Articles Posted in Uninsured/Underinsured Coverage

Uninsured motorist (UM) claims are in a category unto themselves.  This is illustrated in a 2019, opinion styled, Ali Duhaly v. The Cincinnati Insurance Company.  The opinion is from the Southern District of Texas, Houston Division.

Duhaly sued Cincinnati alleging breach of contract, among various other causes of action.  Duhaly worked for an employer who was insured by Cincinnati for (UM) coverage.  Duhaly was injured when a passenger in a vehicle owned by the employer.  The policy states that Cincinnati will “pay all sums the insured is legally entitled to recover as compensatory damages from the owner or operator of … an uninsured motor vehicle” to which ” no liability bond or policy applies at the time of the accident” or an underinsured motor vehicle to which the insurance coverage is insufficient to cover the damages.

Duhaly sued Cincinnati in State Court and Cincinnati timely removed the case to Federal Court.  Cincinnati filed a motion for summary judgment as to Duhaly’s breach of contract claim.

Texas insurance lawyers will find this interesting.

A person finds early on when dealing with an insurance company that simply making complaints and contacting the Texas Department of Insurance is a waste of time and effort.

If you are an attorney representing someone injured in an automobile accident and the person who cause the wreck is uninsured and the person injured has uninsured motorist (UM) coverage with their auto insurance company and the company is refusing to compensate their customer, here is a sample opening statement when trying this case to a jury:

Insurance lawyers will often run across the situation at issue in the 2018, Dallas Court of Appeals opinion, George Bryant v. Progressive County Mutual Insurance Company and Kristen Winkler.

This is a uninsured motorist (UM) case wherein Bryant sued Progressive and the adjuster, Winkler, for the harm caused by the UM driver and numerous insurance code violations.  The trial court severed the auto wreck from the bad faith insurance claims.  In an UM case, Brant first had to prevail at trial, which he did.  Bryant then continued his claims for insurance code violations.  The trial court granted a motion for summary judgment in favor of Progressive and this appeal followed.

Bryant alleged numerous appeal points but the one discussed here is the issue regarding the Texas Prompt Payment of Claims Act (PPCA).

The Fort Worth Court of Appeals issued an opinion on November 15, 2018, that is worthy reading for lawyers handling uninsured / underinsured motorist coverage (UIM).  The case is styled, William Blevins v. State Farm Mutual Automobile Insurance Company.

This case is an appeal from a trial by Blevins against State Farm wherein the jury ruled in favor of State Farm.  The opinion is lengthy and the majority of it deals with whether the decision by the jury was justified in light of the evidence.  What is dealt with here is the ruling by the court to not allow in evidence regarding the UIM coverage.

Blevins argued the trial Judge erred by declining to allow testimony about Blevin’s UIM coverage.

Sometimes figuring out what is an “accident” for uninsured motorist (UM) coverage is tricky.

In the 1999, Texas Supreme Court opinion styled, Mid-Century Insurance Company of Texas v. Lindsey, found coverage for the plaintiff, who was seated in the driver’s seat of a parked vehicle.  In a truck next to Linsey’s parked vehicle, a child tried to enter the cab by climbing through the back window.  In doing so, the child accidentally contacted a loaded shotgun, causing it to discharge and strike Lindsey in the head.  Lindsey’s carrier denied coverage on the grounds the injury did not “arise out of the use” of the vehicle and because the event was not an “accident.”  The court opined that an accident need not be an auto accident or collision; rather, it looked to the child’s intent and the reasonably foreseeable effect of his conduct to determine whether an accident had occurred.  Because the child did not intend to discharge the gun or injure Lindsey, and because neither result was reasonably foreseeable, the court determined Lindsey’s injury was caused by an accident.  Further, the court determined that Lindsey’s injury “arose out of the use” of the vehicle due to the fact that the accident was caused by the child’s attempt to enter the vehicle.  In reaching its decision, the court relied more on the fact that the child’s acts were unexpected and unintentional than on the role of the vehicle in the accident.

In a 2000, El Paso Court of Appeals opinion styled, State & County Mutual Fire Insurance Co. v. Trinity Universal Insurance Cos., a woman had been hit by a car as she tried to escape from the insured’s van after the driver had attempted to sexually assault her.  The court identified the following three-prong test under Lindsey for construing the “use” requirement of UM coverage: 1) did the accident arise out of the inherent nature of the automobile; 2) did the accident arise within the natural territorial limits of the automobile; and 3) did the automobile itself produce the injury (rather than merely contributing to the cause of the condition that produced the injury).  Applying these factors, the court found that the accident arose out of the use of the vehicle as a vehicle because “but for the vehicle and its position on the highway,” the woman would dnot have died from being struck by traffic.  Furthermore, she died on a roadway, which was “within the natural territory of the vehicle.”  But under the third factor, the use of the van was merely incidental in producing the victim;s death; it did not itself produce the injury.  The court noted that the victim was not struck by or pushed from the van; she did not fall from it; ans she was not injured by it.  Therefore, the Lindsey test was not satisfied.

A Parker County or Palo Pinto County insurance lawyer handling uninsured motorist (UM) claims need to understand how the terms “accidents” and “arise out of use” are looked at by Texas courts.

Texas decisions suggest that if an incident is intentional or criminal in nature, there may not be an “accident” for UM purposes.  If the incident is unexpected or unintended, Texas courts are more willing to find coverage.  The somewhat varying interpretations of “accident” and “use” require close scrutiny of the facts of each claim to determine if UM coverage is triggered.

Here is an example from the Texas Supreme Court in 1999.  The opinion is styled, State Farm Mutual Automobile Insurance Co. v. Whitehead.  In this case, the court ruled a drive-by shooting does not trigger UM coverage.  A passenger in a truck was injured when the truck in which she was riding hit a bridge stanchion after the driver lost control of the vehicle.  The driver lost control after being shot by the passenger of another vehicle.  The court determined the injury was purely incidental to the “use” of the vehicle because the shooting resulted from an independent and intentional act.  The fact that the automobile is the situs of the accident is not sufficient to establish the necessary nexus between the use of the vehicle and the accident.  As such, the court held the policy did not provide overage for the passenger’s injury.

Uninsured and Underinsured motorist coverage is required to be provided in automobile insurance policies according to the Texas Insurance Code, Section 1952.101(b).  However, this coverage can be rejected as long as the rejection is in writing, according to 1952.101(c).  This coverage is designed to compensate injured persons who are legally entitled to recover damages from persons who cause motor vehicle accidents who do not have coverage or do not have adequate coverage.

The auto policy insuring agreement provides that the carrier will pay damages “which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person, or property damage, caused by an accident.”  This coverage applies if the person causing the accident is either uninsured or underinsured.  Thus, legal liability or negligence must exist on the part of the uninsured or underinsured motorist in order to trigger this coverage.  The auto policy goes on to say that the owner’s or operator’s liability for these damages must arise out of the “ownership, maintenance or use” of the uninsured motor vehicle.

The 2004, Texas Supreme Court opinion, Old American County Mutual Fire Insurance Company v. Sanchez, says uninsured motorist coverage essentially enables a victim of a motor vehicle accident to recover from his or her insurer the amount, up to policy limits, the victim would have been able to collect from the person who caused the accident had that person been insured.”

Here a question for your insurance law attorney … If a car swerves into my lane and I drive off the road and wreck my car to avoid the accident, does my uninsured motorist (UM) policy cover the damages?  Answer … NO!

An auto policy includes within the definition of UM vehicle a hit and run vehicle whose operator or owner cannot be identified.  This definition incorporates the Insurance Code’s requirement in Section 1952.104(3) that there be physical contact when the owner or operator of the reported UM vehicle is unknown or unidentified.  This is further illustrated in the 1986, Texarkana Court of Appeals opinion, Goen v. Trinity Universal Insurance Company.

Likewise, a drive-by shooting in which there is no collision does not meet the UM physical contact requirement.

The Claims Journal published an article January 18, 2018.  It is titled, Insured Must Obtain Settlement Consent Where Policies Require It.  The article discusses a case from the 9th Circuit Court and looks at California law.  However, Texas law has the same laws as it relates to coverage.

The article tells us that where insurance policies require written consent from the insurer to enter into any settlement agreement, it is important to ask, for permission from the insurer before entering into a settlement agreement.  Failure to do so may void coverage.

That is what occurred recently in One West Bank, FSB v. Houston Casualty Co.  In the case, Houston Casualty issued a professional liability policy which had a restrictive condition requiring the insured to seek prior written consent prior to entering into any type of settlement agreement regarding a covered claim.

Here’s one for Grand Prairie insurance lawyers handling uninsured motorist (UM) cases.  It is from the Corpus Christi Court of Appeals and is styled, In Re Farmers Texas County Mutual Insurance Company.

This case arose from a wreck with an UM driver.  The real party in interest, Luzminda Llasos brought suit against her auto insurance carrier, Farmers, for UM benefits.  Llasos sued Farmers for breach of contract, violations of the Prompt Pay Act, and violations of the Texas Insurance Code, Section 541.060.  Her original lawsuit papers incorporated written discovery consisting of fifteen interrogatories, twenty-six requests for production, and thirty requests for admission.

Farmers filed a motion to sever and abate Llasos’s extra-contractual claims form the underling UM claim.