Articles Posted in Insurance Adjusters

Tarrant County insurance attorneys will learn real fast that when asserting a claim against an insurance adjuster, the claim needs to be pled with specificity.  This is illustrated in a recent case from the Southern District, McAllen Division.  The opinion is styled, Ada Elizondo v. Great Lakes Insurance SE. et al.

This is an insurance case for damages to Ada’s property allegedly caused by a storm.  Dissatisfied with the adjustment and payment of her insurance claim, Ada filed suit against Great Lakes and their adjuster Jose Lopez.  The case was filed in state court and promptly removed to federal court based on diversity jurisdiction.  Lopez then filed a motion to dismiss and Ada filed a motion to remand.  Both motions concern whether Lopez is a proper party to this suit.

Under Federal Rule 15(a), Ada needs the consent of Lopez to amend her pleading and that is not given.  Thus, she must seek approval from the Court.  However, she did not attach a proposed amendment to her motion to amend.  The purpose of the amendment appears to be to defeat diversity jurisdiction and for that reason the Court will not allow amendment.

Most Llano insurance lawyers would prefer to stay out of Federal Court because Federal Courts tend to be more favorable to insurance companies.  Suing the insurance company adjuster is one way to stay out of Federal Court.   A Western District, Waco Division opinion shows one way to NOT sue the adjuster.  The opinion is styled, Spring Street Apts Waco, LLC v. Philadelphia Indemnity Insurance Company and Crawford & Company.

Spring Street suffered hail and wind damage.  Their insurance coverage was with Philadelphia, who hired Crawford to investigate the claim.

Spring Street filed suit in State Court for DTPA violations and Insurance Code violations and Philadelphia promptly had the case removed to Federal Court based on lack of diversity jurisdiction under 28 U.S.C. 1332, claiming that Crawford was improperly joined in the lawsuit.  Crawford filed a Rule 12(h)(2) motion to dismiss for failure to state a claim upon which relief can be granted.

For insurance attorneys handling hail damage claims, the Northern District, Dallas Division, issued an opinion worth reading.  The opinion is styled, Ronald E. Cohen, et al v. Seneca Insurance Co., Inc., J.S. Held, Inc., Haag Engineering Co., and R. Kean Jenner.

This is a case of an insurance claim denial after a wind and hail storm in Dallas County.  The adjuster, Jenner, was the only non-diverse defendant.  The lawsuit for denial of policy benefits was filed in Dallas County Court and removed to Federal Court by the other defendants claiming that Jenner was improperly joined in an effort to defeat diversity jurisdiction.  Cohen filed a Motion to Remand based on his assertion that Jenner was not improperly joined.

The sole issue in this case is whether the joinder of Jenner was proper under Texas law.  If the court finds a reasonable basis to predict that Plaintiffs can potentially recover on one of the causes of action asserted against Jenner, the court must remand the entire case.

A 2017, opinion from the Northern District, Dallas Division, is an example of how not to sue an adjuster to keep a case out of Federal Court.  The opinion is styled, Hutchins Warehouse Limited Partners, v. American Automobile Insurance Company, et al.

Hutchins sued American and their adjuster in State Court after their claim for benefits was not properly paid.  The allegations against the adjuster, McMillan, were that he made numerous errors in his estimate, which resulted in American underpaying and partially denying Hutchins’s claims.

28 U.S.C., 1441(a) permits the removal of any civil action brought in a state court of which the district courts of the United States have original jurisdiction.  The statute allows a defendant to remove a state court action to federal court only if the action could have originally been filed in federal court.

Any insurance lawyer who has filed very many lawsuits knows that one key to helping their client have a good result is to be able to keep their case out of Federal Court.  One way of doing this is by properly suing the claim adjuster.  One successful way of doing this is illustrated in a Northern District of Texas, Amarillo Division opinion.  The opinion is styled, Sparky’s Storage Solutions Ltd. v. Lexington Insurance Company, et al.

Sparky’ sued Lexington and their adjuster, Tim Fitzgerald for violations of the Texas Deceptive Trade Practices Act (DTPA) and Insurance Code violations.  The suit was filed in State District Court.  Lexington and Fitzgerald had the case removed to Federal Court due to the amount in controversy and alleging that Fitzgerald was improperly joined in the lawsuit in order to prevent diversity of citizenship which is required pursuant to 28 U.S.C. 1332(a).

Sparky’s filed a motion to remand the case back to the State District Court asserting that the joinder of Fitzgerald was proper.

Grand Prairie insurance lawyers need to read this case for seeing one way to properly sue an insurance company adjuster.  The case is from the U.S. Western District, Del Rio Division.  It is styled, Alfonso Gaytan and Tere Gaytan v. State Farm Lloyds and Alberto Garza.

This litigation arises out of storm that hit Eagle Pass, Texas, in April 2014.  The Plaintiffs submitted a claim for repairs under the State farm policy and Garza was the adjuster assigned to handle the claim.  Garza’s inspection was unacceptable to Plaintiffs and a lawsuit was filed in State Court and State Farm had the case removed to Federal Court based on 28 U.S.C. Section 1441(a).

Plaintiff’s filed a motion to remand and there was an argument about the 30 day deadline imposed by 28 U.S.C. Section 1447.  The Plaintiffs prevailed on this argument.

The Western District, San Antonio Division issued an opinion in the case styled, McClelland v. Chubb Lloyd’s Insurance Company of Texas and Robert Pritchard.

The McClellands suffered a loss to their home and Chubb sent adjuster Pritchard to evaluate and adjust the loss.  The McClellands did not like the result and sued Chubb and Pritchard in State Court.  Chubb and Pritchard had the case removed to Federal Court.

Pursuant to 28 U.S.C., Section 1441, defendants may remove to the appropriate district court any action in which the district courts have original jurisdiction.  Under Section 1332, district courts have original jurisdiction in diversity actions between citizens of different states that involve an amount in controversy exceeding $75,000.  District courts are prohibited from exercising jurisdiction when a party has been improperly or collusively joined to manufacture federal diversity jurisdiction.  Improper joinder may be established by (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.

When an insurance attorney is representing someone suing an adjuster, there have to be specific acts alleged against the adjuster and those acts have to be detailed. This is illustrated in a Southern District, Houston Division opinion. The opinion is styled, Gregory Young v. Travelers Personal Security Insurance Company and Robert Finley.

This a hail / storm damage claim wherein Young was insured by Travelers and the adjuster assigned to the claim was Finley.

The case was filed in State Court but Travelers had the case removed to Federal Court alleging that Finley was improperly joined in the case in order to defeat diversity jurisdiction. Travelers claims that the allegations against Finley do not meet pleadings standards and thus Finley should be dismissed and the Federal Court has jurisdiction over the case.

Insurance lawyers in Irving who sue for hail claims need to know the best ways to stay out of Federal Court, unless of course that is where they want to be.

This is illustrated in a Sherman Division case styled, Lillian Elizondo v. Metropolitan Lloyds Insurance Company of Texas, Tailored Adjustment Services, Inc. and Brad Conrad.

This is a dispute that arises out of a claim for hail and wind storm damages sustained by Plaintiff, Elizondo. The insurer is Metropolitan. The adjuster is Conrad who worked for Tailored.

For Mansfield insurance adjusters, a 2016 opinion from the U.S. District Court, Houston Division, is an example of one way to properly sue an adjuster. The style of the case is, Robinson v. Allstate Tex. Lloyds & Timothy James Wesneski.

Robinson, a Texas citizen is insured with Allstate. She alleges she filed a claim with Allstate after her house was damaged during a storm on November 25, 2015. She alleges Wesneski, a Texas citizen and the adjuster Allstate hired to investigate the claim, conducted a substandard investigation. She alleges that Wesneski’s inadequate investigation caused her claim to be improperly evaluated and underpaid. Wesneski found that the amount of damage to Robinson’s property at $484.93, below the amount of the policy deductible. Robinson hired a private adjuster, who estimated the damage caused by the storm to be $25,818.77.

Robinson filed this lawsuit in Texas state court, naming Allstate and Wesneski as defendants. Robinson asserted that Wesneski violated the Texas Insurance Code and the Texas DTPA. She alleges Wesneski failed to conduct a reasonable and adequate investigation, which caused Allstate to undervalue her insurance claim. Allstate caused the case to be removed to Federal Court based on Allstate not being a Texas citizen and that Wesneski was joined just to defeat diversity jurisdiction and Robinson filed a Motion to Remand.