Dallas Fort Worth Insurance Lawyer Blog

Fortuity Doctrine In Insurance

February 16, 2014 | Mark S. Humphreys

Dallas insurance lawyers need to know how the “fortuity doctrine” works in insurance law. The 2001, Dallas Court of Appeals case styled, Scottsdale Insurance Company v. Travis, is a good case to read.

In this case, Scottsdale appealed a summary judgment granted in favor of South Texas Building Services, Inc. (“South Texas”) and Richard R. Robinson, ordering that Scottsdale owed South Texas and Robinson a duty to defend them in a lawsuit filed by William Barrett Travis, Maintenance, Inc., Maintenance of Houston, Inc. (“Maintenance Houston”), and Maintenance of Corpus Christi, Inc. (collectively referred to as “Maintenance”). Scottsdale contends the trial court erred in determining it had a duty to defend South Texas and Robinson because the allegations in the underlying petition arose out of a scheme that predated the inception of Scottsdale’s insurance policy and the original petition did not present claims triggering Scottsdale’s coverage. This court concluded the terms of the policy and the fortuity doctrine excluded coverage and reversed the trial court’s judgment.

Here is some factual background.

Loading Or Unloading A Vehicle

February 15, 2014 | Mark S. Humphreys

Insurance attorneys need to be able to read and interpret insurance policies in light of how the courts in Texas interpret the policies.

A 1970, Texas Supreme Court case styled, Commercial Standard Insurance Company v. American General Insurance Company is worth reading.

American brought this suit against Commercial and Berry Contracting, Inc., and its employees, Eugene J. Adams and J. W. Rosson, seeking a judgment declaring that its automobile liability policy (issued to Harris Concrete Co.) did not provide coverage to Berry and its employees against claims asserted against them by employees of the general contractor, Fuller Construction Company.

Disability Claims

February 13, 2014 | Mark S. Humphreys

Attorneys who handle disability claims in the Dallas – Fort Worth area need to have an understanding as to how “disability” is defined.

The most commonly used definition used in Texas law is the Worker’s Compensation definition. In the 1944, Texas Supreme Court opinion styled, Texas Employers’ Insurance Association v. Mallard, the Court held that the standard definition of “total incapacity” is that “a person is disqualified from performing the usual tasks of a workman, in such a way as to enable him to procure and retain employment …” This definition has been broadened over the years. Total disability as that term is defined under the Workers’ Compensation Act and as that term was defined for the jury in the workers’ compensation case does not preclude the possibility of rehabilitation. The definition of “total incapacity” given to the jury in the workers’ compensation case stated that it “does not imply absolute inability to perform any kind of labor, but means that one is disabled from performing the usual task of the worker, not merely the usual task of any particular trade or occupation, to such an extent that he cannot get and keep employment requiring the performance of the usual task of a worker.” This has been stated in at least two cases. One was the 1963, Texas Supreme Court case, Texas Employers Insurance Association v. Hawkins. The other is a 1992, Texarkana Court of Appeals case styled, Southwestern Electric Power v. Martin.

The definition of “Total Disability” is a little different. Total disability is a relative matter and depends chiefly on the circumstances of each case and on the nature of the occupation and the capabilities of the person injured. It does not mean absolute physical disability of the insured to transact any kind of business pertaining to his occupation, but exists if he is unable to do any substantial portion of the work connected therewith. This is told to us in the 1961, Texas Supreme Court case styled, Prudential Insurance Company of America v. Tate.

Insurance Policy Language

February 11, 2014 | Mark S. Humphreys

Arlington insurance attorneys know how important the language in a policy is and how that language relates to the facts in a claim. The Houston Court of Appeals issued an opinion in 1996, in the case styled, “Schulz v. State Farm Mutual Auto.” Here is some the relevant information in this summary judgment case.

The summary judgment evidence shows that Gunar Fulk, Schulz’s son, was driving a pickup truck owned by Schulz’s husband and insured by State Farm. Fulk, accompanied by a friend, gave a ride to Lonnie Earl Johnson. Some time thereafter, Johnson shot three fatal rounds into Fulk’s face and chest as Fulk was standing outside the truck. Johnson then killed Fulk’s friend with a shot to his back.

Schulz sued State Farm seeking to recover benefits under the personal injury protection (PIP) and auto death indemnity (ADI) coverages provided under a State Farm insurance policy that covered the vehicle. In her original petition, Schulz claimed Johnson pulled the gun in an apparent attempt to hijack the truck. She also claimed that, at the time the shots were fired, Fulk was either seated in the truck or, in the alternative, had been ordered at gunpoint to get out and was kneeling next to the truck. However, there is nothing in the record, other than Schulz’s assertions in her original petition, to support the allegations that Fulk’s truck was hijacked, that Fulk was ordered out of the truck or that Fulk was kneeling next to the truck when shot.

Life Insurance Claim Denial

February 9, 2014 | Mark S. Humphreys

Life insurance attorneys will tell you that the language used in the insurance policy is important to determining coverage. An experienced Insurance Law Attorney will also tell you there are many ways of getting around some of the language in a policy.

Here is a case where the facts were bad but the case still serves as an example of how the courts interpret policy language. The style of the case is Douglas v. Southwestern Life Ins. Co. It is a Tyler Court of Appeals opinion that was issued in 1964.

Here is some of the relevant information.

Jury Trials Declining In Texas

February 8, 2014 | Mark S. Humphreys

Trial attorneys are probably aware of a general decline in the number of cases going to trial in Texas.

Judge Patrick Higginbotham of the U.S. Court of Appeals for the Fifth Circuit has warned a group of lawyers and federal judges that civil jury trials are headed for extinction.

Judge Higginbotham has said “There are certain elites in this country who don’t trust juries.” And “The future of our jury system is very much in danger.”

When Is A Person “Totally Disabled”

February 6, 2014 | Mark S. Humphreys

Aledo insurance law lawyers need to be able to discuss how insurance companies interpret their policies that provide coverage for “total disability.” An old 1932 case from what was then called the Court of Commission of Appeals of Texas, Section A, is a good place to start reading. The style of the case is Kemper v. Police & Firemen’s Ins. Ass’n. Here is some information from that case.

The Kemper sued the insurer to recover $2,000 alleged to be due as insurance on the life of William H. Kemper, deceased husband, on a contract of insurance issued by the insurer to the deceased during his lifetime, in which certificate Kemper was named beneficiary. Trial in the district court with a jury resulted in a verdict and judgment for Kemper for the full amount of the policy. The policy of insurance made the basis of this suit contains, among others, the following provisions:

“Any and all such payments or liability to pay shall be and is in accordance with, subject to, each and all of the provisions of the by-laws of said association and of the provisions of any and all amendments, alterations and new issues of said by-laws, which said by-laws are hereby referred to and made a part hereof as fully as if they were recited at length over the signatures hereto affixed as soon as such amendments, alterations or new issues of said by-laws respectively are or may be duly adopted, and the said William H. Kemper hereby and by the acceptance hereof agrees to abide and be bound by said by-laws and each of them and by any and all lawful amendments, alterations and new issues thereof or of any of them.”

Death Benefits In An Insurance Policy

February 4, 2014 | Mark S. Humphreys

Tarrant County insurance attorneys need to be able to interpret policies when discussing possible cases with clients. The Texarkana Court of Appeals issued an opinion in a 1967 case, styled Willeford v. Home Indemnity Company that is helpful to read. Here is some of the relevant information.

Lewis Willeford, as plaintiff, sued defendant insurance company for $10,000.00 on an insurance policy covering defendant’s deceased wife, Cordia Willeford, allegedly due as a death indemnity benefit under said policy. Plaintiff and defendant both filed motions for summary judgment and the trial court entered summary judgment for defendant and denied plaintiff’s motion for summary judgment. However it appears that there was no dispute that plaintiff was entitled to recover $3,500.00 for the loss of sight of one eye sustained by Mrs. Willeford and the summary judgment awarded this amount to plaintiff. Plaintiff appealed, contending that he is entitled to judgment for $10,000.00, rather than $3,500.00.

Defendant issued its Family Automobile Policy to Lewis Willeford effective August 15, 1964, with endorsement 157 M. Under such endorsement, Willeford contends that he is entitled to the principal sum of $10,000.00 as a result of the death of his wife, Cordia Willeford, which occurred more than 90 days after the hereinafter referred to accident. The policy of insurance and endorsement provided in part as follows:

Auto Policy Definitions

February 2, 2014 | Mark S. Humphreys

Parker County insurance lawyers need to be able to read and discuss policy terms from a legal standpoint with prospective clients. A 1978, Dallas Court of Appeals case styled Republic Insurance Company v. Bolton may help in this regard.

M. Dean Bolton sued Republic Insurance Company, his insurer, for medical expenses and lost wages under the Personal Injury Protection (PIP) endorsement to his family automobile insurance policy. The injuries which formed the basis of Bolton’s claim resulted from an accident which occurred while he was driving a modified Volkswagen, referred to as a “dune buggy,” in an off-road race in Oklahoma. The sole disputed issue at trial was whether the dune buggy was a “motor vehicle” under the terms of the policy. This issue was submitted to a jury, which found that the dune buggy was a motor vehicle within the meaning of the policy. The trial court rendered judgment upon the verdict, and Republic appealed. This Court affirmed.

Republic’s initial argument was that the issue of whether the dune buggy was a motor vehicle under the policy was a question of law which should not have been submitted for jury determination, and hence, that the jury’s finding should be disregarded and judgment rendered against Bolton’s claim. Alternatively, Republic urges that the jury’s finding is against the great weight and preponderance of the evidence.

Policy Exclusions – Automobile

February 1, 2014 | Mark S. Humphreys

Mineral Wells lawyers need to be able to give advice regarding insurance policy exclusions. The 1966, Texas Supreme Court case styled, Williams v. Cimarron Insurance Co. is a good place to start. Here is some information about this case.

This is an action to recover medical, hospital and funeral expenses under the medical payments provision of an automobile insurance policy issued by Cimarron Insurance Co., Inc. The facts are stipulated and the controlling question is whether the stock car racer here involved is comprehended by the definition of ‘automobile’ contained in coverage C of the policy. The trial court held that it was not and rendered judgment that Williams, take nothing against the insurance company. The Court of Civil Appeals at Amarillo affirmed. This court ruled that the judgment of the Court of Civil Appeals was correct.

Jimmy Ray Williams, his wife and their minor son, James Richard Williams, were spectators at a race track located on private property when one of the stock car racers careened through the fence and struck all the members of the Williams family. Mr. and Mrs. Williams sustained serious personal injuries and James Richard was killed. The racer which struck them was a stripped-down 1947 Ford sedan with a 1954 Mercury motor owned by Carl Osborn and Robert R. Riddle. The vehicle had been originally manufactured by the Ford Motor Company, but it had been modified by Robert R. Riddle about a year prior to the accident and converted into a stock car racer and after modification, the vehicle had no tail lights, headlights or window glass. A screen wire served as a species of windshield. In front the car had a safety bar and two angle irons coming to a point about two and one-half (2 1/2) feet in front of the radiator, but it had no fenders, bumpers or horn. It was equipped with heavy-duty tie rods and spindles and oversized tires. The speedmeter cable was not connected and it was either towed or carried on a trailer to and from the race track. The vehicle was not licensed by the State of Oklahoma or any other state for operation upon the public roads and highways.