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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 …
As we approach Thanksgiving this year, I know it will be different for many of us. There will be empty chairs at the Thanksgiving table, whether because of friends and loved ones we have lost this past year or because the pandemic has caused so many of us to curtail our traditional holiday gatherings. Still, there are reasons to be thankful and this year it may be more important than ever to count our blessings! When I polled my Hanna & Plaut co-workers to see what they are thankful for, I was not surprised to hear that family, friends, and…
Section 18.001 et seq. of the Texas Civil Practice & Remedies Code was enacted to allow for a prima facie showing of the necessity and reasonableness of services by affidavit rather than expert testimony. This evidentiary procedural rule provided plaintiffs with the ability to streamline the necessary proof to establish the reasonableness and necessity of costs. See Gunn v. McCoy, 554 S.W.3d 645, 672 (Tex. 2018) (“Generally speaking, section 18.001 is ‘purely procedural, providing for the use of affidavits to streamline proof of the reasonableness and necessity of medical expenses.’”) (quoting Haygood v. De Escabedo, 356 S.W.3d 390,…
Chief Judge Orlando Garcia has issued a new emergency COVID-19 Order, dated October 14, 2020.  The new Order continues all civil and criminal trials through November 30, 2020.  Order at ¶1.  The Order indicates these trials are being continued, at least in part, because of a “reduced ability to obtain an adequate spectrum of jurors” and “due to reduced availability of attorneys and court staff to be present in the courtrooms” because of COVID-19 and “public health considerations.”  Id. at ¶2 However, this most recent emergency Order is subject to a significant exception:  “[i]f judges in a specific division…
In Canal Indemnity Company v. CalJet II, 4:2019cv02945  (opinion available on PACER), a Texas federal judge recently held pollution exclusions did not bar coverage for a suit involving a truck driver who allegedly died from cancer caused by exposure to the carcinogen benzene in gasoline, a cargo the driver loaded and unloaded. Although Texas courts have previously held that pollution exclusions are not limited to typical cases of environmental pollution, U.S. District Judge Alfred H. Bennett of the Southern District of Texas in Houston, held that such exclusions do not apply to injuries incurred by direct, personal exposure –…
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On Friday, October 2, 2020, the Texas Supreme Court granted Allstate’s Petition for Review in Cause No. 19-0885, Allstate Insurance Company v. Irwin, on appeal from the Fourteenth Court of Appeals.  The case addresses the question of whether policyholders can recover attorneys’ fees in uninsured/underinsured (UM/UIM) cases that are pled as  declaratory judgment actions.  The Supreme Court’s previous decisions in Brainard and Henson would appear to foreclose recovery of attorneys’ fees in the absence of an underlying judgment establishing the liability of the tortfeasor and the amount of the claimant’s damages.  Oral argument in Irwin is scheduled in the…