Dallas Fort Worth Insurance Lawyer Blog

Dismissal Can Be Hard In Federal Court – Got To Have Experienced Insurance Lawyer

November 11, 2018 | Mark S. Humphreys

Having an experienced insurance law attorney is vital. Otherwise you can end up with a situation that occurred in the Eastern District of Texas, Sherman Division. The case is styled, Mike and Jacqueline Sanchez v. Safeco Insurance of Indiana.

The Sanchez’s filed a Motion to Dismiss Without Prejudice. In other words, the Sanchez wished to dismiss their lawsuit against Safeco. However, by filing the motion “without prejudice” would allow them to refiled the lawsuit against Safeco. For this reason, Safeco contested the motion.

The United States Fifth Circuit Court of Appeals recognizes that as a general rule, motions for voluntary dismissal should be freely granted unless the non-moving party will suffer some plain legal prejudice other than the mere prospect of a second lawsuit. The primary purpose of Rule 41(a)(2) is to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions.

Experienced Insurance Lawyer

November 10, 2018 | Mark S. Humphreys

In cases involving insurance, an experienced insurance lawyer needs to be hired. This is illustrated in an Austin Court of Appeals opinion styled, Jessica Dennis and Douglas Dennis v. GEICO.

In August 2016, GEICO sued the Dennises, alleging that a “motor vehicle owned by Plaintiff’s insured Rene Zavala … was damaged by a vehicle negligently operated by Douglas Dennis, whose negligence proximately caused the collision and damages in the amount of $10,417.28. Plaintiff compensated its insured for the loss, thereby becoming subrogated in the amount of $10,417.28.” The petition further alleged that, “at the time of the collision, Jessica Dennis was the owner of the motor vehicle driven by Douglas Dennis, and the vehicle was operated with Jessica’s consent and knowledge. Upon information and belief, Jessica wrongfully and / or negligently entrusted his/her motor vehicle to an incompetent, reckless, unlicensed and uninsured driver”

The Dennises filed an answer and counterclaim asserting that it was Zavala, not the Dennises, who negligently caused the collision. The Dennises later filed with the Court a number of documents purporting to demonstrate the damages they incurred as a result of the collision. Douglas also filed an affidavit alleging that Zavala’s negligence caused the collision.

Pleading Bad Faith

November 8, 2018 | Mark S. Humphreys

Bad Faith insurance claims require specific pleading in Federal Court. This is illustrated in the Northern District of Texas, Fort Worth Division, opinion styled, Charlotte R. Carroll v. State Farm Mutual Automobile Insurance Company.

Carroll alleges:

The plaintiff filed a claim with the defendant under her insurance policy after a severe blow out on the expressway. After several weeks of getting the run around, the defendant deceived the plaintiff into believing a check they mailed to her in the amount of $3496.94 would completely pay for all covered repairs to the plaintiffs vehicle. Which was more than far from the truth.

Regular Use Definition In Auto Policy

November 6, 2018 | Mark S. Humphreys

Insurance policies have to be read carefully by an insured and by the insurance law lawyers who want to help the insured. This is illustrated in an Austin Court of Appeals case styled, Progressive County Mutual Insurance Company v. Edwin Emenike.

This is a summary judgment case granted in favor of Edwin. Progressive filed an appeal and this Court then reversed and rendered in favor of Progressive.

The facts are undisputed.

Suing The Insurance Agent

November 4, 2018 | Mark S. Humphreys

Here is a case where an insurance law lawyer sued an agent and was able to prevent the case from being held in Federal Court. The case is from the Southern District of Texas, Houston Division, and is styled, Mary’z Mediterranean Cuisine, Inc. v. Blackboard Insurance Company f/k/a Hamilton Insurance Company, Texas General Insurance, and Mir Khan.

This lawsuit was filed in State District Court and the defendants removed it to Federal Court based on their assertion that Texas General and Khan were improperly joined in an effort to defeat diversity jurisdiction. Mary’z filed a motion to remand to State Court which the Court granted. Here is why:

Mary’z alleges that Khan and Texas General sold a commercial policy to Mary’z with full knowledge of Mary’z business operations, building design, and Mary’z lack of an internal fire alarm by falsely representing to Mary’z that damages caused by a fire would be covered by the policy. A fire occurred and Blackboard denied the claim based on Mary’z not having an internal fire alarm.

Animal Exclusion In Liability Policy

November 3, 2018 | Mark S. Humphreys

In places like Weatherford, Texas and Mineral Wells, Texas, knowing about animal exclusions in insurance policies is important. Areas that are rural are usually more inclined to have people who own animals of one type or another. Dogs may be particular to more urban areas but in the rural areas there is greater likelihood of persons owning bigger dogs plus, horses and cows.

Animal exclusions become important in these more rural areas and animal exclusions is discussed in a Western District of Texas, Austin Division opinion styled, Colony Insurance Company v. Burleson County Saddle Club, Inc.

Colony filed a declaratory judgment action seeking to have the Court declare that there is no coverage in this case. A person was injured while riding a horse at a sporting event at the Burleson County Saddle Club. Burleson sought coverage from Colony.

Delaying In Paying Insurance Claim

November 1, 2018 | Mark S. Humphreys

Here is an opinion from the 14th Court of Appeals that concerns the Prompt Payment of Claims Act. The opinion is styled, William Marchbanks v. Liberty Insurance Corporation.

This is an appeal from the trial court granting summary judgment in favor of Liberty. This appeals court affirmed the trial court.

Marchbanks reported a hail damage claim to Liberty and the same day Liberty acknowledged the claim and sent an adjuster to the property the next day. The adjuster determined that any roof damage was not storm related and Liberty sent a denial letter explaining no storm related damaged was found.

Duty To Cooperate

October 30, 2018 | Mark S. Humphreys

Here is a Dallas, Texas opinion that insurance lawyers need to read. It is from the Dallas Court of Appeals and is styled, American National County Mutual Insurance Company v. Jonathan A. Medina.

On October 30, 2009, Angel Freeman ran a stop sign and crashed into Medina who was riding a motorcycle. The cycle was totaled and Medina was injured. Angel had a 1998 Dodge Ram that was listed as a covered vehicle on an ANPAC policy belonging to Paul and Katie Freeman. Angel is Paul’s sister.

After the wreck, a question arose as to who owned the Ram. and whether it was insured by Paul’s policy. If the truck was not owned by Paul, it could not be covered by the policy. Paul and Angel both told ANPAC that Paul sold the vehicle to Angel for cash four weeks before the accident, on October 1, 2009, and both gave written statements to ANPAC to that effect. Angel never put the title into his name. ANPAC cancelled the policy effective October 1, and refunded premiums paid. On December 8, 2009, ANPAC notified Medina of the decision and closed the file.

It’s Not Always Easy To Dismiss A Case

October 27, 2018 | Mark S. Humphreys

Most of the time, Courts are happy to have a case dismissed from their docket. An Eastern District of Texas, Sherman Division, opinion is an exception to that general situation. The opinion is styled, Mike And Jacqueline Sanchez v. Safeco Insurance Company of Indiana.

The Sanchez’s filed a Motion to Dismiss Without Prejudice and the Court denied the motion. Here is why.

The Fifth Circuit recognizes that as a general rule, motions for voluntary dismissal should be freely granted unless the non-moving party will suffer some plain legal prejudice other than the mere prospect of a second lawsuit. The primary purpose of Rule 41(a)(2) is to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions.

Paperwork Has To Be Right When Suing An Insurance Company

October 25, 2018 | Mark S. Humphreys

The papers filed in Court have to be proper when suing an insurance company. A Southern District of Texas, McAllen Division opinion illustrates this rule. The opinion is styled, Alfredo Murillo Jr., et al v. Allstate Vehicle and Property Insurance Company.

Alfredo suffered damage after a hail and or windstorm and sued Allstate alleging Allstate failed to “cover the true costs of repairs … including but not limited to, repair and/or replacement of the roof and any exterior damage,” and that Allstate “failed to properly adjust the claim and summarily improperly paid the claim.” Alfredo’s complaint contains no other specific factual allegations beyond general allegations that Allstate’s investigation of the claims was “unreasonable,” and that Allstate “failed to properly scope” Alfredo’s damages, and that Allstate delayed in the payment of the true cost of damages. In all other respects, Alfredo’s complaint is a form petition that merely restates the legal elements of his claims.

Allstate filed this motion for partial dismissal pursuant to Federal Rule 12(b)(6) for failure to state a claim for which relief can be granted and Rule 9(b) for failure to plead with particularity.