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The Texas Legislature meets once every two years, and their next session is scheduled for 2013. Recently, State Representative John Smithee, chairman of the House Insurance Committee, wrote a letter to Texas Insurance Commissioner Eleanor Kitzman about TWIA’s shaky position. Even under the best scenario, Smithee found that TWIA will have only a little more than $3.6 billion in resources. In his letter, Smithee asked Kitzman if TWIA policyholders have been informed that the insurer may not have sufficient resources to pay claims and wondered whether TWIA policyholders have been made aware that the State of Texas has no obligation to help pay claims that TWIA cannot pay.
In other news, revised figures have come in for the hail storm that hit north Texas a few weeks back. At last Thursday’s Texas Association of Public Insurance Adjusters Spring Conference, a public adjuster asked me about the recent changes to Texas Windstorm Insurance Association policies.
With no other significant source of funding to pay claims, this growth in exposure is an excessive burden on coastal citizens. If you were one of the thousands of Texas coastal residents that had to file an insurance claim with TWIA following Hurricane Ike, you probably agree with Commissioner Kitzman’s conclusion that TWIA needs a major overhaul. The Houston Chronicle reports that TWIA has filed with the state’s insurance regulators for the rate hike. To make matters worse for policyholders, TWIA plans to seek 5% increases annually until it considers its rates adequate to cover potential claims. The Texas Department of Insurance ruling comes soon after passage of the new TWIA law, a law proponents of lawsuit reform have portrayed as a TWIA reform bill.
It should come as no surprise that at the end of the day, policyholders have been placed in a far worse position then they were before Hurricane Ike.
Before the end of the last Texas legislative session, the Texas legislature ended their Texas Windstorm Insurance Association (TWIA) reform stalemate and passed a comprehensive reform bill it hopes will better prepare TWIA for future catastrophes. The recently passed TWIA bill requires that claims be filed within a year, it establishes a task force that will examine wind insurance issues and TWIA operations throughout TWIA (and which will report back to the Texas legislature in 2012), and it limits policyholder lawsuits to twice the amount of damages if the policyholder can prove that TWIA intentionally withheld a legitimate claim.
Aside from protecting policyholders’ rights against their insurance companies, Merlin Law Group also monitors bills that may affect your rights as a policyholder.
Yesterday, we received word that a committee substitute for House Bill 3 was introduced and analyzed in the Senate Business and Commerce Committee. Legislation that would have affected TWIA and the consumer protections available to its customers died during the regular session. While Republicans generally side with advocates of lawsuit reform - an important element in the TWIA legislation - key Republican senators on the Gulf Coast say they will view the issue through the prism of their district's geography and stand up for the right of their constituents to demand fair treatment from the insurance cooperative. A special hearing has been set this Friday regarding Texas Windstorm Insurance Association (TWIA) Hurricane Ike litigation following TWIA being placed under administrative oversight. Texas Judge Susan Criss signed an Order this morning approving the settlement of the slabbed cases from Hurricane Ike.
Judge Criss should know since she was involved in the settlement discussions of the individual slabbed claims noted in Texas Windstorm Insurer Settles 2,400 Hurricane Ike Slab Claims. This is a far different result and situation than when I stood up and spoke out against the proposed State Farm Class Action settlement in Mississippi. Dan Luby, of the Florida Insurance News, does a fantastic job tracking down timely articles involving insurance. Taylor is seeking more information about the finances of the settlement and how much was paid in attorneys fees. One of the questions Taylor is trying to get answered is exactly what the impact of this settlement will be on state general revenue. One major problem of having the government in the insurance business is that those running government have a tough enough time overseeing traditional governmental operations alone. Hurricanes Ivan, Katrina and Ike all posed the same legal questions and practical adjustment problem. As a society, we need to come up with a resolution that pays insurance fully rather than requiring this massive and repeat litigation to occur after each hurricane that carries a significant storm surge. My concern is that some Texas legislators may be more intent on protecting TWIA than protecting TWIA's customers. Purva Patel has done a marvelous job reporting on insurance claim issues arising as a result of Hurricane Ike.
While it took me a while to agree, I am also happy that these matters appear to be resolving.
Still, many more cases are actively being litigated where policyholders have still not been paid fully. One of my TWIA slab case clients was very happy about the proposed resolution of her claim. A recent Government Accounting Office (GAO) report of state sponsored catastrophe programs brought this to my attention. Officials from some state programs said that they limit participation in the reinsurance or ILS markets because the coverage they want is not available at a price they are willing or able to pay without significantly increasing premium rates charged to homeowners. The result is that most state sponsored programs rely upon the luck of not having a catastrophe where they would have to call upon a state's general revenue obligations to pay for the debt. Claire Wilkinson's post at the Insurance Information Institute, State-Run Insurers Lack Risk-Based Pricing, brought this report to my attention. In Florida, I publicly commented on some of these issues while serving on the Citizens Property Insurance Mission Review Task Force, and noted some of them in Taking Tough Positions On Citizens Property Insurance Task Force.
The Texas hurricane insurance coverage disputes caused by Hurricane Dolly and Hurricane Ike are fully engaged. TDI Commissioner Kitzman makes it clear that TWIA policyholders should expect their rates to go up, so TWIA policyholders should pay close attention to the next legislative session to learn how much more they should expect to pay. Created by the Texas Legislature as a nonprofit organization, TWIA provides windstorm and hail coverages when private-market insurance companies exclude them from their residential or commercial policies sold to coastal residents. Representative Smittee advised Commissioner Kitzman that TWIA’s current financial condition is much worse than anyone anticipated.
Last week, I wrote that an insurance-industry group estimated the hail damage to reach approximately $2 billion.
Previously, the Southwestern Insurance Information Service, which speaks for insurers in Texas and Oklahoma, estimated losses at $1.5 -$2 billion.
I found this summary on TWIA’s website, and thought it might be helpful for everyone to see.
If you cancel your policy within the first 90 days, we will retain $100 of premium or the value of 90 days of premium, whichever is greater. You are required to file a claim with us no later than one year after the date that your property is damaged. Within 30 days of the date you file your claim, we may request any information necessary to determine whether to accept or reject your claim.
We must provide you a written notice of the amount we will pay, if any, and notice that we have accepted or denied your claim in full or in part within 60 days of receiving your claim or within 60 days of our receipt of the information we requested within the 30-day period above whichever is later.
If we deny a portion of your claim, we must give you a detailed summary of how we determined not to accept coverage. We must pay your claim within 10 days of the date we notify you that we accept all or part of your claim. We may use guidelines published by the commissioner of insurance to determine the extent that your loss is caused by covered wind damage or excluded flood damage (including waves or tidal surge). All disputes concerning the amount we will pay on a covered loss must be resolved through appraisal.
You are prohibited from suing us over the amount of loss if we have accepted coverage for any part of your claim. The appraisal decision is binding and cannot be reviewed or appealed, except for specific reasons outlined under Condition 11.g of your policy.
You have 60 days after the date you receive written notice that we accepted all or part of your claim to demand appraisal.
Prior to filing suit, we may require that a dispute over our denial of coverage for your claim in full or in part be handled by alternative dispute resolution (ADR). Prior to filing a suit concerning your denied claim in full or in part, you must notify us of your intent to file suit.
You must notify us of your intent to file suit within two years of the date you receive our written notice that we denied your claim in full or in part.


We must request that a dispute be handled through ADR within 60 days of the date you provide us notice of intent to file suit. If we request ADR, you may file suit against us if the ADR was not completed within 60 days of our request, the ADR was not completed within an authorized extension of the 60-day period, or you are not satisfied after the completion of the ADR. You may only bring a suit against us over our denial of your claim to determine if our denial was proper and to determine the amount you are entitled to recover. You may recover damages in an amount not to exceed two times the damages if you show by clear and convincing evidence that you were harmed because we mishandled your claim by intentionally committing certain acts. Specifically, I’ll elaborate on how these changes might affect your claims process experience. And that’s exactly what Texas Insurance Commissioner Eleanor Kitzman said about the Texas Windstorm Insurance Association (TWIA). The committee and consultant will both be chosen by April 1, and a preliminary report should be prepared by the June 1 start of the 2012 hurricane season. Additionally, it is not reasonable to expect that any single organization can effectively manage the explosive growth in claims activity that occurs after a significant tropical storm.
In other words, TWIA will keep raising rates for the foreseeable future; TWIA has not stated how long it will take until there is enough money. But it may also be bad news for more people in the near future, as private insurers continue to reduce or eliminate windstorm coverage along the Texas Gulf Coast. However, this new law does more to limit policyholders’ rights if TWIA again takes advantage of its policyholders the next time a covered peril damages their property. By lowering the amount a policyholder can sue for, it discincentivizes people from suing TWIA when TWIA fails to fulfill its insurance obligations.
And to make matters worse, TWIA’s board signaled that it plans on yearly 5% increases until it feels rates are adequate to cover potential claims. This is particularly important to Texans, because TWIA is an insurer of last resort for many citizens living along the coast.
The committee substitute proposed to eliminate or restrict many significant legal rights TWIA policyholders have under current law.
Call your state senators and representatives and urge them to protect TWIA policyholders’ rights. Rick Perry to pass his agenda in a special session with the help of fellow Republicans, he may not enjoy the advantage of normal political alliances in his bid to overhaul the Texas Windstorm Insurance Association. The Texas Department of Insurance has the power to place TWIA under its control during a time of crisis. For example, I mentioned claims criticisms in TWIA Receives Litigation, Media and Regulatory Critical Analysis for the Manner it Treats Customers During Adjustment.
The Court finds that the Settlement was negotiated at arm's length by Plaintiffs' counsel and TWIA’s counsel. Under Mississippi law, I was certain money was being left on the table for those who were the most damaged in the class action proposed by Dickie Scruggs. He linked Taylor Heads to Supreme Court to Get TWIA Documents, which involves a Texas legislator trying to obtain confidential resolutions and settlement information from the Texas Windstorm Insurance Association (TWIA).
Larry Taylor (R-Friendswood) today asked the Texas Supreme Court to let him see the Texas Windstorm Insurance Association (TWIA) settlement records he requested Sept.
There are other serious questions that arise from the settlement as well, such as why did it take a lawsuit for some of these plaintiffs whose homes were leveled to a slab to get compensated? They are usually much worse overseeing insurance operations, for which they have little experience and time for oversight. Those running the programs claim that since taxpayers could be on the hook for their wrongdoings, they need the immunity. From my view as a professional nomad helping those with insurance policies obtain recovery where their homes and businesses have disappeared as a result of a hurricane, it is an extraordinarily difficult proposition to see vast areas of destruction knowing that we will have to tell clients that their claims will be denied en masse because the insurance industry will first battle their customers in court before paying a fair sum towards recovery of a total loss caused by an excluded cause of flood waters and a covered peril of wind. It would be a shame if this is really a sham witch hunt, looking for excuses to provide more immunity to TWIA. There was an agreement between the Texas attorneys that nothing would come out in the press until the clients signed the agreements.
Most claims practice criticisms and evidence our firm has regarding TWIA have not seen the light of day, so far. The truth is that I am burning up the airways by phone and plane between Tampa and Houston.
Alternatively, our state politicians hope the federal government will bail out the state's fiscal irresponsibility. In recent discovery, it's 11.2% maximum damage exposure calculations on Slab claims have been shown to be both arbitrary and wrongly determined. Much of this comes from case language and logic pre-dating the development of the all-risk insurance policy. Several weeks ago, policyholder attorneys, including myself, met in Galveston to organize a series of depositions and decide upon the work assignments for these cases.
Spelman explained in another case his statistical methodology for determining how much damage occurred to structures that were obliterated by Hurricane Ike. He was provided information and variables from 387 TWIA estimated claims of partial damage.
Smithee, along with insurance professional David Crump, assessed data showing that TWIA would be unable to pay its policyholders’ claims in the event of a severe catastrophe.
TWIA's rates have been inadequate for the purchase of sufficient reinsurance that could provide greater protection to policyholders.
Because TWIA is the provider of last resort, we do not try to expand our customer base or actively compete against private insurance providers. Smithee noted that TWIA’s own records indicate it would be unable to pay billions in potential losses if a Category 4 hurricane struck the Texas coast. Even with the lowered estimate, the hailstorm will still rank as one of the largest hail losses ever. If you show good cause, the commissioner of insurance may extend this deadline up to 180 days.
If we accept all or part of your claim, we must tell you how much we will pay for your loss at that time. If we accept your claim, you may request a detailed summary of how we determined the amount we will pay. If payment depends upon your performance of specific actions, we have 10 days from the day you complete those actions to pay the claim.
Condition 11 of your policy provides complete details of your rights and duties when disputing our determination of the amount we will pay for an accepted claim.
We can grant a 30-day extension for good cause if you request the extension in writing no later than 75 days after you receive the notice from us. Condition 12 of your policy provides complete details of your rights and duties when disputing a denial of coverage.
If you do not provide timely notice of your intent to file suit, you waive your right to contest our denial and you are barred from suing us concerning that particular denial.
ADR must be completed within 60 days of our request, unless the period is extended by either your and our mutual consent or by rule adopted by the commissioner of insurance. You may only recover the amount payable under the terms of the policy, consequential damages under common law, prejudgment interest, court costs, and reasonable and necessary attorney’s fees. On July 1, 2008, TWIA had 247 open claims; 90 days and two storms later, it had over 65,000 claims and was simply overwhelmed. Otherwise, TWIA will have no incentive to act in good faith and we’ll find ourselves in a similar mess next time a major Hurricane makes its way through the Texas Gulf Coast.
In a letter to regulators, TWIA claimed that rates need to increase by 28% for homeowners and 35% for commercial policies! Under Texas law, TWIA is allowed to raise rates by 5% without needing approval from regulators. Additionally, lowering the possible penalty TWIA faces for treating its customers improperly means that TWIA faces a smaller risk and is less incentivized to act appropriately.
After it became clear that there was – fortunately -- little support for the bill, the chairman recessed the committee. Apparently, new information provided to the Department of Insurance lead to the finding that TWIA is in a condition hazardous to the public or to its policyholders.


I don't think these are the types of concerns that led the Texas Insurance Commissioner to take over TWIA.
The Settlement is reasonable in light of the uncertainty as to whether the Class Members could prevail on their causes of action against TWIA, the risks and cost of litigation, and the value of claims foregone. It was easy for me to explain this to Judge Sentor, which lead to his refusal to certify or approve a class settlement. It is funded by mandatory assessments to other insurance carriers, which can then claim tax credits to offset the assessments.
The problem is that claims abuse often occurs because there is no accountability for wrongful claims behavior. The slabbed claims posed very difficult legal issues under Texas causation law, which is far different than in the other coastal states. For those that retained attorneys and fought, those policyholders have generally done well. This would ultimately result in more wrongful claims behavior and consumer protest the next time a catastrophe strikes Texas.
Since even the Texas Windstorm Insurance Association (TWIA) participated with a press release, I assume that the gentlemen's confidentiality agreement to wait on telling everybody publicly that a settlement has been reached, even before clients have signed the releases, no longer applies. Still, I think a more honest response by TWIA regarding Slab adjustments would have been to note that the science of adjusting slabbed structures following a hurricane is difficult and that the methodologies always have to be reviewed for improvement. There was obviously a lot of gnashing of teeth and frustrating moments for all concerned during the negotiations. I have often felt that our elected leaders are in a no-win situation when the people electing them to office hold a noose over their neck when it comes to government sponsored insurance. In Texas, TWIA tries to enforce mitigation as a condition to get insurance and therefore lower severities of its expected losses.
New law suits are being filed, pending lawsuits are being set for trial, settlement conferences are causing great frustration, and the discovery battles between insurance counsel and policyholder counsel are considerable and contentious. At the Windstorm Symposium in Dallas two weeks ago, my presentation highlighted how TWIA's calculation was arbitrary. TWIA's attorneys, if they are honest, have to acknowledge that the calculation was wrongly determined. At dinner with three different law firms last night, we discussed the burden of proof in an all-risk scenario, as I did in Can an Insured Recover Under a Flood Policy and an All Risk Homeowners Policy for the Same Damage?
This will be the first of many depositions and discovery attempts by policyholder attorneys to gain additional recovery for those individuals who suffered the most devastation caused by Hurricane Ike. After consultation with TWIA retained engineers, he considered 18 different variables from those claims, but found that only three of them had a significant impact upon the wind damage. But, if TWIA paid 11.2%, he calculated that 95% of all Slabbers would statistically have their full indemnity on an actual cash value basis.
Smithee found that if a Category 4 storm hit Galveston, Texas, it would cause approximately $14.2 billion in damage. The Insurance Information Institute noted that hail storms typically cause $1 billion in damage annually.
If you do not demand appraisal within the 60 days, or within 30 days after we grant an extension, you waive your right to demand appraisal.
If we do not request ADR within 60 days of receipt of your notice of intent, you can proceed with your suit. The new law, which becomes effective on September 1, 2011, eliminates any penalty TWIA would pay if it defrauds or abuses policyholders -- the very claims it was found guilty of by Texas Department of Insurance Commissioner. The terms and conditions of Settlement are no less favorable to the Class Members than comparable arms-length terms and conditions that would have been agreed to by unrelated parties under similar circumstances. It was obvious to me that the TWIA attorneys had gone to school on the State Farm fiasco in Mississippi and devised a resolution, acceptable to the vast majority of those slabbed by Hurricane Ike, which reflects the facts, the policy, and Texas law. Taylor is the co-chairman of the Legislative Oversight Committee for TWIA and is concerned about the suit and the way TWIA adjusted claims in the aftermath of Hurricane Ike.
Does Texas law need changing regarding when Hurricane damage is flood related versus windstorm-related? TWIA in Texas and Citizens Property Insurance Corporation in Florida have these tendencies. The vast majority of my clients have only received letters from our firm, and I am awaiting final figures from TWIA so that we can consummate the deal.
I bet Jim Oliver would agree over a beer that the 11.2% adjusted figure we have poked fun at in The Parable of Hurricane Ike Insurance Claims is wrong.
Judge Susan Criss did a wonderful job riding herd on the attorneys and should be congratulated for her efforts. There are reasons why so many in the Houston area have had to wait for so long to obtain fair resolution.
Voters want lower rates, even if that means the government charges absurdly low rates and unfairly competes with private enterprise. Sadly, this is a pretty normal state of affairs on a two year anniversary following a major catastrophe. My post, Practical Points From Gulf Coast Case Law Update, noted a recent Mississippi case, Fonte v. Even assuming the methodology is sound, the data is wrong and the calculation is far too low.
Texas case precedent needs to reflect what the rest of the country has long noted regarding the burden of proving damage under an all-risk policy. TDI is currently exploring options for a more viable approach and we look forward to working with the legislature on a comprehensive solution. In addition, the new TWIA law restricts policyholders’ right to a trial by jury and forces binding arbitration upon all policyholders. Yet, everybody has to make their own judgments about what is best for them and their particular factual situation. TWIA should be voluntarily paying more benefits, interest and attorneys fees---assuming the current TWIA executives understand their obligation of good faith, which requires such immediate action. Virtually all the insurance companies selling all-risk policies in Texas have claims manuals which indicate that the policyholder merely needs to prove that damage occurred during the policy period.
Furthermore, the new TWIA law gives TWIA immunity for many deceptive and misleading practices policyholders experienced after Hurricane Ike. If so, some future Slabbers will be doing more than just looking to protest in Austin as they did following Hurricane Ike. It was pretty obvious to many in an open Courtroom that while not mentioning me by name, she expressed some concern about my views of the resolution efforts and negotiations. Most have a hard time admitting failure and accepting full accountability for wrong decisions. Those manuals then indicate that the insurer has to prove the amount of the excluded damage or happily pay its customer. We plan to at least help argue legal points which Texas decisions seem to have muddled and to help Texas policyholders in the future.
And with the statute of limitations approaching with new clients calling, these last innings are going to be very slow. We'll see what spin those crafty and able insurance defense attorneys are able to place on this situation. I want to avoid the situation which happened in Mississippi, which I described in Personal observations of the Tuepker vs. 2009), which described how such a pre-determined outcome, despite evidence to the contrary, could give rise to a finding of bad faith. Property Insurers Have An Obligation To Investigate All Facts Supporting Coverage, and the refusal to do so because of some arbitrary statistical analysis is bad faith conduct.



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