Updates on Insurance Coverage, Construction Defect
and Commercial Auto Law Developments
in Texas and Louisiana
Welcome to the January 2018 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.
In TEXAS, we analyze an important 5th Circuit Court of Appeals case on what notice is late enough notice, to prejudice insurers and thus support a denial of the claim. We brief a Federal District Court case, in which a property loss was held not covered by insurance, because facts established the loss was ongoing “over an extended period of time” and thus not “sudden and accidental.” It appears that the insured’s lack of knowledge of the ongoing loss was deemed immaterial to the conclusion that it was not covered.
An insurer of a general contractor argued that the employee claim exclusion in a CGL policy, excluded claims not only of the insured’s employees, and its subcontractors, but for employees the project developer who hired the insured. The Federal District court held such exclusions only run “downstream.”
In a multi-vehicle, sequential car and truck crash, the question often arises whether there was one, or more than one collision for purposes of calculating deductibles and available policy limits.  We digest a fact-intensive analysis which supports the conclusions that there were two separate collisions, based on the interpretation of “same conditions” meaning the cause of each injury, and not the overarching cause of the totality of the collisions. If you find this hard to follow the Magistrate Judge’s opinion offers more of the same. 
In LOUISIANA, we digest a Court of Appeals decision, which perpetuates a conflict among the Courts of Appeals, over whether an insured may cancel a policy of automobile insurance by oral instruction only.  
In a Federal District Court case, the Louisiana Direct Action Statute’s requirement that it apply only to policies written or delivered in Louisiana, or where the accident occurred in Louisiana were not present in this case. The policy endorsement regarding “Louisiana Changes – Legal Action Against Us” did not explicitly or implicitly adopt the Direct Action Statute as a remedy against the insurer.
In Construction Defect insurance litigation, a developer sued a general contractor for shortcomings in workmanship or design, and the architect and other design professionals were also brought into the litigation. The developer made a direct action claim against the insurer of two of the design professionals as well, and then when their insurer declined to pay after “satisfactory proof of loss,” it brought bad faith claims. The court noted that the developer was not an insured under the design professionals’ policies and dismissed the claim. Some litigator seriously missed the boat here and wasted a lot of money for his client as well as for the improvident defendant-insurer.  Assign complex coverage litigation to complex minds!
For Marine Insurers, we digest two cases:  a Liner Negligence clause case where hull insurers successfully denied coverage, and a case where the insured’s bankruptcy stopped maintenance and cure payments to a seaman, giving rise to a potential claim for those benefits and punitive damages – but not against the vessel’s P & I insurer.
Turning to Commercial Auto and Truck insurances, we digest a case where injuries to a truck driver under a UM/UIM insurances, were properly submitted to the insurer of the lessor of the truck, and not to the truck driver’s own insurances, because the truck driver was “in the business of” the lessor as he was awaiting another load from the lessor at the time of the casualty.   
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 (26 pages).
Click here for Texas only (10 pages).
Click here for Louisiana only (17 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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