In The News

The Texas Department of Insurance is investigating two insurance companies for alleged violations of Texas insurance regulations. The companies being investigated are Fred Loya Insurance Company and Old American County Mutual.

The Texas Department of Insurance has apparently received a high number of complaints about claims being made with these two insurance companies. Those complaints from Texas drivers included such practices as delays in processing claims, unsatisfactory offers or settlements, denial of claims and liability disputes. Those complaints mirror our experience with Fred Loya Insurance Company on cases we have handled. As a general rule, when we see that our client is involved in a car wreck with someone who is driving a vehicle that is insured with Fred Loya, we expect that regardless of the facts, the claim will either be denied completely or that an offer will be so low, that in almost every case, a lawsuit will need to be filed.

Although Fred Loya Insurance Company and Old American County Mutual Insurance Company are not the largest insurers in the state of Texas, the number of complaints lodged against those insurers is significantly greater than the number of complaints filed against much larger insurance companies. The Dallas Morning News reported that it conducted its own analysis of complaints, and that their analysis revealed that 10 of the 25 largest auto insurers in the state – those with more than 100,000 policies – had worse-than-average customer service records. The two companies at the top of the list of complaints were Fred Loya Insurance Company and Old American County Mutual. (See www.dallasnews.com )

Fred Loya, which collected more than $283 million in premiums last year, performed nearly four times worse than a typical Texas insurer, according to the state-calculated “complaint index.” Old American County Mutual, a Dallas-based company that collected nearly $539 million in premiums, had a complaint index of 3.42 – or about three and a half times worse than a typical company. No other insurance company besides Old American County Mutual Insurance Company and Fred Loya Insurance Company broke 2.0 on the “complaint index”, which would be twice the average. Even more interesting and perhaps more telling about the complaints these two companies have received is that the two insurers have a business relationship. Fred Loya is listed as one of several managing general agents for Old American County Mutual Insurance on its website.

Old American County Mutual Insurance Company declined to comment on the high complaint numbers it has received. However, the explanation given by Fred Loya Insurance Company is probably a good word of warning to current and potential Fred Loya customers about how they can expect to be treated if they find themselves in a position where they need to make a claim. Edgar Meza, vice president of claims for Fred Loya Insurance Company, said many of the complaints stem from (1) differences over the market value of cars that are totaled and (2) from accidents involving a person driving a Fred Loya-insured vehicle who has been excluded from coverage.

Taking Mr. Meza’s statements at face value apparently there is a large number of people who are having difficulty in obtaining what they perceive to be a fair settlement from Fred Loya Insurance Company when a vehicle is a total loss. This is a problem not only for people who purchase a policy with Fred Loya insurance company, but it can also be a problem for people who are not insured with Fred Loya if the person who causes the accident is insured with Fred Loya because those claims will typically need to be processed by and paid for by Fred Loya. These insurance companies know how important it is to people to have transportation. Insurance companies know that when people faced with the choice of either (1) having no transportation or (2) settling a claim cheaper than they should just so that they can have transportation and keep their jobs, a lot of people will settle for a less than fair amount. As a result, even if you are not insured with Fred Loya you need to make sure that your own auto insurance policy carries collision and uninsured/underinsured motorist protection and preferably even rental coverage to give yourself the most protection possible in the event that your vehicle is involved in a collision with a Fred Loya insured or for that matter, an uninsured motorist.

Mr. Meza’s second explanation for the high number of complaints against Fred Loya is an even scarier comment about the practices of not only Fred Loya Insurance Company, but also some of the smaller insurance companies who are writing insurance policies that exclude coverage in what would normally be a covered situation. As Mr. Meza points out, Fred Loya Insurance Company serves a unique customer base, typically lower-income drivers who have trouble obtaining insurance. In our experience, that frequently translates to drivers with a bad driving record who are now forced because of a previous wreck, drunk driving incident or some other legal problem to prove to a court that they have auto insurance. These types of drivers will typically secure the absolute cheapest insurance they can find, and they will select the absolute minimum amount of coverage required by law.

One thing that Fred Loya is doing to reduce the cost of insurance is to severely limit is exposure by limiting who is insured. On a standard Texas auto insurance policy, the owner of the vehicle has the ability to allow his or her friends and family to drive the vehicle with his or her permission. If the driver to whom the vehicle is entrusted causes a wreck, under a standard Texas auto insurance policy, the driver is covered under the policy unless that particular driver has been specifically identified as an “excluded driver.” The typical scenario for an excluded driver is the family who has a teenage driver that is causing the insurance rates for the entire family to sky-rocket. In that situation, many families opt to list the teenager as an “excluded driver” and to require the teenager to get his or her own insurance policy.

In contrast to standard Texas auto policies, Fred Loya Insurance Company is writing some policies that essentially exclude all other drivers except for the named insured. To those who are not involved in handling claims, this may not sound like it would create a big problem, but it does because it creates an increased risk of “uninsured” drivers. In fact, the Texas legislature created a law, The Safety Responsibility Act, to protect the motoring public from uninsured drivers. Western Alliance Ins. Co. v. Alberez, 380 S.W.2d 710 (Tex. App. – Austin 1964, writ ref’d n.r.e.). Under this Act, the insurance company insuring the vehicle must provide a policy of insurance which complies with the Texas Transportation Code §601.073.

These “we don’t cover anyone but you” policies create a number of problems. For example, it creates a situation where if the policyholder lends his vehicle out to a neighbor, a friend or even to a spouse, there is no coverage.

1. There is no liability insurance coverage to pay for the damages they cause to someone else’s vehicle, property or for personal injuries;
2. There also is no coverage for damage to the insured’s vehicle because an excluded driver was driving the vehicle;
3. In addition, it also puts the driver of the vehicle in a position of receiving a “no insurance” ticket because the policy does not cover anyone except the named insured;
4. For those insureds who were required by a court order to insure the vehicle, those policy holders may find themselves in violation of a Court order because the vehicle was not technically insured;
5. If a coverage dispute arises, sometimes an insurance company will decide that the insurance company is in a better legal position if it pays a claim even though they claim that there is no coverage, but they then have the right to sue the policyholder for their decision in paying a claim that was not covered;
6. Other coverages such as uninsured/underinsured motorist coverages and Personal Injury Protection (P.I.P.) coverages can be in jeopardy if the driver was not insured under the policy; and
7. The likelihood that a person who insured with Fred Loya or Old American will be sued is substantially increased anytime an issue arises that results in a delay in the payment of a valid claim as typically these issues have to get sorted out through the litigation process.

In addition, Mr. Meza’s comments that Fred Loya Insurance Company serves a unique customer base, typically lower-income drivers who have trouble obtaining insurance is disconcerting as the quality of claims coverage should not vary depending upon the socio-economic status of the customer as there is no difference in the duty of good faith and fair dealing or the duties an insurance company owes to an insured or to a beneficiary under the Texas Insurance Code depending upon the income status of the person. This issue is also particularly troubling considering the fairly recent marketing push by Fred Loya to increase its position in the insurance market in Texas. Questions arise about whether the company is targeting a particular segment of the public. Either way, there is apparently a need to be mindful of the old saying, “You get what you pay for.”

Other than a general buyer beware message to the public this investigation might serve, the question is where does this investigation leave the general public and why is it important. The reality is that insurance companies in Texas have a lot of power. Ben Gonzalez, an Insurance Department spokesman, said the agency is limited in how it can respond to consumer complaints. For example, the department cannot force a company to pay a disputed claim if there is no violation of the law. Also, the agency cannot decide who is at fault in an accident. We cannot resolve every case, he said. “Complaints do help us identify issues of concern with a particular company.” In addition, the Texas Department of Insurance has indicated that Old American has also been cited for canceling hundreds of auto policies after claims were filed on each. While the insurance company may claim that the cancellations were justified, you still have to be concerned as a consumer that an insurance company has a reputation that it is there to collect premiums, but not to pay claims in a timely or fair manner.

While your experience with these insurance companies may have been positive, this investigation points out that as a consumer, you should take more into account when purchasing insurance than just the amount of the premiums.

Montes Law Group, LLP

Attorneys Rachel Montes

1121 Kinwest Parkway, Suite 100

Irving, Texas 75063

Telephone: (214) 522-9401

Facebook at Montes. Law Group, P.C.

Jayant Patel (60), an American doctor practicing in Sydney Australia has been convicted of 3 counts of manslaughter and one charge of grievous bodily harm in connection with his treatment of four patients. Patel is accused of botching a several operations while he was the chief surgeon at an Australian hospital. The jury found him guilty on all charges. He faces a maximum penalty of life in prison.

While this trial took place in Australia, it shares many common themes with medical malpractice trials in the United States. For example, Dr. Patel denied any wrongdoing, claimed he was innocent on all charges. In addition, Dr. Patel raised the two most common defenses that arise in medical malpractice claims (1) bad result and (2) consent. In medical malpractice, medical providers often assert a defense of “bad result” to claim that just because the procedure has a bad result, the bad result is not evidence of negligence or wrong-doing. Likewise, medical providers often claim that the patient consented to the treatment knowing that it had risks. However, the consent defense does not excuse the doctor from negligently performing the procedures.

In contrast, the prosecutor described Patel as a “bad surgeon motivated by ego” who tried to restore his reputation by carrying out surgery he was not competent to perform. The prosecutor pointed to evidence introduced at trial that Patel had been banned by U.S. authorities from carrying out some of the procedures he undertook when he later moved to Australia, and that he did not inform his new employers about the restrictions. Patel has a long history of questionable practices. The trial came more than 25 years after questions were first raised about Patel’s competency and marks a milestone for many former patients who have waited years to face the man they accuse of irreparably damaging their lives.

Montes Law Group, P.C.

1121 Kinwest Parkway, Suite 100

Irving, Texas 75063

(214) 522-9401

As part of an educational program to encourage high school students to get involved in our community, and to help educate them on the historical foundation of our country and our legal system, the Dallas Bar Association sponsored Law Day.   As part of that program, students from around the Dallas Fort Worth Metroplex partiipate in a mock trial competition, and are given mentors and assistance from some of Dallas’ proven trial lawyers.   Among those participating in the program was Rachel Montes who explained the “Voir Dire” process, and then gave the students a demonstration of an actual voir dire.

Members of the Dallas Bar then volunteer their time to coach local teams as well as to judge the competitions which culminate in a state wide competition.

Procter & Gamble Co is being sued by parents claiming that Pampers newly designed diapers have caused severe rashes and other skin conditions on their children. Proctor & Gamble has responded to the claims saying that they are “completely false.”

The lawsuit, Clark et al v. The Procter & Gamble Company, was filed in U.S. District Court for the Southern District of Ohio on May 11, 2010 and tracks complaints on Facebook that the new Pampers Swaddlers and Cruisers diapers with Proctor & Gamble’s new Dry Max technology appear to have caused rashes and burns on their children. In March, Procter & Gamble launched new versions of its Swaddlers and Cruisers diapers in the U.S. These diapers are thinner and use the company’s Dry Max technology to replace the paper pulp previously used.

The Consumer Product Safety Commission started an investigation this week following complaints of babies and toddlers suffering severe and persistent diaper rashes and blisters that resemble chemical burns. CPSC spokesman Scott Wolfson encouraged parents to report any problems to the agency, which he said has received only a handful of reports so far. Wolfson said the investigation is in its early stages and the agency is seeking as much information as possible. “We would like parents and caregivers to report to CPSC if they feel that their baby has been affected by this issue,” he said. “It’s so important for it to come directly to us.”

Montes Law Group, LLP
1121 Kinwest Parkway, Suite 100
Irving, Texas 75063

Telephone (214) 522-9401

www.MontesLawGroup.com

Facebook @ Montes Law Group, P.C.

A customer has sued Starbucks Corp who claims she suffered second-degree burns after being served tea that was too hot. According to the complaint, the plaintiff Zeynep Inanli was served tea that was “unreasonably hot, in containers which were not safe,” at a Starbucks store in Manhattan. The case is Inanli v. Starbucks Corp et al, New York State Supreme Court, New York County, No. 105767-2010.

The lawsuit alleges that as a result of Starbucks’ negligence, Inanli suffered “great physical pain and mental anguish,” including the burns. Retailers who serve hot coffee and tea know that when their products are served at certain temperatures, the liquid can cause severe burns to their customers. In fact, there are numerous industry studies that specifically warn businesses that serve coffee and other hot liquids to regularly check the temperature of the coffee to make sure that the temperature is safe for human consumption. These studies point out that there is an important distinction between “hot” coffee and “dangerous” coffee. These companies know or should know that coffee and tea should never be served to customers at or above certain temperatures. These studies also warn businesses that water for coffee or tea should never be warmed up in a microwave oven as the microwaves can superheat the water far beyond the point at which the water is dangerous to touch.

While many people remember the now famous McDonald’s hot coffee case because of the amount of damages the jury awarded, and it is often used as a soundbite or a punchline for people who want to claim lawsuit abuse, you do not hear these people tell the entire story of that case.

Stella Liebeck of Albuquerque, New Mexico was the customer who was severely burned in that case. Ms. Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments. Ask any burn patient how painful this treatment and these types of burns are, and you will know that Ms. Liebeck suffered a great amount of physical pain and suffering and mental anguish.

McDonald’s had documented over 700 complaints from customers who had been burned by McDonald’s coffee, including many who sustained third degree burns. Based on the advice of consultants McDonald’s held its coffee at temperatures ranging between 180 and 190 degrees fahrenheit, but the consultants had never evaluated the safety ramifications at this temperature. Meanwhile evidence showed that other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

The temperature at which coffee is served is critical because at certain temperatures, any contact with the hot coffee to the skin will cause a burn. Plus, the hotter the coffee is and the longer it stays on the skin, the more severe the risk for a burn injury. At trial, expert witnesses testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in as little as two seconds. In contrast, other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck’s spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn.

While it may be understandable that many people who have not seen the pictures of Ms. Liebeck’s injuries or who have not heard the whole story, may have an initial, negative reaction to this type of case, it is not uncommon to see that the customer, like Ms. Liebeck can suffer a massive amount of burns, endure tremendous pain and suffering just like anyone who sustains third degree burns, be forced to under painful medical procedures, and incurthousands of dollars in medical bills because of hot coffee or tea that is served at dangerously hot temperatures.

Montes Law Group, P.C.

Attorneys: Rachel Montes

1121 Kinwest Parkway, Suite 100
Irving, Texas 75063
Telephone (214) 522-9401

Facebook @ Montes Herald Law Group, L.L.P.