2. IS THERE COVERAGE?
Remember, in practice, an insurance policy is
an agreement for the insured to pay premiums and the carrier to reject claims
until they are forced to cover them. To obtain coverage of your claim against
the Defendant, you have to forget your adversarial nature and do anything and
everything you can to effectuate coverage. Primarily, this means stating your
claim(s) in terms of negligence. Even if the Defendant was wigged out on crack
and admitted on video that he enjoyed every minute of stealing from your
disabled elderly widow, you have to assert that the Defendant was negligent or else ? you guessed it ? there will be
So in your letter where you colorfully
describe the bewitching characteristics of excessive crack consumption, you
will need to follow that up with plain, ordinary negligent claims.
For example, a real estate agent owes a duty
to disclose facts that they have personal knowledge of IF the facts are germane
and might influence a buyer not to purchase. If the facts were a previous flood
in the house, but the realtor failed to disclose the previous flood and even
advised the seller not to disclose it, then that would be a clear example of
Fraud in a Real Estate Transaction under Chapter 27 of the Texas Business &
Commerce Code as well as common law fraud. If the first thing the Defendant and
their insurance carrier see is a well versed rendition of a fraud claim, the
first reaction will be ?we don?t cover that.?
Instead, submit the claim in negligence
showing the negligence as defined under the Occupations Code and the various
ethical requirements arising from the National Association of Realtors and the
Texas Real Estate Commission. Then, the carrier will basically have no choice
but to provide coverage, even if under a reservation of rights. Your fraud and
DTPA claims can follow and you will lose nothing.
At a minimum, include a negligence claim
with any initial contact.
If you merely send a generic negligence claim
where you know or suspect there is coverage, the carrier has to work a lot
harder to deny the claim. It is infinitely more difficult for the carrier to
withdraw coverage than it is to deny it from the beginning. Add your sexy facts
after you have the insurance carrier on board.