Case Notes


Paint me like one of your…pleadings? Artful pleading remains an effective loophole to evade coverage exclusions.

February 19th, 2024 By Jessica Bigbie

Century Surety Company v. Club Adventure Learning Center, LLC, puts to rest the argument that artful pleading is an exception to Texas’s well-established eight-corners rule. 2023 WL 3575647 (W.D. Tex. May 22, 2023). In Century Surety, Aguero filed negligence claims in Texas state court against Club Adventure, and three of their employees, in connection with allegations that a Club Adventure employee “violently grabbed” Aguero’s child’s leg and “dragged him across the carpeted floor…causing injuries.” Id. at 1. Century issued Club Adventure a general liability insurance policy containing an endorsement which reduced coverage
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Is Your Numerator Zero? Rodriguez and Attorneys’ Fees in the Appraisal Context

February 8th, 2024 By David L. Plaut

In a recent case grounded in the “plain language” of the appraisal clause of the Texas Homeowners’ insurance policy, the Texas Supreme Court answered a certified question from the Fifth Circuit and held “an insurer’s payment of the full appraisal award plus any possible statutory interest precludes the recovery of attorneys’ fees.  See Cause No. 23-0534, Rodriguez v. Safeco Ins. Co. of Indiana, Slip Op. at *1 (Tex. Feb. 2, 2024).  In so holding, the Court not only resolved a
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Texas Supreme Court grants a mandamus petition and denies Plaintiff’s attempted counteraffidavit “gotcha.”

May 7th, 2023 By Erin Holmes

Confirming and applying its previous opinion in In re Allstate Indemnity Insurance Co., 622 S.W.3d 870 (Tex. 2021), the Texas Supreme Court granted a Petition for Mandamus in In re Chefs’ Produce of Hous., Inc., ___ S.W.3d ___, 2023 WL ___ (Tex. Apr. 21, 2023) (per curiam) [22-0286], holding that the trial court abused its discretion by striking the counteraffidavits and testimony of Chefs’ Produce’s retained expert because the opinions expressed in a counteraffidavit need not be admissible to provide
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Texas Supreme Court Victory

May 2nd, 2023 By Catherine Hanna

Congratulations to Eric Peabody and David Plaut on their recent 7-1 win in the Texas Supreme Court in Cause No. 21-0513, Ferrer v. Almanza.  In an Opinion by Justice Huddle, the Court held the Texas tolling state – Civil Practice & Remedies Code § 16.063 – did not toll the running of the statute of limitations in a car wreck/personal injury case against a Texas resident who was away at college for a significant part of the applicable limitations period. 
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Unclean hands don’t muddy excess carrier’s subrogation action.

April 17th, 2023 By Jeffrey C. Glass

In a recent decision, a U.S. District Court held a primary insurer could not assert an equitable unclean hands defense against the excess insurer in response to an equitable subrogation claim in a Stowers case. Westport Ins. Corp. v. Pennsylvania Nat’l Mut. Cas. Ins. Co., No. 4:16-CV-01947, 2023 WL 2574982, at *1 (S.D. Tex. Mar. 17, 2023). A marina in north Texas was damaged in a storm after it contracted with Insurance Alliance (IA) to procure full insurance coverage .
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It ain’t heavy . . . it’s just the lodestar! Attorneys’ fees and the requirements of Rohrmoos

February 12th, 2023 By David L. Plaut

Even though the Rohrmoos case has been around since 2019, Plaintiffs’ lawyers with contingency contracts more than occasionally designate themselves as testifying experts without providing any fee bills or other accounting addressing the legal tasks and time incurred in connection with the prosecution of a case.  This practice is out of line with the requirements of Rohrmoos. Texas courts use the “lodestar method” for proving the reasonableness and necessity of attorneys’ fees. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP,
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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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