Dallas, TX

Insurance companies can expect plaintiffs to seek new ways to prevent removal to federal court, but with the Fifth Circuit’s opinion in Advanced Indicator & Manufacturing, Inc. v. Acadia Insurance Company, the doors to federal court are open a bit wider.

The Fifth Circuit joined seven other circuits in interpreting a “physical loss of property” to require a tangible alteration or deprivation of property. The insured in the case argued it suffered a business income loss due to the suspension of operations when the Texas governor issued an executive order directing people to avoid eating or drinking in restaurants.

How will liability be addressed over the next several decades as we transition to the use of fully automated cars? During this period, humans and self-driving cars will share control over driving decisions, and under general tort law principles, the element of control is likely to be determinative.

As more states diverge in their approach to data privacy regulations, companies that store and transmit personal information find themselves responsible for an expanding field of what constitutes personal information and a shrinking list of acceptable responses.

In its preface to a recent unanimous decision, the Eleventh Circuit described the case as follows: “Mixing family and family-owned business can be complicated. When the mix produces litigation, complications can multiply. When the litigation involves misconduct allegedly committed by family members serving simultaneously as officers of the family business and as trustees of the family trust holding large amounts of the company’s stock, the complications abound. Add the question of insurance coverage for the litigation to the mix, and you have this case.”

In a recent decision, the Texas Supreme Court confirmed the exclusivity of Texas’s workers’ compensation claim remedy, even for alleged “independent injuries,” where any portion of the employee’s claim touches on the state-mandated claim settlement process.

In 2009, the Oklahoma Legislature enacted the Comprehensive Lawsuit Reform Act of 2009, a broad, sweeping act that contained 90 sections encompassing various unrelated subjects. Citing the Oklahoma Constitution’s “single-subject” rule, the Oklahoma Supreme Court held that the Act amounted to “logrolling” and was therefore unconstitutional and void in its entirety.

Starting in March 2013, all Texas lawyers and judges will likely confront significant new procedural rules.

June 8, 2012, the Texas Supreme Court formally adopted the learned intermediary doctrine and reaffirmed the principle that a physician (the “learned intermediary”) is in the best position to evaluate a treatment and weigh the potential risks and benefits of a drug.

The Defense Research Institute (DRI) has published an article entitled, “Federal Ban on Hand-Held Mobile Telephone Use: Implications for Commercial Motor Vehicles,” co-authored by Brian Del Gatto, Rebecca Alcantar and Lauren Woods, in its May 30, 2012 issue of The Voice.

Ms. Geroulo wrote the Health Care Law article, and Mr. Collins wrote an article on Insurance Law.

In a case governed by Texas law, the judge presiding over the federal asbestos multidistrict litigation ("MDL") recently granted a motion by Wilson Elser to dismiss 85 claims against two of the firm's clients. The plaintiffs had failed to comply with Chapter 90 of the Texas Civil Practice & Remedies Code, which requires asbestos claimants to file medical reports establishing that they satisfy criteria for impairment and causation. The court held, contrary to the plaintiffs' argument, that these criteria constitute a substantive legal rule that must be applied in a federal action governed by Texas law. This ruling carries significance beyond Chapter 90 and the federal asbestos MDL. For example, it will be useful in urging the federal MDL Court to apply similar criteria enacted by other states.

The Texas Supreme Court has strengthened defenses available to auditors in suits brought by third parties for negligent misrepresentation and fraud. In Grant Thornton LLP v. Prospect High Income Fund, et al., the court overruled what had been a broader standard for establishing liability in negligent misrepresentations. The ruling also sets new limitations on "holder" claims, wherein investors contend they were put at a disadvantage because they held securities they otherwise would have sold – based on an auditor's report. The decision is good news for accountants, who are potential targets in litigation stemming from the financial failings of their clients.

In World Harvest Church, Inc. v. GuideOne Mutual Insurance Co., 2010 Ga. LEXIS 365 (May 3, 2010), the Supreme Court of Georgia answered certified questions from the U.S. Court of Appeals for the Eleventh Circuit regarding the specificity required for an effective reservation of rights letter and whether an insured must show prejudice for an insurer to be estopped from denying coverage under Georgia law.

In a potentially far-reaching decision, the Texas Court of Appeals (Ft. Worth Division) recently held that a plaintiff's failure to offer competent scientific evidence of the minimum exposure level of chrysotile asbestos necessary to increase the risk of mesothelioma entitled the defendant joint compound manufacturer to a summary judgment on the issue of specific causation.  2010 Tex. App. LEXIS 1367 (Feb. 25, 2010).

An old defense to claims brought by clients and former clients has been renewed and given broad application to end litigation against affiliates of the former client’s auditors.  U.S. District Judge for the Southern District of New York Lewis Kaplan ruled, on September 18, 2009, that all claims brought by the plaintiffs, Dr. Enrico Bondi, ("Bondi"), the Extraordinary Commissioner of Parmalat Finanziaria, S.p.A., Parmalat S.p.A., and their affiliates (jointly "Parmalat") in Italian reorganization proceedings, and Parmalat Capital Finance Limited, a subsidiary of Parmalat ("PCFL"), against defendants Grant Thornton International ("GTI") and Grant Thornton LLP ("GT-US") were barred under the in pari delicto defense.