By
CHAMBERLAIN-McHANEY
While pondering what new legislation might be introduced in the next session of
our
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The
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.”
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One of Tx/Up’s journalistic competitors, The Wall
Street Journal, has reported that
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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
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
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CHAMBERLAIN-McHANEY is AV RATED (highest peer review
rating) and listed in A.M. Best’s Directory of Recommended
David E.
Chamberlain
Chamberlain-McHaney
512.474.9124