LexisNexis® Legal Newsroom
Mealey's Insurance - Texas Federal Judge Grants Insured's Motion To Remand, Dismisses Adjuster From Suit

SHERMAN, Texas - A Texas federal judge on June 20 adopted a magistrate judge's recommendation that an insured's motion to remand be denied because complete diversity of citizenship exists as the insured's complaint does not specifically allege any claims against the insurer's adjuster, who also is a resident of Texas (Max Wang v. Safeco Insurance Company of Indiana et al., No. 17-158, E.D. Texas, 2017 U.S. Dist. LEXIS 94255).

Mealey's PI/Product Liability - Texas Appeals Court Upholds Ruling Finding Homeowner Failed To Provide Notice

HOUSTON - A Texas appeals panel on June 20 upheld a ruling awarding summary judgment to a home builder after finding that a homeowner failed to provide the required presuit notification pursuant to the Residential Construction Liability Act (RCLA) (Vision 20/20, Ltd. v. Cameron Builders, Inc., No. 14-15-01011-CV, Texas App., 14th Dist., 2017 Tex. App. LEXIS 5596).

Mealey's Litigation Procedure - Texas Federal Judge Denies Expedited Discovery Motion In Restaurant Dispute

AUSTIN, Texas - A Texas federal judge on June 19 denied a motion for expedited discovery filed by restaurant franchisors, saying that they will receive the information they seek when the defendant files a written update with the court (Stockade Cos. LLC, et al. v. Kelly Restaurant Group LLC, No. 1:17-cv-143, W.D. Texas, 2017 U.S. Dist. LEXIS 94097).

Mealey's PI/Product Liability - PEX Pipe Maker Removes Suit Filed By Pulte Homes Over Ruptures

SAN ANTONIO - NIBCO Inc. on June 19 removed to Texas federal court a lawsuit filed by Pulte Homes of Texas L.P. claiming that PEX piping made by NIBCO is defective, arguing that complete diversity exists between the parties and because Pulte is seeking more than $75,000 in damages (Pulte Homes of Texas, L.P. v. NIBCO, Inc., No. 17-CV-544, W.D. Texas).

Mealey's Insurance - Texas High Court Grants Insurer New Trial In Defect Coverage Dispute

AUSTIN, Texas - A judgment in an underlying construction defect lawsuit is not binding on an insurer because its insured builder did not have a sufficient financial stake in the outcome due to a pretrial agreement, the Texas Supreme Court ruled June 16, granting a new trial over whether the insurer must cover the construction defect claims (Great American Insurance Co., et al. v. Glen Hamel, et al., No. 14-1007, Texas Sup., 2017 Tex. LEXIS 553).

Mealey's Toxic Tort/Environmental - Texas Court Denies Review In Asbestos Case Involving 9-Year Settlement Delay

AUSTIN, Texas - The Texas Supreme Court on June 16 declined to wade into whether a nine-year delay in accepting the terms of settlement resolving asbestos claims was appropriate under the terms of the agreement or constituted unreasonable delay (Union Carbide Corp. v. Perry Jones, Rosemary Allegria, et al., No. 16-0648, Texas Sup.).

Mealey's Litigation Procedure - Texas Appeals Court Affirms Verdict Against Maker Of Defective Concrete

FORT WORTH, Texas - A Texas appellate court panel on June 15 affirmed a jury's verdict finding that a concrete manufacturer should indemnify a contractor that installed concrete that was defectively made, holding that the trial court judge did not err when striking the manufacturer's expert testimony and that the company did not clearly argue in its post-trial motions that the contractor that finished the concrete was a seller under the Texas Products Liability Act (TPLA) (RDJRLW, Inc. v. Bobby Elbert Miller, Jr., d/b/a Miller Construction, et al., No. 02-16-00132-CV, Texas App., 2nd Dist., 2017 Tex. App. LEXIS 5494).

Mealey's Insurance - Texas Federal Judge Says Insurer Has Duty To Defend Underlying Negligence Suit

DALLAS - An insurer has a duty to defend its insured in an underlying suit alleging that the insured failed to properly remediate water damage to property in storage because the underlying suit claims that the insured's actions were negligent, a Texas federal judge said June 14 (Bedivere Insurance Co., f/k/a General Accident Insurance of America v. Pacific Van & Storage of Texas Inc., d/b/a Joyce Moving and Storage Co. Inc., et al., No. 16-1111, N.D. Texas, 2017 U.S. Dist. LEXIS 91265).

Mealey's PI/Product Liability - Texas Appeals Panel Dismisses University Hospital Doctors From Malpractice Suit

HOUSTON - A Texas appellate court on June 15 found that a trial court erred in denying a motion to dismiss doctors who work for The University of Texas M.D. Anderson Cancer Center from a medical malpractice suit because Texas law requires the dismissal the employees of a state-run institution (James Stewart v. The University of Texas M.D. Anderson Cancer Center, No. 01-16-00865-CV, Texas App., 1st Dist., 2017 Tex. App. LEXIS 5505).

Mealey's PI/Product Liability - Texas Appeals Court Affirms Verdict Against Maker Of Defective Concrete

FORT WORTH, Texas - A Texas appellate court panel on June 15 affirmed a jury's verdict finding that a concrete manufacturer should indemnify a contractor that installed concrete that was defectively made, holding that the trial court judge did not err when striking the manufacturer's expert testimony and that the company did not clearly argue in its post-trial motions that the contractor that finished the concrete was a seller under the Texas Products Liability Act (TPLA) (RDJRLW, Inc. v. Bobby Elbert Miller, Jr., d/b/a Miller Construction, et al., No. 02-16-00132-CV, Texas App., 2nd Dist., 2017 Tex. App. LEXIS 5494).

Mealey's Insurance - Disability Plan Did Not Abuse Its Discretion By Denying Benefits Claim, Judge Says

HOUSTON - A Texas federal judge on June 14 granted a disability plan's motion for judgment on the administrative record after determining that the plan did not abuse its discretion when it denied a former National Football League player's disability claim (Brian C. Jackson v. NFL Disability and Neurocognitive Benefit Plan, et al., No. 16-1278, S.D. Texas, 2017 U.S. Dist. LEXIS 91042).

Mealey's PI/Product Liability - Texas Appeals Panel Affirms Judgment For Plaintiff In Negligence Suit

HOUSTON - A Texas appellate panel on June 13 affirmed a trial court's judgment after finding that a man who was employed to repair a tire that exploded and injured his hand presented enough evidence during trial to show that his employer was negligent and could have done more to protect him from the exploding tire (Advance Tire and Wheels LLC v. Abrhim Enshikar, No. 01-16-00020-CV, Texas App., 1st Dist., 2017 Tex. App. LEXIS 5371).

Mealey's Insurance - Judge: Suit Challenges Rate, Not Entitlement To Payment, Evades ERISA Preemption

DALLAS - A hospital group's state law claims challenge the rate an insurer paid and do not involve a dispute over the right to compensation, providing an independent duty and escaping ERISA preemption, a federal judge in Texas held June 9 (Kindred Hospitals Limited Partnership d/b/a Kindred Hospital Houston Medical Center, et al. v. Aetna Life Insurance Co., et al., No. 16-3379, N.D. Texas, 2017 U.S. Dist. LEXIS 89285).

Mealey's Insurance - Texas High Court Deems Hailstorm MDL Attorney Fee Info Protected As Work Product

AUSTIN, Texas - A Texas Supreme Court majority on June 9 granted an insurer's petition for mandamus in a discovery dispute, finding that a trial court and an appeals court abused their discretion by granting a group of insured's request for billing records from other cases in the same multidistrict litigation because such records are protected from discovery as work product (In Re National Lloyds Insurance Co., Wardlaw Claims Service Inc. and Ideal Adjusting Inc., No. 15-0591, Texas Sup., 2017 Tex. LEXIS 522).

Mealey's Litigation Procedure - Former Football Player Files Class Suit Against NCAA, University, Conference

LUFKIN, Texas - A former University of Tulsa football player filed suit in Texas federal court on June 8, seeking to certify a class of former players at the school who sustained injuries, claiming that the university, the National Collegiate Athletic Association (NCAA) and Conference USA failed to put in protocols to prevent, detect and treat concussions in student athletes (Donald Gobert v. The University of Tulsa, et al., No. 9:17-cv-00106, E.D. Texas).

Mealey's PI/Product Liability - Former Football Player Files Class Suit Against NCAA, University, Conference

LUFKIN, Texas - A former University of Tulsa football player filed suit in Texas federal court on June 8, seeking to certify a class of former players at the school who sustained injuries, claiming that the university, the National Collegiate Athletic Association (NCAA) and Conference USA failed to put in protocols to prevent, detect and treat concussions in student athletes (Donald Gobert v. The University of Tulsa, et al., No. 9:17-cv-00106, E.D. Texas).

Mealey's IP/Tech - Texas Magistrate Judge Primarily Rejects Effort To Dismiss Copyright Claims

AUSTIN, Texas - Allegations by a stock photography agency that McGraw-Hill Global Education Holdings LLC and McGraw-Hill School Education Holdings LLC (McGraw-Hill, collectively) exceeded the scope of their license to use certain photographs in textbooks and other publications should largely proceed, a Texas federal magistrate judge ruled June 12 (Bob Daemmrich Photography Inc. v. McGraw-Hill Global Education Holdings LLC, et al., No. 15-1098, W.D. Texas, 2017 U.S. Dist. LEXIS 89550).

Mealey's Litigation Procedure - With Experts Allowed, Suit Over Zoo's Care Of Old Elephant Proceeds

SAN ANTONIO - A Texas federal judge on June 8 mostly allowed expert testimony for three citizens who allege that the San Antonio Zoological Gardens and Aquarium is violating the Endangered Species Act (ESA) by harming and harassing a 57-year-old Asian elephant named Lucky (James Graham, et al. v. San Antonio Zoological Society, No. 5:15-cv-1054, W.D. Texas, 2017 U.S. Dist. LEXIS 88776).

Mealey's Litigation Procedure - Texas High Court Deems Hailstorm MDL Attorney Fee Info Protected As Work Product

AUSTIN, Texas - A Texas Supreme Court majority on June 9 granted an insurer's petition for mandamus in a discovery dispute, finding that a trial court and an appeals court abused their discretion by granting a group of insured's request for billing records from other cases in the same multidistrict litigation because such records are protected from discovery as work product (In Re National Lloyds Insurance Co., Wardlaw Claims Service Inc. and Ideal Adjusting Inc., No. 15-0591, Texas Sup., 2017 Tex. LEXIS 522).

Mealey's Insurance - Judge Dismisses All But Breach Of Contract Claim In Suit Arising From Flood Damage

FORT WORTH, Texas - A Texas federal judge on June 8 granted an insurer's motion for judgment on the pleadings seeking dismissal of an insured's extracontractual claims in a flood coverage dispute, further exercising its discretion to dismiss the insured's declaratory judgment claim (Mike Farhat v. Texas Farmers Insurance Co., No. 16-1175, N.D. Texas, 2017 U.S. Dist. LEXIS 87766).

Mealey's Insurance - Appeals Court: Jury Was Properly Instructed In Insurance Fraud Case

FORT WORTH, Texas - An appeals panel in Texas on June 8 affirmed a man's convictions for insurance fraud and fraudulent use or possession of identifying information, finding that a trial court judge did not err when denying the defendant's requests for jury instructions that would have downplayed the amount of the fraudulent claim for allegedly stolen jewelry (Herman Florez Jr. v. State of Texas, No. 02-16-00195-CR, Texas App., 2nd Dist., 2017 Tex. App. LEXIS 5247).

Mealey's PI/Product Liability - Texas Appeals Panel Affirms Summary Judgment In Health Care Liability Suit

HOUSTON - A Texas appellate panel on June 8 affirmed summary judgment for a doctor and an orthopedic clinic for which he worked after finding that the statute of limitations had run out before the claims against the doctor, who allegedly failed to complete a back surgery, were filed (Robert Davenport, et al. v. Dr. Samuel Maxwell Adu-Lartey, et al., No. 01-16-00276-CV, Texas App. 1st Dist., 2017 Tex. App. LEXIS 5274).

Mealey's IP/Tech - Texas Federal Magistrate Judge Vacates Infringement Finding In Patent Case

MARSHALL, Texas - Four patent defendants won partial relief pursuant to Federal Rule of Civil Procedure 60(b), Fed. R. Civ. P. 60(b), on June 7 when a Texas federal magistrate judge agreed that a judgment of willful infringement must be vacated (Convolve Inc. v. Dell Inc., et al., No. 08-244, E.D. Texas, 2017 U.S. Dist. LEXIS 87199).

Mealey's Insurance - Texas Federal Judge Says Counterclaim Not Redundant, Denies Motion To Dismiss

AUSTIN, Texas - A Texas federal judge on June 2 denied a contractor's motion to dismiss an insurer's counterclaim for declaratory relief after determining that the counterclaim is not redundant of the insurer's affirmative defense asserted in its answer to the complaint (Hunt Construction Group Inc. v. Cobb Mechanical Contractors Inc. et al., No. 17-215, W.D. Texas).

Mealey's IP/Tech - Denial Of Fee Award In Patent Case Reversed, Remanded By Federal Circuit

WASHINGTON, D.C. - A Texas federal judge's determination that a patent infringement plaintiff's decision to voluntarily withdraw its complaint within the safe-harbor period removed the dispute from the realm of an "exceptional" case, thereby extinguishing a defendant's entitlement to attorney fees, was erroneous, the Federal Circuit U.S. Court of Appeals held June 5 (Rothschild Connected Devices Innovations LLC v. ADS Security L.P., No. 16-2521, Fed. Cir., 2017 U.S. App. LEXIS 9876).