Articles Posted in Hail Claims

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.

Hail damage claims result in lots of lawsuits.  Here is a 2023 opinion from the Western District of Texas, El Paso Division.  The opinion is styled, John Kazanjian and Patricia Kazanjian v. State Farm Lloyds.

State Farm had made a settlement offer that was substantially less than what Plaintiff’s felt was fair.  A lawsuit resulted and after much discovery and testimony of experts on both sides, State Farm filed this partial motion for summary judgement.

Defendant argues that it is entitled to summary judgment on Plaintiffs’ Unfair Settlement Claims because there is no evidence that it acted in bad faith during the course of investigating
Plaintiffs’ insurance claim.  Plaintiffs’ Unfair Settlement Claims, if successful, would permit recovery under section 541.060 of the Texas Insurance Code.  And to recover under section 541.060, the insured must prove that the insurer acted in bad faith.  The bad faith requirement for claims under section 541.060 is the same as the Texas common law standard for bad faith.

Bad Faith Law Firms will have a frequent question asked of them.  That question is, “Can I Recover My Attorney Fees.”

One segment of the attorney fees question is addressed in a 2023 opinion from the Southern District of Texas, Houston Division.  The opinion is styled, Gilbane Building Company, Inc. v. Swiss Re Corporate Solutions Elite Insurance Company d/b/a North American Elite Insurance Company and Everest National Insurance Company.

Gilbane brought this lawsuit against Swiss asserting causes of action under the Texas Insurance Code and as part of the claim, sought recovery of attorney fees.  Swiss filed a motion to exclude attorney fees based on the assertion that Gilbane had not complied with Section 542.003(a) of the Texas Insurance Code, in that the presuit notice requirement had not been satisfied as required by that statute.

Hail claims are a frequent source of litigation.  Sometimes and expert is needed in these cases.  The issue of using an expert in a hail damage case arose in this 2023 opinion from the Northern District of Texas, Dallas Division.  The opinion is styled, Mohamed Bakri v. Nautilus Insurance Company.

This case arises out of Plaintiff Mohamed Bakri’s insurance claims for wind and hail damage.  Bakri alleges that a winter storm during the Policy Period caused significant damage to his properties.  After an investigation, Nautilus refused to cover the damage, claiming that it was merely cosmetic.  In addition, Nautilus determined that any impairment beyond cosmetic damage occurred before the Policy Period.

Bakri sued Nautilus claiming violation of the Texas Insurance Code and breach of contract.  Bakri had an expert to help prove his damages.  Nautilus filed a motion to exclude the testimony of Bakri’s expert, Johnson, and moved for summary judgment.

Claims denial attorneys will on occasion find themselves in a position of needing to hire an expert to help with their case.  The case referenced in the Blog is a hail damage case but the discussion is a discussion on what courts look at when determining whether an experts testimony will be allowed.  The case is from Eastern District of Texas.  The style of the case is, Hilltop Church of The Nazarene v. Church Mutual Insurance Co.

This case has other issues it discusses but here is what it says about experts.

Plaintiff claims that a March 2019 hailstorm caused damage to its property.

Bad Faith insurance lawyers understand that when sending an insurance company a pre-suit demand for damages that sending an improper letter ends up like sending no letter at all under certain circumstances.  One of the issues related to pre-suit notice letters was the topic in a January 2023 opinion from the Northern District of Texas, Dallas Division.  The opinion is styled, J. David Koncak v. American Security Insurance Company.

Koncak suffered a hail damage claim in June 2019 and then again in October 2019.  The claims resulted in a dispute and Koncak hired an attorney.  The attorney sent a pre-suit demand letter as required by the Texas Insurance Code, Section 542A.003(b).  The letter demanded damages in the amount of $550,000 plus $5,000 in attorney fees.

Koncak eventually filed suit.  American Security filed motions contending the notice letter did not satisfy the requirements of 542A.003(b).

Many insurance claims are hard to justify a lawsuit unless the insured can make a claim for attorney fees.  Most insurance claims do allow for recovery of attorney fees.  The caveat is that the claim for attorney fees has to be presented properly.  This includes notice prior to a lawsuit being filed.

Here is another recent (January 2023) case discussing attorney fees.  The opinion is from the Northern District of Texas, Dallas Division.  It is styled, Ghulam Sarwar d/b/a AR2S MGMT Inc. and AR2S MGMT Inc. v. General Star Indemnity Company.

This is a lawsuit arising out of a hail damage claim.  General Star (Defendant) filed a motion to exclude Plaintiffs claim for attorney fees based on the assertion that the required pre-suit notice made via email was insufficient and untimely.  Plaintiff counters that notice was sufficient, if not timely, was not timely due to concerns that the statute of limitations was running.

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