Case Notes


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Policy Creates Agency Relationship for Settlement An unpublished Texas opinion that has received some national attention in “case roundups” at the end of 2018, McCain v. Promise House, Inc., No. 05-16-00714-CV, 2018 WL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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Federal Courts Sketch Roadmap for Chapter 542A Removals

October 22nd, 2018 By Eric S. Peabody

As many commentators have noted, the addition of Texas Insurance Code Chapter 542A—the so-called “Hailstorm Bill”—has substantially reduced the volume of weather-related lawsuits against insurance companies since September 2017. In addition to imposing strict timelines for pre-suit notice and inspections and curbing potential penalties and attorneys’ fees awards, Chapter 542A affects the parties to, and potential venue of, a lawsuit by allowing the carrier to assume any liability an “agent” might have to the claimant (with certain exceptions) for the
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Pre-Suit Demands: Insured’s counsel must check all the boxes, but detail may still be vague.

September 26th, 2018 By Tara Mireur

Perrett v. Allstate Insurance Company, 2018 WL 2864132 (S.D. Tex. June 11, 2018) is the first case that scrutinizes whether or not a pre-suit notice properly complies with the new requirements of § 542A.003 of the Texas Insurance Code and therefore gives some guidance to attorneys about how strictly courts will enforce each statutory requirement. Section 542A.003 of the Texas Insurance Code provides that “not later than the 61st day before the date a claimant files an action to which
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