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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
Allegations Against Adjuster Sufficient to Require Remand  
SO Apartments, LLC, et. al. v. Everest Indemnity Co. WD Tx 11/30/17—
After removal by property insurer, Western District found that claims against adjuster of hail loss for civil conspiracy and under Chapter 542 of the Texas Insurance Code were insufficient to state a claim, but allegations that adjuster violated Chapter 5
Court Grants Insurer's Motion for Summary Judgment on Contractual and Extra-Contractual Claims  
Young v. Allstate Vehicle and Prop. Ins. Co. ED Tx 11/29/17—
Court applies Menchaca and finds that lack of coverage warranted summary judgment on both contractual and extra-contractual claims in favor of insurer
Court Grants Insurer's Motion for Summary Judgment Due to Lack of Flood Coverage  
Ekhlasssi v. National Lloyds Ins. Co. SD Tx 11/27/17—
Court finds that named peril policy did not provide coverage for flood loss and that water exclusion applied in favor of insurer
Fifth Circuit Affirms Judgment in Favor of Insurer under Commercial Crime Policy  
Cooper Industries, Ltd. v. National Union Fire Insurance Co. of Pittsburgh, Pennsylvania 5th Cir 11/20/17—
Court agrees that insured did not own the earning or principal associated with funds loaned to fraudsters.
Court Finds That Insurer Owes Duty to Defend Despite Employee Exclusion  
Allied Prop. and Cas. Ins. Co. v. Clean N' Go, LLC ED Tx 11/20/17—
Court finds that narrow terms of employee exclusion did not preclude coverage and that insurer owed duty to defend as a result
Court Denies Insurer's Motion to Dismiss in Favor of Arbitration  
Memorial Hermann Health System v. Blue Cross Blue Shield of Texas SD Tx 11/17/17—
Court finds that scope of arbitration clause did not reach claims asserted by health care provider against insurer
Court Grants Insured's Motion to Remand, Defeating Removal Jurisdiction  
Smith v. Travelers Home and Marine Insurance Co. SD Tx 11/16/17—
Court finds that allegations against in-state adjuster were sufficient to state claim and defeat removal based on improper joinder.
Court of Appeals Concludes that no Coverage Exists for Punitive Damages under a Personal Automobile Policy  
Farmers Texas County Mutual Insurance Co. v. Zuniga Tx 4-San Antonio 11/15/17—
An appellate court has withdrawn an earlier opinion and re-issued it to provide a clearer explanation of why it has held that punitive damages are not covered under an auto policy providing coverage for damages for bodily injury.
Court Grant's Insured's Motion for Summary Judgment Regarding Interpretation of Exclusionary Clause  
Hidden Cove Park and Marina v. Lexington Insurance Co. ED Tx 11/9/17—
Court finds that flood did not become an excluded peril after exhaustion of sublimit
Coverage for Bodily Injury to Insured's Client's Employee Not Excluded  
Northfield Insurance Co. v. Herrera WD Tx 11/6/17—
Exclusion in commercial general liability policy for bodily injury applied to employees of downstream contractors, but not employees of upstream clients.
More Recent Decisions
Section News
8/8/18 Insurance Law Webinar: USAA v. Menchaca

Purchase a recording of the August 8, 2018 webinar online via the Texas Institute of CLE website and earn up to 1.0 hour MCLE credit from your own home or office!