Case Notes


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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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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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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Insurance Coverage for Punitive Damages – The Discussion Continues

May 15th, 2018 By Tara Mireur

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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Advertising full coverage does not establish a misrepresentation where amount of loss is disputed.

May 8th, 2018 By Sheila Tan

Plaintiffs in first-party property insurance cases often include a misrepresentation claim, typically arguing that the carrier’s failure to pay sufficient amount for covered damage to the property constitutes a misrepresentation. While state court judges may sometimes allow these claims to go to a jury, Texas law clearly holds that disputes about the amount of the loss do not constitute misrepresentations of the policy. In Click v. State Farm Lloyds, No. 1:17-CV-00108-BL, 2018 WL 1322167 (N.D. Tex. March 13, 2018) (slip
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Punctuation Station: The Saga of the Oxford Comma

April 20th, 2018 By Rachel Shores

“For want of a comma, we have this case.” This is the First Court of Appeals’ opening sentence to a thirteen-page opinion analyzing the effect that a little piece of punctuation, or lack thereof, had on its interpretation of a legislative provision. That “little piece of punctuation” is commonly known as the Oxford comma, and its absence ultimately led to a steep damages award. Before we turn to the opinion itself, let’s re-cap what the Oxford comma is. Also called
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