Thinking Beyond the Dispute Resolution Provision in Construction Disputes

Benjamin Pollock | King & Spalding | June 5, 2017

When parties cannot resolve a claim during a major construction project, the contracts dispute resolution provisions do not always need to read as step-by-step instructions. To the contrary, the situation may warrant a different approach that can be negotiated after the dispute arises. While agreement certainly is required to deviate from the contractual obligations which themselves reflect the parties prior and current agreement other options can be considered and proposed whenever they would be beneficial to the Project or parties needs. This article discusses alternative methods by which a resolution to a construction dispute concerning costs or delays can be found in ways not necessarily proscribed by the contracts dispute resolution provisions.

Contracts Do Not Predict Every Situation

As an initial point, by no means is this article suggesting that the contract should be ignored or disregarded. Indeed, the contract provisions should be the embodiment of the good faith negotiations of the parties, often hard-won through sophisticated bargaining. But this does not mean that one size fits all, and the individual situation and claims should be considered when an actual dispute must be managed.

This can be particularly true when circumstances change between the parties, or when the companies develop a business relationship outside of the one specific project. To be sure, the contracts dispute resolution provisions establish the original framework by which the parties are to resolve disputes arising from construction of that individual project. But the realities can change when those companies subsequently enter into additional contracts regarding multiple projects, or agree to an Operation and Maintenance Agreement that binds them to each other at the same site for multiple years following completion. Suddenly, the prospect of filing for arbitration over the one construction dispute can become a challenging or unacceptable option. Indeed, preserving the relationship and maintaining peace may prove more valuable than escalating a dispute to a jury or an independent panel. And with arbitration or litigation seen as a last-ditch option, the parties may do well to think beyond the contracts instructions in order to get the dispute resolved.

Conditions Precedent Can Be Mutually Waived or Changed

In many ways, a contracts dispute resolution provision can be seen as the designation of the ultimate deciderarbitrator, judge, or juryand a series of conditions precedent that must be followed before reaching the final stage. These conditions serve various purposes, like promoting party communication in an attempt to avoid costly litigation, or ensuring notifications are being effected internally at appropriate levels of management. These interim steps can include formal notice, a mediation or other non-binding proceeding, various waiting periods, and/or a meeting between management personnel. When a particular dispute reaches impasse, however, these actions may not always serve their intended purpose. In such scenarios, the contract provisions do not always need to be strictly adhered to, but instead should be evaluated for their perceived effectiveness under the circumstances. When it serves both parties or the Project to take different action, consider seeking a mutual agreement to waive or adjust certain of these conditions.

Take waiting periods. It is not uncommon for a contract to mandate that arbitration cannot be filed until a certain number of days after a formal notice letter is served (or other triggering event). But what if the dispute is impacting critical path activities, and a quick resolution would allow the parties to mitigate the impact or at least would provide the parties more certainty regarding the risks of a situation already affecting cost and schedule? As an initial matter, the owner may do well to instruct the contractor to continue working, or enter into a temporary agreement that maintains Project progress while the claim is addressed. But in this scenario, both parties may wish to consider waiving the required waiting period and submitting the dispute on an expedited schedule. Similarly, both sides may benefit from adding strict time limits on the selection process of nominating one arbitrator eachwho then nominate a chairpersonor even forgoing this timely process in favor of selecting a single fact-finder.

Another example is mandatory meetings between managers. Sometimes it may be patently obvious that certain disputes will not be resolved at such meetings. Perhaps the representatives designated by the contract have personality conflicts, the parties positions are extreme and irreconcilable, or the contemplated meeting would present other challenges that may actually exacerbate the situation. If the parties are entrenched in their positions, more might be at stake than a waste of time and resources: ill will can result if one party believes the other is not participating in good faith. In certain circumstances, a discussion by the designated persons about the dispute can do more harm than good.

Agreeing not to hold such a meeting is an option, although generally speaking, parties engaging in discussion before launching litigation is a good thing. If the contract requirements do not create an environment for success, they can be tweaked. Notwithstanding contractual restrictions on attendees, the parties can agree to select personnel best suited to attend, usually so long as there is someone present with decision-making authority. The presence of a mediator, expert, or third party neutral to facilitate discussions and offer opinions can be considered, regardless of whether the contract requires such a presence. And rather than meeting to discuss the merits of the disputewhich likely is encapsulated already in opinionated change documentation and argumentative claims letterscommercial settlements can be discussed instead. Indeed, such proposalsbonus milestones, additional resources, overtime, changes to the payment schedule, etc.may resolve the dispute without having to discuss, much less decide, the contentious issues, and can also benefit project progress itself. In these ways, parties can still hold the required meeting but tailor it to best position themselves for success.

Conclusion

A dispute resolution provision identifies the final arbiter of a dispute and contains other requirements meant to facilitate discussion and negotiation so that litigation can be avoided. Sometimes, however, the specific provisions will not best serve those purposes. In these situations, prudent parties will study the contracts requirements but also consider options that might more effectively resolve the particular dispute at issue, get the project back on track, and improverather than harmthe business relationship. Rather than view the various required stages as items on a checklist, parties can agree to waive or alter certain provisions and thereby adopt a procedure that may better facilitate resolution the specific dispute.

Hard To Handle

Brian L. Hill | Construction Law Musings | June 30, 2017

For the better part of twenty years, I’ve had a front row seat to over 1,000 construction lawsuits, claims and other disputes. Whether it is allegations over defective design, manufacture or installation, or claims of delay or cost overruns, or related to injuries, death, or even diminished value, there are some clear trends and patterns that have emerged over the years. The past decade in particular has seen sweeping changes to the nature of construction claims and disputes, and as a result, many veterans in the legal, insurance claims and expert services arena have struggled to adapt.

In this article, I will share some of the trends and insight I have picked up on from working with some of the top professionals in the industry when it comes to handling the increasingly complex nature of construction claims and disputes.

Single-family residential lawsuits involving dozens or hundreds of homeowners in a single tract, which at one point represented the bulk of claims in terms of both quantity and dollar value, are much more rare than ever before. The answer to why that is should be readily apparent to most: America’s home building productivity screeched to a halt during the recession and has yet to resume to previous levels. Similarly, condominium and other multifamily for sale projects just haven’t been in vogue for a decade, so we don’t see nearly as many lawsuits and claims involving homeowner associations as we used to.

Apartments, hotels, schools (K–12, and higher ed), governmental facilities, medical facilities, office buildings, skilled nursing and assisted living facilities, and other nonresidential projects are examples of the types of projects that are involved in disputes more often in recent history. Looking at that list, a common theme emerges — these are all more complex project types.

Not only that, but the stakeholders involved in these types of claims tend to have a lot more at stake, in addition to having the resources to retain top representation. The stakeholders themselves are more complex, often with sophisticated organizational structures, sometimes even involving foreign entities. For instance, one trend that insurance carriers are reporting is that more and more claims are coming forward on projects involving EB–5 Visa money.

Since insurance carriers are the entities that most often end up funding various claims, disputes and their ultimate resolution, you can be sure that insurance policy language is evolving in response to the new trends as well. Unfortunately, this means that the already high self-insured retention (SIR) requirements of many policies is only getting higher. (In case you don’t know, the SIR is like a deductible in that as an insured, your coverage doesn’t kick in until you’ve satisfied the SIR. Some publicly held builders have SIRs of $10-million.)

Because of the high SIRs, claims adjusters rarely have much if any involvement in a claim’s early stages, when early resolution is most beneficial to all parties. Another factor complicating the insurance coverage issue in today’s construction claims world is that even with the high SIRs, unless an actual lawsuit is filed, there may not be a claim for the carrier to respond to. That is a situation that can occur in an active construction project where a claim exists in absence of filing suit, or — in an increasingly common scenario — in a state where “right to repair” laws require certain criteria be met prior to actually filing a lawsuit that would trigger coverage.

The other “gotcha” that comes with the right to repair laws is that it can be extremely difficult to obtain a full release of liability in return for making repairs. Plaintiff counsel are reluctant to grant full release unless both the repair methodology and scope meets their experts’ requirements. In response, defense counsel are often reluctant to recommend their clients undertake repairs, congnizant of the additional risk that may result, without any guarantee of release of future liability.

How Best to Manage Complex Construction Claims and Disputes?

The increasingly complex nature of modern construction claims and disputes demand a completely different skill set and level of analysis in order to achieve resolution. That applies not only to the legal team, but also to the designated team of technical experts required to make sense of various claims.

With regards to the legal team, multiple layers of representation are often required, and that goes for both the plaintiffs, defendants and cross defendants. Sure, a solid understanding of contracts and construction practices is an obvious prerequisite. But you’ll also need someone on the team that has intimate knowledge of your state’s applicable legislation and case law as it applies to design and construction.

An essential resource that is needed on most cases I’ve been involved with is coverage counsel — an expert on your state’s insurance coverage policies and interpretations, with real world experience litigating such issues. One piece of advice I hear frequently is to also make sure that you have a strong line of communication with key decision makers for the parties you are representing and make sure those decision makers show up when required. (Too many cases drag on, with millions of costs/fees wasted, all because a representative of the carrier with proper signing authority failed to show up to a mandatory settlement conference, for example.)

Another critical aspect to managing complex claims and disputes is having the right technical experts, consultants and specialists on hand, as needed. Sometimes the choice of what type of expert is obvious, but not always. For example, if you are representing the architect or engineer, you obviously want an expert on standard of care for that profession, but you might also want to consider bringing in an expert on construction management standard of care to evaluate the design professional’s relationship with the rest of the team. You also need specialty experts, available on an as-needed basis, to answer the specific highly technical issues that will inevitably come up during the process.

Economic loss is often barred as a cause of action in claims involving one’s personal residence, but as more nonresidential projects end in dispute, the possibility of economic loss may become a factor. We’ve seen this come up in delay claims more commonly in recent years. Having an economic loss expert, in addition to an expert on estimated construction costs, has proven invaluable in some of those situations.

Of course there are some other economic realities that need to be considered when handling complex construction claims and disputes, such as the cost of these wonderful legal and technical experts that have now become critical. Whether you are working on behalf of the owners, the designers, the contractors, or some other party, the more manageable the costs, the happier your client will be, and the more likely you’ll get future assignments and referrals.

The biggest cost factor by far that we see in today’s claims and litigation world involving the built environment is dealing with the massive volume of evidence. In a single family home tract, besides the drawings and subcontracts, you aren’t going to typically find too much data to go through. On a $125-million mixed-use high rise however, you could easily find yourself with hundreds of thousands of documents. What’s worse is that those documents might be in hard copy spread amongst dozens and dozens of bankers boxes, or scanned into massive monolithic PDFs each containing thousands of pages, or even scanned into individual files per each page. And of course rarely are any of these document repositories ever well organized. The key is to retain a consultant or expert on document management to reduce wasted and duplicative effort on the part of your entire team.

What you don’t want to have happen is to have one of your experts miss a critical piece of evidence because they either weren’t provided with the document (in an attempt to reduce costs) or worse, because nobody knew the document existed. Having the right document on hand, at just the right moment, has been decisive in many cases I’ve worked on over the years. A six-figure cost for document management isn’t unwarranted in a high-stakes, bet-the-company claim when tens of millions of dollars are at stake.

Perhaps the most important factor in reducing the incredible cost of today’s complex construction claims and disputes comes down to plain old good project management. No one single person or even party can handle 100% of a complex claim. It is a collaboration between multiple lawyers, their staff, experts, consultants and others. Just like on an actual construction project, communication is key. Maintaining strict protocols for communication to ensure that what’s privileged remains so, while keeping everyone informed of what they need to know, is a dance that is not for the faint of heart.

What’s Next?

Just as the design and construction of the built environment has evolved greatly over the past several decades, so too has the handling of the claims and disputes associated with it. Two decades ago when I first started out in forensics, we took pictures on actual film, took notes using paper on clipboards, and stored our project case files in so many three-ring binders. Nowadays, we use digital cameras and tablets, and have terabytes of data stored in secure encrypted private clouds.

Some of the upcoming trends I see:

  • An increasing percentage of claims will be resolved in mediation and/or alternative dispute resolution, and outside of the courtroom
  • More claims related to occupant health and indoor environmental quality can be expected
  • Failure to achieve certain sustainability goals or incentives will become a cause of action in more jurisdictions
  • Operations and maintenance of facilities will play a larger role in building performance, and will thus come into play more in future claims
  • Insurance technology, particularly enhanced through artificial intelligence, will be greatly beneficial to the carriers, less so for insureds
  • As BIM and other collaborative construction technologies become more mainstream, the need for digital forensics will become more critical in e-discovery
  • Drones, robots, LiDar, 3D scanning, Infrared, and other advanced technologies will facilitate more advanced and less costsly/risky investigations

The one key factor that I have seen proven time and time again for handling complex construction claims and disputes is agility. Bamboo’s strength comes from its flexibility. By adapting and adjusting your approach to a given situation, and perhaps most importantly, by actively listening to opposing parties, even the most complex and contentious of claims can be resolved with minimal wasted expense.

Construction Disputes Becoming Faster and Cheaper, says Report

Out-Law.com | June 22, 2017

The value of construction disputes and the time taken to resolve them have both fallen over the past year, according to the annual Global Construction Disputes report from construction consultancy company Arcadis.

The global average value of disputes dropped by $42,800,000 while the time taken fell by one month, to 14 months, the report said.

Disputes in North America tend to last the longest, at an average of 15.6 months, the report said.

Asia took the top spot from the Middle East with the highest average construction dispute value at $84 million, it said, and the UK saw a double-digit increase in both average dispute value at US$34 million and dispute duration of 12 months.

The most common cause of disputes globally was ‘failure to properly administer the contract’. This has been the most common reason for four years running, Arcadis said. It is followed by ‘poorly drafted or incomplete/unsubstantiated claims’, and ’employer, contractor or subcontractor failing to understand and/or comply with contractual obligations’.

The social infrastructure and public sectors had the most disputes, Arcadis said.

When it comes to resolving disputes, party to party negotiation remains the most popular alternative dispute resolution method.

Construction law expert Fraser McMillan of Pinsent Masons, the law firm behind Out-Law.com, who contributed to the report, said: “The report highlights the most common cause of disputes. As construction contracts become increasingly complex, the allocation of risk and the administrative requirements of these contracts are not properly appreciated by those who have to operate them, at all levels of the supply chain.  Something is being lost between the contract and the site.  Parties in the process need to find a way ensure their people get the commercial understanding they need if disputes are to be avoided.”

Missouri Court of Appeals Upholds Acceptance Doctrine to Absolve General Contractor of Premises Liability

John A. Watt | Baker Sterchi Cowden & Rice LLC | April 21, 2017

In the case of Wilson v. Dura-Seal and Stripe, the Missouri Court of Appeals for the Eastern District held that the “acceptance doctrine” is still valid law in Missouri, and bars liability against a construction contractor for the injury of a third party after the owner of the premises has accepted the work. Citing prior case law, the Court explained the law as follows: “After an owner accepts a structure, the general rule is that a general contractor is not liable to persons with whom he did not contract….In the absence of formal acceptance, constructive or practical acceptance will suffice….Acceptance of the work is attended by the presumption of the owner … made a reasonably careful inspection of the work, knows of its defects, and so accepts the defects and the negligence that caused them as his own.”

In Wilson, plaintiff brought suit against general contractor Dura-Seal for injuries she sustained when she tripped and fell in the gutter area of new asphalt, which had been applied by Dura-Seal at a public school. Wilson claimed that she fell as a result of the height differential between the gutter area and the new asphalt installed by Dura-Seal. Wilson filed a premises liability claim against the owner of the premises who then in turn added Dura-Seal as a third party defendant. Dura-Seal moved for summary judgment, stating that the owner had accepted their work and therefore bore the premises liability due to the acceptance doctrine. The plaintiff argued that there was no evidence that the owner had accepted the work.

It was undisputed that Dura-Seal had not performed any work on the drive lane for at least two months before the plaintiff’s injury and that the owner had paid Dura-Seal for all of the work. It was undisputed that the owner also had exclusive possession and use of the premises rather than the contractor. The Court of Appeals affirmed summary judgment and found that the undisputed facts showed that Dura-Seal was neither in control of the premises, nor had the right to control the premises at the time of the plaintiff’s injury.

The Court of Appeals also analyzed the “imminently dangerous” exception to the acceptance doctrine. This exception operates to impose liability on a contractor, even after the owner has accepted the contractor’s work, under the following conditions: “Where the structure was so defectively constructed as to be essentially and imminently dangerous to the safety of others; the defects are so hidden and concealed that a reasonable and careful inspection would not have disclosed them, and these things are known to the defendants but not to those who accepted them.” Here, the undisputed facts showed that the drive lane and the gutter area where Dura-Seal worked were in plain view and therefore was easily discoverable by the owner. The Court thus declined to apply the exception, and ruled in Dura-Seal’s favor, holding that plaintiff had accepted the work when it was completed and payment in full was made.

Missouri construction contractors and their counsel should be well aware of the dimensions of the acceptance doctrine, and the “imminently dangerous” exception, when defending cases of this type.

Insureds Cannot Shift Burden to Indentify Claimed Damage

Summer L. Frederick | Zelle LLP | March 17, 2017

The first-party insurance claims process has always been pretty simple for the typical insured: call the agent to report a claim, identify and quantify the claimed damage, work cooperatively with the insurance adjuster to support the claimed damage, and hire contractors to repair the damage. It has traditionally been a collaborative process that effectively resolved the overwhelming majority of first-party insurance claims without incident.[1]

With the onslaught of hail litigation in Texas, the traditional model is now changing. And not for the better.

Since 2012, hail claims in some parts of Texas have been increasingly likely to involve attorneys, lawsuit, or public adjusters.[2] Data collected by the Texas Department of Insurance shows that between 2011 and 2012, public adjuster involvement in a claim increased by 900 percent.[3] In that same period, the likelihood of a policyholder to sue an insurer increased by 1,400 percent.[4] Indeed, hail claim litigation has become a burgeoning business in Texas. As a result of the dramatic increase in lawsuit filings, courts have been saddled with sorting out issues such as the improper joinder of adjusters, late notice, concurrent causation and whether claims survive payment of appraisal awards. Litigation concerning these issues continues.

Another issue garnering recent attention in the courts involves a more fundamental aspect of the insurance claims process: the insured’s burden to identify and quantify claimed damage.

The Insured’s Fundamental Burdens

Texas law has always been clear that as the party seeking coverage, the insured has the burden to establish a covered cause of loss during the applicable policy period.[5] The traditional method of claim resolution is consistent with Texas law on this point. The onus is on the insured to contact the insurer and identify and quantify the damage it claims is payable under the insurance policy.[6] The insurer has no burden to actively seek information regarding additional damage when the insured has made no report of such. Yet, as discussed below, a tactic utilized in litigation with increasing frequency seeks to shift this burden to the insurer.

A Developing Trend Seeks To Disrupt The Traditional Claims Model

It is now common in Texas hail litigation for lawsuits to include damage components the insured never previously identified or quantified. Specifically, instead of the traditional claims process described above, the current process follows a pattern such as this: the insured files a lawsuit for breach of contract and a myriad of extracontractual claims following an adjustment process during which there was never any dispute as to the damage identified and quantified. New damage components appear for the very first time in an estimate attached to a presuit demand letter or in a lawsuit filed by the insured.

As an initial matter, this seems to fly in the face of equity. How could the basis for breach of contract be the failure to pay a claim on a damage component that was never presented to the insurer? How could an insurer have even potentially performed a thorough inspection when it never knew the insured expected it to inspect alleged damage? How could it have made a payment for damage the insured never quantified? Doesn’t this trend permit the insured to shirk the fundamental contractual obligation it has when it submits an insurance claim?

League City v. Texas Windstorm Insurance Association

In January 2017, the First District Court of Appeals in Houston agreed that an insured could not recover for breach of contract when it identified property damage components for the first time only after suit was filed.[7] In League City v. Texas Windstorm Insurance Association, the insured made wind damage claims for “various” locations following Hurricane Ike. The insurer paid for identified damage and closed the claim. Instead of making supplemental damage claims, the insured sued for the insurer’s failure to inspect “numerous additional structures.” Upon notice of suit, the insurer requested the insured to identify all damaged locations. The insured did not. The insurer demanded appraisal, but the insured still did not identify all damaged locations. In fact, it did not identify all damaged locations even when the court ordered it to do so. The case proceeded to trial, at which time the insured claimed the insurer failed to conduct a reasonable investigation and make payment for damage to 29 properties. The properties were not part of its original claim, and were not part of the appraisal. The insurer never even knew they were at issue.

The insured argued the insurer would have known of the damage if it had adjusted the loss properly. The jury disagreed, finding the evidence showed the insured breached the policy’s prompt notice provision and the insurer was prejudiced because lack of notice prevented it from conducting a reasonable investigation and making a timely payment.[8] The court agreed. It noted that without communication, the insurer could not have known whether the insured expected further investigation, adjustment or payment, or if it agreed with the adjustment and payment that had already been made.[9] The court observed that in order to avoid coverage, the insurer must show that 1) the insured failed to comply with the prompt notice provision, and 2) the insurer suffered prejudice as a result.[10] In this case, the notice was wholly lacking.[11] To this end, the court held:

When an insured’s failure to comply with a prompt-notice requirement causes prejudice to the insurer, it defeats coverage. [The insurer] established that [the insured’s] failure to comply with the prompt-notice requirement caused it prejudice. This negated [the insured’s] breach-of-contract claim and resolved the issue of coverage in [the insurer’s] favor.[12]

Ultimately, the insured’s breach of contract claim failed.

League City addresses the problematic situation that arises when an insured accepts a claim payment without dispute, files suit without first attempting to resolve a problem, and then complains that various other property damage components were never addressed. It is consistent with other emerging Texas precedent on this issue. League City, as well as the cases noted below, suggest that Texas courts running up against this gross misuse of the claims process, see through the ruse.

Other Texas Courts Also Reject The New Tactic

Given its blatantly obvious nature, it is not surprising that iterations of the tactic in League City have been called out before. In 2015, the Fifth Circuit refused to accept the insured’s argument that general statements in a pleading, without more, constituted notice of an additional claim.[13] The court agreed that prompt notice was required as soon as practicable, and determined that when notice was not given until more than two and a half years after a hurricane, and until after appraisal had taken place, the insurer was prejudiced as a matter of law. This was because the insurer was at least substantially deprived of the right to investigate the loss.[14]

Additionally, Judge Micaela Alvarez in the United States District Court for the Southern District of Texas has now addressed this issue three times.[15] In 2015, she twice addressed the situation in which the insured accepts a claim payment, fails to identify additional damage and then simply files suit for breach of contract.[16] Both times, she noted that the insurer has no general duty to pay claims when it receives no notice of damage. Failure to notify the insurer of the claimed damage is a breach of the policy’s prompt notice provision.[17]

Similarly in 2016, Judge Alvarez determined that insureds could not support a suit for breach of contract when they accepted a payment for recoverable depreciation and did not dispute the amount of recovery or advise the insurer of further damage prior to filing suit.[18] She held: “The fact that Plaintiffs are dissatisfied with the damages paid is not the result of [the insurer’s] failure to fulfill a policy obligation; instead, it results from Plaintiffs’ knowing failure to even submit damages to [the insurer] prior to filing this lawsuit.”[19]

Some Legislative Help

The Texas Legislature is presently considering Senate Bill 10, which is specifically directed at addressing many of the common abuses taking place in Texas hail damage claims. One aspect the legislation seeks to remedy is the increasingly common abuse of adding new damage components for the first time in litigation. Senate Bill 10 creates a requirement that the insured provide meaningful prelitigation notice to the insurer, including identifying and quantifying damage components it seeks to recover in litigation. While this does not excuse the insured’s failure to comply with its burden to identify and quantify damages during the actual claims process, the Senate Bill 10 requirement would at least provide the insurer with additional information before a lawsuit is filed, affording the insurer an opportunity to resolve legitimate disputes prior to years of litigation.

Summary

It is time to return the traditional insurance claims model to the Texas claims process. The legal manipulation of the process, as witnessed in League City and similar cases, must be curtailed. These cases make clear that accepting payment, staying silent, dropping a lawsuit out of nowhere, and then complaining that more damages are owed is a practice which grossly departs from what the claims process was intended to be. Further, the current practice wholly disregards the insured’s burden under the policy while simultaneously obliterating the insurer’s ability to comply with the law. But — the jig is up. In light of League City and other recent decisions, attorneys who continue to manipulate the claims process by adding damage components for the first time in litigation now do so at the peril of having such claims dismissed in their entirety.

Perhaps, these attorneys instead will tell potential clients (typically referred by roofing contractors, public adjusters and other case solicitors) to first call their insurers, present the additional claim components and try to resolve claims amicably without the need for attorneys and litigation.

Yeah, right.

 

[1] This issue is discussed in our firm’s article: Brett A. Wallingford, A Worrying Insurance Trend: Litigation, No Cooperation, available at https://www.law360.com/articles/824517/a-worrying-insurance-trend-litigation-no-cooperation, August, 2016. The article at hand presents an update of the topics discussed in Mr. Wallingford’s article.

[2] http://www.tdi.texas.gov/reports/documents/weatherrelatedpropertyclaims.pdf, p. 4.

[3] Id. at p. 10.

[4] Id.

[5] Progressive County Mut. Ins. Co. v. Sink, 47 S.W.3d 715, 718 (Tex. 2003).

[6] See, e.g., Evergreen Nat’l Indem. Co. v. Tan It All, Inc., 111 S.W.3d 669, 675 (Tex.App. – Austin 2003, no pet.)

[7] League City v. Tex. Windstorm Ins. Ass’n, 2017 WL 405816 *9 (Tex.App. – Houston [1st Dist.] Jan. 31, 2017, no pet. h.).

[8] Id. at *6.

[9] Id. at *9.

[10] Id.

[11] Id. at *12, *19-23; see also PAJ v. Hanover Ins. Co, 243 S.W.3d 630, 636 (Tex. 2008); Nat’l Union Fire Ins. Co. v. Crocker, 246 S.W.3d 603 (Tex. 2008).

[12] League City, 2017 WL 405816 at *9.

[13] See United Neurology, P.A. v. Hartford Lloyd’s Ins. Co., 101 F.Supp.3d 584, 617 (5th Cir. 2015).

[14] Id. [15] See Fregoso v. State Farm Lloyds, 2016 WL 1170104 (S.D. Tex. Mar. 24, 2016); Maria v. State Farm Lloyds, 2015 WL 8618435 (S.D. Tex. Dec. 14, 2015); Martinez v. State Farm Lloyds, 2015 WL 7571840 (S.D. Tex. Nov. 24, 2015).

[16] Maria, 2015 WL 8618435; Martinez, 2015 WL 7571840.

[17] Maria, 2015 WL 8618435 at *6; Martinez, 2015 WL 7571840 at *6.

[18] See Fregoso, 2016 WL 1170104 at *4 – *5.

[19] Id. at *4 – *5.