State Bar of Texas
Texas Trial Lawyers Association
College of the State Bar of Texas

|

When an insurance company delays in paying a claim, the claimant may be entitled to relief under the Texas Prompt Payment of Claims Act.

The Texas Prompt Payment of Claims Act, Section 542.060 provides that

(1) if an insurer that is liable for a claim under an insurance policy is not in compliance with this subchapter, the insurer is liable to pay the holder of the policy or the beneficiary making the claim under the policy, in addition to the amount of the claim, interest on the amount of the claim at the rate of 18 percent a year as damages, together with reasonable attorney’s fees

Continue reading ›

|

Here is a case where the statute of limitations defense by the insurer did not work.  The case is from the Southern District of Texas, Houston Division.  It is styled, Arcelia Flores, et al v. Allstate Texas Lloyds.

Allstate filed a Motion for Summary Judgement based on the statute of limitations having expired before the lawsuit was filed.

The lawsuit filed by Flores arises out of alleged storm damage that occurred in August 2015.  The claim was filed on January 25, 2016.  Allstate evaluated the claim and sent a denial letter to Flores on January 28, 2016.  Flores filed this lawsuit on August 16, 2017.  Flores elected to effectuate service privately but did not serve Allstate with the summons and citation.  On February 8, 2018, Flores filed an amended petition and then on February 12, 2018, Allstate was served for the first time with the amended petition.  Allstate filed its answer to the first amended petition on November 26, 2018.  Allstate filed its Motion for Summary Judgement on June 3, 2019, based on the affirmative defense of statute of limitations.

Continue reading ›

|

When suing an insurance company for insurance fraud, especially in Federal Court, the insured needs to plead with specificity.  This is illustrated in a 2019, opinion from the Southern District of Texas, Laredo Division.  The opinion is styled, Salvador Aviles v. Allstate Fire and Casualty Insurance Company.

Aviles had a homeowners policy with Allstate when he sustained severe wind and/or hailstorm damage.  A disagreement arose as to the extent and amount of damages.

Aviles filed suit in State Court alleging fraud under the Texas Insurance Code, among other causes of action.  Allstate removed the case to Federal Court and thereafter filed a motion for partial dismissal of the fraud claims citing Federal Rules of Civil Procedure, 12(b)(6) and Rule 9(b).

Continue reading ›

|

The answer to the titled questions is partially addressed in a 2019 opinion from the Southern District of Texas, Corpus Christi.  The opinion is styled, MJ & JJ, LLC; dba Peacock Manor Apartments v. Clear Blue Specialty Insurance Company, et al.

After sustaining hurricane damage, Peacock sued Clear Blue, Madsen, Kneppers & Associates (MKA), Hylton Cruickshank, and Charles Jendrusch in State Court.  Clear Blue removed the case to this Court based on diversity jurisdiction.  Then they contend Cruickshand and Jendrusch should be dismissed.  Peacock file a motion to remand.

The parties agree Cruickshank and Jendrusch are not diverse, but the MKA defendants contend they were improperly joined, thus, removal to Federal Court was proper.

Continue reading ›

|

Insurance lawyers and anybody who has an insurance policy needs to know what the limitations period is in the insurance policy.  This is illustrated in the 2019, 5th Circuit Court of Appeals opinion styled, Lillian Smith v. Travelers Casualty Insurance Company of America.

Lillian sued Travelers for contractual and statutory violations that arose out of the denial of her commercial property claim for benefits.  Here are the facts.

Smith agrees that Travelers sent her an unambiguous letter, denying her claim for benefits.  She however, insists that her causes of action did not accrue until nine months later (rather than the date of the denial) because Travelers had agreed upon her request, to re-investigate her claim for damages.  After a re-investigation, Travelers affirmed they were standing by their original denial of the claim.

Continue reading ›

|

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.

Continue reading ›

|

When it comes to claims dealing with automobile policies, here is a case that needs to be read.  It is a 2019, opinion from the Texarkana Court of Appeals and is styled, Alan Kiely v. Texas Farm Bureau Casualty Insurance Company.

Kiely sued Farm Bureau in an effort to recover Personal Injury Protection (PIP) benefits that had been denied.  Summary Judgement was granted in favor of Farm Bureau and this is Kiely’s appeal from that ruling.  This Court sustained the ruling in favor of Farm Bureau.

The PIP policy at issue provided coverage up to $10,000 per person for each accident.  Texas Insurance Code, Section 1952.151, states PIP requires payment of all reasonable expenses that: (1) arise from an accident; ….

Continue reading ›

|

Insurance lawyers know that almost all insurance policies require that an insured provide to the insurance company, prompt notice of a claim.  The purpose of this prompt notice requirement is to allow the insurance company to investigate the claim while the facts of the claim are fresh.  However, if the insured fails to provide this prompt notice, the insurer is required to show that it was prejudiced or harmed by the insured’s failure to provide the prompt notice.  Here is a case discussing that issue.

The case is from the Fifth Circuit Court of Appeals and is styled, Blanco Properties, L.L.C. v. Arch Specialty Insurance Company.

Blanco owed commercial property insured by Arch.  Blanco’s owner did not discover April 2016, hail damage until October 2017 and did not file a claim until November 2017.  The claim was denied due to the policy containing a specific endorsement that explicitly required hail related claims to be brought within one year.  The District Court granted summary judgement in favor of Arch and this Court affirmed that judgment.

Continue reading ›

|

Claims involving property losses usually do not require expert testimony.  But, if they do require expert testimony, it is important for an insurance lawyer to know how present the expert.  This is illustrated in the 2019, opinion from the Southern District of Texas, Corpus Christi Division, styled, Mt Hawley Insurance Company v. TFP Properties III LLC.

Mt. Hawley filed this lawsuit against TFP asserting it had paid all sums owing under the commercial policy at issue.  After the lawsuit was filed, Mt. Hawley filed a motion to exclude the testimony of TFP’s property evaluation expert.

The courts are to act as gatekeepers by making preliminary assessment of whether the reasoning or methodology underlying an experts testimony can be properly applied to the facts at issue in the case.  Testimony that is based purely on the ipse dixit of the expert is not allowed.  The court’s determination regarding the admissibility of the expert evidence is subject to an abuse of discretion standard.

Continue reading ›

|

Interpreting the number of accidents or occurrences that are covered by a policy can be confusing.  The State Bar of Texas, Insurance Law Section, Insurance Journal, published an article titled, Texas Law And The Restatement Of The Law Of Liability Insurance: An Initial Comparison Of Blackletter Principles.  This article dedicates about a page discussing the issue.

The article tells us that for liability policies, the number of occurrences is determined by finding the number of events or incidents for which the insured is liable.  This is discussed in quite a number of Texas cases starting with the 1971, 5th Circuit opinion styled, Maurice Pincoffs Co. v. St. Paul Fire & Marine Ins. Co.

The Restatement of Law essentially mirrors Texas law in adopting a “cause” standard:

Continue reading ›