From the Tx/Up Mailbag - Chamberlain McHaney, PLLC

Dear Tx/Up, is it safe to order seafood in a restaurant. That big oil spill in the gulf has me wondering. Chay, Sante Fe, NM.

Dear Chay, sure, but don’t ask for the regular tuna. Ask for the unleaded.

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Chamberlain♦McHaney Scores Victory for CGL Carrier Against Auto Carrier: The firm successfully defended its insurer client in a dispute with another carrier. The opposing carrier had issued a commercial auto policy, and the client insurer had issued a CGL policy, to a common insured. In the underlying suit, the plaintiff claimed that a defendant’s truck caused a power washing hose to become entangled and to pull her down and drag her across a parking lot. The trial court agreed that the auto insurer was not entitled to recover defense and settlement costs the auto insurer incurred on behalf of the common insured and granted summary judgment for the client insurer. The motion for summary judgment in the coverage action relied on the Texas Supreme Court opinion in Mid-Continent Casualty Company v. Liberty Mutual Insurance Company and the recent 5th Circuit Court of Appeals opinion in Trinity Universal Insurance Company v. Employers Mutual Casualty Company. The trial court ruled that the auto insurer had no right of contribution or subrogation for settlement payments due to the “other insurance” clause in its policy, and that the auto carrier could not recover defense costs due to a limitation on the duty to defend in the client’s policy that applied when the suit arose from an auto accident that was not otherwise excluded. Tim Poteet handled this matter for the firm. American Mercury Insurance Co v Oklahoma Surety Co (Travis County, 2010).

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Chamberlain♦McHaney Defeats Big Subro Claim: Also this month, the firm successfully defended its client, a general contractor, by filing a motion for summary judgment that forced a voluntary dismissal of a $700,000 subrogation claim against its client. The client, a general contractor, was remodeling a house on a hill country farm. Shortly after work stopped one day and the workers had left the premises, a fire was reported. Because the house was in a remote location, the fire completely destroyed the house. Independent investigators could not determine the cause of the fire, but the homeowners insurer nevertheless filed suit against the general contractor. On behalf of the client, the firm moved for summary judgment based on the waivers of claims and subrogation in the general conditions of the AIA construction contract and the homeowners insurance policy. The opposing insurer dismissed its claims before the hearing without filing a response to the motion for summary judgment. Tim Poteet and Dick Ellis handled this matter for the firm. Rose v. Tony Martin Builder, Ltd. ( Gillespie County, 2010).

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Plaintiff’s PI Suit Barred by Pre-Occurrence Release: Plaintiff, who was injured when she lost control of her motorcycle during a motorcycle safety training course, dismissed her personal injury lawsuit in the face of our summary judgment motion based on a pre-occurrence release she signed before beginning of the course. David Chamberlain and Erin Westendorf handled the matter for the firm. Knight v New Braunfels American Motorcycles (Comal County, 2010).

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