Dallas Fort Worth Insurance Lawyer Blog

ERISA Claim Or Not?

September 20, 2015 | Mark S. Humphreys

The above question is always being asked by insurance lawyers when someone sees them about an insurance claim. Whether a claim is covered by ERISA or not, makes a huge difference in how the claim is handled. A little insight into whether a claim is an ERISA claim or not is gleamed from a 2015, Fifth Circuit case. It is styled, Kelsey-Seybold Medical Group PA v. Great-West Healthcare of Texas, Incorporated.

Kelsey sued Great-West in Texas state court, alleging that Great-West had not paid the contractually required rate for medical services that Kelsey had provided to members of Great-West-affiliated healthcare plans. Great-West removed the case to federal court on the ground that Kelsey’s claims were completely preempted by ERISA. Kelsey moved to remand on the basis that its claims were not completely preempted and, therefore, the district court lacked subject matter jurisdiction. The district court declared the claims preempted and entered a take-nothing judgment in favor of Great-West. To determine whether a claim is completely preempted by ERISA, the Court applies the two-part test set forth in the case Aetna Health Inc. v. Davila: a claim is completely preempted if

(1) the claimant “could have brought his claim under ERISA § 502(a)(1)(B),” and

Crime Protection Insurance Policy

September 19, 2015 | Mark S. Humphreys

Fort Worth insurance lawyers will not see this situation very often. But it does happen. This is a case from the U. S District Court, Houston Division. The style of the case is Apache Corporation v. Great American Insurance Company.

Apache purchased a Crime Protection Policy from Great American. The Policy was an insurance policy meant to insure against several types of risk. One such category of risks the policy covered was “computer fraud.” The Computer Fraud section, or Section B.5 of the Policy read as follows:

5. Computer Fraud

Statutes Of Limitations

September 17, 2015 | Mark S. Humphreys

Dallas insurance attorneys know about limitations. As a reminder, a 2015 case from the U.S. District Court, Southern District of Texas, Houston Division, is worth reading. It is styled, Charles Van Tassel v. State Farm Lloyds, et al. Their are a number of issues in this case but this focus will be on the limitations imposed contractually by State Farm.

In this case, State Farm filed a motion for summary judgment based on the defense of limitations. The Court stated that the party asserting an affirmative defense, such as the statute of limitations or estoppel, bears the burden of proof on it.

In Texas, pursuant to Texas Civil Practices & Remedies Code, Section 16.051, the statute of limitations for a breach of insurance contract action is four years from the day the cause of action accrues. Under the “legal injury rule,” a cause of action accrues when a wrongful act causes the legal injury, even if the injury is not discovered until later.

Insurance Rates – How Are They Figured

September 15, 2015 | Mark S. Humphreys

It really is amazing some of the things insurance law attorneys can learn by reading the paper. You never know when some information may help in a court case. USA Today published an article that discusses how car insurance companies set their rates. The article is titled “Car Insurers Don’t Care If You Drive Well; Tips On Saving.”

Getting the best car insurance rates isn’t as simple as keeping your record clean, according to a recent report that says what you pay may have more to do with how well you pay your bills than how well you drive.

After analyzing more than 2 billion price quotes from more than 700 companies nationwide, Consumer Reports concluded that premiums are based more on the companies’ own interpretation of your credit score than accident rates or even drunken driving. For example, single drivers in Florida with a clean record and poor credit paid $1,552 more on average than similar drivers with great credit who had been convicted of driving drunk.

Reservation Of Rights Letter

September 13, 2015 | Mark S. Humphreys

Texas insurance lawyers need to understand the significance of a “reservation of rights” letter received from an insurance company. The Claims Journal published an article in 2008 that is educational. It is titled “Reservation of Rights Letters.”

What is a Reservation of Rights Letter?

Effective reservation of rights letters can be the difference between preserving policy defenses or paying on damages.

HomeOwners Policy And Judgment

September 12, 2015 | Mark S. Humphreys

Fort Worth insurance lawyers will be interested in this opinion from their own backyard. It is a Fort Worth Court of Appeals opinion issued in 2015, styled, Texas Farmers Insurance Company and Farmers Insurance Exchange v. Frank Kurosky and Pamela Rust.

Kurosky lives at 4325 Fossil Drive. He also owns a home at 4333 Fossil Drive, which he rents to his daughter, Rust. Kurosky has homeowners insurance on his home at 4325 Fossil Drive with Texas Farmers on which he is listed as the sole insured. Texas Farmers also issued an insurance policy for 4333 Fossil Drive that names both Rust and Kurosky as the insureds. Kurosky also has a personal umbrella policy with Farmers Exchange.

In June 2008, Rust was injured while riding a lawnmower in her backyard. She sued Texas Farmers in the 153rd District Court for medical benefits under both Fossil Drive insurance policies. Rust later added a negligence cause of action against Kurosky in her second amended petition, filed October 23, 2009. On November 25, 2009, Texas Farmers sent a reservation-of-rights letter to Kurosky to 4325 Fossil Drive, Fort Worth, Texas, as his address was listed on the policy. Kurosky claimed never to have received the letter because his address is in Haltom City. It is undisputed that he was represented by the attorney whom Texas Farmers retained and paid.

An ERISA Win

September 10, 2015 | Mark S. Humphreys

Lawyers handling ERISA claims will enjoy reading this 2015, Fifth Circuit opinion. It is styled, Rebecca Hamsher v. North Cypress Medical Center Operating Company, Limited.

North Cypress provides health insurance to its employees through its self-funded Employee Benefit Plan (the “Plan”). As with many insurers, North Cypress must pre-approve certain medical treatments. If pre-approval is required, but not received, North Cypress may reduce its payment to its beneficiaries, or deny reimbursement altogether.

The Plan has two types of pre-approval. The first is called “precertification,” and it applies to all “hospitalizations” and “inpatient mental disorder/substance use disorder treatments.” To precertify, the covered person or a family member must contact North Cypress’s medical management subcontractor, Meritain Health Medical Management, at least 48 hours before treatment is to begin. Meritain will then determine how many days of treatment are medically necessary. That said, a failure to precertify is not an absolute bar to reimbursement. “If a Covered Person does not obtain precertification, as required for certain benefits under the Plan, eligible expenses will be reduced by $500.”

Homeowners Claims And Limitations

September 8, 2015 | Mark S. Humphreys

Grand Prairie insurance lawyers need to look at the insurance policy first, when evaluating a claim. And one of the first things to look for in the policy is limitations on the dates when a claim must be filed.

The Galveston Division of U.S. District Court issued an opinion in 2015 dealing with a one year limitation in a policy. The style of the case is, Richard Batie and Connie Batie v. Southern Farm Bureau Property and Casualty Co.

This is a case wherein Southern Farm filed a motion for summary judgment based on limitations. The Batie’s home was damaged in flood waters during Hurricane Ike. Southern Farm sent out an adjuster and determined the Batie’s were owed $12,000. The Batie’s the hired a law firm which sent out a Proof of Loss (POL) for an additional $34,267.98, dated February 26, 2009. Southern Farm sent a letter dated April 9, 2009, denying the supplemental claim. On May 27, 2009, the law firm sent another letter seeking an additional $56,407.14, which was denied in a letter dated July 14, 2009. Then, the law firm sent another letter dated July 28, 2009, seeking policy limits of $349,000.00. The was rejected on August 4, 2009, by Southern Farm. On August 4, 2010, the Batie’s sued Southern Farm.

Insurance Companies Want To Be In Federal Court

September 6, 2015 | Mark S. Humphreys

Mineral Wells insurance attorneys can tell you that an insurance company would much prefer to fight a legal battle in Federal Court rather than State Court. In order to defeat them in this effort, it is vital to understand what Federal Judges look at when making a decision on whether a case gets to be maintained in Federal Court. The U.S. District Court for the Northern District of Texas, Dallas Division, provides guidance for what Federal Courts look for in a case. This is done in a 2015 case styled, Davis v. State Farm Lloyds and Leah McGee.

Plaintiffs Renee Davis and Reginald Davis filed this lawsuit against Defendants State Farm Lloyds and insurance agent Leah McGee for the improper handling of an insurance claim under a policy issued by State Farm. Plaintiffs alleged State Farm failed to pay the full proceeds of the policy and failed to settle the claim in an adequate and timely manner. They alleged that McGee constantly assured Plaintiffs that they were adequately insured and that McGee misrepresented to Plaintiffs that the insured person was covered by such peril although State Farm denied such coverage. The allegations were for violations of the Texas Insurance Code and The Texas Deceptive Trade Practices Act (DTPA).

This case was filed in State Court and timely removed by State Farm to Federal Court where State Farm alleged improper joinder of the agent McGee, to prevent diversity jurisdiction.

Vacancy Exclusion In Home Owners Policies

September 5, 2015 | Mark S. Humphreys

Insurance lawyers who handle home owners claims are all aware of the “vacancy exclusion” in a home owners policy. They may vary slightly from policy to policy but almost of the policies are going to have an exclusion that excludes losses that result when a home or building is vacant for a defined period of time.

The Claims Journal published an article in July of 2015 dealing with this issue. The article speaks to a Florida case but because of similarities in Texas and Florida insurance law, the article is worth reading. Here is what the article says.

Homeowner policies contain a vacancy exclusion. Under the terms of the standard vacancy exclusion, damage caused by “vandalism and malicious mischief” are excluded from coverage. However, is arson encompassed within the phrase “vandalism and malicious mischief?” That issue was recently decided by the Florida Court of Appeals in Botee v. Southern Fidelity Ins. Co.