While pondering what new legislation might be introduced in the next session of our Texas Legislature, we came up with an idea. What about Tortilla Reform? You know…if it nacho fault, you don’t pay!
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The Texas Supreme Court Agrees to Rehear its Decision in Excess Underwriters v. Frank’s Casing Crew: We reported this case to you several months ago and also thoroughly covered it in our annual seminar last October. Alas, all of our hard work educating you may have gone for naught. (Oh well, its not like you paid for it or anything.) The Supremes have now decided to reconsider their original ruling and will entertain new oral augments in the coming weeks.
In its original opinion, the Supremes changed existing law and ruled that an insurer has a right of reimbursement from the insured if the insurer settles a tort case where there is no coverage. This extra-contractual right manifests itself anytime the insured sends a Stowers letter to its insurer demanding that the tort case be settled within policy limits. The original decision was met with howls from the business community who flooded the court with protests and requests that the court reconsider. Well, the court has now agreed to reconsider.
We think this means that the court will retreat and uphold its ruling in the earlier case of Texas Ass’n of Counties v. Matagorda County, 52 S.W. 3d 128 (Tex. 2000). In the Matagorda County case, the court held that when an insurance contract does not specifically provide for a right of reimbursement, an insurer cannot obtain reimbursement from its insured after the insurer pays to settle a claim that is later determined to be excluded unless the insurer “obtains the insured’s clear and unequivocal consent to the insurer’s right to seek reimbursement.” Id. at 135.
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One of Tx/Up’s journalistic competitors, The Wall Street Journal, has reported that America’s economy is once again on the move. Yeah, right. We think it’s on the move to India and China.
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Texas Court Tosses Grandkid out of Court in Case of First Impression: Remember the Patsy and Elmo song, “Grandma Got Run Over by a Reindeer?” Did you ever wonder if the grandkid could recover mental anguish damages from the offending reindeer and Santa Claus for running over and killing Grandma? Well, we sure did and until recently we did not know the answer. We do now, thanks to the Amarillo Court of Appeals!
Twanda Billington, Jeanette’s grandmother, was killed in an automobile accident when Bill Lamberson failed to yield the right of way at an intersection. Jeanette did not see the accident, but she arrived on the scene a few moments later and witnessed the immediate aftermath. Jeanette sued Lamberson seeking mental anguish damages. Upholding a summary judgment in favor of Lamberson, the appellate court ruled there was no viable bystander claim for mental anguish damages because the granddaughter had failed to adduce any evidence to show she was “closely related” to her grandmother. The court reasoned that grandmother and grandchild “did not share a common residence” and the “granddaughter was married and lived on a ranch in an adjoining county.” Billington v. Lamberson (Tex-App-Amarillo, December, 2005).
Hmm, maybe we aren’t so clear on the answer to this question. If you live on the same ranch with Grandma or at least in the same county, you might be able to recover damages from the reindeer and Santa after all. That’s why we love the law. You never really know. It’s such a tease.
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Another Chamberlain-McHaney Victory: Despite being up against two plaintiff’s lawyers and a medical expert, Chamberlain – McHaney’s Frank A. King was able to get a zero dollar damage jury verdict in a trial held a couple of weeks ago. The jury found his client liable in this case involving a rear-end automobile collision, but awarded no damages. Since King had no expert on his side to counter the chiropractor’s testimony, he focused his cross-examination on the idiosyncrasies of chiropractic practices, and showed the jury a copy of the chiropractor’s Yellow Page ad that catered to auto-accident victims. This strategy apparently worked since the jury foreman said after the trial that, although the plaintiff probably deserved some money, the jury was not going to award any because “the chiropractor was a rip-off.”
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Tx/Up’s Exclusive Sports Update: Tx/Up assigned two staff reporters to cover this year’s Rose Bowl contest between the Texas Longhorns and the USC Trojans. In all the excitement leading up to the game, our reporters forgot to have the all important pre-game meal. While delusional from hunger, one reporter observed that the USC colors resembled ketchup and mustard. Our other reporter observed that the Texas colors looked like Heinz 57 Sauce and mayonnaise. Oh well, Heinz 57 and Mayo win! Texas 41–USC 38.