Disputes with Your Insurance Company...Don't Get Pushed Around!

General Terms Within the World of Insurance Law

The insurance industry revolves around certain actors or players that exist within the realm of insurance sales, underwriting and claims. Specifically, “sales” involves the process through which you purchase an insurance policy through your insurance agent. The “underwriting” process is the exercise undertaken by an insurance company whereby insurance personnel evaluate the risk that a potential customer presents, and sets their monthly policy premiums accordingly. They will also determine at this time, whether to accept the applicant as a policyholder based upon the information provided by the potential insured through the application process. Finally, the “claims” aspect of the insurance realm directly involves the manner in which a policyholder presents their demand to be paid under their policy based upon an event that has caused them a loss. It is this “claims” process that typically gives rise to many of the lawsuits handled by this firm, and will be the principal focus of this article.

From the outset, and in order to understand your rights as a policyholder, it is important to know exactly what individuals and entities exist within this field. The following sets forth the basic cast of characters and concepts that a Texas consumer will encounter in purchasing, and in filing a claim pursuant to, his or her insurance policy.

Insurance Agent This is the individual or group of individuals that ultimately sells you your insurance policy. This person must also be authorized under Texas law to secure or collect premiums on insurance paid by the policyholder.

Insurance Policy This is the actual written contract through which an insurance company assumes a particular risk on behalf of the policyholder. This assumption of risk is accompanied by the promise of an insurance company to pay a certain amount of money if a specific “covered event” occurs pursuant to the policy terms, and during the policy period defined within your particular contract.

A Covered Event This is an event to which your specific insurance company applies. For instance, a homeowners’ policy may specify that it covers damage for fire, wind storm, flood, or other perils that can cause damage to your residence. An auto policy may, on the other hand, cover damage sustained by your car in a collision. In any event, and regardless of the context, a covered event is what must occur in order to trigger the protection of your insurance policy, and to require an insurance company to pay you for the loss sustained. Please note that a covered event is the exact opposite of an “exclusion.”

An Exclusion An exclusion under any policy is an event or set of circumstances for which the insurance company will not pay. Specifically, such items are listed within the insurance policy itself, under a section directly dedicated to enumerating exclusions conspicuously for the policyholder. Many denials of coverage issued by insurance companies stem directly from these exclusions.

The Insured In short, this is you. The “insured” or “policyholder” is the party covered by the insurance contract itself. More specifically, the “named” insured is the party specifically designated as covered under the policy. You will find the “named” insured on a policy listed on the policy “declaration page,” which is the initial page to your insurance contract which lists the policyholder, the types of coverage allowed for under your particular policy, as well as the amounts of coverage available for given types of loss.

The Insurer This is the insurance company. Moreover, this is the party who agrees to assume the risk of you loss. In the state of Texas, the insurance company must be specifically admitted to do business, and authorized to write certain types of insurance within the state.

The Responsibilities of You, the Policyholder

Once a policy has been purchased, and an accident or other event occurs that triggers coverage, the policyholder must fulfill certain duties in order to receive the full benefit of their insurance contract. This is critical for Texas consumer to know. The reason is that the failure of a policyholder to comply with these responsibilities may result in the denial of coverage by the insurance company. Such responsibilities typically include the following:

Giving “Notice” Insurance policies typically require that the policyholder formerly notify its insurer of an occurrence or a claim that is covered under the policy. If the “notice” provision requires that the insured notify the insurer as soon as practicable, then the insured’s failure to do so may relieve its insurance company of its duties under the policy. In other words, an insured must give proper notice to allow its insurance company to take the appropriate course of action to protect its policyholder. If that does not occur, then the insurance company may be harmed by this lack of notice, and consequently may not be obligate to pay the policyholder for the loss.

The “Proof of Loss Provision” Complying with a “proof of loss” provision is many times a condition precedent (a condition that must occur) before the insurance company’s obligations are triggered under a given policy. A proof of loss is a written document that explains to the insurance company the facts surrounding a loss for which a claim is being made, and also gives the insurance company the opportunity to investigate and form an appropriate estimate of its liabilities in a given situation. This document is signed and submitted by the policyholder.

The “Cooperation Provision” “Cooperation provisions” exist as ongoing requirements faced by the policyholder before the insurance company has its obligations triggered under a given policy. Just as it sounds, the cooperation provision requires an insured to “cooperate” with its insurance company’s investigation, settlement, or defense of any claim or suit. This may include keeping the insurance company informed of the ongoing claim, submitting to a formal recorded statement, or protecting your property from further damage while the claim process is continuing. In practice, cooperation clauses exist to guarantee insurance companies the right to adequately prepare a defense regarding questions of their liability. It is important to cooperate with your insurance company to allow them to investigate your claim, so it can be paid in full in a timely fashion.

Responsibilities of the Insurance Company

Now that you understand the general requirements that govern the conduct of a policyholder, the balance of this article will explain the consequences that may be faced by an insurance company when they do not fulfill their obligations. These consequences exist pursuant to Texas law, which was directly established for Texas consumers within the world of insurance. For ease of reference, the following sections are set forth on a claim-by-claim basis, explaining the different causes of action that exist to the benefit of an insured.

Bad Faith “Bad faith” is a term commonly known within the insurance industry. It describes a process through which the insurance company fails its policyholder by improperly investigating, analyzing, or settling a covered claim submitted by their insured. Because insurance companies have a duty to treat their policyholders fairly, bad faith liability in the insurance context, is also known as the insurance company’s “breach” of its duty of “good faith and fair dealing.” This duty arises from the insurance contract itself, and the accompanying contractual relationship between the policyholder and his insurance company.

The “Elements” of an Action for Bad Faith There are three principal elements that a policyholder must demonstrate in order to successfully maintain an action for bad faith against its insurance carrier.

• There must be an actual insurance policy in place between a policyholder and its insurance company at the time that a loss occurs. It is this contract that gives rise to the above-referenced duty of good faith and fair dealing. Logically, without an insurance policy, the insurance company would not owe any such duty to a consumer, nor have to pay for that consumer’s loss.
• Next, the insurance company must actually breach the above duty, which can occur through various scenarios. For instance, the insurance company may deny or delay payment when liability is clear, and when coverage is therefore owed to the policyholder. It is notable that an insurance company may also breach its duty by cancelling an insurance policy without a reasonable basis.
• Finally, the above breach by the insurance company must be the “proximate” cause for the insured’s damages. Legally, this means that the insurance company’s failure to do right by its policyholder was the actual cause for the damage suffered by the insured, and that this suffering was foreseeable to the insurance company.

How Do I Know If My Insurance Company Acted In Bad Faith?

• As indicated above, a policyholder must show that insurance company both (1) denied or delayed payment of their claim unjustifiably, and that (2) the insurance company knew or should have known that coverage of the claim was reasonably clear. This obviously involves a case by case analysis, with some cases resulting in an unreasonable action by the insurance company, and other cases ultimately resulting in a justified denial or delay of payment.
• In determining that you have been a victim of bad faith, please keep the following factors in mind:
  • Did your insurance company deny or delay the payment of your claim? Once again, an insurer under Texas law must show that the insurance company actually denied payment of its claim. For example, under Texas law, bad faith clearly encompasses an insurance company’s denying or delaying payment when the insurer knows, at least with substantially certainty, that it has no reasonable basis for doing so.
  • Did the insurance company know that coverage was clear? It is a more tedious exercise to determine if your insurance company “knew” that your claim was covered under the applicable insurance policy. This is because evidence that merely shows that “bona fide coverage dispute” between the parties exists (a legitimate difference of opinion) is not enough to establish bad faith liability. Accordingly, we must delve further into what it means for an insurance company to know coverage is clear, yet nevertheless deny or delay payment of your claim.
  • “Actual Knowledge” Whether an insurance company knows that coverage was reasonable and clear depends on its actual knowledge of the event that gives rise to liability under the insurance policy. For example, when an insurance company receives a policyholder’s claim after an occurrence such as Hurricane Ike, and a previously undamaged home now suffers from the loss of a roof, shattered windows, etc., Their actual knowledge of storm-related damage would exist.
  • “Constrictive Knowledge” Whether an insurer should have known that coverage was reasonable and clear, also depends on what it would have discovered if it had not failed its duty to investigate. Always know that a insurance company is obligated to adequately investigate a claim before it denies coverage. Accordingly, an insurer cannot assert that liability is not reasonably clear if it did not investigate the claim. It cannot be “willfully blind” to the facts. This leads to another question: What does it mean for my insurance company to adequately investigate my claim?
    • Appropriate Scope of Investigation Although the appropriate scope of an investigation will be different depending on the nature of the claim, the reasonableness of that investigation hinges on whether it was thorough and performed in good faith. An investigation cannot biased in favor of the insurance company or unreasonably carried out against the policyholder. Moreover, for the insurance company to deny coverage, that denial must be justified by the findings of the investigation.
    • Investigation Cannot be a Pretext for Denial In addition to the above, an insurance company cannot insulate itself from bad faith liability by investigating a claim as a mere pretext for denying a claim. In other words, the insurance company cannot carry out an investigation merely for the sake of ultimately disproving the case. Under Texas law, if an insurance company fails to properly investigate a claim, or is negligent in the way it conducts the investigation, this is still not enough to support a bad faith claim. Instead, the policyholder must show that an insurance company was aware it was handling a claim in a way that false, deceptive or unfair. Merely doing a bad job will not be enough.

What Remedies Do I Have If My Insurance Company Acts in Bad Faith

• Actual Damages In an action for bad faith, the insured can recover actual damages, as well as “extra contractual damages” for economic or personal injuries. What this means, is that in addition to the calculated damages that can be showed by receipts, invoices, or estimates to a property, a jury can also punish an insurance company for acting dishonetsly in dealing with its policyholder. Even though this is not contemplated within the insurance agreement between the parties, these extra contractual damages (or “damages beyond the policy”) can be awarded so similar bad conduct by an insurance company does not happen in the future.
• Mental Anguish Damages An insured can also recover damages for mental anguish. These are damages that compensate an insurer for the anguish or misery they have experienced due to the insurance company’s actions. In a bad faith case, mental anguish damages are usually limited to where situations for denial or delay of payment have seriously disrupted the insured’s day to day life.
• Exemplary DamagesIn an action for bad faith, the insured can further recover exemplary damages if two conditions are met:
  • Actual damages are awarded for an injury independent of the loss of policy benefits; and
  • The insurers conduct is fraudulent, malicious, intentional, or grossly negligent. Once again, exemplary damages, otherwise known “punitive” damages, are awarded by a jury to punish an insurance company for its bad faith actions. This is designed to keep such patterns of conduct from happening with future claims.
• Interest, Court Costs, and Attorneys’ Fees In addition to the above, a successful plaintiff can recover pre-judgment and post-judgment interest, based upon the idea that they would have accumulated this interest had the money properly been paid to them before the lawsuit began. Court costs include the filing fees and additional expenses that a plaintiff must incur in taking their action to court. Because, in theory, successful plaintiffs should never have had to incur these fees, such court costs are awardable by a jury, as are the plaintiff’s attorneys’ fees. Bear in mind that a plaintiff must show that their attorneys’ fees are reasonable and necessary in order to recover them under Texas law. It is not enough to simply show the attorneys’ percentage of a contingency fee contract, or to pick an arbitrary number without support.
• How Long Do I Have to Bring A Claim
  • Two year statute of limitations The limitations period for an action for bad faith (or breach of good faith and fair dealing) is two years.
  • When does that two-year period begin An action for breach of good faith and fair dealing begins when an insurance company denies coverage only if (1) all the facts required for a cause of action exists at that time, (2) the wrongful denial of coverage causes an injury, and (3) the facts existing when coverage is denied authorized the plaintiff to seek a judicial remedy. In other words, an insurance company’s denial of a claim does not have to include any “magic” words as long as the insurance company’s decision and its reason for decision are clearly contained in a writing to the policyholder. It is critical to know that the limitations period may be extended if an insurance company “strings the policyholder along” without denying or paying a claim.
• Did I Do Something Wrong?There are a number of defenses that an insurance company can assert to claim, alleging that it was the policyholder’s fault that a denial or underpayment of the claim was made. In this regard, please consider the following:
  • An insurance company may be able to assert that a plaintiff’s own acts or omissions caused or contributed to the plaintiff’s injury -- To date, Texas courts do not recognize “comparative bad faith,” which would allow an insurance company to assert that the plaintiff itself acted in bad faith. However, insurance companies can absolutely argue that the plaintiff contributed to his own damages by no cooperating with their insurer or by failing to protect their property.
  • Reasonable basis for denial An insurance company can also assert that it had a reasonable basis for denying or delaying coverage of a claim. This could include uncertainty as to what actually caused the claim, or equal uncertainty regarding the amount of damages actually due to the policyholder.
  • Fraudulent Inducement Insurance companies can also assert “fraudulent inducement” as a defense if they can prove that a policyholder secured their insurance policy through fraud, in which case the insurance company has a complete defense to all causes of action related to the policy. This includes all violations of the insurance code, bad faith, and any other actions addressed within this article. This can specifically occur during the application process, when a policyholder submits information to gain coverage, yet that same information is not true.

Deceptive Insurance Practices

In addition to bad faith actions, the Texas Insurance Code itself includes additional provisions to protect a policyholder from unlawful insurer conduct. Specifically, Chapter 541 provides a private cause of action for “unfair or deceptive insurance practices.”

• Plaintiff’s Elements
  • Plaintiff StatusTo prove an action for an actionable violation of Chapter 541 of the Texas Insurance Code, a policyholder must establish that it has standing to sue under the statute. Specifically, the statue grants a cause of action to any “person” injured by another’s deceptive acts or practices in the business of insurance. A “person” is defined as any individual, corporation, association, partnership, and any other legal entity engaged in the business of insurance, including agents, brokers, adjusters and life-insurance and health-insurance counselors. The plaintiff does not have to be in the business of insurance to establish standing to sue under chapter 541.
    • Insured or beneficiary An insured or a beneficiary of an insurance policy has standing to sue under Chapter 541.
  • Defendant StatusTo prove an action for violation under Chapter 541, the plaintiff must establish that the defendant is a “person” who engages in a prohibited act or practice. A “person” is defined as any individual, corporation, association, partnership, or any other legal entity engaged in the business of insurance, including agents, brokers, adjusters, and life-insurance and health-insurance counselors.
    • Insurance company An insurance company may be directly liable, or vicariously liable for the acts of its employees or agents. An insurance company is generally liable for any misconduct of an agent within the scope of the agent’s authority.
    • Agent An insurance agent – whether independent or an insurer’s employee – may be liable as a defendant in a claim.
    • Independent claims adjuster An independent claims adjuster may be liable as a defendant in a claim, as adjusters may also act as the agents of insurance companies.
• Defendant’s violation of the statuteTo prove an action for violation of Chapter 541, the plaintiff must establish that the defendant violated at least one of the three categories of statutes: (1) Texas Insurance Code Chapter 541, (2) Teas Business & Commerce Code §17.46(b), or (3) a tie-in provision of the Texas Insurance Code.
  • Subchapter B violationsThe defendant can be liable for violating Texas Insurance Code which prohibits unfair competition, false advertising, misrepresentations about insurance policies, and unfair settlement practices.
    • Unfair competitionA person involved in the business of insurance can be liable for unfair competition. “Unfair competition” includes all of the following activities:
      • Defamation Making false, maliciously critical, or derogatory statements about the financial condition of any insurer that are calculated to injure any person engaged in the business of insurance.
      • Boycott, coercion and intimidation Committing or agreeing to commit an act of boycott, coercion, or intimidation that tends to result in unreasonable restraint of, or monopoly in the business of insurance.
      • False financial statements Filing false statements concerning the insurer’s financial condition with a public official, making false statements concerning the insurer’s financial condition to an individual or the public, or attempting to deceive an agent or public official by making false entries or willfully omitting a material entry in books or reports to be examined by the agent or official.
      • Unfair discrimination Making or permitting unfair discrimination between individuals of the same class and equal expectation of life.
      • Deceptive name, word, symbol, device, or slogan Using a name, word, symbol, device or slogan that is the same as or deceptively similar to that of an other company.
    • False advertising and specific misrepresentations The Texas Insurance Code prohibits certain methods of false advertising and misrepresentation, including, making, issuing, circulating, or causing to be made, issued, or circulated any estimate, illustration, circular, or statement misrepresenting (1) the terms of any policy or (2) the benefits or advantages promised by any policy.

• Misrepresentations about insurance policyThe Texas Insurance Code prohibits the following types of misrepresentation about insurance policies:
  • Not disclosing any matter required to be disclosed.
  • Making a material misrepresentation of law.
  • Making a statement in a way that would lead a reasonably prudent person to a false conclusion about a material fact.
  • Leaving out a material fact, so that other statements are rendered misleading.
  • Making an untrue statement of material fact.
  • Unfair settlement practicesAn insurer can be liable for any of the following:
    • Misrepresenting to a claimant a material fact or policy provision relating to the coverage at issue.
    • Not attempting in good faith to bring about a prompt, fair, and equitable settlement of a claim once the insurer’s liability becomes reasonably clear.
    • Attempting to pressure the claimant to settle a claim under one portion of the coverage by refusing to bring about a prompt, fair, and equitable settlement under a second portion of the coverage, once the insurer’s liability on the second portion becomes reasonably clear.
    • Not promptly giving a policyholder a reasonable explanation, based on the policy as it relates to the facts or applicable law, for the insurer’s denial of a claim or for the offer of a compromise settlement of a claim.
    • Not completing either of the following within a reasonable time:
    • Affirming or denying coverage of a claim to a policyholder.
    • Submitting a reservation of rights to a policyholder.
    • Refusing, failing to make, or unreasonably delaying an offer of settlement under applicable first-party coverage on the basis that other coverage may be available or that third parties are responsible for the damages suffered, except as specifically provided in the policy.

• Remedies

• Actual Damages
  • In an action for violation of Chapter 541, the plaintiff can, once again, recover “actual damages,” including the following:
    • Damages for economic injuryThe plaintiff can recover damages for economic injuries. Below are some examples of the types of economic damages recoverable for violations of Chapter 541.
      • Lost profits.
      • Lost income.
      • Damaged credit reputation: To be awarded more than minimal damages for a damaged credit reputation, a plaintiff must be denied a loan or be charged a higher interest rate.
      • Policy proceeds. If the policyholder or beneficiary establishes both a right to policy proceeds under the insurance contract and a deceptive practice (listed above), the measure of actual damages will be at least the amount owed under the policy.
  • Additional damages In an action for violation of Chapter 541, the plaintiff can recover additional damages. To recover additional damages, the plaintiff must prove that the defendant acted “knowingly.” The total damages may than amount to up to three times the amount of actual damages.
  • Limitations
    • Two-year statute. The limitations period for an action for violation of chapter 541 is two years.
    • Accrual. When the unfair act or practice involves the denial of a claim, the plaintiff’s cause of action accrues on the date the insurance company denies coverage.

Plaintiff’s Elements

• Plaintiff had claim under insurance policyto prove an action for violation of chapter 542, the plaintiff or “claimant” must establish that it had a claim under an insurance policy.
  • Claim A “claim” is a first-party claim made by an insured, a policyholder, or a beneficiary whom the insurer must pay directly. Chapter 542 applies to the first-party claims. A first-party claim is one in which the insured or beneficiary seeks recovery for its own loss. A claim for failure to pay defense costs is a first-party claim.
  • Claimant The plaintiff must be the actual claimant. A “claimant” is a person making a claim. However, other articles in the Insurance Code define “person” to include individuals, partnerships, corporations, associations, and other organizations.
  • Insurer An insurer is once again, any person or entity authorized to do business as an insurance company or to provide insurance is Texas.
• Plaintiff gave proper notice of claim To prove an action for violation of Chapter 542, the plaintiff must establish it gave proper notice of the claim to its insurer. Notice of a claim is any written notification that reasonably informs the insurer of the facts relating to the claim.