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Update on Recent Insurance Law Decisions

There have been a number of recent court decisions which are of significance to the practice of insurance law. These include cases dealing with the duties to defend and to indemnify under a CGL policy, the Texas Tort Claims Act, and numerous healthcare claims, inter alia.

Always, each case involves different facts and law, and accordingly the following must be taken for general information purposes only, rather than for action upon any specific fact situation.

Insurance – Commercial General Liability – The Separate Duties to Defend and to Indemnify:

 In The Burlington Northern and Santa Fe Railway Company v. National Union Fire Insurance Company of Pittsburg, PA, 10-0064 (Tex. 2011), the Texas Supreme Court reversed a summary judgment in favor of the insurer because the Court of Appeals did not consider evidence extrinsic to the pleadings and insurance policy in determining whether the insurer owed a duty to indemnify. The Court of Appeals had determined that the insurer did not have a duty to defend under our “eight-corners rule” which requires a comparison of the allegations of the four corners of the petition with the four corners of the policy to see if a duty to defend arises, and had also held that there was no duty on the part of the insurer to indemnify the insured. 

The Supreme Court assumed, without deciding, that the Court of Appeals had correctly decided that the insurer owed no duty to defend, but the Supreme Court went further and held that the Court of Appeals nevertheless erred by not considering all the evidence presented by the parties when it determined the question of the insurer’s duty to indemnify the insured.  In other words, the gist of the Supreme Court’s decision is that unless the pleadings show that the policy’s contractual provisions and “other extrinsic evidence” cannot possibly bring the plaintiff’s claim within the policy’s coverage, then a court cannot find “no duty to indemnify” on the part of the insurer until that court has at some time in the future considered “all the evidence presented by the parties,” including all evidence extrinsic to the policy and pleadings which the parties might present.

Healthcare Liability Claims – Limitations – “Responsible Third Parties”:

 In Molinet vs. Kimbrell, M.D., 09-0544 (Tex. 2011) the Supreme Court dealt with a healthcare liability claim where the plaintiff sued one doctor, but did not sue two other doctors until after the additional two doctors had been designated as “responsible third parties” under Texas’ Proportionate Responsibility Act, which designation did not occur until after the two year statute of limitations of the Texas Medical Liability Act had expired. Although Texas’ Proportionate Responsibility Act allows a sixty day extension of limitations to bring suit against additional defendants designated as “responsible third parties,” the Texas Medical Liability Act has an “absolute” two year limitation period. Since the Medical Liability Act provides (i) that its two year limitation period applies “notwithstanding any other law” and (ii) that the Medical Liability Act applies in the event any of its provisions conflict with any other statute, the Supreme Court analyzed both statutes, held that the two year limitations of the Texas Medical Liability Act controlled, and that the plaintiff’s claims against the two new “responsible third party” doctor-defendants were barred.

Healthcare Liability Claims – Failure to Serve Statutorily Required Medical Authorization with 60 Day Notice of Claim:

 In Carreras, M.D., v. Marroquin, 09-0857 (Tex. 2011) a plaintiff gave the statutorily required Notice of Claim two days before the two year statute of limitations expired under Texas’ Medical Liability Act, but failed to accompany the Notice of Claim with the likewise statutorily required “Authorization Form for Release of Protected Health Information.” Noting that said statute provides in some situations for a sixty day abatement from the date when a medical authorization is in fact received, the Supreme Court analyzed the statute and its history, held that the requirement to provide the medical authorization form was mandatory, and ruled that a plaintiff’s failure to do so does not stop the running of the two year statute of limitations, thereby barring plaintiff’s claim.

Healthcare Liability Claims – Defective Equipment:

 In another healthcare case, Turtle Healthcare Group v. Linan, 09-0613 (Tex. 2011), the Supreme Court reiterated one of its recent decisions and again held that claims based upon medical equipment can not be brought separately as claims both subject to the Texas Medical Liability Act and as claims not subject thereto. In other words all such claims involving equipment utilized in medical care must be brought under the Texas Medical Liability Act, and if the requirements of that statute are not complied with, such claims must be dismissed. In this case the healthcare provider was negligent in delivering a defective ventilator, battery and battery box. The Court held that the healthcare plaintiffs could not divide their claims relating to “defective batteries” from their “non-battery” claims, and that all such claims were subject to the Texas Medical Liability Act.

Damages – Illegal Immigrant Status – Wrongful Death:

 In Republic Waste Services, LTD v. Martinez, 01-09-00236-CV (Tex. App. [1st District – Houston] 2011, no writ), our Houston Court of Appeals discussed the Trial Court’s exclusion from evidence of the  illegal immigrant status of plaintiff’s decedent, even though the deceased illegal immigrant’s status was arguably relevant to the amount of recovery for lost future earnings based upon U.S. wages, as opposed to Guatemalan wages, and held that the Trial Court’s exclusion of the evidence of the deceased illegal immigrant’s status fell within the Trial Court’s discretion and was not an abuse thereof, because the relevancy of such evidence was outweighed by the risk of substantial prejudice which would have been caused by the admission thereof.

Texas Tort Claims Act – Suits Against Government- Employees Individually:

 In Franka v. Velasquez, 07-0131 (Tex. 2011), the Supreme Court dealt with Section 101.106(f), Texas Tort Claims Act, which provides that a suit against a government employee acting within the general scope of his employment must be dismissed “if it could have been brought under this chapter against the governmental unit.” Noting that the Texas Tort Claims Act is not limited to encompass only tort claims for which the Act waives immunity against the State, the Supreme Court held that where a tort action is brought against an individual government employee in his individual capacity, such a claim is brought “under” the Texas Tort Claims Act even if the government has not waived its immunity for such actions, and such lawsuits against government employees in their individual capacities must be dismissed.

 By H. Norman Kinzy

Insurance Defense

Update on Recent Insurance Law Decisions

There have been a number of recent court decisions which are of significance to the practice of insurance law. These include cases dealing with the CGL contractual liability exclusion, products liability, health care and asbestos claims, inter alia.                           

Always, each case involves different facts and law, and accordingly the following must be taken for general information purposes only, rather than for action upon any specific fact situation. 

Insurance – Commercial General Liability – Contractual Liability Exclusion:

A substituted opinion in Gilbert Texas Construction, LP v. Underwriters at Lloyds, London, 08-0246 (Tex. 2010) was handed down by the Texas Supreme Court on December 17, 2010.  The court reiterated its earlier decision that under the ISO form CGL policy exclusion for contractual liability, coverage is excluded for all liabilities assumed by contract except for two situations: 

  1. where an exception to the exclusion brings a claim back into coverage, e.g., certain policy-defined contracts including an “insured contract,” i.e., an indemnity agreement by which the insured assumes another’s tort liability; and
  2. where the insured would have liability in the absence of the contract or agreement.  

            The Supreme Court also ruled that the insured could not recover a settlement payment under estoppel theory against the insurer.  The court explained that even if an insurer assumes an insured’s defense when no coverage for the risk exists, the policy is not expanded to cover the risk simply because the insurer assumes control of the defense of the lawsuit, unless the insurer’s actions prejudice the insured.  Finding that no prejudice existed in this case, the court held that the insurer was not estopped to deny coverage. 

Insurance – Auto and CGL – “Insured Contracts” and the “Subsequent to Execution” Requirement:

            In Mid-Continent Casualty Company v. Global Enercom Management, Inc. 09-0744 (Tex. 2010), the Supreme Court examined provisions in an auto policy and in a commercial general liability policy which extended the insured’s coverage to “insured contracts” so long as the liability occurred “subsequent to the execution of the contract or agreement.”  In this particular case, although one party had signed the contract before the accident occurred, the other party did not sign the contract until after the accident.  The insurer claimed that the accident occurred before the “execution” of the contract, but the Supreme Court held that formal signing of the contract was not required, and explained that an unsigned agreement all of the terms of which are embodied in a writing, unconditionally assented to by both parties, is a written contract.  Thus, the court recognized that the term “execute” as used in an insurance policy means “to finish” or to “make complete,” and does not require formal signing of an “insured contract” by the parties prior to the accident for which coverage is sought.  

Products Liability – Manufacturer’s Statutory Duty to Indemnify:

            In Fresh Coat, Inc. v. K-2, Inc., 08-0592 (Tex. 2010), the Supreme Court examined a manufacturer’s statutory duty to indemnify a subcontractor/installer which installed a stucco-type exterior insulation and finishing system commonly known as “EIFS.”  The court found that the synthetic stucco was a “product” and that the contractor which installed it on a house was a “seller,” thereby making applicable Texas’ statutory duty of a manufacturer to indemnify a seller for product defects.  The court noted that the statutory definition of “seller” does not exclude a seller who is also a service provider, nor does it require the seller to only sell the product.  Significantly, the court also held that the manufacturer’s statutory obligation to indemnify the contractor covered a settlement payment made by the contractor/installer to the homebuilder even where the contractor/installer may have been independently obligated by a contract to indemnify the homebuilder, because the language of the statute provides that the manufacturer’s duty to indemnify “is in addition to any duty to indemnify established by law, contract, or otherwise.”

Products Liability Federal Preemption – Federal Motor Vehicle Safety Standards:

            In MCI Sales and Service, Inc. v. Hinton, 09-0048 (Tex. 2010), the Texas Supreme Court dealt with whether or not a jury verdict against a manufacturer of a motor coach was pre-empted by federal safety regulations because the jury held the manufacturer to a higher standard than that required by the National Traffic and Motor Vehicle Safety Act.  The court noted that there is a presumption against preemption, and also noted the absence of any clear and manifest purpose by Congress to preempt the issues (1) of the need to install passenger seatbelts and (2) the selection of any one certain type of window glazing materials.  Accordingly, the Supreme Court held that federal law did not preclude a jury from finding against a manufacturer who failed to install seatbelts in its motor coaches (which were not otherwise required by law) and for choosing one form of window glazing material (as opposed to another approved type).  Implicit in the court’s holding was its determination that federal motor vehicle standards impose only minimum standards and that the jury’s finding did not present an obstacle to the accomplishment and execution of federal policy and was thus not preempted thereby. 

Healthcare Liability Claims v. Ordinary Negligence Claims:

            In Yamada v. Friend, 08-0262 (Tex. 2010), the court held that where a plaintiff’s lawsuit is based upon one set of underlying facts which support claims against a healthcare provider under both the Texas Medical Liability Act and ostensibly also under ordinary negligence rules, such claims may not escape the requirements of the Texas Medical Liability Act, simply by recasting the claims in terms of ordinary negligence.  Hence the plaintiff’s failure to provide a timely expert report as required by the Texas Medical Liability Act required dismissal of all of the claims against the physician, including those claims plead as ordinary negligence claims.  

Healthcare Liability Claims v. Defective or Unsafe Equipment Claims:

            In another substituted opinion, the Supreme Court withdrew its former opinion in Marks v. St. Luke’s Episcopal Hospital, 07-0783 (Tex. 2010), and held that even claims arising from “an unsafe condition created by an item of furniture” such as a defective or improperly assembled hospital bed, come within the ambit of Texas Medical Liability Act, and are thus health care claims which require statutory expert opinions in order to proceed under Texas law.  This decision recognizes that “medical equipment” specific to a particular patient’s care or treatment is an integral and inseparable part of the health care services provided.  When the unsafe or defective condition of that equipment injures the patient, the gravamen of the resulting cause of action is a health care liability claim.  Since the Plaintiff had not timely filed the statutorily required expert report, the case was dismissed. 

Healthcare Liability Claims – Medical Causation:

            In Jelinek v. Casas, 08-1066 (Tex. 2010), the Supreme Court dealt with the sufficiency of circumstantial evidence to support causation in a health care claim.  Our court held that when circumstantial evidence of medical causation is consistent with several possible medical conclusions, only one of which establishes that the defendant’s negligence caused the plaintiff’s injury, an expert witness must explain why, based on the particular facts of the case, such a conclusion of causation is medically superior to the others.  If the expert fails to give any reason beyond his unsupported opinion, the expert’s testimony is legally insufficient evidence of causation. 

Workers Compensation – Course and Scope of Employment While Traveling Home from Work:

            In Leordeanu v. American Protection Insurance Company, 09-0330 (Tex. 2010), the Supreme Court dealt with the issue of whether or not an employee, while traveling home from work may be in the course and scope of employment for injuries received during transit.  Generally, traveling home from work is not deemed to be in the “course and scope of employment” for compensation in Texas, but the court held that where an employee is traveling from one workplace to another workplace, which happens to be on her way home, the employee may be found “in the course and scope of employment” and entitled to worker’s compensation benefits, despite the fact that her ultimate destination was her home. 

TexasTort Claims Act – Timely Filed Lawsuit May Constitute Required Notice:

            In Colquitt v. Brazoria County, 09-0369 (Tex. 2010), the Supreme Court examined the six month notice requirement under the Texas Tort Claims Act, and held that the statutory notice requirement was satisfied by the filing of a lawsuit where the lawsuit was served on the government unit within six months after the accident, and contained all the notice information required by the Texas Tort Claims Act.  Accordingly, since the Texas Tort Claims Act does not require that separate “formal” notice be given before filing suit, if a lawsuit containing all the required notice information is served within the statutory six month period, the suit papers themselves will constitute sufficient notice.  

Asbestos Constitutional Law – Prohibition Against Retroactive Laws:

            In Robinson v. Crown Cork & Seal Company, Inc., 06-0714 (Tex. 2010), the Supreme Court dealt with whether a statute which absolved one specific corporation from its successor liability for personal injury claims arising from asbestos exposure violated the prohibition against retroactive laws contained in the Texas Constitution.  In this mesothelioma case, the legislature passed a statute absolving Crown Cork of any liability to which it succeeded by virtue of its merger with a manufacturer of asbestos products.  Despite the fact that Crown Cork had never itself engaged in the manufacture or sale of asbestos products, the Texas Supreme Court held that the statute violated the Texas Constitution’s prohibition against the passage of retroactive laws.  The Supreme Court held that the statute in question significantly impacted the substantial interest which the plaintiffs had in a well recognized common law cause of action, and that the retroactive statute was accordingly impermissible and void.

By: H. Norman Kinzy.

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Dallas Morning News names SettlePou as Top 100 Places to Work

For the second year in a row, SettlePou has been named by The Dallas Morning New’s as one of the Top 100 Places to Work in the metroplex. Companies recognized in the Top 100 must excel in six areas: direction, execution, career, managers, conditions, and pay and benefits. The selection process includes getting feedback from employees about each of these areas through a survey process, and over 1700 companies participated in 2010. The Dallas Morning News reports that after these surveys are completed, responses are compiled, weighted, and ranked by their research partner, Workplace Dynamics. SettlePou is among only a handful of law firms to be granted with this recognition.