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 ›

House Bill 62: Texting Ban and the Standard It Sets

Introduction

On September 1, 2017, Texas House Bill 62 (“HB 62”) will go into effect, prohibiting reading, writing or sending electronic messages while operating a motor vehicle.[1]  In a civil action following a motor vehicle accident, if a plaintiff can prove a driver violated this law, they will no longer be tasked with establishing a duty and breach, as required in a negligence cause of action.  Instead, under negligence per se, plaintiffs are relieved of proving a reasonable person would have acted differently.  HB 62 sets the standard of care and plaintiffs must simply prove the violation was the proximate cause of the resulting damages. Read More ›

Certificate of Merit Requirements in Texas

Introduction

Under Texas law, in actions for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff must file a certificate of merit with the original petition.[1]  The purpose of the statute is to deter and quickly end nonmeritorious claims.[2]  The actions creating the claim do not need to “constitute the provision of professional services,” instead, “the acts creating the claim must ‘aris[e] out of the provision of professional services.”[3]  If a plaintiff's cause of action involves a professional's education, training, and experience in applying special knowledge or judgment, it “arises out of the provision of professional services.”[4]  Failure to file the affidavit with the complaint will result in dismissal with or without prejudice.[5]  Although a trial court is required to dismiss a complaint if the plaintiff does not file a certificate of merit, it may use its discretion to determine whether to dismiss with or without prejudice.[6] Read More ›

Smith, Hines, and Archer: The Evolution of the Motion to Transfer Venue for Convenience from Galveston to Houston under 28 U.S.C. § 1440(a)

Introduction

Motions to transfer venue for convenience under Federal Rule § 1404(a) are historically difficult to obtain because of the great amount of discretion judges may exercise in ruling on the motion. Not only are motions to transfer venue for convenience often difficult to obtain, the outcome is almost impossible to predict.  Especially when dealing with intra-district transfers, Courts within the Southern District of Texas have been historically hesitant to grant such transfers. Read More ›

DTPA Claims: Upstream Liability and Subrogee Standing

Introduction

While the legislative purpose underpinning the Texas Deceptive Trade Practices Act (DTPA) urges flexible interpretation and application, the DTPA was neither intended to impose liability on upstream parties nor provide a separate cause of action for assignees and subrogees seeking to recover from large consumer businesses.  The Texas Supreme Court has mandated a liberal construction of the DTPA[1] to “protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.”[2]  However, the Legislature intended there to be limits on the DTPA, including its scope of liability and standing requirements.[3] Read More ›

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