It is a good way to make sure apples are being compared with apples and not with oranges.
The most common policy is the Texas Homeowners Policy -- Form B (HOB). This article is briefly discussing only the HOB.
The HOB policy is an "all-risks" policy with respect to any loss on the dwelling and a "named peril" with respect to any loss to the contents. A note of caution here: Some insurance companies label their policies "all risk", when in fact they are not. Texas courts have been reluctant to hold the insurance companies who do this, liable for violations of the Texas Deceptive Trade Practices Act (DTPA). This topic is discussed in the case, Muniz v. State Farm Lloyds, a 1998, San Antonio Court of Appeals.
Property coverage in the HOB policy is separated into Coverage "A", which insures the house, and Coverage "B", which insures the contents. Separate structures, such as garages and sheds are also insured under Coverage "A".
Contents, or personal property, under Coverage "B" can be expensive and each policy needs to be read to see the different ways these contents are covered. One relevant part of Coverage "B", is understanding the limits of coverage for certain items, such as jewelry, cash, guns, etc.
A part of each policy is going to list items or types of items that are not covered in the event of a loss. Exclusions under Coverage "B", usually includes things like animals, mowers, golf carts, trailers, etc.
Another distinction between Coverage "A" and "B" is that "A" covers losses as the result of all risks unless specifically excluded. "B" only covers twelve specific causes of loss. The Texas Department of Insurance usually has an example of a HOB policy on its web-site.
The HOB Policy contains fifteen exclusions. A few of these include "inherent vice" which is loss from internal decomposition, losses from mold and fungus, foundation settlement, cracking, bulging, shrinking, etc. With these types of losses it is important to get a copy of your policy and contact an experienced Insurance Law Attorney. He or she should be able to read the policy and compare the wording in the policy with the actual facts occurring with the house and determine whether or not the policy should cover the damages.
An HOB policy covers losses that are incurred while the policy is in force. This is the case even if the loss is not discovered until after the policy has expired. Relevant here is what is called in Texas law as the "Fortuity Doctrine". Fortuity is an inherent requirement of all risk insurance policies. This concept is discussed in the case, Two Pesos, Inc. v. Gulf Insurance Company, which is a 1995 case decided by the Texas Appeals Court in Houston, 14th District.
Sometimes a loss to a dwelling occurs from two events. One of the events is covered by the policy and the other is not. The question then is, How is that handled? The answer seems to be in Texas Insurance Code, Sections 554.001 to 554.002. These sections, adopted in 2005, seem to put the burden on the insurance company of proving how the division of the loss is allocated. Prior to these Insurance Code sections, the law seemed to put the burden of proof on the customer.
The HOB policy defines what a policyholder's duties are after a loss and for the most part are common sense requirements. Where this part gets dangerous is when the insurance company starts questioning the policyholders truthfulness or culpability in the loss. Regardless of what may have actually happended, this is where legal help needs to be sought.
Finally, the HOB policy is going to have an appraisal clause in it. It's intent is to serve as a contractual form of alternative dispute resolution in the event of a dispute between the insurance company and their customer. There are some important legal requirements here that only an experienced Insurance Law Attorney is going to be able to effectively work around.

The topic of this piece is a case that arose out of Mansfield, Texas. The case could have just as easily arisen in Arlington, Grand Prairie, Fort Worth, Dallas, or out in Weatherford.
The Fort Worth Star-Telegram published a story about a claim against a home builder for the builders faulty construction work.
Even when a claim is against a home builder for mistakes in the construction of the home, often times the same claim can be made against the insurance company that insures the home. The advantage of claiming against the home owners insurance is to, hopefully, get the matter resolved quickly rather than get involved in an extensive and long drawn-out court battle with the builder. Of course, sometimes it is just the opposite.
The title of the article is, "Jury Awards $58 Million to Mansfield Couple In Home Builder Lawsuit". The article tells that the lawsuit lasted almost a decade.
The Mansfield couple had purchased their home from their builder, Perry Homes, and also involved in the lawsuit was a home warranty company. They also included in the lawsuit, their insurance company, Warranty Underwriters Insurance Company, a Houston company.
The couple had paid nearly $234,000 and was the only new home the couple had ever had. They had bought it for their retirement after moving from a home in Arlington they had lived in for 25 years, and where they had raised their three children.
After moving into the home in 1996, problems became apparent by the following January. A representative for Perry Homes assured them that the home was just settling and that everything would be ok. However, cracks kept appearing in walls, and doors and windows jammed shut. They also discovered that a drainpipe that was punctured during construction had soaked a kitchen wall, requiring them to move out for several months while mold was removed.
This case was submitted to arbitration in 2001 where Perry Homes lost. They appealed and the case was again arbitrated in 2002, where Perry Homes lost again. Perry Homes then appealed to the Texas Supreme Court where the case was sent back to the trial court and the verdict resulted.
Home claims are in a classification to themselves. Home claims also involve insurance claims and claims against the builder for violations of the Texas Deceptive Trade Practices Act. It is important to get an attorney involved early when having disputes related to homes. This same advice applies to used / older homes the same as to new ones and also to major reconstruction, such as after a fire or flood.

If a Grand Prairie resident buys a new home, 95% of the time he is also going to be required to purchase a title insurance policy. This would be the same for a resident of Arlington, Dallas, Fort Worth, or Weatherford.
The Texas Supreme Court decided a case in 1994 that is relavent to home buyers and purchasers of title insurance policies. The case is styled, Chicago Title Insurance Company v. Jerry E. McDaniel and Christina W. McDaniel.
This case involves a claim against Chicago Title Insurance Company for violations of the Texas Deceptive Trade Practices Act (DTPA). The McDaniels purchased a title insurance policy issued by Chicago Title. The policy guaranteed the McDaniels had good and indefeasible title to the estate or interest in land described in the policy, which was the home they had purchased. This was in 1983.
In December 1988, the McDaniels received notice from the bankruptcy trustee of Couch Mortgage that their property was subject to a preexisting lien that had been properly filed and recorded. There were later federal bankruptcy court actions.
The McDaniels brought the lawsuit seeking damages under the DTPA, based on Chicago Title's representations. Chicago Title then secured the release of the preexisting lien.
Chicago Title asserted that it had discharged its obligations under the title insurance policy, and that it cannot be liable under the DTPA because it had made no representations regarding the status of the title to the McDaniels' property.
The Supreme Courts' ruling was that "A title insurance policy is a contract of indemnity. In other words, the only duty imposed by a title insurance policy is the duty to indemnify the insured against losses caused by defects in title." Thus, Chicago Title's issuance of a policy did not constitute a representation regarding the status of the property's title; rather it constituted an agreement to indemnify the McDaniels against losses caused by any defects.
The Court further ruled that a title insurer may be liable under the DTPA for an affirmative representation that is the producing cause of damages to the insured. But, in the present case, there is no allegation of any such affirmative representation. Nor is there any allegation that Chicago Title breached its duty under the contract, or that it may be liable to the McDaniels in any other respect apart from the DTPA.
It appears in this case that the lawsuit was limited in the matters that were sued upon. An experienced Insurance Law Attorney may have been able to assert other causes of action or been more expansive in the DTPA claims. Title companies usually do a good job in making sure title to property is properly researched. Most of the time the property is somebody's home. At the least, the property would be a big investment for somebody. On the occassions that a problem is encountered it is important to seek legal help to insure your rights are protected.