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Insurance Law SMU Law Review Volume 51 Issue 4 Annual Survey of Texas Law Article 18 1998 Insurance Law Michael Sean Quinn Pamela D. Nielson Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Michael Sean Quinn & Pamela D. Nielson, Insurance Law, 51 SMU L. REV. 1131 (1998) https://scholar.smu.edu/smulr/vol51/iss4/18 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. INSURANCE LAW Michael Sean Quinn* Pamela D. Nielson** TABLE OF CONTENTS I. INTRODUCTION ..................................... 1132 II. INSURER BAD FAITH ............................... 1133 A. COMMON LAW INSURER BAD FAITH ............... 1134 B. SCOPE LIMITED .................................... 1135 C. ELEMENTS OF COMMON LAW INSURER BAD F A ITH ............................................. 1138 1. Universe Life Insurance Co. v. Giles ............ 1138 2. State Farm Lloyds v. Nicolau ................... 1145 3. United States Fire Insurance Co. v. Williams .... 1150 D. STATUTORY BAD FAITH ........................... 1153 1. A rticle 21.21 .................................... 1153 2. D TPA .......................................... 1155 3. A rticle 21.55 .................................... 1156 III. PROPERTY INSURANCE ............................ 1157 A . A RSON ............................................. 1158 B. PLUMBING RELATED FOUNDATION DAMAGE ...... 1159 C. CARE, CUSTODY, OR CONTROL .................... 1161 D. THE APPRAISAL PROVISION ........................ 1163 E. INTERPLEADER PROBLEMS ......................... 1163 IV. BUSINESS CRIME INSURANCE ..................... 1164 V. LIABILITY INSURANCE ............................. 1166 A. THE DUTY TO DEFEND ............................ 1166 B. INSURING AGREEMENT ............................ 1172 C. VOLUNTARY CONDUCT ............................ 1173 D. "TRIGGER" .. ........................................ 1177 E. WHO Is AN INSURED? . 1179 F. VENDORS' ENDORSEMENTS ........................ 1181 * Of Counsel, Sheinfeld, Maley & Kay (Austin Office). Mr. Quinn has taught insur- ance law, legal ethics, and other courses at Southern Methodist University School of Law in Dallas, Texas, and at the University of Texas at Austin School of Law. During the Spring Semester of 1998, Mr. Quinn is teaching insurance law at the University of Texas at Austin School of Law. ** Shareholder, Sheinfeld, Maley & Kay (Austin Office). Ms. Nielson has eleven years experience practicing law, concentrating in insurance coverage litigation, construc- tion-related litigation, and environmental litigation. Ms. Nielson is admitted to the United States District Court, Western, Eastern, Northern, and Southern Districts of Texas; the United States Court of Appeals, Fifth Circuit; and is currently a member of the Construc- tion Law Section of the State Bar of Texas. 1131 1132 SMU LAW REVIEW [Vol. 51 G. SEXUAL MOLESTATION ............................ 1182 H. POLLUTION EXCLUSIONS ........................... 1187 I. EMPLOYEE EXCLUSIONS ........................... 1192 J. CARE, CUSTODY, OR CONTROL .................... 1193 K. CLAIMS ADMINISTRATION .......................... 1193 1. Notice .......................................... 1194 2. Reservation of Rights Letters .................... 1195 3. Liability Insurer/Victim Relations ............... 1196 VI. STOWERS DOCTRINE ............................... 1198 VII. UNINSURED/UNDERINSURED AUTO COVERAG E ........................................... 1204 A. WHO Is AN INSURED? . 1205 B. PUNITIVE/EXEMPLARY DAMAGES .................. 1206 C. UNUSUAL USES .................................... 1207 VIII. INSURANCE ARBITRATION ........................ 1210 IX. INSURANCE AGENTS AND BROKERS ............. 1211 A . R ISK POOL ......................................... 1211 B. BROKER'S DUTY TO SPEAK LIMITED ............... 1212 X. INSURANCE INSOLVENCY .......................... 1213 A. ATrORNEYS' FEES ................................. 1213 B. STATE GUARANTY ASSOCIATIONS .................. 1215 C. INSOLVENCY AND PREMIUMS ....................... 1217 XI. CONCLUSION ......................................... 1218 I. INTRODUCTION T his has been a significant year for Texas insurance law. Texas state and federal courts, as well as the Fifth Circuit, have decided a large number of significant cases. Due to space limitations, the following heart-wrenching and mind-expanding topics have been omitted: 3 4 the nature of insurance, 1 health insurance, 2 life insurance, ERISA, most 1. See Bekins Moving & Storage Co. v. Williams, 947 S.W.2d 568 (Tex. App.-Texar- kana 1997, no writ) (discussing whether a mover's provision to pay for the "declared value" of property in case of loss or damage was insurance or merely an incidental contract of guaranty or suretyship). 2. See Boon-Chapman, Inc. v. Tomball Hosp. Auth., 941 S.W.2d 383, 384 (Tex. App.-Beaumont 1997, no writ) (addressing two conflicting coordination of benefits clauses under group insurance plans); McMullen v. Employees Retirement Sys. of Tex., 935 S.W.2d 189, 191 (Tex. App.-Austin 1996, writ denied) (upholding a decision by the Board of Trustees of the Employees Retirement System of Texas that denied an insured state employee coverage for his son's eyeglasses and therapy under a group insurance policy). 3. See Sever v. Massachusetts Mut. Life Ins. Co., 944 S.W.2d 486 (Tex. App.- Amarillo 1997, writ denied) (considering beneficiary changes); Cates v. Cincinnati Life Ins. Co., 947 S.W.2d 608 (Tex. App.-Texarkana 1997, n.w.h.) (addressing lapsed policy for non-payment of premiums); Board of Trustees of the Employees Retirement Sys. of Texas v. Benge, 942 S.W.2d 742 (Tex. App.-Austin 1997, writ denied) (denying accidental death benefit arising from travel). 4. See 29 U.S.C. § 1001 (1997). See Texas Pharmacy Ass'n v. Prudential Ins. Co. of Am., 105 F.3d 1035, 1042 (5th Cir. 1997) (discussing statutory framework for administering 1998] INSURANCE LAW 1133 of auto insurance, 5 the interaction between releases and direct actions, 6 7 and insurance subrogation. II. INSURER BAD FAITH We begin with the law of bad faith. Strictly speaking, insurance bad faith is derivative upon substantive insurance law and adjustment prac- tice. But, the exposure of insurers has, for some time, been the "hot" topic in insurance law. Hence, we begin with bad faith. All of the law of insurance bad faith is divisible into three parts. First is the "Stowers Doctrine," taking its name from the venerable case, G.A. Stowers Furniture Co. v. American Indemnity Co.8 This doctrine regu- lates the conduct of liability insurers when a plaintiff offers to settle a covered claim within policy limits, but the insurer fails to settle. Accord- ing to Stowers, if an insured suffers a judgment in excess of policy limits, and if the liability insurer was negligent in failing to settle that case within those limits, when the insurer received a liquidated and unconditional de- mand to settle within those limits, then the insurer is liable upon a negli- gence theory for amounts in excess of the policy limits. 9 Usually, it is assumed that the insurer is liable in tort for the entire excess judgment. We defer the discussion of the "Stowers Doctrine" until Part VI. The second category of insurance bad faith is statutory bad faith. Gen- erally, this includes actions brought under article 21.21 of the "Unfair coverage for prescription drugs); Barhan v. RyRon, Inc., 121 F.3d 198, 201 (5th Cir. 1997) (discussing the rules of civil procedure for reviewing ERISA claims); see also Clyde A. Wilson Int'l Investigations, Inc. v. Travelers Ins. Co., 959 F. Supp. 756 (S.D. Tex. 1997) (discussing rescission of plan); Leavitt v. BASF Corp., 946 F. Supp. 488, 491 (S.D. Tex. 1996) (discussing disability benefits, the terms of the plan, and the terms of the employee brochure); Christenson v. Mutual Life Ins. Co., 950 F. Supp. 179 (N.D. Tex. 1996) (address- ing preemption). 5. See John Deere Ins. Co. v. Trukin' U.S.A., 122 F.3d 270, 275 (5th Cir. 1997) (ad- dressing who is an insured under a truck policy); United Servs. Auto. Ass'n v. Perry, 102 F.3d 144, 152 (5th Cir. 1996) (discussing whether the United States government may re- ceive reimbursement under 10 U.S.C. § 1095(a)(1) (1990) for medical services provided to a military hospital following an auto accident); State Farm Mut. Auto Ins. Co. v. Kelly, 945 S.W.2d 905 (Tex. App.-Austin 1997, writ denied) (The policyholder had coverage for a car which had been stolen, unbeknownst to him, and which was thereafter seized by the police; He, therefore, lost to the insured.). 6. See Angus Chem. Co. v. IMC Fertilizer, Inc., 939 S.W.2d 138 (Tex. 1997). The release of an insured does not constitute the release of the insurer of that insured. Never- theless, under Texas law, since the insurer cannot be held liable without a determination of the insured's liability, complete and total release of the insured bars any suit in Texas against the insurer. See id. at 139. "In a jurisdiction where a determination of the insured's liability is not a prerequisite to an action against the insurer, and release of the insured is not an impediment to such action, Texas law does not preclude [the tort victim] from suing [the] insurers [of the alleged tortfeasorJ." Id. 7. See Texas Farmers Ins. Co. v. Seals, 948 S.W.2d 532, 533-34 (Tex. App.-Fort Worth 1997, n.w.h.) (holding that if a
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