Articles Posted in Hail Claims

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.

Fort Worth lawyers who end up in Federal Court need to read this opinion from the Northern District, Fort Worth Division, Judge McBride.  The opinion is styled, Antonio Perez v. Allstate Vehicle and Property Insurance Company, et al.

Perez initiated this action by filing a lawsuit in State District Court.  Allstate removed the action to Federal Court, alleging diversity of citizenship and the required amount in controversy.  This Court Ordered Perez to replead so that his pleadings complied  Federal Court pleading standards found in Rule 8(a) and 9(b) of the Federal Rules of Civil Procedure, and directed Perez to file an amended complaint that complied with those requirements.

Perez filed his amended complaint.  Despite the warning provided in the order for repleading, Perez’s complaint as amended was, with few exceptions, basically a repeat of his state court pleadings, alleging, in a conclusory way, violations of sections of the Texas Insurance Code, fraud, and conspiracy to commit fraud, breach of contract, and breach of the duty of good faith and fair dealing.

Getting the insurance adjuster served with legal papers in a lawsuit is important and for some reason, overlooked.  This is illustrated in an Eastern District, Sherman Division case styled, Robert Crawford v. Allied Property and Casualty Insurance Company, Laura Jones.

Crawford, a citizen of Texas, sued Allied, an Iowa Company and Jones, who is a Texas resident in State District Court.  The suit arises out of the Defendant’s alleged improper handling of an insurance claim.  Crawford suffered extensive damage to his property during a storm.  Allied was Crawford’s insurer.  Jones was hired by Allied to inspect and adjust Crawford’s loss.  Thereafter, it is alleged that Jones conducted a substandard investigation and inspection of the property, prepared a report that failed to include all of the damages that she noted during the inspection, and undervalued the damages she observed during the inspection, all of which resulted in Allied denying Crawford adequate coverage under the policy.  Crawford sued for breach of contract and sued Allied and Jones for violations of the Texas Insurance Code.

Allied and Jones removed the case to Federal Court based on diversity jurisdiction, alleging that Jones was improperly joined to defeat diversity jurisdiction.

Insurance attorneys with much experience learn real quick that the insurance companies prefer to litigate cases in Federal Court.  The reason is that Federal Court is much less forgiving of mistakes and the Federal Courts look for reasons to dispose of a case.  This authors opinion is that many of the Federal Courts put a priority on technical rules rather than substance.  This authors opinion is bolstered by the fact that an insurance company will always attempt to get a lawsuit against them in State Court, removed to Federal Court.

This is illustrated in a 2017, opinion from the Southern District of Texas, McAllen Division.  The case is styled, Maria Abdon v. State Farm Lloyds.

In this case, the court is considering State Farm’s motion for partial dismissal on the pleadings, as well as Abdon’s response and alternative motion for leave to amend.  The Court granted State Farm’s motion for partial dismissal and denied Abdon’s motion for leave to amend.

This is a case from the Northern District, Dallas Division, dealing with which court is proper to litigate the case.  The case is styled, Hutchins Warehouse Limited Partners v. American Automobile Insurance Company et al.

A court may sua sponte raise the issue of its jurisdiction at any time during the course of litigation.

28 U.S.C. Section 1441(a) permits the removal of any civil action brought in a state court of which the Federal Courts have original jurisdiction.  However, the removal statue must be strictly construed because removal jurisdiction raises significant federalism concerns.  Therefore, any doubts concerning removal must be resolved against removal and in favor of remanding the case back to state court.

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