You can lose something faster than a turkey in November, lose something faster than a politician’s promise, lose something faster than a blink of an eye, and you can also lose something faster than you can make an “uninvited accusation of discriminatory animus” in closing argument. The Texas Supreme Court recently reversed a $12 million dollar verdict in a rear-end collision involving a tractor-trailer. At trial, Plaintiff sought $12 million in closing argument for the occupants of a vehicle that was rear ended. In closing, defense counsel argued the case was worth no more than $250,000. Plaintiff’s counsel in rebuttal stated to the jury that the Defendants are asking for a discount on damages because Plaintiff is an African American Woman. Defense counsel made no mention that Plaintiff’s damages should be discounted because of her race or gender. The Texas Supreme Court held that Plaintiff’s counsel’s inflammatory argument was “uninvited and unprovoked.” As such, the Texas Supreme Court reversed the judgment and ordered a new trial for an improper and prejudicial closing argument. The case is Alonzo v. John, No. 22-0521, 2024 WL 2095957, at *1 (Tex. May 10, 2024).
ChamberlainMcHaney Forces Plaintiff into Arbitration on behalf of HVAC installer. Recently, a Williamson County, Texas Court ruled in favor of ChamberlainMcHaney’s client, a local HVAC installer, forcing a surviving mother to arbitrate her wrongful death claim against the HVAC company. The wrongful death claim was related to the construction of the home and a contract between the decedent and home builder required arbitration of all disputes. While the HVAC subcontractor was not a party to any contract with an arbitration provision, this case is in line with recent Texas Supreme Court precedent relating to residential construction claims and arbitration clauses.
Speaking of Arbitration…It can’t be too expensive. In another recent Texas Supreme Court case, the high court held that a clause in an arbitration agreement allowing for arbitrability of issues was not unconscionable due to “excessive costs.” In this case, a homeowner sued his builder alleging personal injuries due to construction defects. The trial court held that portions of the contract were unenforceable because the cost to arbitrate was excessive for the homeowner. The Court held that determining whether arbitration costs are excessive turns on whether the cost is so substantial as to deter bringing claims. In this case, the Court reasoned that the arbitration costs and fees “did not present an insurmountable obstacle” to bringing the claim. The case is Lennar Homes of Tex. Inc. v. Rafiei, 2024 WL 1470909, at *3 (Tex. Apr. 5, 2024).
How prompt does a prompt payment need to be? On appeal from the Northern District of Texas, the federal Fifth Circuit continues to apply Texas law relating to the denial of attorney’s fees when an insurer whom after invoking appraisal, pays the full appraisal award plus any and all possible statutory interest, thus preventing the recovery of attorney’s fees for plaintiff’s attorneys. The case is Rodriguez v. Safeco Ins. Co. of Indiana, 2024 WL 1637548, at *1 (5th Cir. Apr. 16, 2024).
If at first you don’t succeed, try, and try again. Unless you are a Texas Lawyer asking for a corporate representative deposition in a UIM case. It seems every month, Texas Appellate courts and the Texas Supreme Court are having to tell UIM plaintiff’s attorneys that you don’t get a corporate representative deposition of an insurance carrier until fault of the insured is judicially determined along with damages, and whether or not the insured driver was underinsured. The most recent ruling came in In Re State Farm Mutual Automobile Insurance Company on April 17, 2024 by the Supreme Court of Texas.
ChamberlainMcHaney obtains dismissal for trucking company. This suit arose from a rear-end commercial motor vehicle accident that occurred in January involving the Plaintiff and an employee of a trucking company. ChamberlainMcHaney’s motion for summary judgment argued that the driver was not in the course and scope of his employment at the time of the incident. We further argued that no vicarious liability could be imposed against the trucking company because at the time of the accident, the employee had finished his work for the day and was not acting in furtherance of any mission for the company.
Texas Court puts down its roots—Denies that Rural Landowners owe additional duties for fallen trees. In Bell v. Cain, 2024 WL 1203896, at *1 (Tex. App.—Texarkana Mar. 21, 2024, no pet. h.), a defendant property owner owned a 148-acre tract of land in rural Harrison County, Texas. The Plaintiff was traveling down a public roadway when a tree on the defendant’s tract of land fell and injured the Plaintiff. The Court held that a property owner or occupier owes no duty to make an adjoining public road safe or to warn travelers thereon of potential danger in the roadway.
Since 1984 CHAMBERLAIN McHANEY has defended complex cases in trial and on appeal. We have lawyers on staff that are board certified in civil trial law, personal injury trial law and civil appellate law. Please give us a call.
David E. Chamberlain and Sean B. Swords