Articles Posted in Hail Claims

Fortunately, most insurance claims do not require expert testimony.  If expert testimony is needed, here is a 2023 opinion from the United States Fifth Circuit Court of Appeals which needs to be known.  The opinion is styled, Cody Horton v. Allstate Vehicle And Property Insurance Company.
Horton reported a claim to Allstate for hail and wind damage to Horton’s metal roof arising from a storm in 2019. However, Horton’s homeowner insurance policy excludes “cosmetic damage caused by hail to the surface of a metal roof…”  After investigating and concluding that the damage was only cosmetic, Allstate denied coverage.  Horton then sued Allstate for breach of contract.
Allstate filed two motions relevant to this appeal: (1) a motion to exclude the expert testimony of Horton’s expert witness, David Wilson, a licensed and independent insurance adjuster; and (2) a motion for summary judgment based, inter alia, on the cosmetic damage exclusion.

Attorneys handling homeowner claims must be aware of the most recent case law regarding the notice provisions of Texas Insurance Code, section 542A.  Here is a 2023 opinion from the Northern District of Texas, Amarillo Division, dealing with this issue.  The opinion is styled, Toby Brohlin, et al. v. Meridian Security Insurance Company.
Before the Court is Meridian’s Motion to Deny Plaintiff’s Claim for Attorney Fees under Section 542A.007 of the Texas Insurance Code.  The Court granted Meridian’s motion.  A reading of the opinion gives brief facts and states the law statutes and law on this matter.  This writing is the analysis of the law by the Court.
The Brohlins lawsuit implicated the pre-suit notice requirement contained in section 542A.002(a).  The Brohlin’s did not provide the pre-suit notice.  Thus, the Brohlins are precluded from recovering their attorney fees.

Insurance lawyers who handle claims being denied are usually asked whether not their attorney fees can be recovered.  The answer is usually a “Yes” but their are requirements to be met in order to recover those attorney fees.  One of those requirements include giving a pre-suit notice letter in proper form.

In cases where the loss has resulted from an act of nature such as hail storms, tornadoes, hurricanes, freezes, etc. there is a further loop that must be followed involving the timing of the pre-suit notice letter.

Here is a 2023, opinion from the Eastern District of Texas, Tyler Division, that is worth reading.  It is styled, Curt Adkisson v. Safeco Insurance Company Of Indiana.

Here is a hail damage claim that has a frequently heard assertion by the insurance company.  That assertion being that whatever hail damage exists occurred outside the policy period.
The facts presented in the motion are lengthy and should be read.  Here is the analysis of the case by the Magistrate Judge.

From a statistical point of view, less than 2% of all lawsuits result in an actual trial.  They either get thrown out of court on a motion for summary judgment or they they get settled.  Most get settled.  For the cases that go to trial, the public hears about the “million dollar” wins.  What is not reported are the day in and day out loses that occur.  It is important to understand why they lost.
Here is a 2023 opinion from the San Antonio Court of Appeals wherein the case appealed had been lost at trial and the insured filed the appeal.  The opinion is styled, Brian Jones v. Allstate Vehicle And Property Insurance Company.
Brian sued Allstate on a claim resulting from a 2016 hail storm.  He sued for breach of the insurance contract and unfair settlement practices.

Here is a case discussing bad faith insurance and a claims expert.  This is an 2023 opinion from the Western District of Texas, San Antonio Division.  The opinion is styled, PMJ Bleu Terre Management, LLC v. AmTrust Insurance Company of Kansas, Inc.
AmTrust filed a Motion to Strike Expert, PMJ’s claims handling expert, Mark Earle.  The Court has authority in this matter pursuant to 28 U.S.C., Section 636(b)(1)(A).
This is a claim arising out of alleged property damage that resulted from a storm causing wind and hailstorm damage.

Hail damage claims sometimes require experts to assist in the claim.  This is the case in a 2023 opinion from the Western District of Texas, San Antonio Division.  The opinion is styled, PMJ Bleu Terre Management, LLC, v. AmTrust Insurance Company Of Kansas, Inc.
AmTrust filed a motion to exclude the expert testimony of a roofing expert hired by PMJ to testify about wind and hailstorm damage to PMJ’s property.  AmTrust denied the claim stating that the hail damage found on the property predated the policy period by a couple of months and therefore fell outside the scope of coverage.  This lawsuit followed.
AmTust’s motion arises under the standards set forth in Rule 702 of the Federal Rules of Evidence.  Rule 702 of the Federal Rules of Evidence was amended to provide that a witness “qualified as an expert . . . may testify . . . in the form of an opinion . . . if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.  When expert testimony is challenged, the burden of proof rests with the party seeking to present the expert testimony.

Hail damage claims are common and the wording of “Cosmetic Damage” exclusions that apply to these types of claims are important for an insurance attorney to understand.  This issue is discussed in a 2023 opinion from the Western District of Texas, San Antonio Division.  The opinion is styled, Charles Wall and Franze Wall v. Safeco Insurance Company Of Indiana.
This case is writing its opinion in response to Safeco’s motion for Summary Judgement.
Both sides agree that this case arises out of a May 2020 hailstorm.  The primary dispute is whether the damage from the storm is excluded from coverage by an exclusion for cosmetic damage.  As the summary judgment movant, Safeco bears the initial responsibility of informing the district court of the basis for its motion.  Safeco argues that “there is no competent summary judgment evidence that Safeco was unreason- able in handling the insureds’ claim.”  It contends that “this case concerns a bona fide dispute as to coverage.”  It later argues that “there is no evidence it breached the policy.”  As for Plaintiff’s bad faith and related claims, Safeco argues that Plaintiffs cannot show it acted unreasonably.  And Safeco further argues that there is no evidence  that it engaged in any conduct entitling Plaintiffs to treble or exemplary damages, mental anguish, emotional distress, or fraud.

As has been discussed many times on this Blog, insurance companies prefer to litigate in Federal Court rather than State or County courts.  When an insurance company removes a case to Federal court the insured needs to be prompt in seeking a remand to the State or County court from which is was removed.

This is illustrated in this 2023 opinion from the Northern District of Texas, Dallas Division.  The opinion is styled, Thomas Dettmer v. Safeco Insurance Company of Indiana.

Dettmer alleges hail damage to his property.  Safeco hired Madsky Managed Repair (Madsky) to inspect the property.  Safeco asserts the damages do not exceed the deductible in the policy.  Dettmer hired JT Roofing who asserts the damage exceeds $62,826.  In an effort to reconcile the vast disparity, Safeco hired ProNet to double check Madsky’s assessment.  ProNet’s engineer, Marc Camacho, inspected the property and concluded that the damage to the residence resulted from “intentional mechanical damaged performed … in an attempt to replicate storm damage.”

Hail damages claims can be tough and this 2023 opinion doesn’t help.  The opinion is from the Northern District of Texas, Amarillo Division.  It is styled, Phouthasith Amphay v. Allstate Vehicle and Property Insurance Company.

Plaintiff alleges hail damage to his dwelling and made a claim against his insurer, Allstate.  Allstate filed a motion for partial summary judgement because “Plaintiff’s alleged damage to the metal roofs is cosmetic damage and not covered by the express terms of his Homeowner’s Policy.

Summary Judgment is proper if the movant shows there is no genuine dispute of material fact.  A fact is “material” if resolving it one way or another would change the outcome of the lawsuit.  A genuine dispute over that fact exists if the evidence is such that a reasonable jury could return a verdict for the non-moving party.  Courts must view the evidence in the light most favorable to the non-movant and resolve factual controversies in the non-movant’s favor.

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