Dallas Fort Worth Insurance Lawyer Blog

Timing Of Removal

July 17, 2019 | Mark S. Humphreys

Insurance lawyers always want to remove cases filed by insured’s to the Federal Courts. In most instances they are successful in these efforts. Here is a situation where the insurance lawyers were too late in getting the case removed to Federal Court.

This case is from the Southern District of Texas, Houston Division. It is styled, Solaiha Enterprises LLC v. Amguard Insurance Company.

Amguard was the insurer for Solaiha when Solaiha made a claim for property damage. Amguard refused to pay the claim and Solaiha sued Amguard and Ronnie Patel, the agent who sold the policy. The lawsuit was filed on May 4, 2017, in State Court. Solaiha dismissed its claim against Patel in late February of 2019. Amguard filed a Notice of Removal on March 14, 2019, and Solaiha promptly filed this Motion to Remand arguing that Amguard was untimely in filing its Notice of Removal.

Timing Of Accepting Responsibility For Agent

July 14, 2019 | Mark S. Humphreys

Here is an opinion issued by a Magistrate Judge from the Western District, Austin Division, which says that the insurer was too late in accepting responsibility for the acts of its agent, the adjuster, when the company accepted responsibility the day before removal was filed. The case is styled, Robbins Place West Campus, LLC v. Mid-Century Ins. Co. and Jillian Meghan Sherman.

In this case, Robbins had commercial insurance coverage with Mid-Century when Robbins suffered wind and hail damage. Robbins was unhappy with the way the claim was handled by the adjuster, Sherman, and sued Sherman and Mid-Century in State District Court for various violations of the Texas Insurance Code and breach of contract.

Pursuant to Texas Insurance Code, Section 542A.006, Mid-Century made an election to legal responsibility for Sherman. The next day, Mid-Century removed the case to this Federal Court.

Segregating Damages

July 13, 2019 | Mark S. Humphreys

Lawyers handling insurance claims run into situations where damages that have occurred to property have to be segregated. This happens most often in the context of hail and wind damage to property. The U.S. District Court Northern District of Texas, Dallas Division, issued an opinion that does a good job of discussing how the courts are to look at these situations. The case is styled, Generation Trade, Inc. v. Ohio Security Insurance Company.

In this case, Generation bought the subject property in 2014, and had it covered by Ohio ever since. In July 2017, Simon, the owner of the property, observed hail damage and promptly reported the damage to Ohio. Ohio inspected the roof and acknowledged there was hail damage but after reviewing hail events over a period of time was unable to determine when the loss occurred.

This property was originally built in 1981 and was covered with a 24 gauge metal roof except for a small portion of the roof that was installed in May of 2016, that had 26 gauge roofing.

Insurance Law And Trials

July 10, 2019 | Mark S. Humphreys

Here is a situation where the insured won at the trial level of the case but ended up losing on appeal. The case is from the Amarillo Court of Appeals and is styled, State Farm Lloyds v. Robert MacKeen and Rebecca MacKeen.

The facts in the case are not particularly long or confusing but there were certain aspects of the case wherein State Farm admittedly did not handle the claim properly and as a result State Farm paid the damages incurred plus penalty pursuant to the Texas Insurance Code, Prompt Payment of Claims Act.

However, there were other parts of the claim that were still in dispute and the resulting lawsuit went to trial. The jury in the MacKeen’s case found in the MacKeen’s favor and this appeal followed.

National Flood Insurance Program And Limitations

July 7, 2019 | Mark S. Humphreys

Lawyers who handle National Flood Insurance Program claims, otherwise known as the National Flood Insurance Act of 1968 (NFIA) need to understand the difference between NFIA claims and other insurance claims. One of the big differences is the shortened statute of limitations that applies to NFIA claims.

This is illustrated in a U.S. Fifth Circuit Court of Appeals opinion styled, Al Cohen v. Allstate Insurance Company; Rachael G. Ray.

NFIA was created to make flood insurance available on reasonable terms and to reduce fiscal pressure on federal flood relief efforts. NFIA established the National Flood Insurance Program (NFIP) , which allows private insurance companies such as Allstate, to issue insurance policies on behalf of the federal government. These companies are called Write Your Own (WYO) carriers.

Texas Insurance Code, Section 542A.006

July 6, 2019 | Mark S. Humphreys

The Texas Insurance Code, Section 542A, became the law in Texas in September 2017. The cases involving this law are working their way through the Court system. This law was recently discussed in a U.S. Southern District, Houston Division opinion styled, Greatland Investment, Inc., a/b/a Southwest Plaza v. Mt. Hawley Insurance Company and Kevin Wilson Mayfield.

Greatland had property insurance with Mt. Hawley when it’s property was damaged in a storm. Greatland assigned Mayfield to inspect and adjust the claim. Mayfield found the claim did not fall within Greatland’s policy and Mt. Hawley refused to pay the claim.

On December 3, 2018, Greatland sent a demand letter to Mt. Hawley stating its intent to sue Mt. Hawley and Mayfield and others. On January 15, 2019, Mt. Hawley responded and notified Greatland that Mt. Hawley was electing to accept liability for all its employees and the adjuster pursuant Texas Insurance Code, Section 542A.006. On March 1, 2019, Greatland sued Mt. Hawley and Mayfield in Texas state court for breach of contract and Texas Insurance Code violations.

Insurance Company Accepting Responsibility For Adjuster

July 3, 2019 | Mark S. Humphreys

Most Insurance Lawyers are by now, aware of the new insurance law that went into effect in Texas as of September 2017. This new law is found in the Texas Insurance Code, Section 542A.006(a)-(c). The law law allows an insurance company to accept liability to for an adjuster.

This new law was at issue in the Southern District of Texas, Houston Division opinion styled, Sucheta Vyas and Davis Vyas v. Atain Specialty Insurance Company and Team One Claims.

The Vyas’ had insurance with Atain. The Vyas allegedly suffered storm related damage to property they owed, and made a claim with Atain. Atain hired Team One to adjust the claim. The Vyas sued Atain and Team One in State District Court alleging that Team One’s unreasonable investigation led to the wrongful underpayment and or denial of their claim.

Claims – Segregating Damages

June 30, 2019 | Mark S. Humphreys

For Insurance Attorneys, here is a case that is important to know and understand. The case is from the Western District of Texas, San Antonio Division. It deals with segregation of damages when required under an insurance policy. The case is styled, Mark Sadovsky v. Nationwide Property and Casualty Insurance Company.

Sadovsky had a home owners policy with Nationwide on April 12, 2016, when he suffered alleged hail and wind storm damage to his home. On April 20, 2016, he submitted a claim and Nationwide eventually paid the claim and closed the claim.

In the spring of 2017, Sadovsky noticed several neighbors having their roofs repaired. A neighbors contractor inspected the roof and informed Sadovsky of unrepaired hail damage and informed Sadovsky that the costs of repair would be $68,372.89.

Prompt Notice To Insurance Company Of Claim

June 29, 2019 | Mark S. Humphreys

Insurance attorneys know that a requirement of most insurance policies is that an insured give prompt notice to their insurance company of any claim. This is illustrated in a recent Western District of Texas, San Antonio Division opinion styled, Mark Sadovshy v. Nationwide Property and Casualty Insurance Company.

This lawsuit arises out of a hail and wind damage claim filed by Sadovshy against Nationwide. Sadovsky sued Nationwide for violations of the Texas Insurance Code and Breach of Contract. This case is being decided now on a Motion For Summary Judgment filed by Nationwide.

Nationwide claims it is entitled to summary judgment because Sadovsky failed to perform under the insurance contract by timely notifying Nationwide of his claim for damages.

Timely Naming A Defendant In Federal Court

June 26, 2019 | Mark S. Humphreys

When insurance lawyers know of a defendant who could be named in a lawsuit, they need to sue that defendant immediately. Waiting until after a non-diverse defendant has removed the case to Federal Court may be waiting too long. This is illustrated in the Southern District of Texas, Houston Division, opinion styled, Ali Duhaly v. The Cincinnati Insurance Company.

Duhaly sued Cincinnati in State Court alleging Cincinnati was liable for injuries incurred in a car wreck with Broderick Williams. But, in the lawsuit Duhaly did not sue Williams until after the case was removed to Federal Court. Cincinnati alleges the attempt to sue Williams after removal is only an attempt to defeat diversity jurisdiction.

Federal Rule of Civil Procedure 15(a) states that the court should freely give leave to amend when justice so requires. But this is not automatic. The Fifth Circuit has said that when a party seeks to amend to add a new, non-diverse party, the amendment should be closely scrutinized.