Author Archives: Bernays Touchstone


Farmers Tex. Cty. Mut. Ins. Co. v. Zuniga, No. 04-16-00773-CV, 2017 Tex. App. LEXIS 8678 (App.—San Antonio Sep. 13, 2017) Summary The Fourth Court of Appeals has weighed-in on insurability of punitive damages in Farmers Texas County Mutual Insurance Co. v. Zuniga, et al. The court found that a Farmers auto insurance policy covering “damages for bodily injury” does not require the insurer to pay punitive damages awarded in a lawsuit against its insured.  The court noted a distinction between damages for bodily injury and punitive damages in that damages for bodily injury are regarded as compensatory damages, while punitive damages are awarded to punish the person being sued.  Thus, the court held that the policy language “damages for bodily injury” does not cover punitive damages.  This holding will most likely be appealed to the Texas Supreme Court. Discussion Jennifer Zuniga sued Christopher Medina to recover damages she sustained when the vehicle Medina was driving struck Zuniga from behind as she was walking. A jury found Medina both negligent and grossly negligent, and awarded Zuniga … Continue reading

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In USAA Tex. Lloyds Co. v. Menchaca, 2017 Tex. LEXIS 361 (Tex. Apr. 7, 2017), the Texas Supreme Court was asked to decide whether an insured can recover extra-contractual damages for an insurer’s violation of the Texas Insurance Code when the insurer did not breach the insurance policy. The Court held, generally the answer is “no,” and announced five rules to determine whether the general rule, or an exception thereto, applies. Menchaca involves an insurance dispute over the amount of damage inflicted by Hurricane Ike on covered property. Although the loss was covered by the homeowner’s policy, the insurer denied the claim because the amount to repair the loss fell within the insured’s deductible. The insured filed suit and the case was tried to a jury. The Thirteenth Court of Appeals affirmed that part of the trial court’s judgment awarding the insured extra-contractual damages of $11,500 for the insurer’s violation of the Insurance Code, which represented the amount of policy benefits the insurer “should have paid” to the insured, despite the jury’s finding that the … Continue reading

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In J&D Towing, LLC v. Am. Alternative Ins. Corp., the Texas Supreme Court announced for the very first time, that Texas law does permit an owner of personal property that has been totally destroyed to recover loss-of-use damages, such as lost profits, in addition to direct damages. J&D lost its only tow truck when a negligent motorist collided with it, rendering it a total loss. J&D filed a claim with its insurer, AAIC, seeking recovery for loss of use of its truck. A suit ensued. The trial court awarded $22,000 to J&D for its loss-of-use damages, but the judgment was reversed by the appellate court. J&D appealed to the Texas Supreme Court. The Court acknowledged that it has never expressly permitted or prohibited loss-of-use damages where personal property has been totally destroyed. Upon surveying other states’ law, the Court found the modern trend persuasive – that full and fair compensation requires the availability of loss-of-use damages in both partial-destruction and total-destruction cases. Thus, the Court held for the very first time that Texas law does … Continue reading

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Partners Wayne Gordon and James Bertsch, along with associates Marc Tolliver and Tim Smith, were recently retained to represent an excavating subcontractor on two separate suits brought by numerous homeowners along the recently completed LBJ Expansion Project. One suit involves over 150 plaintiffs and the other over 75 plaintiffs and both suits allege that the property of each owner has been damaged and property value decreased as a result of the work by numerous general contractors and subcontractors. The numerous plaintiffs each allege structural damage  and noise pollution during construction and seek unspecified damages as a result. The suit alleges numerous liability theories, including nuisance, negligence, and trespass and will involve some unique opportunities for limiting or expanding these liability theories, as well as testing of some long-standing defenses such as statute of limitations, economic loss rule, and governmental immunity.

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Partner James Bertsch and associate Tim Smith obtained an early dismissal for two construction clients from a multi-party lawsuit arising from a personal injury suffered by the plaintiff on a commercial construction project.  They successfully argued that both of their clients, the general contractor and a sub-contractor, were entitled to the same immunity (workers compensation exclusive remedy) from the lawsuit as plaintiff’s employer since there was a Contractor Controlled Insurance Program in effect on the project in which both the general contractor and sub-contractor were enrolled.

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