Updates on Insurance Coverage, Construction Defect
and Commercial Auto Law Developments
in Texas and Louisiana
Welcome to the September 2017 edition of Evans & Co.'s Case Notes, a continuing digest of important new cases in the areas of insurance coverage, commercial liability, construction defect, and commercial transportation law, in states in which we work. We write this month with updates in the states of Texas and Louisiana, with cases from state appellate courts, and from federal courts construing the laws of those states.
You may access our entire brief by clicking here, or Texas only here and Louisiana only here.
Our past Case Notes are archived at and we would be pleased to bring current the decisions on which we've reported previously, at your request. We also have trial court decisions bearing on the issues covered, available on your request via email reply.
Texas Court of Appeals nullifies a $43.5 million dollar liability judgment against a general contractor, clarifying that the general contractor as well as the subcontractor the plaintiff worked for, are immune from tort suit, in the absence of intentional acts. The court also clarifies the definition Texas will use for intentional acts. 
Mandamas was proper, and was granted, by the appeals court, where the trial court declined to sever a declaratory judgment action on coverage, from a liability proceeding. This overcame an “abuse of discretion” standard because the appellate court said, prejudice to the insurance issue was assumed if severance was not granted.
In a claim against a UIM insurer, the claimant made the clever argument that because the settlement check for underlying coverage, was made to both the claimant and his wife, that the UIM insurer should receive a set off for only a portion of the payment to the claimant. This argument was defeated by reference to the terms of the underlying settlement.  
A Federal District Court, applying Texas law, opines on the duty to defend a claim against a roofer, whose hot work on the roof caused the subject structure to burn down. Parcing the distinction between a condition of coverage, and an exclusion to coverage, the court found that the policy requirement that a fire extinguisher be at hand during hot work, though breached, did not void coverage because the absence of the fire extinguisher was not the cause in fact of the fire, or the extent of the fire. The case involves a useful application of Texas’ “eight corners” rule and offers dicta that some of parts of the fire loss may not give rise to a duty to indemnify, because of the condition of coverage.
In LOUISIANA, the Louisiana Court of Appeals provides essential guidance to coverage counsel pleading defenses for an insurer: policy exclusions must be plead as affirmative defenses. Raising them at trial is too late, and results in a waiver of policy defenses. Coverage cases require astute counsel, which seem to be in short supply.
Truck liability insurance coverages, are written to segregate claims covered there, from claims that arise from warehousing operations, though truck owners are often involved in both kinds of business. We digest a case, applying Louisiana law, where the two coverages are construed and differentiated.
For those few of you with interest in marine insurance coverage issues (from which, centuries ago, all coverage issues may be said to have sprung), we digest Federal Court cases dealing with the intersection of limitation of liability of shipowners, and the rights of excess insurers, and the effect of the warranty of seaworthiness, on the obligation of a hull insurer to pay a sinking loss.
We hope you find these updates helpful and note that you may find them archived at our firm's website,  We are always glad to provide enhanced interpretations of these and other cases for application to the particular facts of claims that you may be considering.
Click here for our Case Notes for both states (27 pages).
Click here for Texas only (14 pages).
Click here for Louisiana only (14 pages).
Click here to go to the Evans & Co. law firm website for firm information and access to prior case digests.

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