Dallas Fort Worth Insurance Lawyer Blog

Who Can Be Sued And How Much Can Be Recovered

September 12, 2013 | Mark S. Humphreys

Fort Worth insurance lawyers will have potential clients come in their doors complaining of being done wrong by an insurance company. One of the ways to help a client make a recovery in their case, besides the Texas Insurance Code, is the Texas Deceptive Trade Practices Act (DTPA).

The DTPA does not limit who may be sued except for one seldom used media exception found in Section 17.49. Instead, the right to sue depends on whether the plaintiff qualifies as a “consumer” under the DTPA. This is established with respect to the underlying transaction. Once it is shown that the plaintiff sought or acquired goods or services by purchase or lease, the plaintiff is a “consumer” as to all persons involved in the transaction. This is told to us by the DTPA and in case law. The case law is from the Texas Supreme Court case, Cameron v. Terrell & Garrett, Inc., a 1981 case.

There is a long line a Texas appeals court cases that say privity of contract is not required to be classified as a consumer.

Insurance And Tort Reform

September 10, 2013 | Mark S. Humphreys

Dallas area attorneys will keep up with changes in the law. This is true regarding tort reform that effects any part of insurance.

The consumer group, Texas Watch, published an article titled, “Ten Years Later: How House Bill 4 Has Harmed Texans.” Here is what the article tells us.

Riding an electoral wave that saw the election of Rick Perry to his first full term as governor, a large class of freshman members in the House, and speaker, Tom Craddick, the corporate immunity lobby tilled fertile ground during the 78th Legislature in 2003. This lobby and their functionaries in the Legislature rammed through HB 4 in 2003, an omnibus package of restrictions that were sweeping in scope and unprecedented in their destructive effect on the rights and lives of everyday Texans.

False, Misleading, And Deceptive

September 8, 2013 | Mark S. Humphreys

Dallas insurance lawyers know the ways the Texas Insurance Code and the Texas Deceptive Trade Practices Act (DTPA) interact with each other and how to use both to help clients who are being jerked around by an insurance company.

Texas Insurance Code, Section 541.151, says that a person who sustains damages by someone engaging in the business of insurance can bring an action against that other person for any act specifically enumerated in Section 17.46(b) of the Texas DTPA.

The DTPA provides a cause of action for conduct defined in the “laundry list” of Section 17.46(b). The most useful prohibitions for insurance cases found in the subparagraphs to this provision are:

Implied Permission To Use A Car

September 7, 2013 | Mark S. Humphreys

Grand Prairie insurance lawyers who deal with auto insurance need to know how the courts treat cases dealing with “implied permission” in a car insurance situation.

A 1967, Corpus Christi Court of Appeals case is still good law on this issue. The style of the case is, The Phoenix Insurance Company v. Allstate Insurance Company.

Here is some of the relevant information.

Permissive Driver

September 5, 2013 | Mark S. Humphreys

Parker County lawyers need to know how the courts interpret “permissive driver” in an insurance policy.

A 1989, Dallas Court of Appeals case gives good guidance for answering this question. The style of the case is, United States Fire Insurance Company v. United Service Automobile Association. Here is some of the relevant information.

The underlying liability lawsuit arose out of an accident that occurred when Anna was riding back with Douglas Martin from a church sponsored retreat. The car Douglas was driving was owned by his father and was covered by the U.S. Fire policy. Douglas testified that there was some swerving and horseplay prior to the accident. Anna testified that Douglas was zigzagging the wheel back and forth prior to the accident and that she grabbed the wheel on two occasions prior to the accident in an effort to play back with him. The first time Douglas did not object, and the second time was immediately prior to the accident. Anna testified that she and Douglas were “just kind of playing around.” Deposition excerpts are made a part of the record pursuant to stipulations. Anna brought suit against Douglas for injuries she sustained in the accident. Douglas counterclaimed against Anna for his injuries. This counterclaim gives rise to the dispute regarding the duty to defend. The relevant portion of Douglas’s counterclaim states as follows:

What Is A Defense For The Insurance Company In Paying A Claim Promptly

September 3, 2013 | Mark S. Humphreys

A Grand Prairie insurance attorney needs to be able to distinguish between legitimate requests for information by an insurance company and requests that are not so necessary for their investigation of a claim.

The Prompt Payment of Claims Act allows the insurance company to request information it reasonably believes will be required. Deadlines are then postponed while they wait for this information from the claimant. An unreasonable request by an insurance company will not postpone any deadlines and thus lead the insurance company to violate the statute regarding deadlines.

The Corpus Christi Court of Appeals issued an opinion in 2000, that provides so pretty good guidance on this issue. The style of the case is, Colonial County Mutual Insurance Company v. Valdez. Here is some relevant information.

Attorney Fees In Insurance Cases

September 1, 2013 | Mark S. Humphreys

Dallas insurance lawyers and for that matter, almost all attorneys are going to be able to discuss with a client the various rules and statutes that allow for recovery of attorney fees in cases.

The Texas Civil Practice & Remedies Code, Chapter 38, is the first rule most attorneys will learn about regarding recovery of attorney fees.

Section 38.001 tells us that a person may recover reasonable attorney’s fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for:

Late Payment And Cumulative Remedies

August 31, 2013 | Mark S. Humphreys

Dallas insurance lawyers are probably already aware of some of the penalties and remedies available when an insurance company violates the Texas Prompt Payment of Claims Act.

Section 542.061, should be known and read by all insurance attorneys. It says:

“The remedies provided by this subchapter are in addition to any other remedy or provision provided by law or at common law.”

Penalties For Not Paying Promptly

August 29, 2013 | Mark S. Humphreys

Fort Worth insurance lawyers would know the penalties available when an insurance company does not promptly pay a claim.

The Prompt Payment of Claims Act provides for 18% per annum damages, in addtion to the amount of the claim, plus attorney fees, plus this is on top of other types of remedies that may be available.

Section 542.060 says:

When Should I Get A Check From The Insurance Company?

August 27, 2013 | Mark S. Humphreys

Tarrant County Insurance lawyers should be able to give you a response to the above question.

The first place to look for guidance is the Texas Insurance Code, Section 542.057(a). This section requires payment by the fifth business day after the claim is accepted by all insurance companies except surplus lines insurance companies. Surplus lines insurance companies have 20 business days to make payment.

The 1998, case Daugherty v. American Motorists Insurance Company is from the Houston Court of Appeals [1st Dist.] and has held that oral notice that the insurance company intends to pay the claim is not sufficient.