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Is an insurance company legally liable for an accident that occurred when its policyholder followed claims investigation recommendations? The Texas Supreme Court recently answered this question, stating, “no”. In Elephant Insurance Company, LLC v. Lorraine Kenyon, Ms. Kenyon was involved in a car accident and had pulled over to the side of the road.  She called her insurance company, Elephant Insurance, to report the claim.  While she was on the phone with the adjuster, her husband arrived at the scene.  The insurance adjuster made several suggestions about what would be needed to docum

Must an employer pay commissions to an at-will employee earned after the employee’s date of termination?  The Texas Supreme Court recently weighed in on this issue, reminding employers that written expectations and terms of employees, their positions, their salaries and/or earnings is crucial. In Perthuis v Baylor Miraca Genetics Laboratories, the Court concluded the state’s “procuring-cause doctrine” applies to commission (or sales) payments for an employee no longer employed with employer at the time the commission is collected. In 1916, the procuring-cause doctrine was established

Recently, the Virginia governor signed into law “SB550,” which explicitly makes “pay-if-paid” clauses unenforceable by statute, joining six other states with similar laws. Texas also has a statute governing pay-if-paid or contingent payment clauses, though does not outrightly void them.  What are contingent payment clauses and what are the statutory restrictions in Texas on their enforceability?  This article provides a primer. What are contingent payment clauses? Contingent payment clauses are just that, clauses that provide that when X happens, Y occurs (i.e., X is a condition prec

On par with rarity of the collapse of a high-rise building in the US, an unprecedented $1 billion settlement agreement was recently presented to the court presiding over the property, personal injury and wrongful death claims relating to the Champlain Tower South collapse.  Who contributed and the amounts they agreed to pay may surprise you.  A.   The Settling Parties The biggest contributors towards settlement are not who you might think they are or should be. As a 40+ year old building, the statute of repose had long ago cut off liability for the contractors and design professionals invo

Earlier this year, the Dallas Court Appeals enforced a waiver of subrogation clause in a construction contract relating to the Winspear Opera House, holding that a commercial general liability (CGL) insurance policy was “property insurance” contemplated by the contract.  On behalf of our firm, I argued successfully that the waiver of subrogation barred the insurer’s claim. In Arch Ins. Co. v. Suprema, Inc., the roofing subcontractor, Anchor Roofing Systems (Anchor), and the supplier of roofing membrane, Soprema, argued that the Arch insurance Company’s (Arch) lawsuit to recover $1.6 m

On May 20, 2022, the Texas Supreme Court issued its long-awaited decision in James Construction Group, LLC. v. Westlake Chemical Corp., holding that substantial compliance with notice provisions in construction contracts is acceptable, except in one instance. If the contract requires that notice be in writing, the notice must be in writing. While the James Construction opinion has other important holdings, in this article we will focus exclusively on the Court’s application of the doctrine of substantial compliance with contractual notice requirements. The factual history of the dispute is l

Characterizing someone as an independent contractor or an employee can have significant monetary consequences.  Under the Fair Labor Standards Act (FLSA), employees are entitled to benefits including overtime pay and minimum wage. Independent contractors, however, are not. As a result, the distinction between an employee and an independent contractor can be an important determination for a business to make. Traditionally, courts have applied a multi-factor test, known as the economic realities test, to “determine whether, as a matter of economic reality, an individual is in business for him