Latest News


A Flood of Bad News for Tardy Claimants

July 21st, 2019 By Sheila Tan

Floods are unfortunate recurring events in Texas, and more so in recent years with Hurricane Harvey highlighting just how destructive Mother Nature can be. Little wonder that flood insurance and flood claims have been the subject of plenty of litigation and a recent opinion from the Fifth Circuit underscores how tricky it can be to navigate these waters (pun intended). Flood is generally not covered under a standard homeowner’s policy. In order to allow homeowners to obtain such coverage the
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“You Can’t Make Me”—Court Recognizes Limits on Authority to Order Specific Adjuster’s Mediation Attendance

July 12th, 2019 By Eric S. Peabody

In the course of litigation stemming from a motor vehicle accident, an El Paso trial court ordered the parties and their representatives “with full settlement authority” to mediation.  The defendant’s insurer, Allstate, sent a representative who was not the handling adjuster to the mediation.  The mediation was unsuccessful.  The plaintiff subsequently filed a motion to compel attendance of the adjuster handling the claim at a second mediation, which the court granted.  The adjuster sought mandamus relief from the trial court’s
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Barbara Technologies and Ortiz Allow Attorneys’ Fees and Late Payment Penalties Despite Insurer’s Payment of Appraisal Award.

July 1st, 2019 By David L. Plaut

“I come, then, to bury appraisals, not praise them.” -Chief Justice Nathan Hecht, Barbara Technologies (dissenting). In its Barbara Technologies and Ortiz decisions last Friday, the Texas Supreme Court resolved the troublesome question of whether an insurer’s payment of an appraisal award necessarily precludes common law and statutory “bad faith,” as well as prompt payment penalties under the Texas Insurance Code.  Writing for a 6-3 majority in Barbara Technologies, Justice Paul Green found in favor of the policyholder and held
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542A Elections of Adjuster Liability: “Dancing with the one that brung ya.”

June 24th, 2019 By Sarah Scott

More guidance on staying in federal court: Southern District affirms importance of timing in 542A removals Although there has been a flurry of litigation about removals under Section 542A of the Texas Insurance Code (see Eric Peabody’s stellar blog post here), until recently none of the current crop of federal cases addressed whether a pre-suit election by an insurance carrier of the liability of an adjuster precludes remand to state court. According to the Southern District the answer is a
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You Can’t Always Get What You Want (if what you want is a declaratory judgment on non-liability)

June 16th, 2019 By Jeffrey C. Glass

In re Houston Specialty Insurance Co., 569 S.W.3d 138 (Tex. Jan. 25, 2019) is a mandamus case involving an insurer’s motion to dismiss a declaratory judgment action by a law firm seeking a declaration of non-liability for malpractice in representing the insurer and advising it did not owe a defense in an underlying suit.  The Texas Supreme Court ultimately held the Rule 91a motion was proper because the declaratory judgment action seeking non-liability was without merit. [Ed. Note – Rule
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Collateral Source? Not necessarily. Sometimes you CAN have your cake and eat it too.

May 5th, 2019 By Tara Mireur

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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Brainard Rule Under Attack in Texas House of Representatives

April 28th, 2019 By Sheila Tan

Uninsured and underinsured (“UM/UIM”) motorist insurance coverage continues to be a hotly debated topic, as attorneys representing insureds seek ways to recover attorneys’ fees in this hybrid cause of action. As we recently reported, the Texas Supreme Court recently turned back one attempt when it denied review in the case of Weber v. Progressive. Currently, the long-established Brainard rule is under legislative “attack” from H.B. 1739. H.B. 1739 seeks to do what Weber could not: eliminate the requirement that she
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When Roadmaps are a BAD Thing . . .

April 22nd, 2019 By Eric S. Peabody

Unfortunately for insurance professionals dealing with claims in multiple jurisdictions, the state-specific rules regarding reservations-of-rights (“ROR”) letters (aka coverage positions letters, non-waiver letters, etc.) can be as varied as insurance laws themselves. Further uncertainty is created because most of these “rules” are judicially created, are rarely set forth in absolute terms, and often require context that may or may not be evident in the scant case law addressing them.  Because some jurisdictions treat the failure to properly reserve rights with
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Eastern District Declines to Invalidate Arbitration Provision in Harvey Coverage Litigation

April 13th, 2019 By Sarah Scott

In recent litigation arising out of Hurricane Harvey damage, Eastern District Magistrate Judge Zack Hawthorn has recommended that the District Court enforce an arbitration provision in a commercial property insurance policy issued to Southwest LTC-Management Services, LLC.  Doc. #16, Report and Recommendation, Southwest LTC-Management Service, LLC v. Lexington Ins. Co. et al., No.1:18-CV-00491-MAC (E.D. Tex., March 29, 2019). Plaintiff filed suit in state court requesting $8,400,000 in damages to its Port Arthur property. After removing the case to federal court,
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Texas Supreme Court Rejects Attempt to Overturn Brainard

March 31st, 2019 By Catherine Hanna

On Friday, March 29, 2019, the Texas Supreme Court denied review in Case No. 18-0231, Weber v. Progressive.  Hanna & Plaut’s Jeff Glass and David Plaut represented Progressive in this UM/UIM case that sought to overturn the Texas Supreme Court’s Brainard and Henson decisions. Weber argued that she “complied with all conditions precedent” to sue for breach of contract on her personal auto policy with Progressive when she obtained consent to settle with the underlying tortfeasor after exhaustion of the
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