Law Practice

Medical Cost and Necessity Affidavits – A Trap for the Unwary

May 31st, 2017 By Sheila Tan

One of the most commonly used tools in personal injury litigation is the affidavit regarding the cost and necessity of medical services provided. Texas Civil Practice and Remedies Code Section 18.001 et seq. governs the use of affidavits to prove up the reasonableness and necessity of medical treatment. These affidavits are ubiquitous because they are a cost-effective way of presenting sufficient evidence that the amount charged was reasonable or the treatment provided necessary, without having to resort to expensive live experts
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Indemnity: Don’t get harmed by your “hold harmless” agreement!

May 23rd, 2017 By Eric S. Peabody

At a certain level of sophistication, contracting parties begin incorporating indemnity provisions in their contracts as a risk-assignment mechanism. Without input from knowledgeable counsel, these provisions can impose an unexpected burden on unsuspecting parties, fail to offer the protection sought by the provision’s proponent, or lull the parties into believing that insurance is unnecessary or redundant. The arcane rules governing the enforcement of indemnity agreements and the continuing confusion surrounding their application make them the ultimate “trap for the unwary.”
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After the Verdict: What Jurors Want to Hear and What to Avoid at Trial

April 18th, 2017 By Anne-Marie Abarado

One of the biggest learning opportunities in trial practice actually occurs after the trial. Many courts usually allow the attorneys to interview jurors after they have rendered their verdict. While many jurors may rush out of the courtroom to get home after they have done their civil duty, there are a few that will stay behind because they are interested in the process, and they want to find out more about the strategies employed by the attorneys during trial. Speaking
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Venue: Where’s the Dance

April 11th, 2017 By Eric S. Peabody

Texas is a big, diverse state – with judges and jury pools to match. One of the most important decisions for plaintiffs and defendants alike is determining where the litigation dance will take place, i.e. venue. Because the burden is on defendants to immediately challenge a plaintiff’s choice of venue, defense attorneys need to be particularly vigilant to protect their clients from having to litigate in an inappropriate or inconvenient locale. While some specifics of venue challenges depend on the
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March 26th, 2017 By David L. Plaut

What is “voir dire”? I never discuss the etymology of the phrase “voir dire”– which in Texas we happily mispronounce “voir” (sounds like “four”) and “dire (sounds like “tire”) – with potential jurors because, well, it’s just not interesting to anyone but me.  That said, “voir dire” comes from Anglo-Norman French, which was much different than the modern French spoken today.  In that archaic tongue, “voir dire” literally means “to speak the truth.” Most people think of voir dire as
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South Texas Jury Hits USAA with Big Damages in Hailstorm Case

February 28th, 2017 By David L. Plaut

  Five years after a South Texas hail storm, a Hidalgo County jury awarded homeowner John Griffith damages of $1,244,500 against USAA Texas Lloyd’s Co. (“USAA”) and at least $200,000 against claim adjuster AllCat Claims Service, L.P. (“AllCat”).  Griffith – a principal of the McAllen-based Griffith Law Group – filed the lawsuit alleging the defendants intentionally undervalued the cost of damages to his home during the inspection process.  He alleged the 2012 hail storm damaged his roof, pool, pool deck,
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Barratry? What does it mean to you?

February 24th, 2017 By Sheila Tan

In recent years, Texas has seen a rise in hailstorm litigation that exceeds the rise in hailstorms. While, insured homeowners who are unhappy with the adjustment of their claim are entitled to their contractual remedies, it appears that some homeowners are being victimized by unscrupulous actors, including unethical lawyers. See, e.g., Yates, David, “Barratry class action against hail firm alleges ‘elaborate web of fraud.” SE Texas Record, May 17, 2016.  Barratry is the solicitation of employment to prosecute or defend
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Unjustly Enriched Claimant Ordered to Reimburse Carrier

February 15th, 2017 By Jeffrey C. Glass

Our clients rarely find themselves in a position to recover payments issued based on an improper or dishonest claim. Banion v. Geovera Specialty Ins. Co., CV H-15-1595, 2016 WL 7242536, at *1 (S.D. Tex. Dec. 15, 2016) involved a rare instance of such an argument’s success, even though the policy was void. Banion sued GeoVera, her homeowner’s carrier, for water damage to her home and GeoVera paid her over $57,000, but later discovered Banion had never owned the property. GeoVera
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Prejudgment Interest 101

February 10th, 2017 By Todd Key

Any complete evaluation of consumer insurance litigation should include an estimate of potential prejudgment interest. Typical homeowners and business auto policies explicitly include prejudgment interest in coverage. Questions about prejudgment interest are generally overlooked until the eve of trial, but they represent a quantifiable financial impact to every insurance claim. Under Texas law, prevailing parties generally receive prejudgment interest as matter of course, absent exceptional circumstances. Richter, S.A. v. Bank of America Nat. Trust and Sav. Ass’n, 939 F.2d 1176
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Medical Expense Challenges – What To Do When Health Insurance Doesn’t Pay

February 8th, 2017 By Laura D. Tubbs

One of the most important issues that arises in the defense of third-party automobile liability and first-party uninsured/underinsured motorist cases is damages for medical expenses. Section 41.0105 of the Texas Civil Practice and Remedies Code provides that, in addition to any other limitation under law, recovery of medical or health care expenses in a personal injury suit is limited to the amount “actually paid or incurred” by or on behalf of the claimant. Tex. Civ. Prac. & Rem. Code §
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