Last week, thousands of people around the country had Boston-style tea parties to protest higher taxes. But here in Austin, it was called the Green Herbal Double Decaf Tea Party.
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TEXAS SUPREME COURT SAYS THERE IS AUTO LIABILITY COVERAGE FOR INSURED DRIVER FLEEING POLICE: Last Friday, the Texas Supreme Court held that an automobile liability policy covered an insured driver who was involved in a serious collision (and caused serious bodily injuries to third parties) while he was in the midst of fleeing police in a high speed chase.
The issue in this insurance-coverage dispute was whether the insured driver, while fleeing the police, engaged in willful and intentional conduct when he collided with the Tanners’ car. Some evidence in the case indicated that when the insured driver hit the Tanners’ car, he was braking hard. Nationwide, which insured the fleeing driver, sued to declare the policy did not cover the accident because it resulted from willful and intentional conduct. Jurors found in favor of the Tanners, but the trial court granted Nationwide judgment notwithstanding the verdict and ruled it had no duty to defend the driver or to indemnify him. The court of appeals affirmed.
The Texas Supreme Court reversed and rendered, holding that Nationwide did not establish as a matter of law that the fleeing driver, its insured, intentionally caused the Tanner family’s injuries, because the exclusion requires intentional damage, not just intentional conduct. Under the policy, property damage or personal injury was not covered when “caused intentionally by … an insured, including willful acts the result of which the insured knows or ought to know will follow from the insured’s conduct.” The evidence did not indicate, as the jury charge puts it, that “the property damage or bodily injury to the Tanners was caused intentionally,” much less indicate such intent as a matter of law. On the contrary, the court observed that the fleeing driver slammed on his brakes hard enough to skid before impact, showing he actively tried to avoid the collision. And, given the trial evidence, a reasonable and fair-minded jury would not be compelled to find, under an objective standard, that a reasonable person would know that injury to third parties would result from Gibbons’ conduct. Such a jury finding was no more required by the evidence than a finding, under a subjective standard, that the driver personally knew that such injury would result. Tanner v. Nationwide Mutual Fire Insurance Co (April 17, 2009).
It’s good to know that Nationwide will still be on our side whenever we decide to make a run for it.
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CHAMBERLAIN♦McHANEY SECURES A SUMMARY JUDGMENT FOR RETAILER WHERE UPS DELIVERYMAN CLAIMED INJURY: The plaintiff, a UPS deliveryman, claimed he was seriously injured when he fell through a broken grate covering a drainage pipe in the parking lot of our client, nationally known retailer Fry’s Electronics. After discovery was complete, we moved for summary judgment arguing that the plaintiff was an independent contractor and had failed to generate any evidence that Fry’s had actual or constructive notice of the broken grate. Moreover, the condition was open and obvious and not a hidden defect which would give rise to a duty to correct the condition or warn of its existence. The trial court agreed and granted summary judgment for Fry’s. David Chamberlain and Dennis Postiglione handled the case for the firm. Hardin v Fry’s (Travis County, Texas, April 14, 2009).
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David E. Chamberlain, joined with local Travis County District Judge Gisela Triana-Doyal, gave a one hour legal presentation at the annual Bench-Bar Conference of the Travis County Bar on how the Texas Civil Practices and Remedies Code limits the recovery of medical expenses to those actually paid or incurred by or on behalf of the plaintiff. The presentation focused on proper trial procedures involving issue submission of medical expenses to the judge and jury.
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TEXAS UPDATE! –INTERNATIONAL ROUND-UP: Those Navy SEALs are incredible marksmen. They shot the three pirates without hitting the captain or any of the parrots that were sitting on the pirates’ shoulders.
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We will cover all the notable 2009 cases and new legislation at our 2009 Ultimate Claims Handling Seminar on October 16, 2009 at CityPlace Conference Center in Dallas, Texas. Save the date.