Insurance Outline – Platts, Fall 2001

Everything highlighted he said would be on exam

 

I.                     Commercial General Liability Policy

A.      Rules for Contract Construction – Ambiguities

1)       1st Party – Covers the insured’s own damages

(a)     examples: homeowner’s, collision, life insurance, medical insurance

2)       3rd Party – Covers a third party’s damage for which the insured is liable

(a)     example: Liability Car Insurance

(b)     2 types of 3rd Party Coverage

·         Defense – insurance company defends the insured

·         Indemnity – insurance company pays your expenses

3)       Gen Rule: Contra Proferentum – Construe against the drafter

4)       Insurance policies are contracts and controlled by the rules of construction applicable to all contracts

5)       Insurance policies are contracts of adhesion b/c they are take it or leave it contracts – ie take it or leave it from the insured

6)       Doctrine of Reasonable Expectations – Texas has not adopted.  It holds that with uncertainty in the contract, the court will look at the reasonable expectations of the insured.

7)       If unambiguous, then enforced as written and court may not resort to the construction rules.  If ambiguous, then construe the ambiguity in favor of the non-drafting party, so long as that interpretation is reasonable.

8)       Ambiguity exists if more than one reasonable expectation exists in the contract.

9)       2 Kinds of Ambiguity exists

(a)     Patent – where the ambiguity can be determined from the face of the instrument

(b)     Latent – where the ambiguity cannot be determined on the face of the instrument, but where ambiguity results after determining additional information or facts

10)    Each part of policy should be given effect when construing, so reasonableness is measured for contract as a whole

11)    For exclusions, a super strict construction is applied and ANY reasonable interpretation will be applied in favor of the insured

12)    Use policy definitions, but if undefined, then use commonly accepted meaning, generally the first meaning in the dictionary

13)    Intent to exclude must be expressed in clear and unambiguous language

B.      Requirements/Elements

1.        3 Types

a.        Notice

b.       Occurrence

c.        Covered Damages

2.        Notice

a.        Notice is required under the CGL and any 3rd party coverage

b.       Notice means properly served on insured - service of citation. Copy of petition alone is not good enough

c.        Insurance company cannot deny coverage for breach of prompt notice provision unless suffered prejudice

d.       Prejudice is a question of fact for the jury to decide

e.        The Texas Homeowner’s Policy currently does not require prejudice and Chiles held it does not, but if litigated again, the courts will probably require it

f.         When notice is first recieved after a default judgment has become FINAL (after plen power), then presumed prejudice as a matter of law

3.        Occurrence

a.        Occurrence is an accident, which is an unexpected happening or event

b.       Where acts voluntary or intentional and injury is natural result, then injury is not an accident or occurrence.  (eg intentionally taking dirt is not accident).  Furthermore, conduct is not an accident where dmgs are natural result or where injuries reasonably anticipated from the insured's actions. Thus a hunting accident will be covered b/c it is not the natural result of the actions.

c.        Time of occurrence is when dmgs occurred, not when negligent act took place

d.       Sexual molestation is intentional as a matter of law in all 50 states

e.        more than one occurence allowed out of one event

f.         misrepresentations do not occur out of an occurence, unless it causes unexpected accidents

4.        Damages Covered/Not Covered

a.        Bodily Injury & Property Damage

1)       CGL & Homeowners - only occur from bodily injury or property dmg

2)       Ment anguish by itself does not const bod injury

3)       2 exceptions: 1) ment anguish results in phys dmg or 2) mental anguish from phys dmg

4)       Bod injury is dmg to phys struct of human body

5)       Injury to property means phys injury to tangible property. Same under both policies, even w/ diff language

6)       Econ losses alone do not result in property dmg. Except: When loss of property results in "loss of use of phys property" like rent. (IE WHEN LOSS OF USE IS A MEASURE OF DMG)

b.       Punitive Damage

1)       Current TX law: Punitive damages are covered under CGL, unless specifically excluded, even in endorsement

2)       TX sup court never decided issue

3)       BUT Federal court predicted that puni dmgs could not be covered b/c punishes wrong party

C.      Continuous Damage Claims

1.        4 Doctrines

a.        Manifestation Period Theory- policy in effect when 1st manifested applies

b.       Continuous/triple trigger Theory - all policies through all above periods apply

c.        Injury in Fact Theory - Trigger when plantiff in fact injured only policies in effect when plaintiff actually injured in fact - could start during exposure period, but also could be latency, and ends until fixed.  This is main difficulty: determining begin date. Good b/c tracks language of policy the best.

d.       Exposure Theory - Exposure theory says to "prorate the years that the policy was in effect." Policy in effect when began exposed and ended exposure.  This is great spreads risk and easy to figure begin and end.

1)       Total Pl.'s dmg (# yrs ins co was on the risk / Total years exposed)

2.        Hypo

3.        Examples

a.        First manifestation of Damages Theory

b.       Continuous or Triple Trigger Theory

c.        Injury-in-Fact

d.       Exposure Theory

1)       48 Installations” - Another asbestosis case

d) ON EXAM: Exposure theory says to "prorate the years that the policy was in effect"

e) ON EXAM: Total Pl.'s damage (# yrs ins co was on the risk / Total years exposed)

f) What about defense coverage?  Court held that defendant (48) had to pay its own proportionate defense.  (i.e. court held to pro rate defense like you would damage, but not all courts hold that way)

g) ON EXAM: know all points about each of the four theories:

                1. First Manifestation

                2. Continuous

                3. Injury in fact - trigger when plaintiff in fact injured

                4. Exposure (Majority rule)

D.      Exclusions

1.        3 Types

a.        Business Risk Exclusion for Own Work or Own Product

b.       Intentional Injury

c.        Injury to an Employee

d.       Motor Vehicle Exclusion

2.        Business Risk Exclusion for Own Work or Own Product

a.        Rules

1)       -J(5) & j(6) excludes insureds own work that occurs before work complete

2)       -L - excludes insured's own work after work complete

3)       -Both only apply to property

4)       -Only way that coverage could occur is when dmg occurs after work complete & insured used subcontractors were used.

b.       Overall Steps of Analysis

1)       When did property damage occur? (Before or after work was complete?)

2)       If before, then 2(j)(5) & (6)

3)       If after, then look at (L), except for subcontractors

4)       Thus insured's own work only covered if accident occurred after complete AND by a subK

3.        Intentional Injury

a.        Intent Present if:

1)       He intends the consequences of his act or

2)       That he believes that they are substantially certain to follow.

This is almost always a question of Fact, i.e. whether insured was substantially certain of the result (SUBJECTIVE TEST)

b.       State Fm v. SS & GW

1)       THE TEST IN TEXAS FOR WHEN INTENTIONAL INJURY EXEMPTION APPLIES: (p.3 of Case) Intent present if 1) he intends the consequences of his act or 2) that he believes that they are substantially certain to follow. This is almost always a question of Fact, i.e. whether insured was substantially certain of the result (SUBJECTIVE TEST)

2)       Exclusion different than whether there was an occurrence but much controversy as to whether or not.  Usually will only have both or neither, but courts generally do not address both in the same opinion.

3)       Regardless occurrence and exemption are two different issues and MUST be addressed separately

4.        Injury to an Employee

a.       After reading the following three employee cases, courts generally will not use a reasoned analysis to construe against the insurance co. b/c of workers comp ins., which really should be bought for this purpose.

5.        Motor Vehicle Exclusion - bars consequences. Purpose is to carve out general policy insurance from auto insurance

E.       Miscellaneous Provisions

1.        4 Types

a.        Duty to Defend

b.       Reservation of Rights

c.        Declaratory Judgments

d.       Burden of Proof

2.        Duty to Defend

a.        GEN RULE: "8 Corners" or "Complaint Allegation" Rule

1)       look to allegations in the petition, assume that all are true, and ask if anything is covered in terms of policy.  Give those coverages liberal interpretation and construe against drafter, per Haden v. Newport.  (ie 8 corners rule: compare allegation in petition against coverage. Doubts in favor of insured.

2)       McManus - Facts matter not legal theory.  Legal theory is the same as alleging the elements as facts.  If facts alleged result in no coverage, then no duty as a matter of law to defend. Ins co entitled to rely on what is plead, unlike California, where fruits of investigation must  be defended against as well.  Called complaint allegation rule.

3)       Nat Union v. Merchants Fast Motor Lines - will not imagine facts that could have been plead but were not

b.       Exceptions

1)      Gonzalez - possible exception to the 8 corners rule, b/c Sup Ct. has never accepted an exception before.  If exception exists, it says to only look beyond the 8 corners if 1) do not contradict anything that's pled, and 2) those facts must only bear on coverage and not on liability.  Satisfying both is hard, but possible.  (i.e. facts may come in that are not plead if both above requirements are met.)  In Gonzalez, this fact is the ownership of the Ice Auger.

c.        Multiple Claims

1)      Cruse - foundation leveling that damaged home.  Exists in book to show that so long as one thing that is plead is covered, then ins. co. must defend WHOLE lawsuit.

Remember . . .

-Duty to indemnify depends on true facts, regardless of what's pled, and normally requires jury findings.  So pay all attorneys fees and costs of defense, but only have to pay what jury tells you you're actually liable.  Therefore, attorneys that understand the rule, ask juries in original trial b/c otherwise need to have 2nd trial to determine amount liable.

-The above mentioned attorneys fees normally do not come from the general policy b/c of language in CGL saying "All expenses we incur...."

 

3.        Reservation of Rights

a.        Rules

-issue anytime ins co believes no coverage

-this is not a breach of duty to defend

-If res rights letter issued, insured gets to pick own atty, own defesne, and whether to settle.  Ins co cannot question, so long as insured's decision is reasonable

-Generally inform insured of basis for reservation

Wilkinson

-Coverage cannot be created where non exists under policy via waiver and estoppel

-Insured must generally show that he was prejudiced.  But see accompanying cases just before - McGuire,etc.

1)      Farmer's v. Wilkinson

-Rule, bottom p. 2: If you 1) defend, 2) w/o reservation, 3) w/ knowledge, then you waive all defenses or are estopped from asserting them

-Called the Wilkinson Exception

2)      Farmer's v. McGuire

-General rule, p. 2 of case,  is that ins co can never waive the basic policy provisions, meaning the exclusions, the coverage, etc.  The reservations only apply to specific conditions.  Wilikinson is the exception to this general rule.

3)      Britt v. Cambridge

-Which comes first, duty to defend or duty to indemnify?

-What to take home from the case: EXAM - 1) insurance policies do not cover intentional acts - intent comes into picture and ins co will use as basis of defense.  INTENT IS ISSUE REGARDLESS OF PLEADINGS. This case was crafty attorneys carefully drafting to collude against the judge

2) why didn't Cambridge waive their rights? Waiver and Estoppel. Maintained control over proceeding & information and protected against claim of bad faith.

-EXAM Collusion and Fraud: Collusion is an intentional act and normally excluded from coverage

-Coverage cannot exist if none existed prior to waiver.

-REVIEW: - regarding failing to defend when required, this and Gandy show what occurs when ins. co breaches duty to defend. P. 8 of the case, §57 of Restmt of Judgments, calling ins co indemnitor and insured as indemnitee.  §57 says when duty owed to third person and notice of duty to defend given, then ins. co 1) is estopped from disputing the existence and the extent of liability, 2) is precluded from disputing fact issues if ins co defended or insured defended w/ due diligence & reasonable prudence, 3) if insured doesn't defend w/ due diligence, then ins. co may relitigate, 4) if reservation of rights letter exists reserving it's right, the conflict exists only on accidental injury v. intentional, then finding of the jury does not bind the ins. co. in a separate coverage lawsuit, but all other undisputed coverages are binding on the ins. co if defended w/ due diligence, 5) later case of GANDY says that any suit where defendant does defend, i.e. show trial, then that is never binding

4.        Declaratory Judgments

a.        Rules

1)       -If 2 lawsuits, one plaint v. insured, and second insured v. ins. co, prior Texas law said that while first suit pending then cannot decide the second b/c that would be an impermissible advisory opinion. This case held that second case, logic requires us to  hold that if no duty to defend based on the pleadings, then never can have a duty to indemnify. Thing to watch, though, is a change of pleading.

2)       -Rule/EXAM - If try to get around an exclusion, plead a recognized cause of action.

3)       -Rule/EXAM - when file declaratory judgment action, indemnity is advisory only.  Meaning that many ins co's caught defending a suit for many years only b/c determining coverage can be greatly difficult

4)       -Rule/EXAM - rule of extraneous evidence: allege existing cause of action

b.       Examples

1) Western Heritage v. Pepe's

-Rule/EXAM - If try to get around an exclusion, plead a recognized cause of action.

-Rule/EXAM - when file declaratory judgment action, indemnity is advisory only.  Meaning that many ins co's caught defending a suit for many years only b/c determining coverage can be greatly difficult

-Rule/EXAM - rule of extraneous evidence: allege existing cause of action

        2) Farmer's v. Griffin

-Review: -If 2 lawsuits, one plaint v. insured, and second insured v. ins. co, prior Texas law said that while first suit pending then cannot decide the second b/c that would be an impermissible advisory opinion. This case held that second case, logic requires us to  hold that if no duty to defend based on the pleadings, then never can have a duty to indemnify. Thing to watch, though, is a change of pleading.

5.        Burden of Proof

a.        Class Rules

1)       Insured must prove claim in scope of insurance agreement/K

2)       Insurance company then must prove an exclusion applies

3)       Insured finally proves that an exception to the asserted exclusion exists

II.                   Automobile Policies

A.      Generally

1.        5 Types of Coverage within Policy

a.        Liability                                                                          3rd Party

b.       UM/UIM

c.        Personal Injury Protection (“PIP”)                                            1st Party

d.       Collision

e.        Comprehensive

2.        Generally

a. Texas Auto Policy

-Contains:

1)       Liability - 3d party coverage. Minimum limit is 20K per person, 40K per accident, both for bodily injury.  15K for property damage.  This is commonly called 20/40/15. The way it works is that 20K is most paid per person, but most ins. co will pay for the whole accident is 40K.

These are 1st party coverage (below):

2)      PIP - personal injury protection - med. bill + 80% lost wages, required to be offered

3)      UM/UIM - uninsured motorist & under insured motorist coverage, required to be offered

4)      Collision, subject to deductible

5)      Comprehensive - theft, hail, tree limb, things that damage car that aren't collisions, often w/ deductible

6)      (occasionally) Ed pay - only medical and normally replaced by PIP

3.        Ownership, Maintenance, & Use

a.        Rules

1)       Auto policy covers ownership, maintenance, & use, but additional insureds are only covered for use

2)       Permissive users are insureds, but maintainers are NOT.  Nevertheless, insured is ALWAYS covered.

3)       -Rule/EXAM - Must give effect to the purpose and intent of the policy.  The only coverage given is for the purpose given under the policy.  IF the policy language does not define, then look to purpose & Intent, facts, and other case law

4)       -Rule/EXAM - for someone to be covered under an auto person, they must fit one of the many definitions of covered person in the policy and use looks to the purpose and intent of the person using the vehicle to determine if covered

b.       Examples

1) Nationwide v. MacFarland

-Rule/EXAM - Must give effect to the purpose and intent of the policy.  The only coverage given is for the purpose given under the policy.  IF the policy language does not define, then look to purpose & Intent, facts, and other case law

-Rule/EXAM - for someone to be covered under an auto person, they must fit one of the many definitions of covered person in the policy and use looks to the purpose and intent of the person using the vehicle to determine if covered

-Purpose Test: If purpose of action is use, then coverage, but if to fix or maintain the vehicle then maintenance, and no coverage.  See p. 8 of the case.

B.      Exclusions

1.        5 Types

a.        Family Member

b.       Fellow Employee

c.        Excluded Driver

d.       Permissive User

e.        Business Use

2.        Family Member

a.        Rule -The law of the state of Texas is that family member exclusion is both valid and invalid.  Invalid up to minimum limits (20/40 for bodily injury b/c exclusion only applies to bodily injury). Valid beyond the minimum limits. Court reasoned that b/c policy of the State of Texas is to provide 20/40, it would be against public policy to allow an EXCLUSION of those limits.  However, EXCLUDING anything beyond those limits is valid.-Example: Coverage exists for 100/300. Injured family member, and gets judgment for $75K. How much must ins co pay? Ins co pays 20K (only owes) but above that amount, the exclusion is valid.

a.        Example - National County v. Johnson (ON EXAM)

-Family Member exclusion -

-Plurality Opinion - important b/c all

-Public policy that family member exclusion allegedly violates is

-Rule/EXAM - Public policy wins regardless of policy  (see p. 6 of case) - therefore NO MORE FAM MEMBER EXCLUSION IN TEXAS

REVIEW/PLATT: ALL ON EXAM:

-Family member exclusion, which says that we do not provide liability coverage for you or any family member for bodily injury to you or any family member (exclusion C)

-You is always the named insured and spouse of named insured, if spouse cohabitates

-Family member defined as those living w/ you related by blood, marriage, or adoption

-Reason of exclusion is that there is a greater risk of fraudulent claims b/t members of the same family. Medical insurance is supposed to cover that

-The law of the state of Texas is that family member exclusion is both valid and invalid.  Invalid up to minimum limits (20/40 for bodily injury b/c exclusion only applies to bodily injury). Valid beyond the minimum limits. Court reasoned that b/c policy of the State of Texas is to provide 20/40, it would be against public policy to allow an EXCLUSION of those limits.  However, EXCLUDING anything beyond those limits is valid.

-Example: Coverage exists for 100/300. Injured family member, and gets judgment for $75K. How much must ins co pay? Ins co pays 20K (only owes) but above that amount, the exclusion is valid.

-Last page of sample is an ENDORSEMENT stating this, #3, part A.

3.        Fellow Employee - Allowed

4.        Excluded Driver - Allowed

5.        Permissive User - Allowed

a.        Rule - Look only to the subjective belief of the person driving the automobile, including 2nd, 3rd, and 4th, drivers, but see the factors below for the proper analysis of cases w/ the old rule

b.       Examples

1) Snyder v. Allstate

-1st issue: Is the vehicle an owned vehicle under the policy?

-Rule: If there's a definition of the term in the policy, we go w/ it

-Here defined as a vehicle listed in the policy, and doesn't matter who actually owned it.

-2nd issue: What was the scope of permission?

-2 fact questions: authority and consent.

-Called case of the 2nd permittee: 1st permittee gives permission to the 2nd permittee. Here dad gave permission to daughter who gave permission to Snyder

-So is Snyder a permissive driver, which the policy covered? MAIN ISSUE

-Thus, issue: Whether Snyder had implied permission.

-2 part test: 1) does first permittee have AUTHORITY TO GIVE PERMISSION and 2) WHETHER CONSENT GIVEN, after AUTHORITY GIVEN.

-Coverage found b/c both elements of test

-(permissive use case that is no longer good law, just good analysis) but only for the permissive use portion

2)       Royal v. Abbott (permissive use case that is no longer good law, just good analysis)

-Facts: Herring = owner, Landers = driver,

-Issue: Implied permission granted from past conduct?

-Must have permission to qualify as an insured, and implied permission is enough, meaning "course of conduct among the parties" - term of art

-None found here, but court and jury allowed to look at ALL facts surrounding the circumstances

-Thus implied permission is a fact question, although here decided as a matter of law

-NOW: Permissive use no longer applies; now any person using your car is covered under the policy.  However, now an exclusion to anyone w/o a reasonably belief to use the vehicle.  So before, worried about the owner and permission giver, now we only care about the driver's reasonable belief. So in prior 2 cases, only look at driver.

3)      USAA v. US Fire

-Anna was using the car, just by being a passenger

-And was operating the vehicle by exercising dominion & control (i.e. that's the test: dominion & control)

-3 policies at issue: 1) Auto by us firs, 2) auto by USAA, & 3) Homeowners' policy by USAA.

-I1: Does HO policy apply? Is she using it and operating? She did both, thus exclusion applies and no coverage applicable.

-RULE: Policy issued to vehicle owner pays FIRST!!! Thus USAA only has to pay beyond us fire's coverage.

-Whether Anna was insured depends only on whether she was using the car. She was and therefore is insured. As to exclusion (whether she had a reasonable belief that she was authorized) - court reasoned that there was nothing in the pleading that showed if she had this belief, thus nothing that would trigger exclusion.  However, ins co may not have to pay if can prove later.

-Shows new focus is on the objective belief of the driver

6.        Business Use - Allowed

C.      UM/UIM Coverage

1.        What is an Underinsured Claim?

a.        No policy

b.       Policy exists, but limits are less than the amount of actual damages

c.        Policy exists, but debtor is insolvent or ins co denies coverage

d.       Hit & Run – Requires unidentified motorist, with physical contact

e.        Coverage exists, in the following amount, if greater than zero:

Actual Dmgs – Setoff = amount paid by UM/UIM

f.         Setoff = Total insurance coverage – what’s already paid

2.        Stacking Limits

a.        Can stack inter policy limits – so allowed to stack the tortfeasor’s policy, plus your own UM/UIM, plus medical insurance

b.       Cannot stack intra policy limits – cannot recover for multiple claims on one UM policy

3.        Bystander Damages Under UIM Claim – observation of a family member does not entitle you to a separate limit b/c bystander damages are purely

4.        Owned Vehicle Exclusion - can never be your own vehicle

5.        Settlement w/o Consent Clause

- S.Ct held that insured must obtain permission from ins. co to settle, but that to deny coverage, the ins. co must show prejudice.  Prejudice means at least that the other party had extra assets.  Rule only applies to motorists, not to const sites

6.        Puni's under UM/UIM

- Contrary to rule under liability, which allows puni's, UM carrier doesn't have to pay puni's b/c serves no punitive function to punish your own carrier

7.        Injury must arise from an "Auto Accident"

- Gun platforms do not apply. Gen Rule is that vehicle must be used as a motor vehicle

8.        Hit & Run Claims

- the physical contact rule.  A hit & run is only one type of claim under UM/UIM.  Phys Contact says that physical contact must occur b/t auto or person.  ONLY exception is for vehicle that hits another vehicle.  Rule exists to prevent fraudulent claims

9.        PIP Coverage Offset

a.        From Class

1)       PIP is allowed

2)       But cannot get double recovery

3)       Stacking is once again allowed, but only up to actual damages

b.       Mid Century - offsetting UM/UIM against PIP coverage

III.                 Homeowner’s Policies

A.      Generally

1.        Section 1 covers property damage, vacant land, land used in conjunction, cemetery plots, temporary housing, LOCATIONS and PERSONAL PROPERTY while on those locations

a.        Soil settlement cracking foundation - If caused by plumbing, then it IS covered. MOLD: generally exclusion exists, but exception for water damage.  Litigation arises from water damage that then causes mold

2.        Section 2 - personal injury & Property damage

a.        -main difference b/t CGL & homeowners is whether or not it is a business, including SOLE PROPRIETORSHIPS.  Other key is that section 2 liability coverage is that it is not limited to being on your property/premises, meaning that homeowners is general liability coverage so long as not arise from business, intentional, etc.

B.      2 Elements

1.      Must have personal injury or property damage – Element One

2.      Must be caused by an "occurrence." – Element Two

C.      Exclusions

1.        2 Types:

a.        Business Pursuits

b.       Other Premises

2.        Business Pursuits – Child Care & Lawn Maintenance

a.        Rules/Elements – (2)

1)       Business pursuit must be continuous and regular; AND

2)       For profit

b.       TEST: Business exists for (elements; meaning all needed)

1.        Continuity or regularity of business ops - if regular activity then business, if one shot deal then not

2.        Profit motive - only motive necessary, no actual profit necessary

3.        -Business exists if both 1) & 2) are met and therefore exclusion of insurance

c.        Exception to the exclusion

1)       If business pursuit is ordinarily incidental to non business pursuit

d.       Example(s)

1)      Pennington

-*****ON EXAM - CASE IN BOOK FOR TEST TO DETERMINE IF BUSINESS OR NOT

-TEST: Business exists for (elements; meaning all needed)

1. Continuity or regularity of business ops - if regular activity then business, if one shot deal then not

2. Profit motive - only motive necessary, no actual profit necessary

-Business exists if both 1) & 2) are met and therefore exclusion of insurance***************

2)      Adamo

-Point of this case is that 1) ct disallowed the argument and the 2) IF DAMAGE ARISE FROM ANY BUSINESS, THEN ALL INSUREDS EXCLUSED UNDER THE BUSINESS EXCLUSION

3)       Reed - SHOWS THE EXCEPTION TO THE BUSINESS EXCLUSION

4)       Vaughn - child care based on exception; read w/ Reed Case

e.        Child Care in Texas – summation

-issue in both Reed and Vaughn was NOT if a business, but instead whether exception applies

-When on exam, argue the rule, the exception, and both sides:

1. That exception does NOT apply: kid does regularly, makes a profit, many businesses exist that do this all the time

2. That exception applies: Kid not really making a profit and a teenager is not going to go out and buy Commercial policy

-Similar issue is grass cutting

3.       Other Premises

a.       Rule - Other prem exclusion: test is whether there is causal connection b/t property and injury. Slip & fall meets test, and exclusion applies, but intentional injury, like shooting someone, is not excluded

b.       Example – Bonner

D.      Uncovered Claims

1.        Negligent Assault - Bourn - Emphasizes that you cannot turn an intentional act into negligence by simply pleading negligence

2.        Molestation/Sex Abuse - child abuser is not covered but those who do not report ARE covered

IV.                General Duties & Procedures

A.      Generally

Overall Duties broken b/t contractual & Extra-contractual

-Contract Duties:

1. Duty to defend - 3rd pty duty

2. Duty to Indemnify - 3rd pty duty

3. Duty to pay claim - 1st party duty

-Extra Contractual Duties ("Bad Faith," but no such thing b/c many things fall into category) (arises outside of the contract):

1.        Stower's Duty

2.        Duty of Good Faith & Fair Dealing

3.        Article 2121 of the Texas Ins Code - advertising, etc.

4.        DTPA - 17.40 etc. of Tex Bus & Com Code - 17.46 = laundry list and references article 2121

5.        Art 21.55 Tex Ins Code - duty of prompt pmt

B.      Stower’s Duty

1.        4 Elements

a.        claim w/in scope of coverage,

b.       an UNCONDITIONAL offer/demand, per Webster, w/in AVAILABLE policy limits (meaning what's left after the offers - see Soriano),

c.        offer must offer to fully release the insured, including any liens 

d.       an ordinary prudent insurer would accept the offer considering the likelihood and degree of the insured's potential exposure.

2.        Rules

a.        -Last point: ON EXAM Does stowers doctrine require the Ins Co to affirmatively make an offer? NO, duty only occurs when plaintiff makes an offer that complies w/ the FOUR elements of the Stowers Doctrine. ON EXAM

b.       -RULE: With multiple claim, look to each claim without the others in the order that they arrive and exhaust the policy up to each claim – RACE

c.        Soriano set up a race for the multiple plaintiffs to race to offer, b/c the first to offer gets considered – See rule

d.       -Damages for Breach of Stowers is the amount of the judgment in excess of the policy limits. Thus Judgement (-) Policy Limits = Stowers Damages

e.        -But UNCONDITIONAL does not mean you can’t put a time limit on the offer

f.         Damages for Breach of Stowers is the amount of the judgment in excess of the policy limits - thus Judgement (-) Policy Limits = Stowers Damages

g.        

3.        Examples

a. Stowers

a.       Garcia

-Court held:

4 elements to Stowers Doctrine: 1. 3 prereq's for stowers duty: 1) claim w/in scope of coverage, 2) an UNCONDITIONAL offer/demand, per Webster, w/in AVAILABLE policy limits (meaning what's left after the offers - see Soriano), 3) offer must offer to fully release the insured, including any liens  4) an ordinary prudent insurer would accept the offer considering the likelihood and degree of the insured's potential exposure.

-Last point: ON EXAM Does stowers doctrine require the Ins Co to affirmatively make an offer? NO, duty only occurs when plaintiff makes an offer that complies w/ the FOUR elements of the Stowers Doctrine. ON EXAM

b.       Soriano

-RULE: With multiple claim, look to each claim without the others in the order that they arrive and exhaust the policy up to each claim - RACE

-Soriano set up a race for the multiple plaintiffs to race to offer, b/c the first to offer gets considered – See rule

-Soriano says you DO NOT have to consider both parties

-Soriano added the AVALABLE language of the Stowers' Doctrine.  Therefore, plaintiff's want to give the ins co ONE SHOT to take the policy limits, hope they blow it

-Damages for Breach of Stowers is the amount of the judgment in excess of the policy limits

-thus Judgement (-) Policy Limits = Stowers Damages

c.        Webster

-But UNCONDITIONAL does not mean you can’t put a time limit on the offer

d.       Bleeker

-No stowers duty b/c a full release was never offered b/c a hospital lien existed to recoup the costs of uninsured medical expenses

-Hospital lien attaches to the attorneys too, if not paid before attorney, etc

 

C.      Insured’s Assignment of Rights May Too Soon be Invalid

1.        Rule

a.        Test for BAD Assignment, assignment is bad if:

1)       made prior to adjudication of plaintiff's claim against a defendant in a FULLY adversarial trial,

2)       defendant's insurer has tendered a defense, and

3)       Either: a) defendant's insurer has accepted coverage, or b) defendant’s insurer has made a good faith effort to adjudicate coverage issues  prior to the adjudication of plaintiff's claim

b.       -Basically deal is bad if made before trial - need a fully adversarial trial

D.      Breach of Duty of Good Faith/Fair Dealing

1.        Rules

a.        Can’t have breach without coverage and coverage only extends to first party claims

b.       Current stnd, after this case, for breach of duty of good faith, called reasonably clear stnd, is that insurer will be liable by 1) denying or delaying payment when 2) it knew or should have known when it was reasonably clear that coverage existed (ie act or omission)

c.        Mental anguish dmgs - normal dmg from breach of good faith.  To recover mental anguish dmgs, need direct evidence of the nature, duration, and severity such that it interrupted your daily activities . . . p. 4 of the case

d.       Thus

- under 1st & third pty both have Stowers duty

-Only 1st pty has duty of good faith & Fair dealing

2.       The standard - Universal life v. Giles

-ON EXAM ******Current stnd, after this case, for breach of duty of good faith, called reasonably clear stnd, is that insurer will be liable by 1) denying or delaying payment when 2) it knew or should have known when it was reasonably clear that coverage existed (ie act or omission)********ON EXAM

-*****ON EXAM - Mental anguish dmgs - normal dmg from breach of good faith.  To recover mental anguish dmgs, need direct evidence of the nature, duration, and severity such that it interrupted your daily activities . . . p. 4 of the case *****ONO EXAM

-Hard to keep a mental anguish judgment after appeal

-No requirement that you need a bodily injury, but it would be nice in order to show that it interupted daily activities

3.        Can bad faith exist w/o coverage? – Stoker

4.        Recovering mental anguish damages & puni's

a.       Twin Cities v. Davis

b.       Moriel

5.        No Cause of action for third party claimant

a. Faircloth

6.        No Duty of Good Faith & Fair Dealing to settle third-party claims

a. Maryland v. HEAD industry COATINGS

7.        Thus

- under 1st & third pty both have Stowers duty

-Only 1st pty has duty of good faith & Fair dealing

E.       Severance of Bad Faith from Contract Claim

1. Liberty v. Akin

F.       Voidable Misrepresentations

1.        Rule

a. -5 elements of a successful voidance of policy

1)       making of a representation

2)       2. it was false

3)       3. ins co relied on it in issuing the policy (ie would have charged more, not issued, etc.)

4)       4. Insured intended to decieve in making the representation (HARD to prove)

5)       same as stutuory - must be material to risk or to the loss

6)       6. other statute - ins co must give notice that they intend deny ************ON EXAM MUST LIST ALL, NO MATTER HOW MANY

2.        Tex Ins Code Ann arts 21.16, 21.17

a.        Article 21.16

-any provision that says that answers provided shall render the policy void is unenforceable, unless show . . . a MATERIAL MISREPRESENTATION.  Thus, cannot get out of the policy for small mistakes, and even omissions.

-Thus, an undisclosed, bad driver would be a misrepresentation, but not wrong birth day

b.       Article 21.17

-Ins co must provide insured w/ notice that it will deny coverage due to a misrepresentation.  90 days is presumed reasonable. After 90 days, they can still argue it, but may not rely on the presumption

G.      Duty of Prompt Payment of Claims

1.        Tex Ins Code Ann arts 21.55 - Prompt Payment of Claims

-Section 6 ****ON EXAM Damages: In addition, insured gets 18 percent per year penalty and reasonable attorney's fees. ON EXAM******

2.       Cater

H.      Unfair Practices

1.        Tex Ins Code Ann art 21.21

-****on exam

-Key provisions:

1. section 4 - unfair practices regarding: advertising, bookkeeping, discrimination

2.BIG ONE section 10 - unfair settlement practices: Misrep material fact, etc. GET EVERY WORD OF THE STATUTE. Can't pay on one part to influence another payment section

3. can't request income tax returns, except through the court, for fire loss, or for lost profits

4. Section 11 - especially for reservation letters. (ie don't put bad stmts of law in reservation letters)

5. Section 16 - private cause of action for violation of section 4, or in DTPA laundry list. Higher penalties under 21.21 than in DTPA, meaning actual dmg, court costs, atty's fees.  If defendant committed acts knowingly, then 3 times dmgs allowed. Must ask jury 1) did they act knowingly and 2) what amount would compensate? Judge will cut if too much. Must give 60 day notice if sue under this section.  Settlement offer allowed w/in 60 days and if offer is substantially the same, then court may only allow that offer and only atty's fees up to date of settlement offer.  Either side may compel mediation

-**EXAM 21.21 disallows misrepresentation; it incorp's DTPA laundry list; may get actual dmgs, court costs, & atty's fees, and knowingly results in potential fine of treble damages

-21.21 potentially applies to 3rd and 1st party claims and individual adjuster may be held liable too.

2.       Beaston

 

TO SELF TEST USE OUTLINE BELOW

 

V.                  Commercial General Liability Policy

F.       Rules for Contract Construction – Ambiguities

14)     

(b)     examples:

15)     

(c)     example:

(d)     2 types of 3rd Party Coverage

·          

·          

16)    Gen Rule:

17)     

18)     

19)     

20)     

21)     

22)    2 Kinds of Ambiguity exists

(c)      

(d)      

23)     

24)     

25)     

26)     

G.      Requirements/Elements

5.        3 Types

d.        

e.         

f.          

6.         

g.       Notice is required under the _______ and any 1st/3rd party coverage

h.       Notice means

i.         Insurance company cannot deny coverage for breach of prompt notice provision unless _________________

j.         Prejudice is a question of ______ for the ________ to decide

k.        The Texas Homeowner’s Policy currently does/does not require prejudice and Chiles held it does/does not, but if litigated again, the courts will/won’t probably require it

l.         When notice is first recieved after a default judgment has become FINAL (after plen power), then prejudice is ___________________________.

7.         

g.       Occurrence is

h.       Where acts voluntary or intentional and injury is natural result, then injury is/is not an accident or occurrence.  (eg intentionally taking dirt is not accident).  Furthermore, conduct is/is not an accident where dmgs are natural result or where injuries reasonably anticipated from the insured's actions. Thus a hunting accident will be covered b/c it is not the natural result of the actions.

i.         Time of occurrence is when __________, not when _________ act took place

j.         Sexual molestation is/is not intentional as a matter of law in all 50 states

k.        more than one occurence is/is not allowed out of one event

l.         misrepresentations do/do not occur out of an occurence, unless it causes unexpected accidents

8.        Damages Covered/Not Covered

c.         

7)       CGL & Homeowners - only occur from __________ or _____________

8)       Ment anguish by itself does/does not const bod injury

9)       2 exceptions to allow mental anguish: 1) _________________________ or 2) __________________________________________________

10)    Bod injury is dmg to _________________________

11)    Injury to property means __________________________________________________. Same/Not the Same under both policies, w/ diff language

12)    Econ losses alone do/do not result in property dmg. Except: ___________________________________________________________________________. (IE WHEN LOSS OF USE IS A MEASURE OF DMG)

d.        

4)       Current TX law: Punitive damages are/are not covered under CGL, unless specifically excluded, even in endorsement

5)       TX sup court has/has never decided issue

6)       Federal court predicted ________________________________________________________________________________________________________________________

H.      Continuous Damage Claims

4.        4 Doctrines

e.         

f.          

g.        

h.        

2)        

5.        Hypo

6.        Examples

e.        First manifestation of Damages Theory

 

 

f.         Continuous or Triple Trigger Theory

 

 

g.       Injury-in-Fact

 

 

h.       Exposure Theory

2)       48 Installations” - Another asbestosis case

d) Exposure theory says to "_________________________ _________________________ "

e) ON EXAM: Total Pl.'s damage = __________________________________________________

f) What about defense coverage?  Court held that defendant (48) had to pay/did not have to pay its own proportionate defense.  (i.e. court held to pro rate defense like you would damage, but not all courts hold that way)

g) Which of the 4 theories is the majority rule?

                1. First Manifestation

                2. Continuous

                3. Injury in fact

                4. Exposure

I.         Exclusions

6.        4 Types

e.         

f.          

g.        

h.        

7.         

c.        Rules

5)       -J(5) & j(6) excludes

6)       -L - excludes

7)       -Both only apply to _________________________

8)       -Only way that coverage could occur is when _______________________________________________________________________________________________________________________.

d.       Overall Steps of Analysis

5)        

6)        

7)        

8)        

8.         

c.        Intent Present if:

3)       _________________________ _________________________  or

4)       _______________________________________________________________________________________________________________________________________________________________________________

d.       State Fm v. SS & GW

4)       THE TEST IN TEXAS FOR WHEN INTENTIONAL INJURY EXEMPTION APPLIES: (p.3 of Case) Intent present if _________________________________________________________________________________________________________________________________________________________________________________________________________________________________

5)       Exclusion different than whether there was an occurrence but much controversy as to whether or not.  Usually will only have both or neither, but courts generally do not address both in the same opinion.

6)       Regardless occurrence and exemption are/are not two different issues and must/must not be addressed separately

9.         

b.       After reading the following three employee cases, courts generally will/will not use a reasoned analysis to construe against the insurance co. b/c of __________________________________________________., which really should be bought for this purpose.

10.      

 

J.       Miscellaneous Provisions

6.        4 Types

e.         

f.          

g.        

h.        

7.         

d.       GEN RULE: "_________________________ " or "_________________________ " Rule

4)       look to _________________________ in the _________________________, assume that all are _________________________, and ask if __________________________________________________.  Give those coverages _________________________ interpretation and construe _________________________, per Haden v. Newport.  (ie 8 corners rule: compare _________________________ in _________________________ against _________________________. Doubts in favor of _________________________.

5)       McManus - _________________________ matter not _________________________.  _________________________ is the same as alleging the elements as _________________________.  If _________________________ alleged result in no coverage, then duty/no duty as a matter of law to defend. Ins co entitled to rely on what is plead, unlike California, where fruits of investigation must  be defended against as well.  Called complaint allegation rule.

6)       Nat Union v. Merchants Fast Motor Lineswill/will not imagine facts that could have been plead but were not

e.        Exceptions

2)      Gonzalez - possible exception to the 8 corners rule, b/c Sup Ct. has never accepted an exception before.  If exception exists, it says to only look beyond the 8 corners if 1) __________________________________________________, and 2) __________________________________________________.  Satisfying both is hard, but possible.  (i.e. facts may come in that are not _________________________ if both above requirements are met.)  In Gonzalez, this fact is the ownership of the Ice Auger.

f.         Multiple Claims

7)      Cruse - foundation leveling that damaged home.  Exists in book to show that so long as one thing that is _________________________ is _________________________, then ins. co. must defend _________________________ lawsuit.

Remember . . .

-Duty to indemnify depends on true facts, regardless of what's pled, and normally requires jury findings.  So pay all attorneys fees and costs of defense, but only have to pay what jury tells you you're actually liable.  Therefore, attorneys that understand the rule, ask juries in original trial b/c otherwise need to have 2nd trial to determine amount liable.

-The above mentioned attorneys fees normally do not come from the general policy b/c of language in CGL saying "All expenses we incur...."

 

8.         

b.       Rules

-issue anytime ins co believes _________________________

-this is/is not a breach of duty to defend/indemnify

-If res rights letter issued, insured gets to _________________________, own _________________________, and whether to _________________________.  Ins co cannot question, so long as insured's __________________________________________________

-Generally inform insured of _________________________

Wilkinson

-Coverage cannot be created where _________________________ under policy via _________________________ and _________________________

-Insured must generally show _________________________.  But see accompanying cases just before - McGuire,etc.

4)      Farmer's v. Wilkinson

-Rule, bottom p. 2: If you 1) _________________________, 2_________________________, 3) w_________________________, then you waive _________________________ or are _________________________ from asserting them

-Called the Wilkinson Exception

5)      Farmer's v. McGuire

-General rule, p. 2 of case,  is that ins co can/can never waive the basic policy provisions, meaning the exclusions, the coverage, etc.  The reservations only apply to _________________________.  Wilikinson is the exception to this general rule.

6)      Britt v. Cambridge

-Which comes first, duty to defend or duty to indemnify?

-What to take home from the case: EXAM - 1) insurance policies do/do not cover intentional acts - intent comes into picture and ins co will use as basis of defense.  INTENT IS/IS NOT ISSUE REGARDLESS OF PLEADINGS. This case was crafty attorneys carefully drafting to collude against the judge

2) why didn't Cambridge waive their rights? Waiver and Estoppel. _____________________________________________________________________________________________________________________________.

-EXAM Collusion and Fraud: Collusion is/is not an intentional act and normally included/excluded from coverage

-Coverage cannot exist if none existed prior to waiver.

-REVIEW: - regarding failing to defend when required, this and Gandy show what occurs when ins. co breaches duty to defend. P. 8 of the case, §57 of Restmt of Judgments, calling ins co indemnitor and insured as indemnitee.  §57 says when duty owed to third person and notice of duty to defend given, then ins. co 1) is estopped from disputing the existence and the extent of liability, 2) is precluded from disputing fact issues if ins co defended or insured defended w/ due diligence & reasonable prudence, 3) if insured doesn't defend w/ due diligence, then ins. co may relitigate, 4) if reservation of rights letter exists reserving it's right, the conflict exists only on accidental injury v. intentional, then finding of the jury does not bind the ins. co. in a separate coverage lawsuit, but all other undisputed coverages are binding on the ins. co if defended w/ due diligence, 5) later case of GANDY says that any suit where defendant does defend, i.e. show trial, then that is never binding

9.         

c.        Rules

5)       -If 2 lawsuits, one plaint v. insured, and second insured v. ins. co, prior Texas law said that while first suit pending then cannot decide the second b/c that would be an impermissible advisory opinion. This case held that second case, logic requires us to  hold that if no duty to defend based on the pleadings, then can/never can have a duty to indemnify. Thing to watch, though, is a _________________________.

6)       -Rule/EXAM - If try to get around an exclusion, plead a _________________________ cause of action.

7)       -Rule/EXAM - when file declaratory judgment action, indemnity is _________________________ only.  Meaning that many ins co's caught defending a suit for many years only b/c determining coverage can be greatly difficult

8)       -Rule/EXAM - rule of extraneous evidence: allege _________________________ cause of action

d.       Examples

1) Western Heritage v. Pepe's

        2) Farmer's v. Griffin

10.      

b.       Class Rules

4)       Insured must prove __________________________________________________

5)       Insurance company then must prove _________________________

6)       Insured finally proves that __________________________________________________

VI.                Automobile Policies

D.      Generally

4.        5 Types of Coverage within Policy

f.                                                                                                 3rd Party

g.      
 


h.                                                                                                                               1st Party

i.          

j.        
 


5.        Generally

a. Texas Auto Policy

-Contains:

4)       Liability - _________________________ party coverage. Minimum limit is 20K per person, 40K per accident, both for bodily injury.  15K for property damage.  This is commonly called 20/40/15. The way it works is that 20K is most paid per person, but most ins. co will pay for the whole accident is 40K.

These are 1st party coverage (below):

8)      _________________________ - med. bill + 80% lost wages, required to be offered

9)      _________________________ - uninsured motorist & under insured motorist coverage, required to be offered

10)   _________________________, subject to deductible

11)   _________________________ - theft, hail, tree limb, things that damage car that aren't collisions, often w/ deductible

12)   (occasionally) Ed pay - only medical and normally replaced by PIP

6.        Ownership, Maintenance, & Use

c.        Rules

5)       Auto policy covers _________________________, _________________________, & _________________________, but additional insureds are only covered for _________________________

6)       Permissive users are _________________________, but _________________________ are NOT.  Nevertheless, insured is ALWAYS/NEVER covered.

7)       -Rule/EXAM - Must give effect to the _________________________ and _________________________ of the policy.  The only coverage given is for the _________________________ given under the policy.  IF the policy language does not define, then look to _________________________ & _________________________, facts, and other case law

8)       -Rule/EXAM - for someone to be covered under an auto person, they must fit one of the many definitions of covered person in the policy and use looks to the purpose and intent of the person using the vehicle to determine if covered

d.       Examples

1) Nationwide v. MacFarland

-Purpose Test: If purpose of action is _________________________, then coverage, but if to _________________________ the vehicle then _________________________, and no coverage.

E.       Exclusions

7.        5 Types

f.          

g.        

h.        

i.          

j.          

8.         

b.       Rule -The law of the state of Texas is that family member exclusion is both valid and invalid.  Invalid up to _________________________ (20/40 for bodily injury b/c exclusion only applies to bodily injury). Valid within/beyond the minimum limits. Court reasoned that b/c policy of the State of Texas is to provide _________________________, it would be consistent with/against public policy to allow an EXCLUSION of those limits.  However, EXCLUDING anything beyond those limits is/is not valid.-Example: ________________________________________________________________________________________________________________________________________________________________________________________________________.

b.       Example - National County v. Johnson (ON EXAM)

9.        ______________________Allowed/Not Allowed

10.     ______________________- Allowed/Not Allowed

11.     ______________________- Allowed/Not Allowed

c.        Rule - Look only to the ______________________belief of the person driving the automobile, including 2nd, 3rd, and 4th, drivers, but see the factors below for the proper analysis of cases w/ the old rule

d.       Examples

1) Snyder v. Allstate

5)       Royal v. Abbott (permissive use case that is no longer good law, just good analysis)

6)      USAA v. US Fire

12.     ______________________Allowed/Not Allowed

F.       UM/UIM Coverage

10.     What is an Underinsured Claim?

g.        

h.        

i.          

j.          

k.        Setoff = Total insurance coverage – what’s already paid

11.     Stacking Limits

c.        Can/Cannot stack inter policy limits – so allowed/not allowed to stack the tortfeasor’s policy, plus your own UM/UIM, plus medical insurance

d.       Can/Cannot stack intra policy limits – can/cannot recover for multiple claims on one UM policy

12.     Bystander Damages Under UIM Claim – observation of a family member does/does not entitle you to a separate limit b/c ______________________

13.     Owned Vehicle Exclusion – can be/can never be your own vehicle

14.     Settlement w/o Consent Clause

- S.Ct held that insured must/need not obtain permission from ins. co to settle, but that to allow/deny coverage, the ins. co must show ______________________.  ______________________means at least that the other party had ______________________.  Rule only applies to motorists, not to const sites

15.     Puni's under UM/UIM

- Contrary to rule under liability, which allows puni's, UM carrier does/doesn't have to pay puni's b/c ____________________________________________

16.     Injury must arise from an "______________________"

- Gun platforms do/do not apply. Gen Rule is that vehicle must be used as a ______________________

17.     Hit & Run Claims

- the ______________________rule.  A hit & run is only one type of claim under UM/UIM. ______________________says that ______________________must occur b/t auto or person.  ONLY exception ____________________________________________________________________________________________________________________________________

18.     PIP Coverage Offset

c.        From Class

4)       PIP is/is not allowed

5)       But can/cannot get double recovery

6)       Stacking is/is not allowed, but only up to ______________________

d.       Mid Century - offsetting UM/UIM against PIP coverage

VII.              Homeowner’s Policies

E.       Generally

3.        Section 1 covers property damage, vacant land, land used in conjunction, cemetery plots, temporary housing, LOCATIONS and PERSONAL PROPERTY while on those locations

b.       Soil settlement cracking foundation - If caused by plumbing, then it IS covered. MOLD: generally exclusion exists, but exception for water damage.  Litigation arises from water damage that then causes mold

4.        Section 2 - personal injury & Property damage

b.       -main difference b/t CGL & homeowners is whether or not it is a business, including SOLE PROPRIETORSHIPS.  Other key is that section 2 liability coverage is that it is not limited to being on your property/premises, meaning that homeowners is general liability coverage so long as not arise from business, intentional, etc.

F.       2 Elements

3.      Must have ______________________or ______________________– Element One

4.      Must be caused by a(an) "______________________." – Element Two

G.      Exclusions

4.        2 Types:

c.         

d.        

5.        ______________________– Child Care & Lawn Maintenance

f.         Rules/Elements – (2)

3)       Business pursuit must be ____________________________________________; AND

4)       For ______________________

g.       TEST: ______________________exists for (elements; meaning all needed)

4.        ______________________or ______________________of business ops - if ______________________then ______________________, if one shot deal then not

5.        ______________________motive - only motive necessary, no actual profit necessary

6.        -Business exists if both 1) & 2) are met and therefore exclusion of insurance

h.       Exception to the exclusion

2)       If business pursuit is ______________________________________________________________________________________________________________

i.         Example(s)

5)      Pennington

6)      Adamo

-Point of this case is that 1) ct disallowed the argument and the 2) IF DAMAGE ARISE FROM ANY BUSINESS, THEN ALL INSUREDS ______________________UNDER THE BUSINESS EXCLUSION

7)       Reed - SHOWS THE EXCEPTION TO THE BUSINESS EXCLUSION

8)       Vaughn - child care based on exception; read w/ Reed Case

j.         Child Care in Texas – summation

-issue in both Reed and Vaughn was NOT if a business, but instead whether exception applies

-When on exam, argue the rule, the exception, and both sides:

1. That exception does NOT apply: kid does regularly, makes a profit, many businesses exist that do this all the time

2. That exception applies: Kid not really making a profit and a teenager is not going to go out and buy Commercial policy

-Similar issue is ______________________

6.       Other Premises

c.        Rule - Other prem exclusion: test is whether there is ______________________b/t ______________________and ______________________. ______________________meets test, and exclusion applies, but ______________________, like shooting someone, is not excluded

d.       Example – Bonner

H.      Uncovered Claims

3.        Negligent Assault - Bourn - Emphasizes that you cannot turn an intentional act into negligence by simply pleading negligence

4.        Molestation/Sex Abuse - child abuser is/is not covered but those who do/do not report ARE covered

VIII.            General Duties & Procedures

I.         Generally

Overall Duties broken b/t contractual & Extra-contractual

-Contract Duties:

1. Duty to defend - 3rd pty duty

2. Duty to Indemnify - 3rd pty duty

3. Duty to pay claim - 1st party duty

-Extra Contractual Duties ("Bad Faith," but no such thing b/c many things fall into category) (arises outside of the contract):

6.        Stower's Duty

7.        Duty of Good Faith & Fair Dealing

8.        Article 2121 of the Texas Ins Code - advertising, etc.

9.        DTPA - 17.40 etc. of Tex Bus & Com Code - 17.46 = laundry list and references article 2121

10.     Art 21.55 Tex Ins Code - duty of prompt pmt

J.       Stower’s Duty

4.        4 Elements

e.         

f.          

g.        

h.        

5.        Rules

h.       -Last point: ON EXAM Does stowers doctrine require the Ins Co to affirmatively make an offer? ______________________, ______________________________________________________________________________________________________________

i.         -RULE: With multiple claim, look to each claim with/without the others in the order that they arrive and exhaust the policy up to each claim

j.         Soriano set up a ______________________for the multiple plaintiffs to ______________________to offer, b/c____________________________________________– See rule

k.        -Damages for Breach of Stowers is ____________________________________________________________________________________________________________________________________

l.         - UNCONDITIONAL does/does not mean you can’t put a time limit on the offer

m.      Damages for Breach of Stowers is ____________________________________________________________________________________________________________________________________

6.        Examples

a. Stowers

e.        Garcia

-Court held:

f.         Soriano

g.       Webster

h.       Bleeker

K.      Insured’s Assignment of Rights May Too Soon be Invalid

2.        Rule

c.        Test for BAD Assignment, assignment is bad if:

4)       ,

5)        

6)       Either: a) ____________________________________________, or b) ______________________________________________________________________________________________________________

d.       -Basically deal is bad if made before/after trial - need a fully ______________________trial

L.       Breach of Duty of Good Faith/Fair Dealing

8.        Rules

e.        Can/Can’t have breach without coverage and coverage only extends to first/third party claims

f.         Current stnd, after this case, for breach of duty of good faith, called ______________________stnd, is that insurer will be liable by 1) ____________________________________________ 2) ________________________________________________________________________________________ (ie act or omission)

g.       Mental anguish dmgs - ____________________________________________.  To recover mental anguish dmgs, need ______________________, ______________________, and ______________________. . . p. 4 of the case

h.       Thus

- under 1st & third pty both have ______________________duty

-Only 1st pty has duty of ____________________________________________

9.       The standard - Universal life v. Giles

10.     Can bad faith exist w/o coverage? – Stoker

11.     Recovering mental anguish damages & puni's

c.        Twin Cities v. Davis

d.       Moriel

12.     No Cause of action for third party claimant

a. Faircloth

13.     No Duty of Good Faith & Fair Dealing to settle third-party claims

a. Maryland v. HEAD industry COATINGS

M.     Severance of Bad Faith from Contract Claim

N.      Voidable Misrepresentations

3.        Rule

a. -5 elements of a successful voidance of policy

7)        

8)        

9)        

10)     

11)     

12)     

 

 

4.        Tex Ins Code Ann arts 21.16, 21.17

c.        Article 21.16

-any provision that says that answers provided shall render the policy void is unenforceable, unless show . . . a ____________________________________________.  Thus, can/cannot get out of the policy for small mistakes, and omissions.

-Thus, an undisclosed, bad driver would/would not be a misrepresentation, but not ______________________

d.       Article 21.17

-Ins co must/need not provide insured w/ notice that it will deny coverage due to a misrepresentation. ______________________is presumed ______________________. After ______________________, they can still argue it, but may not rely on the presumption

O.      Duty of Prompt Payment of Claims

3.        Tex Ins Code Ann arts 21.55 - Prompt Payment of Claims

-Section 6 ****ON EXAM Damages: In addition, insured gets ____________________________________________ and ____________________________________________fees. ON EXAM******

4.       Cater

P.       Unfair Practices

3.        Tex Ins Code Ann art 21.21

-****on exam

-Key provisions:

1. section 4 - unfair practices regarding: ______________________, ______________________, ______________________

2.BIG ONE section 10 - unfair settlement practices: ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________. GET EVERY WORD OF THE STATUTE. Can't pay on one part to influence another payment section

3. can't request ______________________, except through the court, for ______________________, or for ______________________

4. Section 11 - especially for ______________________. (ie don't put bad stmts of ______________________in reservation letters)

5. Section 16 - private cause of action for violation of section 4, or in DTPA laundry list. Higher penalties under ______________________than in ______________________, meaning actual dmg, court costs, atty's fees.  If defendant committed acts knowingly, then 3 times dmgs allowed. Must ask jury 1) ____________________________________________and 2____________________________________________? Judge will cut if too much. Must give ______________________day notice if sue under this section.  Settlement offer allowed w/in ______________________days and if offer is substantially the same, then court may only allow that offer and only atty's fees up to date of settlement offer.  Either/Neither side may compel mediation

-**EXAM 21.21 allows/disallows misrepresentation; it incorp's ____________________________________________; may get ______________________, ______________________, & ______________________, and ____________________________________________

-21.21 potentially applies to ______________________and ______________________claims and ______________________may be held liable too.

4.       Beaston