NEWS
Congratulations to DP&S attorney, Dana Levy, who successfully defended a jury verdict in Houston’s First Court of Appeals! In addition to rejecting the defendant’s many challenges to the jury’s causation and damage findings, Dana also convinced the court of appeals to reject an evidentiary argument regarding the improper admission of liability insurance. You can see Dana’s briefing here and read the opinion here.
Congratulations to Rick Thompson who won an important insurance appraisal case in the Texas Supreme Court. The case, Barbara Techs. Corp. v. State Farm Lloyds, No. 17-0640, 2019 WL 2710089 (Tex. June 28, 2019), involved hail damage to a business and the appraisal provision in the business’s insurance policy, which is designed to provide the insurer and the insured a process for determining the value of damage to a property. In this case, the Texas Supreme Court rejected an argument that payment of an appraisal award on a rejected claim absolves the insurer of liability under the Texas Prompt Payment of Claims Act, but also emphasized that in order to recover such damages, there will need to be an adjudication of the insurer’s liability on the claim and a prompt payment violation. Importantly, this opinion preserves a cause action under the Act post-appraisal under certain circumstances, and disapproves of cases that have held otherwise. You can read a copy of the opinion here.
Congratulations to Kirk Pittard for his win in The Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, No. 17-0730, 2019 WL 2710037 (Tex. June 28, 2019). The case involved medical malpractice under the Texas Tort Claims Act and whether a public hospital’s immunity from suit is waived if a negligent decision is coupled with use of tangible personal property which proximately causes injury. The Texas Supreme Court decided that, as long as the tangible personal property is a proximate cause of the injury, the Act does not require that the tangible personal property be used in a negligent manner in order for sovereign immunity to be waived. You can read the opinion here.
Congratulations to DP&S associate, Morgan McPheeters, who won an important venue ruling in a Texas Dram Shop Act case in the Dallas Court of Appeals on May 14th. In addition to successfully maintaining venue in Dallas County, the court of appeals also unanimously held–on an issue of first impression–that the plain language of the Dram Shop Act provides a civil cause of action against not just the bar itself, but also an individual employee who overserves an intoxicated person. You can read the opinion here.
Congratulations to Kirk Pittard who was named “Best Lawyer” in the Appellate Category by D Magazine for 2019. This is Kirk’s 9th year to be named to the list.
Congratulations to Morgan McPheeters who was, once again, named a “Rising Star” in the appellate category by Texas “Super Lawyers” for 2019. You can see Morgan and the other appellate “rising stars” here.
Congratulations to Justin Kaufman and Rosalind Bienvenu who successfully defeated a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction filed by Navistar in New Mexico federal district court. Justin and Roz successfully argued that Navistar, who has been registered to do business in New Mexico since 1966, could be sued there for the wrongful death of Mr. Quinones, who was killed when his vehicle–designed and manufactured by Navistar–rolled over. In doing so, Judge Kenneth Gonzalez re-affirmed that a foreign corporation’s registration to do business in the state constitutes consent to New Mexico personal jurisdiction. You can read Judge Gonzalez’s opinion here, and a Law360.com article about the opinion here.
DP&S is proud of its partners, Kirk Pittard and Rick Thompson, who went back-to-back in the Texas Supreme Court this week.
On Tuesday, Kirk presented argument on behalf of the Respondents in University of Texas M.D. Anderson Cancer Center v. Lance McKenzie and Deborah Diver, No. 17-0730. The case involves a question of sovereign immunity claimed by M.D. Anderson after one of its physicians used a particular chemical fluid–designed to disperse a chemotherapy drug during treatment–that caused the clients’ daughter’s brain to swell and ultimately killed her. You can watch Kirk’s argument here.
On Wednesday, Rick presented argument on behalf of the Petitioner in Barbara Technologies Corp. v. State Farm Lloyds, No. 17-0640. This case involves the Texas Prompt Payment of Claims Act and whether the insurer’s invocation of a policy’s appraisal process and then payment of the appraisal award, but only after forcing the insured to sue its insurer, protects the insurer from penalties–interest and attorney’s fees–under the Act. You can see Rick’s argument here.
DP&S is pleased to announce that Tammy Holt has joined the firm’s Dallas office, effective February 11, 2019. Tammy brings not only significant appellate experience to the firm, but also significant litigation experience, having tried a number of complex commercial cases. Prior to joining DP&S, Tammy was Of Counsel at Rose Walker from 2007 to 2012, and then took over a solo practice in 2013 and formed the Holt Law Firm where she continued her trial and appellate practice.
Congratulations to Jessica Foster, Justin Kaufman, and Roz Bienvenu who, along with trial counsel, Paul Hultin, secured an important ground water victory this week in New Mexico, on behalf of the New Mexico Environmental Law Center and the San Pedro Creek Estates Homeowners’ Association, among many others. The Second Judicial District Court of New Mexico applied the “conservation” element of the state’s ground water permit statute, NMSA 72-12-3, to uphold the Office of the State Engineer’s denial of a major developer’s application to withdraw ground water in the East Mountains near Albuquerque. Judge Shannon Bacon decided the case against the developer and in favor of the neighboring landowners whose wells would be significantly impacted by the proposed development. This decision sets important precedent going forward as to what a developer must demonstrate to show adequate “conservation” in a permit application under New Mexico’s ground water statute. You can read Judge Bacon’s findings and conclusions here. Coverage of the decision by the Albuquerque Journal and the Santa Fe New Mexican can be read here and here, respectively. You can also read all about the trial that led to this important decision here.