Attorney Blog

Hurricane Ike and the Texas Statutes of Limitations

blog@www.houstoninsuranceclaimslawyer.com (news Author)17487 — Sat, 04 Sep 2010 08:00:00 EST

Alot of TV lawyers have taken out billboards around Houston claiming that limitations will soon run on Hurricane Ike claims. "The End is Near." Well, maybe... At best, the billboards are misleading. Lawsuits may contain different causes of action. For example, in the insurance context, there are breach of contract claims, insurance code violations and breach of the duty of good faith and fair dealing. Each cause of action will have a separate period of limitations. Each cause of action period of limitations may start from a differnt time. If you think you have a claim, it is best to have an attorney review your facts and determine when the various statutes of limitation apply to your case.

Hurricane Insurance Claim Limitation Periods

bdurrett@sbcglobal.net (blog Author)38469 — Sat, 04 Sep 2010 08:00:00 EST

Alot of TV lawyers have taken out billboards around Houston claiming that limitations will soon run on Hurricane Ike claims. "The End is Near." Well, maybe... At best, the billboards are misleading.

Lawsuits may contain different causes of action. For example, in the insurance context, there are breach of contract claims, insurance code violations and breach of the duty of good faith and fair dealing. Each cause of action will have a separate period of limitations that may begin on separate time periods. While there are separate time periods for separate causes of action, you can only recover once for the same damages.

If you think you have an insurance claim, it is best to have an attorney review your facts and determine when the various statutes of limitation apply to your case.

Homeowners Can Recover General Contractor's Overhead and Profit

blog@www.houstoninsuranceclaimslawyer.com (news Author)17240 — Wed, 25 Aug 2010 08:00:00 EST

NOLA.com is reporting on the insurance settlement reached in the Stephanie Press v. Louisiana Citizens Fair Plain Insurance Corp. case. In that case, the parties agreed that a Louisian homeowner can recover overhead and profit (typically 20% of total repair costs) when acting as their own general contractor. To act as your own general contractor, the homeowner must hire three separate trades, such as electrician, roofer and drywall installer. This acknowledgement is a victory for policyholders.

Law School Graduates Having A Hard Time Finding A Job

blog@www.houstoninsuranceclaimslawyer.com (news Author)17199 — Tue, 24 Aug 2010 08:00:00 EST

According to the USA Today article, law school graduates are having a hard time finding a job in today's legal market. Fortunately, when I graduated from law school, I was able to find a job quickly. To practice law successfully, it is helpful to have an apprenticeship period with older lawyers. On the other hand, even if one never practices law, a legal education is useful in business and a number of other careers because it teaches you to think logically. While today's law school graduates may not be able to enter the job market in the cpacity in which they want initially, over time, I believe they will value earning their degrees.

Flood Insurance Is $8 Billion In The Red

blog@www.houstoninsuranceclaimslawyer.com (news Author)16864 — Tue, 10 Aug 2010 08:00:00 EST

The National Flood Insurance Program insures areas of high risk in coastal communities. Without this insurance, construction in these areas would be reduced. According to the Houston Chronicle article linked below, Texas receives more of this governement insurance program than any other state. The article describes the problems with the flood insurance program and identifies those with financial interests in seeing that the program continues.

Kemah Orders Destruction of Ike Damaged Homes

blog@www.houstoninsuranceclaimslawyer.com (news Author)16767 — Thu, 05 Aug 2010 08:00:00 EST

Hurricanes cause a significant amount of destruction. Since Ike, nearly two years ago, most homeowners have received insurance settlements and repaired their homes. However, some homeowners have not repaired their homes. Some homes have not been repaired because insurance carriers have underpaid claims. Whatever the reason behind the lack of repair, Kemah believes that vacant structures are a danger to the community. For that reason, the city has taken steps to order the demolition and removal of vacant or damaged homes whose owners have not made the necessary repairs. Generally, this is a good law. Damaged and vacant homes attract vagrants and a criminal element, Kemah is better off without. By waiting for nearly two years, Kemah has provided the homeowner with a fair amount of time to find ways to deal with their loss that may not include insurance.

TWIA Announces Slab Claim Settlement

blog@www.houstoninsuranceclaimslawyer.com (news Author)16307 — Mon, 19 Jul 2010 08:00:00 EST

Various news outlets are reporting that TWIA has announced a settlement with plaintiff's firms for the settlement of certain Hurricane Ike claims. According to an article, the settlment will resolve 2400 insurance claims in Galveston County, Texas. A part of the problem for failing to reach settlment earlier was causation. The TWIA policy only covers damage for loss from wind. In Hurricane Ike allocating the loss between wind and water or storm surge was extremely difficult.

TWIA SLAB SETTLEMENT

bdurrett@sbcglobal.net (blog Author)35371 — Mon, 19 Jul 2010 08:00:00 EST

I have mixed emotions regarding the recently announced TWIA slab settlement claims. Largely, I view the settlement as a win for TWIA.

Let's look at the facts - policyholders who lost everything in IKE are set to receive 37% of the dwelling limits; 25% of the contents limits; 35% of the additional living expense limits and attorney's fees. Does this seem like a good deal to you?

When the policyholders determined the limits of liability they would purchase, they probably thought they would receive 100% of those limits in the event of a total loss from a hurricane. Granted, there is the complicated legal problem of causation (wind v. water), but it just seems to me that too many TV lawyers simply signed up a lot of clients and settled at the first opportunity for whatever they could get.

Texas Attorney General says "Don't believe Travelers Ad"

blog@www.houstoninsuranceclaimslawyer.com (news Author)16071 — Fri, 09 Jul 2010 08:00:00 EST

Amid the rising concern regarding a Travelers Insurance Company television ad entitled "Driving Your House", Texas Attorney General Gregg Abbott tells Texans not to believe the ad. But the AG went a step further and sent a cease and desist letter to the company behind the ad. The ad is misleading because it inaccurately suggests that Texans can lose their home if the cause an auto accident. In Texas, the broad homestead exemption protects your homestead from most collection activities.

The AG is looking out for Texans.

Travelers Insurance Broadcasts Misleading Ad in Texas

blog@www.houstoninsuranceclaimslawyer.com (news Author)16040 — Thu, 08 Jul 2010 08:00:00 EST

Texas Watch, an industry watch dog, is critcizing Travelers Insurance Company for running a television ad falsely stating that a Texas automobile driver could lose his home without adequate insurance coverage. The Texas Constitution is fairly specific about exceptions to the homestead exemption and causing an auto accident is not one of them.

How long does it take to settle an insurance claim lawsuit?

bdurrett@sbcglobal.net (blog Author)30948 — Mon, 03 May 2010 08:00:00 EST

No one can accurately predict how long it will take to settle an insurance claim lawsuit. There are many factors that play a role in determining the length of time it takes to settle a property damage insurance claim lawsuit. Some of those factors include: (1) the credibility of the witnesses and claimant; (2) the presence or absence of alternative explanations for the cause of the loss; (3) the attitude of the claims adjuster; and (4) the stage of the litigation.

Perceptions of credibility play a factor in the length of time it takes to settle a case. If the carrier views you, your experts or your lawyer as less than honest, it will take a long time to settle your case. It is important that you and your representatives provide the carrier with a consistent version of events that is logical and makes sense to avoid any delays caused by the carrier's perception of your lack of credibility.

If there are alternative causes of loss - one of which is covered and one that is not - it will take longer to settle your case. For instance, many Hurricane Ike claims have alternative causes of loss, windstorm and flood surge. Finding an appropriate balance between the causes of loss takes time.

The attitude of the claims adjuster plays a role in the loss. If the claims adjuster does not like you, your claim, your representatives, he can delay resolution of the loss. It is very important to recognize that the claims adjuster can be a friend or enemy. If an enemy, it is important to take steps to remove him from settlement authority your claim.

In almost all circumstance, it is important to get the litigation process started as soon as your lawyer's investigation is complete. The litigation process takes time. It could take up to 24 months to resolve an insurance claim lawsuit. But, in almost all circumstances, the closer you are to a trial setting, the more willing a carrier becomes to explore settlement options.

Accordingly to resolve an insurance litigation claim, it is important to select the right representatives to represent you; to thoroughly investigate the cause of the loss; and to start the litigation process as soon as the investigation is complete.

LA Fitness $200,000 Vandalism Claim Should Be An Insured Loss

blog@www.houstoninsuranceclaimslawyer.com (news Author)13888 — Mon, 05 Apr 2010 08:00:00 EST

Channel 13 KTRK is reporting that vandals broke into an LA Fitness on Highway 6 in Ft. Bend County, Texas early Sunday morning through a front window to the fitness club. The vandals emptied fire extinguishers, four one-gallon paint cans, juice, food and started a small fire which activated the fire extinguishing system spewing water all over the club. In total, it is estimated that the fitness club sustained $200,000 worth of damage.

Most commercial and residential insurance policies contain insurance coverage for acts of vandalism. Vandalism is often defined as "the willful and malicious damage to, or destruction of, the described property." Interestingly, most policies exclude the breakage of glass, but cover damage to property other than glass which occurs when burglars enter or exit a building. Furthermore, specific acts of vandalism may be excluded under some policies such as damage caused by changes in temperature resulting from opernings caused by vandalism or damage caused by an arson fire. Prior to settling its claim, LA Fitness would be well advised to retain a policyholder's attorney to review their coverage.

Beaumont Contractor Criminally Convicted of Deceptive Trade Practices

blog@www.houstoninsuranceclaimslawyer.com (news Author)13700 — Mon, 29 Mar 2010 08:00:00 EST

The Galveston Daily News is reporting that Mark Bounds (44) of JLMB Properties was convicted on March 24, 2010 in the Galveston County Court At Law No. 1 for violations of the Texas Deceptive Trade Practices - Consumer Protection Act. Bounds was convicted of a Class A misdemeanor which carries a punicshment of up to one year in jail and a $4,000 fine or both. His conviction stems from failing to finish hurricane related repairs for Tiki Island resident, Candee Hoff. According to the Galveston County Assistant District Attorney, Ted Mora, "She bought the house after Hurricane Ike," "He had 90 percent of the money, but did about 60 percent of the work and left it." Personally, I am glad to see the Galveston County prosecutor getting involved in this case. In my practice, I frequently see contractors who low bid a job only to walk off the worksite when the money runs out usually to chase construction jobs with fresh money.

Houston Woman Awarded $9,000,000. for Wrongful Imprisonment/Defamation

blog@www.houstoninsuranceclaimslawyer.com (news Author)13704 — Mon, 29 Mar 2010 08:00:00 EST

The Houston Chronicle is reporting that Nitra Gibson, a TSU graduate, has been awarded $9,000,000. arising from an altercation at Wal-Mart. According to the article, Ms. Gibson tried to exchange some Wal-Mart money orders for cash and was arrested for alledgely trying to pass counterfeit Wal-Mart money orders. Unfortunately, for Wal-Mart the money orders in Ms. Gibson's possession were legitimate. After being falsely accused by Wal-Mart, arrested and placed in jail for two days, Ms. Gibson decided to sue the retailer. The jury found that Wal-Mart should pay $8,200,000 in actual damages and $800,000 in punitive damages. Wal-Mart has announced that it will appeal the decision.

Houston Auto Accident - Airborne Car Hits Houston Office Building

blog@www.houstoninsuranceclaimslawyer.com (news Author)13662 — Fri, 26 Mar 2010 08:00:00 EST

Justicenewsflash.com is reporting that two people are dead and three injured after a speeding Dodge Neon hit a curb on Briarpark and was launched into the air striking a Houston office building. The accident occurred in the early morning hours of March 22, 2010 as the vehicle was traveling north on Briarpark.The car was launched 15 feet into the air after hitting a median. The car hit the top of an office building.

Meterologists Predict Active 2010 Hurricane Season

blog@www.houstoninsuranceclaimslawyer.com (news Author)13581 — Mon, 22 Mar 2010 08:00:00 EST

It is getting to be that time of year again - the hurricane season. In honor of the occassion, the Insurance Journal is reporting that meterologist, Joe Bastardi, of AccuWeather.com Hurricane Center is predicting a 2010 hurricane season with seven landfalls - two or three to be major landfalls in the U.S. In addition, Bastardi forecasts 16 to 18 tropical storms in total, 15 of which will be likely in the western Atlantic or Gulf of Mexico. According to Bastardi, the rapidly weakening El Nino, warmer ocean temperatures, weaking trade winds and higher humidity levels will all contribute to greater storm activity.

Jury Avenges Tort Reform in Business Litigation Case

bdurrett@sbcglobal.net (blog Author)27936 — Tue, 09 Mar 2010 08:00:00 EST

Wayne Slater wrote an article for the Dallas Morning News in which he accurately describes the reasoning behind the $58 million verdict rendered against Perry Homes earlier this week. The jury was outraged by Perry Homes manipulation of the litigation process.

A retired couple, the Culls, sued Perry Homes over a decade ago. After engaging in pre-trial discovery, they decided to use arbitration to resolve the dispute. The arbiter awarded the couple $800,000. Perry appealed the arbitration decision through the state courts all the way to the Texas Supreme Court. Ultimately, the Texas Supreme Court vacated the arbiter's award stating that the Culls waived their rights to arbitration. The case was remanded to state district court for trial. Last week, over two years since the decision in the Texas Supreme Court, the Ft. Worth area jury spoke.

Perry Homes claims it is the victim of "jackpot justice" and vows an appeal. However, Perry's characterization ignores the fact that the Culls have been waiting over a decade for their day in court during which time the litigation process has cost them their savings and their health. They have had to live in a home with a broken foundation, cracked walls, windows that will not open and joists that move. Unfortunately, the Culls are not the only Texans worked over by the litigation process. Many other Texas have experienced the same business litigation process only to escape with less than full justice.

Bob Perry is one of the largest homebuilders in Texas. He is also on the largest donators to judicial and state political campaigns in Texas. He is a major figure in the effort to limit lawsuits and cap jury awards against business. According to the Dallas Morning News, he has donated to the judicial campaign of every judge on the Texas Supreme Court. In part, the twisted litigation process that allowed Perry Homes to work over the Culls was created by Bob Perry's political donations and ideas.

Despite all of its wealth and influence, a jury has held Perry Homes accountable for its actions against the Culls. Yet, it remains to be seen whether the Culls will ever receive a dime. The jury's verdict amount could be reduced by the trial court. If judicial errors were made, the verdict could be thrown out. The appellate review process could last for years. Only then can the Culls evalute whether it was worth it.

Judge Kevin Fine rules death penalty unconstitutional

bdurrett@sbcglobal.net (blog Author)27755 — Fri, 05 Mar 2010 08:00:00 EST

I am not a criminal lawyer. I have never practiced criminal law. But if the reports are true that state court district judge Kevin Fine ruled the death penalty unconstitutional, I urge fellow voters to remove Judge Fine from the bench. It is simply inconsistent with the public trust to willfully refuse to follow the existing law because of personally held political views. Judge Fine's ruling has delayed justice for the family of the victims killed by the murderer who now seeks to live.

Extreme Makeover To Rebuild Home Damaged By Ike

blog@www.houstoninsuranceclaimslawyer.com (news Author)12293 — Thu, 21 Jan 2010 08:00:00 EST

Kemah family to be featured on Extreme Makeover: Home Edition

Houston Business Journal

A Kemah family whose house was severely damaged by Hurricane Ike had their home rebuilt as part of the largest project for national reality television show, Extreme Makeover: Home Edition.

When Melissa and Larry Beach returned to their home in Kemah after evacuating due to Hurricane Ike, they found that their house had been severely damaged by flooding and wind.

High school sweethearts Melissa and Larry Beach have fostered 80 children in their 23 years of marriage.

FEMA gave the family of 15, including 13 children, two trailers for about a year. Since the fall of 2009, the Beaches have been living out of one small trailer in their backyard.

ABC's Extreme Makeover: Home Edition and volunteers began the process of building a new home for the Beach family in Kemah on Jan. 7. The reveal of the 6,300-square-foot home took place a week later. The episode featuring the new home will air in March.

The Beach family was nominated for the rebuild project by the Kemah city council, state representatives and local congressmen.

Stafford-based Cosentino, maker of Silestone natural quartz, donated Silestone surface applications to all homes rebuilt as part of Extreme Makeover: Home Edition this season at a value of about $500,000.

Cosentino employees and executives also were personally involved in the buildout of the Beach home.

Blu Shields Construction, a division of Texas City-based Energy Solution Homes, also partnered with Extreme Makeover: Home Edition

Texas Offer of Settlement Rule

bdurrett@sbcglobal.net (blog Author)25414 — Thu, 21 Jan 2010 08:00:00 EST

An article on Law.com discusses the unintended consequences of Florida's procedural offer of settlement law in tobacco litigation. As originally enacted, the procedural rule was designed to encourage settlements. However, in practice, the tobacco companies are using the rule to shift the defense costs of tobacco litigation from the manufacturers to the smokers.

Litigants suing tobacco companies for wrongful death, negligence, fraud and deceit in cases potentially worth millions of dollars are receiving nominal settlement offers on their claims. The typical settlement offers are less than $1,000. If the claimants refuse to accept the nominal settlement and lose at trial, pursuant to the procedural rules, they become liable for the tobacco companies attorney's fees and litigation costs. The result of the rule is that smokers are refusing to prosecute lawsuits against tobacco companies for fear of being forced into financial ruin, if they lose.

In 2004, the Texas Supreme Court enacted procedural rules governing post filing offers of settlement similar to Florida's statute. In Texas, if a plaintiff rejects a settlement offer and does not recover a judgment that is at least 120% more than the rejected offer, the plaintiff can be liable for the defendant's reasonable attorney's fees, up to the cost of two expert witnesses and court costs. In my practice, I have not seen the offer of settlement rule used extensively. Accordingly, I do not have an opinion on it. However, in high stakes litigation, whether there is a significant chance of losing at trial, such as smoker litigation, the offer of settlement rule operates to effectively close the courthouse door to any would be plaintiffs.

TWIA Stands By Work Product Privilege In Hurricane Ike Litigation

blog@www.houstoninsuranceclaimslawyer.com (news Author)12153 — Mon, 11 Jan 2010 08:00:00 EST

An interesting article appeared in the Southeast Texas Record on January 7, 2010. In Hurricane Ike litigation, TWIA has raised the work product privilege as an excuse to refuse to produce documents containing communications between its representatives in relation to probable Hurricane Ike litigation.

Conversely, the attorney for the League City plaintiff asserts that TWIA can not raise the work product privilege to cover documents containing communications between TWIA's representatives prior to the time TWIA anticipated litigation in the case.

In this case, TWIA asserts that it anticipated litigation prior to Hurricane Ike making landfall because of its experience handling prior Texas hurricanes.

The work product privilege is a privilege that exists to protect communications between a party and its representatives and only applies to materials prepared, mental impressions developed, and communications made in anticipation of litigation or for trial. The primary purpose for the work product privilege is to protect the mental processes, conclusions and legal theories of the attorney and provide a privileged area so the attorney can analyze and prepare the case for trial.

Texas Rule of Civil Procedure 192.5(a) states that to qualify as work product, materials must have been prepared or mental impressions developed in anticipation of litigation or trial - that is, after the occurrence or transaction on which the suit is based.

In most first insurance party claim cases, the date of occurrence can not arise prior to the carrier's denial of coverage. Thus, I anticipate that the court will rule that all documents containing communications between TWIA's representatives in relation to probable Hurricane Ike litigation, but that occurred prior to the denial of insurance coverage will be ruled discoverable.

J. Brantley Durrett, III Inducted into the Million Dollar Advocate Forum

blog@www.houstoninsuranceclaimslawyer.com (news Author)11733 — Thu, 17 Dec 2009 08:00:00 EST

J. Brantley Durrett has been inducted into the Million Dollar Advocates Forum. Established in 1993, the Million Dollar Advocates Forum is one of the most prestigious groups of trial lawyers in the United States. Membership is limited to attorneys who have won million dollar verdicts and settlements. There are over 3000 members throughout the country. Fewer than 1% of U.S. lawyers are members.

Houston Chronicle: Ike Case Hits New Obstacle

blog@www.houstoninsuranceclaimslawyer.com (news Author)11734 — Thu, 17 Dec 2009 08:00:00 EST

Ike case hits a new obstacle
Homeowners say insurer put up roadblock to one kind of arbitration

By PURVA PATEL
HOUSTON CHRONICLE

Dec. 12, 2009

As Scott and Alison Putman battle their flood insurer over the amount of their claim, they're using their own money to rebuild the Kemah house they lost to Hurricane Ike.

Alison Putman jumped through a lot of hoops to resolve a flood insurance claim after Hurricane Ike destroyed her waterfront Kemah home.

She spent days combing through estimates, appealed to state regulators and even wrote letters to lawmakers.
The insurer, which sold the policy on behalf of the federal flood insurance program, eventually agreed to meet her in appraisal, a kind of arbitration used to settle insurance disputes. But nearly six months later, Putman received a letter denying appraisal because she and the insurer, which declined to comment, didn't agree on what was damaged.

"We would have filed a lawsuit if we'd known. We chose appraisal because it's supposed to be an expeditious and quicker route," said Putman, who has already spent more than $25,000 on fees for an appraiser to represent her.
Being denied appraisal is yet another obstacle for some homeowners trying to resolve flood insurance claims more than a year after Ike damaged their homes. Some insurers, according to policyholders and their attorneys, are telling them they can't go to appraisal, which they hoped would resolve their flood insurance disputes more quickly and cheaply than suing.

In appraisals, the home-owner and insurer each hire separate damage appraisers to review the insurer's offer and choose a third appraiser who acts as an "umpire" and makes a binding ruling.
Flood experts noted that appraisal is usually used to determine the value of damaged property and not what is actually damaged. However, some policyholder advocates say a recent Texas Supreme Court ruling says otherwise and could affect future appraisals.

Texas property owners filed more than 43,000 flood insurance claims as a result of Ike. About 700 claims remain open, according to FEMA. Most federal flood insurance is sold and managed directly by insurance companies under a "Write Your Own" program.

A spokesman for the national flood program referred questions about Putman's claim to the local insurance agency that managed her policy.

Harleysville Mutual Insurance Co., which inherited Putman's claims after buying the flood business of Delta Lloyds Insurance Co. of Houston in November, sent Putman a letter denying the appraisal Delta had originally approved.
Delta Lloyds referred all questions to Harleysville Mutual, which declined to comment.
In its letter, Harleysville Mutual noted that appraisal was inappropriate because it didn't agree on scope, or amount of work to be done.

They can't control it

Policyholder attorneys say insurers don't generally like appraisal because it's a settlement tool they can't control.
The umpire's ruling is usually binding for the insurer but not the homeowner, said Martin Mayo, a policyholder attorney in Houston.

"We usually file suit and ask the court to send us to appraisal because it gives the judge a chance to know that if it's decided in appraisal, he doesn't have to see the case again," Mayo said.

Flood insurers often argue appraisal is meant to determine the cost of the work to be done, not the extent, and try to force homeowners to file a lawsuit, policyholder attorneys say.

But going to court is often not worth the money or time for homeowners because they can pursue only the amount of money they're entitled to under the policy. Homeowners can't recover other costs, such as attorneys' fees, or sue for bad faith, policyholder attorneys said.

But going to court is often not worth the money or time for homeowners because they can pursue only the amount of money they're entitled to under the policy. Homeowners can't recover other costs, such as attorneys' fees, or sue for bad faith, policyholder attorneys said.

"This means that there are absolutely no ramifications to a flood insurer for delaying, underpaying or under-investigating a claim," said Dax Faubus, a policyholder attorney.

A recent Texas Supreme Court ruling, however, may help homeowners push appraisals through.

In State Farm Lloyds v . Johnson, the court ruled that an appraisal can still go on even if there are disputes over what's covered by the policy, said Brant Durrett, a Houston attorney who sent a letter to Harleysville Mutual on Putman's behalf. "You can still go forward and set an amount of loss, and then the insurer can later deny it based on it not being covered. But it's no reason to stop the appraisal and not make an award for what is covered," he said.

Seeking litigation?

Putman's case remains uncertain.Despite her insurer's late letter denying the appraisal, the process seems to have gone on anyway. Putman's representative at appraisal received an e-mail from the umpire saying she should be awarded $267,000. But it's unclear if Harleysville Mutual will honor it.

"They seem to be setting it up to go to litigation," Putman said. "Appraisal is supposed to be cost-efficient and effective, but it will be neither if I have to spend another $20,000 to go to court."

ATRA's "Hellholes"; Bankrolled By Insurance, Tobacco, Big Pharma

blog@www.houstoninsuranceclaimslawyer.com (news Author)11741 — Thu, 17 Dec 2009 08:00:00 EST

ATRA's "Hellholes": Bankrolled by Insurance, Tobacco, Big Pharma

Washington, DC-The American Tort Reform Association (ATRA) today peddled its debunked and recycled "Hellholes" annual report - an effort bankrolled by insurance, tobacco, and drug companies to attack the civil justice system and gain complete immunity for their negligent behavior.

"For years, the most deceitful and predatory corporations have used front groups like ATRA to prevent everyday Americans from receiving justice," said American Association for Justice Communications Director Ray De Lorenzi. "As our country emerges from this current financial crisis, people realize more than ever why a strong civil justice system is needed to hold wrongdoers accountable. ATRA's report is yet another indication that corporations will say or do anything to weaken Americans' basic legal protections."

ATRA has been funded by corporate giants such as Philip Morris, Dow Chemical, Exxon, General Electric, Aetna, Geico, State Farm, Pfizer, Johnson & Johnson and Nationwide - a "who's who" of corporations with the most to gain by shutting the courthouse doors on consumers. Legal Times has also reported that, "most of ATRA's funding comes from large corporate donors. Insurance firms ... are each good for $50,000 or $75,000, one unnamed lobbyist familiar with the Association told the publication." ["Proponents of Reform," Legal Times, 4/17/95; ATRA website: http://www.atra.org/about/members.php]

Here's what the experts say about ATRA's report:

•ATRA's 2007 report was accurately described by the New York Times [Liptak, 12/24/2007] as having "no apparent methodology" and that "the question is whether the report's arguments make sense . . . the report often falls short." The 2008 and 2009 editions made no changes in this regard.

•"ATRA's hellhole campaign began in 2002, and it falls squarely within [the] tradition of scaring the public, but with a twist--this time the explicit goal is to appeal to the public as voters, to scare state politicians into making pro-defendant changes in the law in order to make the label go away, and to get rid of judges whose rulings made ATRA members unhappy. Judicial Hellholes are selected in whatever way suits ATRA's political goals. The choice is not based on research into the actual conditions in the courts." [Thornburg, West Virginia Law Review, Vol. 110 2008]
Flaws in Past "Judicial Hellhole" Reports:

•Wrong State. ATRA Forced to Admit Mistake in their 2005 "Hellhole" Report. Following the release of their 2005 "judicial hellhole" report, ATRA was forced to admit that they wrongly attacked the state of West Virginia for a major lawsuit that wasn't even filed in the state. According to the report, West Virginia's ranking as the third worst "hellhole" in America was based, in part, because of a lawsuit against the DuPont chemical company that was supposedly filed in the state. In fact, the lawsuit, which alleged that the company exposed consumers to toxic chemicals used to make their Teflon nonstick coatings, was not filed in West Virginia. When informed of the error by a reporter from the Charleston Gazette newspaper, ATRA posted a correction admitting the mistake on its website. However, the group refused to change West Virginia's ranking in the report. ["Tort reform group criticizes W.Va. for Fla. Lawsuit; Score unchanged despite admission error was made," Charleston Gazette (West Virginia), 12/15/05]

•Report and Facts Don't Match. According to the Associated Press, the County Identified By ATRA as a Top "Judicial Hellhole" Actually Saw a "Sharp Decline" in Asbestos and Class-Action Lawsuits. Beginning in 2002, ATRA singled-out Madison County, Illinois for being one of the worst of these "hellholes" in America. However, according to the Associated Press, Madison County actually experienced a sharp decline in both asbestos and class-action lawsuits. [ATRA website, http://www.atra.org/reports/hellholes/; "Lawsuits fall in Madison City," Associated Press, 12/28/04]

•The Cases Aren't There. One of ATRA's Top "Judicial Hellholes" Had Only Four Medical Malpractice Verdicts Favoring Plaintiffs Between 1996 and 2003. The Belleville News-Democrat reported that between 1996 and 2003, Madison County, Illinois - one of ATRA's top "judicial hellholes" - had only eleven medical malpractice and wrongful death cases that resulted in verdicts. Of these eleven verdicts, four favored plaintiffs. Moreover, only one of these pro-plaintiff verdicts exceeded $1 million. [Belleville News-Democrat, 7/18/04]

•It Doesn't Make Sense. West Virginia has climbed up ATRA's rankings despite enacting tort reform. In 2002, West Virginia was not even on ATRA's list, in 2003 the state was ranked fourth, in 2004 and 2005 the state had climbed to third and in 2006 the entire state was ranked first. During this time, West Virginia passed caps on medical malpractice damages, elimination of third party bad faith, and significantly changed workers' compensation and joint and several rules.

Texas consumer advocate wants ban on health insurers' blanket clauses

blog@www.houstoninsuranceclaimslawyer.com (news Author)11742 — Thu, 17 Dec 2009 08:00:00 EST

Texas consumer advocate wants ban on health insurers' blanket clauses

By TERRENCE STUTZ / The Dallas Morning News

AUSTIN - The state's insurance consumer advocate is seeking to eliminate the blanket authority of health and disability insurers to decide what their policies cover, a shift that could have a major impact on health insurance in Texas.

Public Insurance Counsel Deeia Beck has asked the state's insurance commissioner to end long-standing provisions in most health plans, called "discretionary" clauses, that give insurers the right to interpret their policies and decide what benefits must be paid.

"Consumers are now at the mercy of health insurers," Beck said.

The health insurance industry strongly opposes such a change. Insurance Commissioner Mike Geeslin has held a hearing on the proposal and is considering whether to move forward.

Twenty-two states have banned the practice, either through state law or new regulations. The National Association of Insurance Commissioners has recommended to its members that the practice be stopped.

"It's hard to defend giving insurance companies this kind of authority, where they have full discretion to interpret ambiguities in their policies," Beck said Wednesday. "No one disputes that an insurance carrier has the first right to make a determination on their claims. But there is a problem in how those decisions are reviewed and whether companies should be allowed to resolve all ambiguities in their favor."

Beck said disagreements typically arise over cancer drugs, mental illness coverage and home-based diabetes treatment. But insurers have the final say, and costs often figure into their decisions.

"Typically, they hire their own in-house physicians or they contract with physicians - who are paid by the insurance carrier - to review the medical records and make a judgment on whether a claim should be paid. It is an inherently unfair process," she said.

Consumers unhappy with their insurer's decision can go to court. But to overturn a decision, the consumer must prove the insurer acted unreasonably, a legal standard that strongly favors the insurer in most cases.

That requirement stacks the deck in favor of insurance companies and allows them to reject claims without worry, Beck said.

Eliminating discretionary clauses will remove that advantage and force insurers to be even-handed in deciding whether to pay medical and disability claims, she added.

A spokeswoman for the health insurance industry took issue with Beck's arguments, contending that dropping the clauses from policies would be a serious mistake that would harm consumers.

"It would lead to more litigation, higher costs for insurance and not be in the best interests of consumers," said Jennifer Ahrens Cawley, executive director of the Texas Association of Life and Health Insurers, which has urged Geeslin to reject the proposal.

"More lawsuits will increase the cost of health plans," she added. "And it is medium and small-sized employers who will bear the brunt of those higher costs in their plans and who may be forced to offer reduced benefits or no benefits at all."

Cawley said insurers already fall under government regulations, fiduciary rules and court precedents that require consumer protections.

"The obligation is already there for the insurer to make these benefit determinations in a uniform, nonarbitrary fashion," she said.

She dismissed the decisions of other states to ban discretionary clauses, saying, "Texas has always demonstrated a strong sense of consumer protection" in its insurance laws, such as requiring prompt payment of claims by insurance companies.

There are no independent studies on what has happened to insurance rates in those states, but an industry-funded study estimated that removal of discretionary authority for insurers will ultimately cause a 3 percent to 4 percent spike in premiums.

Ben Gonzalez, a spokesman for the Department of Insurance, said the commissioner has a Dec. 28 deadline to decide whether the agency will start writing rules to limit or ban discretionary clauses. If Geeslin opts not to begin rule-making, insurers will retain their unrestricted right to determine benefits.

Consumer advocates see Geeslin, an appointee of Republican Gov. Rick Perry, as leaning toward the industry in his decisions. Health care and insurance, including car and homeowners, are expected to be major topics in next year's state campaigns.

Some states have addressed the discretion issue by requiring independent, third-party reviews of benefits disputes. Although Geeslin could take similar action in Texas, he is not expected to do so even if he strips insurers of their blanket authority to decide what claims are covered.

Several legislators, including Sen. Rodney Ellis, D-Houston, and Rep. Mark Shelton, R-Fort Worth, are backing Beck's recommendation, according to officials in Beck's office.

Beck's office produced examples of the provisions that are included in health insurance policies sold in Texas. One states: "The company has sole authority to manage this policy, to administer claims, to interpret policy provisions and to resolve questions arising under this policy. Any decision the company make in the exercise of its authority shall be conclusive and binding."

Another reads: "Benefits under this plan will be paid only if the plan administrator or its designee decides in its discretion that the applicant is entitled to them."

Beck has received strong support from leading consumer groups, including AARP and Texas Watch.

"Many of our members are worried about their insurance coverage being there when they need it," said Tim Morstad of AARP.

"In the last decade or so there has been a dramatic increase in the number of cases where individuals have been denied claims under these provisions," he said.

Morstad said it can be frustrating for consumers who have a hard time finding out exactly why they were turned down by their insurer. And their chances for success in a lawsuit are slim because of the favorable legal position that insurers hold.

Earlier this month, a federal appeals court upheld a Montana law barring insurers from using discretionary clauses in their insurance policies. The law had been challenged by leading insurance companies.

State Farm Lloyds Appeals $310 Million Refund Order

bdurrett@sbcglobal.net (blog Author)22923 — Sat, 05 Dec 2009 08:00:00 EST

The Houston Chronicle is reporting that State Farm Lloyds has filed an appeal to a Texas Department of Insurance order to pay home insurance policyholders $310 million in refunds and interest for alleged overcharges going back as far as 2003.

Spokesman Kevin Davis says Texas' largest home insurer filed a motion for a rehearing with the Texas Department of Insurance.

Davis says the company also plans to file an appeal in Travis County district court.

Texas Insurance Commissioner Mike Geeslin issued the repayment order last week saying it completes reforms started six years ago by Texas lawmakers.

The order stems from a 6-year-old case in which regulators ordered the company to cut its rates 12 percent.

The appeal will halt repayments until the courts resolve the case.

DTPA Lawsuit Settled For $4,850,000

bdurrett@sbcglobal.net (blog Author)22449 — Wed, 25 Nov 2009 08:00:00 EST

On November 24, 2009, The Houston Chronicle reported that Conn's has agreed to pay $4,500,000 to settle a lawsuit brought by the Texas Attorney General's Office after receiving 3,500 complaints about the electronics retailer. The settlement money will go toward a restitution fund on behalf of defrauded customers. In addition, Conn's has agreed to pay $250,000 in attorney's fees and $100,000 to the University of Houston Law Center - Center for Consumer Law.
Despite the settlement, Conn's continues to deny liability even going as far as to say that the "... suit was without merit...". The Attorney General filed suit in May, 2009. Among other things, the Chronicle reports that it is alleged that Conn's failed to honor warranties, deceptively exchanged refurbished products as new, did not repair items promptly, and refused to give refunds or replace defective products.

One of the legal theories for the lawsuit was for violations of the Texas Deceptive Trade Practices Act. The Act provides statutory remedies for various misrepresentations and breach of warranties. In addition to actual damages, the DTPA allows consumers to recover their attorney's fees for violations of the DTPA. If "knowing" conduct is involved the trier of fact may award up to three times actual damages as well as damages for mental anguish.

From the article it appears Conn's remains recalcitrant. Seriously, if Conn's makes a practice of settling meritless claims for nearly $5,000,000, it will soon go broke.

Conroe Car Accident Kills Three

bdurrett@sbcglobal.net (blog Author)20179 — Sat, 17 Oct 2009 08:00:00 EST

According to an ABC news report, on Friday, October 16, 2009, at around 10:15 a.m. a major car accident occurred in Conroe, Texas at the intersection of FM 1314 (Porter Road) and Loop 336. Apparently a Mazda was traveling northbound on FM 1314 when a Dodge Ram 3500 pickup truck traveling east on Loop 336 ran a red light where the roads intersected. The Dodge pickup truck struck the side of the Mazda and pushed it into a Mercedes in the westbound lane of 336 waiting to turn onto FM 1314. A fourth vehicle was involved in the accident when the Mercedes was pushed into it. According to the police, witnesses say that the driver of the Dodge pickup truck, 18 year old Casey McKinley, was traveling at a high rate of speed.

The dead are identified as Splendora, Texas residents: Craig Rector, 50, his daughter, Felicia Hicks, 20, and her husband, Freedom Fitch, 24. Hicks and Fitch have a two year old daughter, Anabelle, who was not with them at the time of the automobile crash. McKinley, the driver of the Dodge pickup truck and the driver of one of the other vehicles were taken by ambulance to a local hospital. McKinley was arrested and charged with three counts of manslaughter.

According to the 2008 Texas Department of Transportation Motor Vehicle Crash Statistics, there were 16 deaths and 387 serious injuries in Conroe. In Montgomery County, as whole, there were 67 fatalities and 1,779 serious injuries involving car accidents in 2008.

What a tragedy! I offer my deepest condolences to the family and friends of Craig Rector, Felicia Hicks and Freedom Fitch. This needless and senseless accident did not have to happen. It has caused endless pain and misery for those involved. Young Annabelle is now an orphan and will have to be reared by family and friends of the deceased. Casey McKinley is facing criminal prosecution. Aside from having to answer to the law, he will have to live with the events of this day for the rest of his life. The community, as a whole, and the families of those involved have suffered a terrible loss.

Fatal Houston Car Accident Involving Stalled Car

bdurrett@sbcglobal.net (blog Author)20181 — Sat, 17 Oct 2009 08:00:00 EST

The Houston Chronicle is reporting that Quineisha Callahan, a rear seat passenger in a black Mercury Cougar, died on October 16, 2009 after the car she was riding in with two others stalled on I-45 at the Pierce Elevated at 3:00 o'clock a.m. A Ford F-150 pickup slammed in the back of the stalled car. The driver and front seat passenger of the Mercury Cougar were taken with non-life threatening injuries for treatment at Ben Taub General Hospital. The driver of the Ford F-150 pickup was also seriously injured.

I offer my condolences to the family and friends of Quineisha Callahan. Please keep them in your prayers.

According to the 2008 Texas Department of Transportation Motor Vehicle Crash Statistics, there were 216 deaths and 6,942 serious injuries in Houston car accidents. In Harris County, as whole, there were 360 fatalities and 11,068 serious injuries involving car accidents in 2008. Statewide in 2008, there were 12 fatal crashes and 162 serious injury crashes resulting from being parked in a traffic lane.

This accident is still being investigated. but the news reports have not provided many details. I would like know why the stalled Mercury Cougar was not driven to the shoulder of the highway. Were the Mercury Cougar's emergency lights flashing? Were alcohol or drugs involved? Was Ford F-150 truck driver's view of the Cougar obstructed or was he traveling to close to the car? The answers to these and other questions will determine if there is any negligence involved in the Houston car accident and on whose part. Car accident victims and/or their family members will be well served to contact an experienced Houston car accident attorney, who will help investigate the circumstances of the accident and determine where fault lies. If negligent parties are involved, they should be held accountable.

Baytown Car Accident Kills Three

bdurrett@sbcglobal.net (blog Author)19279 — Wed, 30 Sep 2009 08:00:00 EST

Aaron Lee Bishop, 23, Marshall Donnie Head III, 20, and Matthew Cole Smith, 24, were killed on the early morning of September 30, 2009 on Bayway near Park in Baytown, Texas. An ABC News report stated that a vehicle traveling north on Bayway attempted to pass two other vehicles at a high rate of speed, according to police. Apparently, the vehicle went across both oncoming lanes of traffic before over-correcting and coming back across the roadway. The vehicle rolled over at least once and came to rest in a ditch on the roadway. The people in all three cars knew one another and Baytown Police are still investigating to get a better idea of what happened.

I offer my deepest condolences to the relatives and friends of the Bishop, Head and Smith families. Please keep them in your prayers.

According to the 2008 Texas Department of Transportation Motor Vehicle Crash Statistics, there were 15 deaths and 318 serious injuries in Baytown. In Harris County as whole, there were 360 fatalities and 11,068 serious injuries involving car accidents in 2008.

This news report has very little information about the circumstances leading to this fatal Baytown car crash. There is no mention of the involvement of alcohol or driver error/distraction in this car crash. I hope investigators are looking into whether there was any mechanical malfunction in the car, which caused the driver to lose control. There are other questions that arise here. What brand and model of car was being driven? Did another vehicle cause the car crash? Was there a dangerous condition on the roadway that may have caused or contributed to the Texas car crash? The answers to these questions will help determine who or what caused this tragic car accident and whether there was any negligence or wrong doing involved. Car accident victims and/or their family members will be well served to contact experienced Harris County car accident attorneys, who will help investigate the circumstances of the accident and determine where fault lies. If negligent parties are involved, they must be held accountable.