Articles Posted in Hail Claims

Insurance attorneys are well aware of the changes in the Texas Insurance Code statutes that effect hail damage claims and other damages resulting from Mother-Nature.  What cannot not be overlooked is the responsibility to make clear what caused the claimed damages.  In other words are all the damages from a particular event or are some of the damages being claimed the result of another event or are simply wear and tear.

A 2021, opinion from the Northern District of Texas, Fort Worth Division, explains the necessity of segregating damages in a claim for insurance coverage.  The style of the opinion is, Harold Franklin Overstreet v. Allstate Vehicle and Property Insurance Company.

Pursuant to the 1999, San Antonio Court of Appeals opinion styled, Wallis v. United Servs.  Auto. Ass’n, an insured can only recover for covered events under his policy; therefore, he bears the burden of segregating the damage attributable solely to the covered event.

Hail damage claims, like most claims are unique to themselves.  Questions that have to be answered in favor of the homeowner include, 1) when did the damage occur, 2) is the damage real damage versus cosmetic damage, 3) was there any damage already existing on the roof, 4) is hail the sole cause of the damage or were there other causes of damage, 5) is wear and tear an issue?  These and other factors are sometimes obvious.  But, at other times an expert is needed.

The Southern District of Texas, Houston Division, issued a 2021, opinion which is a summary judgment opinion wherein an expert was needed.  The opinion is styled, Dustin Farris v. State Farm Lloyds.  This is a case where the expert did much more harm than good.  The discussion of his opinion shows how obviously bad the expert report he wrote is bad.

The Court spent much time discussing how summary judgment is decided.

Here is an opinion from the Northern District of Texas, Dallas Division, that concerns hail damage and segregating damages.  The opinion is styled, Frymire Home Services, Inc. and Whitfield Capital, LLC v. Ohio Security Insurance Co.

This is a summary judgement opinion in filed by Ohio and the Court granted the summary judgment in favor of Ohio.

This is a hail damage insurance dispute.  Ohio insured Property owed by Plaintiffs.  The policy was in effect from March 23, 2018, until March 23, 2019.

Lawyers handling hail damage claims have to prove the claim.  This is illustrated in a Southern District of Texas case styled, Faustina Ortiz v. United States Liability Insurance Group, et al.

Ortiz owns a restaurant in Conroe, Texas.  He had a policy of insurance with United that provided coverage for windstorms and hailstorms wherein the policy period was from January 26, 2016, to January 26, 2017.  On August 23, 2016, a claim was filed with United asserting that on May 26, 2016, a hailstorm caused extensive damage to the building and walls.

United’s adjuster inspected the building on September 6.  He photographed and found (1) deterioration, (2) poor maintenance, (3) numerous gaps in the roof, and (4) earlier repairs.

Texas has a new law regarding hail damage claims.

Here are five things to know about the new law.

First, it creates a new chapter in the Texas Insurance Code, Chapter 542A, which applies to property damage claims caused by “forces of nature.”  This includes damage caused by earthquakes, wildfires, floods, tornados, lightning, hurricanes, hail, wind, snowstorms, and rainstorms.  The law applies to any lawsuit the insured may bring against the insurer or its agent even if the insured does not sue the insurer.  Besides, Insurance Code violations, this new law applies to breach of contract claims and common law claims.  Further, “forces of nature” are not specifically limited to weather related events and litigation will probably result over what else is included.

The Amarillo Court of Appeals issued an opinion on October 13, 2017, that is a must read for insurance lawyers who handle homeowner claims.  It is styled, Christopher Hall v. Germania Farm Mutual Insurance Company.

This case involves a homeowners policy and damage to Hall’s insured property and Germania’s attempt to adjust the claim.  A lawsuit was filed over the amount of the loss sustained by Hall and eventually Germania invoked the appraisal clause in the insurance contract.  An appraisal was eventually performed and Germania tendered to Hall the appraised amount.  In the lawsuit, Germania invoked the doctrine of estoppel.

A motion for summary judgment was filed by Germania and granted in their favor.

The Northern District, Dallas Division, issued an opinion on a case dealing with removal to Federal Court and a Motion To Remand.  The opinion is styled, Arrow Bolt & Electric, Inc. v. Landmark American Insurance Company and Jason Keen.

Arrow filed suit in in State Court to recover for damages caused in a storm to property it owned in Fort Worth.  Arrow alleged that Landmark and Keen (the adjuster) wrongfully denied its claim, breached the insurance contract and violated various duties of the Texas Insurance Code.

Landmark removed the case to Federal Court pursuant to 28 U.S.C. Section 1332 and 1441 on the ground that there is complete diversity of citizenship and the amount in controversy exceeds $75,000.  Landmark contends Keen, a Texas resident, was improperly joined in an effort to defeat diversity of citizenship.

The naming of experts in a roof or hail damage case is the same as naming an expert in other cases.  The Eastern District, Sherman Division, recently had an opinion discussing experts.  It is styled, Yoram Avneri v. Hartford Fire Insurance Company.

The Scheduling Order in this case set a deadline of April 5, 2017, for Avneri to name and disclose expert testimony in this roof damage case.  Avneri named Julie Needham as an expert timely, but did not include Needham’s opinions, facts, exhibits, a list of Needham’s publications, or past cases.

Hartford filed a Motion to Exclude Testimony of Julie Needham, claiming the disclosure did not satisfy the requirements under Rule 26(a)(2)(B) of the Federal rules of Civil Procedure.  Averni argued its disclosure met the requirements because Needham was a non-retained expert and that Hartford was not prejudiced by the non-disclosure because Needham had been named as a witness months earlier.

Too many times, the claims against an adjuster fail when those claims are removed to Federal Court.  There was a successful claim recently in the Southern District, Houston Division.  It is styled, Lillie Jean Hooper v. Allstate Texas Lloyd’s, et al.

Hooper suffered storm damage and submitted a claim to Allstate for severe damage to her roof and home, and water damage.

The adjusters assigned to the claim were Katherine Hernandez and Joe Bobbitt.  They conducted a assessment and later a second assessment of the claims submitted by Hooper.  Hooper alleges the adjusters intended to deny her claim and fabricated explanations of the visible damage that attributed them to causes not covered by the policy.  Hooper own evaluator estimated the damage at $26,459.86.

Probably all homeowner policies require a “Proof Of Loss” (POL) be filed before a lawsuit be filed against the insurance company.  This issue is addressed in the Northern District, Dallas Division opinion, Gwendolyn Pamphile v. Allstate Texas Lloyds.

Before the Court was a motion to dismiss filed by Allstate.  This arose out of an insurance dispute wherein Pamphile suffered hail damage during a storm and made a claim to Allstate for benefits.  Allstate assigned an adjuster who evaluated the claim and Allstate made payment based on the adjusters evaluation.  Unsatisfied with the payment Pamphile submitted a POL form with her own repair estimate and one day later, filed suit against Allstate.  Allstate removed the case to federal court and filed their motion to dismiss.

Federal courts can adjudicate claims only when subject matter jurisdiction is expressly conferred and must otherwise dismiss for lack of subject matter jurisdiction.

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