OA Qs Flashcards
Failed to set forth MSJ proof to burden never sifted to Plaintiffs
Defendants set forth ample evidence to support their summary judgment burden. Plaintiffs do not set forth a valid basis for why the summary judgment evidence is inadmissible.
W Did not move for MSJ on lack of privity
At the time of the MSJ P did not assert BOK against W. But W preemptively moved for MSJ on privity in FN3/CR 137
W’s name is on policy
W is not the carrier, did not investigate, adjust, or otherwise participate in P claim determinations
P did not accept 2 year SOL
P are charged with knowledge of the terms and conditions of the policy. Ignorance is not a defense.
Claim and Suit Limitations Endorsement is void b/c it’s ambiguous
Must read policy as a whole. Ambiguity does not arise b/c parties have different interpretations.
Claim and Suit Limitations Endorsement creates a situation were the SOL is less than 2 years
SOL is not triggered by compliance with policy. A cause of action accrues when the claim is accepted or rejected. Policy says you can file suit at anytime.
S denied that all conditions precedent were met.
B/c P did not provide S w/ notice of their disagreement with the claim determination. They just filed suit.
Court must adopt the construction of the policy urged by insured even if the carrier’s construction is more reasonable.
That is true, where the policy is ambiguous. But the authority cited by Plaintiffs relates to exclusions of limitations on coverage not SOL.
SOL began on 2/5/21 when W responded to POL
Not reasonable b/c allows P to toll SOL indefinitely b/c they did not submit POL until 877 later.
H is not a catastrophe area
S issues coverage in catastrophe areas, so it is permitted to use 2301 in all TX policies
Case law says POL is required to file suit
Distinguishable b/c uses language that requires compliance w/ policy AND suit brought 2 years from DOL. So creates situation where SOL is less than 2 yrs.
POL relevant b/c required to file suit
POL determines value of covered loss. Where a claim is denied no POL necessary. POL waived when claim determinations were made.
D did not plead waiver
D did plead that they waived POL requirement. D are not relying on aff. def. of waiver. D not saying P waived their right to something.
No case has concluded the Claim Suit Limitations is valid.
TX cases interpret the “no suit or action can be brought unless the policy provisions have been complied with” to mean that the refusal to comply with the policy suspends the right to recovery under the policy, but does not bar your ability to bring suit and abatement is remedy.
If it is a condition precedent, it should have been placed in the conditions precedent section and not the SOL provision.
You read policy as a whole. The trigger date for a cause of action is the claim determination and you are provided the ability to file suit at anytime to prevent SOL from running.
W has liability for fraud b/c W is S’s MGA
W was not involved in the claims handling and did not make any representations to P. The INS Code says MGAs “may” do certain things, but does not require them and W proved it did not do certain things.
P understood from 9/10/18 letter that the claim would not be denied or accepted until POL was presented.
No mention that the claim could not be denied. P misunderstanding is does not support a claim for fraud b/c it does not turn D’s rep. into false statements.
D never told P they were waiving the POL.
Under TX law, making a claim determination is waiving POL. Claim was denied, no longer needed. Accepted claim stated although we do not have the POL we made a coverage decision.
P relied on rep. that POL was necessary to process claim and did not file suit until POL was submitted
Their claims were processed. At a min. they were on notice that it was time to dispute the claim. P made all the repairs in 2018. P gave carrier 3 hours to process claim before filing suit.
P reliance that POL was necessary was justified
P did not submit until 877 later; hired lawyer; did not dispute; made all repairs; gave carrier 3 hours to review before filing suit.
IA said water damage to bedroom, kitchen, living room foyer were covered
Not misrep. b/c it’s true that claim was covered. IA don’t make claim determinations
P relied on rep. that water damage was covered to hire contractors
Already hired contractors; claim determinations outline positions; if disagreed they needed to bring it to S’s attention.
P were harmed by misrep.
Nothing D’s allegedly said caused harm to P b/c they were never prevented from exercising their rights under policy or disputing claims.
BOK b/c failed to renew policy
Not required to renew policy; did not request renewal; never paid policy premiums
