RECENT INSURANCE LAW DECISIONS FROM HOUSTON COURTS OF APPEALS Sheppard v. Travelers Lloyds of Texas Ins. Co. (Tex.App.- Houston [14th Dist.] Oct. 15, 2009) (Boyce) (summary judgment for insurer on breach of contract and violations of the Texas Insurance Code claims affirmed)(breach of contract and statutory insurance code claim denial cause of action time-barred, accrual date, contractual shortening of limitations period) AFFIRMED: Opinion by Justice Boyce Before Justices Anderson and Boyce 14-08-00248-CV Anthony Sheppard v. Travelers Lloyds of Texas Insurance Company Appeal from 125th District Court of Harris County Trial Court Judge: John A. Coselli Leigh v. Kuenstler (Tex.App.- Houston [14th Dist.] Oct. 1, 2009)(Guzman) (DTPA, dispute about allegedly inadequate UIM insurance coverage; insurance agent's duty to procure insurance; judgment for defendant affirmed) AFFIRMED: Opinion by Justice Eva Guzman Before Justices Anderson, Guzman and Boyce 14-08-00245-CV Theresa Leigh v. Richard Kuenstler, Jr. Appeal from 55th District Court of Harris County Trial Court Judge: Jeff Shadwick AccuFleet, Inc.v. Harford Fire Ins. Co. (Tex.App.- Houston [1st Dist.] Sep. 17, 2009)(Hanks) (insurance coverage dispute) AFFIRM TC JUDGMENT IN PART, REVERSE TRIAL COURT JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Hanks Before Justices Keyes, Hanks and Bland 01-08-00684-CV AccuFleet, Inc. v. Harford Fire Insurance Company Appeal from 55th District Court of Harris County Trial Court Judge: Hon. Jeffrey A. Shadwick Failure to Timely Pay Premium for Renewal Entails Grave Consequences - Denial of Claim Affirmed Harland v. Progressive County Mutual Ins. Co. (Tex.App.- Houston [14th Dist.] Apr. 23, 2009) (Anderson) (insurance coverage, failure to pay policy premium to renew coverage) AFFIRMED: Opinion by Justice John Anderson Before Chief Justice Hedges, Justices Anderson and Seymore 14-07-00955-CV Charles Hartland v. Progressive County Mutual Insurance Company Appeal from 333rd District Court of Harris County Trial Court Judge: JOSEPH J. HALBACH Appellant filed suit against appellee, Progressive County Mutual Insurance Company, after the denial of an auto-insurance claim for a single-car accident. The jury found appellant did not mail the premium to renew the policy until after the policy had expired; therefore, appellant did not have insurance when the accident occurred. On appeal, appellant contends the parties formed a contract under the terms of the original renewal policy when appellee accepted his premium payment, and therefore, the policy covered the accident. In addition, appellant argues appellee violated the Texas Administrative Code when it denied his claim. We affirm. Maryland Casualty Co. v. American Home Assurance Co (Tex.App.- Houston [1st Dist.] Jan. 29, 2009)(Subst. opinion by Jennings) (insurance law, subrogation, additional insured)(Maryland established that it had been prejudiced as a matter of law by NES's policy violations)(Mid-Continent Insurance Co. v. Liberty Mutual Insurance Co., cited, 236 S.W.3d 765 (Tex. 2007). REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Jennings Before Justices Taft, Jennings and Bland 01-07-00711-CV Maryland Casualty Company v. American Home Assurance Company and Illinois National Insurance Company, as Subrogees of National Equipment Services, Inc. Appeal from 113th District Court of Harris County Trial Court Judge: Hon. Patricia Hancock Maryland Casualty Co. v. American Home Assurance Co. (Tex.App.- Houston [1st Dist.] Oct. 9, 2008)(Jennings) (insurance law, indemnity, additional insured, conditions precedent, prejudice) REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Jennings Before Justices Taft, Jennings and Bland 01-07-00711-CV Maryland Casualty Company v. American Home Assurance Company and Illinois National Insurance Company, as Subrogees of National Equipment Services, Inc. Appeal from 113th District Court of Harris County Trial Court Judge: Hon. Patricia Hancock Wellington Underwriting Agencies Limited v. The Houston Exploration Co. (Tex.App.- Houston [1st Dist.] July 17, 2008)(Hedges) (ILA interlocutory appeal certified, insurance coverage, oil production offshore) REVERSED AND REMANDED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Fowler and Boyce 14-07-00970-CV Wellington Underwriting Agencies Limited, Et Al v. The Houston Exploration Company and Offshore Specialty Fabricators, Inc. Appeal from 234th District Court of Harris County Trial Court Judge: Reese Rondon Spring Creek Village Apartments Phase V, Inc. v. General Star Indemnity Co. (Tex.App.- Houston [14th Dist.] June 24, 2008) (Guzman) (insurance law, excess insurer coverage, third appeal) AFFIRMED: Opinion by Justice Guzman Before Price, Justices Brock Yates and Guzman 14-06-00978-CV Spring Creek Village Apartments Phase V, Inc. v. General Star Indemnity Company Appeal from 334th District Court of Harris County Trial Court Judge: Sharon McCally Environmental Procedures, Inc. v. Guidry (Tex.App.- Houston [14th Dist.] Apr. 17, 2008)(Frost) (insurance law, broker, nondisclosure order void) AFFIRMED IN PART DISMISSED IN PART: Opinion by Justice Frost Before Justices Frost, Seymore and Guzman 14-05-01090-CV Environmental Procedures, Inc. and Advanced Wirecloth, Inc. v. George E. Guidry, Dwight W. Andrus, III, Dwight W. Andrus Insurance, Inc., and Lexington Insurance Co. Appeal from 164th District Court of Harris County Trial Court Judge: MARTHA HILL JAMISON Concurring and Dissenting Opinion by Justice Guzman Brown & Brown of Texas v. Omni Metals, Inc. (Tex.App.- Houston [1st Dist.] Mar. 20, 2008)(Nuchia) (insurance law, coverage, Insurance Code violation, DTPA, negligent misrepresentation, large judgment reversed) REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Nuchia 01-05-01190-CV Brown & Brown of Texas, Inc. f/k/a Poe & Brown of Texas, Inc. and Transcontinental Insurance Company v. Omni Metals, Inc. Appeal from 61st District Court of Harris County Trial Court Judge: Hon. John Donovan OPINION DISSENTING TO THIS COURT'S JUDGMENT: Dissenting Opinion by Justice Keyes General Star Indemnity Co. v. Gulf Coast Marine Ass'n (Tex. App. - Houston [14th Dist.] Feb. 14, 2008)(Guzman) (insurance law, duty to defend, indemnify) AFFIRMED: Opinion by Justice Guzman Before Justices Brock Yates, Fowler and Guzman 14-06-00662-CV General Star Indemnity Co. v. Gulf Coast Marine Associates, Inc. Appeal from 152nd District Court of Harris County (Judge Kenneth Price Wise) Dissenting Opinion by Justice Brock Yates National Family Life Ins. Co. (Tex.App.- Houston [1st Dist.] Feb. 7, 2008)(Alcala) (insurance law, timeliness of notice) AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Chief Justice Radack, Justices Alcala and Bland 01-06-00245-CV National Family Care Life Insurance Company v. Lelia E. Vann Appeal from 239th District Court of Brazoria County (Judge Patrick Edward Sebesta) Justice v. State Farm Lloyds Ins. Co. No. 14-06-00248-CV (Tex.App.- Houston [14th Dist.] Jan. 15, 2008)(Edelman) (Insurance coverage dispute, home owner litigation, falling tree mold damage) AFFIRMED: Opinion by Justice Edelman Before Justices Brock Yates, Edelman and Frost Larry Justice, Beth Justice and Karen Justice v. State Farm Lloyds Insurance Company and FTI/SEA Consulting Appeal from 127th District Court of Harris County (Judge Sharolyn P. Wood) Concurring Opinion by Justice Frost, 14-06-00248-CV Larry Justice, Beth Justice and Karen Justice v. State Farm Lloyds Insurance Company and FTI/SEA Consulting Texas Mutual Ins. Co. v. Ruttiger (Tex.App.- Houston [1st Dist.] Jan. 17, 2008)(Jennings) (insurance law, workers comp, unfair practices, Insurance Code claim, DTPA) MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Jennings Before Justices Nuchia, Jennings and Keyes 01-06-00897-CV Texas Mutual Insurance Company v. Timothy J. Ruttiger Appeal from 122nd District Court of Galveston County (Hon. John Ellisor) Amtech Elevator Serv. Co. v. SDFB 1998-P1 Buffalo Speedway Office LP (Tex.App.- Houston [1st Dist.] Dec. 13, 2007) (Keyes) (insurance, indemnity) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Nuchia, Jennings and Keyes 01-07-00401-CV Amtech Elevator Services Company v. CSFB 1998-P1 Buffalo Speedway Office Ltd. Partnership, LNR Partners, Inc. and MRIO, Inc., Moody Rambin Interests Inc. Appeal from 270th District Court of Harris County (Hon. Brent Gamble) Landers v. State Farm Lloyd (Tex.App. - Houston [1st Dist.] Dec. 13, 2007)(Hanks) (insurance coverage, expert exclusion) AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Taft, Hanks and Higley 01-06-00181-CV E. Dean Landers and Margaret F. Landers v. State Farm Lloyds and Reuben Quintero Appeal from 280th District Court of Harris County (Hon. Tony Lindsay) Tellez v. Allstate Texas Lloyds (Tex.App.- Houston [14th Dist.] Oct. 30, 207)(Edelman)(insurance coverage, contractual and extra-contractual claims) AFFIRMED AS MODIFIED: Opinion by Justice Edelman Before Justices Brock Yates, Edelman and Seymore 14-06-00305-CV Lucy Tellez v. Allstate Texas Lloyds Appeal from 152nd District Court of Harris County (Hon. Ken Price Wise) Bosch v. Provident American Life and Health Ins. Co. (Tex. App. [14th Dist.] Oct. 25, 2007)(op. on rehearing by Justice Hedges)(Insurance cancellation, coverage denial, no findings of fact) AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Hudson and Guzman 14-06-00694-CV Yigal Bosch v. Provident American Life and Health Insurance Company Appeal from 113th District Court of Harris County (name of judge not shown) Kim v. Farmers Ins. Exchange (Tex.App.- Houston [1st Dist.] Oct. 25, 2007)(Hanks)(insurance claim, failure to notify, prejudice, no actual notice) AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Taft, Hanks and Higley 01-05-01112-CV John Kim, as Receiver for Dale McPherson d/b/a Jamac Services, Inc., (Judgment Debtor to Sharon Berryman) v. Farmers Insurance Exchange Appeal from 164th District Court of Harris County (Hon. Martha Hill Jamison) It is undisputed that McPherson did not comply with the notice provisions of his policy. We hold that Farmers has shown that it was prejudiced by McPherson’s failure to notify it. We further hold that there is no more than a scintilla of evidence that Farmers had actual notice of Berryman’s claim. Accordingly, we overrule issue four. Because the grounds analyzed under this issue were sufficient to sustain the trial court’s rendition of summary judgment, we need not consider the other bases for reversal asserted in this appeal. Lone Star Heating Treating Co., Ltd. v. Liberty Mutual Fire Ins. Co. (Tex.App.- Houston [14th Dist.] Aug. 23, 2007) (Seymore)(insurance law, coverage dispute, exclusion, BoC, attorney's fees) REVERSED AND RENDERED IN PART AND REMANDED IN PART: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Brock Yates and Seymore 14-06-00028-CV Lone Star Heating Treating Co., LTD v. Liberty Mutual Fire Insurance Company Appeal from 165th District Court of Harris County (Hon. Elizabeth Ray) Law firms fails in quest to collect additional attorneys fees for work on workers comp lien Yasuda Fire and Marine Insurance Company of America v. Criaco (Tex.App.- Houston [14th Dist.] Jun. 7, 2007)(Frost) (standing))(auto-PI, UIM coverage, workers comp, standing, attorneys fees) (insurance law, PI-auto, workers comp, UIM coverage, settlement agreement, Rule 11, standing, attorney's fee recovery) REVERSED AND RENDERED: Opinion by Justice Frost Before Justices Anderson, Edelman and Frost 14-05-00851-CV Yasuda Fire and Marine Insurance Company of America, Sompo Japan Insurance Co. of America v. Miller Criaco D/B/A Criaco & Corteguera Appeal from 405TH District Court of Galveston County (Judge Wayne J. Mallia) Dissenting Opinion by Justice Edelman Yasuda Fire and Marine Ins. Co. of America v. Criaco (Standing) Soto v. International Medical Group, Inc. (Tex.App.- Houston [14th Dist.] Apr. 3, 2007)(Anderson)(medical insurance contract was properly rescinded)(insurance law, coverage dispute, rescission, accord and satisfaction) Judgment for Medical Insurer in Claim Denial Case Affirmed; Plaintiff did not disclose pre-existing condition making her uninsurable on insurance application. Policy rescinded Soto v. International Medical Group, Inc. (Tex.App.- Houston [14th Dist.] Apr. 3, 2007)(Anderson)(medical insurance contract was properly rescinded) [insurance law, coverage dispute, rescission, accord and satisfaction] Iris Reyes Soto purchased medical insurance from International Medical Group ("IMG") while she worked for the Honduran Consulate in Houston, Texas. She submitted application materials indicating that she had no health problems. Subsequent to her application, Ms. Reyes underwent a hysterectomy. IMG rescinded Ms. Reyes's insurance coverage for all of her medical bills due to what they deemed material misrepresentations on her application for insurance. Ms. Reyes filed suit raising numerous grounds for relief. A bench trial was held, and the trial court entered findings of fact and conclusions of law after determining that Ms. Reyes had no valid claim. Ms. Reyes now appeals some of those findings and conclusions. We affirm. Routis v. Clarendon America Ins. Co. (Tex.App.- Houston [1st Dist.] May 10, 2007)(Higley)(insurance coverage, fire) AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Justices Nuchia, Keyes and Higley 01-06-00459-CV Konstantinos Routis, Duluth Restaurants, Inc., and/or KRMG Enterprises, Inc. as the Attorney in Fact of Duluth Restaurants, Inc. v. Clarendon America Insurance Company Appeal from 280th District Court of Harris County (Judge Tony Lindsay) Harris v. Winston (Tex.App. - Houston [1st Dist.] May 24, 2007)(Alcala) [life insurance proceeds, interpleader, motion to recuse filed with wrong clerk] AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Justices Taft, Jennings and Alcala 01-05-00962-CV William Francis Harris v. Antionette Richardson Winston Appeal from Probate Court of Galveston County (Judge Hon. Gladys B. Burwell) Home owners lose in suit over mold damage against insurer because they did not segregate damages by source; policy did not cover water damages cause by roof leaks; claimants failed to prove mold damage was cause by a covered peril. Kelly v. Traverlers Lloyds of Texas Ins. Co. (Tex.App.- Houston [14th Dist.] Feb. 27, 2007)(Justice Frost) (homeowner insurance law, insurance policy, coverage dispute, mold claim, water damage) The Kellys' failure to segregate mold damage resulting from covered and noncovered perils is fatal to their recovery. See Allison, 98 S.W.3d at 259; see also Texarkana Memorial Hosp. v. Murdock, 946 S.W.2d 836, 840 (Tex. 1997) (relying upon principle of concurrent causation doctrine in determining that plaintiff's award for medical expenses could not stand in light of failure to properly segregate expenses); Wallis, 2 S.W.3d at 302‑03 (affirming judgment notwithstanding the verdict on the basis that the insured had no evidence that established the amount of damage from the plumbing leak). Accordingly, we overrule the Kellys' second and third issues. We affirm the trial court's summary judgment in favor of Travelers. Routis v. Clarendon America Ins. Co. (Tex.App.- Houston [1st Dist.] May 10, 2007)(Higley)(insurance coverage denied, arson fire) We conclude that the combined evidence falls within the zone of reasonable disagreement and supports the trial court's implied finding that Routis and/or Sachtouris set the building on fire and that therefore appellee's proffered exclusion from coverage applies. See Wilson, 168 S.W.3d at 827; Vandiver, 970 S.W.2d at 737. We hold that the evidence is legally sufficient because the evidence would enable reasonable and fair-minded people to reach the verdict under review. See Wilson, 168 S.W.3d at 827. In addition, we hold that the evidence is factually sufficient because, after considering all the evidence in the record, the verdict is not so contrary to the overwhelming weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. See Plas-Tex Inc., 772 S.W.2d at 445; Cain, 709 S.W.2d at 176. We further hold that the trial court applied the proper standard of proof when it concluded by a preponderance of the evidence that appellee met its burden to show that an exclusion to coverage applied in this case. See Murphy, 996 S.W.2d at 879 Bosch v. Provident American Life and Health Ins. Co. (Tex.App.- Houston [14th Dist.] Aug. 16, 2007)(Hedges) (insurance coverage denial, policy cancellation, multiple appeals, remand, law of the case) Marketing, Inc., Coastal v. United States Fidelity and Guaranty Company (Tex.App.- Houston [14th Dist.] Mar. 8, 2007) (Guzman)(insurance law, coverage dispute, late notice but no prejudice) REVERSED AND REMANDED: Opinion by Justice Guzman Before Justices Fowler, Edelman and Guzman 14-04-00651-CV Coastal Refining & Marketing, Inc., Coastal Offshore Insurance Limited, and Lexington Insurance Company v. United States Fidelity and Guaranty Company Appeal from 129th District Court of Harris County Trial Court Judge: Samuel Grant Dorfman |
| Insurance Litigation: Houston Appellate Cases (Tex.App.- Houston 2009 2008 2007) Houston Opinions |
2008-2007 Texas Supreme Court Insurance Law Cases Texas Opinions Nationwide Ins. Co. v. Elchehimi, No. 06-0106 (Tex. Mar. 28, 2008)(Wainwright) (insurance coverage, breach of contract, claim denial) Justice O'Neill delivered a dissenting opinion Grimes Construction, Inc. v. Great American Lloyds Ins. Co., No. 06-0332 (Tex. 2007)(per curiam) (commercial general liability insurance coverage for damages resulting from defective work) Mid-Century Ins. Co. v. Ademaj, No. 05-0016 (Tex. Nov. 30, 2007)(Opinion by Justice Green) (insurance regulation, rates, billing of anti-theft fee) Justice O'Neill delivered a concurring opinion, Mid-Continent Ins. Co. v. Liberty Mutual Ins. Co., No. 05- 0261 (Tex. Oct. 12, 2007)(Wainwright) (insurance law, subrogation, contribution, apportionment of settlement amount between insurers, certified question from the Fifth Circuit) National Plan Administrators, Inc. v. National Health Ins. Co., No. 05-0006 (Tex. Sep. 28, 2007)(Johnson) (commercial law, contract, insurance code, fiduciary duty) Lamar Homes Inc. v. Mid-Continent Casualty Co., No. 05- 0832 (Tex. Aug. 31, 2007)(Medina)(insurers duty to defend, home construction defect) Fortis Benefits v. Cantu, No. 05-0791 (Tex. Jun. 29, 2007)(Opinion by Justice Willett)(insurance law, subrogation) Citizens Ins. Co. of America v. Daccach, No. 03-0505 (Tex. Mar 2, 2007)(Wainwright) (insurance law, class certification, choice of law) Separate opinion by Jefferson State Farm Life Ins. Co. v. Martinez, No. 05-0812 (Tex. Feb 9, 2007)(Brister) (insurance law, interpleader, avoidance of penalties and interest by interpleading policy proceeds) Jack in the Box, Inc. v. Skiles, No. 05-0911 (Tex. Feb 9, 2007(per curiam) (workplace safety, injury, nonsubscriber employer, no duty, no liability for negligence) 2006 Texas Supreme Court Cases Via Net v. Tig Ins. Co.,No. 05-0785 (Tex. Dec. 22, 2006) (per curiam)(insurance law, coverage denial, discovery rule) State Farm Mutual Auto Ins. Co. v. Nickerson, No. 04- 0427 (Tex. Dec. 22, 2006)(Justice Jefferson) (insurance, automobiles, underinsured motorist coverage, UIM, prejudgment interest, attorneys' fee) State Farm Mutual Auto Ins. Co. v. Norris, No. 04-0514 (Tex. Dec. 22, 2006)(Jefferson) (insurance, automobiles, UIM coverage, uninsured, underinsured, prejudgment interest, attorney's fees) Brainard v. Trinity Universal Ins. Co., No. 04-0537 (Tex. Dec. 22, 2006)(Justice Jefferson) (insurance, automobiles, underinsured motorist coverage, UIM, prejudgment interest, attorneys' fees) Fiess v. State Farm Lloyds, 202 S.W.3d 744 (Tex. 2006) Fiess v. State Farm Lloyds, No. 04-1104 (Tex. Aug. 31, 2006)(Aug 31, 2006)(Brister)(certified question from 5th Circuit) (Insurance law, no mold claim coverage on Texas homeowners ins. policy) Justice Medina delivered a dissenting opinion in Fiess v. State Farm Lloyds Guideone Elite Ins. Co v. Fielder Road Baptist Church, No. 04-0692 (Tex. Jun. 30, 2006)(Justice Medina) (insurance law, UDJA, duty to defend, coverage, construction of policy, eight-corners rule, exception, extrinsic evidence, exclusion, admission of evidence, UDJA, attorney's fees) Justice Hecht wrote a concurring opinion in Guideone Elite Ins. Co v. Fielder Road Baptist Church, No. 04- 0692 (Tex. Jun. 30, 2006)(Concurrence by Justice Nathan Hecht) Evanstan Ins. Co. v. Atofina, No. 03-0647 (Tex. May 5, 2006)(Justice Paul Green) (insurance coverage dispute) Allstate v. Forth, No. 05-0057 (Tex. Apr. 21, 2006)(per curiam opinion) Minnesota Life Ins. Co. v. Vasquez, No. 04-0477 (Tex. Apr. 7, 2006)(Brister) GTE Mobilnet of Houston v. Chair King, No. 04-0570 (Tex. Feb. 3, 2006)(O’Neill) In Re Lumbermens’ Mutual Casualty Co., No. 04-0245 (Tex. Feb 3, 2006)(mandamus)(O’Neill) |
