It’s A Round-Up, Y’all!

March 29th, 2020 By Lauren Burgess

Ed. Note: At Hanna & Plaut we encourage attorney involvement in practice organizations like the Texas Association of Defense Counsel. We’re also not ashamed to take advantage of the good work they do as part of their responsibilities. Today, we are pleased to present a case round-up that Lauren Burgess prepared as part of her role as a Director-at-Large for TADC.

Alcala v. Republic Lloyds, No. 13-18-00026-CV, 2020 WL 830840 (Tex. App.–Corpus Christi Feb. 20, 2020)

Holding: Timely payment of an appraisal award is not sufficient to escape liability for damages pursuant to the Texas Prompt Payment of Claims Act in light of Barbara Technologies and Ortiz.

Summary: This matter involves a claim for hail damage under Plaintiffs’ homeowners policy as a result of a January 9, 2015 hail claim. Republic assigned the claim to an independent adjuster, who prepared an estimate for actual cash value totaling $904.46 in January 2015. In December 2015, Plaintiffs’ counsel provided an estimate to Republic totaling $17,701.46. In January 2016, Republic notified Plaintiffs that it was demanding appraisal. During the pendency of appraisal, Plaintiffs filed suit against Republic. The appraisers and umpire agreed on an actual cash value award of $6,045.68, and Republic paid the award less the deductible and prior payment on December 29, 2016. After paying the appraisal award, Republic filed a summary judgment motion, arguing that its timely payment of the award negated liability for all of Plaintiffs’ claims as a matter of law. The trial court agreed and dismissed Plaintiffs’ suit in its entirety. Plaintiffs appealed, and the appellate court abated the case pending the outcomes of Barbara Technologies and Ortiz.

Plaintiffs dropped their arguments as to the breach of contract and extra-contractual bad faith claims, so the sole issue on appeal was whether Plaintiff’s claims under the Texas Prompt Payment of Claims Act survived. The Court concluded that timely payment of an appraisal award did not excuse Republic from liability for prompt payment damages if it was liable under the terms of the policy but delayed payment beyond the applicable statutory deadlines. Finding that Republic failed to carry its summary judgment burden on that issue, the Court remanded the prompt payment claims to the trial court.

Alvarez v. Agyemang, No. 02-19-00301-CV, 2020 WL 719440 (Tex. App.–Ft. Worth Feb. 13, 2020)

Holding: Medical records attached to a default judgment motion, without more, is not sufficient to establish a causal nexus between the car accident and Plaintiffs’ injuries to support a judgment.

Summary: This suit arises from the appeal of a default judgment taken in a car accident case. After Defendants failed to file an answer, Plaintiffs filed a motion for default judgment and attached to the motion the returns of service on Defendants, business-records affidavits regarding Plaintiffs’ medical bills, and Plaintiffs’ itemized medical bills from one hospital. The trial court granted the motion and entered judgment for Plaintiffs that included $3,000 in attorney’s fees and $59,798.93 in damages. Defendants filed an appeal on the grounds that (1) no properly admitted evidence supported the awarded damage amount, (2) Plaintiffs introduced no evidence to prove a causal nexus between their injuries and the car accident, and (3) Plaintiffs did not plead for recoverable attorney’s fees.

The Court held that Plaintiffs did not offer legally sufficient evidence to support their claims that their injuries were caused by or resulted from the car accident. Plaintiffs argued that the medical records evidence attached to the default judgment motion was sufficient to establish the causal nexus between the accident and Plaintiffs’ injuries, but the Court held that this evidence was less than a scintilla of proof that the costs were the result of the car accident and merely reflected the fact of the incurred charges. The Court further held that Plaintiffs’ negligence claims do not entitle them to an award of attorney’s fees. The Court reversed the part of the judgment as to unliquidated damages and attorney’s fees, but upheld the portion of the judgment regarding Plaintiffs’ liability for the accident.

Murray v. Nabors Well Service, No. 08-18-00187-CV, 2020 WL 401837 (Tex. App.–El Paso Jan. 24, 2020)

Holding: There is no legal basis to impute a duty to warn on a bystander who did not create the condition that contributed to the accident, did not exacerbate that condition, did not agree to assume a duty owed by the person who did create the condition, and in no way caused or contributed to causing the accident that forms the basis of the suit. 

Summary: In January 2015, a truck and trailer owned by Martin Gomez experienced sudden electrical failure and pulled onto the shoulder. Because of the electrical issues, the lights on the track and trailer did not work. Timothy White pulled over to help Gomez. At the time, White was driving a truck owned by his employer, Nabors Well Service. While White was attempting to assist Gomez, a vehicle driven by James Seymour (in which Kevin Murray was a passenger) veered into the shoulder and struck Gomez’s trailer. Murray sued Seymour, Gomez, White, and Nabors for negligence.

The Court refused to place a duty on White and his employer to warn of a condition he neither created nor worsened, when he did not undertake to assume any such duty, simply because he chose to help a person in need. The Court did not issue a finding on whether White owed a duty to warn of the presence of the Nabors vehicle on the shoulder of the road because it found that there was no evidence that the Nabors vehicle location was not the proximate cause of the accident. The Court further found that there was no evidence of any negligence per se or violations of the Texas Transportation Code because White’s actions were not the proximate cause of the accident.

Eastern Concrete v. ACE American, 948 F.3d 289 (5th Cir. 2020)

Holding: In an insurance coverage dispute where choice of law and personal jurisdiction are at issue, the focus is on the contacts related to procurement of the policy, not the place of the underlying incident.

Summary: This case involves a coverage dispute regarding whether an unplanned discharge of “rock fines” – pellets produced during the court of quarry operations – is covered by a company’s umbrella insurance policy or excluded by a pollution exclusion. Great American Insurance Company filed a declaratory judgment action seeking a declaration that it was not required to defend or indemnify Eastern Concrete Materials. The trial court granted Great American’s summary judgment motion on that issue and denied Eastern Concrete’s plea to the jurisdiction.

Eastern Concrete, a New Jersey corporation that operates rock quarries in New Jersey, is a wholly-owned subsidiary of U.S. Concrete, a Delaware corporation with its principal place of business in Euless, Texas. U.S. Concrete purchased the Great American umbrella policy for itself and more than 60 subsidiaries (including Eastern Concrete). The policy was negotiated, brokered, and issued in Texas. The discharge of “rock fines” and their cleanup, which served as the basis of the insurance claim, occurred in New Jersey.

The Court held that there was personal jurisdiction over the claims because the lawsuit arises out of Eastern Concrete’s contacts with the forum state. The Court noted that because the matter involved an insurance coverage dispute, the contacts to evaluate for purposes of jurisdiction are those linked to the procurement and enforcement of the policy, not the contacts related to the injury forming the basis of the claim. Thus, it is both fair and reasonable for Texas, the state where the policy was “negotiated, brokered, and issued,” to be the forum for a lawsuit that “concerns interpretation of that policy.” The Court further held that Texas law governed the dispute because it found that the place of contracting, not the place of the underlying incident, is the dominant consideration for choice of law in an insurance-coverage dispute. The Court further agreed with the trial court that the “rock fines” were pollutants under the policy and thus subject to the pollution exclusion.