Texas courts provide important roadmap regarding discovery in UM/UIM cases.

May 22nd, 2022 By David L. Plaut

Two recent decisions about discovery in the uninsured/underinsured motorist (“UM/UIM”) context are important to note.  The Texas Supreme Court’s decision in In re USAA General Indemnity Co., 624 S.W.3d 782 (Tex. 2021) severely limits the availability and scope of corporate representative depositions in UM/UIM cases.  Moreover, the brand-new decision of the Dallas Court of Appeals in In re Home State County Mut. Ins. Co. d/b/a Safeco and Najeeba Aneesa Sabour (Tex. App.–Dallas May 10, 2022, orig. proceed.) applies USAA and
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Austin Court Reiterates “Texas Two-Step” in UM/UIM Cases: Severance of Declaratory and Extra-Contractual Claims Required

January 31st, 2022 By David L. Plaut

In an Opinion by Chief Justice Darlene Byrne, the Austin Court of Appeals recently granted mandamus requiring severance in an underinsured (“UIM”) case against Allstate after a parking lot collision. See Cause No. 03-21-00515-CV, In re Allstate Fire and Cas. Ins. Co. (Tex. App.–Austin Jan. 12, 2022, orig. proceed.). Plaintiff had asserted negligence and gross negligence claims against the tortfeasor as well as declaratory and Insurance Code “extracontractual” claims against Allstate.  The Insurance Code claims included alleged misrepresentations, an unreasonable
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Texas Supreme Court Holds Attorneys’ Fees May Be Recovered in UM/UIM Cases

June 6th, 2021 By David L. Plaut

In a long-awaited decision, the Texas Supreme Court decided Cause No. 19-0885, Allstate Insurance Co. v. Daniel Irwin (Tex. May 21, 2021) and the hotly-contested issue of whether attorneys’ fees are available in UM/UIM cases.  In a 5-4 decision authored by Justice John Devine, the Court’s majority held “a declaratory judgment action is the appropriate remedy for determining the underlying tort issues that control the validity of the insured’s [UM/UIM] claim against his insurer.”  Slip op. at *2, 5, and
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No Safe Harbor: Hinojos Holds “Late Payment” Penalties Apply Despite Insurer’s Timely Payment of an Appraisal Award

May 2nd, 2021 By David L. Plaut

On March 19, 2021, the Texas Supreme Court issued a 7-2 decision and Opinion by Justice Jane Bland holding there is no appraisal payment safe harbor from Chapter 542 late payment liability for insurers that timely pay appraisal awards after accepting coverage when those payments are late under the statute. See Cause No. 19-0280, Hinojos v. State Farm Lloyds et al., slip op. at *2. In so holding, Hinojos emphasizes that “claim” under Chapter 542 means the amount that “must
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In Re State Farm Requires Resolution of the “Car Crash” Case Before Consideration of any “Bad Faith” Claims

March 30th, 2021 By David L. Plaut

On March 19, 2021, the Texas Supreme Court issued an Opinion by Justice Blacklock reaffirming the continuing importance of its Brainard decision in the uninsured/underinsured (“UM/UIM”) motorist context. See In re State Farm Mutual Auto Ins. Co. et al. Without dissent, the Court held that UM/UIM claimants “must first obtain determinations of the third-party drivers’ liability and the amount of damages” in order to establish coverage. Slip Op. at *10. Because there was no judgment establishing the liability of the
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Texas Supreme Court Hears Oral Argument on Allstate v. Irwin

January 7th, 2021 By David L. Plaut

The Texas Supreme Court heard oral argument on Thursday, January 7, 2021 in Allstate v. Irwin, an underinsured motorist case out of San Antonio addressing the availability of attorneys’ fees in such cases.  Plaintiff Daniel Irwin sued Allstate seeking a declaration that he was entitled to recover damages resulting from the wreck under his UM/UIM benefits policy and attorneys’ fees.  On appeal, Allstate argued the trial court abused its discretion in awarding Irwin declaratory relief and attorneys’ fees. Oral argument
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Western District’s New Emergency COVID-19 Order Cancels Trials Through November 30th with One Big Exception

October 16th, 2020 By David L. Plaut

Chief Judge Orlando Garcia has issued a new emergency COVID-19 Order, dated October 14, 2020.  The new Order continues all civil and criminal trials through November 30, 2020.  Order at ¶1.  The Order indicates these trials are being continued, at least in part, because of a “reduced ability to obtain an adequate spectrum of jurors” and “due to reduced availability of attorneys and court staff to be present in the courtrooms” because of COVID-19 and “public health considerations.”  Id. at
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Texas Supreme Court Agrees to Hear UM/UIM Attorneys’ Fees Case

October 5th, 2020 By David L. Plaut

On Friday, October 2, 2020, the Texas Supreme Court granted Allstate’s Petition for Review in Cause No. 19-0885, Allstate Insurance Company v. Irwin, on appeal from the Fourteenth Court of Appeals.  The case addresses the question of whether policyholders can recover attorneys’ fees in uninsured/underinsured (UM/UIM) cases that are pled as  declaratory judgment actions.  The Supreme Court’s previous decisions in Brainard and Henson would appear to foreclose recovery of attorneys’ fees in the absence of an underlying judgment establishing the
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Plaut Spouts: Top Ten Tips and Tricks for Lawyers on Zoom!

August 16th, 2020 By David L. Plaut

I came up with this list the hard way and don’t think that’s because I’m a technophobe.  I’m not and won’t make any stupid myspace jokes here.  There are usually some problems with Zoom depositions, mediations, and hearings and most of that is user error.  Here are some things to think about before jumping on Zoom: Practice, practice, practice! If you haven’t used Zoom for a deposition, mediation, or hearing make sure you set up a practice session with someone
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Texas Supreme Court Recognizes Eight-Corners Exception for “Collusive Fraud”

May 3rd, 2020 By David L. Plaut

For the first time, the Texas Supreme Court has recognized an exception to the eight-corners rule and allowed the consideration of “extrinsic evidence” when assessing a carrier’s duty to defend its insured under a liability policy.  In Cause No. 18-0837, Loya Insurance Company v. Osbaldo Hurtado Avalos et al. (Tex. May 1, 2020), the Texas Supreme Court adopted “an exception to the eight-corners rule” finding a trial court “may consider extrinsic evidence regarding whether the insured and a third party
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