INSURANCE – HOW TO GET INDEPENDENT COUNSEL HIRED

Dugan Kelley, Shareholder

By Dugan P. Kelley

Insurance for Personal Injury Suits in Denton, Collin, Dallas, Tarrant, or Wise Counties.

You have been sued.  You have provided your insurance company notice (tendered) the lawsuit, and you received a letter back from the insurance company.  Surprisingly, the insurance company has said they are going to provide you a “qualified” or “limited” defense pursuant to a “reservation of rights.”  You should contact Kelley Clarke PC immediately if this is you.

We may be able to assist you in forcing your insurance company to hire independent counsel (your own lawyer) to represent you in the lawsuit against you.  Independent counsel is not the insurance lawyer that your carrier says you must use.  Instead, you (not the insurance company) may have the right to hire your own lawyer and require the insurance company to pay for the lawyer you want (Independent counsel).

Insurance Companies Are Required To Pay For Your Defense:

If there is any conceivable/possible insurance coverage to defend you in any part of the lawsuit against you, your insurance carrier MUST provide you a defense to every part of the lawsuit.  Heyden Newport Chem. Ins. Co. v. Southern Gen’l Ins. Co., 387 S.W.2d 22, 26 (Tex. 1965).  This means – If you have been sued in Denton, Dallas, Collin, Tarrant, Wise (or any other county), your insurance carrier needs to receive notification from you that you are going to require them to defend you, even if they issued you a “reservation of rights” letter to you.

The law is clear in Texas, your insurance carrier MUST provide you with a defense, and if your insurance carrier is providing you a “qualified” defense, your insurance carrier can be required to provide you with your own lawyer (not an insurance lawyer appointed by the carrier).  The Texas Supreme Court has held that insurance carriers MUST avoid putting their own interests in front of your own on whether to defend you.  GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 307, 310-311 (Tex. 2006).  The Texas Insurance Code Chapter 542, Prompt Payment of Claims Act also mandates that your carrier pay attention to your interests vs. their own interests.

Not every case requires an insurer to provide you with your own lawyer, so you should contact Kelley Clarke PC to determine if your lawsuit qualifies for independent counsel.

You Have A Legal Right To Hire Your Own Lawyer And Have The Insurance Company Pay For It:

Texas courts routinely allow you (the insured) to choose independent counsel—at the insurer expense—when an insurer offered a defense under a reservation of rights. See Rhodes v. Chicago Ins. Co., 719 F.2d 116, 120 (5th Cir. 1983) (applying Texas law); Britt v. Cambridge Mut. Fire Ins. Co., 717 S.W.2d 476, 481 (Tex. App.—San Antonio 1986, writ ref’d n.r.e. May 6, 1987); Steel Erection Co. v. Travelers Indem. Co., 392 S.W.2d 713, 716 (Tex. Civ. App.—San Antonio 1965, writ ref’d n.r.e. Nov. 3, 1965).  The Texas Supreme Court has reaffirmed this basic right.  N. County Mut. Ins. Co. v. Davalos, 140 S.W.3d 685 (Tex. 2004).

Provided the lawyer you have chosen is qualified, your insurance company are required to pay that lawyer.

Points to Remember About How To Have Your Independent Counsel Hired:

Here are the four key things to do if you have been sued and think that you need independent counsel in Denton, Collin, Tarrant, Dallas, Wise (or other Texas Counties):

  1. Tender the lawsuit immediately to your insurance carrier once you are sued. “Tender” simply means that you notify your insurance carrier and demand that they defend (handle) the lawsuit.  Typically, you can do this by any reasonable means (e-mail, letter, online, phone, etc…);
  1. IF your insurance carrier tells you that it is going to provide you a qualified or limited defense with a “reservation of rights,” you may qualify to make your carrier hire an independent lawyer. You need to contact Kelley Clarke PC immediately to assess whether you qualify;
  1. Your carrier will need to receive notification from you that you are going to require them to allow you to hire your own independent lawyer to represent you throughout the lawsuit; and
  1. Your independent lawyer will need to communicate directly with your insurance carrier and agree to follow their guidelines for reporting, handling, and discuss the payment arrangements.

Call Kelley Clarke PC:

Being sued can be one of the most stressful situations you have ever been through.  You are being accused of wrongdoing. Your integrity is being called into question.  There is no need for you to go through this process alone.  At Kelley Clarke PC we understand the stress you are under, and we are proud to be on your civil litigation team to help you through this lawsuit.  Please call Kelley Clarke PC if you are sued and you want to determine if you qualify for an independent counsel defense.

Read about how to work well with a Family Law Attorney HERE.