For Defendants, now is the time to go to trial in Texas!

Posted on September 14, 2006 by Dwayne Newton

Historically, risk managers and general counsel shudder at the thought of being sued in a State Court in Texas.  Images of huge verdicts and punitive damages have caused more than one general counsel to develop an ulcer over Texas litigation.   However, the current litigation climate in Texas is more favorable for defendants than it has ever been in the last twenty years. The 2005 Vioxx trial and the more recent litigation over the BP plant explosion notwithstanding, here is our countdown of the five reasons that now is the best time to try a case in Texas if you are a defendant in one of the major metropolitan areas:

5.         Comprehensive tort reform legislation that greatly limits the ability to make a big strike, including:

  • Restrictions on joint and several liability;
  • Ability to name responsible third parties including immune employers and governmental entities;
  • Restrictive standards and a higher burden of proof for punitive damages;
  • Punitive damage caps;
  • Limits on the recovery of medical expenses to the amounts paid or incurred;
  • Earning capacity recoveries limited to after tax amounts.
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Coverage for Construction Litigation

Posted on September 1, 2006 by Dwayne Newton
Pending before the Texas Supreme Court is an important case that could have serious implications for the construction industry. In Lamar Homes v. Mid-Continent Casualty Company, the Supreme Court has been asked to answer a certified question posed by the 5th Circuit Court of Appeals. Specifically, the Court has been asked to address whether allegations of construction defects and loss of use of a residence against the general contractor constitute an accident or occurrence and property damage within the context of a CGL policy.

 

We are watching this case closely as it could have a profound affect on many of our clients in the construction industry. Typically, most construction cases are defended by the contractor’s CGL policy as long as there are allegations that the defective work of the contractor caused damage to “other property.” In addition, the general contractor is usually covered for defective work performed by a subcontractor. However, recently, insurers have begun taking a hard line approach to defending these cases. Many now disclaim coverage outright or file declaratory judgment actions while defending under a reservation of rights. More and more, insurers are challenging whether a construction defect is an “occurrence” under the terms of the policy.

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