"PAST PERFORMANCE IS NOT A GUARANTEE OF FUTURE RESULTS"

DEFENSE:

EcoEléctrica, L.P. v. Certain Underwriters at Lloyd's London, et. al.

Arbitration Proceeding under the Federal Arbitration Act- New Orleans, Louisiana.

The Firm successfully defended Underwriters in a two-week insurance coverage arbitration involving a cogeneration electrical plant located in Penuelas, Puerto Rico. EcoEléctrica demanded coverage for the failure of a Siemens Westinghouse generator rotor alleging $15,500,000.00 in physical damage and business interruption. The Firm asserted the failure was caused by a progressive manufacturing defect that negated coverage under the latent defect exclusion. In a 3-0 decision, the arbitration panel determined that the policy was not triggered by the claims of EcoEléctrica and awarded $0 in monetary damages against Underwriters.

EcoEléctrica, represented by Gordon Grimes, Jack Montgomery and John Osborn of Bernstein, Shur, Sawyer & Nelson of Portland, Maine utilized three generator experts, Clyde Maughan, Isidor Kerszenbaum and Geoff Klempner, and Siemens Westinghouse engineers to argue the defect was sudden and not progressive. Despite the numerous engineers, the Firm, through the use of Mike Thomas as their technical expert, convinced the panel of the progressive nature of the defect and its exclusionary effect on coverage. The Firm successfully defeated EcoEléctrica's claims of coverage on factual grounds, proving no physical damage trigger, no occurrence, the application of the latent defect exclusion and the inapplicability of the ensuing loss provision.

Surgical Assistant Malpractice Claim (Harris County, Texas) - Defended surgical assistant who put two stitches through a suprapubic catheter while closing a surgical incision. Resulted in retained catheter with beginning stages of infection when discovered problem. Patient underwent additional surgery to remove catheter. Defended case by admitting that a mistake was made but questioned whether mistake rose to the level of negligence. One week jury trial. Jury found no negligence on surgical assistant or supervising OB-GYN.

Wrongful death suit vs. trucking company for negligent dispatch/failure to render aid (Harris County Texas) - Decedent driver was an owner/operator who leased his truck to a national trucking firm. The truck had satellite communication capabilities. Driver became extremely ill while on the road. In a message to dispatcher, driver indicated he was too weak to get out of his truck. Dispatcher asked if driver needed help. Dispatcher received a reply that caused him to believe downer/operator did not want him to contact emergency services. Owner/operator died several hours after last communication. Plaintiffs claimed dispatcher should have contacted emergency medical services and that such contact would have easily prevented death from diabetic ketoacidosis. Jury found no negligence on trucking company or dispatcher.

Day care abuse of a baby (Polk County, Texas) - Plaintiffs alleged 9 month old baby was physically abused while at day care center. Plaintiffs noticed hand shaped bruise on child while changing his diaper several hours after leaving day care. Plaintiffs took child to local police department where photos were taken. Police and state authorities began investigation. During investigation, day care manager admitting to spanking the child on some occasions and admitted to use of corporal punishment at day care in violation of state regulations. However, manager denied spanking baby on the day in question. Day care was closed and administrator's license revoked by regulatory services as a result of the admission by administrator that corporal punishment was administered to children generally and periodically to child in question. Day care manager pled no contest to reckless endangerment of a minor and received probation.

Defense raised questions as to police pressure tactics used to extract statements from day care manager and questioned origin of bruise. Police testimony was that red whelps in the shape of a hand surrounded the bruise at time child was brought to police department at 11 pm at night. Defense argued that child left day care at 3:30 in the afternoon and red whelps would not have still existed around any injury that may have been inflicted by spanking. Plaintiffs contended that baby had developmental disorders and post traumatic stress disorder as a result of incident. One week jury trial. Jury found no negligence on day care center.

Premises liability - Apartment complex sexual assault/stabbing (Harris County, Texas) – Plaintiff was a resident at an apartment complex in Southwest Houston. One night while returning to her apartment a man pushed her through her door just as she was entering her apartment. Plaintiff was on cell phone with her mother when attack began. Assailant attempted to sexually assault Plaintiff and ultimately stabbed her five times. Plaintiff's mother contacted police. Assailant was preparing to kill Plaintiff when police officers burst through the door. Assailant escaped but was apprehended 2-3 weeks later for a murder he committed during a similar assault in the same area. Plaintiff alleged that security measures (automatic locking gates) were not functioning properly and that lighting was inadequate. Apartment complex had recurring problems with lighting and non-functioning gates prior to incident. However, complex had hired HPD officers to patrol the complex at random intervals and regularly used gate repair vendor for gate problems. Perpetrator of crime was joined in case as a responsible third party. One week jury trial. Jury found no negligence on the apartment complex or the Plaintiff. Found assailant 100% responsible for incident.

Fall from roof at construction site (Harris County, Texas) – Plaintiff was a roofing subcontractor hired to install metal shingles on a McDonald's restaurant in Seymour, Indiana. Plaintiff alleged that Defendant general contractor had provided him with fall protection on past jobs but failed to do so on this job. Plaintiff claimed that general contractor specifically refused to provide him with fall protection on job in question. Plaintiff fell from roof while installing shingles, hitting a handicap parking sign as he fell to the ground. The impact with the handicap parking sign severely fractured his left leg. Plaintiff developed an infection in the leg and leg was amputated 18 months after incident. Manufacturer of shingles and McDonald's restaurants settled prior to trial. Case was tried as to general contractor. One week jury trial. Jury found accident was 51% Plaintiff's fault and 49% general contractor's fault. Under Texas law, Plaintiff recovers nothing.

Truck/motorcycle accident – amputated leg (Potter County, Texas) – Plaintiff was riding a motorcycle and had intersection collision with 18 wheeler in Amarillo, Texas. Plaintiff sustained severe injuries including amputation of his left leg. Plaintiff alleged truck ran red light or at least was still blocking intersection when his light turned green. Defense alleged that Plaintiff was trying to "time" lights and failed to use ordinary care and failed to maintain proper lookout. Jury found accident was 80% Plaintiff's fault and 20% defendant's fault. Under Texas law, Plaintiff recovered nothing.

Truck on truck accident – Plaintiff suffered crushed pelvis and crushed ankle – Plaintiff was driving a cement tanker in the fog just prior to daylight. Defendant driver was in process of making a u-turn at a cross over on US 290 near Brenham Texas. Plaintiff's truck broadsided Defendant's trailer, cutting trailer in half. Plaintiff claimed Defendant was making an improper turn and truck and trailer were in violation of Federal Motor Carrier Safety Regulations regarding lights and reflective tape. Defendant contended Plaintiff was traveling too fast under the conditions. Two week jury trial. Jury found accident was 50% fault of Plaintiff and 50% fault of Defendant. Jury awarded Plaintiff $792,000 which was reduced by 50% due to Plaintiff's contributory negligence. Jury made finding that Defendant driver was not in the furtherance of the motor carrier alleged to be his employer. Thus, no insurance proceeds were available to satisfy Plaintiff's $400,000 judgment. Insurer had offered $350,000 prior to trial.

The Estate of Roger Wayne Burrough, et al v. Texas Special Homes, Inc.; Wrongful death to mentally retarded individual (Harris County, Texas) – Decedent lived at a supervised residential facility that provided housing to mentally retarded individuals. Decedent suffered from cerebral palsy and had only had limited use of his left arm and hand. Decedent was found unconscious in a bathtub full of extremely hot water. Decedent was taken to hospital where he died of multiple organ failure after 7 days. Multiple organ failure was secondary to burns on 65% of the body coupled with hypoxia. Plaintiffs alleged inadequate supervision and failure to regulate temperature of hot water system in home. Defense contended Plaintiff was entitled to private time in the bathtub pursuant to Plaintiff's constitutional rights and laws pertaining to care of the mentally retarded. Defense also contended that hypoxia was likely the result of esophageal reflux disease as opposed to drowning. The case was tried for two days and settlement was reached. Plaintiff requested confidentiality agreement. Plaintiffs accepted approximately 1/4th of the amount of money that was being demanded when trial started.

Ethyl Corporation v. Daniel Construction Co., 725 S.W.2d 705 ( Tex. 1987). Refinery explosion, severe burns to plaintiff. Defense verdict, appealed to Texas Supreme Court and upheld. Resulted in our Supreme Court adopting the "Express Negligence Rule" used to interpret indemnity agreements.

Cynthia Gail Stuart vs. West Lake Commerce Park Limited, 61^st District Court, Harris County Cause No. 84-58497. Premise liability rape case against apartment complex. Defense verdict for client. Court granted two new trials and the case was successfully tried to defense verdict three times.

Dolly Taylor vs. Gulf States Toyota, 80^th District Court, Harris County, Cause No. 86-0747-8. Wrongful death, auto case. Defense verdict for client.

Frank Anthony vs. A&P Holding Co., Inc., 165^th District Court, Harris County, Cause No. 84-43698. Traumatic amputation of leg. Auto case. Defense verdict for client.

Victoria Nunez vs. Angelo's Fisherman Wharf, 190^th District Court, Harris County, Cause No. 81-34879. Wrongful death. Defense verdict for client.

Salinas vs. King Edward VI Apartments, 280^th District Court, Harris County, Cause No. 95-37137. Premises Liability rape case against apartment owner. Defense verdict for client.

Vicki Dooley vs. Robert Andrew McNeil, 239^th District Court of Brazoria County, Texas, Cause No. 83-G-0425. Wrongful death. Defense verdict for client.

Texas City Refinery vs. Insurance Company of North America, 80^th District Court, Harris County, Cause No. 86-36064. Bad faith. Defense verdict for client.

Mario Valdez vs. Philips Crane Rigging, 281^st District Court, Harris County, Cause No. 81-06131. Traumatic amputation. Defense verdict for client.

Ruby Ann Barger vs. Petrochemical Transport, 149^th District Court of Brazoria County, Texas, Cause No.82-C-0283. Wrongful death involving 18-wheeler. Defense verdict for client.

Hernandez vs. Acme Truck Lines, Inc., 125^th District Court, Harris County, Texas, Cause No. 92-16975. Serious injury case involving 18-wheeler. Tried to defense verdict for client and successfully upheld on appeal.

Maria Guerra Cornejo, et al v. Jetero Properties, Inc., et al, 127^th District Court, Harris County, Texas, Cause No. 87-31402. Premises liability, wrongful death. Defense verdict for client.

Bryant v. Entex, 270^th District Court, Harris County. Defense verdict for gas company. Case arose out of a fire at a residence. Entex had been called out on several occasions prior to the fire. Fire Marshall found the fire to be gas related.

Kittelson v. Flowers, 127^th District Court Harris County. Defense verdict for 18 wheeler driver and company on a death case. Plaintiff was retired minister. Accident was lane swapping in nature.

Morenov. Transporte Gor, 197^th District Court, Cameron County. Death case with serious injury to two minors. Defense verdict for Mexican trucking company operating in the United States.

Thornhill v. Ronnie's I-45 Truck Stop, 221^st District Court, Montgomery County. Fire at hotel resulted in death of two truckers. Represented the Woodlands Volunteer Fire Department. Dismissed after two weeks of trial, after cross-examination of plaintiff's expert. Trial ultimately resulted in largest plaintiff verdict in Montgomery County history against other remaining defendants.

Welker v. Lebus Oil, defense verdict for oil services company. Serious injuries to an elderly couple that struck oil service's truck trying to enter freeway.

Mary Lucas, Individually and a/n/f of James Lucas, Minor Child v. Teodoro Ramirez and Entex d.b.a./a.k.a. Reliant Energy Resource Corp. and Reliant Energy Service Corp.; 269th District Court; Harris County, Texas. The issue was who ran the red light, but Reliant Energy's driver had a long history of traffic violations and was sued for negligent entrustment. Verdict was for Defendants. Defendants also recovered on their counterclaim for damages to their truck.

Adam Lindsay and Patricia Lindsay v. Unity Houston Corporation, et al; 234th District Court; Harris County, Texas. A case involving the invalidated of deeds of trust and deeds based on fraudulent transfer cause of action. The deeds were invalidated.

Archield v. Park Lane II Apartments, et al; In the 61st District Court of Harris County, Texas. Rape case at apartment complex. Very unusual facts and issues at trial. Defense verdict.

Wellner v. Reliant Energy, et al; In the 151st District Court of Harris County Texas. Gas explosion at home, injured homeowner, damaged house. Defense Verdict.

SUBROGATION:

Pennzoil-Quaker State Company v. Genesis Crude Oil, L.P.; 61^st Judicial District Court, Harris County, Texas, Cause No. 2001-01176. $12,750,000.00 settlement on a subrogation/property damage and business interruption claim arising out of contaminated chlorides in pipeline system supplied to Pennzoil refinery, causing rapid corrosion and subsequent Naptha release and fire. Plaintiff received a net distribution totaling $9,075,000.00 after fees, expenses and costs of suit.

Texas Utilities vs. Flour Daniels, 162^nd District Court, Dallas County, Texas. $2,000,000.00 verdict for client on subrogation/property damage case arising out of damages to a turbine during a turn-a-round. After deducting fees, expenses, and costs, Plaintiff received a net distribution of $ 1,494,000.00.

Great Lakes Chemical Corporation vs. Houston Distribution Inc., United States District Court - Southern Division, Civil Action No. H-96-1666. Subrogation case arising out of the largest fire in the City of Houston. Resulted in 100% recovery on a $9,600,000 claim. Plaintiff received a net distribution in the amount of $6,792,060.00 after deducting fees, expenses, and costs of suit.

Valero Energy Corporation vs. Compressor Controls Corporation, 319^th District Court, Nueces County, Texas, Cause No. 95-2286-G; $8,400,000 + settlement on a subrogation/property damage and business interruption claim involving a refinery explosion. After fees, expenses, and costs were deducted, Plaintiff received a distribution totaling $6,200,000.00.

CBS Radio, Infinity Broadcasting, and Lin Television v. Anonymous; $10,000,000 subrogation settlement on a broadcasting tower collapse which caused significant property damage and business interruption. Plaintiffs received a net distribution of $8,080,330.19 after deducting fees, expenses, and costs.

Global Octanes v. Anonymous; $1,225,000 subrogation settlement involving defective 48 inch diameter tilting double disc gate valves used in a isobutane to isobutylene vacuum catalyst conversion process. The failure resulted in property damage to valves, reactor internals, catalyst, catalyst support system, and associated downstream equipment. The loss also caused MTBE production business interruption. Plaintiff received a net distribution of $918,750.00 after deducting fees, expenses, and costs.

INA v. Aberdeen et al , Federal District Court, Houston. $4,000,000 verdict on subrogation case arising out of damages to a brine disposal pipeline. Trial court granted JNOV. Fifth Circuit reversed, reinstating the jury verdict. Judgment in excess of $6,000,000. Plaintiff received a net distribution after fees totaling $5,573,000.00. Underlying case was C.A. No. H-97-131; Insurance Company of North America, et al v. Aberdeen Insurance Services, Inc., et al. Filed in Southern District of Texas. The subrogation case was for a bond carrier contending a contractor was an additional insured on a subcontractors policy for the contractors contractual obligations to the Department of Energy to repair damages to a pipeline caused by the subcontractor. The policy was issued by London and was cancelled prior to the damages. The case involved interpretation of language in contracts, the policy, premium financing agreements and governmental regulations. After an 8 day trial, the jury awarded 3.8 million, but the Court granted JNOV on several of the issues. Case was appealed to the Fifth Circuit which reinstated the verdict. Judgment was entered for approximately $6.4 million in August, 2001. Maitland Bros. Co. v. Aberdeen, et al, 253 F.3d 878 (5th Cir. 2001)

EGP Fuels Company, Enron Ventures Corp. and Enron Clean Fuels Company, a Division of Enron Gas Liquids Inc. v. Ametek, Inc., Ametek-Schutte & Koerting, Hainge & Associates, Inc., Individually and doing Business as Apogee Engineering, Apogee Engineering, Ketema, Inc., Ketema Process Equipment, Schutte & Koerting, Division of Ketema, McCrometer, Inc., and McCrometer, A Division of Ametek. Subrogation settlement involving defective welding of piping within the steam desuperheater as provided by the manufacturer. Metallurgical testing revealed significant ASME code violations and violation of industry standard welding techniques.

City of Austin v. Pauwels Canada, Inc., Preferred Sales Agency, Inc. and Maschinfabrik Reinhausen GmbH. $2,700,000 subrogation settlement involving an explosion and ensuing fire of a 138/69-13.2kV, 132/176/220 MVA Autotransformer, manufactured by Pauwels Canada, Inc. The explosion originated due to a flashover of the dielectric insulating shaft in the B Phase tapchanger manufactured by Reinhausen. Further investigation revealed the dielectric insulating shaft was damaged during testing while on the test floor at Pauwels. The settlement of $2,700,000 was 140% of full damages, i.e. full damages plus pre-judgment interest. After fees, expenses, and costs Plaintiff received 1,891,000 (total paid by insurer on the claim was $1,900,000).

National Freight, Inc. v. City of Houston; 55th Judicial District Court; Harris County, Texas. A subrogation case following a trucking accident. Vigorously defended by the city of Houston. Result: Plaintiff verdict.

APPELLATE WORK

Thornhill v. Ronnie's I-45 Truck Stop, Inc., 944 S.W.2d 780 (Tex. App.—Beaumont 1997, writ dism'd by agr.) (No. 09-94-236-C)

Ethyl Corp. v. Daniel Const. Co., 725 S.W. 2d 705 (Tex. 1987) (No. C-5621)

Smith v. Smith, 720 S.W.2d 586 (Tex. App.—Houston [1st Dist.] 1986, no writ) (No. 01-85-0989-CV)

Daniel Construction Co. v. Ethyl Corp., 714 S.W.2d 51 (Tex. App.—Houston [14th Dist.] 1986, writ granted) (No. A-14-85-00802-CV)

Smith v. White, 695 S.W.2d 295 (Tex. App.—Houston [1st Dist.] 1985, no writ) (No. 01-85-0529-CV)

Hawthrone v. La-Man Constructors, Inc., 672 S.W.2d 255 (Tex. App.—Beaumont 1984, no writ) (No. 09-83-140-CV)

Hernandez v. Acme Truck Lines Inc., No. 07-96-0348-CV, (Tex. App.—Amarillo March 11, 1998, no pet.) (not designated for publication) 1998 WL 105955. Upheld defense verdict in favor of truck company on serious injury case.

Southwell v. Planet Insurance Co., No. 01-96-0232-CV (Tex. App.—Houston [1st Dist.] April 04, 1996, no writ) (not designated for publication) 1996 WL 155274. Upheld defense verdict in worker's compensation case.

Martinez v. H.B. Zachry Co., 976 S.W.2d 746 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). Upheld granting of summary judgment in gross negligence death case.

Coastal Conduit and Ditching, Inc. v. NorAm Energy Corp., 29 S.W.3d 382 (Tex. App Houston [14th District] 2000). Appellate Court upheld granting of summary judgment in favor of the gas company for failure to properly locate lines at the request of a contractor. It involved over 4,000 separate incidents and nine causes of action.

Ayala v. Bartolome, 940 S.W.2d 727 (Tex. Ap. Eastland 1997) appeal of summary judgment on death case arising out of consumption of oysters contaminated by vibrio vulnificus.

Further Representative Defense Cases:

Russell Hudeck v. Memorial Hermann Hospital System, Cause No. 2003-29849 (127th District Court, Harris County, Texas)
Michael & Sharon Gordon v. Little Rock Assemblies of God Church, South Texas District Counsel
Assemblies of God, et al, Cause No. E-162,269 (172nd District Court, Jefferson County, Texas)
NMTC Corp. d/b/a MATCO Tools vs. Conarroe, Cause No. 42,567 (88th District Court, Hardin County, Texas)
Saraw Partnership, et al vs. The United States of America, et al, 67 F.3d 567 (5th Cir. 1995)
Budget Properties, LP vs. Beaumont Metropolitan Properties, Inc., Cause No. B-166151 (60th District Court, Jefferson County, Texas)
In the Estate of Earl Yarborough, Deceased, Cause No. 36,759 (356th District Court, Hardin County, Texas)
Patrick Butcher vs. Diane Butcher, Cause No. F-136,121 (279th District Court, Jefferson County, Texas)