Articles Posted in Bad Faith Insurance

Insurance companies always want to litigate cases in Federal Court.  The Judges and rules related to proceedings tend to skew in favor of insurance companies.  Here is a 2020 opinion where the insured actually got a favorable ruling.  The opinion is from the Southern District of Texas, Houston Division, and is styled, Caramba, Inc. v. Nationwide Mutual Fire Insurance Company.

Caramba is the named insured under a Nationwide policy.

Caramba filed a claim for damages after Hurricane Harvey in August 2017.  On August 27, 2020, Nationwide filed a Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c).

Insurance lawyers can tell a client that proper pleadings, especially in Federal Court, are essential to being able to have a day in Court.  This is illustrated in a 2020, opinion from the Eastern District of Texas, Sherman Division.  It is styled, Albion Investments, Inc. v. Travelers Casualty Insurance Company of America.

Albion owned property that was insured by Travelers insurance.  Albion filed a claim with Travelers for property damage after a storm struck the property with hail and high winds.  The claim was ultimately denied based on the amount of damages falling below the deductible of the policy.

Albion filed suit alleging that Travelers did not conduct a thorough investigation of the claim, failed to account for all of the damages covered, failed to fairly evaluate and adjust the claim, failed to perform its contractual duty to compensate Albion under the policy, made misrepresentations to Albion regarding the damages to the Property and whether it was covered, failed to make an attempt to settle the claim in a prompt and fair manner, and failed to explain why full payment was not being made.

Here is a case that may apply to many of the rural areas of Texas.  The case is a 2020, opinion from the Corpus Christi Court of Appeals and is styled, State Farm Mutual Insurance Company v. Rolando Lopez, Individually and Rolando Lopez D/B/A R&A Transport.

This is an appeal of a summary judgment in favor of Lopez and against State Farm.  This Court reversed the trial court and rendered judgment in favor of State Farm.

The main point of this case is the interpretation of the words “in use” in the commercial policy at issue.  The policy provides in part:

Here is a claims denial opinion worth reading.  It is a 2020 opinion from the Northern District of Texas, Dallas Division.  It is styled, DFWS, LLC v. Atlantic Casualty Insurance Company.

Atlantic insured DFWS.  DFWS alleges it suffered damages as the result of a tornado and high winds.  After making a claim for damages, DFWS alleges that Atlantic “engaged in a results-based investigation to find a non-covered cause of loss to the detriment of DFWS and contrary to the clear evidence otherwise.”

The resulting lawsuit sued for violations of Texas Insurance Code, Sections 541.060(a)(1), (2), (3), (4), and (7).  Atlantic files a Rule 12(b)(6) motion to dismiss in response to the lawsuit.

Here is an opinion from the Northern District of Texas, Dallas Division, that discusses the pleadings in a lawsuit where in the property owner claims to have suffered hail damage and the insurer denied the claim.  The opinion is styled, Valtex Properties LLC v. Central Mutual Insurance Company.

The insured, ValTex, sued Central for various violations of the Texas Insurance Code.  The allegations are that Central violated sections, 541.060(a)(1), 541.051, 541.052, and 541.061.  In response, Central filed a Rule 12(b)(6) motion to dismiss.  This blog will deal with only Section 541.060(a)(1).  However, the case is a good read on how the Court dealt with remaining Insurance Code sections.

To survive a motion to dismiss, a plaintiff must plead enough facts to state a claim to relief that is plausible on its face.  Thread bare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.  A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.  The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.  When well-pleaded facts fail to achieve this plausibility standard, the complaint has alleged—but it has not shown—that the pleader is entitled to relief.

When an insurance claim gets denied and a lawsuit results, the resulting legal battle needs to be dealt with properly.  This can be challenging.  An illustration of this can be found in a 2020, opinion from the Eastern District, Sherman Division, in an opinion styled, Oscar Bermudez and SA Polo, Inc., v. Indemnity Insurance Company of North America and Tin Top Insurance Agency, LLC.

This case was originally filed in State Court by Plaintiffs and Defendants promptly removed the case to Federal Court.  The case needs to be read to get further background information on some of the procedural steps but ultimately the Court denied Plaintiffs Motion For Remand and Plaintiffs filed a Motion for Reconsideration or Clarification, which is the issue presented here.

Even though the Motion to Reconsider is found nowhere in the Federal Rules of Civil Procedure, it is one of the more popular indoor courthouse sports at the district court level.  Motions to reconsider serve the very limited purpose permitting a party to correct manifest errors of law or fact, or to present newly discovered evidence.  Granting a motion to reconsider is an extraordinary remedy that should be used sparingly.

Who can sue insurance companies is sometimes obvious to much people but just in case it is not obvious, here is what the laws tell us.

Texas Insurance Code, Section 541.151 grants a cause of action to a person who sustains actual damages caused by another person engaging in any unfair insurance practice or deceptive trade practices.

To assert a cause of action the plaintiff must be: (1) a “person” as defined by the statute; and (2) injured by another’s unfair or deceptive acts.  This is shown in the 2000, Texas Supreme Court opinion styled, Crown Life Insurance Company v. Casteel.

What are examples of misrepresentations made by insurance companies that they can be held liable for making?

Different types of misrepresentation are prohibited by the Texas Insurance Code.  Misrepresentations are also unlawful under the incorporated DTPA, Section 17.46(a).  These misrepresentations also include non-disclosure.

Section 541.051 broadly prohibits making any statement misrepresenting the terms of a policy, or the benefits, advantages, or dividends of a policy, making misrepresentations about the financial condition of an insurer, misrepresenting the true nature of any policy or class of policies, or making any misrepresentation to a policy holder for the purpose of inducing or intending to induce the policy holder to allow an existing policy holder to lapse, forfeit, or surrender his insurance.  This provision is sometimes referred to as the “anti-twisting” provision, because the latter portion is aimed at preventing one insurer stealing away the insureds of another insurer by making misrepresentations.

In an answer to the above question, one attorney said, “It’s hard to define but I know it when I see it.”  That response is fine but what a regular insured person thinks is clearly “bad faith,” the Courts look at differently.

The Texas Insurance Code, Section 541.060, sets forth specific acts that can be considered bad faith in context of settling a claim.  The statute prohibits engaging in any of the following unfair settlement practices with respect to a claim by an insured or beneficiary:

  1. misrepresenting to a claimant a material fact or policy provision relating to coverage at issue;

Let’s list some of the conduct that is actionable against an insurance company.

The Texas Insurance Code, Chapter 541, defines and prohibits unfair and deceptive insurance practices.  The Sections include Sections 541.001 to 541.061, 541.151 to 541.162, and 541.453.  Prior to April 1, 2005, the statute appeared as Article 21.21, so most authorities cite that version of the statute.

Section 541.151 allows a private cause of action by any person who has sustained actual damages caused by another’s engaging in any act or practice that is defined as an unfair method of compensation or unfair or deceptive practice in the business of insurance, or defined as an unlawful deceptive trade practice.  The definitions of unfair and deceptive practices are found in two places.  Those two places are the Texas Insurance Code, Sections 541.051 to 541.061 and the Texas Business & Commerce Code, Section 17.46(b).

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