Articles Posted in General

Lawyers handling insurance cases are aware of clauses in the insurance contract that are different from other types of contracts. The Claims Journal published an article in November of 2015, that discusses “other insurance” clauses. The title of the article is, “Insurance Policy ‘Escape” Type ‘Other Insurance’ Clause Given Short Thrift by California Court.”

An insurer is ordinarily free to restrict the risks it will underwrite and is responsible only for losses within the coverage wording of its policies of insurance. The courts at least say they will not rewrite the terms of a policy for any purpose, including to make them conform to judges’ notions of sound public policy. For judges to do so would exceed their authority. In brief, plain policy language limiting coverage must be respected by the courts.

But – and in law there seems always to be a “but” — an exception to these general rules of policy wording enforcement is recognized regarding “other insurance” clauses generally and “escape” other insurance clauses in particular. “Escape” clauses purport to provide that coverage evaporates in the presence of other insurance, departing from the historical purpose of “other insurance” clauses – to prevent multiple recoveries when more than one policy provided coverage for a particular loss. Partly because “escape” clauses are objects of judicial distrust, the modern trend is to require multiple insurers on a single risk to contribute on a pro rata basis regardless of the type of “other insurance” clauses in their policies.

If you talk to an experienced insurance law attorney, he will be able to tell you about protections afforded under a Texas insurance policy that many people do not realize. While each policy needs to be read carefully, a homeowners and a commercial policy will often defend the homeowner and those living in the household and business owners against many types of lawsuits. The exclusions from coverage will usually be those related to claims arising out of the use of an automobile.

KVUE ran an article recently titled, 22 Families Sue Owners of Luecke Farm for Hidden Pines Fire. The lawsuit is probably protected by a homeowners policy or at least a commercial policy if the farm is a commercial operation. Here is the story.

Twenty-two families who had their homes and/or property damaged by October’s Hidden Pines Fire in Bastrop County have filed a lawsuit against the owner of Luecke Farm.

Texas insurance lawyers will see wildfire insurance claims. Texas Watch published an article that is helpful for Texas insurance attorneys and people who experience damage due to a wildfire. The title of the article is, 5 Things To Know When Filing A Wildfire Insurance Claim.

The article tells us that firefighters continue to bravely battle the Hidden Pines wildfire in Bastrop County Texas, with 80% of the fire contained. The fire has already damaged or destroyed dozens of residential and commercial properties. As families and businesses begin the process of rebuilding, here are some tips for property owners when dealing with their insurance company.

Demand that your insurance company hold up its end of the insurance contract you have with them.

Dallas area insurance lawyers need to be aware of a case currently pending before the United States Supreme Court. USA Today published an article discussing the case. The title of the article is, Supreme Court Conundrum: How To Make A Lawsuit Go Away. Here is the discussion.

The Supreme Court debated to a draw Wednesday over an unusual question with broad implications for businesses and consumers: If a defendant in a civil case offers to pay the plaintiff in full, is the lawsuit moot? Is it settled? Or can it live on?

What the justices decide either could give companies a way to avoid class-action lawsuits or prevent consumers from having their challenges ended with a simple payoff.

Dallas area insurance lawyers who handle many cases will run across a situation where insurance documents have been forged. The Insurance Journal published an article in September of 2015, that briefly discusses this topic. The title of the article is, North Carolina Man Arrested For Forging Insurance Documents.

Keep this in mind when reading the post. The article deals with an insured committing a fraud against an insurance company. What a lot of people don’t realize is how often an agent or an adjuster or some other representative of an insurance company will also commit fraud with insurance papers. This involves forging signatures, writing in false information on an application or claims form, and checking boxes on pre-printed forms that should not be checked. The motives are simple, to keep from playing claims. For an insurance agent, it often means the difference in their commissions and bonuses.

Here is what the article says:

Lawyers handling insurance claims can tell stories where an insurance company gets aggressive against an insured based on their belief that the insured is committing some sort of insurance fraud. The Austin-American Statesman ran a story highlighting this topic in September of 2015. The title of the article is “Private Insurer Pays Government Lawyers To Pursue Fraud Charges.”

The article starts out telling us that if he had it to do over again, Odessa native Roy Kyees would have ignored what the doctor told him. He would have walked out of that office and never filed a work injury claim for his back pain. He would have just paid for it out of his own pocket.

Then he never would have tangled with the largest provider of workers’ compensation insurance in Texas. He never would have gotten indicted for insurance fraud. Never would have been arrested and put in leg chains in his hometown jail.

Saginaw insurance lawyers will know that a lot of cases against insurance companies end up in Federal Court. The pleading standard in Federal Court is high. Understanding the Rule 12(b)(6) is important. This is illustrated in a 2015, opinion from the U.S. District Court, Northern District of Texas, Dallas Division. The style of the case is Infectious Disease Doctors,P.A. v. BlueCross BlueShield of Texas, A Division of Health Care Service Corporation, et al.

In this case the pleadings were found to be adequate. What is important to realize is most insurance companies will have their lawyers file motions to get the case thrown out of court on technicalities. You must be prepared for this.

To defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” A claim meets the plausibility test “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.” While a complaint need not contain detailed factual allegations, it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” The “factual allegations of a complaint must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true even if doubtful in fact.” When the allegations of the pleading do not allow the court to infer more than the mere possibility of wrongdoing, they fall short of showing that the pleader is entitled to relief.

Duncanville insurance lawyers need to understand the pre-requisites to filing a lawsuit against an insurance company. The most important of these pre-requisites is found in Texas Insurance Code, Section 541.154. This section requires pre-suit notice. The failure to follow this requirement is discussed in a recent opinion from the U.S. District for the Northern District of Texas, Dallas Division. The case is styled, Johnson Medical Associates v. State Farm Lloyds.

State Farm Lloyds removed this insurance dispute from state court to federal court on February 25, 2015. Shortly thereafter, State Farm timely filed a Verified Plea in Abatement pursuant to Section 541.155(a) of the Texas Insurance Code on grounds that it did not receive the statutorily-required pre-suit notice of Plaintiff’s claims. On March 23, 2015, the Court abated the action and ordered Johnson Medical Associates to file a notice indicating the date on which it tendered the statutorily-required notice to State Farm. Johnson Medical failed to comply with the Court’s Order or otherwise respond. Thus, on August 12, 2015, the Court again ordered Johnson Medical to file a notice with the Court indicating the date on which it tendered the statutorily-required notice to State Farm. The Court set August 24, 2015 as the deadline for Johnson Meidcal to comply and admonished Johnson Medical that “failure to timely file the notice with the Court will result in dismissal of this case for want of prosecution.” To date of this opinion, State Farm had failed to file any notice with the Court. The Court then determined that this case should be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b).

A district court has authority to dismiss a case for want of prosecution or for failure to comply with a court order. This authority “flows from the court’s inherent power to control its docket and prevent undue delays in the disposition of pending cases.” Such a dismissal may be with or without prejudice. A dismissal with prejudice is appropriate only if the failure to comply with the court order was the result of purposeful delay or contumacious conduct and the imposition of lesser sanctions would be futile.

Flood insurance in Texas is about to change. The Claims Journal published an article in August of 2015, dealing with flood insurance coverage in Texas. Specifically, new areas that are now required to have flood insurance. The title of the article is, New FEMA Maps Could Force Central Texas Residents To Buy Flood Insurance. Here is what the article tells us.

Hundreds of Central Texas residents could be forced to buy flood insurance or face stricter building regulations for new structures nearly three months after deadly flooding, according to new Federal Emergency Management Agency advisory maps made public Friday.

The maps, which face a yearlong review process, would dramatically expand flood plains along the banks of the Blanco River and tributary creeks, the Austin American-Statesman reported.

Dallas area insurance lawyers need to know what is happening in the world of insurance claims. The Claims Journal, an insurance company business, published an article in August 2015, that showed information from Hurricane Katrina. The article is titled, Hurricane Katrina Facts & Figures.

The article tells us that Hurricane Katrina made landfall in Southern Florida as a Category 1 hurricane 10 years ago this week. It moved into the Gulf of Mexico where it strengthened into a Category 5 hurricane, it then made a second landfall on August 29 in Southern Louisiana as a Category 3 hurricane and finally made a third landfall close to the Louisiana Mississippi border.

The U.S. Census Bureau released a special edition of its Facts for Features highlighting the areas that sustained the most damage: New Orleans and the Mississippi coast.