Court Rules Fort Worth Nonsubscriber Employer’s Negligence Must Be A Cause In Fact Of Injury–Ft Worth Nonsubscriber Defense Attorneys

Court Rules Fort Worth Nonsubscriber Employer’s Negligence Must Be A Cause In Fact Of Injury

TEXAS NON-SUBSCRIBER DEFENSE LAW–Fort Worth Lawsuit
Employer’s Negligence Must Be A Cause In Fact Of Injury
Hang On II, Inc. v Tuckey 1998 WL 559791 (Tex. App.-Fort worth) August 31,
1998
The trial court awarded the employee $84,500 for injuries sustained when she fell from steps at work (a topless bar). She was climbing the steps to retrieve drink glasses and alleged that the Employer was negligent because there was inadequate lighting and no guard rail.
The Fort Worth Court of Appeals reversed and rendered a judgment that the employee take nothing. There was no evidence that Hang-On’s negligence proximately caused the employee’s injury.
The mere occurrence of an injury at work, standing alone, is not probative evidence that the injury occurred because of negligence. There was no testimony that the employee fell because of the inadequate lighting or lack of a guard rail. All Hang-On did was to furnish a condition that made injury possible. There was no evidence that condition caused the injury.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas nonsubscriber defense attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

The Civil Rights Act of 1991–EEOC–Fort Worth, Texas Employment Discrimination Defense Attorneys

The Civil Rights Act of 1991

 

TITLE I – FEDERAL CIVIL RIGHTS REMEDIES

 

DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION

 

SEC. 102

 

The Revised Statutes are amended by inserting after section 1977 (42 U.S.C. 1981) the following new section:

 

“SEC. 1977A. DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION IN EMPLOYMENT. [42 U.S.C. 1981a]

 

“(a) RIGHT OF RECOVERY. –

 

 

“(1) CIVIL RIGHTS. – In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act (42 U.S.C. 2000e-2 or 2000e-3), and provided that the complaining party cannot recover under section 1977 of the Revised Statutes (42 U.S.C. 1981), the complaining party may recover compensatory and punitive damages as allowed in subsection (b), in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.

 

“(2) DISABILITY. – In an action brought by a complaining party under the powers, remedies, and procedures set forth in section 706 or 717 of the Civil Rights Act of 1964 (as provided in section 107(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12117(a)), and section 505(a)(1) of the Rehabilitation Act of 1973 (29 U.S.C. 794a(a)(1)), respectively) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791) and the regulations implementing section 501, or who violated the requirements of section 501 of the Act or the regulations implementing section 501 concerning the provision of a reasonable accommodation, or section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112), or committed a violation of section 102(b)(5) of the Act, against an individual, the complaining party may recover compensatory and punitive damages as allowed in subsection (b), in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.

 

“(3) REASONABLE ACCOMMODATION AND GOOD FAITH EFFORT. – In cases where a discriminatory practice involves the provision of a reasonable accommodation pursuant to section 102(b)(5) of the Americans with Disabilities Act of 1990 or regulations implementing section 501 of the Rehabilitation Act of 1973, damages may not be awarded under this section where the covered entity demonstrates good faith efforts, in consultation with the person with the disability who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business.

 

“(b) COMPENSATORY AND PUNITIVE DAMAGES. –

 

 

“(1) DETERMINATION OF PUNITIVE DAMAGES. – A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.

 

“(2) EXCLUSIONS FROM COMPENSATORY DAMAGES. – Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964.

 

“(3) LIMITATIONS. – The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party –

 

 

“(A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;

 

“(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and

 

“(C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and

 

“(D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000.

 

“(4) CONSTRUCTION. – Nothing in this section shall be construed to limit the scope of, or the relief available under, section 1977 of the Revised Statutes (42 U.S.C. 1981).

 

“(c) JURY TRIAL. – If a complaining party seeks compensatory or punitive damages under this section –

 

 

“(1) any party may demand a trial by jury; and

 

“(2) the court shall not inform the jury of the limitations described in subsection (b)(3).

 

“(d) DEFINITIONS. – As used in this section:

 

“(1) COMPLAINING PARTY. – The term ‘complaining party’ means –

 

 

“(A) in the case of a person seeking to bring an action under subsection (a)(1), the Equal Employment Opportunity Commission, the Attorney General, or a person who may bring an action or proceeding under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); or

 

“(B) in the case of a person seeking to bring an action under subsection (a)(2), the Equal Employment Opportunity Commission, the Attorney General, a person who may bring an action or proceeding under section 505(a)(1) of the Rehabilitation Act of 1973 (29 U.S.C. 794a(a)(1)), or a person who may bring an action or proceeding under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.).

 

“(2) DISCRIMINATORY PRACTICE. – The term ‘discriminatory Practice’ means the discrimination described in paragraph (1), or the discrimination or the violation described in paragraph (2), of subsection (a).

 

ATTORNEY’S FEES

 

[This section amends section 722 of the Revised Statutes (42 U.S.C. 1988) by adding a reference to section 102 of the Civil Rights Act of 1991 to the list of civil rights actions in which reasonable attorney’s fees may be awarded to the prevailing party, other than the United States.]

 

SEC. 103

 

The last sentence of section 722 of the Revised Statutes (42 U.S.C. 1988) is amended by inserting “, 1977A” after “1977”.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas employment law defense lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Must Specifically Plead To Invoke The Trial Court’s Jurisdiction To Render Judgment For Attorney Fees–Texas Workers’ Compensation Attorneys

ATTORNEY FEES in Texas Workers’ Compensation Cases–Pleadings

Even In a SIBs Case, Claimant Must Specifically Plead For Fees To Invoke The Trial Court’s Jurisdiction To Render Judgment For Attorney Fees
Rodriguez v. Ysleta Independent School District,, 2001 WL 125874 (Tex.App.-El Paso)
February 15, 2001

Claimant was denied SIBs by the Hearing Officer, and that decision was affirmed by the AP. Rodriguez pursued that quarter to District Court where he prevailed. However, he did not plead for attorney fees. The judge denied his request for carrier-pay fees.
The appellate court stated that there are only two exceptions to the rule that fees are to be paid “from the Claimant’s recovery”: where an insurance carrier unsuccessfully challenges a Commission order awarding SIBs, or when suing to enforce a final order of the Commission, with which the carrier has failed to comply. Neither exception of the Act applied in this case because the Carrier won at the administrative level.
Because the statute did not expressly provide for attorney fees in this situation, those fees must have been requested in the pleadings.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas workers’ compensation insurance defense lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Contractor’s Final Release and Waiver of Lien–Fort Worth, Texas Construction Attorneys

CONTRACTOR’S FINAL RELEASE AND WAIVER OF LIEN
Project/ Owner
Contractor
Project:
Name:
Address:
Address:
Contractor Licence:
Contract Date:
/____/
TO ALL WHOM IT MAY CONCERN:

For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned Contractor hereby waives, discharges, and releases any and
all liens, claims, and rights to liens against the above-mentioned project, and any and all other
property owned by or the title to which is in the name of the above-referenced Owner and
against any and all funds of the Owner appropriated or available for the
construction of said project, and any and all warrants drawn upon or issued against any such
funds or monies, which the undersigned Contractor may have or may hereafter acquire or
possess as a result of the furnishing of labor, materials, and/or equipment, and the performance
of Work by the Contractor on or in connection with said project, whether under and pursuant to
the above-mentioned contract between the Contractor and the Owner pertaining to said project
or otherwise, and which said liens, claims or rights of lien may arise and exist.
The undersigned further hereby acknowledges that the sum of ___
Dollars ($) constitutes the entire
unpaid
balance due the undersigned in
connection with said project whether under said contract or otherwise and that the payment of
said sum to the Contractor will constitute payment in full and will fully satisfy any and all liens,
claims, and demands which the Contractor may have or assert against the Owner in connection
with said contract or project.
Witness to Signature:
Dated this ___day of _______20__

Contractor
By:
____

Title:

Owner:

____

 

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas construction lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Reasonable Investigation Requirement and Waiver of Appraisal Right Issue–Texas Insurance Defense Litigation Attorneys

EDM Office Services, Inc. v. Hartford Lloyds Ins. Co.
United States District Court,
S.D. Texas,
Houston Division.
EDM OFFICE SERVICES, INC., Plaintiff,
v.
HARTFORD LLOYDS INSURANCE
COMPANY, et al., Defendants.
Civil Action No. H–10–3754. July 1, 2011.

Opinion
MEMORANDUM AND ORDER
LEE H. ROSENTHAL, District Judge.
*1 This is a suit to recover insurance proceeds and damages
under the Texas Insurance Code and common law. The
insurer, Hartford Lloyds Insurance Company (“Hartford”)
has moved to compel appraisal under an insurance policy
issued to EDM Office Services, Inc. (“EDM”). (Docket Entry
No. 13). EDM opposes the motion on the grounds that
Hartford has not complied with the conditions precedent
identified in the insurance policy for appraisal because
it has not conducted a reasonable investigation of his
claims. Alternatively, EDM argues that Hartford waived its
contractual right to seek appraisal. EDM also argues that this
court should wait to order appraisal. (Docket Entry No. 19).
Based on a careful consideration of the record and the
applicable law, this court finds that this case involves a
dispute over the cost of repairing damaged property that is
subject to appraisal. This court also finds that EDM did not
waive its right to invoke appraisal or fail to comply with the
conditions precedent to do so. The motion to compel appraisal
is granted. The litigation is stayed pending the appraisal
process as to the valuation issues, but will proceed as to the
coverage issues.
The reasons for this ruling are set out below.
I. Background
EDM conducts its business operations from a building
in Houston, Texas. Hartford issued the insurance policy
covering the property. Hurricane Ike hit the Gulf Coast area
in September 2008. EDM claims that the hurricane damaged
the property roof and that water intrusion caused damage
throughout the building, including damages to its ceiling,
walls, insulation, flooring, and inventory. On September
22, 2008, EDM notified Hartford of the property damage.
Hartford sent Stephen Scott, an insurance adjuster, to EDM’s
property. Scott estimated that the property damages totaled
$8,136.57, though EDM points out that this estimate did not
include “overhead & profit.” (Docket Entry No. 19, Ex. C,
Scott’s First Estimate and Report); (Docket Entry No. 19, at
12). Scott’s report also stated that the damages were likely
related to “wind driven rain” and from water entering the
property under doors. (Docket Entry No. 19, Ex. C, Scott’s
First Estimate and Report). Hartford applied a recoverable
depreciation of $1,283.27 and the policy’s $50,160.00 and
did not issue payment for the building portion of the claim
because it was below the deductible.
EDM has also not been compensated for its businessloss
claims. The parties dispute the reasons for this. EDM
argues that Hartford denied the business-loss claims because
it determined that the losses were not covered under the
policy. Hartford responds that EDM failed to submit “all the
requested information from Plaintiff in order to adjust the
business personal property loss, including signed Release of
Information and/or documentation to support the cost paid by
Plaintiff for the items claimed.” (Docket Entry No. 13, at 4).
EDM filed suit in state court on September 2, 2010, and
Hartford removed to this court. The state-court petition
alleges both coverage and valuation claims. It alleges that
“Hartford wrongfully denied Plaintiff’s claim for repairs of
the property, even though the Policy provided coverage
for losses such as those suffered by Plaintiff. Furthermore,
Hartford underpaid some of Plaintiff’s claims by not
providing full coverage for the damages sustained by
Plaintiff, as well as underscoping the damages during its
investigation.” (Docket Entry No. 1, Ex. 2, State–Court
Petition, ¶ 20). The parties attempted to mediate their dispute,
but failed to reach an agreement.
*2 On May 25, 2011, Hartford moved to compel appraisal.
The policy’s appraisal provision states:
EDM Office Services, Inc. v. Hartford Lloyds Ins. Co., Slip Copy (2011)
© 2011 Thomson Reuters. No claim to original U.S. Government Works. 2
1. Appraisal
….
If we and you disagree on the amount of loss (or
net income or operating expense as regards Business
Income Coverage), either may make written demand for an
appraisal of the loss. In this event, each party will select a
competent and impartial appraiser and notify the other of
the appraiser selected within 20 days of such demand. The
two appraisers will select an umpire. If they cannot agree
within 15 days upon such umpire, either may request that
selection be made by a judge of a court having jurisdiction.
Each appraiser will state the amount of the loss. If they fail
to agree, they will submit their differences to the umpire.
A decision agreed to by any of the two will be binding as
to the amount of loss…. If there is an appraisal … we will
still retain our right to deny the claim.
(Docket Entry No. 13, Ex. A).
In his response to the motion to compel, EDM argues that
Hartford cannot demand appraisal because it failed to conduct
a reasonable investigation of his claims, which EDM asserts is
a condition precedent to invoking appraisal. EDM argues that
the following language from the insurance policy obligates
Hartford to conduct a reasonable investigation before seeking
appraisal:
(1) Claims Handling
(a) Within 15 days after we receive written notice of the claim,
we will:
(i) Acknowledge receipt of the claim. If we do not
acknowledge receipt of the claim in writing we will
keep a record of the date, method and content of the
acknowledgment;
(ii) Begin any investigation of the claim; and
(iii) Request a signed, sworn proof of loss, specify the
information you must provide and supply you with the
necessary forms. We may request more information at a
later date, if during the investigation of the claim such
additional information is necessary.
(b) We will notify you in writing as to whether:
(i) The claim or part of the claim will be paid;
(ii) The claim or part of the claim has been denied, and inform
you of the reasons for denial;
(iii) More information is necessary; or
(iv) We need additional time to reach a decision. If we need
additional time, we will inform you of the reasons for such
need.
We will provide notification, as described in (b)(i) through
(b)(iv) above within:
(i) 15 business days after we receive the signed, sworn proof
of loss and all information we requested; or
(ii) 30 days after we receive the signed, sworn time to reach
a decision, we must then either approve or deny the claim
within 45 days of such notice.
If we notified you that we need additional time to reach a
decision, we must then either approve or deny the claim
within 45 days of such notice.
(Docket Entry No. 19, Ex. H). EDM also argues that
Hartford’s investigation was not reasonable because it did
not comply with sections 542.056 and 541.060 of the Texas
Insurance Code. Section 542.056 states:
*3 (a) Except as provided by Subsection (b) or (d), an
insurer shall notify a claimant in writing of the acceptance
or rejection of a claim not later than the 15th business day
after the date the insurer receives all items, statements, and
forms required by the insurer to secure final proof of loss.
(b) If an insurer has a reasonable basis to believe that a loss
resulted from arson, the insurer shall notify the claimant
in writing of the acceptance or rejection of the claim not
later than the 30th day after the date the insurer receives all
items, statements, and forms required by the insurer.
(c) If the insurer rejects the claim, the notice required
by Subsection (a) or (b) must state the reasons for the
rejection.
(d) If the insurer is unable to accept or reject the claim within
the period specified by Subsection (a) or (b), the insurer,
within that same period, shall notify the claimant of the
reasons that the insurer needs additional time. The insurer
shall accept or reject the claim not later than the 45th day
after the date the insurer notifies a claimant under this
subsection.
EDM Office Services, Inc. v. Hartford Lloyds Ins. Co., Slip Copy (2011)
© 2011 Thomson Reuters. No claim to original U.S. Government Works. 3
TEX. INS.CODE § 542.056. Section 541.060 states:
(a) It is an unfair method of competition or an unfair or
deceptive act or practice in the business of insurance to
engage in the following unfair settlement practices with
respect to a claim by an insured or beneficiary:
….
(2) failing to attempt in good faith to effectuate a prompt, fair,
and equitable settlement of:
(A) a claim with respect to which the insurer’s liability has
become reasonably clear;
….
(3) failing to promptly provide to a policyholder a reasonable
explanation of the basis in the policy, in relation to the facts
or applicable law, for the insurer’s denial of a claim or offer
of a compromise settlement of a claim;
(4) failing within a reasonable time to:
(A) affirm or deny coverage of a claim to a policyholder; or
(B) submit a reservation of rights to a policyholder;
….
(7) refusing to pay a claim without conducting a reasonable
investigation with respect to the claim; ….
TEX. INS.CODE § 542.060(a)(2)-(4), (7). EDM argues
that Hartford failed to comply with these contractual and
statutory duties by: “not send[ing] a written acknowledgment
of the claim within 15 days of notice”; “unreasonably delay
[ing] [denial of] Plaintiff’s building damage claim, although
Plaintiff had provided Defendant with all the information
and documents requested to evaluate and settle the claim
[and] [misrepresenting] on November 20, 2008 that it had not
received the Adjuster’s report even though it was received
on October 28, 2008”; “fail[ing] to include any amount for
overhead and profit in its estimate of the damages to Plaintiffs’
building”; “misrepresent[ing] to Plaintiffs that BPP claim
was covered under the policy when Hartford in fact denied
liability for lack of coverage”; and “unreasonably delay[ing]
in denying Plaintiff’s BPP claim by sending a denial letter
on August 11, 2009, although Hartford already decided on
January 23, 2009 that no coverage existed.” (Docket Entry
No. 19, at 20). Finally, EDM argues that Hartford’s delay in
paying the claim waived its right to appraisal because the
delay prejudiced him.
II. Analysis
*4 Texas insurance policies frequently include provisions
specifying appraisal to resolve disputes about the amount of
loss under the policy. See State Farm Lloyds v. Johnson, 290
S.W.3d 886, 888–89 (Tex.2009). “An appraisal clause ‘binds
the parties to have the extent or amount of the loss determined
in a particular way .’ “ Id. at 895 (quoting In re Allstate
County Mut. Ins. Co., 85 S.W.3d 193, 195 (Tex.2002));
see also Lundstrom v. United Servs. Auto. Ass’n–CIC, 192
S.W.3d 78, 87 (Tex.App.-Houston [14th Dist.] 2006, pet.
denied) (“The effect of an appraisal provision is to estop one
party from contesting the issue of damages in a suit on the
insurance contract, leaving only the question of liability for
the court.”). An appraiser must “decide the ‘amount of loss,’
not to construe the policy or decide whether the insurer should
pay.” Johnson, 290 S.W.3d at 890. “Unless the ‘amount of
loss’ will never be needed … appraisals should generally go
forward without preemptive intervention by the courts.” Id.
at 895.
A. Conditions Precedent
Assuming, but not deciding, that Hartford failed to comply
with the “Claims Handling” provisions of the insurance
policy and with provisions of the Texas Insurance Code, this
does not prevent it from seeking appraisal because alleged
noncompliance with the “Claims Handling” provisions and
the Texas Insurance Code does not allege a failure to meet a
condition precedent to exercising appraisal rights. “In order to
determine whether a condition precedent exists, the intention
of the parties must be ascertained; and that can be done only
by looking at the entire contract.” Solar Applications Eng’g,
Inc. v. T.A. Operating Corp., 327 S.W.3d 104, 109 (Tex.2010)
(quoting Criswell v. European Crossroads Shopping Ctr.,
Ltd., 792 S.W.2d 945, 948 (Tex.1990)). “In order to make
performance specifically conditional, a term such as ‘if’,
‘provided that’, ‘on condition that’, or some similar phrase
of conditional language must normally be included.” Id.
(citing Criswell, 792 S.W.2d at 948). “While there is no
requirement that such phrases be utilized, their absence is
probative of the parties intention that a promise be made,
rather than a condition imposed.” Id. (citing Criswell, 792
S.W.2d at 948). The appraisal clause does not use conditional
language and EDM has not identified any provision in the
contract showing that the parties intended that Hartford
fully comply with the “Claims Handling” provisions and
EDM Office Services, Inc. v. Hartford Lloyds Ins. Co., Slip Copy (2011)
© 2011 Thomson Reuters. No claim to original U.S. Government Works. 4
Texas Insurance Code before seeking appraisal. See also
Butler v. Prop. and Cas. Ins. Co., Civ. A. No. H–10–3613,
2011 WL 217495, at *1 (S.D.Tex. June 3, 2011) (finding
that a similar insurance-policy appraisal provision does not
require compliance with claims handling provision before
seeking appraisal). Compliance with the “Claims Handling”
provisions and the Texas Insurance Code is not a condition
precedent to compelling appraisal.
B. Waiver
*5 The contractual right to appraisal may be waived. See,
e.g., In re Slavonic Mut. Fire Ins. Ass’n, 308 S.W.3d 556,
561 (Tex. App .-Houston [14th Dist.] 2010, orig. proceeding).
Waiver is defined as the “intentional relinquishment of a
known right.” JM Walker LLC v. Acadia Ins. Co., 356
F. App’x 744, 748 (5th Cir.2009) (per curiam) (summary
calendar) (unpublished). Courts applying Texas law follow
the standard articulated long ago in Scottish Union & Nat.
Ins. Co. v. Clancey, 71 Tex. 5, 8 S.W. 630, 632 (Tex.1888),
to determine whether an insurer’s acts amount to waiver:
“To constitute waiver, the acts relied on must be such as are
reasonably calculated to induce the assured to believe that a
compliance by him with the terms and requirements of the
policy is not desired, or would be of no effect if performed.
The acts relied on must amount to a denial of liability, or
a refusal to pay the loss.” 1 See, e.g., Woodward v. Liberty
Mut. Ins. Co., No. 3:09–CV–0228–G, 2010 WL 1186323,
at *4 (N.D.Tex. Mar.26, 2010); In re Sec. Nat’l Ins. Co. .,
No. 14–10–00009–CV, 2010 WL 1609247, at *5 (Tex.App.-
Houston [14th Dist.] Apr. 22, 2010, orig. proceeding) (mem.
op., not designated for publication); In re Slavonic Mut. Fire
Ins. Ass’n, 308 S.W.3d at 563.
1 Other cases quote similar language from Scottish Union
& Nat. Ins. Co. v. Clancey, 83 Tex. 113, 18 S.W. 439,
441 (Tex.1892): “[T]he acts relied on as constituting
a waiver should be such as are reasonably calculated
to make the assured believe that a compliance on his
part with the stipulations providing the mode of proof
of loss, and regulating the appraisement of the damage
done, is not desired, and that it would be of no effect
if observed by him.” See, e.g., JM Walker LLC, 356
F. App’x at 748; Sanchez v. Prop. & Cas., Ins. Co.
of Hartford, No. H–09–1736, 2010 WL 413687, at *4
(S.D.Tex. Jan.27, 2010).
“[W]hile an unreasonable delay is a factor in finding
waiver, reasonableness must be measured from the point of
impasse.” In re Universal Underwriters of Tex. Ins. Co.,
––– S.W.3d ––––, 2011 WL 1713278, at *3 (Tex. May
6, 2011). Determining whether the parties have reached an
impasse “requires an examination of the circumstances and
the parties’ conduct, not merely a measure of the amount of
time involved in seeking appraisal.” Id. “An impasse is not
the same as a disagreement about the amount of loss. Ongoing
negotiations … do not trigger a party’s obligation to demand
appraisal. Nor does an insurer’s offer of money to cover
damages necessarily indicate a refusal to negotiate further ….“
Id. “[M]ere delay is not enough to find waiver; a party must
show that it has been prejudiced.” Id. at *5. “Prejudice to
a party may arise in any number of ways that demonstrate
harm to a party’s legal rights or financial position.” Universal
Underwriters, ––– S.W.3d ––––, 2011 WL 1713278, at *5.
The Texas Supreme Court has observed that “it is difficult to
see how prejudice could ever be shown when the policy …
gives both sides the same opportunity to demand appraisal. If
a party senses that an impasse has been reached, it can avoid
prejudice by demanding an appraisal itself.” Id. at *7.
Waiver is an affirmative defense, and the party alleging
waiver has the burden of proof. JM Walker LLC, 356 F.
App’x at 748; Sanchez, 2010 WL 413687, at *4. Whether
certain circumstances constitute waiver is a question of law.
JM Walker LLC, 356 F. App’x at 748; see also Sanchez, 2010
WL 413687, at *4 (holding that although waiver is typically
a fact question, when the relevant facts are undisputed and
clearly established, a court may decide whether a party has
waived its contractual right to appraisal as a question of
law). “The trial court may determine whether an appraisal has
been waived as a matter of law at the preliminary stages of
litigation.” Sanchez, 2010 WL 413687, at *4 (quoting Laas v.
State Farm Mut. Auto. Ins. Co., No. 14–98–00488–CV, 2000
WL 1125287 at *6 (Tex.App.-Houston [14th Dist.] Apr. 22,
2010, orig. proceeding) (unpublished)).
*6 The parties have reached an impasse. They could
not successfully mediate their claims. EDM argues that
Hartford delayed seeking appraisal. EDM, however, has not
demonstrated prejudice. See Universal Underwriters, –––
S.W.3d ––––, 2011 WL 1713278, at *5 (“[M]ere delay is not
enough to find waiver; a party must show that it has been
prejudiced.”).
The Texas Supreme Court has explained that:
[to] constitute waiver the acts relied on must be such as
are reasonably calculated to induce the assured to believe
that compliance by him with the terms of the policy … is
not desired, or would be of no effect if performed. The acts
EDM Office Services, Inc. v. Hartford Lloyds Ins. Co., Slip Copy (2011)
© 2011 Thomson Reuters. No claim to original U.S. Government Works. 5
relied on must amount to a denial of liability or refusal to
pay the loss.
Universal Underwriters, ––– S.W.3d ––––, 2011 WL
1713278, at *2 (quoting Scottish Union, 8 S.W. at 632). “Or,”
as the court “more recently concluded, ‘[w]aiver requires
intent, either the intentional relinquishment of known right or
intentional conduct inconsistent with claiming that right.’ “
Id. (quoting In re Gen. Elec. Capital Corp., 203 S.W.3d 314,
316 (Tex.2006). The court has also explained that prejudice
can rarely be found on facts similar to those present here.
Id. at *5; see also Perry Homes v. Cull, 258 S.W.3d 580,
597 (Tex.2008) (defining prejudice for purposes of waiver
of arbitration as “the inherent unfairness in terms of delay,
expense, or damage to a party’s legal position” (quoted
in Universal Underwriters, –––S.W.3d ––––, 2011 WL
1713278, at *5)); In re Tyco Int’l Ltd. Sec. Litig., 422 F.3d
41, 47 n. 5 (1st Cir.2005) (“[A] party should not be allowed
purposefully and unjustifiably to manipulate the exercise of
its arbitral rights simply to gain an unfair tactical advantage
over the opposing party.” (quoted in Universal Underwriters,
––– S.W.3d ––––, 2011 WL 1713278, at *5); Menorah Ins.
Co., Ltd. v. INX Reinsurance Corp., 72 F.3d 218, 222 (1st
Cir.1995) (finding prejudice where party “incurred expenses
as a direct result of [opponent’s] dilatory behavior” (cited and
quoted in Universal Underwriters, ––– S.W.3d ––––, 2011
WL 1713278, at *5)). EDM has not shown prejudice. 2
2 EDM argues that Hartford’s delay prejudiced it because
“any appraisal award at this juncture would be
outside of the policy deadline for making a claim for
replacement cost.” (Docket Entry No. 19, at 24). EDM
points to a provision in his insurance policy stating that
an insured who elects, as EDM did, to make a claim
on an actual-cash-value basis has 180 days to change
the claim to a replacement-cost basis. EDM argues that
Hartford’s motion to compel appraisal prevents it from
exercising this right. EDM has identified no provision
in the insurance policy stating that an appraisal prevents
it from making its claim on a replacement-cost basis,
or that it cannot ask for a replacement-cost basis at
appraisal. This is not prejudice.
C. Whether to Stay the Litigation Pending Appraisal
EDM argues that this court should allow it additional
discovery pending appraisal on its claims that Hartford
violated the Texas Insurance Code and on its coverage claims.
“While [a] trial court has no discretion to deny the appraisal,
the court does have some discretion as to the timing of the
appraisal.” In re Allstate, 85 S.W.3d at 967. In many cases,
the litigation is stayed while appraisal is completed. See, e.g.,
Molzan, Inc. v. United Fire & Cas. Co., Civ. A. No. H–09–
01045, 2009 WL 2215092, at *5 (S.D.Tex. July 23, 2009); cf.
Johnson, 290 S.W.3d at 895 (“Unless the ‘amount of loss’ will
never be needed … appraisals should generally go forward
without preemptive intervention by the courts.”); Universal
Underwriters, ––– S.W.3d ––––, 2011 WL 1713278, at *2
(“Appraisals can provide a less expensive, more efficient
alternative to litigation ….”). But courts have held that when
a dispute involves both coverage and valuation disputes,
a court should stay the valuation portion of the case and
proceed with the coverage portion. See Glenbrook Patiohome
Owners Ass’n v. Lexington Ins. Co., 2011 WL 666517, at *10
(S.D.Tex. Feb.14, 2011) (“In this case, however, the record
makes clear that there are issues of both coverage and of loss
valuation. Under such circumstances, the part of the litigation
that involves loss valuation is appropriately stayed. The
part of the litigation that involves coverage issues, however,
should continue pending the appraisal.”). In this case, the
record makes clear that there are issues of both coverage
and of loss valuation. Under such circumstances, the part
of the litigation that involves loss valuation is appropriately
stayed. The part of the litigation that involves coverage issues,
however, should continue pending the appraisal.
III. Conclusion
*7 Hartford’s motion to compel appraisal, (Docket Entry No.
13), is granted. During the appraisal, this case will proceed on
coverage issues; the litigation on the loss valuation issues is
stayed. 3 The parties must notify this court when the appraisal
is concluded and the result within 14 days after the appraisers
issue their report.
3 In light of this court’s ruling, Hartford’s motion for
protection, (Docket Entry No. 14), is denied as moot.
EDM’s motion for leave to file excess pages, (Docket
Entry No. 18), is also denied as moot.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas insurance defense law attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Pre-lawsuit Insurance Policy Limit Disclosures

Law in Nevada Requiring Disclosure Of Insurance Policy Limits Repealed

 

Insurance companies writing policies in Nevada have for years been required to disclose their insured’s policy limit to Plaintiff’s attorneys if certain conditions were met.  However, Nevada’s 2015 legislature repealed the law, known as NRS 690B.042.  At this point, in Nevada, insurance companies no longer are required to disclose the liability limits of their insured before a lawsuit is filed.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas insurance defense lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Intoxication Exclusion in Group Life Insurance Policy With Accidental Death Benefit–Fort Worth Texas Contracts Lawyers

Likens v. Hartford Life and Acc. Ins. Co., — F.Supp.2d —- (2011)

United States District Court,
S.D. Texas,
Houston Division.
Cheryl LIKENS, Plaintiff,
v.
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY, Defendant.
Civil Action No. H–10–155. June 29, 2011.

Opinion
MEMORANDUM OPINION AND ORDER
GRAY H. MILLER, District Judge.
*1 This is a removal action wherein plaintiff seeks payment
of accidental death benefits under a policy of insurance.
Before the court are the parties’ cross-motions for summary
judgment. Dkts. 10, 11. After consideration of the motions,
responses, replies, exhibits, and the applicable law, plaintiff’s
motion (Dkt.10) is DENIED and defendant’s motion (Dkt.11)
is GRANTED.
BACKGROUND
Wesley Wood Vincent (“Vincent”) fell at his home on the
evening of February 23, 2008, and suffered injuries to his
cervical spine. Dkt. 1–1 at 10. He died as a result of that
injury on February 27, 2008. Id. The discharge summary from
the hospital listed his cause of death as “anoxic brain injury
secondary to cardiopulmonary arrest.” Id.
Vincent had a group life insurance policy with defendant
Hartford Life and Accident Insurance Company (“Hartford”),
obtained through Vincent’s employer, which provided a
benefit for “accidental” death. Dkt. 10–1 at 10. Plaintiff
Cheryl Likens is the listed beneficiary on the policy, and
she sought payment of the benefits. Id. Hartford denied the
claim due to Vincent’s intoxication at the time of his injury.
Dkt. 13–3 at 1–3. More specifically, Hartford relied upon
provisions of the Policy requiring that the injury must arise
from an accident “independently of all other causes,” and that
the policy excludes injuries “sustained as a result of being
legally intoxicated from the use of alcohol.” Dkt. 13–3 at
1–2. In Hartford’s view, Vincent’s death was “as a result of
being legally intoxicated from the use of alcohol,” Vincent
therefore “did not suffer bodily injury independent of all other
causes,” and no benefits were due. Id. at 2–3. Plaintiff sued in
state court to recover under the policy, and Hartford removed
the matter to this court on January 18, 2010, on the basis of
diversity of citizenship.
RELEVANT FACTS
1. The insurance policy.
The insurance policy in this case is a Group Benefits policy
issued by Hartford (“Policy”). Dkt. 10 at 12–29. The Policy,
which the parties agree was issued in August, 2004, provides
for an accidental death and dismemberment benefit for an
injury leading to death in the maximum amount of $300,000.
Dkt. 12 at 5–9. 1 An “injury” is defined as “bodily injury
resulting directly from accident and independently of all other
causes which occurs while [Vincent] is covered under the
Policy. Loss resulting from: a) sickness or disease …; or
b) medical or surgical treatment of a sickness or disease;
is not considered as resulting from injury.” Id. at 5. The
“Exclusions” section of the Policy provides in relevant part
as follows:
1 Plaintiff asserts that application of other applicable
Policy provisions results in a death benefit of $263,500
for Vincent. Dkt. 10 at 30. Hartford asserts that the death
benefit available for a covered injury is $250,000. Dkt.
11 at 3. Resolution of this dispute is not necessary to the
court’s ruling on the pending motions.
The Policy does not cover any loss resulting from … 8.
Injury sustained as a result of being legally intoxicated
from the use of alcohol. (For residents of Minnesota,
Exclusion 8 is deleted and is replaced by the following:
8. Injury sustained while operating a motor vehicle while
legally intoxicated from the use of alcohol.)
*2 Id. at 6.
2. Circumstances of Vincent’s death.
Likens v. Hartford Life and Acc. Ins. Co., — F.Supp.2d —- (2011)
© 2011 Thomson Reuters. No claim to original U.S. Government Works. 2
Vincent drank alcohol at a local bar on February 22, 2008,
and he arrived back home at approximately 11:30 p.m. Dkt.
12 at 14. An EMS report contains the following description
of events:
[F]amily state that [Vincent] went out drinking tonight and
that he was brought home by the bartender around 11 or
11:30. [Vincent’s] wife states that [he] was very intoxicated
and keep [sic] falling down, she states that she tried to help
him, but he told her that he was fine and that he was going
to sit out on the porch … her granddaughter came home and
found [Vincent] between the bbq pit and the hedge … she
moved him onto his back … [and] realized that he was not
breathing….
Dkt. 12 at 19. A hospital report confirms that plaintiff reported
an initial fall by Vincent, and that she also reported that
Vincent was unable to make it from the yard into the house.
Dkt. 12 at 26. A sheriff’s report for that same incident states
that it was Vincent’s daughter, Kayla Hutson, who later found
him on the ground, but she reported she was “not alarmed
[be]cause this was a regular occurrence.” Dkt. 12 at 32.
Vincent was transported to the hospital, and his serum blood
alcohol content shortly after the incident was reported as
being .328 mg/dl. Id. at 16. He never regained consciousness,
and his life support was removed on February 27, 2008. Dkt.
12 at 37. The cause of death was reported as “anoxic brain
injury secondary to cardiopulmonary arrest.” Id.
A Certificate of Death dated March 17, 2008, lists the
“immediate cause” of his death as “complications following
blunt trauma with fracture of cervical spine,” and the “manner
of death” is listed as “accident.” Dkt. 10 at 32. Also listed
under “significant conditions contributing to death but not
resulting in the underlying cause” is “chronic ethanolism.” Id .
ANALYSIS
I. Summary Judgment
A timely motion for summary judgment shall be granted “if
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.” FED.R.CIV.P. 56(c); see also Carrizales v. State
Farm Lloyds, 518 F.3d 343, 345 (5th Cir.2008). Upon a
defendant’s motion for summary judgment, the plaintiff “must
set forth specific facts showing that there is a genuine issue
for trial. If he does not so respond, summary judgment, if
appropriate, shall be entered against him.” FED.R.CIV.P.
56(e). Ultimately, “[w]here the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving
party, there is no ‘genuine issue for trial.’ “ Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348 (1986). An issue is “material” if its resolution could
affect the outcome of the action. Burrell v. Dr. Pepper/Seven
Up Bottling Group, Inc., 482 F.3d 408, 411 (5th Cir.2007).
“[A]nd a fact is genuinely in dispute only if a reasonable jury
could return a verdict for the non-moving party.” Fordoche,
Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir.2006).
*3 The moving party bears the initial burden of informing
the court of all evidence demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S.Ct. 2548 (1986). Only when the moving
party has discharged this initial burden does the burden shift
to the non-moving party to demonstrate that there is a genuine
issue of material fact. Id. at 322. If the moving party fails
to meet this burden, then it is not entitled to a summary
judgment, and no defense to the motion is required. Id.
“For any matter on which the non-movant would bear the
burden of proof at trial …, the movant may merely point to the
absence of evidence and thereby shift to the non-movant the
burden of demonstrating by competent summary judgment
proof that there is an issue of material fact warranting trial.”
Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718–19
(5th Cir.1995); see also Celotex, 477 U.S. at 323–25. To
prevent summary judgment, “the non-moving party must
come forward with ‘specific facts showing that there is a
genuine issue for trial.’ “ Matsushita Elec. Indus. Co., 475
U.S. at 587 (quoting FED.R.CIV.P. 56(e)).
When considering a motion for summary judgment, the court
must view the evidence in the light most favorable to the
non-movant and draw all justifiable inferences in favor of
the nonmovant. Envtl. Conservation Org. v. City of Dallas,
Tex., 529 F.3d 519, 524 (5th Cir.2008). The court must review
all of the evidence in the record, but make no credibility
determinations or weigh any evidence; disregard all evidence
favorable to the moving party that the jury is not required
to believe; and give credence to the evidence favoring the
non-moving party as well as to the evidence supporting
the moving party that is uncontradicted and unimpeached.
Moore v. Willis Ind. Sch. Dist., 233 F.3d 871, 874 (5th
Cir.2000). However, the non-movant cannot avoid summary
judgment simply by presenting “conclusory allegations and
denials, speculation, improbable inferences, unsubstantiated
Likens v. Hartford Life and Acc. Ins. Co., — F.Supp.2d —- (2011)
© 2011 Thomson Reuters. No claim to original U.S. Government Works. 3
assertions, and legalistic argumentation.” See TIG Ins. Co. v.
Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002);
see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir.1994) (en banc). By the same token, the moving
party will not meet its burden of proof based on conclusory
“bald assertions of ultimate facts.” Gossett v. Du–Ra–Kel
Corp., 569 F.2d 869, 872 (5th Cir.1978); see also Galindo v.
Precision Amer. Corp., 754 F.2d 1212, 1221 (5th Cir.1985).
II. Contract Interpretation
“Texas courts interpret insurance policies according to the
rules of contract construction.” de Laurentis v. U.S. Auto.
Ass’n, 162 S.W.3d 714, 721 (Tex.App.-Houston [14th Dist.]
2005, pet. denied). The primary objective of the court is
to ascertain the parties’ intent, as expressed in the written
instrument. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d
132, 133 (Tex.1994). “[T]he parties’ intent is governed by
what they said, not by what they intended to say but did
not.” Nautilus Ins. Co. v. Country Oaks Apartments, Ltd., 566
F.3d 452, 455 (5th Cir.2009) (quoting Fiess v. State Farm
Lloyds, 202 S.W.3d 744, 746 (Tex.2006)) (internal quotation
omitted).
*4 If an insurance policy is worded so that it can be
given a definite meaning or certain legal meaning, then
the policy is not ambiguous and is construed by the court
as a matter of law. Am. Mfrs. Mut. Ins. Co. v. Schaefer,
124 S.W.3d 154, 157 (Tex.2003). An ambiguity exists
where a policy is susceptible to more than one meaning.
Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). Courts
interpreting contractual provisions give terms their plain,
ordinary, and generally accepted meanings, unless otherwise
defined by the parties. “ ‘Both the insured and the insurer
are likely to take conflicting views of coverage, but neither
conflicting expectations nor disputation is sufficient to create
an ambiguity.’ “ Nat’l Union Fire Ins. Co. of Pittsburgh, PA
v. U.S. Liquids, Inc., 271 F.Supp.2d 926, 932 (S.D.Tex.2003)
(quoting Forbau, 876 S.W.2d at 134). “[I]f, and only if,
the court finds an ambiguity in the contract provisions,
particularly in exclusionary clauses, the court should construe
the policy strictly against the insurer.” Nat’l Union Fire Ins.
Co. of Pittsburgh, PA, 271 F.Supp.2d at 932; see also Waffle
House, Inc. v. Travelers Indem. Co. of Ill., 114 S.W.3d
601, 607 (Tex.App.-Ft. Worth 2003, pet. denied) (cautioning
that exclusionary provisions “must be clearly expressed and
must not be ambiguously worded”). And, “if the insured’s
construction of an exclusionary provision is reasonable, it
must be adopted, even if the insurer’s construction is more
reasonable.” Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 271
F.Supp.2d at 931.
Under Texas law, an insured has the burden of establishing
coverage under the terms of an insurance policy. Gilbert Tex.
Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d
118, 124 (Tex.2010). If the insured proves coverage, then to
avoid liability the insurer must prove that the loss is within an
exclusion. Id. If the insurer proves that an exclusion applies,
the burden shifts back to the insured to show that an exception
to the exclusion brings the claim back within coverage. Id.
III. Application
In this case, no reasonable jury could find facts that would
avoid the intoxication exclusion of the Policy. 2 The facts of
this case clearly establish that Vincent’s intoxication on the
night he fell in his front yard is the proximate cause of his
death, and this prevents plaintiff from recovering under the
Policy.
2 The court will not, therefore, address Hartford’s
argument that plaintiff failed to establish that Vincent’s
death was caused by an accident independent of other
causes.
“The Policy does not cover any loss resulting from … [i]njury
sustained as a result of being legally intoxicated from the use
of alcohol.” Dkt. 12 at 6. Hartford’s evidence conclusively
establishes that the injuries Vincent sustained on February
23, 2008, and which led to his death, were caused by his
extreme intoxication. Plaintiff asserts that the autopsy report
on Vincent’s body discounts alcohol consumption as a cause
of his death. Plaintiff’s argument is premised upon a form
where “chronic ethanolism” is listed in box pre-labeled for
“significant conditions contributing to death but not resulting
in the underlying cause.” Dkt. 10 at 32. A review of the
more complete report of the findings, however, reveals that
the medical examiner made no finding that intoxication did
not cause the injuries. Dkt. 13–1 at 2–9. In fact, the medical
examiner’s notes reflect that the “blunt force trauma” occurred
because “[d]ecedent fell at home while intoxicated and hit his
head on a barbecue pit.” Id. at 9. Thus, the medical examiner
did not make any finding that would permit a jury to conclude
that intoxication did not cause Vincent’s injuries. Indeed, such
a finding is compelled by the record evidence.
*5 The sole question remaining, then, is one of interpretation
of the exclusion at issue. More specifically, what is meant by
the term “legally intoxicated” as used in the Policy? Plaintiff
asserts that this language is ambiguous and, accordingly,
Likens v. Hartford Life and Acc. Ins. Co., — F.Supp.2d —- (2011)
© 2011 Thomson Reuters. No claim to original U.S. Government Works. 4
presents her own proposed definition. There is no challenge to
whether Vincent met the legal definition in terms of the level
of his intoxication. Indeed, the record reflects that Vincent
was approaching the level of blood alcohol content that is
considered medically “toxic.” Dkt. 12 at 16. Rather, plaintiff
points to Hartford’s reliance in its briefing on the definition
of legal intoxication from the Texas Penal Code, and asserts
that “legal intoxication” therefore necessarily requires that
Vincent be not only intoxicated, but intoxicated in a legally
relevant fashion. Dkt. 10 at 9. More specifically, the exclusion
would only apply in plaintiff’s view if Vincent were driving,
or otherwise “operating a motor vehicle, motorboat or vessel”
in violation of Texas law. Id.
Hartford responds that there is no indication in the Policy that
intoxication must involve a violation of Texas law, or that
operation of a motor vehicle is required for such a finding.
Indeed, Hartford is correct. In fact, the exclusion at issue is
immediately followed in the Policy by an alternate version
of the exclusion applicable only in Minnesota and which
specifically limits the exclusion to injuries sustained while
“operating a motor vehicle while legally intoxicated from the
use of alcohol.” Dkt. 12 at 6. Thus, there is no support for
plaintiff’s argument in the language of the Policy itself.
For purposes of Texas law, “intoxicated” is defined as:
(A) not having the normal use of mental or physical
faculties by reason of the introduction of alcohol,
a controlled substance, a drug, a dangerous drug, a
combination of two or more of those substances, or any
other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.
V.T.C.A., Penal Code § 49.01 (emphasis added). While
Hartford relies upon this definition, drawn from the Texas
Penal Code, for purposes of establishing a definition
of “legal intoxication” in the Policy exclusion, Hartford
points out that Texas law also provides for similar
definitions of “intoxicated” for determining issues in workers’
compensation cases, Tex. Labor Code § 401.103, and for
determining when a customer may no longer be served
alcoholic beverages. Tex. Admin. Code § 50.2. This broad
application of the definition of “intoxicated” in Texas law
distinguishes cases such as MacDonald v. Unicare Life
& Health Ins. Co., No. 3:07–0345, 2008 WL 169142
(S.D.W.Va. Jan. 18, 2008) and cases cited therein where the
state law referenced in, or applicable to, a policy exclusion
required an adjudication or a finding that the intoxication
was actually in violation state law. Here, Texas defines
“intoxicated” in more than just a criminal context, and the
court finds no basis to read into the Policy such an additional
provision.
*6 Not every difference in interpretation of an insurance
policy amounts to an ambiguity. Kelley–Coppedge, Inc. v.
Highlands Ins. Co., 980 S.W.2d 462, 465 (Tex.1998). Here,
the court does not perceive an ambiguity in the Policy as
written. The exclusion applies if Vincent’s death was caused
by his being “legally intoxicated,” i.e., being “intoxicated”
as that term is defined in Texas law. Texas law provides a
uniform definition of “intoxicated” that Vincent easily met at
the time he fell and struck his head.
And, in any event, even if some ambiguity existed in
the exclusionary language, an insured’s construction of the
exclusion will only be adopted if it is reasonable. Nat’l Union
Fire Ins. Co. of Pittsburgh, PA, 271 F.Supp.2d at 931. In
this case, there is simply no basis for reading into the Policy
exclusion an additional requirement that Vincent not only be
impaired as described in Texas law, but that he also have been
committing a crime.
Finally, plaintiff argues in the alternative that it is improper to
utilize a definition of intoxication drawn specifically from the
Texas Penal Code unless there was an express adoption of that
standard in the Policy. This is a potential ambiguity, however,
that does not benefit plaintiff. A contractual clause that is
ambiguous as applied to certain facts may be unambiguous as
applied to others. State Farm Fire and Cas. Co. v. Vaughan,
968 S.W.2d 931, 934 (Tex.1998). Vincent met any definition
of “intoxicated” during the relevant time frame. Choosing one
that differs slightly from the one found in the Texas Penal
Code would not avail plaintiff in this case.
CONCLUSION
After consideration of the motions, responses, replies,
exhibits, and the applicable law, plaintiff’s motion for
summary judgment (Dkt .10) is DENIED, and defendant’s
motion for summary judgment (Dkt.11) is GRANTED.

 

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas insurance defense and contract law attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

State of Texas and Local Agencies for Texas Employment Law Attorneys, Employers–Fort Worth, TX Employment Law

State of Texas  and Local Agencies addresses for Texas Employment Law Attorneys, Employers and Employees

The EEOC works with the Fair Employment Practice Agencies (FEPAs) and the Tribal Employment Rights Offices (TEROs) to manage charges of discrimination and the protection of the employment rights of Native Americans. The EEOC contracts with approximately 90 FEPAs nationwide to process more than 48,000 discrimination charges annually. These charges raise claims under state and local laws prohibiting employment discrimination as well as the federal laws enforced by the EEOC. FEPA and TERO offices for the area covered by this office are listed below.

City of Austin Equal Employment/Fair Housing Office (FEPA)
Jonathan Babiak,  Administrator

Mailing Address:
P.O. Box 1088
Austin, Texas 78767

Physical Address:
Snell Building
1050 East 11th Street, Suite 300
Austin, TX 78702

Phone: 512-974-3251
Fax: 512-974-3278
TDD: 512-974-2445
E-mail: jonathan.babiak@austintexas.gov
Website: http://www.austintexas.gov/department/equal-employment-and-fair-housing-office

Corpus Christi Human Relations Commission (FEPA)
Sylvia Wilson, Human Relations Administrator

Mailing Address:
P.O. Box 9277
Corpus Christi, Texas 78469-9277

Physical Address:
1201 Leopard Street
Corpus Christi, Texas 78469-9277

Phone: 361-826-3190
Fax: 361-826-3192
E-mail: SylviaW@cctexas.com
Website: http://www.cctexas.com/humanrelations

City of Fort Worth Human Relations Commission(FEPA)
Angela Rush, Human Relations Administrator

Mailing Address:
1000 Throckmorton Street
Fort Worth, Texas 76102

Physical Address:
Hazel Harvey Peace Center for Neighborhoods
818 Missouri Avenue
Fort Worth, TX 76104

Phone: 817-392-7525
Fax: 817-392-7529
E-mail: Angela.Rush@fortworthtexas.gov
Website: http://www.fortworthtexas.gov/humanrelations/

New Mexico Human Rights Division (FEPA)
1596 Pacheco Street
Santa Fe, NM 87505
Phone: 800-566-9471
Fax: 505-827-6878
Website: http://www3.state.nm.us/dol/dol_hrd.html
E-mail: rgalaz@state.nm.us

Texas Workforce Commission, Civil Rights Division (FEPA)
Lowell Keig, Director

Mailing Address:
101 East 15th Street, Room 144T
Austin, Texas 78778

Physical Address:
1117 Trinity Street Room 144T
Austin, Texas 78778

Phone: 512-463-1522 (Agency Reception Desk)
Toll Free: 1-888-452-4778
Fax: 512-463-2643
Texas Relay: 1-800-735-2989
Email: EEOintake@twc.state.tx.us
Website: http://www.twc.state.tx.us

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas employment law defense lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Texas Employment Law Information–Fort Worth Human Relations Commission–Employment Law Attorney

Texas Employment Law Information

FORT WORTH HUMAN RELATIONS COMMISSION
1000 Throckmorton
Fort Worth, TX 76102

Michael D. Ivey, Director
Tel: (817) 871-7525
Fax: (817) 871-7529
TDD: None

The Commission serves as an enforcement agency for the Civil Rights Act of 1964, as amended, and the City of Fort Worth’s Fair Employment Ordinance No. 7278, as amended. It also serves as a deferral agency for the U.S. Equal Employment Opportunity Commission and the Texas Commission on Human Rights and an investigative agency for housing, employment, and public accommodations charges of discrimination.

Geographic area(s) served: City of Fort Worth and Tarrant County
Type(s) of publications: Annual report

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas employment law defense lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Nowhere Is the Worthy Stranger Made More Welcome Than Texas

QUOTES ON LIBERTY AND JUSTICE, TRUTH AND DUTY:

 

“Death is lighter than a feather, but Duty is heavier than a mountain.” To the Blight

-Robert Jordan

 

“Think and let think.”

-John Wesley

 

“We are so concerned to flatter the majority that we lose sight of how very often it is necessary, in order to preserve freedom for the minority, let alone for the individual, to face that majority down.”

-William F. Buckley, Jr.

 

“Never look down on anyone unless you’re helping him up”

-Jesse Jackson

 

“If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.”

-Thomas Jefferson

 

“I hope that you as Chief of the Cherokees will meet me with the same feelings of friendship that actuate me in coming among you, and that I may have your hearty co-operation in our common cause against a people who are endeavoring to deprive us of our rights. It is not my desire to give offense or interfere with any of your rights or wishes.”

-Ben McCulloch

 

“If nations are allowed to commit genocide with impunity, to hide their guilt in a camouflage of lies and denials, there is a real danger that other brutal regimes will be encouraged to attempt genocides. Unless we speak today of the Armenian Christian genocide and unless the Turkish Government recognizes this historical fact, we shall leave this century of unprecedented genocides with this blot on our consciences. U.S. High Commissioner to Turkey

-Admiral Mark. L. Bristol

 

“Nowhere is the worthy stranger made more welcome than Texas.”

-Hiram Granbury

 

“We need to increase our troop strength. We need to raise their pay. We need to provide our veterans, our National Guard and Reserve with the benefits they are entitled to for the service and duty they perform for our nation.”

-Hillary Clinton

 

“You doubt that … your great country … is on the wane? I say only this – look around you.”

-Saint Griseus

 

“As many as 7 million Ukrainians were starved in Soviet Socialist dictator Joseph Stalin’s artificial, forced famine in Ukraine in 1932 and 1933. This is approximately the total population of Manitoba, Newfoundland, British Columbia, New Brunswick, Saskatchewan, Nova Scotia, and Prince Edward Island.” House of Commons 2 June 1998

-Inky Mark, M. P. Dauphin – Swan River 

 

“In its main features the Declaration of Independence is a spiritual document. It is a declaration not of material but spiritual conceptions. Equality, liberty, popular sovereignty, the rights of man—these are not elements which we can see and touch. They are ideals. They have their source and their roots in religious convictions. They belong to the unseen world. Unless the faith of the American people in these religious convictions is to endure, the principles of our Declaration will perish. We cannot continue to enjoy the result if we neglect and abandon the cause. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just power from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth and their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction cannot lay claim to progress.”

-Calvin Coolidge

 

“The man does not live who has power to couple my name successfully with the slightest taint of disloyalty to the Constitution.”

-John Breckinridge

 

“A little government involvement is just as dangerous as a lot – because the first leads inevitably to the second.”

-Harry Browne

 

“Where and when did freedom exist when the power of the sword and purse were given up from the people.”

-Patrick Henry

 

“Even before my father’s fathers they called us all rebels…”

-Thomas Petty

 

“Hitler clearly expected that American soldiers raised in a pacifist, “soft” democracy would ultimately wither under the assault of the German fighting men trained under his iron-fisted regime.”

-Stephen Ambrose

 

“In no other area of constitutional law does there exist a doctrine recognizing the preservation of cultural autonomy as a justification for limiting individual civil rights.” Sovereignty, Citizenship and the Indian, 15 Arizona Law Review, n. 36, 980 (1973)

-Kenneth W. Johnson 

 

“The great virtue of a free market system is that it does not care what color people are; it does not care what their religion is; it only cares whether they can produce something you want to buy. It is the most effective system we have discovered to enable people who hate one another to deal with one another and help one another.”

-Milton Friedman

 

“The Government is like a baby’s alimentary canal, with a happy appetite at one end and no responsibility at the other.”

-Ronald Reagan

 

“Americans have the right and advantage of being armed – unlike the citizens of other countries whose governments are afraid to trust the people with arms.”

-James Madison

 

“All the fiery rhetoric of the Founders was directed at a “tyrant” who taxed his subjects at a rate of about three percent. Today, we in “the land of the free” are taxed at about 50 percent when you add federal, state, and local taxes. What kind of government would do this? A dictatorship would.”

-Doug Newman

 

“Lassitude and vacillation now would mean surrender… to further Federal intervention in local affairs and further Federal encroachment on the diminishing area of state authority. …The state government of Texas is neither cowardly nor impotent in dealing with state problems.”  Inaugural Address, January 20, 1959 

-Price Daniel, Governor of Texas

 

“It’s in the history books, the Holocaust. It’s just a phrase. And the truth is it happened yesterday. It happened to my mother. I never met my grandmothers or my grandfathers. They were all wiped up in the gas chambers of Nazi Germany.”

-Gene Simmons

 

“Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!”

-Benjamin Franklin

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]