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More (Or Less?) on Indemnity: A Brief Primer on Texas Construction Anti-Indemnity Act

July 26th, 2020 By Eric S. Peabody

The Texas Construction Anti-Indemnity Act, codified in Subchapter C of Chapter 151 of the Texas Insurance Code, renders void certain construction indemnity agreements that purport to indemnify the indemnitee for its own fault, even if that fault is shared or contributory. While most states now have some type of anti-indemnity statute, Texas is one of only a handful of states whose statutes void related additional-insured procurement and policy provisions as well. The Act applies to any “construction contract” for a
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Court nixes attempted end-run around Brainard.

July 20th, 2020 By Lauren Burgess

The Southern District of Texas, McAllen Division recently issued an opinion in a UIM case that precludes the recovery of extra-contractual damages absent a finding that the insured was entitled to benefits. In Garza v. Allstate, the plaintiff brought suit against Allstate for violations of Chapter 541 of the Texas Insurance Code on the basis that Allstate denied his underinsured motorist claim “without providing any explanation.” Plaintiff specifically alleged that he was “not seeking any of the proceeds of the
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Welcome New Attorneys Ana and Erin to Hanna & Plaut

July 14th, 2020 By Catherine Hanna

We are thrilled to welcome Ana Navarette and Erin Holmes to the Hanna & Plaut family. Erin comes to us from Skelton & Woody where she represented insurance carriers and their insureds, primarily defending lawsuits arising from auto accidents involving claims of negligence, UIM coverage, breach of contract, DTPA, Texas Insurance Code, and bad faith.  Erin was awarded her law degree from the University of Wisconsin Law School-Madison in 2002. She has been licensed to practice law in Texas since
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Texas Supreme Court finds for carriers in Air Ambulance decision.

July 6th, 2020 By Robert Josey

On June 26, 2020, in a 7/2 ruling, the Texas Supreme Court issued its decision in Texas Mutual Insurance Company v. PHI Air Ambulance, reversing the Austin Court of Appeals and holding that: (1) federal law does not pre-empt the Texas Department of Insurance – Division of Workers’ Compensation (the Division) from determining fair and reasonable rates for air ambulance services; and (2) federal law does not require the Division to mandate Carriers pay more than a fair and reasonable
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Fourth Court of Appeals Imposes New Post-Accident Duty on Auto Insurers

May 31st, 2020 By Catherine Hanna

            On April 1, 2020, a divided en banc Fourth Court of Appeals imposed a new post-accident duty on auto insurers. In a case of first impression, the Court reversed a Bexar County trial court’s summary judgment in favor of an auto insurer. The Appellate Court found that the auto insurer had a duty to exercise reasonable care when it instructed its insured driver to take photographs of her vehicle immediately following a one-car accident because of the special relationship
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Corporate Depositions and the Personal Knowledge Trap

May 25th, 2020 By Sarah Scott

When entities are defendants in a lawsuit, the deposition process is not quite as easy as it would be for individual fact witnesses. Depositions of organizations are governed by Texas Rule of Civil Procedure 199.2(b)(1), which states that: If an organization is named as the witness, the notice must describe with reasonable particularity the matters on which examination is requested. In response, the organization named in the notice must—a reasonable time before the deposition—designate one or more individuals to testify
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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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Show Me the Money? Not So Fast!

April 26th, 2020 By Sheila Tan

In a personal injury case, tort claimants typically submit medical bills showing treatment received for injuries. Settlements paid out of insurance policy benefits are often meant to cover such expenses. After settling, plaintiffs’ attorneys routinely negotiate a reduction of the submitted bills directly with the medical providers, leading to a bigger share of the recovery for their clients.What happens when a carrier pays a hospital’s bill directly? Such direct payments generally reflect a reduction in the original billed amount. We’ve
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Is Eight Enough, Part 3: Texas Supreme Court Rejects District Judge’s Exception to the “Eight Corners Rule”

April 19th, 2020 By Jeffrey C. Glass

We recently wrote about a question, certified to the Texas Supreme Court by the Fifth Circuit Court of Appeals, regarding the continuing validity of the “eight corners” rule.  The U.S. District Court decision under review was one of a series of decisions authored by Judge John McBryde finding that because the eight corners rule originally derived from policy language requiring the carrier to defend claims even “if the allegations of the suit are groundless, false or fraudulent,” policies without such
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Time is on Whose Side? Time-on-the-risk allocation applied over insurer objections.

April 12th, 2020 By Jeffrey C. Glass

In Great Am. Lloyds Ins. Co. v. Vines-Herrin Custom Homes, L.L.C., 05-18-00337-CV, 2020 WL 104622 (Tex. App.—Dallas Jan. 9, 2020, no pet. h.), the Dallas Court held indemnity coverage can be allocated among multiple liability insurers based on each carrier’s time on the risk. The decision does not cite and appears to depart from prior decisions that favor targeted tender and allocation according to subrogation and “other insurance” clauses. See, e.g., CNA Lloyds of Texas v. St. Paul Ins. Co.,
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