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.

What if someone in Grand Prairie, Arlington, Duncanville, Mansfield, Burleson, Weatherford, Fort Worth, or some other city in Texas is involved in an accident, as an employee, with an underinsured driver? Does the employers underinsured portion of their insurance policy provide coverage?
This was the issue in a May 12, 2010 case decided by District Judge, T. John Ward, of the United States District Court, E.D. Texas, Marshall Division. The style of the case is, Dean and Parwana Amanzoui, Individually and as next friends of Fahim Amanzoui and Sabrina Amanzoui v. Universal Underwriters Insurance Company.
In this case, Parwana Amanzoui (Parwana) was riding in an automobile driven by her husband, Dean Amanzoui, and owned by her husband's employer, the Huffines Automotive Group (Huffines). At the time of the accident, Huffines carried its insurance with Universal Underwriters Insurance Group (Universal) pursuant to a multiple coverage policy. Coverage under the policy for underinsured motorist (UIM) was limited. "Insureds" for purposes of UIM coverage was expressly limited to three categories of persons: (1) persons designated on the declarations as subject to the UIM policy, (2) family members of persons designated in the UIM policy, and (3) persons occupying vehicles driven by someone falling within category no. 1 or no. 2. It was uncontested that Parwana was not included in this list.
Texas Insurance Code, Section 1952.101, was relied on by both sides of this case.
The material facts in this case were not in dispute. The sole issue was whether the policy language above provided coverage to Parwana.
Citing Section 1952.101, Parwana argued that Texas law does not allow Huffines to accept liability coverage for its "friends and family" while excluding occupants of otherwise covered vehicles and individuals who are otherwise "insured" under the policy. Thus, Universal's efforts to impose restrictions not found in the statute are improper and ineffective as attempts to void or narrow the scope of insurance coverage specified by the Texas legislature in drafting the statute.
The finding of this Court was that the policy was clear and unambiguous that Parwana was not entitled to recover UIM benefits. The Court explained by saying that Parwana can only be an insured if she qualified as an individual designated in the declarations, a family member of such individual, or a passenger in a covered auto driven by these individuals. She did not qualify.
The Court found that if Huffines had the legal right to reject the UIM coverage in toto per Section 1952.101, that it had the right to restrict UIM coverage to selected individuals. Further, the Texas Supreme Court, in a 1997 case, Grain Dealers Mutual Insurance Company v. McKee, has held that it is not against public policy to limit UIM insureds to certain individuals.
The important point in this case was the ruling by the Court that certain persons can, pursuant to the insurance contract, be covered by UIM coverage while others are excluded from the same coverage.
Whenever this isssue comes up, it is important to carefully read the policy.

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.

If you live in Grand Prairie, Aledo, Arlington, Mansfield, Fort Worth, Azle, Weatherford, or anywhere else in Texas and you have car insurance, you were given the chance to purchase underinsured motorist coverage on your automobile. So, how does it work?
An example of how some of it works is explained in the case, Lilith Brainard, et al. v. Trinity Universal Insurance Company. This is a 2006, Texas Supreme Court case.
This case had three main issues: (1) whether underinsured motorist (UIM) insurance covers prejudgment interest on monies the wrongdoer owes; (2) if so, how to apply settlement credit to the calculation; and (3) how does the insured recover attorneys fees.
In this case, Edward H. Brainard was killed in a head-on collision with a rig owned by Premier Well Service, Inc. This occurred on July 1, 1999. His widow and children filed suit against Premier and sought UIM benefits against their own insurer, Trinity Universal Insurance Company. Trinity paid $5,000 in PIP benefits under the policy but wanted more information before paying UIM benefits.
On December 7, 2000, Brainard settled with Premier for policy limits of $1,000,000. Brainard then demanded the policy limits under the Trinity policy of $1,000,000, which Trinity refused to pay. The case went to trial and a jury awarded Brainard $1,010,000. The jury also awarded $100,000 for attorney's fees.
The court applied a credit for Trinity for the $1,000,000 Premier had paid, plus a credit of $5,000 paid by Trinity under the PIP benefit. The court also awarded the attorney's fees but no money for prejudgment interest.
As to the prejudgment interest issue -
Texas Insurance Code, Section 1952.106, mandates that Texas motorists be offered UIM coverage to:
provide for payment to the insured of all sums which he shall be legally entitled to recover as damages from owners or operators of underinsured motor vehicles because of bodily injury or property damage in an amount up to the limit specified in the policy, reduced by the amount recovered or recoverable from the insurer of the underinsured motor vehicle.
Trinity did not dispute that it owed interest on the $5,000 above the credit it received ($1,000,000 on Premier's payment and $5,000 on the PIP payment) but said it did not owe on the entire amount. In stating the law, the court said, prejudgment interest is awarded to fully compensate the injured party, not to punish the defendant. By statute, a judgment in a wrongful death, personal injury, or property damage case earns prejudgment interest. Texas Finance Code, Section 304.102.
After a couple of pages of interesting and informative discussion the court held that UIM insurance covers prejudgment interest that the underinsured motorist would owe the insured.
As to the calculation of prejudgment interest issue -
According to Texas Finance Code, Section 304.104, prejudgment interest began to commence when the lawsuit was filed on January 19, 2000, when Brainard filed suit and continued til the day of judgment, January 15, 2003.
After much discussion the court ruled that Brainard was entitled to prejudgment interest but not for the $5,000 PIP payment previously made. Plus the amount owed is reduced by the interest that would have accrued on the $1,000,000 Premier paid, on the date it was paid. The remaining $5,000 of the judgment would have interest owed on it until paid. The Supreme Court remanded this issue to the trial court to calculate dates to fully determine the amount owed. The explanation is involved but not that complicated.
As to the attorney's fees issue -
Chapter 38 of the Texas Civil Practice & Remedies Code allows for recovery of attorney's fees in breach of contract cases. The court stated that, "an essential element to recovery of attorney's fees under Chapter 38 in a suit based on contract is the existence of a duty or obligation which the opposing party failed to meet." The court went on to say that a UIM insurer is under no contractual duty to pay benefits until the insured obtains a judgment establishing the liability and underinsured status of the other motorist. So, until the UIM insurer refuses to pay after the liabilty and underinsured status has been established, they have not breached their contract and thus do not owe attorney's fees.
This is a case that is a big victory in the courts for insurance companies. What is important to realize is this is only applicable to underinsured and uninsured motorist cases. Almost all other insurance cases where the insurance company does not properly handle the claim, they are going to be liable for the attorney's fees.

What if a resident of Grand Prairie is involved in a wreck on his motorcycle with an uninsured driver? Any difference if he is a resident of Fort Worth, Arlington, or Dallas? Answer - not for anyone in Texas.
This is what happened in the 1987 case, Glen Arnold v. National County Mutual Fire Insurance Company. This Texas Supreme Court case is an insurance contract dispute. Arnold was severly injured when the motocycle he was operating was struck by an uninsured motorist. Arnold had uninsured motorist benefits protection on the policy he had with National County Mutual Fire Insurance Company (National). Arnold made a demand for payment and the independent adjusting firm hired by National recommended the claim be paid. In spite of this, National refused to pay.
Arnold sued and won a judgment exceeding the policy limits then sued National for breaching its duty of good faith and fair dealing.
National had refused to initially pay benefits because they believed that potential jurors would be prejudiced against Arnold because he was a "motorcyclist."
In this case, Arnold raised the issue of whether there is a duty on the part of insurers to deal fairly and in good faith with their insureds. The court held that such a duty of good faith and fair dealing did exist. The court stated, "While this court has declined to impose an implied covenant of good faith and fair dealing in every contract, we have recognized that a duty of good faith and fair dealing may arise as a result of a special relationship between the parties governed by a contract." This was stated in the 1984, Texas Supreme Court case, Manges v. Guerra.
The court further stated, "In the insurance context a special relationship arises out of the parties' unequal bargaining power and the nature of insurance contracts which would allow unscrupulous insurers to take advantage of their insureds' misfortunes in bargaining for settlement or resolution of claims. In addition, without such a cause of action insurers can arbitrarily deny coverage and delay payment of a claim with no more penalty than interest on the amount owed. An insurance company has exclusive control over the evaluation, processing, and denial of claims. For these reasons a duty is imposed that an indemnity company is held to that degree of care and diligence which a man of ordinary care and prudence would exercise in the management of his own business." This in part cites the famous Stowers case.
An expereinced Insurance Law Attorney is going to be familiar with this case and others like it. In this regard, he is in position to give advice on the facts he may be presented with by clients having difficulties with their insurance company.

What if you live in Fort Worth, Arlington, Grand Prairie, Dallas, Weatherford, or any other town in Texas and you are in a wreck with a drunk driver? Can you get punative damages from your ininsured / underinsured (UM) insurance policy because the other person was drunk at the time of the accident?
This is one of the issues in the case, Suzanne Vanderlinden v. United Services Automobile Association Property and Casualty Insurance Company. This case was decided in 1994, by the Texarkana Court of Appeals.
In this case Vanderlinden was injured in a car wreck caused by a drunk driver. At the trial of this matter the trial judge would not let Vanderlindens' attorney submit a jury question to the jury asking for punative damages due to the other driver being drunk. Vanderlinden was sueing her own insurance company, United Services Automobile Association Property and Casualty Insurance Company (USAA) to recover monies by way of the underinsured motorist coverage portion of her insurance policy with USAA. The Texarkana Court cited an 1849, Texas Supreme Court case saying, "Punative damages are typically not to compensate a damaged plaintiff for his injuries; rather, they are to discourage the defendant from continuing his heinous activities and to likewise discourage others from similarly misbehaving." Thus, the issue in this case is whether an injured person may obtain punative damages from the injured persons insurance company through the underinsured motorist clause.
The policy language says the insurer will:
... pay all sums which the insured ... shall be legally entitled to recover as damages from the owner or operator of an automobile ....
The court also noted that the Texas Insurance Code, Section 1952.101, requires this UM coverage to be made available in all automobile insurance policies.
Furthermore, the Texas Insurance Code is to be liberally construed to give full effect to the policy which led to its enactment and the court is to review the statutory definition of exemplary damages as "any damages awarded as an example to others, as a penalty, or by way of punichment," See also the Texas Civil Practices & Remedies Code, Section 41.001(3).
In the courts' ruling they stated; "Most states that have expressly considered this question have held that in this context an insurance company should not be liable for punitive damages because to allow such recovery would be antithetic to the acknowledged purpose to be served by rendition of such damages."
In reaching this conclusion the court cited and took the reasoning from the following"
1) Milligan v. State Farm Mutual Ins. Co. - Houston 14th Court of Appeals - 1997,
2) State Farm Mutual Ins. Co. v. Shaffer - Houston 1st Court of Appeals - 1994
3) Government Employees Ins. Co. v. Lichte - El Paso Court of Appeals - 1991

Grand Prairie policy holders, Arlington, Fort Worth, Weatherford, or anybody else in Texas who has a policy with underinsured motorist coverage (UIM) should be aware of a recent case decided in Texas.
The case is Mid-Century Insurance Company of Texas v. Synthia McClain. This case was an appeal from the 42nd District Court in Taylor County, Texas. The appeal was heard by the Eleventh Court of Appeals and an opinion was issued on March 11, 2010.
The facts are pretty simple. Synthia was injured in a wreck caused by Becky Morey. Becky had insurance which paid to Synthia the policy limits of $20,100. Synthia, then made a claim against her own insurance company, Mid-Century Insurance Company of Texas (Mid-Century), for UIM benefits. Synthia's policy with Mid-Century provided UIM benefits of $20,000. Mid-Century had already paid the personal injury payments limits of $2,500 and Mid-Century made an offer of $1,500 additional money. Synthia then filed this lawsuit to recover the full measure of her damages.
A jury found that Becky's negligence was the cause of the accident and awarded Synthia $116,726. Mid-Century then offered its limits of $20,000. This appeal discusses the requirements for recovery of UIM benefits from a legal perspective.
The long established law in Texas is that a plaintiff seeking recovery against an insurance company for UIM benefits resulting from the negligence of an UIM motorist must prove and plead that, at the time of the accident, the plaintiff was protected by UIM coverage. In other words, the policyholder must prove the existence of the insurance contract between the policyholder and the insurance company.
Next, the policyholder must prove that the policyholder is entitled to recover under the UIM policy by establishing the other person was liable and must prove the amount of damages resulting from the other persons actions. Until this is done, the insurance company is under no contractual duty to pay benefits. Finally, the claimant must prove the atfault driver was underinsured.
Synthia's attorneys, in this lawsuit and appeal tried to shift some of the burdens of proof in this case to Mid-Century. Synthia's attorneys argued that Mid-Century was required to plead, as affirmative defenses, the policy limits and any offset such as the credit Mid-Century would get for the policy limits of Becky and the amounts Mid-Century had already paid under the personal injury protection benefits portion of the policy. And since Mid-Century did not do as Synthia's attorneys argued they should have done, that Mid-Century was responsible for the full amount of the judgement, plus interest and costs.
There were other issues in the case dealing with how the jury reached amounts dealing with lost wages and amounts for future medical expenses. The court of appeals found in favor of Mid-Century on these issues.
The more important part of this case relates to how an insurance policyholder who has UIM benefits on their policy has to prove their case in order to legally recover these benefits. It is unfortunate but also a reality that an insurance company can easily force a policyholder to seek the help of an experienced Insurance Law Attorney in order for the policyholder to protect their rights.
In conclusion the court re-stated what must be proven in order for a policyholder to be entitled to recover UIM benefits - (1) that the policyholder had UIM coverage: (2) that the other driver was at fault and caused the damages being sought; and (3) that the other driver was, in fact, underinsured. All of this may initially seem easy, but as the parties involved in this case discovered, it is not always as easy as it seems.

Whether you live in Weatherford, Texas, Grand Prairie, Arlington, Mansfield, Dallas, or Fort Worth, the answer to the above would be the same. Texas insurance law is going to apply to all residents of Texas, no matter where in the state they live.
Of course there is no one answer to the above title. The answer depends on the policy and the fact situation. A case decided in 1992, gives some insight into a scenario that is fairly common across the state.
The case, Margot Bergensen v. Hartford Insurance Company of the Midwest and Harry Bergensen, was decided by the 1st Court of Appeals in Houston, Texas. Here are the relevant facts.
Hartford Insurance Company of the Midwest (Hartford) issued a policy to the Bergensen's that was in effect for the relevant period of time. The policy provided liability coverage of $100,000 and underinsured coverage. Margot Bergensen (Margot) was severly injured in an accident in her covered automobile that was driven by her husband, Harry Bergensen (Harry). Harry was at fault and Hartford paid Margot $100,000 under the liability portion of the policy. Margot then made a claim against Hartford for coverage through the underinsured portion of the insurance policy with Hartford and Hartford denied the claim for the underinsured benefits.
The relevant portions of the policy, which are the same in most but not all policies of insurance in Texas, read as follows:

We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person, or property damage, caused by an accident. The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.
...
"Covered person" as used in this Part means: 1. You or any family member:
"Uninsured motor vehicle" means a land or motor vehicle...
4. Which is an underinsured motor vehicle. An underinsured motor vehicle is one to which a liability bond or policy applies but its limit of liability:
a. is less than the limit of liability for this coverage; or
b. has been reduced by payment of claims to an amount less than the limit of liability for this coverage.
However, "uninsured motor vehicle" does not include any vehicle...
1. Owned by or furnished or available for the regular use of you or any family member.

The "does not include" language two lines above here is relevant. The court in its opinion stated, "The underinsured motorist provision of the contract explicitly states that it does not apply to vehicles "owned or furnished or available for the regular use of you or any family member."
The court went on to say that "the negligence of others" language in the insurance policy refers to the negligence of persons who are "not" members of the policyholder's family, and so, does not apply to her husband, Harry.
The court in conclusion said that the Bergensens contracted with Hartford for a policy which provided a maximum of $100,000 in liability coverage. The underinsured portion of the policy was intended to protect the Bergensens from "other" motorists who failed to have adequate coverage "on their vehicles", not to protect the Bergensens from their own failure to maintain adequate liability coverage.
This case is still good law and has been cited as authority in two Fort Worth Court of Appeals cases. One on 12-18-08 and another on 7-30-09. The Houston Court of Appeals in Houston cited it again on 4-17-08.
There are exceptions to the ruling in these cases. An experienced Insurance Law Attorney would be able to look at the facts in a case and apply the current law and give a good opinion as to what should be done any particular case.

Grand Prairie, Arlington, Mansfield residents and residents of Dallas, Fort Worth, and Weatherford who have uninsured and underinsured motorist coverage on their automobile insurance policy should fill good about a case decided by the Texas Supreme Court in 1974. The case is styled, Raul C. Franco et ux. v. Allstate Insurance Company.
The facts of this case are fairly short and simple. Raul C. Franco and his family (Franco) had uninsured motorist benefits in an insurance policy they carried with Allstate Insurance Company (Allstate). An accident occurred wherein Franco suffered injuries and his daughter was killed. The accident was caused by the negligence of an uninsured driver. Franco made a claim for benefits from Allstate and eventually three years later sued Allstate.
Allstate denied the claim and asked the court to dismiss the lawsuit. Allstate asserted that a claim for the wrongful death of his daughter and the claim for his injuries, were both governed by a two year statute of limitations. Allstate claimed that because the two years had passed, it was too late for Franco to be seeking recovery.
Franco asserted that the policy of insurance with Allstate was a contract and that contracts are governed by a four year statute of limitations. The statute concerning limitations for a contract is currently found in the Texas Civil Practice & Remedies Code, Section 16.004. It says a lawsuit for breach of contract must be filed within four years after the cause of action for the breach occurs.
The statute of limitations for a personal injury is two years. This statute governing the limitations period for personal injury is found in the Texas Civil Practice & Remedies Code, Section 16.003. This same statute also governs time limits for filing a wrongful death claim.
Allstate's arguement was that Franco could not file a claim against the uninsured driver after two years because the statute of limitations for a lawsuit against the uninsured driver had expired. In this regard, Allstate was right. As an extension, since the uninsured driver could not be sued, Allstate claimed it could not be sued.
The Texas Supreme Court disagreed. The claim against Allstate was a claim on the contract of insurance between Franco and Allstate. Thus, they ruled that the limitations period was four years, not two.
It is important that an experienced Insurance Law Attorney be consulted in these matters. The reason, is there are different beginning points for when the statute of limitations begins to start on a claim. There can be situations where well over four years has expired and a claim can still be made against an insurance company. Each case has its own specific set of facts that have to be looked at in light of the law to fully understand the rights a person may have in a situation.

It is always smart to purchase uninsured motorist benefits coverage because of the number of people driving around with no insurance or insufficient insurance to cover a lot of losses that occur. This is particularly true in the Grand Prairie, Arlington, and Dallas - Fort Worth areas of Texas.
Uninsured or underinsured motorist coverage is required to be provided to drivers purchasing auto coverage in Texas. This requirement is found in the Texas Insurance Code, Section 1952.101.
The Court of Appeals, Texarkana, Texas, recently ruled in a case involving underinsured coverage benefits. The style of the case is Myrtis Williams v. State Farm Mutual Insurance Company. This case was decided on February 5, 2010.
The facts of this case are important to understanding the ruling of the court. Richard Conner was the only named insured in a State Farm Mutual Insurance Company (State Farm) policy. The policy covered a 2002 Cadillac Escalade. The address listed on the insurance policy for Conner was 1903 Circle Drive in Marshall, Texas. The listed drivers were Conner and his girlfriend Rewa Hubbard. The Escalade was titled to Hubbard.
Myrtis Williams, the claimant in this lawsuit, resided with Hubbard at 2505 West Francis Street in Marshall. Williams was involved in a wreck while driving her 1998 Lincoln Town Car. The other driver, who was at fault, did not have sufficient insurance to cover the loss to Williams. Williams then made a claim against Conner's, State Farm policy. State Farm denied the claim.
The court ruled in favor of State Farm. In doing so, the court analysed the policy and the facts of the case. In analysing the policy language, the court found that a "covered person", within the definitions of the policy, must fall within one or more of these categories: (1) the named insured shown in the declarations, (2) a family member of the named insured, or (3) any other person occupying the covered vehicle.
As to number (1); Williams was clearly not the named insured, Conner was. As to number (2); Williams was not a family member of the named insured, Conner. Her family relationship was mother to Hubbard. As to (3); Williams was not occupying the covered automobile. The covered automobile was Conner's Escalade. Williams was driving her own vehicle, the Lincoln Town Car.
There were a few legal reasons that attorneys for Williams probably relied on for finding a way to get coverage for Williams. Their efforts were laudable but a little too detailed to get into here. An experienced Insurance Law Attorney is helpful in seeing if a case has merit. No one wants to waste time, money, or effort in a losing cause. For that reason it is important to have these cases looked at and analysed.
It is noteworthy that the policy at issue here was one in the form prescribed and approved of by the Texas Department of Insurance.

Punative damages and "exemplary" damages are essentially the same thing in Texas. The way exemplary damages works in Texas is the same regardless of whether you live in Arlington, Grand Prairie, Fort Worth, Dallas, or Weatherford.
The Texas Court of Appeals in Houston, Texas, recently dealt with the issue of how exemplary damages are handled when the claim made is a claim against a person's own insurance carrier for uninsured motorist benefits. This case was decided on February 4, 2010. The style of the case is, Sandra Gervais Laine, v. Farmers Insurance Exchange.
In this case Laine's mother was killed in an auto accident. The other driver was at fault and was intoxicated. Laine made a claim against Farmers Insurance Exchange for benefits under her uninsured motorist benefits portion of the auto policy. Farmers paid the uninsured benefits limit of $250,000. She then made a claim against her umbrella policy which provided the same benefits as the auto policy except for a higher amount. The limit under the umbrella policy was $1,000,000.
Farmers denied the claim under the umbrella policy and Laine sued Farmers. A jury found the uninsured driver at fault and assessed actual damages of $175,000. The jury then found exemplary damages in the amount of $1,500,000 as punishment against the intoxicated driver. The trial Judge overruled the jury's verdict against Farmers on the exemplary damages. The appeals court affirmed the Judge's ruling.
The Judge's looked at the policy language and public policy considerations in making their decision. The policy defined damages as "the total of damages that the insured must pay (legally or by agreement with our written consent) because of bodily injury, personal injury or property damage caused by an occurrence covered by this policy..." The policy goes on to talk about "bodily injury". The policy is silent on the issue of exemplary damages. The court held that exemplary damages are amounts in excess of actual damages. And it did not matter that the policy did not contain an exclusion for "damages which are punitive or exemplary."
As for public policy considerations, the Texas Supreme Court has rejected as against public policy, coverage under uninsured motorist policies, when the insured seeks to recover from his own insurer exemplary damages assessed against a responsible third party wrongdoer. Further, that both public policy and the language contained in the Insurance Code and the Motor Vehicle Safety Responsibility Act, limit recovery under an uninsured motorist policy to compensatory damages. Here, the court cited the Texas Insurance Code, Section 1952.001 and Texas Transportation Code, Sections 601.001 - 601.054, and stated that this policy does not support rendering damages against an insurance company since neither deterrence of wrongful conduct nor punishment ... of the wrongdoer is achieved by imposing exemplary damages upon the insurance company.
To further affirm their position, the court looked to Chapter 41 of the Civil Practice and Remedies Code as further indication that the punishment imposed through exemplary damages is to be directed at the wrongdoer. And, the Texas legislature ensured that persons injured by uninsured motorists be compensated for their actual injuries, when they enacted Section 1952.101, Texas Insurance Code.

Here is a situaton where a Dallas resident had a wreck in Mesquite, but it could have been Fort Worth, Arlington, Grand Prairie, or out in Weatherford. The injured persons had two insurance policies with the same insurance company.
This happened in a 1984 case, The Travelers Indemnity Company of Rhode Island, v. Lenny and Terri Lucas. Mr. Lucas was accompanied by his wife, Ms. Lucas, in an ambulance. A drunk driver ran head-on into the ambulance causing injuries to the Lucas'. They had two separate insurance policies with Travelers Indemnity, for Personal Injury Protection benefits and underinsured motorists benefits. Travelers paid the full amount under one policy to each of the Lucas' but refused to pay under the second policy. The damages to the Lucas' exceeded the limit of both the policies combined.
The ambulance also had underinsured benefits with a policy through Aetna. Travelers tried to limit what it had to pay by citing an "Other Insurance" clause within the Travelers policy.
The court ruled that an insurance company may not reduce its underinsured liability to an amount less than the policy limit by crediting itself an amount paid under another policy. The same ruling was made regarding payments made for Personal Injury Protection benefits.
A case decided in 2007, was essentially the same. The 2007 case was Kelley v. Progressive County Mutual Insurance Company.
Here, Kelley was injured by a motorist while riding her horse and her claim exceeded $1,000,000. She received the policy limit of $100,000 from the at fault driver and then received the limit of $500,000 under a policy issued to her by Progressive. However, on a policy issued to her father by Progressive, which also named her, Progressive refused to pay. Progressive asserted a policy provision that prohibited "stacking" the policies and argued that her recovery was limited to just one of the polices.
The court noted that the policies were separate policies, with separate policy numbers and separate vehicles listed. Just because Progressive issued both policies to members of the same family did not allow Progressive to prevent a "stacking" of these policies.
There are situations where an insurance company may not have to pay where there is duplicate coverage. When there is more than one policy that may cover a claim it is important to seek the advice of an Experienced Insurance Law Attorney to insure your rights are properly protected.

Residents of Dallas, Fort Worth, Arlington, Grand Praire, Weatherford, or any other town in Texas should be interested in a question posed by an attorney the other day on a web-site, to other attorneys who sub-scribed to the site. It was a question dealing with uninsured and underinsured (UM) automobile coverage.
In the situation, a potential client had come into the attorneys office. The potential new client had been involved in an accident where the other person did not have enough insurance coverage to fully cover the damages this potential new client had suffered. Sounds simple so far. Here was the problem: More than two years had past since the accident had occurred. The question posed was: Can I recover more money from the UM coverage on the injured persons automobile policy.
This was the issue in the case Raul C. Franco et ux., v. Allstate Insurance Company. In the Franco case, Franco sought to recover damages due to the death of their daughter in an automobile accident. The lawsuit had been filed approximately three years after the date of the accident. The applicable statute of limitations for an injury claim was two years.
In the Franco case, the lawsuit had been filed against Allstate Insurance Company because of the accident but the basis for the claim against Allstate was the policy of insurance issued by Allstate. A policy of insurance is a contract between the insurance company and the insured. The statute of limitations on a contract claim is four years.
Allstate argued, among other things, that because the two year statute of limitations had expired on the accident, that the claim against Allstate that originated out of that wreck, was also barred by the two year statute of limitations. The Texas Supreme Court disagreed with Allstate and ruled in favor of the Franco family members stating that the claim against Allstate was a contract claim and thus the four year statute of limitations applied.
What is to be learned here is two-fold. First, a claim for UM benefits under an insureds' own insurance policy is four years, not two. Second, not discussed in the case but important is the extent of the recovery.
If the other driver had insurance, for instance a liability policy of $20,000, and the injured person had underinsured coverage of $20,000, and a claim whose value was estimated to be $30,000, what would have happened? The answer would be, that because the two year statute had expired for making a claim against the other guys policy and the claim was now only against the injured persons' underinsured policy, the total recovery would be limited to $10,000. Why? Because the underinsured policy would get a credit for the $20,000 that would have been recovered from the other drivers liability policy.
This can be confusing. It illustrates though, why it is important to get an Experienced Insurance Law Attorney involved early in a case in order to fully compensate a person who is trying to make claims against an insurance company.

Here is a case that was originally filed in a State District Court in Dallas, Texas. The case was removed to Federal Court and promptly dismissed.
The style of the case is "Kenneth McQuinne v. American Home Assurance Company". The only important issue in the case was whether or not a self insured vehicle was "uninsured" for purposes of the American Home Assurance Company policy argued about in this case.
The facts in this case are that McQuinne was involved in a wreck with a person named Sapkota. Sapkota was driving a vehicle owned by Enterprise Leasing. McQuinne reached a settlement with Sapkota's insurance company for the policy limit of $50,000. McQuinne alleged that his damages exceeded that amount and consequently filed a claim with American seeking additional benefits under the policy American had issued on his employer, Turfgrass.
The American policy excluded uninsured motorist coverage for vehicles that were self-insured. The Enterprise vehicle was self-insured. McQuinne argued that since the Enterprise was self-insured that it was uninsured and thus American should be made to pay benefits under the uninsured portion of the policy.
American argued that the Enterprise was a self-insurer under the Texas Motor Vehicle Safety Responsibility Act. As such the car is expressly excluded from coverage under the policy.
The court got into an analysis of contracts, insurance policies, and the words used in the context of both. They decided that as a matter of law that American won the case.
This case points out the creative efforts of the attorney for McQuinne to try and obtain relief for his client. It also restated contract and insurance policy language that the courts are not going to change.

One of the most significant Texas cases discussing Texas Insurance Law as it relates to underinsured auto coverage was decided in 2006. This Texas Supreme Court case was Lilith Brainard, et al., v. Trinity Universal Insurance Company.

This case involved a head-on collision with a rig owned by a company called Premier. The ultimate decision in the case would have been the same regardless whether the accident occured in Dallas, Fort Worth, Arlington, Weatherford or anywhere else in Texas. Brainard was killed in the wreck. He had an underinsured policy with Trinity. Brainards' widow and children made a claim for benefits from Trinity and also filed a lawsuit against Premier.

Trinity paid the $5,000 Personal Injury Protection benefits under the policy immediately but nothing on the underinsured portion of the policy. Brainard settled the claim against Premier for the policy limits of $1,000,000. Brainard then requested that Trinity pay its underinsured policy limts of $1,000,000. Trinity refused but did offer $50,000. Brainard proceeded to trial and got a judgment wherein the jury awarded damages of $1,010,000 in actual damages.

Since Trinity had not paid the money under the insurance contract, Brainard demanded that Trinity pay the remaining $5,000 in actual damages (they got a credit for the $5,000 of PIP previously paid and the $1,000,000 settlement from Premier), plus $100,000 in attorneys fees and interest on the entire $1,010,000.

The significance of this case is that the Supreme Court ruled that Trinity had not broken its insurance contract with Brainard and thus there was not a claim for attorneys fees. In explaining this the Court said that there was no obligation under the insurance contract to pay underinsured benefits until Brainard had won in Court. And that as long as Trinity paid the amounts awarded in court within thirty days of the judgment, there was not a breach of contract.

This case essentially took away, Breach of Contract claims for situations wherein an insured makes a claim against their insurance company for benefits and the benefits are denied. A lawsuit can be filed and the monies eventually recovered in the lawsuit but as long as the insurance company quickly pays, the amount they have to pay is limited.

There are other lessons to be learned from this case that are significant for an attorney when advising a client how to proceed against their insurance company. Only an experienced Insurance Law Attorney is going to understand these distinctions and be able to properly advise a client.