United Scaffolding, Inc. v. Levine: Expanding Control for the Purpose of Premises Liability Claims

Introduction

When a plaintiff is injured on property owned by another two possible claims may arise—general negligence and premises liability.  A crucial component of premises liability claims, absent in general negligence claims, is control.  Owners of industrial workplaces often contract with multiple contractors to perform various operations on the premises.  When an employee of the owner of the property is injured by a defective condition created by a contractor, courts must determine whether the contractor was in control of the premises.  For a defendant to owe a duty to a plaintiff under a premises liability claim, the defendant must have been in control of the premises.[1]  If the defendant was not in control of the premises, there is consequently no responsibility for dangerous conditions existing on the property.[2] Read More ›

Potential Barriers and Limitations to Successful Cyber Subrogation

In a previous blog, we discussed “What is Cyber Subrogation?”  This week's blog will focus on potential barriers and limitations to successful cyber subrogation.  While this list is non-exhaustive, it gives an overview to the various barriers and limitations to successful cyber subrogation.  These barriers include (1) contractual waivers and limitations; (2) a lack of clear applicable standards; and (3) the first individuals to investigate the breach or attack are likely the later target defendants, i.e., the fox guarding the henhouse analogy. Read More ›

What is Cyber Subrogation?

Cyberattacks have become increasingly frequent and costly.  In 2015 alone, an estimated 300 million records were leaked and over $1 billion stolen.  By 2017, this number has only risen, with global companies becoming frequent targets.  This year, a specific malware cyber-attack orchestrated and launched on Tuesday, June 27, 2017 used a “NotPetya” attack.  The malware is called NotPetya because it masquerades as the Petya ransomware.  “This [malware] is definitely not designed to make money.  This is designed to spread fast and cause damage, with a plausibly deniable cover of ransomware”.[1] Read More ›

Increasing Scrutiny of Boilerplate Objections

Introduction

The Eastern District Court of Texas joins a growing number of courts criticizing the use of boilerplate language in objections.  Specifically, the commonly used “subject to” objections leave uncertain as to what, if any, information has been withheld.[1]  When responding to discovery, it is common practice to provide boilerplate objections to each request and include “subject to” language in the objection.  This language is “manifestly confusing (at best) and misleading (at worst) and has no basis at all in the Federal Rules of Civil Procedure.”[2]  The use of “subject to” objections has created an ambiguity which is prohibited under Rule 34 and may result in courts overruling objections.[3] Read More ›

Texas Civil Practice and Remedies Code § 82.008: A Shield for Manufacturers in Design-Defect Causes of Action?

Introduction

Enacted in 2003 as part of a legislative effort to shield manufacturers from liability in cases where they complied with all applicable federal safety standards, Section 82.008 of the Texas Civil Practice & Remedies Code ("Section 82.008") provides a rebuttable presumption for manufacturers who are defendants in a products liability design-defect suit.[1] Read More ›

Texas Seeks to Deter Insurance Fraud in the Wake of Severe Weather Events

Introduction: A Model for Insurance Fraud

In recent years, numerous public insurance adjusters, contractors illegally acting as public adjusters and attorneys have used severe weather events, like the 2012 Hidalgo County hailstorms, to manipulate a profit from the subsequent flood of insurance claims.  A typical model used to maximize profit on fraudulent insurance claims starts with canvassers going door-to-door convincing homeowners they are entitled to more compensation than their insurance company provided.  Read More ›

Flood Lawsuits Against Government Agencies

Introduction

Historic flooding recently occurred as a result of Hurricane Harvey.  This flood reached levels never before recorded, even eclipsing the record recently established during the Tax-Day Flood of 2016.  As a result of this most recent flood, the Army Corps of Engineers and local officials decided to release water from the Addicks and Barker reservoirs.  This release of water by a governmental agency presents a major legal hurdle for liability: governmental immunity. Read More ›

Houston Flooding Relief Assistance and Other Useful Info

After one of the worst natural disasters to ever hit the United States, it is time to recover and rebuild.  Below are several helpful maps of flooding areas and shelters, and processes for filing an insurance claim or FEMA assistance. Read More ›

Texas Supreme Court Analysis of USAA v. Menchaca

Background

USAA Texas Lloyds Co. v. Menchaca, No. 14-0721, on petition for review from the Court of Appeals for the Thirteenth District of Texas, was argued on October 11, 2016 and decided on April 7, 2017.[1]

After Hurricane Ike struck in September 2008, Gail Menchaca contacted her homeowner’s insurance company, USAA Texas Lloyds (“USAA”), to report damage to her home.  Upon investigation, USAA’s adjuster found only minimal damage.  USAA determined its policy covered some of the damage, but declined to pay Menchaca any benefits because the total estimated repair costs did not exceed the policy’s deductible. About five months later, at Menchaca’s request, USAA sent another adjuster to re-inspect the property.  This adjuster confirmed the first adjuster’s findings, and USAA again refused to pay any policy benefits. Read More ›

The Decline of Res Ipsa Loquitur Actions in Texas

Introduction

The doctrine of res ipsa loquitur is derived from the Latin phrase “the thing speaks for itself.”  Res ipsa loquitur is a mechanism by which a plaintiff can establish a defendant's negligence, absent sufficient evidence to prove such negligence.[1] However, recent decisions indicate Texas courts are placing a heavier burden on plaintiffs attempting to prove negligence through res ipsa loquitur. Consequently, Texas courts are hesitant to infer a defendant's negligence merely on a plaintiff's assertion of res ipsa loquitur. Read More ›

News: