Articles Posted in Insurance Adjusters

As stated before, the insurance companies prefer to litigate cases in Federal Court.  One of the ways to stay out of Federal Court when suing the adjuster for an insurance company is to clearly articulate the wrongs that the insurance adjuster committed.  This is illustrated in a 2019, opinion from the Northern District of Texas, Dallas Division.  The case is styled, David Williams v. Allstate Vehicle And Property Insurance Company.

Williams filed suit against Allstate and Allstate’s adjuster, Murray McKay, alleging that McKay violated various sections of the Texas Insurance Code when adjusting Williams claim for storm damage to his home.  Allstate removed the lawsuit to Federal Court pursuant to 28 U.S.C., Section 1441(b), alleging that McKay had been improperly joined in the lawsuit, thus, the requirements of diversity were satisfied.  Williams sought a remand to the State Court based on 28 U.S.C., Section 1447(c).

The Federal Court conducts a Rule 12(b)(6) type analysis to determine whether a plaintiff has failed to state a claim against a nondiverse defendant, in this case, the defendant being McKay.

Here is another Texas Insurance Code, Section 542A.006 case.  The opinion is from the Texas Southern District, Laredo Division.  It is styled, Yarco Trading Company, Inc., et al. v. United Fire & Casualty Company, et al.

This case was filed in State Court and United removed the case to Federal Court.  United argued the adjuster was improperly joined and after citing Texas Insurance Code, Section 542A.006, accepted responsibility for the adjuster, thus, arguing that the adjuster had to be dismissed, resulting in diversity jurisdiction pursuant to 28 U.S.C., Section 1441(a).  Yarco sought to have the case remanded to the State Court.

First, the court addressed the improper joinder argument and ruled in favor of Yarco.

The vast majority of insurance cases are Ordered by a Court to participate in a mediation.  There is good reason for this.  Most cases, if they do not settle before mediation, will settle at mediation.  The settlement brings an end to the litigation between the parties and saves court time and resources.  For mediation to be successful, the parties with full settlement authority and the attorneys need to be present.  So what if a particular person does not show up at the mediation?  What is that person is the person most knowledgeable about the case?

The El Paso Court of Appeals issued an opinion in a mandamus case styled, In Re: Mary Anne Vinson.  This case arises out of a car wreck between Jaime Soto and Stephanie Dutchover wherein Soto sued Dutchover for negligence in causing a car wreck and the resulting damages.  Dutchover was insured by Allstate and Vinson was the adjuster assigned to handle the claim and the adjuster most familiar with the case.

The trial court signed an order appointing a mediator and further stated:  “All Parties and their representatives with full settlement authority shall attend the mediation process, with their counsel of record.”  Vinson did not attend the mediation but another adjuster did attend.

Most Insurance Lawyers are by now, aware of the new insurance law that went into effect in Texas as of September 2017.  This new law is found in the Texas Insurance Code, Section 542A.006(a)-(c).  The law law allows an insurance company to accept liability to for an adjuster.

This new law was at issue in the Southern District of Texas, Houston Division opinion styled, Sucheta Vyas and Davis Vyas v. Atain Specialty Insurance Company and Team One Claims.

The Vyas’ had insurance with Atain.  The Vyas allegedly suffered storm related damage to property they owed, and made a claim with Atain.  Atain hired Team One to adjust the claim.  The Vyas sued Atain and Team One in State District Court alleging that Team One’s unreasonable investigation led to the wrongful underpayment and or denial of their claim.

Experienced Insurance Lawyers understand that insurance companies want to litigate cases in Federal Court and that the insurance companies will use any method they can to have the case in Federal Court.

A recent case from the Western District of Texas, Austin Division, which is styled, Davis v. Travelers Lloyds of Texas Ins. Co., issued an opinion denying Travelers efforts to litigate in Federal Court.

Davis filed suit in State Court alleging that he had a homeowners policy with Travelers insuring his residence and after sustaining water damage to his home, he filed a claim under the policy.  The adjuster assigned to the claim by Travelers was Rick Limer.

For an insurance attorney to know the insurance adjuster did something wrong when it comes to a lawsuit is not good enough.  When filing a lawsuit, the allegations of wrongdoing by the adjuster must be properly alleged in the lawsuit papers.  This is illustrated in the Southern District, Corpus Christi Division, opinion styled, Esteban Cruz v. State Farm Lloyds.

This case was filed against State Farm in State Court and State Farm caused the case to be removed to Federal Court based on diversity jurisdiction.

State Farm seeks dismissal of the extra-contractual claims for “failure to state a claim upon which relief can be granted” pursuant to Rule 12(b)(6)Rule 8(a)(2) requires a short and plain statement of the claim showing that the pleader is entitled to relief.  This includes sufficient factual allegations to indicate that the claim is plausible.

Suing Adjusters in federal court is often times difficult.  The reason is that an adjuster is usually sued in state court in an effort to defeat diversity jurisdiction thus, keeping the case in state court.  When an insurance company believes the adjuster has been sued solely to defeat diversity jurisdiction, the insurance company will remove the case to federal court and ask the Judge to dismiss the adjuster.

This is what happened in this 2018, 5th Circuit opinion styled, William Mauldin v. Allstate Insurance Company; Mayella Gonzales; Theresa Hernandez.

Pursuant to 28 U.S.C., Section 1441 and 1446, Allstate removed this case to federal court where the Judge allowed the removal.  Mauldin appealed this issue to this Court.

As has been discussed before, insurance companies would rather litigate cases in Federal Court instead of State Court.  The reasons are numerous.

One way to stay out of Federal Court is to defeat diversity jurisdiction under 28 U.S.C. Section 1332(a).  This is most commonly done by suing a local adjuster for the wrongs the adjuster has committed when the insurance company is an insurance company that maintains its main head-quarters out of state.

The Southern District of Texas, Houston Division, issued an opinion on October 30, 2018, wherein the Court sue sponte remanded a case back to the State Court after the insurer had removed it to Federal Court.  The case is styled, Joan Elaine Murray v. Allstate Vehicle and Property Insurance Company and Brandon Joseph Chisolm.

Insurance attorneys representing the insureds would prefer to fight cases in State Court.  One way of doing this is to successfully plead a case against the insurance adjuster.  Insurance companies would prefer to fight in Federal Court.

Here is a case wherein the case was filed in State Court against the insurer and the adjuster and removed to Federal Court by the insurance company.  The insurance company successfully kept the case in Federal court but expressly allowed the insured to replead the case against the adjuster.

The case was replead and now the insured is seeking to have the case remanded to the State Court.  This 2018, opinion is from the Northern District of Texas, Dallas Division and is styled, William W. Caruth, III, et al. v. Chubb Lloyd’s Insurance Company of Texas, et al.

When suing an insurance adjuster, it is necessary to articulate facts that show an adjuster did something wrong.  This is illustrated in this 2018, U.S. District Court, Northern District, Dallas Division, opinion styled, Recovery Resource Counsel v. ACE American Insurance Company, et al.

Recovery Resource Counsel (RRC) alleges it suffered wind and hail damage to its insurer ACE.  ACE hired Kirn to investigate the claim, who in turn hired Douglas Structure repair.  Douglas Structure subsequently issued a report that RRC’s property had not sustained any damage and the claim was denied.  RRC sued for breach of contract and various violations of the Texas Insurance Code.

The lawsuit was filed in State Court and ACE had the case removed to Federal Court where ACE claimed the case against Kirn was sued for the purposes of defeating diversity jurisdiction and was thus, an improper joinder.