Showing 17 posts in Damages.

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 ›

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 ›

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 ›

Texas House and Senate Pass Limits on Weather Claim Lawsuits

On Wednesday, May 17, the Texas Senate approved House Bill 1774.  This bill will undoubtedly be signed by Governor Greg Abbott.  He is a very conservative Republican. Governor Abbott called lawsuits against insurers following hailstorms “the newest form of lawsuit abuse.” He also said he wanted to see legislation on his desk “that limits abusive hailstorm litigation.”  Well, now he has that very bill to sign into law. Read More ›

Nonmanufacturing Sellers Liability When the Manufacturer is Beyond Jurisdiction of the Court

Nonmanufacturing sellers are not always exempt from liability of harm caused by defective products.

Generally, in Texas, a nonmanufacturing seller of a defective product is not liable for harm caused by that product.[1] However, there is a provision that permits a plaintiff to proceed against a nonmanufacturing seller if the product's manufacturer is “not subject to the jurisdiction of the court.”[2] Moreover, if “after service on a nonresident manufacturer... the manufacturer fails to answer or otherwise make an appearance in the time required by law, it is conclusively presumed... that the manufacturer is not subject to the jurisdiction of the court unless the seller is able to secure personal jurisdiction over the manufacturer in the action.”[3] Read More ›

The Texas Range Protection Act and Expert Report Requirements

Sport shooting ranges are not immune from civil liability. Plaintiffs may initiate suit against a sport shooting range for causes of action such as: 1) breach of contract; 2) harm to private property caused by the discharge of firearms on the range; 3) personal injury or death caused by the discharge of a firearm on the range; and 4) injunctive relief to enforce a valid ordinance, statute, or regulation.[1] In a suit against a shooting range, an owner or operator of a shooting range, or the owner of real property where a shooting range is located, plaintiffs must file an expert report with their pleadings.[2] Such expert reports are required because the expert's testimony provides a basis for the trial court to conclude plaintiff's claims have merit and “shall” be filed not later than the 90th day after the original petition is submitted.[3] If the report is not timely filed, the court must enter an order awarding attorney's fees and court costs incurred by the defendant and dismiss the claim with prejudice.[4] The award and dismissal are mandatory, not discretionary. Read More ›

The Majority, Intermediate, and Minority Views of the Economic Loss Doctrine

The Economic Loss Doctrine (“ELD”) has been adopted by a majority of states and jurisdictions. The ELD consists of three different views: 1) the traditional/majority (Texas); 2) intermediate (California); and 3) minority (Colorado). With regard to a product which damages itself and only itself, each rule has a different way of assigning liability and sometimes one view may rule a different way than another. Read More ›

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