OA Qs Flashcards
Failed to set forth MSJ proof to burden never sifted to Plaintiffs
Defendants set forth ample evidence to support their summary judgment burden. Plaintiffs do not set forth a valid basis for why the summary judgment evidence is inadmissible.
W Did not move for MSJ on lack of privity
At the time of the MSJ P did not assert BOK against W. But W preemptively moved for MSJ on privity in FN3/CR 137
W’s name is on policy
W is not the carrier, did not investigate, adjust, or otherwise participate in P claim determinations
P did not accept 2 year SOL
P are charged with knowledge of the terms and conditions of the policy. Ignorance is not a defense.
Claim and Suit Limitations Endorsement is void b/c it’s ambiguous
Must read policy as a whole. Ambiguity does not arise b/c parties have different interpretations.
Claim and Suit Limitations Endorsement creates a situation were the SOL is less than 2 years
SOL is not triggered by compliance with policy. A cause of action accrues when the claim is accepted or rejected. Policy says you can file suit at anytime.
S denied that all conditions precedent were met.
B/c P did not provide S w/ notice of their disagreement with the claim determination. They just filed suit.
Court must adopt the construction of the policy urged by insured even if the carrier’s construction is more reasonable.
That is true, where the policy is ambiguous. But the authority cited by Plaintiffs relates to exclusions of limitations on coverage not SOL.
SOL began on 2/5/21 when W responded to POL
Not reasonable b/c allows P to toll SOL indefinitely b/c they did not submit POL until 877 later.
H is not a catastrophe area
S issues coverage in catastrophe areas, so it is permitted to use 2301 in all TX policies
Case law says POL is required to file suit
Distinguishable b/c uses language that requires compliance w/ policy AND suit brought 2 years from DOL. So creates situation where SOL is less than 2 yrs.
POL relevant b/c required to file suit
POL determines value of covered loss. Where a claim is denied no POL necessary. POL waived when claim determinations were made.
D did not plead waiver
D did plead that they waived POL requirement. D are not relying on aff. def. of waiver. D not saying P waived their right to something.
No case has concluded the Claim Suit Limitations is valid.
TX cases interpret the “no suit or action can be brought unless the policy provisions have been complied with” to mean that the refusal to comply with the policy suspends the right to recovery under the policy, but does not bar your ability to bring suit and abatement is remedy.
If it is a condition precedent, it should have been placed in the conditions precedent section and not the SOL provision.
You read policy as a whole. The trigger date for a cause of action is the claim determination and you are provided the ability to file suit at anytime to prevent SOL from running.
W has liability for fraud b/c W is S’s MGA
W was not involved in the claims handling and did not make any representations to P. The INS Code says MGAs “may” do certain things, but does not require them and W proved it did not do certain things.
P understood from 9/10/18 letter that the claim would not be denied or accepted until POL was presented.
No mention that the claim could not be denied. P misunderstanding is does not support a claim for fraud b/c it does not turn D’s rep. into false statements.
D never told P they were waiving the POL.
Under TX law, making a claim determination is waiving POL. Claim was denied, no longer needed. Accepted claim stated although we do not have the POL we made a coverage decision.
P relied on rep. that POL was necessary to process claim and did not file suit until POL was submitted
Their claims were processed. At a min. they were on notice that it was time to dispute the claim. P made all the repairs in 2018. P gave carrier 3 hours to process claim before filing suit.
P reliance that POL was necessary was justified
P did not submit until 877 later; hired lawyer; did not dispute; made all repairs; gave carrier 3 hours to review before filing suit.
IA said water damage to bedroom, kitchen, living room foyer were covered
Not misrep. b/c it’s true that claim was covered. IA don’t make claim determinations
P relied on rep. that water damage was covered to hire contractors
Already hired contractors; claim determinations outline positions; if disagreed they needed to bring it to S’s attention.
P were harmed by misrep.
Nothing D’s allegedly said caused harm to P b/c they were never prevented from exercising their rights under policy or disputing claims.
BOK b/c failed to renew policy
Not required to renew policy; did not request renewal; never paid policy premiums
P did not receive notice
D are not required to show notice was received; proof of mailing is sufficient proof of notice; P did not dispute mailing
P requested renewal via email
Email does not request renewal; not required to renew if notice id mailed
Dec: P claims for damage suffered at home are covered by Policy
Moot b/c claims are barred by SOL
Dec: P must have been renewed
No requirement to renew Policy b/c notice was sent
Notice of non-renewal was not provided
P did not dispute MSJ evd. that notice was timely mailed.
Any provision in the Policy establishing SOL shorter than 2 years is void
No provisions that create a SOL shorter than 2 years. SOL accrues from the date the claim determination is made and P were free to file suit to prevent 2 year SOL from running.
Dec: No cause of action can accrue against D until POL was received
SOL says that a cause of action accrues from the date of the claim determination; POL was moot and waived.
Dec: No suit for BOK can be brought unless the policy provisions can be complied with
Policy says you can bring suit at any time to avoid SOL from running.
D did not obtain leave of court to move for MSJ on 542 w/in 21 days
P waived; LOC id not required b/c later pled causes of action are subject to MSJ if the reasons asserted in the OG Motion are also grounds for MSJ on the later plead claims.
D only moved for MSJ on 542 on SOL.
The 542 claims are barred by the same limitations, lack of representations, proximate cause, and harm arguments made the basis of MSJ and all supported by the MSJ evidence before court. The part does not have to set forth specifics in the MSJ on a later plead claim so long as the basis and evidence is contained within the original.
4 year SOL applies to 542 claims
2 year SOL applies b/c the BOK is governed by 2 year. Feds. say it would make little sense to allow a shorter SOL for a BOK claim than a claim that is dependent on the success of the underlying claim.
TC erred in overruling MSJ objections
Waived b/c failed to brief; frivolous objections; complained that D failed to disclose witnesses; false; depose MS
LM is a licensed attorney qualified to interpret K
Being attorney does not make you an expert; need to establish that their education and experience make them qualified to opine on the subjects at issue
LM Supp. Aff. Satisfied Obj.
Supp. aff. no more than conclusory statements that she read policies and handled 1st party case. Does not explain how she has this experience; her resume supports a diff. story.
LM Aff. is not conclusory
Does not provide a legal basis or reasoning for concluding that the policy language is ambiguous. Fails to read the policy as a whole and ignores case law that concludes the policy is valid.
D provided no evid. of attorney’s fees
Evidence of rate, hours, complexity of case, also evidence of $70K in TC fees. No requirement of who will perform work or qualifications
Attorneys fees are for jury to decide
Cross-reply cited cases where TC granted attorneys’ fees with MSJ; P failed to object and secure a ruling on the TC deciding the issue of attorney’s fees
Evidence of attorney’s fees was not on file for 21 days
There is no requirement that the evidence be on file for 21 days; TC can grant attorneys fees so long as evidence before it before it makes a ruling; was presented to TC at hearing before a ruling was made.
D did not establish that the TC abused its discretion in failing to award attorney’s fees
Look at the record and the totality of circumstance and what it took to get MSJ; D undeniably prevailed on the dec action and it was very frustrating and expenses process for clients where P were constantly moving goal post; navigated and responded to several last minute unfounded claims.
D failed to timely file brief
No set deadlines for cross appeal; briefing rules are construed liberally so a party’s right to appeal is not arbitrarily lost.
