How to label the 18% penalty in the Texas Prompt Payment of Claims Act is a topic of much discussion in Insurance Law circles.  How is Section 542.060 to be labeled?  Maybe the damages awarded under the prompt payment statute are awarded simply for a failure to comply with a deadline.  The damages are not based on any level of malfeasance of the insurer.  Referring to the treatise, Couch on Insurance, the authors make the following point:

When the statute is silent on the matter, the determination of what kind of conduct of the insurer comes within the scope of the penalty statutes depends basically upon whether the statute is viewed as punitive or as compensatory.  Where it is the latter, the only conduct of the insurer required is of the negative character that the insurer did not pay, and therefore, was sued by the insured, and successfully.  When, however, the statute is viewed as punitive as is generally the case, there must be some misconduct of the insurer to justify the imposition of the penalty.  In general terms, these statutes apply to any improper conduct of the insurer with respect to delay in making payment, refusing to make payment, or stopping the making of payments.

With this analysis, the Texas prompt payment statute would fall within the “compensatory” group because the only conduct required of the insurer is the failure to pay or to timely process the claim, not other misconduct.

Opinions related to the Texas Prompt Payment of Claims Act and in particular the 18% penalty found in Section 542.060, have differed as to whether or not the 18% damages must be exemplary damages and not actual damage.  In that regard;

First, it is not clear at all that the legislature provided this relief without regard to the harm suffered by insureds.  As the respected authorities quoted in other Blogs point out, harm to the insured is a very important consideration.  Absent legislative history either way, or express statutory language either way, courts sometimes assume the grant of the remedy was made without reference to harm suffered by the insured.

Second, the awards necessarily are made with reference to the harm suffered.  An insured suffers harm in the amount of the benefits withheld.  The 18% damages increases and decreases in direct proportion to that harm.  The decisions to the contrary are wrong, because the 18% is multiplied exactly by the “amount of harm” to the insured.

Respected writers, Robert E. Keeton and Alan I. Widiss, argue that damages under the Texas Prompt Payment of Claims Act, Section 542.060(a), have a purpose of providing compensation to the insured.  They write:

The statutory provisions establishing remedies for the late payment or nonpayment of insurance claims are often regarded, and sometimes are characterized by the legislation specifically, as penalties.  Consequently, it is not surprising that some courts have adopted the view that because such legislation is “penal in nature,” the provisions should be subject to strict construction.  However, such awards may also appropriately be viewed as allowing an insured to recover compensation for consequential damages the claimant sustained (1) by having to pay an attorney (as well as other litigation expenses) to secure the insurance benefits and (2) by not having the use of the insurance benefits from the time when the insurance should have been paid.  Even when such a statute provides for an additional recovery of an amount that is calculated as a percentage of the insurance benefit that was due to the insured, in many instances such an amount does not fully indemnify the claimants for all of the adverse consequences that have resulted from the insurer’s wrongful denial of an insured’s claim.  Accordingly, in most circumstances, there is considerable justification for not according such statutory provisions a “strict” construction. 

When an insurer withholds insurance benefits, it deprives the insured of those benefits.  Arguably, that deprivation merits some form of compensation.  When the insurer forces the insured to litigate to recover money that is due under the contract, it imposes additional expenses and aggravation on the insured.  Those are elements the legislature reasonably could find deserve compensation.

Insurance lawyers who publish books, such as Robert E. Keeton and Alan I. Widiss, who publish Keeton and Widiss’ Basic Text on Insurance Law, have detailed the purposes of the 18% penalty found in the Texas Prompt Payment of Claims Act.

Imposing legislatively prescribed remedies whenever an insurer unsuccessfully contests a claim, even though the insurer acts reasonably in doing so, serves to compensate the insured for both the delay in the receipt of payment and the costs of engaging in the controversy with the insurer in order to recover (which in some circumstances are substantial).  A denial of an insurance claim typically has several consequences for an insured.  First, any time there is a denial of an insurance claim, that action obviously extends the period during which the insured must incur the adverse economic consequences of the loss without the benefit of being indemnified by the insurance.  Second, an insured who is forced to litigate to recover insurance incurs legal expenses – which include, but are not limited by the fees charged by a attorney – to secure the insurance payments.  Third, many insureds also sustain a variety of consequential problems, including harm to credit standing and loss of business.  When an insured is compelled to resort to litigation to recover insurance benefits, the insured is denied indemnification for what, at least in many instances, is a very significant aspect of the economic risks incident to the hazards against which the insured sought protection when the insurance was purchased.  Thus, when the payment of insurance benefits is only made after an insured has sought the assistance of an attorney and the legal process, the insured not only sustains added legal expenses but is denied the right to indemnification (which is one of the risks insureds seek to avoid through the acquisition of insurance).  Third,  most insureds have reasonable expectations that the net value to them of their insurance coverage, in the event of a loss, will not be reduced by a recalcitrant insurer.  If, because the insurer is found to have acted reasonably in rejecting the claim, an insured’s recovery is limited to an award of the amount of insurance benefits due, the amount provided by the insurance coverage – after the insurance recovery is reduced by the insured’s payment of the lawyer’s fee and other litigation expenses – is obviously diminished.  The net amount actually received by such a claimant is then insufficient to indemnify the insured, often falling far short of that which the insured reasonably anticipated would be available as an insurance benefit to offset the economic loss that resulted as a consequence of the insured event.  In such instances, it is surely a defensible legislative choice to determine that a layperson’s reasonable view of insurance benefits should be protected by allowing the insured to recover full indemnification whenever an insured is compelled to resort to a lawsuit in order to recover the insurance benefits – that is, to receive a total recovery from the insurer that provides net to the insured no less than the insurance benefits the claimant reasonably anticipated would be paid in the event of a loss.  Professors Keeton and Widiss conclude:  This is another situation in which contradictory canons of statutory construction potentially apply to a question of legislative interpretation: on the one hand, the canon of “strict” construction of “penal” statutes, and on the other hand, the canon of “liberal” construction to effectuate the apparent legislative purpose of protecting victims of wrongful denial of insurance benefits.

The law in Texas regulating the timely payment of claims is the Texas Prompt Payment of Claims Act.  It starts in the Texas Insurance Code, Section 542.051.  The 18% penalty is found in Section 542.060.

One commentator in, Couch on Insurance, has recognized that statutes which impose penalties for denying or delaying payment of a claim are penal in nature as to insurers and compensatory as to insureds.

The treatise states, ” Statutes imposing penalties on an insurer for its failure to meet its obligation on a contract of insurance have been described as “penal” and “highly penal” in character.  Couch also notes:

Under the Texas Prompt Payment of Claims Act, what is subject to the 18% penalty?  This will be a multi blog topic.

Courts are split on the issue of whether the 18% award is subject to prejudgment interest.  See the difference in 1995, Fort Worth Court of Appeals opinion, Marineau v. General American Life Ins. Co. and the 1997, Eastern District of Texas opinion styled, Teate v. Mutual Life Ins. Co. of New York.

The cases that consider the issue and decline to award prejudgment interest do so based on their reasoning that the 18% award is punitive in nature.  The courts reason that because punitive damages are inherently penal they should not be enlarged by the imposition of prejudgment interest.  For support, look at the 1999, Tyler Court of Appeals opinion Dunn v. Southern Farm Bur. Cas. Ins. Co. and the 2000, Dallas Court of Appeals opinion, Texas Farmers Ins. Co. v. Cameron, and the 2000, San Antonio Court of Appeals opinion, J.C. Penny Life Ins. Co. v. Heinrich.

The Texas Prompt Payment of Claims Act is found in the Texas Insurance Code, Section 542.051.  Under Section 542.060, a violation of the Prompt Payment of Claims Act allows recovery of an 18 percent interest on damages.  The question then becomes does the 18 percent apply when there is trebling of damages?

Texas Insurance Code, Section 541.152(b), allows recovery of actual damages caused by the unfair practices of an insurance company and then allows trebling of those damages if the conduct was committed “knowingly.”  The same facts may establish a violation of chapter 542 and a violation of chapter 541, but one is not a per se violation of the other.  Thus, an insured has to show actual damages caused by the unfair insurance practice.  It is unlikely that the 18 percent award could be shown to be damages caused by the unfair insurance practice.  The violation does not cause the 18 percent damages; it just causes the insurance company to be liable for those damages.  As a result, it seems unlikely the 18 percent damages ever would be subject to trebling.

The answer to how to apply the 18 percent damages would depend on whether the 18 percent is viewed as “damages,” “interest,” or a “penalty.”

When an insurance company makes an unjustified delay in paying a claim the Texas Prompt Payment of Claims Act allows interest on the amount of the claim at the rate of 18 percent a year as damages.  This statute is found in the Texas Insurance Code, Section 542.060(a).  But the statute does not say which amount is subject to this penalty.  Is it the amount of the claim submitted by the claimant, or is it the amount of the claim paid by the insurer, or is it the amount of the claim as ultimately determined by the trier of fact?  This is important to know because the insured may “claim” too much, the “claim” paid by the insurance company may be too small, and often no one knows the amount the notice of the “claim” is first given.

This issue is discussed in the 2004, Texas Supreme Court opinion styled, Republic Underwriters Insurance Co. v. Mex-Tex, Inc.  The court concluded that the “claim” is “the amount ultimately determined to be owed, which of course would be net of any partial payments made prior to that determination.”  The court felt this would encourage insurance companies to pay the undisputed portion of a claim early, which was consistent with the statute’s purpose to obtain prompt payment of claims.

The court also held that the 18 percent would be assessed on the entire amount of the claim in the insurer’s tender of partial payment was not unconditional.  Otherwise, the court reasoned, the insurance company could delay payment by insisting on a release to which it was not entitled.

Here is a 1974, opinion from the 14th Court of Appeals that is still good law today.  The opinion is styled, Janice Sue Milton v. Preferred Risk Insurance Company et al.

This is a lawsuit to recover benefits under the uninsured motorist provisions of an automobile policy.  The question for the Court is, at what point in time must the insured forward suit papers concerning a claim against an uninsured motorist, if the negligent party was insured at the time of the accident, but later became “uninsured” as that term is legally defined.

The Facts of this case are a little confusing and will not be discussed here.  The relevant Fact is that the insured, Milton, sued Preferred seeking benefits under her uninsured motorist provisions of her insurance policy with Preferred.

Insurance lawyers can generally get better out-comes for their clients when a case is litigated in a State or County Court versus in Federal Court.  There are ways of staying out of Federal Court but the way tried in this September 2019, opinion from the Southern District of Texas, Houston Division, seems unusual.  The opinion is styled, Phan VM Holding, LLC v. Evanston Insurance Company.

Phan sued Evanston in County Court and Evanston removed the case to Federal Court citing 28 U.S.C., Section 1332(a)(1), i.e., that the parties were diverse and that the amount in controversy exceeds $75,000, exclusive or interest and costs.  Phan filed a motion to remand arguing that the amount in controversy does not exceed $75,000.  When a defendant can show the amount in controversy exceeds the jurisdictional amount, then the burden is on the plaintiff to show that, as a matter of law, it is certain that he will not be able to recover more than the damages for which he has prayed.  This can be shown by Phan filing a binding stipulation or affidavit with the complaint that limits recovery to an amount below the jurisdictional threshold.  The law is clear that any ambiguities are construed against removal because the removal statute should be strictly construed in favor or remand.

In this case, Evanston claims the actual amount in controversy is Phan’s estimate of $848,972.11 which Phan seeks to be determined by appraisal.  Evanston says that Phan’s binding stipulation is misleading because Phan’s pleadings do not bar an appraisal award within the constraints of the stipulation.  The Court points out that a statement in the that Phan and counsel will neither seek nor accept more than $75,000 in state court after remand establishes to a legal certainty that Phan will not be able to recover more than $75,000.  In this case, Phan’s stipulation contains both such provisions.  Thus, Phan’s binding stipulation contains both such provisions and the case was remanded.