Insurance policies have to be read carefully by an insured and by the insurance law lawyers who want to help the insured. This is illustrated in an Austin Court of Appeals case styled, Progressive County Mutual Insurance Company v. Edwin Emenike.
This is a summary judgment case granted in favor of Edwin. Progressive filed an appeal and this Court then reversed and rendered in favor of Progressive.
The facts are undisputed.
Knowing the statute of limitations on a case is vital. This is illustrated in a 2018, Southern District of Texas, Houston Division opinion styled, Lillian Smith v. Travelers Casualty Insurance Company of America.
Smith sued Travelers for violations of the Texas Deceptive Trade Practices Act (DTPS), Texas Insurance Code violations, and breach of contract. Travelers filed a motion for summary judgment based on the statute of limitations.
The allegations in the case are that a lightening strike caused damage to Smith’s home and air conditioner. The claim was reported on September 5, 2013, and acknowledged on September 7, 2013. An investigation was conducted in September and October of 2013. Travelers issued a denial letter on November 13, 2013.
The wrongs committed by insurance companies would surprise most people. A person pays his premiums and maybe has friendly conversation with their agent and they figure that when they make a claim, the claim will be properly paid. While most insurance claims are handled without the need for lawyers to be involved, there are too many instances of the insurance company trying to work against they insured/customer.
This is illustrated in an article from Argus Leader. The article is titled “Lawsuit Accuses Doctor Of Bias In Denying Injury Claim.”
The article tells us a woman who suffered a debilitating neck injury while at work has accused an insurance company who denied her benefits of hiring a doctor that it knew would dispute her injury claim.
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.
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