INSURANCE COVERAGE HOW TO GET PAID. Henry Moore Advanced Personal Injury - State Bar of Texas

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1 INSURANCE COVERAGE HOW TO GET PAID Advanced Personal Injury - State Bar of Texas Henry Moore henry@moorelegal.net

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3 Auto Homeowners Commercial (CGL)

4 Auto Auto covers: -The named insured -Family members of the named insured, and -Permissive users of the insured vehicle

5 Auto Auto -minimum 30/60/25 Safety Responsibility Act (Transportation Code) Per person limit is per person injured (bystander, loss of consortium, etc. does not expand limit) 250/500 limit look for an umbrella policy

6 Auto Auto Uninsured Motorists covers the named insured and family members covers any occupant of the insured vehicle. Goudeau v. USF&G, 272 S.W.3d 603 (Tex. 2008).

7 Auto Auto Uninsured Motorists Part of every auto policy unless waived in writing Limits may match but not exceed liability limits Uninsured is also underinsured coverage.

8 Auto Auto Underinsured Motorists Get permission to settle liability claim from the UIM carrier Limits may be stacked between policies up to the amount of damages.

9 Auto Auto Personal Injury Protection Part of every auto policy unless waived in writing Covers named insured, family members and occupants of the insured vehicle

10 Auto Auto Personal Injury Protection Covers reasonable and necessary medical expenses Covers lost income Covers household services for nonwage earners

11 Homeowners Homeowners -Coverage follows the insured -Covers bodily injury and property damage -Emotional injuries and deceptive trade are not covered

12 Homeowners Homeowners Common Exclusions: -auto recreational vehicles on the premises are covered -business -professional activities -claims by one insured against another

13 Commercial (CGL) - commercial vehicles, trucks - construction who is an insured? Contractual? - additional insured, employee exclusions, auto exclusions

14 Cast a Wide Net Don t go Overboard with Allegations of Bad Conduct Get a Copy of the Policy If there is a coverage dispute, Join the Fray

15 Cast a Wide Net Duty to Indemnify v. Duty to Defend Eight Corners Rule Separation of Insureds

16 Duty to Indemnify v. Duty to Defend Duty to Defend is generally broader than Duty to Indemnify determine Duty to Defend determine Duty to Indemnify

17 Eight Corners Rule Guide One v. Fielder Road Baptist Church (Tex. 2006)

18 Separation of Insureds Rule King v. Dallas Fire Ins. Co. (Tex. 2002)

19 Separation of Insureds Rule Excluded event v. Excluded conduct

20 Don t go Overboard with Allegations of Bad Conduct accidents & occurrences COVERAGE Intentional conduct, dishonesty, & fraud NO COVERAGE (generally) PLEAD NEGLIGENCE

21 What is intentional conduct?

22 What is intentional conduct? Tanner v. Nationwide (Tex. 2009) Must intend the result, not the bad conduct

23 Get a Copy of the Policy TRCP 192.3(f) Scope of Discovery Indemnity and Insuring Agreements TRCP 194.2(g) - Disclosure any indemnity and insuring agreements described in Rule 192.3(f) In re Dana discovery beyond policy?

24 Policy Variations Insurance Code changed in 2003 Homeowners and Auto carriers can now write their own policies Auto policies - Statutory restrictions» Insurance Code» Transportation Code» Approval by TX. Dept. of Ins.

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26 What to Look For in the Policy? Dec Sheet

27 General Rules of Policy Construction General contract rules apply Policy construed as a whole If policy language is ambiguous (question of law) then it is interpreted in favor of coverage

28 Burden of Proof coverage must prove that loss comes within exclusions to coverage must prove any exclusions must prove any exceptions to

29 Join the Fray (if there is a coverage dispute between defendant and its carrier)

30 Can you Join the Fray? Federal Court clearly YES National American Ins. Co. v. Breaux (E.D. Tex. 2005) State Court probably YES Farmers Texas County Mutual v. Griffin (Tex. 1997)

31 Why Join the Fray? You may be the only interested attorney representing the insured. Could be default judgment against insured. If no coverage, you want to know NOW (blood from turnip)

32 Why would ins. company file a dec action? only way to bring it to a head (can t intervene in underlying lawsuit) determines coverage early if ins. company wins, they can bail

33 Why carrier should want you there Dec judgment is binding on non parties Dairyland Co. Mutual v. Childress (Tex. 1983) If plaintiff is not a party to the dec action they can coverage issue later

34 Insurance policies are contracts If the policy is ambiguous, it favors coverage Prejudice no harm, no foul

35 Getting the letter right basic requirements Multiple layers of coverage Recent cases AFTCO and Pride Transportation

36 Elements: Claim within coverage and policy limit Unconditional offer to settle Reasonable carrier would pay the demand in order to protect its insured from an excess judgment

37 Stowers letter: Claim within coverage and policy limit Unconditional offer to settle Reasonable date in which to respond #4 Release of liens

38 Multiple Policies (excess and umbrella with primary) Damages coverage plain Stowers with extra pressure from excess (Canal Ins.) Damages limits send joint Stowers demand to both carriers for both limits. Damages limits, but limits send joint demand (not Stowers since you can t offer release to insured) for amount of damages & hope primary carrier tenders limits. Then excess carrier moves to front of the line.

39 AFTCO Enterprises, Inc. v. Acceptance Indemnity Ins. Co., 321 S.W.3d 65 (Tex. App. Houston [1st dist.] 2010, rev. denied) Pride Transportation v. Continental Casualty Co. slip opinion, 2013 W.L (5 th Cir. 2013)