Case Notes


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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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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Plaut Spouts: Reflections of an Old Guy with a Corner Office

February 28th, 2019 By David L. Plaut

On February 20, 2019, the Texas Supreme Court heard argument in Barbara Technologies Corp. v. State Farm Lloyds and Oscar Ortiz v. State Farm Lloyds.  These cases raised questions about whether insurers have potential Insurance Code and common law “bad faith” liability following invocation of the appraisal process and payment of an appraisal award.  In both cases, appraisal panels awarded significantly more for repair costs than the insurers had initially estimated, making them attractive vehicles for policyholder arguments that carriers
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Fifth Circuit Reaffirms Attorney Immunity Doctrine

February 25th, 2019 By Tara Mireur

In Ironshore Europe DAC v. Schiff Hardin, LLP, No. 18-40101 (5th Cir. 2019), the Fifth Circuit recently reversed the district court decision we previously wrote about here. The district court denied an attorney’s motion to dismiss a lawsuit against it by an excess insurance carrier complaining it was misled about settlement, instead holding that the law firm could not be held liable to a nonclient under the attorney immunity defense doctrine.   The lower court’s decision to allow the claim was
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Keeping Adjusters Out of the Hot Seat – UM/UIM Edition

February 3rd, 2019 By Sheila Tan

UM/UIM cases are a unique hybrid of tort and contract. Although the insured’s own insurance carrier is often named as a defendant, it has no contractual duty to pay benefits until after the liability of the insured and the other motorist, as well as the damages suffered by the insured, have been determined. Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 815 (Tex. 2006). Trial courts often struggle with the dilemma of how to avoid the prejudicial injection of insurance
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You Can Lead an Insured to Water but Can You Make Him Settle?

January 27th, 2019 By Eric S. Peabody

Policy Creates Agency Relationship for Settlement An unpublished Texas opinion that has received some national attention in “case roundups” at the end of 2018, McCain v. Promise House, Inc., No. 05-16-00714-CV, 2018 WL 2042009 (Tex. App.–Dallas, May 2, 2018, no pet.), addressed the effect of an insured’s refusal to sign off on a settlement agreement desired and approved by its liability carrier. Glen McCain sued Promise House, a residential social services care facility, after his eleven-year-old son was physically and
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Stormy Weather — Insured Sings the Burden of Proof Blues

December 3rd, 2018 By Eric S. Peabody

Insured’s Failure to Support Causation and Segregation with Evidence Results in Win for Carrier Insureds Richard and Linda Seim filed suit against their homeowners’ insurance carrier Allstate for damage to their home following a storm in August 2013. Seim v. Allstate Texas Lloyds, No. 02-16-00050-CV, 2018 WL 5832106, at *1 (Tex. App.—Fort Worth  Nov. 8, 2018, n.p.h.). Allstate had investigated and, despite finding some interior water damage to the home, had denied the claim because there was no evidence of
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Determining the Reasonableness of Medical Charges – The Quest Continues

November 5th, 2018 By Sarah Scott

Texas Supreme Court Rules Government and Insurance Billing Rates are Discoverable for Determining “Reasonableness” of Hospital Charges to Individuals One of the biggest factors affecting the value of a personal-injury case is the amount of medical bills – hospital bills, in particular. To encourage hospitals to promptly and adequately treat accident victims who are uninsured, the Texas Legislature has granted hospitals a lien on any patient injured in “an accident that is attributed to the negligence of another person.” Tex.
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Adjuster in the UM/UIM Hot Seat? Houston Court of Appeals Says No

October 29th, 2018 By Sheila Tan

One of the more contentious battles in a UM/UIM case is the taking of the deposition of insurer’s corporate representative. The good news is that more and more Texas courts are acknowledging that the corporate representative’s deposition in a UM/UIM matter has no bearing on the issues of the tortfeasor’s liability and damages and “is not reasonably calculated to lead to the discovery of admissible evidence.” We suspect that Plaintiffs’ lawyers desire to get insurance carrier representatives in the hot
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