- Certificate of Merit Statute: Constitutional or Unconstitutional?
- Increased Insurance Premiums: Are They Recoverable from Third-Party Tortfeasors?
- Texas Supreme Court Clarified the Applicable Standard for Proving Attorney’s Fees
- The Oregon Rule and Presumption of Fault
- Drivers’ Liability: The Unavoidable Accident Defense
- Fraudulent Concealment: When does the statute of limitations begin to run for a breach of contract claim, if fraudulent concealment is asserted?
- Application of the Discovery Rule to Breach of Contract Claims
- Proper Procedure to Obtain Entry on Real Property of a Nonparty for Purposes of Inspection and Photographing
- Designating Unknown Responsible Third Parties: How to Properly Designate an Unknown Driver
- Premises Liability: Do Open and Obvious Naturally Occurring Conditions Pose an Unreasonable Risk of Harm?
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.
There are parts of this new law (once signed by the governor) that will be very helpful in curtailing the hail and wind storm abusive lawsuits filed by plaintiff lawyers.
1) The bill covers claims from hailstorms, tornadoes, hurricanes, thunderstorms, earthquakes, floods, wildfires and other natural disasters.
2) The bill stipulates limits on attorney fees:
a) In such cases to the lesser of "reasonable and necessary" costs, backed by the evidence presented at trial "and determined to have been incurred by the claimant", or
b) a percentage of the fees based on the claimed amount actually awarded;
i) For awards of 80% or more of the amount claimed, the court is required to award full attorney fees.
ii) For awards ranging from 20% to 80% of the claim, the legal fees would be reduced by the same proportion.
iii) For awards that turn out to be less than 20% percent of the claim, no attorney fees would be awarded.
iv) Attorney fees would also be barred when claimants fail to provide the 61 day pre-lawsuit notice in accordance with the rules (see item 3 below).
3) The bill requires an insured to give the insurer at least 61 days' notice of an intent to sue in most cases allowing time for an insurer to address outstanding issues to avoid legal entanglement.
4) The notice must state:
a) the actions giving rise to the legal claim;
b) the amount of the covered damage, and;
c) the dollar cost already incurred for attorney fees.
d) Items a, b and c above could be used as evidence in subsequent civil proceedings or arbitration.
5) The bill forces the claimant to permit an insurer, if requested, access:
a) to inspect and record the damage, and;
b) to evaluate the property.
6) The bill also permits insurers to accept responsibility for claims, removing any cause of action against insurance agents who may be involved.
7) The bill exempts actions against the Texas Windstorm Insurance Association.
Time will tell, but this bill is a positive improvement for insurers.