A ruling yesterday by a federal choose in Texas1 appears to point a development the place federal courts will forestall dangerous religion claims from going earlier than a jury if the insurer has an professional opinion supporting the denial of a declare. The courtroom dismissed the dangerous religion portion of the lawsuit with the next rationale:
To succeed on a bad-faith declare, the insured should set up that there was no affordable foundation for the insurer to disclaim fee of the declare and that the insurer knew, or ought to have identified, that there was no affordable foundation for such denial….
Right here, plaintiff has not produced proof to create a triable subject on whether or not insurer Church Mutual’s conduct was unreasonable following the April 2020 hail storm. The unrebutted proof within the summary-judgment file exhibits the next: After the hail storm and plaintiff’s declare, Church Mutual retained a public adjuster, Robert Bullard. Based mostly on Bullard’s investigation, Church Mutual concluded that the declare required fee of $62,028.73 in coated damages. When plaintiff retained its personal public adjuster and represented that it was entitled to $1,171,672.85 on the declare, Church Mutual sought further opinions from engineers Ian Ray and Justin Donaldson. These further consultants pointed to causes of loss not coated by the coverage. Their findings constituted at the least an inexpensive foundation—even when it in the end proves to be unpersuasive to the factfinder on this case—for the insurer to disclaim plaintiff’s demand for the next fee quantity.
Plaintiff cites circumstances similar to Universe Life Ins. Co. v. Giles, 950 S.W.second 48, 56 n.5 (Tex. 1997) to argue that ‘an insurer can’t manufacture a bona fide protection dispute by conducting an unreasonable investigation . . . to defend itself from dangerous religion legal responsibility.’ However these will not be the information or affordable conclusions that might be drawn from the information within the summary-judgment file right here. It’s undisputed that Church Mutual despatched at the least three consultants to analyze the storm harm. Plaintiff brings no proof that these investigations had been biased or pretextual. And the courtroom concludes that the consultants’ {qualifications} and assignments don’t assist an inference of dangerous religion or unreasonableness, even when the factfinder may in the end disagree with their conclusions.
Proving a pre-textual investigation or biased investigation will not be simple. I famous this in The Plague of Fallacious and Insurer Worded Engineering Reviews by Insurance coverage Firm Retained Engineers:
Many skeptical public adjusters, contractors, and critics inform me that they don’t have to attend to know what the engineering report goes to say if a sure engineer has been retained. Not solely are the scientific findings opposed to the policyholder, however the wording of the report additionally inextricably dovetails with the insurer’s exclusionary or limiting coverage language. It’s a lot simpler to show that an engineering report’s conclusion is incorrect than it’s to show that the errors and incorrect conclusions had been the results of bias or an outcome-oriented mind-set.
Texas insurance coverage firm attorneys will merely take away the matter to federal courtroom after which make sure they’ll test the field to see if they’ve a suitable professional opinion to supply the excuse to dismiss dangerous religion allegations. I’m sure this can be a subject of dialog on the American Policyholder Affiliation (APA) assembly, which begins at the moment in Dallas.
The APA has a particular criticism portal arrange for sham fraudulent engineering studies. Conserving observe of and doing one thing about this plague of engineers who’re a part of the declare course of is a mission of the APA.
Thought For The Day
Character can’t be developed in ease and quiet. Solely by expertise of trial and struggling can the soul be strengthened, imaginative and prescient cleared, ambition impressed, and success achieved.
—Helen Keller
