Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:On Nov. 25, 2003, Kenneth Whitney’s mobile home was completely destroyed by fire. Whitney notified his insurer, Foremost County Mutual Insurance Co., the same day. The next day, a Foremost adjuster, Jim Doland, inspected the site, and Whitney authorized the release of his financial and employment records. On Dec. 8, 2003, Foremost sent Whitney a “reservation of rights” letter saying that there was still an issue over whether the event would be covered because there were indications the fire was not accidental. The letter specifically stated that Foremost was not waiving any of its rights or defenses, and that the investigation was continuing. The letter also asked Whitney for his full cooperation. On Jan. 9, 2004, as part of its continued investigation, Foremost asked Whitney for property summary sheets and receipts for living expenses. On Jan. 22, Doland received the final report from the investigation, concluding that the fire was likely the product of arson. Doland suspected Whitney, because of his proximity to the fire. Whitney’s policy stated that upon request, the insured shall “submit and subscribe examinations under oath conducted by anyone designated by the Company.” On Feb. 17, Foremost asked Whitney to provide an examination under oath (EUO). The request was repeated on Feb. 26 to Whitney’s attorney. Whitney refused. Foremost denied coverage. In response, Whitney sued Foremost for breach of contract and violations of the Insurance Code and the Deceptive Trade Practices Act. He also sued Doland for DTPA violations. Foremost filed a plea in abatement on the ground that Whitney had not cooperated by filing his EUO. Foremost pointed to the provision in Whitney’s policy that states, “no action shall lie against the Company unless, as a condition precedent thereto, the Insured shall have fully complied with the terms of this policy.” The trial court denied the plea in abatement, and Foremost petitioned for a writ of mandamus. HOLDING:Writ conditionally granted. The court takes stock of Whitney’s argument, which is that Foremost waived its right to get an EUO from him because the insurer’s request was untimely. Whitney relies on Texas Insurance Code Article 21.55, the prompt-payment of claims section, which says that within 15 days of receiving notice of a claim, the insurer shall acknowledge the claim’s receipt, start an investigation and request all information the insurer reasonably believes will be needed to adjust the claim, though additional items may be requested later as they arise. The court finds that the plain language of the statute negates Whitney’s argument, since requests for information can be made outside the 15-day window “if, during the investigation, such additional requests are necessary.” The court determines that a EUO is one of these records that may become necessary, as it would provide information pertinent to the determination of the cause and origin of the fire. The court also finds that Whitney’s argument ignores the purpose of Article 21.55, which is to promote prompt payment. The general rule is that records should be requested within 15 days, but there is an exception. The exception does not render the 15-day rule meaningless because the exception only applies to additional records that may become necessary. It is undisputed that Foremost first requested records and information within 15 days of the fire. The request for a EUO was made after receiving the final investigation report. “We find that Foremost, by waiting until February to determine whether to request Whitney’s EUO in a claim possibly involving arson, did”nothing inconsistent with an intent to rely upon’ its right to obtain the examination. . . . Accordingly, we find as a matter of law that Foremost did not waive its contractual right to take Whitney’s EUO.” The court then holds that since Whitney’s policy required him to submit to an EUO as a conditional precedent to filing suit, Foremost’s proper remedy is abatement. Mandamus is thus an appropriate remedy. The court adds that the public interest in granting mandamus relief in this case is strong, as insurers have the duty to reasonably investigate claims, and enforcing EUO clauses allows insurers to do that. OPINION:Per curiam; McKeithen, C.J., Gaultney and Horton, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.