Insurance Law Section of the State Bar of Texas

Henry Moore and I are sponsoring tomorrow's networking event for the Insurance Law Section of the State Bar of Texas, which is after the second insurance certification exam. Curious about the exam? Learn more about it and how to prepare. The 25th anniversary edition of the Journal of Texas Insurance law is now out. Robert Cunningham was kind enough to thank me for my role in providing free webinars for section members. There was a lot of thanks to go around as he highlighted the excellent work by other council members in furtherance of our mission. But since we are talking about the Journal kudos to Jason McLaurin for putting it all together. I had the pleasure of being the second editor for Mark Ticer and Jennifer Johnson's piece on Misrepresentation. The bulk of the edition includes notes from prior section chairs and is filled with history, wisdom and tips. Read it for yourself, but some points we can all discuss tomorrow: Ernest Martin was the first chair of the Insurance Section and was inspired after having attended an ABA meeting in Tucson. Having been a presented at both, his vision has been successful. I have had the pleasure of moderating multiple presentations by Christopher Martin. In his piece, Chris recounts the early difficulties of starting a Journal from scratch. We owe much to his hard work and dedication. As he points out the Journal, when initiated, was one of a kind and developed into fertile ground for courts to cite as persuasive authority. I first met the late, great Mike Huddleston at a networking event for the American College of Coverage Counsel: His advice that “Building relationships is one of the most important things you can do in any type of law practice, but especially in insurance” rings true in his absence. His warning of whether a case is “Too Complicate to Win” is one I often raise in mediation and his admonition "Beware of the lawyer who responds to you softly and simply without hyperbole or rancor" is sound advice. We also lost John Tollefson too soon and the note from his "proud" partners, Beth Bradley and Stephen Melendi, reminds us to enjoy the time we have with our colleagues while we still can. While Lee Shidlofsky's central point seems to be that he is a lot younger than other past chairs, he recounts how as a young lawyer he asked lots of questions and parked himself in the offices of those more experienced. He also writes about civility and having a national practice. As someone whose wife dragged me to Austin, where Lee mediates, I can vouch for his generosity in giving me time, advice and encouragement. When I first met Lisa Songy we quickly turned to baseball and her love of the Astros. It is the playoffs and as Lisa writes, "So, I would encourage all young lawyers to go to the in person events, raise a glass with a colleague or opposing counsel, and get to know them as a person, not just as a lawyer." Happy to play a small role in continuing the tradition. Cheers.

Last year we rolled out the Comprehensive Overview of Texas Insurance Law. It was a great success and we are thrilled to make it available again this year. This on-line course allows you to review the following topics on demand: INSURANCE CONTRACT FORMATION & CANCELLATION INSURANCE POLICY CONSTRUCTION PROPERTY INSURANCE LIABILITY COVERAGE OVERVIEW OF OTHER COVERAGES / AUTO INSURANCE LITIGATION REGULATORY ISSUES RECURRING ISSUES ETHICS/CONFLICTS OF INTEREST The instructors are top-notch experts, including: Stephen Walraven, Samantha Trahan, Diego Garcia, Ernest Martin, Christopher Martin, Jay Thompson, Michael Huddleston and Bill Chriss. The course is not necessarily designed as a study course for the Board Certification Exam, but the depth and breadth of topics should be helpful for anyone taking or considering whether to take the exam. To enroll and have immediate on demand access, see the following link: https://lnkd.in/eqFgNAtV

Yesterday I had the pleasure of moderating a panel with Christopher Martin and Bill Chriss re jury charges in insurance cases for the Insurance Law Section of the State Bar of Texas. Moderating is a stretch; as I noted, I introduced two legends that needed no introduction. My biggest accomplishment yesterday was making homemade ice cream! At one point during the webinar, Bill referenced the Texas concurrent causation doctrine and how the 5th Circuit has twice certified questions to the Texas Supreme Court for clarification of the proper burden of proof when there is damage from a covered peril as well as from wear and tear. As Bill noted, both of those cases settled. I resisted chiming in to identify the cases as Overstreet and Frymire. You could have a whole webinar on the Texas concurrent causation doctrine ... and we have. I had the pleasure of moderating a panel and we also had a session on the topic at the advanced insurance law seminar in San Antonio. The attached case illustrates some of the issues involved in these cases. The insured alleged that a wind and hail storm damaged his roof and gutters. The insurer determined that only a small portion of the damage was covered (below the deductible), that some other damage did not correlate to the date of loss and that other damage was uncovered cosmetic or wear and tear. Both sides presented experts and arguments re the contested damages and cause. In many jurisdictions this would have constituted a genuine issue of material fact precluding summary judgment. The Texas court granted the insurer summary judgment. The insurer moved for summary judgment arguing that "Plaintiff cannot segregate the alleged damage attributed to the May 28, 2021 storm from other damages, as required by the concurrent cause doctrine." In Texas, the insured has the burden to submit evidence to allow a jury to segregate damages attributable to the covered event. The Court noted that the insured's expert did not support that there was a storm on May 28. He discussed a storm on May 30th and the Court noted the insured never amended its pleadings or acknowledged the inconsistency. The Court then notes that both dates would be covered under the policy, but the insurer prevails because "Plaintiff lacks evidence that would assist a jury in allocating damages between those that resulted from covered perils and those that did not." Specifically, the Court found the insured's expert might have raised issues of whether there was hail damage, but he did not present evidence that it was attributable to the date of loss. The insured's expert testified that, "it's not easy to date hail," but what he observed was consistent with the insured's claim. That was not enough. One day the Supreme Court might answer the questions certified in Frymire and Overstreet. Until then insureds argue Texas law ignores a statute and the Courts are incorrectly placing the burden on them. Insurers argue that the law is clear.