Hanna & Plaut, L.L.P.

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In a long-awaited decision, the Texas Supreme Court decided Cause No. 19-0885, Allstate Insurance Co. v. Daniel Irwin (Tex. May 21, 2021) and the hotly-contested issue of whether attorneys’ fees are available in UM/UIM cases.  In a 5-4 decision authored by Justice John Devine, the Court’s majority held “a declaratory judgment action is the appropriate remedy for determining the underlying tort issues that control the validity of the insured’s [UM/UIM] claim against his insurer.”  Slip op. at *2, 5, and 14 (reasoning that “[b]ecause Chapter 37 provides for the award of attorney’s fees, and the UDJA has not been invoked…
Making the call on the duty to defend a case in which the pleadings are silent on a key coverage question – such as the date damage occurred – is problematic for courts, carriers, coverage attorneys, and policyholders alike. The eight corners requirement, limiting the defense assessment to the live petition, generally precludes the use of extrinsic evidence to fill in such gaps in the pleadings. This leaves parties and courts guessing, leading to inconsistent results. Compare Great American Lloyds Ins. Co. v. Audobon Ins. Co., 377 S.W.3d 802, 808 (Tex. App. – Dallas Aug. 6, 2012, no pet.)…
On March 19, 2021, the Texas Supreme Court issued a 7-2 decision and Opinion by Justice Jane Bland holding there is no appraisal payment safe harbor from Chapter 542 late payment liability for insurers that timely pay appraisal awards after accepting coverage when those payments are late under the statute. See Cause No. 19-0280, Hinojos v. State Farm Lloyds et al., slip op. at *2. In so holding, Hinojos emphasizes that “claim” under Chapter 542 means the amount that “must be paid the insurer” not the amount the insurer agrees to pay. Id. at *9 (noting the late payment…
So you want to designate a doctor as a Responsible Third Party? Can you do it? Yes. Texas Civil Practice and Remedies Code Section 33.003 allows a jury to consider the proportionate responsibility of all claimants, defendants, and responsible third parties for injuries asserted by a Plaintiff. A responsible third-party is defined as “any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages sought, whether by negligent act or omission . . . .” This definition includes healthcare providers. However, the requirements to designate a healthcare provider are…
On March 19, 2021, the Texas Supreme Court issued an Opinion by Justice Blacklock reaffirming the continuing importance of its Brainard decision in the uninsured/underinsured (“UM/UIM”) motorist context. See In re State Farm Mutual Auto Ins. Co. et al. Without dissent, the Court held that UM/UIM claimants “must first obtain determinations of the third-party drivers’ liability and the amount of damages” in order to establish coverage. Slip Op. at *10. Because there was no judgment establishing the liability of the tortfeasor and the amount of damages, bifurcation of the plaintiffs’ Insurance Code claims was required before the trial court proceeded…
Hats off to Eric Peabody and David Plaut for their recent win in the Amarillo Court of Appeals in Cause No. 07-20-00300-CV, Ferrer v. Almanza (March 16, 2021). The appeal involved a statute of limitations issue and a summary judgment order dismissing the plaintiff’s claims against a defendant in a motor vehicle accident case. The Amarillo Court held CPRC § 16.063 – which tolls the running of limitations for persons “absent” from the state – did not toll limitations as the defendant who was out of state for college was still amenable to service of process as a Texas resident.…
The joinder of an insurance adjuster or agent as a defendant, in a case against an insurance carrier, is a commonly used strategy to defeat diversity. Many attorneys for insurance practitioners have found that challenging joinders of insurance agents and adjusters can be an exercise in futility given the broad reach of the Texas Insurance Code. But a district court in the Western District of Texas recently affirmed the importance of challenging a plaintiff’s failure to allege specific, affirmative misrepresentations about policy coverage when faced with broad allegations of negligent misrepresentation, Insurance Code, and DTPA violations against an insurance agent.…
Patrons of the Pasha Mediterranean Grill in San Antonio had to stomach an unsavory outcome in their bid to obtain multiple occurrence limits in Travelers Cas. Ins. Co. of Am. v. Mediterranean Grill & Kabob Inc., 2020 WL 6536163 (W.D. Tex. Nov. 4, 2020). Between August 29 and September 1, 2018, nearly 200 cases of food poisoning from salmonella bacteria were reported after the patrons ate at Pasha. Hummus prepared at the restaurant was believed to be the source of the salmonella, although the specific cause—whether an ingredient, piece of equipment, or employee failure to follow hand washing procedures—was…
Catherine Hanna will be joining a panel discussion on Mediating Insurance Coverage Claims on Tuesday, January 26, 2021. A panel of mediators and insurance coverage attorneys on both sides of the docket will have a free-ranging discussion about the unique challenges in mediating coverage. About the Webinar: The Insurance Law Section of the State Bar of Texas and the Austin Bar Association ADR Section are proud to co-sponsor a Zoom webinar with some of the preeminent insurance lawyers and mediators in Texas. The panel of distinguished policyholder and insurer attorneys will discuss all aspects of mediating coverage cases, including: Zoom’s impact…
The Texas Supreme Court heard oral argument on Thursday, January 7, 2021 in Allstate v. Irwin, an underinsured motorist case out of San Antonio addressing the availability of attorneys’ fees in such cases.  Plaintiff Daniel Irwin sued Allstate seeking a declaration that he was entitled to recover damages resulting from the wreck under his UM/UIM benefits policy and attorneys’ fees.  On appeal, Allstate argued the trial court abused its discretion in awarding Irwin declaratory relief and attorneys’ fees. Oral argument before the Texas Supreme Court largely focused on how the attorneys’ fees question was addressed in Brainard v. Trinity