The answer to the first question in the title is "yes" – insured persons have an obligation to read their insurance. 1 The use of the term "customs" implies a legal responsibility introduced by law but where does this duty come from? It really is not in any insurance I have ever read. The immediate answer to that question may be that the obligation of an insured to read the insurance in Texas has developed as a presumption.
A "presumption" has been defined as:
A rule of law that requires the assumption of a fact from another fact or a set of facts. The term "presumption" indicates that according to law, a certain weight is assigned to a certain evidentiary fact, which weight is sufficiently heavy to require additional evidence to be presented to overcome the assumed assumption. It thus has the effect that either the burden of proof or the burden of producing evidence is shifted. (Emphasis in the original.) 2
A presumption is not evidence, but it burdens the other party to present sufficient evidence to justify a statement contrary to the presumed fact. 3 Following the assumption or the assumed fact ̵
However, the prevailing view was expressed by the Texas Supreme Court in Fireman & # 39; s Fund Indemnity Co. .. against Boyle General Tire Co. 392 SW2d 352, 355 (Tex. 1965), as follows: & # 39; [A] n insured who accepts an insurance without deviation, is assumed to know its contents, but the assumption can be overcome by proof that he did not know the contents when it was accepted, as by showing that when he received it he put it away without examination, or that he trusted the insurer's knowledge and assumed that he had drawn it correctly. & # 39; 5
The court in Taylor further stated that the insured had waived the policy without ever reading it, destroying the assumption that he was aware of insurance policy provisions. In addition, because he had not read the insurance, he could not ratify the contents and that it then became the agent's burden, as an affirmative defense, to prove that the insured was negligent when he did not read the insurance.
assumption is not absolute also in other situations. For example, an insured person is neither accused of knowledge of an insurance that he does not have 6 nor is obliged to read an insurance policy that he has if a misrepresentation has been made by an insurance company or its agent, about policy terms. 7 Two cases illustrate these two situations.
The first case, Aspen Specialty Insurance Company. v. Muniz Engineeri ng, 8 refers to lack of opportunity to read the policy an obligation to read the insurance and will be charged with knowledge of its terms. " 9 However, the Court found that the insured in question had provided evidence that it did not receive a copy of the entire policy. Based on this evidence, the court found that the insured "had no obligation to read a policy that it did not have." 10
In the second case, Stewart Information Services Corp. v. Great American Insurance Compan y, 11 the insured presented evidence that the insurance agent represented that the carrier would duplicate its existing coverage. The court argued:
[W] here claims a "specific representation" of policy terms, which differs from "an insured's erroneous belief that [it] receives coverage under certain unforeseen circumstances, which are not actually covered by the policy, & # 39; the insured's obligation to read the insurance will not preclude a claim for misrepresentation. 12
Despite the obligation to read your insurance policy – a presumption in Texas law – it will come as no surprise that hardly anyone reads their insurance, or for that matter, their mortgage paper or the HIPPA information at a doctor's surgery which, by signature, certifies that it has been read. We should all read everything we sign but not.
Still, the obligation to read your insurance is not absolute. negligence does not fulfill this duty, it can shift the burden of proof and become an affirmative defense for a defendant to show that the insurance's failure to te read the insurance's apology defendant's liability. For insured persons, the presumption of the obligation to read your insurance can be overcome if the opportunity to read the insurance was never presented to the insured or if an insurance or insurance condition was made by the insurer or its representative. My first confession for the new year: I have never read my own home insurance policy-to-cover, but one of my New Year's decisions is to do so soon.
1 See e.g. Heritage Manor of Blaylock Props., Inc. v. Petersson 677 SW2d 689, 691 (Tex. App. – Dallas 1984) (write ref. Nre
2 Barron & # 39 ;s Law Dictionary Stephen H. Gifis, 359-60 (2nd edition 1984).
3 See Empire Gas & Fuel v. Muegge 143 SW 2d 763, 767-68 ( Tex. 1940).
4 Colonial Savings Assoc. V. Taylor 544 SW2d 116 (Tex. 1976).
5 Id. vid 119.
6 See Allstate Vehicle and Prop. Ins. Co. v.Reininger 2020 WL 6928405 (Tex. App.-San Antonio 25 November 2020).
7 See Aspen Specialty Ins. Co. v. Muniz Eng'g Inc. 514 F. Supp. 2d 972. (SD Tex. 2007); Stewart Info. Services Corp. v. Great Am. Ins. Co. 997 F.Supp.2d 650, 670 (SD Tex. 1914) ( cites State Farm County Mut. Ins. Co. of Tex. V. Moran 809 SW 2d 613, 620- 21 (Tex. App. – Corpus Christi 1991) (scripture denied); Omni Metals, Inc. v. Poe & Brown of Tex., Inc. 2002 WL 1331720, * 8 (Tex. App. – Houston [14th Dist.] June 13, 2002) (pet. Denied) (noted that insured failure to read the policy was not an obstacle to misrepresentation).
8 Aspen Spec. Co. v. Muniz Eng & # 39; g, Inc. 514 F.Supp.2d 972, 986 (SD Tex. 2007).
9 Id. at 985-88.
10 Id. at 986.
11 Stewart Info. Servs. Corp. v. Great Am. Ins. Co ., 997 F. Supp. 2d 650 (SD Tex. 2014) ( with reference to State Farm County Mut. Ins. Co. of Tex. V. Moran 809 SW2d 613, 620-21 (Tex. App. – Corpus Christi 1991) (writing denied).
12 Steward Info serves. 997 F.Supp.2d at 670.