Latest News

Menchaca won’t save your vague pleadings

August 6th, 2018 By Sarah Scott

The Fifth Circuit Rejects a plaintiff’s attempts to use Menchaca to keep extra-contractual claims alive A recent ruling from the Fifth Circuit should serve as a warning to enterprising attorneys seeking to recover on extra-contractual claims under the Texas Insurance Code. In Moore v. Allstate Texas Lloyd’s, plaintiff Glen Moore sued Allstate, his homeowners’ insurer, for alleged damage to his home arising from a storm. No. 17-10904, 2018 WL 3492818 (5th Cir. July 19, 2018).  After two inspections by an
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A Premises Liability Primer

July 30th, 2018 By Eric S. Peabody

A person injured on another’s property may have either a negligence claim or a premises-liability claim against the property owner or occupier. When the injury is the result of a contemporaneous, negligent activity on the property, ordinary negligence principles apply; when the injury is the result of the property’s condition rather than an activity, premises liability principles apply. Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016).  Although they are related, the theories are not interchangeable, and “a
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Insured cannot lay down its burden and survive summary judgment.

July 23rd, 2018 By Sheila Tan

In Certain Underwriters at Lloyd’s of London v. Lowen Valley View, LLC, 892 F.3d 167 (5th Cir. June 6, 2018), the Fifth Circuit affirmed that in addition to establishing that the insured property sustained hail damage within a policy period, the policyholder must also provide some evidence of how much of the hail damage was attributable to the hail event within the policy period, and the failure to do so should lead to summary judgment against the policyholder. Insurance underwriter
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Plaut Spouts: Reflections of an Old Guy with a Corner Office

July 3rd, 2018 By David L. Plaut

Collegiality and Professionalism: Is “All of My Kindness, Taken for Weakness”? With apologies to Rihanna, civility and collegiality in the practice of law leads to better outcomes and is the right way to practice anyway.  The best lawyers, those who are well prepared and steeped in the law, are cordial and collegial in their dealings with other lawyers, the court and court personnel, and the community at large.  All too often, it is the bad lawyer, the unprepared lawyer –
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To err is human. To disagree on an appraisal award is not grounds to set it aside.

June 28th, 2018 By Anne-Marie Abarado

In Abdalla v. Farmers Ins. Exchange, No. 07-17-00020-CV, 2018 WL 2220269 at * 1 (Tex. App.—Amarillo May 14, 2018, no pet. h.), the Amarillo Court of Appeals rejected an insured’s attempt to convert a disagreement among appraisers regarding the extent of damage into a reason to set aside a valid appraisal award. The court of appeals affirmed the trial court’s decision denying Abdalla’s motion to vacate the umpire’s award and granting summary judgment in favor of Farmers.   Abdalla sued Farmers alleging breach
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Appraisal Payments: Don’t be late for this very important date.

June 26th, 2018 By Todd Key

A recent opinion out of the Western District of Texas, Kezar v. State Farm Lloyds, 1:17-CV-389-RP, 2018 WL 2271380, at *1 (W.D. Tex. May 17, 2018), adds further support for post-appraisal summary judgments on extra-contractual claims, but also suggests a strict analysis of whether or not appraisal payments are timely. The Kezar plaintiffs filed their lawsuit against State Farm asserting causes of action for breach of the insurance policy, statutory and common law bad faith, unfair settlement practices, negligence and
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Hanna & Plaut’s Catherine Hanna Speaking at Advanced Insurance Law Seminar

June 24th, 2018 By Catherine Hanna

It’s not too late to register for the Insurance Law Section’s Advanced Insurance Law Seminar on June 28-29 in San Antonio. Lots of great topics and a great chance to mix and mingle with insurance practitioners on both sides of the bar. The seminar will be held at the fabulous Hyatt Hill Country Resort & Spa. Lazy River anyone? On Friday, Catherine will be presenting on Attacking and Defending Appraisal Awards with policyholder attorney Matthew Pearson. Hope to see you there!
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The Burden of Allocation

June 17th, 2018 By Jeffrey C. Glass

Insured cannot arbitrarily allocate settlement proceeds to non-covered damages in order to preserve coverage claims against a non-contributing insurer. Judge Lee Rosenthal, of Texas’ U.S. Southern District, recently prohibited an insured from unilaterally allocating general settlement amounts from its subcontractors to uncovered damages, in order to preserve claims against insurers “that would cover the damages if the loss was properly allocated to that policy.”  In  Am. Guarantee & Liab. Ins. Co. v. United States Fire Ins. Co., 255 F. Supp.
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Giving the Jury Charge its Due

May 29th, 2018 By Sarah Scott

  It’s easy to understand why the poor jury charge so often gets short shrift in trials. Diligently preparing for witness examinations, checking and double checking exhibits, rehearsing your opening and closing statements until they are committed to memory but seem completely unrehearsed – all of these tasks are tremendously time-consuming. But (to borrow a football metaphor, this being Texas) lawyers who ignore the charge run the risk of fumbling at the one-yard line. Why? Because the charge, unlike your
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