The word around Austin these days is that a bill will soon be filed which will require losing plaintiffs to pay the attorneys fees incurred by those they sue. No bill has been filed yet, but the Governor called for one in his recent State of the State address to the legislature.
Here are some bills that have been filed, which affect the tort, insurance and civil justice system:
S.B. 361 by Duncan (anti-indemnity)
Relating to indemnification provisions in construction contracts.
2/2/11 S Introduced and referred to State Affairs
H.B. 620 by Fletcher (barratry)
Relating to liability for contracts for legal services procured as the result of certain prohibited acts.
1/12/11 H Filed
H.B. 1427 by Lewis (responsible third-parties)
Relating to the designation of a responsible third party.
2/16/11 H Filed. Note: This bill would repeal section (e) of section 33.004 which current allows a claimant to sue an RTP without regard to the expiration of the statute of limitations.
S.B. 425 by Carona (owner-controlled insurance programs)
Relating to property and casualty certificates of insurance and approval of property and casualty certificate of insurance forms by the Texas Department of Insurance.
2/2/11 S Introduced and referred to Business and Commerce
S.B. 644 by Hegar (Texas Department of Insurance sunset)
Relating to the continuation and operation of the Texas Department of Insurance and the operation of certain insurance programs.
2/14/11 S Filed
Want to see more sausage being made in public? You can follow what the Texas Legislature is up to by going to our website, www.chmc-law.com, and clicking on Legislative Update. We update the Legislative Update every couple of days.
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Tx/Up! Tip: If at first you don’t succeed, skydiving is not for you.
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Civil Justice: Ranelle Meroney of the firm tried a premises case last week before a jury in a Travis County District Court. The suit arose out of an incident at a grocery store. The case had been mediated twice with plaintiff’s last demand at $475,000 and the defendant’s last offer being $20,000.
Plaintiff was a high wage earner and she had arthroscopic surgery to her shoulder as a result of the incident. Her treating physician had opined that the plaintiff would need shoulder replacement in the future. This was countered by an orthopedist called by the defense.
The jury found the grocery store and the Plaintiff each negligent and apportioned negligence 60/40, respectively. The jury zeroed Plaintiff on every damage element except past lost earning capacity and past medical, awarding $32,000 for past lost wages and $18,000 for past meds. (Note: plaintiff’s actual medical expenses after discounts totaled $7,789.92). The zeroes were for past and future pain and suffering, past and future impairment, past disfigurement and future meds.
After applicable reductions, the jury’s verdict comes to $23,500–about what we offered at mediation and far less than the plaintiff’s $475,000 settlement demand.
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Another Paid v Incurred Opinion: Earlier this month, the Amarillo Court of Appeals reversed a trial court judgment that failed to reduce a plaintiff’s past medical expenses to reflect the amount actually incurred. In his underinsured motorist case against Progressive Ins. Co., the plaintiff was awarded $52,968.39 by the jury for past medical expenses. The insurance company presented evidence that, pursuant to the providers’ contract with Medicare, the amount actually paid or incurred on behalf of Delgado was $4,763.77. The trial court awarded the full, undiscounted amount of the medical expenses, and the insurer appealed. The appellate court reversed and held that after reduction of the jury’s award to the amount actually paid or incurred, the verdict was less than the tortfeasor’s policy limits and insurer’s prior PIP payment, thus entitling the insurer to a take nothing judgment. Progressive Ins. Co. v Delgado, (Tex. App- Amarillo, February 4, 2011).
Will the Supreme Court issue the final word on paid v incurred in the pending case of De Escobedo v Haygood or will the 2011 Legislature first amend the statute? Join us at our Ultimate Claims Handling Seminar on October 7, 2011 in Dallas to find out.
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Chamberlain♦McHaney is A-V (highest peer review) Rated by Martindale-Hubbell (Bar Registry of Preeminent Lawyers) and is listed in A.M. Best’s Directory of Recommended Attorneys.