Diamond Offshore Services Ltd. v. Williams—Courts Must View Video Evidence Before Ruling on Issues of Admissibility

Introduction

In Diamond Offshore Services Ltd. v. Williams, an employee sued his employer for injuries arising from a workplace accident.[1]  The employee ultimately prevailed and the jury awarded “$10 million in damages, including almost $4 million for pain and suffering.”[2]  The issue before the Texas Supreme Court was whether the Trial Court erred in excluding video surveillance of Plaintiff conducted by Defendant without first viewing the video.[3]  Plaintiff argued the video should be excluded under Texas Rule of Evidence 403, as the video was “unfairly prejudicial and misleading.”[4]  Without ever providing the reasoning behind her decision, the Trial Court Judge excluded the video from use at trial.[5] Read More ›

Reservation of Rights Letter and the Insured

Introduction: Reservation of Rights Letter

A reservation of rights is a means by which an insurer agrees to defend an insured against a claim or suit while simultaneously retaining its ability to evaluate, or even disclaim, coverage for some or all of the claims alleged by the plaintiff.[1] Read More ›

Permissive Interlocutory Appeals

Introduction & Overview

As a general rule, Texas appellate courts may only hear a case after judgment is finalized at the trial level.[1]  Consequently, interlocutory orders are typically not immediately appealable.[2]  This prevents a party in trial from delaying the proceeding to seek an appellate court’s opinion.  However, § 51.014 of the Texas Civil Practice and Remedies Code enumerates different types of orders which a party may appeal prior to the final judgment at trial.[3] Read More ›

Graves Amendment

The Graves Amendment, found in the Federal Transportation Equity Act of 2005, created immunity for vehicle lessors as to claims of vicarious liability arising out of the lessee's conduct during the rental period.

The relevant subsections of the Graves Amendment read as follows: Read More ›

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 ›

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