Dallas Fort Worth Insurance Lawyer Blog

Attorneys who handle insurance claims denial cases learn real fast about the requirement to segregate damages, especially with roofing cases.  This is illustrated in a 2020, Eleventh Court of Appeals opinion styled, Prime Time Family Entertainment Center, Inc. v. Axis Insurance Company and Andrew Jencks.

This case presents the question of whether an insured that receives a payment from the insurer on its claim is excused from complying with the requirement to segregate covered losses from non-covered losses under the doctrine of concurrent causes if it later brings a suit for breach of contract.

This is an appeal from a grant of summary judgment in favor of Axis.  This Court affirmed the ruling.

Bad Faith claims will sometimes require a separate trial.  This is illustrated in a 2020, Tyler Court of Appeals opinion styled, In Re: Progressive Casualty Insurance Company.

This case is a mandamus action resulting from the trial court refusing to sever and abate the extra-contractual claims and compelling discovery.

The real party in interest is Phillip Davidson.  Davidson had submitted a claim to Progressive for hull damage to his boat.  Progressive denied the claim.  Progressive later offered to settle the disputed claim for the costs of the repairs in the amount of $11,500.  Davidson filed suit seeking damages for breach of contract, Insurance Code violations and DTPA violations.

The primary purpose of liability insurance is to cover harms caused by negligence. Thus, an intentional act is not covered.  This is discussed in a 2020, opinion from the Eleventh Court of Appeals.  The opinion is styled, Joe Torres v State Farm County Mutual Insurance Company of Texas.

This is an appeal from a Stowers action against State Farm.  In trial, the jury found that State Farm’s insured, Edward Aguilar, intentionally cause injury to claimant, Joe Torres.  The trial court entered a take nothing judgment in favor of State Farm and this appeal followed.

This case arises out of Aguilar getting drunk, getting into an altercation with Torres, Aguilar getting in his car and leaving the scene, then turning around and running his insured vehicle into Torres.

Claim denial attorneys know that a prerequisite to filing a lawsuit against an insurance company for a first party claim is to give a pre-suit notice letter.  Failure to do so will result in a loss of potential causes of action.  This is illustrated in a 2020, opinion from the Southern District of Texas, Houston Division.  The opinion is styled, Nexxt Holding, Inc. v. Travelers Cas. Ins. Co. of Am.

Nexxt Holding sued Travelers in 2020, alleging that Travelers failed to pay repair costs due under the insurance policy  after a August 2017 storm.  Nexxt asserted Texas statutory and common-law claims and sought actual, consequential, and statutory damages, as well as attorneys’ fees.  Travelers answered the lawsuit and filed a verified plea of lack of presuit notice under Texas Insurance Code, Section 542A.003.

Texas Insurance Code, Section 542A.007(d) states that, if an insured plaintiff asserts a first-party claim for storm damage against its property insurer and the defendant insurer “pleads and proves” that it “was entitled to but was not given a presuit notice stating the specific amount alleged to be owed . . . under Section 542A.003(b)(2) at least 61 days before the date the action was filed . . . the court may not award to the [plaintiff] any attorney’s fees incurred after the date the defendant files the pleading with the court.”

Here is a case from the Northern District of Texas, Dallas Division, that discusses the voluntary / involuntary rule related to joining adjuster in a lawsuit.  This 2020, opinion is styled, Jason Bowers and Casi Bowers v. Chubb Lloyd’s Insurance Company of Texas.

The Bowers who alleged to have suffered hail and wind damage sued their insurer, Chubb, and Chubb’s adjuster Bernard Dang, for denial of the claim.

On July 28, 2019 the Bowers provided the defendants with the pre-suit notice required under Texas Insurance Code, Section 542A.003.  Then on October 22, 2019, filed suit in State Court against Chubb and Dang.

When a claim gets denied and the insured has to file a lawsuit, a decision has to be made as to which Court the lawsuit should be filed.  For the insured, that decision is usually to file suit in the State or County Court.  However, the insurance company is virtually always going to remove the case to Federal Court when it can do so.

The above brings us to a 2020, opinion from the Western District of Texas, San Antonio Division.  The opinion styled, Pablo Cerda v. Allstate Fire and Casualty Insurance Company, discusses what sometimes happens if everything is not done properly by the attorney.

The undisputed facts show Cerda filed an Original Petition in State Court naming Allstate as the sole defendant on March 27, 2020.  On May 6, 2020, at 3:21 p.m., Allstate filed in this Federal Court its Notice of Removal, attaching the Original Petition and other required documents.  Also on May 6, 2020, at 3:27 p.m., Cerda filed in State Court a First Amended Petition.  Finally, at 3:51 p.m., on May 6, 2020, Allstate filed in State Court its Notice of Removal of the case to this federal court.

The issue of which county is a proper county to file a lawsuit against an insurance company is not normally an issue.  However, a 2020, Beaumont Court of Appeals had this issue before them in a mandamus action styled, In Re Mountain Valley Indemnity Company, Shane Waddell, Lonnie Tidwell, National General Insurance Company, and Prostar Adjusting.

Plaintiff sued the above Defendants, including the insurance company and adjusters and agents in a lawsuit arising out of homeowners insurance policy claim wherein Plaintiff’s home suffered property damage.  Plaintiff filed the lawsuit in Jefferson County, where some of the acts complained of occurred, and then Defendants filed a motion to have the case transferred to Montgomery County, where the home is located,  pursuant to Texas Civil Practices & Remedies Code, Section 15.011.  The Judge in the case denied the Defendants motion to transfer the case and this mandamus action ensued.

Defendants argued that Section 15.011 is a mandatory venue provision and since the property was located in Montgomery County, it was mandatory that the case be heard there.  They also argue that Section 15.032, a permissive venue statute applies because Montgomery County is where the insured property is located.