ACKNOWLEDGMENT OF NAMED DRIVER EXCLUSION
The Eleventh Court of Appeals addressed the acknowledgment of a Named Driver Exclusion in Allied North America Ins. Brokerage of Texas, L.L.C. v. Diamond Pump & Transport, LLC and the Insurance Company of the State of Pennsylvania, No. 11-13-00249-CV (Tex. App. – Eastland 8/31/2015). Allied, the insurance agent that procured a policy for Diamond from Insurance Company of the State of Pennsylvania (ICSOP), asserted that the named driver exclusion was ineffective because Diamond had not signed the endorsement. The court disagreed finding that the signature line on the endorsement was an “acknowledgement” of the fact that Diamond was bound by the terms of the endorsement. Even if the court were to agree with Allied’s claims that the endorsement was unapproved, the endorsement was not void, but voidable. The court found that Diamond had accepted the benefits of the policy as written, with the endorsement attached. Allied also asserted that the trial court erred in concluding that Diamond was not negligent in failing to review its policy. However, the court found that the record supported the … Continue reading
THE GOTHAM IV DECISION
There are several appeals involved in Gotham’s legal battle with Warren E & P (now known as Pedeco), including Gotham Insurance Co. v. Warrant E & P, Inc., 455 S.W.3d 558 (Tex. 2014). The question presented to the Texas Supreme Court was whether Pedeco suffered a loss because Warren Resources had reimbursed Pedeco for any losses related to the blowout. The Gotham IV court noted that although there was evidence in the record that Warren Resources paid the expenses related to the blowout, there was also evidence that Warren Resources and Pedeco had an agreement to share in the aggregate profits and losses at the end of each year. The court held that the evidence regarding the end-of-year settling of accounts was sufficient to raise a fact issue as to whether Pedeco suffered a loss and was therefore entitled to insurance proceeds.
FINALITY FOR PURPOSES OF APPEAL
The Supreme Court of Texas delivered its opinion in Farm Bureau County Mut. Ins. Co. v. Rogers, 455 S.W.3d 161 (Tex. 2015), on the issue of whether a trial court’s order was final for purposes of appeal. The court noted that the subject order did not dispose of all parties and claims because it did not expressly resolve the parties’ claims for attorney’s fees. Neither the language taxing costs nor the Mother Hubbard clause was sufficient to indicate a clear intent to dispose of the attorney’s fees claims. The court concluded that because Mother Hubbard clauses do not, on their face, implicitly dispose of claims not expressly mentioned in the order, and Farm Bureau failed to request an award of attorney’s fees in its summary judgment motion, there was nothing in the record to indicate that the trial court had even considered the issue of attorney’s fees.
FAILURE TO BUCKLE UP NOW A DEFENSE
Every person responsible for causing a plaintiff’s injuries should be apportioned fault by Texas juries, even if the injury-causing event is not proximately caused by such conduct. But in car accident cases for the last 40 years, out-dated case precedent has allowed Texas judges to exclude evidence of a plaintiff’s failure to wear his seatbelt, thus preventing defendants from apportioning fault to plaintiffs who exacerbated or increased their own injuries without causing the car accident. This is no longer the law in Texas. In Nabors Well Service v. Romero, an important opinion that was released on Feb. 13, the Supreme Court of Texas instructed Texas litigators and judges that the failure to wear a seat belt is relevant to a plaintiff’s percentage of responsibility for his own injuries. Texas law is now clear that pre-accident conduct by a plaintiff that exacerbates or increases a plaintiff’s injuries is generally relevant and admissible as a means for a defendant to prove contributory negligence against a plaintiff, and a plaintiff’s recovery from defendants can be reduced by such … Continue reading
SUMMARY JUDGMENT VICTORIES
Summary judgment victories are important because they can save insurers/defendants thousands of dollars by successfully ending a case prior to trial. Having a Motion for Summary Judgment granted by the Court effectively ends a case with no liability finding against the defendant. Often, once an opposing attorney reviews the summary judgment and realizes its merit, he/she would prefer to settle the case rather than have it dismissed through a summary judgment. We’d like to share just a few of our recent summary judgment victories: NO COURSE AND SCOPE: Partner Wayne Gordon and associates Amie Fordan and Andrew Johnson successfully persuaded a Tarrant County District Judge to grant summary judgment as to all claims in favor of a corporate client on a serious personal injury case arising out of an automobile collision. The Court held that, as a matter of law, the driver of the vehicle was not in the course and scope of employment of the client at the time of this collision. The plaintiff, a passenger in the vehicle in question, had sustained multiple serious injuries, and … Continue reading