Articles Posted in Claims Refusal

Here is another case looking at experts in insurance cases.  The case is from the Eastern District, Sherman Division, and is styled, La Verdure & Associates v. Depositors Insurance Company.

Plaintiff, La Verdure filed suit against Depositors for alleged violations of the Texas Insurance Code, the DTPA, and breach of contract.  A Scheduling Order was entered into which set a deadline of March 24, 2017, for naming expert witnesses.

Plaintiff named its experts on April 7, 2017.  On May 19, Defendant filed its Motion to Strike or Limit Expert Testimony.  Plaintiff filed its Motion for Leave to Amend Designation of Expert Witnesses.

The above question is usually not easy to answer.  Aledo insurance lawyers need to read a 1976 case from the Waco Court of Appeals.  The opinion is styled, Westchester Fire Insurance Co. v. English.

Posing as husband and wife when in fact they were not married, a couple purchased a house and at closing, also purchased home owners insurance coverage.  The house burned down three months later.  After the fire, the Westchester learned for the first time that the couple were not married.

The policy provides in part that it ‘shall be void if, whether before or after a loss, the insured has willfully concealed or misrepresented any material fact or circumstance concerning this insurance, or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.’

What happens when an insurance does not pay a claim that it was suppose to pay?  That issue is dealt with in the Texas Insurance Code by statute and by courts interpreting the statute.

A particularly strict deadline for insurance companies is the requirement in Texas Insurance Code, Section 542.058(a) that the insurance company pay a valid claim within 60 days after receiving all required items requested from the claimant.  This means that if the insurance company ultimately loses on the coverage issue and has to pay the claim, then it necessarily has violated the 60 day payment provision and is subject to the 18% damage set forth in Section 542.060(a) and attorney’s fee provisions of the statute.  This is true even if the delay on the part of the insurance company was in good faith.

In a 5th Circuit Court of Appeals opinion from 1997, styled, Higginbotham v. State Farm Mutual Automobile Insurance Company, the court held that by rejecting the claim, the insurance company necessarily failed to pay within 60 days, in violation of the statute.  As the court put it:

A Weatherford insurance lawyer will always tell you “read the policy” or risk losing on a case where you otherwise thought you had coverage.  A recent case may change that advice, depending on the facts.

When a plaintiff fails to read an insurance policy, they usually don’t have much of a case against an insurer if they’re denied coverage.

But one insurance lawyer recently convinced Houston’s Fourteenth Court of Appeals that his client could sue an insurance company over a policy he’d never laid eyes on before filing a claim.

Insurance attorneys in Texas need to know how the “misrepresentation defense” works. A good illustration in found in this January 2016, opinion from the Waco Court of Appeals. The case is styled, Karl Wallace v Amtrust Insurance Company of Kansas, Inc.

Until the time of his death in 2007, Wallace’s father lived on property located at 1100 Lone Oak Drive in Oakhurst, Texas–a few hundred miles from Fort Worth, Texas. This property included both a mobile home and 130 acres of land. Because he had been granted a life estate in the property, Robert Guenther began living in the mobile home until he died in 2009. Wallace, a resident of Fort Worth, subsequently took sole ownership of the property in late 2009.

Realizing that the property was left vacant and that the mobile home was deteriorating, Wallace decided to sell the property. However, to protect his interest in the interim, Wallace contacted John Cole Insurance Agency, Inc. to procure insurance. Wallace transacted with Cole because Cole’s company had insured the property for Wallace’s father.

Attorneys handling hail damage insurance claims need to read this opinion from the U.S. District Court, Northern District of Texas, Fort Worth Division. The case is styled, Monclat Hospitality, LLC vs Landmark American Insurance Company.

This case was filed in State District Court in Tarrant County and then removed by Landmark to Federal Court base on there being a lack of diversity of citizenship subject matter jurisdiction as contemplated by 28 U.S.C. Section 1332(a). Insurance companies always want to fight insurance disputes in Federal Court because matters are more in their favor in Federal Court. Monclat had attempted to prevent the removal by suing the adjuster and then trying to convince the Court why suing the adjuster was proper in this case.

Monclat filed this lawsuit to recover benefits from Landmark under a policy issued by Landmark. Monclat alleged that it had suffered damages due to wind and hail.

Insurance lawyers who handle home owners claims are all aware of the “vacancy exclusion” in a home owners policy. They may vary slightly from policy to policy but almost of the policies are going to have an exclusion that excludes losses that result when a home or building is vacant for a defined period of time.

The Claims Journal published an article in July of 2015 dealing with this issue. The article speaks to a Florida case but because of similarities in Texas and Florida insurance law, the article is worth reading. Here is what the article says.

Homeowner policies contain a vacancy exclusion. Under the terms of the standard vacancy exclusion, damage caused by “vandalism and malicious mischief” are excluded from coverage. However, is arson encompassed within the phrase “vandalism and malicious mischief?” That issue was recently decided by the Florida Court of Appeals in Botee v. Southern Fidelity Ins. Co.

Lancaster insurance attorneys will occasionally see a claim covered by the National Flood Insurance Program. Each of these types of government programs are governed in their own particular way. The United States District Court for the Southern District of Texas, Galveston Division issued a ruling that attorneys handling these types of claims need to know about and read. The style of the case is, Ruby Pal v. Texas Farmers Insurance Company.

This is a summary judgment ruling wherein Farmers sought to have the court dismiss the case filed by Pal.

Pal’s property was damaged in flooding during Hurricane Ike in September 2008. At the time, Pal had insured the property for $110,000.00 against flood loss with Farmers, a WYO insurer with the National Flood Insurance Program. Pal’s initial claim was adjusted and paid, on December 29, 2008, in the amount of $53,610.45. The extended deadline for filing a Proof of Loss (POL) for Hurricane Ike claims expired on August 7, 2009. Seven months later, on March 11, 2010, piled filed her second POL seeking policy limits. Farmers negotiated Pal’s claim and by April 7, 2010, determined she was due an additional $7,644.68. The parties requested a waiver of a timely POL for that amount which was approved by FEMA on April 13, 2010. On October 1, 2010, Pal sued Farmers seeking additional proceeds under her policy. The parties continued to negotiate her claim, but reached impasse around May 30, 204. As a result, Farmers filed the summary judgment motion.

Everman insurance lawyers need to be know this 2015, Texas Supreme Court opinion. It is styled, Jaw The Point, L.L.C. v. Lexington Insurance Company.

This insurance dispute involves losses the insured incurred as a result of city ordinances triggered by damage to an apartment complex during Hurricane Ike. The insurance policy covers the costs of complying with city ordinances, but only if the policy covers the property damage that triggers the enforcement of the ordinances. Here, the property damage that triggered the ordinances resulted from both wind, which the policy covers, and flooding, which the policy expressly excludes. The policy’s anti-concurrent-causation clause excludes coverage “for loss or damage caused directly or indirectly by” flooding, “regardless of any other cause or event that contributes concurrently or in any sequence to the loss.” Because the evidence conclusively establishes that flood damage triggered the enforcement of the city ordinances and thus “directly or indirectly” caused the insured’s losses, the Court concluded the policy excludes coverage for such losses regardless of the fact that wind damage “contribute[d] concurrently or in any sequence to the loss.” Because the Court agreed with the court of appeals that the policy did not cover the insured’s losses and thus the insured cannot recover for the insurer’s bad faith failure to effectuate a prompt and fair settlement of the claim the case was affirmed.

In July 2007, JAW purchased an apartment complex in Galveston for approximately $5.7 million.Fourteen months later, Hurricane Ike struck the Island and caused substantial damage to The Pointe apartments. Lexington provided the primary coverage.

Texas insurance lawyers will sometimes find themselves in a situation where there was no insurance on a piece of property. When this happens, the next question is why isn’t there insurance. Then, who is responsible for getting the coverage. This was the issue in a 1976, Texas Supreme Court opinion styled, Colonial Savings Association v. Taylor. Here is what happened.

This controversy arose because a house owned by, Mr. Taylor, which was destroyed by fire, was not insured. Mr. Taylor sued Colonial, contending that Colonial had gratuitously assumed responsibility for insuring the house and had negligently failed to do so. Trial was to a jury, which returned a verdict with answers favorable to Mr. Taylor, but the trial court entered judgment Non obstante veredicto for Colonial.

The property involved is located at 846 East 26th Street in Houston. There are two houses at this address, an older house near the street and a newer house behind it. Taylor purchased the property in 1967 from Mr. and Mrs. James E. Reynolds, taking title subject to a prior outstanding lien held by Colonial. In consideration for the conveyance Taylor made four over-due payments to Colonial on the Reynolds note which the property secured. Pursuant to the conveyance, Colonial transferred the mortgage loan to Taylor’s name, and he was made all subsequent payments thereon.