Summary Judgment Upheld Based on Material Misrepresentation in Application – A Rescission Success Story for Insurers
I was at the Advanced Insurance Law CLE meeting a few years back and a speaker took the podium to discuss rescission of insurance contracts. Before he gave his presentation about the current state of the law, he first asked if anyone in the audience had successfully won a summary judgment based on a material misrepresentation in an application. Not one person in the crowd of hundreds answered yes. I still have yet to meet a lawyer who actually has
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The More Things Change …The More They Stay the Same
The San Antonio Court of Appeals recently granted Progressive Insurance Company’s petition for writ of mandamus and directed the trial court to vacate its order denying Progressive’s motion to sever and abate the plaintiff’s extra-contractual allegations. In In re Progressive County Mutual Insurance Company, 2020 WL 3815927 (Tex. App. – San Antonio July 8, 2020, n.p.h.), the plaintiff, after settlement with the tortfeasor, brought a declaratory judgment action for recovery of UIM benefits under her insurance policy and alleged violations
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A Cautionary Tale. . .
In USAA Texas Lloyds Company v. Griffith, 2019 WL 2611015 (Tex.App. –Corpus Christi, June 26, 2019), the Corpus Christi Court of Appeals affirmed a Hidalgo County jury verdict that awarded Plaintiff John Griffith $776,000 after USAA seemingly performed an unreasonable investigation of his roof claim. The case provides insurers with an example of how a simple oversight can turn a bona fide dispute into a bona fide mess. Griffith held a USAA policy on his home in McAllen, Texas. His
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Collateral Source? Not necessarily. Sometimes you CAN have your cake and eat it too.
The Amarillo Court of Appeals has overturned a lower court decision to grant a new trial after the lower court determined that admitted testimony concerning the Plaintiff’s “claim” violated the collateral source rule and likely caused the jury to apportion responsibility and determine damages that were inconsistent with the great weight of the evidence at trial. In re DCP Operating Company, LP f/k/a DCP Midstream, LP, 2019 WL 1908147 (Tex. App. – Amarillo April 29, 2019). At trial, Brain Stringer
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Fifth Circuit Reaffirms Attorney Immunity Doctrine
In Ironshore Europe DAC v. Schiff Hardin, LLP, No. 18-40101 (5th Cir. 2019), the Fifth Circuit recently reversed the district court decision we previously wrote about here. The district court denied an attorney’s motion to dismiss a lawsuit against it by an excess insurance carrier complaining it was misled about settlement, instead holding that the law firm could not be held liable to a nonclient under the attorney immunity defense doctrine. The lower court’s decision to allow the claim was
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Pre-Suit Demands: Insured’s counsel must check all the boxes, but detail may still be vague.
Perrett v. Allstate Insurance Company, 2018 WL 2864132 (S.D. Tex. June 11, 2018) is the first case that scrutinizes whether or not a pre-suit notice properly complies with the new requirements of § 542A.003 of the Texas Insurance Code and therefore gives some guidance to attorneys about how strictly courts will enforce each statutory requirement. Section 542A.003 of the Texas Insurance Code provides that “not later than the 61st day before the date a claimant files an action to which
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Insurance Coverage for Punitive Damages – The Discussion Continues
The Court of Appeals of Texas, Fourth District, sitting en banc, has denied a motion for en banc reconsideration. The case, Farmers Texas County Mutual Insurance Company v. Zuniga, 2018 WL 1310157, involved the question of whether or not a form automobile insurance policy covered exemplary damages. In November 2017, the San Antonio Court of Appeals held that the policy, under which the insurer agreed to “pay damages for bodily injury,” did not provide coverage for a claim for punitive
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Insurance Carrier Allowed to Sue Attorney For Failing to Disclose Settlement Demand
In a ruling likely to give insurance attorneys heartburn, the United States District Court for the Eastern District of Texas, Marshall Division denied an attorney’s motion to dismiss a lawsuit against it by an excess insurance carrier complaining it was misled about settlement. Ironshore Europe DAC v. Schiff Hardin, LLP, 2018 WL 338604 (E.D. Tex. Jan. 9, 2018). The Schiff Hardin firm was representing Ironshore’s insured Dorel Juvenile Group, Inc. in a lawsuit filed by the Hinsons, who were parents
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