IS STOWERS A CHANGING?



Similar documents
THE RIGHT TO INDEPENDENT COUNSEL

Liability Insurer s Duty Not to Settle

TRIGGERING STOWERS UNDER MULTIPLE POLICIES

Two Texas Cases That You Need To Know When You Settle Lawsuits Or Claims

STOWERS: 2012 UPDATE

Court of Appeals. First District of Texas

INSURANCE COVERAGE HOW TO GET PAID. Henry Moore Advanced Personal Injury - State Bar of Texas

Vertical Exhaustion & Occurrences

22 ND ANNUAL COOPER & SCULLY, P.C. INSURANCE SEMINAR

RECOGNIZING BAD FAITH CASES

No Filed: IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MEMORANDUM AND ORDER

S09G0492. FORTNER v. GRANGE MUTUAL INSURANCE COMPANY. We granted certiorari in this case, Fortner v. Grange Mutual Ins. Co., 294

THE THREAT OF BAD FAITH LITIGATION ETHICAL HANDLING OF CLAIMS AND GOOD FAITH SETTLEMENT PRACTICES. By Craig R. White

Revisiting The Duty to Defend After the Exhaustion of the Policy Limits

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

JUDGMENT AFFIRMED. Division II Opinion by JUDGE TERRY Casebolt and Furman, JJ., concur. Announced June 10, 2010

In the Missouri Court of Appeals Eastern District DIVISION THREE

Mastering Prejudgment Interest

IN THE SUPREME COURT OF TEXAS

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. No Non-Argument Calendar. Docket No. 1:13-cv WSD.

RECENT DEVELOPMENTS IN TEXAS INSURANCE AND BAD FAITH LAW

Primary vs. Excess/Umbrella:

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

F I L E D August 9, 2011

STOWERS UPDATE: 2007

IN THE WORKERS COMPENSATION COURT OF THE STATE OF MONTANA 2015 MTWCC 13. WCC No CAR WERKS, LLC. Petitioner. vs. UNINSURED EMPLOYERS FUND

STATE OF MICHIGAN COURT OF APPEALS

4/28/2011. Personal Auto and Past Court Rulings: Florida. Florida Bad Faith Case Law

Solving Interpleader and Inadequate Limit Problems

Frank E. Jenkins, III JENKINS & BOWEN, P.C. 15 South Public Square Cartersville, Georgia (770)

Umbrella Vs State Farm - Both Sides of the Cake

United States Court of Appeals For the Eighth Circuit

In the Missouri Court of Appeals Eastern District

Injury Case Roadmap. The Legal Process For Personal Injury Cases. By Christopher M. Davis, Attorney at Law

STATE OF MICHIGAN COURT OF APPEALS

Frank E. Jenkins, III JENKINS & BOWEN, P.C. 15 South Public Square Cartersville, Georgia (770)

Case 3:08-cv B Document 235 Filed 10/16/09 Page 1 of 9 PageID UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION CIVIL ACTION NO. 3:12-CV-341 MEMORANDUM AND ORDER

United States Court of Appeals, Fifth Circuit. No INSTITUTE OF LONDON UNDERWRITERS, Plaintiff Appellee,

Navigating the Statute of Limitations in Texas

Defendant: PROGRESSIVE CASUALTY INSURANCE COMPANY COURT USE ONLY Counsel for Plaintiff: Marc R. Levy, #11372

Plaintiff moves the Court for judgment in the amount of. The question before the Court is whether the

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 64,825. [January 10, 1985] So.2d 1041 (Fla. 2d DCA 1984), which the district court has

Caught in the Middle: What to Do When Conflicts Arise Between Policyholders and Insurers

RECENT DEVELOPMENTS IN MCS-90 ENDORSEMENTS FOR TRUCK INSURANCE

SLOANE AND WALSH, LLP FALL LAW UPDATE 2012

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No Mary Pena, Plaintiff/Appellant, versus

Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ., and Koontz, S.J.

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT. No (Summary Calendar) GLEN R. GURLEY and JEAN E. GURLEY, AMERICAN STATES INSURANCE COMPANY,

UNINSURED/UNDERINSURED MOTORIST CLAIMS AFTER BRAINARD. By C. Brooks Schuelke. Perlmutter & Schuelke, LLP th

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. Memorandum and Order

APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY. Honorable G. Stanley Moore, Circuit Judge

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

VIRGINIA ACTS OF ASSEMBLY SESSION

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In The Court of Appeals Fifth District of Texas at Dallas. No CV

CUNDIFF V. STATE FARM: ALLOWING DOUBLE RECOVERY UNDER UIM COVERAGE

INSURANCE AND MISSOURI LAW

IN THE COURT OF APPEALS OF INDIANA

2015 Insurance Symposium

In the Indiana Supreme Court

Case: 2:04-cv JLG-NMK Doc #: 33 Filed: 06/13/05 Page: 1 of 7 PAGEID #: <pageid>

MASSACHUSETTS INSURANCE LAW UPDATE

112 Ohio St.3d 17, 2006 Ohio 6362 (December 20, 2006).

MULTIPLE REPRESENTATION AND DRAFTING CONTINGENCY FEE AGREEMENTS

Theda Spurgeon Appellant Vs. No CV -- Appeal from Erath County Coan & Elliott, Attorneys at Law Appellee

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. SUPERIOR COURT

Illinois Fund Doctrine

If Allstate Paid You for an Automobile Bodily Injury Claim,

WHAT IS IT, HOW TO DEAL WITH IT, AND WHERE IS IT GOING?

Case 4:04-cv Document 84 Filed in TXSD on 02/02/06 Page 1 of 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

ILLINOIS OFFICIAL REPORTS

EXPLORING THE SELF-INSURED - INSURER RELATIONSHIP

Case 2:09-cv JPH Document 23 Filed 02/02/10 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

STATE OF MICHIGAN COURT OF APPEALS

Reinsurance. Piercing The Veil Of Reinsurance: Reinsurance Cut Throughs In Insurance Carrier Insolvencies MEALEY S LITIGATION REPORT

STATE OF MICHIGAN COURT OF APPEALS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

How To Prove That An Accident With An Old Car Is A Liability Insurance Violation

PURCELL & WARDROPE NEWS Spring 2013

COURT OF APPEALS OF WISCONSIN PUBLISHED OPINION

OVERVIEW OF HNO, PHYSICAL DAMAGE, CASE STUDY. Presented by: Alliant Insurance

Case 0:12-cv JIC Document 108 Entered on FLSD Docket 04/23/13 12:33:23 Page 1 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

IN THE COURT OF APPEALS OF INDIANA

THE TEXAS PROMPT PAYMENT OF CLAIMS STATUTE AND ITS APPLICATION TO THE DUTY TO DEFEND

Auto accidents can cause thousands or even millions of dollars in losses due to medical expenditures, an inability to work, a reduction in future

Creative Methods Used To Set-Up Bad Faith Claims Use Of Multiple Coverage Demands

How To Defend A Policy In Nevada

Geico Gen. Ins. Co. v. Austin Power Inc., 357 S.W.3d 821 (Tex. App., 2012)

v. CASE NO.: CVA Lower Court Case No.: 2008-CC-7009-O

Reed Armstrong Quarterly

Mut. Ins. Co., 565 S.W.2d 716, 726 (Mo. App. 1978). Nor is the carrier entitled to proceeds from any claim its insured may have against anyone else.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA EVANSVILLE DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT. Israel : : v. : No. 3:98cv302(JBA) : State Farm Mutual Automobile : Insurance Company et al.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION ORDER GRANTING SUMMARY JUDGMENT

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON March 11, 2015 Session

Commentary. Multiple Claimants And Insufficient Policy Limits Slicing Up The Pizza Pie Without Getting Burned!

Writ of Mandamus is Conditionally Granted; Opinion Filed December 3, In The Court of Appeals Fifth District of Texas at Dallas

Transcription:

IS STOWERS A CHANGING? PATTERSON V. HOME STATE COUTY MUT. INS. CO. Fred L. Shuchart Cooper & Scully, P.C. 700 Louisiana Street, Suite 3850 Houston, Texas 77002 Telephone: 713-236 236-68106810 Fax: 713-214 214-712-9540 Fred@cooperscully.com 2014 This paper and/or presentation provides information on general eral legal issues. It is not intended to provide advice on any specific legal matter or factual situation, and should not be construed as defining Cooper r and Scully, P.C.'s position in a particular situation. Each casec must be evaluated on its own facts. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Readers should not act on this information without receiving professional legal counsel.

STOWERS Genesis of the Stowers extra contractual claim is the 1929 decision in G.A. Stowers Furniture Co. v. American Indemnity Co., 15 S.W.2d 544 (Tex.Comm n.app. 1929).

STOWERS In Stowers,, the insurer refused to accept the third party s s offer to settle within policy limits and a judgment in excess of policy limits resulted after trial. The court imposed a duty to handle settlement demands reasonably as a result of the carrier s s control over the defense and settlement.

ELEMENTS American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842 (Tex. 1994) THREE ELEMENTS (1) the claim against the insured is within the scope of coverage; (2) the amount of the demand is within the policy limits; and (3) the terms of the demand are such that an ordinary prudent insurer would accept it, considering the likelihood and the degree of the insured s s potential exposure to an excess judgment.

FULL RELEASE Trinity Universal Insurance Co. v. Bleeker,, 966 S.W. 2d 489 (Tex. 1998) FACTS 14 injured parties including one death $20,000 per person and $40,000 per accident limits Over $400,000 in hospital liens Settlement offer on behalf of 5 victims Mentions Stowers Pay policy limits into court $13,000,000 judgment

FULL RELEASE Trinity Universal Insurance Co. v. Bleeker,, 966 S.W. 2d 489 (Tex. 1998) HOLDING Under property code, hospital gets dollar one With liens, no way to offer full release unless liens included No mention of liens, no proper Stowers demand

MULTIPLE CLAIMANTS Texas Farmers Ins. Co. v. Soriano,, 881, S.W.2d 312 (Tex. 1994) FACTS 2 car vehicle accident with death to other driver (Medina) and insured s s passenger $20,000 policy Farmers offered to settle Medina s s claim early on but refused by Medina At eve of trial, Farmers settled other death claim for $5,000 and offered Medina remaining $15,000 Medina refused offer and demanded $20,000 Excess verdict

MULTIPLE CLAIMANTS Texas Farmers Ins. Co. v. Soriano,, 881, S.W.2d 312 (Tex. 1994) HOLDING No Stowers exposure Can settle one of multiple claims, if: No unreasonable refusal of demand, or Settlement of other claim is reasonable when viewed in isolation; Sounds like first come, first serve

MULTIPLE INSUREDS Travelers Ind. Co. v. Citgo Petroleum Corp., 166 F.3d 761 (5 th Cir. 1999) FACTS Citgo additional insured under policy Plaintiff sues named insured but not Citgo Travelers settles on behalf of named insured for policy limits Citgo added as Defendant after settlement Travelers declines defense and indemnity to Citgo

MULTIPLE INSUREDS Travelers Ind. Co. v. Citgo Petroleum Corp., 166 F.3d 761 (5 th Cir. 1999) HOLDING Travelers did not violate Stowers Settlement on behalf of named insured was reasonable in isolation (Soriano) Citgo was not defendant at time of settlement

MULTIPLE INSUREDS Pride Transportation v. Continental Cas. Co.,, 804 F.Supp.2d 520 (N.D. Tex. March 31, 2011) FACTS Pride Transportation named insured Harbin, the driver, is an additional insured Suit brought against Pride and Harbin Settlement demand for policy limits to Harbin only Carrier s s alleged request to include Pride rejected Settlement demand accepted Pride files claim for indemnity against Harbin Release specifically excludes any claim by Pride against Harbin

MULTIPLE INSUREDS Pride Transportation v. Continental Cas. Co.,, 804 F.Supp.2d 520 (N.D. Tex. March 31, 2011) HOLDING No violation of Stowers Relied on Soriano, found settlement reasonable when viewed in isolation Only has to release claims by and through Plaintiff

County Mutual Insurance Company (Houston 4/24/14) FACTS Mrs. Dianne Patterson involved in fatal accident with vehicle driven by Hitchens, who was employed by Stretch and the 18 wheeler was owned by Brewer. Marcus Patterson, Individually, and as Administrator of Diane s s Estate and as Next Fried of 2 children, sued Hitchens, Brewer, and Stretch. Home State issued policy to Brewer which provided coverage to all permissive drivers. Home State provided a defense to both Brewer and Hitchens

August 21, 2007 Settlement demand to Brewer for policy limits on behalf of minors. Brewer ss corporate counsel informs Home State that he is not going to write hammer letter. Home State rejects demand.

September 20, 2007 Settlement demand to Brewer for policy limits on behalf of Patterson, Individually. October 4, 2007 Home State rejects demand.

February 2008 Home State files Interpleader. April 16, 2008 Settlement demand to Brewer for policy limits on behalf of all of Patterson s s claims and additional party. Home State rejects demand. October 2008 Interpleader granted and policy limits dispensed to Patterson (all claims) and multiple other claimants..

Case tried and results in verdict in excess of policy limits. Home State argues on Appeal that demands were not proper Stowers Demands

HOLDING All 3 Demands failed to qualify as proper Stowers Demands (not a full release). Relies on Bleeker and Maldonado Does not cite Soriano, Citgo,, or Pride.

AUGUST 21, 2007 SETTLEMENT DEMAND This letter is sent as a settlement offer on behalf of Daniel Patterson and Danae Patterson. They will both settle their minors claims against Brewer Leasing, Inc. and its insurance carrier for the policy limits, 50% payable to Daniel Patterson and 50% payable to Danae Patterson. Daniel Patterson and Danae Patterson will provide Brewer Leasing Company, Inc. will a full and complete release of all claims against Brewer Leasing in exchange for the payment of the policy limits.

SEPTEMBER 20, 2007 SETTLEMENT DEMAND This letter is sent as a settlement offer on behalf of Marcus Patterson individually. He will settle all of his claims against Brewer Leasing, Inc. and its insurance carrier for the policy limits.... Marcus Patterson will provide Brewer Leasing, Inc. with a full and complete release of any and all claims against Brewer Leasing and its insurance company in exchange for the payment of the policy limits.

COURT S S HOLDING Here, Patterson s s first and second settlement offers did not propose to fully release Brewer, as it would still have been liable to an excess judgment to either Marcus Patterson, his children, or his wife s s estate, whichever was not named in the settlement demand. Indeed, by settling in the full amount of the policy limits with only one of the claimants, Home State could have potentially exposed Brewer to an excess judgment by one of the other claimants. Accordingly, we hold that the first and second settlement offers did not trigger Home State s Stowers duty to settle.

APRIL 16, 2008 SETTLEMENT DEMAND This letter is sent as a settlement offer on behalf of Marcus Patterson, individually, Marcus Patterson as administrator of Diane s s estate, Marcus Patterson as next friend of both Daniel and Danae Patterson, and Larry Goffney. They will settle all of their claims against Brewer Leasing, Inc. and its insurance carrier for the policy limits. Marcus Patterson and Larry Goffney will provide Brewer Leasing, Inc. with a full, complete, total, and unconditional release of any anda all claims against Brewer Leasing and its insurance company in exchange for the payment of the policy limits. They will also release any y and all liens relating to them and this claim, and all funeral expenses. This also applies to any claim against Brewer Leasing by, through, or under Charles Hitchens, or based on the conduct of Mr. Hitchens in any way. But we are not releasing Mr. Hitchens, Texas Stretch, or their Insurance Carriers....

COURT S S HOLDING Although the April 16, 2008 offer did include the release of all claims by Patterson against Brewer, it explicitly did not include Hitchens. Thus, Patterson s s third settlement offer did not constitute an unconditional offer to fully release the insureds in exchange for a settlement. See Bleeker,, 966 S.W.2d at 491. Furthermore, Home state attached to its summary- judgment motion the deposition testimony of Jackson. And Michael Hays indicated to Jackson that he was a personal counsel for Brewer Leasing.... Hays told Jackson that he did not want any settlement demands to be accepted that didn t t involve a release of all of the Pattersons claims against both Brewer Leasing and Mr. Hitchens.

PATTERSON DRAMATICALLY CHANGES STOWERS 1) Effectively negates Soriano, Citgo,, and Pride. 2) Practically eliminates Stowers from multiple claimants and/or multiple insureds - Must have single attorney represent all claimants or have attorneys work together - Must release all insureds eliminates strategy of releasing assetless defendant and proceeding against party with assets. 3) As a result, subjects insured to potential excess verdict on all claims instead of less than all claims.

What could have the Patterson Court done to reach the same result but not dramatically alter the law?

First 2 Demands: Didn t t mention liens (Bleeker) Rejected by insured. 3 rd Demand: Rejected by insured.

Most important lesson from Patterson? Get the insured s s approval for decision.