|FROM:||The Legal Taxi|
|RE:||Legal Actions available for an insurance claim for the loss caused from a burglary?|
Insurance Claim for burglary.
What legal actions available for an insurance claim for the loss caused from a burglary?
Client Mike came into see us about an insurance claim. State Farm has refused to pay his claim for loss from a burglary. He was staying at his father’s house. His father came back late one night and then Mike. The father, a cop, found the house had been broken into. The police were called. A claim was filed. Mike had made a similar claim, a burglary at the same house, about 3 year before. State Farm talked to some, but not to Mike’s alibi witness. The deposed him & his father. In the end, they refused payment claiming that the claim was a fraud. Mike wants to know if he can sue. Does he have a cause of action? What would he have to prove? What can he recover?
Does Mike have a Cause of action, Duty of good faith.
- Relevant Statute & Case
- Summaries of Key Cases
§ 30.02. Burglary
A person commits an offense if, without the effective consent of the owner, the person:
- enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or
- remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
- enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.
For purposes of this section, "enter" means to intrude:
- any part of the body; or
- any physical object connected with the body.
Except as provided in Subsection (d), an offense under this section is a:
- state jail felony if committed in a building other than a habitation; or
- felony of the second degree if committed in a habitation.
An offense under this section is a felony of the first degree if:
- the premises are a habitation; and
- any party to the offense entered the habitation with intent to commit a felony other than felony theft or committed or attempted to commit a felony other than felony theft.
§ 35.02. Insurance Fraud
- A person commits an offense if, with intent to defraud or deceive an insurer, the
person, in support of a claim for payment under an insurance policy:
- prepares or causes to be prepared a statement that:
- the person knows contains false or misleading material information; and
- is presented to an insurer; or
- presents or causes to be presented to an insurer a statement that the person knows contains false or misleading material information.…………[Section omitted ]
- prepares or causes to be prepared a statement that:
a) Not later than the 30th day after the date the person makes the determination or reasonably suspects that a fraudulent insurance act has been or is about to be committed in this state, the person:
- Shall report the information in writing to the insurance fraud unit of the department, in the format prescribed by the fraud unit or by the National Association of Insurance Commissioners; and
- May also report the information to another authorized governmental agency.
(c) A person who is a member of an organization primarily dedicated to the detection, investigation, and prosecution of insurance fraud fully complies with the person's obligations under Subsection (a) by authorizing the organization to report on the person's behalf information required to be reported under Subsection (a). The person retains any liability resulting from the failure of the organization to report in a manner that complies with Subsection (a).
§ 701.109 Insurance Code defines the “request of insurer for investigation”:
- An insurer who conducts an independent investigation of suspected insurance fraud is not required to complete that investigation before requesting that the commissioner conduct an investigation.
- When requesting the commissioner to conduct an investigation, the insurer shall draft a report of the insurer's findings and submit the report and any related investigation file to the commissioner as soon as practicable on the conclusion of the insurer's independent investigation.
§ 554.002 of Insurance Code define the relevant “Burden of proof & Pleading”:
In a suit to recover under an insurance or health maintenance organization contract, the insurer or health maintenance organization has the burden of proof as to any avoidance or affirmative defense that the Texas Rules of Civil Procedure require to be affirmatively pleaded. Language of exclusion in the contract or an exception to coverage claimed by the insurer or health maintenance organization constitutes avoidance or an affirmative defense.
Please find the attached document for highlighted copy of key case:
Please find the attached document for summary of key case:
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