Monthly Archives: May 2013


NEW LAW ON HEALTH INSURANCE SUBROGATION

        Starting in 2014, Texas has a new law that affects the subrogation rights of health insurance carriers. Currently, when a claimant’s health insurance carrier pays for medical services for which a third-party tortfeasor should be liable, the insurance company can seek reimbursement of all or some of its payments from the tortfeasor if the claimant attempts to recover any money from the tortfeasor. The new Chapter 140 of the Texas Civil Practice & Remedies Code limits the amount the health insurance company can collect to no more than half of the claimant’s total recovery. The statute also allows the health insurance companies to seek reimbursement from the claimant’s own uninsured/underinsured motorist coverage or medical payments coverage, but only if the claimant or his family did not pay the premiums for such coverage. According to this new law’s legislative history, this statute should facilitate liability settlements because the health insurance company’s subrogation rights are now limited – because the subrogation right is limited, the claimant can recover something from the third-party tortfeasor even when the … Continue reading

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DEFAMATION PER SE: NEW TEXAS SUPREME COURT CASE ADDRESSING PROFESSIONAL ISSUES

           There are two types of actionable defamation under Texas law: defamation per se and defamation per quod. These Latin terms can be confusing, but put simply, they involve different levels of proof for each Plaintiff. A claim for defamation per quod means that a statement is defamatory due to circumstances. While the statement is not defamatory when viewed on its face, due to circumstances, the statement can be considered defamatory. A Plaintiff will have to not only prove the defamatory nature of the statement, but also the amount of damages caused by the publication of the statement.            Defamation per se means a statement that is defamation “by itself.” A person claiming defamation per se does not have to prove that they suffered damage to their reputation or any monetary loss. The statement speaks for itself—it is defamatory, and thus, the plaintiff is entitled to damages. In Texas cases involving defamation per se, “our law presumes that statements that are defamatory per se injure the victim’s reputation and entitle him to recover general … Continue reading

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INSURERS AND CONTRACTORS ALIKE EAGERLY AWAIT SUPREME COURT’S RULING ON CONTRACTUAL LIABILITY EXCLUSION

Perhaps the most anticipated Texas Supreme Court opinion of 2013 is that in Ewing Construction Co., Inc. v. Amerisure Ins. Co. In 2012, the Fifth Circuit made an unprecedented ruling to expand the contractual liability exclusion to preclude coverage for a contractor’s failure to construct a project in a good and workmanlike manner. The contractual liability exclusion in a CGL policy precludes coverage for any claims an insured is required to pay due to an assumption of liability in a contract or agreement. The exclusion does not apply to liability the insured would have had absent the contract or through an assumed contract. The Fifth Circuit, analyzing a contract between a general contractor and a subcontractor, notably held that the contract’s clause that agreed to complete work in a workmanlike manner triggered the contractual liability exclusion in the Amerisure policy issued to the subcontractor. Ewing Construction Co., Inc. v. Amerisure Ins. Co. 684 F.3d 512, 519 (5th Cir. 2012). Seemingly realizing the major impact this would have on all insurance claims in a construction context, … Continue reading

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WHAT’S FAIR ABOUT FAIR NOTICE?

Whether your interest lies with an owner, general contractor or a subcontractor, contractual indemnity provisions play an important part in evaluating claims and lawsuits. If, for example, a subcontractor has agreed to indemnify the general contractor on the project for personal injuries sustained by the subcontractor’s own employees, this will have a significant financial impact on the representation of both parties in a lawsuit. This impact could be even greater if there is a potential conflict between the general contractor and the subcontractor that would require each party to have separate counsel. In order to evaluate such provisions, it is necessary to determine if they are enforceable under Texas law. Texas requires that the indemnity language provides fair notice to the person/entity that is assuming the transfer of risk (the indemnitor). Through a litany of cases, this has become known as the express negligence test. Under the express negligence doctrine, a party seeking indemnity from the consequences of that party’s own negligence must express that intent in clear and specific terms within the four corners … Continue reading

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