Showing 52 posts in Legal Issues.

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 ›

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 ›

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 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 ›

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 ›

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