Case Notes

Doctor, my eyes have seen a really inflated medical bill!

September 23rd, 2022 By Derick Lancaster

The Texas Supreme Court has long struggled with the issue of inflated medical bills. In 2018, the Court held that the negotiated rates a medical provider charged to patients’ private insurers and public-entity payors were relevant and discoverable on the issue of the reasonableness of the “full” rates the provider charged to an uninsured patient for the same services. In re N. Cypress Med. Ctr. Operating Co., 559 S.W.3d 128, 129 (Tex. 2018) (orig. proceeding). In In re K&L Auto
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San Antonio Court of Appeals upholds big win for UIM claimant although trial court allowed insurance and undesignated expert testimony in at trial.

August 19th, 2022 By Erin Holmes

In a case with some disturbing implications for insurance carriers, the San Antonio Court of Appeals recently affirmed a $1,000,000 judgment against a UIM carrier in The Cincinnati Insurance Company v. Villanueva, No. 04-20-00389-CV, filed March 2, 2022. The Court rejected Cincinnati’s arguments that (1) the trial court erred by allowing Villanueva to call the claims adjuster to testify at trial; (2) the trial court erred by permitting Villanueva’s experts to testify and striking Cincinnati’s experts; (3) the evidence is
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Texas courts provide important roadmap regarding discovery in UM/UIM cases.

May 22nd, 2022 By David L. Plaut

Two recent decisions about discovery in the uninsured/underinsured motorist (“UM/UIM”) context are important to note.  The Texas Supreme Court’s decision in In re USAA General Indemnity Co., 624 S.W.3d 782 (Tex. 2021) severely limits the availability and scope of corporate representative depositions in UM/UIM cases.  Moreover, the brand-new decision of the Dallas Court of Appeals in In re Home State County Mut. Ins. Co. d/b/a Safeco and Najeeba Aneesa Sabour (Tex. App.–Dallas May 10, 2022, orig. proceed.) applies USAA and
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The Texas Construction Anti-Indemnity Act – Some Guidance from the Texas Supreme Court

April 11th, 2022 By Jeffrey C. Glass

The Texas Construction Anti-Indemnity Act (“AIA”) generally voids provisions in construction contracts, entered into after January 1, 2012, that impose indemnity obligations and obligations to secure additional insured coverage for the additional insured/indemnitee’s own negligence or fault. Tex. Ins. Code §§ 151.102, 151.104. (Texts of these provisions is quoted below).  We provided a brief primer on the AIA in this post from Eric Peabody on July 26, 2020. A recent decision by the Texas Supreme Court begins to define the scope
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Summary Judgment Upheld Based on Material Misrepresentation in Application – A Rescission Success Story for Insurers

April 4th, 2022 By Tara Mireur

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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Severance makes the appellate court’s heart grow fonder.

March 27th, 2022 By Sheila Tan

A recent Thirteenth Court of Appeals opinion reminds us of when it is appropriate to seek a severance and abatement of extracontractual claims from a contract claim for policy benefits, while also clarifying the scope of permissible discovery in such cases. In re Old Republic Ins. Co., 13-21-00264-CV involved a suit filed by Uhr Real Estate, Inc. against Old Republic. The petition alleged that homeowners David and Valerie Fallas had contracted with Uhr to repair damage done by Hurricane Harvey
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Eight (Corners) May Not Be Enough After All

March 8th, 2022 By Jeffrey C. Glass

The Texas Supreme Court recently ruled that the “eight corners” rule, under which the duty to defend is assessed, permits consideration of evidence extrinsic to the allegations of the pleadings. Monroe Guar. Ins. Co. v. BITCO Gen. Ins. Corp., 2022 WL 413940 (Tex. Feb. 11, 2022).  The Court held that extrinsic evidence may be considered under some circumstances where there is a “gap in pleadings” – where a petition is silent – on a coverage question that does not overlap
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Austin Court Reiterates “Texas Two-Step” in UM/UIM Cases: Severance of Declaratory and Extra-Contractual Claims Required

January 31st, 2022 By David L. Plaut

In an Opinion by Chief Justice Darlene Byrne, the Austin Court of Appeals recently granted mandamus requiring severance in an underinsured (“UIM”) case against Allstate after a parking lot collision. See Cause No. 03-21-00515-CV, In re Allstate Fire and Cas. Ins. Co. (Tex. App.–Austin Jan. 12, 2022, orig. proceed.). Plaintiff had asserted negligence and gross negligence claims against the tortfeasor as well as declaratory and Insurance Code “extracontractual” claims against Allstate.  The Insurance Code claims included alleged misrepresentations, an unreasonable
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Texas Supreme Court Refuses to Apply a Counteraffidavit Death Penalty Trap

June 20th, 2021 By Erin Holmes

On May 7, 2021, the Texas Supreme Court issued an opinion in In re Allstate Indemnity Co., ruling that a party’s failure to comply with the requirements of Section 18.001 of the Texas Civil Practice and Remedies Code for counteraffidavits does NOT preclude the party from offering evidence or argument regarding the reasonableness and necessity of past medical expenses at trial. Following a motor vehicle collision, Plaintiff Alaniz filed suit seeking underinsured motorist benefits under her policy with Allstate.  She
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Texas Supreme Court Holds Attorneys’ Fees May Be Recovered in UM/UIM Cases

June 6th, 2021 By David L. Plaut

In a long-awaited decision, the Texas Supreme Court decided Cause No. 19-0885, Allstate Insurance Co. v. Daniel Irwin (Tex. May 21, 2021) and the hotly-contested issue of whether attorneys’ fees are available in UM/UIM cases.  In a 5-4 decision authored by Justice John Devine, the Court’s majority held “a declaratory judgment action is the appropriate remedy for determining the underlying tort issues that control the validity of the insured’s [UM/UIM] claim against his insurer.”  Slip op. at *2, 5, and
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