PJC Business

DTPA/I NSURANCE C ODE

PJC 102.28

Definition of “business day” and “day.” The various sections of the Prompt Payment of Claims Act use either “day” or “business day” depending on the statutory deadline involved. “Business day” is defined in Tex. Ins. Code §542.051(1). See Tex. Gov’t Code ch. 662 (listing state-recognized holidays). To avoid confusion the court may wish to define “day” for the jury as “every day, including all Saturdays, Sundays, and holidays.” The appropriate definition should be included depending on the rele vant statutory deadline. Partial payment. An unconditional offer to pay part of the claim limits the 18 percent penalty to the difference between the tendered amount and the full amount found to be owed by the insurer. Republic Underwriters Insurance Co. v. Mex-Tex, Inc. , 150 S.W.3d 423, 425–26 (Tex. 2004). “Items, statements, and forms reasonably requested and required.” For a dis cussion of the information the insurer may request and receive from the claimant, see the comments “Requests for information from claimant” in PJC 102.25 and “Informa tion ‘required by the insurer to secure final proof of loss’” in PJC 102.26. Interpleader by life insurer. A life insurer may avoid the penalty of failing to pay by the deadline if it files an interpleader action beforehand. The insurer must have received an “adverse, bona fide claim to all or part of the proceeds,” must “properly file an interpleader action,” and must pay the policy proceeds into the court registry within ninety days of receiving “all items, statements, and forms reasonably requested and required under Section 542.055.” Tex. Ins. Code §542.058(c). The insurer remains liable for the penalty, however, if it delays the filing of an interpleader and tender of policy proceeds for more than ninety days. Act of insurer’s agent is act of insurer. Notice to a person acting as an agent for the insurer is notice to the insurer, and thus the date the agent receives notice of the claim is the date the insurer receives notice of the claim. Protective Life Insurance Co. v. Russell , 119 S.W.3d 274, 287–88 (Tex. App.—Tyler 2003, no pet.) (citing Tex. Ins. Code art. 21.02, now Tex. Ins. Code §4001.051, which lists the acts that constitute acting as an agent for an insurer, and holding that “[n]otice to an agent, received while the agent is acting within the scope of his authority, constitutes notice to the princi pal[]”). See also Tex. Ins. Code § 542A.001(1), defining “agent” as “an employee, agent, representative, or adjuster who performs any act on behalf of an insurer.” When an agent is acting on behalf of an insurer in dealing with a claim, the jury should be instructed as follows: You are instructed that Don Davis includes [ name of agent ]. Act of claimant’s agent is act of claimant. Notice to the insurer by a person act ing as an agent for the claimant is notice by the claimant. Dunn v. Southern Farm Bureau Casualty Insurance Co. , 991 S.W.2d 467, 473 (Tex. App.—Tyler 1999, pet. denied) (holding that notice given by claimant’s attorney is notice given by claimant because “what a principal does through an agent, he does himself”). When an agent is

197