Insurance Law Section
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INS Council Meeting in Dallas

Council 11:00am - 2:30pm Central (Officers @ 10:00am) (Location TBD)

The Henley v. Love Lesson: Where Experts Must Tread
by Blair Dancy

In addition to the complexities inherent in coverage law, coverage litigation brings its own set of challenges. One recurring question: When does a coverage case require an expert opinion? See, e.g., Don's Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 29 (Tex. 2008) (“Pinpointing the moment of injury retrospectively is sometimes difficult, but we cannot exalt ease of proof or administrative convenience over faithfulness to the policy language; our confined task is to review the contract, not revise it.”); Vines-Herrin Custom Homes, LLC v. Great Am. Lloyds Ins. Co., 357 S.W.3d 166, 173 (Tex. App.—Dallas 2011, pet. denied) (holding “expert testimony establishing the exact date of injury was not required to trigger the duty” under Don’s Building Supply, where the evidence showed the physical injury to the property indisputably occurred during one of two consecutive policy years covered by the same insurer); Swicegood v. Medical Protective Co., CIV.A.3:95-CV-0335-D, 2003 WL 22234928, at *15 (N.D. Tex. Sept. 19, 2003) (J. Fitzwater) (holding “the proof to be admitted at trial will consist of historical evidence from the Underlying Lawsuit and expert testimony to assist the jury in allocating or apportioning covered and non-covered damages,” involving mixed underlying claims of covered medical malpractice and uncovered romantic/sexual acts).

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Recent Decisions
Supreme Court of Texas Opines on Application of Gandy, Reverses Decision and Remands Coverage Case for New Trial  
Great American Insurance Co. v. Hamel Tx Sup 6/16/17—
Court finds pre-trial assignment eliminated incentive for adversarial trial, concludes that coverage litigation should be retried.
Court finds that engineer used during claims handling was improperly joined in attempt to avoid diversity jursidiction  
Gonzalez v. State Auto Property and Casualty Insurance Company SD Tx 6/16/17—
Court finds that insured's joining of engineering firm was improper attempt to defeat diversity jurisdiction
Court adopts magistrate order finding that ERISA insurer correctly calculated split of charges incurred by insured  
Walker v. Regence Blue Cross Blue Shield of Oregon SD Tx 6/16/17—
Court finds that ERISA plaintiff exhausted remedies but that correct policy interpretation by insurer justified split of medical costs incurred
Magistrate Judge Recommends that Insurer's Motion for Summary Judgment Be Granted in Coverage B Dispute  
Colony Insurance Co. v. Custom Ag Commodities, LLC ED Tx 6/15/17—
Court finds that false advertising allegations did not trigger duty to defend and that same findings would also preclude future duty to indemnify
District Courts finds diversity jurisdiction was proper in case involving Lloyd's plan with non-Texas underwriters  
North Dallas Lawn Care and Landscape, Inc. v. Hartford Lloyds Ins. Co. ED Tx 6/15/17—
Court holds that Lloyd's plan insurer did not have any Texas underwriters that would defeat diversity jurisdiction in case involving Texas insured
US Fifth Circuit Court of Appeals Affirms District Court's Finding of no Abuse of Discretion in ERISA Case  
Davis v. Aetna Life Insurance Co. 5th Cir 6/14/17—
Court finds that a conflict of interest existed as plan administrator and underwriter, but no evidence that it impacted decision to terminate benefits.
Court finds that ERISA insurer abused its discretion by denying benefits to insured's third-party administrator  
Dialysis Newco, Inc. et al v. Community Health Systems Trust Health Plan SD Tx 6/14/17—
ERISA's insurer policy interpretation with respect to third-party administrator directly contradicted the policy's plain language and constituted an abuse of direction
Court of Appeals Grants Mandamus Relief and Directs Trial Court to Enter Judgment on Jury's Verdict  
In re United Services Automobile Association Tx 1-Houston 6/13/17—
Court finds that bases for new trial order were the same as prior order on which court of appeals previously granted mandamus, rendering it the law of the case.
Supreme Court Grants Mandamus for Insurer in Discovery Dispute  
In re National Lloyds Insurance Co. Tx Sup 6/9/17—
A divided court has held that the billing records of an opposing party's attorney are generally not discoverable, even if that party is attacking the other party's fees as unreasonable and unnecessary.
ERISA Insurer Owed, but did not Breach, Fiduciary Duty in Life Insurance Dispute  
Keith v. Metropolitan Life Insurance Co. SD Tx 6/9/17—
Court finds ERISA insurer's failure to disclose certain information to long-term disability participant did not violate fiduciary duty.
More Recent Decisions
Section News
14th Annual Advanced Insurance Law Course

Join the Insurance Law Section and TexasBarCLE at the 14th Annual Advanced Insurance Law Course June 8-9, 2017 at the Hyatt Regency Hill Country Resort & Spa in San Antonio. Earn up ... (Continued)

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