Month: May 2018

Food From the Bar

Raizner Slania LLP Helps Gather Food For Houston Food Bank During Food From the Bar

This year Raizner Slania LLP was proud to participate in the Food From the Bar program. Food From the Bar is a month long friendly competition among local law firms and corporate legal departments to raise money, gather food, and donate time to the Houston Food Bank. Because of the devastation of Hurricane Harvey last fall, food from the Houston Food Bank has been even more needed for thousands of Houstonians. Since the inception of the Food From the Bar program in 2016, one of Raizner Slania’s attorneys, Ben Wickert has served on the steering committee. We are very proud of Ben’s involvement, and the firm is honored to help serve our community.

This year marked the 3rd Annual Food From the Bar program, and the legal community of Houston did not disappoint! Law firms and lawyers from across the city came together to help the Houston Food Bank in its mission to feed Houstonians and reduce food waste.

Raizner Slania worked to generate the equivalent of 5,500 meals during the Food From the Bar program, earning the firm a Bronze Partner achievement award. Raizner Slania participated with 37 other legal organizations; and, in total the program raised $200,519, collected 16,196 pounds of food, and donated 2,475 volunteer hours, which generated the equivalent of 763,554 meals for our community.

About The Houston Food Bank

Everything’s bigger in Texas, and the Houston Food Bank is no exception! The Houston Food Bank is the largest food bank in the country, and in 2015 it was nationally recognized as Feeding America’s Food Bank of the Year. The Houston Food Bank distributes 83 million nutritious meals through its network of 600 food pantries, soup kitchens, shelters, and other hunger relief charities in southeast Texas, feeding 800,000 individuals each year.

Giving Back To Houston

The entire legal team at Raizner Slania was honored to have participated in Food From the Bar and we look forward to participating again next year. If you want to know more about the Food From the Bar program, feel free reach out to Ben Wickert or you can contact us online.

Hurricane Harvey Reservoir Flooding

Hurricane Harvey Upstream and Downstream Reservoir Claims Move Forward To Trial

Raizner Slania LLP is representing homeowners who were flooded as a result of the Addicks and Barker reservoir releases in the aftermath of Hurricane Harvey. Both homes upstream and downstream of the reservoirs suffered catastrophic flood damage as a direct result of the actions of the U.S. Army Corps of Engineers. There are a number of lawsuits against the Army Corps of Engineers to recover damages caused to properties; and, while the federal government has tried to have the lawsuits dismissed, judges overseeing the litigation have kept the lawsuits moving forward.

Federal Government Files For Dismissal

In February, the government filed motions to dismiss in both the Downstream and Upstream sub-docket claims regarding flooding caused by the Addicks and Barker reservoirs. The government essentially made three arguments for dismissal:

  1. There was not a constitutional taking of land because the government was “merely acting to mitigate or minimize an inevitable harm to the public” (both downstream and upstream);
  2. Plaintiffs lack a protected property interest in the property purportedly taken. In the downstream case, there is no right to keep land downstream of a flood-control dam free from floodwaters during an extreme storm; and, in the upstream case, there is no right to keep one’s land free from waters backing up from a flood control dam; and
  3. The court does not have jurisdiction over the claims because the case should be brought as a tort, not as a Fifth Amendment takings case (both downstream and upstream).

Essentially, the federal government argued these cases did not represent violations of the Fifth Amendment. The Fifth Amendment prohibits the government from taking private land for public use. In the Addicks and Barker Reservoir cases, property owners claim the Army Corps of Engineers intentionally allowed their homes to flood to prevent catastrophic damn failure from flooding much of downtown Houston. Property owners claim allowing their homes to flood constituted a taking of private land for public use.

Recently, both Chief Judge Braden (presiding over the Downstream sub-docket) and Judge Lettow (presiding over the Upstream sub-docket) issued orders deferring ruling on the federal government’s motions to dismiss until trial.

In the same order deferring her ruling on the motion to dismiss, Judge Braden set the trial for the 15 downstream test properties beginning April 8, 2019, and set various other deadlines for discovery and experts. The government has moved for reconsideration of this ruling, contending (among other things) the court should rule on the motion to dismiss before discovery closes. This motion for reconsideration faces long odds of success.

Although Judge Lettow technically deferred ruling on the motion to dismiss in the upstream case, he (unlike Judge Braden) addressed each of the government’s legal arguments in turn. Judge Lettow found in favor of the plaintiffs in nearly all respects. Two passages of his opinion were particularly favorable for the plaintiffs: In one, he specifically recognized the government “misstated Texas property law” with regard to flood control measures, citing a Texas Supreme Court case recognizing “where the government made a conscious decision to subject particular properties to inundation so that other properties would be spared, as happens when a government builds a flood-control dam knowing that certain properties will be flooded by the resulting reservoir[,] . . . of course the government must compensate the owners who lose their land to the reservoir.”

In his second point, Judge Lettow rejected the government’s argument that the plaintiffs cannot state a takings claim simply because the reservoirs were built decades ago. Judge Lettow focused on the government’s action in building and modifying the dams “in such a way that they could and did impound storm water behind the dams on both government and private property. That the government’s action bore fruit or had consequences only some years later does not obviate the reality that action, not inaction, is at issue.” Judge Lettow then entered a scheduling order setting trial for the 14 upstream test properties beginning February 19, 2019.

Although neither Judge Braden nor Judge Lettow explicitly denied the government’s motion to dismiss the cases, their rulings are helpful because they allow the plaintiffs to proceed with discovery. Judge Lettow’s opinion in particular gives reason for optimism because he explicitly rejected several of the government’s legal theories. We remain optimistic that the Courts will ultimately deny the motions, and allow us to proceed with trial on a full factual record for the test properties chosen in both cases in the Spring of 2019.

Get Help With Your Hurricane Harvey Reservoir Flooding Claim

The experienced lawyers at Raizner Slania LLP are working with property owners whose homes were flooded by the Addicks and Barker reservoirs. Our lawyers understand the unique legal complexities of each type of claim and are fighting hard for clients to help them rebuild. If your property was flooded, either downstream or upstream of the Addicks and Barker reservoirs, call us immediately to discuss your reservoir claim.

Waxahachie Bad Faith Insurance Lawyers

Waxahachie Hotel Owner Files Hail Damage Insurance Lawsuit

Raizner Slania LLP has filed a hail damage insurance lawsuit on behalf of a Waxahachie hotel owner against AmGUARD Insurance Company after its insurance claim was wrongfully denied.

February 2017 Hailstorms 

The plaintiff filed a hail damage insurance claim with AmGUARD after discovering extensive hail damage due to Texas hailstorms in February 2017. Portions of the property’s roof were damaged, causing storm created openings that further damaged the interiors of the property. Additionally, the HVAC systems, windows, and other portions of the property were severely damaged.

In response to the claim, AmGUARD assigned an internal adjuster who inspected the property and prepared an estimate documenting $144,073.53 in covered damages. However, several weeks later the plaintiff was notified the adjuster was being removed from the claim, and the claim would now be handled by an adjuster from Engle Martin & Associates, a preferred vendor of AmGUARD.

In an effort to assist AmGUARD with the claims process and to mitigate any further damages to the property, the plaintiff engaged its own contractor to assist with estimating some of the repair costs. AmGUARD’s claims-handling process omitted a wealth of facts, physical evidence, obvious damages, and meteorological data supporting the plaintiff’s claim. AmGUARD unreasonably determined the damage was insufficient to warrant a payment to the plaintiff. AmGUARD and its preferred vendor, Engle Martin & Associates, ignored obvious evidence.

Although AmGUARD has provided no clear documentation of its findings, to date no payments have been made to the plaintiff for the extensive damage to the Waxahachie hotel. To this day, AmGUARD has refused to pay for any damages covered under the insurance policy.

AmGUARD Violated The Texas Insurance Code

Our client cites numerous violations of the Texas Insurance Code, including a failure to effectuate a prompt, fair, and equitable settlement of a claim, failure to promptly provide a reasonable explanation for the denial of a claim, and misrepresentation of the insurance policy under which it afford coverage to the plaintiff.

Waxahachie Bad Faith Insurance Lawyers

At Raizner Slania LLP, we have extensive experience taking on large insurance companies and obtaining successful outcomes for our clients. If your insurance company has delayed, underpaid, or denied your claim, call the Waxahachie bad faith insurance lawyers at Raizner Slania LLP today for a free consultation to discuss your case.

3M Bair Hugger Lawsuit

Texas Couple Files 3M Bair Hugger Lawsuit After Infection

Raizner Slania LLP has filed a 3M Bair Hugger lawsuit on behalf of a Texas couple after the wife suffered a severe infection from the device. The couple alleges manufacturers 3M Company and Arizant Healthcare failed to warn them of the infection risks associated with the device.

In July 2017, the plaintiff underwent surgery in which the Bair Hugger warming blanket was used throughout course and scope of her left total knee replacement. The Bair Hugger warming blanket is designed to help regulate body temperature during surgical procedures. The Bair Hugger works by sucking in air from the operating room, heating it, and dispersing it through a blanket with holes draped over the patient. While regulating body temperature can help reduce bleeding risks and shorten hospital stays, the Bair Hugger introduces contaminants from the operating room air into the open surgical wounds of patients.

As a direct result of using the Bair Hugger, contaminants were introduced into the plaintiff’s open surgical wound during surgery, causing her to develop a periprosthetic joint infection (PJI), more commonly referred to as a deep joint infection. The pathogens identified were acinetobacter baumannii, Staphylococcus haemolyticus, and mixed skin flora.

Acinetobacter baumannii (or A. baumannii) is a short, nearly round, rod-shaped gram negative bacteria. This type of bacteria is considered opportunistic in humans, as it often affects people with compromised immune systems. A. baumannii is often associated with hospital acquired infections (HACs) and has been identified as a pathogen with a high rate of antibiotic resistance, making it a very difficult infection to treat. Staphylococcus haemolyticus (or S. haemolyticus), is a type of the common staph infection. However, S. haemolyticus has proven resistant to many antibiotics normally used to treat infections.

As a result of plaintiff’s Bair Hugger infection, she has undergone extensive additional medical treatments, including irrigation and debridement, multi-staged removal surgeries including placement of an antibiotic spacer, removal of the antibiotic spacer with extensive capsular and bony debridement, knee fusion with fusion nail and placement of a new spacer, and PICC line and oral antibiotics. In addition to these treatments, she will require additional future surgeries to replace the knee hardware once the infection is cleared.

Not only did the plaintiff suffer physically from the Bair Hugger infection, but she and her husband also suffered economically, with the cost of additional medical treatment. The couple believes the Bair Hugger device is defective in both its design and manufacture. The couple alleges 3M and Arizant committed consumer fraud and/or unfair and deceptive trade practices under Texas law.

Get Help With Your 3M Bair Hugger Lawsuit

If you or someone you care about underwent a joint surgery within the last five years and suffered an infection, you may be able to file a claim. The experienced trial attorneys at Raizner Slania LLP can analyze the facts of your situation and help you understand your legal options. We work on a contingency fee basis, meaning you won’t owe us anything unless we help you recover compensation. Contact us today to schedule a free consultation.

Menchaca Ruling

Menchaca: Clarification of the Law Regarding Recovery On Insurance Claims

Menchaca Clarified Decades of Conflicting Case Law

USAA Lloyds v. Menchaca, a case recently decided by the Texas Supreme Court, sought to eliminate confusion regarding conflicting decisions about insureds’ claims against their insurance companies. The decision announced five rules about the relationship between insurance contract claims, which are claims against the insurance company for damages under the policy, and statutory claims under the Texas Insurance Code, which can give insureds additional damages.

Background: Gail Menchaca, Hurricane Ike, And USAA

Gail Menchaca’s home was damaged during Hurricane Ike in 2008. However, when she contacted her insurer, USAA, to report the claim they sent an adjuster who found minimal damages that did not exceed the policy’s deductible. Doubting this, Gail requested a second inspection, which rendered similar results, and USAA refused to pay Gail anything on her claim. Gail sued USAA to recover her policy benefits, costs, and attorney’s fees. She sued for breach of the policy and for unfair settlement practices and violations of the Texas Insurance Code. The jury found that USAA had fulfilled its obligations under the policy but that it still owed Gail $11,350 in damages plus $130,000 in attorney’s fees. This presented an interesting conflict in case law, which held both that Gail could recover at least her policy benefits under the Insurance Code, and that Gail could not recover under the code without a finding of a breach of the policy. The Court declared five rules in an attempt to reconcile its previous decisions.

The General Rule

The Court confirmed the general rule that an insured cannot recover policy benefits for an insurer’s statutory violation if the insured doesn’t have a right to those benefits in the first place. The insured must have actual damages caused by the statutory violation, and without coverage under the policy for the claimed damages there are no actual damages. If the policy does not cover the loss, there are no benefits to recover. However, there does not have to be an actual finding of breach of the policy to show the policy covered the loss and the insurer didn’t pay.

The Entitled-To-Benefits Rule

One of the most important clarifications in Menchaca was that an insured who establishes a right to receive benefits under an insurance policy can recover those benefits as “actual damages” for a statutory violation. The benefit to recovery under the statute is that an insured may recover additional penalties such as interest on their claim and attorney’s fees. We are currently handling a case before the Texas Supreme Court, Barbara Technologies Corp. v. State Farm Lloyds, which will further clarify whether statutory penalties survive payment of an appraisal.

The Benefits-Lost Rule

The third rule recognizes an insured’s right to recover benefits under the policy for a statutory violation, even if there is no coverage for the claimed damage, if the insurer’s conduct caused the insured to not have that coverage. For example, if an insurer misrepresents that a policy covers wind damage, and the insured relies on that representation to buy the policy, but the policy does not actually cover wind damage—under the benefits-lost rule, the insurer’s misrepresentation caused the insured to not have benefits it reasonably thought it had. Therefore, the insured can still recover benefits for wind damage as actual damages for a statutory violation under the benefits-lost rule.

The Independent-Injury Rule

Menchaca clarified the two aspects of the independent injury rule. First, if an insurer’s statutory violation causes an injury independent of the insured’s right to recover policy benefits, the insured may recover damages for the injury even if the policy does not entitle the insured to receive benefits. However, when an insured seeks to recover damages that flow from denial of the policy benefits, the general rule applies and precludes recovery unless the insured is entitled to policy benefits. Second, an insurer’s statutory violations don’t permit the insured to recover actual damages beyond the policy benefits unless the violation causes an injury that is independent from the loss of benefits.

The No-Recovery Rule

Under this rule, a corollary to the other four, an insured cannot recover any damages based on an insurer’s statutory violation unless the insured establishes a right to receive benefits under the policy or an injury independent of the right to receive benefits.

Barbara Technologies And The Unanswered Question in Appraisal Cases

A question still to be answered—perhaps in our Barbara Technologies case, which is currently pending before the Court—is whether in a case where a valid claim is rejected and then appraisal is invoked and paid, can the insured still recover statutory prompt payment penalties under Section 542 of the Texas Insurance Code. The holding in Menchaca— particularly the entitled to benefits rule— seems to suggest an affirmative answer, but another line of appraisal cases hold that nothing further can be recovered when an appraisal provided for in the contract is conducted and the award is paid in full. However, without the statutory penalties in the Insurance Code an insurer has no incentive to promptly settle or pay claims; the insurer can just wait months or years to invoke the appraisal provision and then be exonerated from paying interest and attorney’s fees on the claim. Hopefully, the Court will continue to recognize the rights of insured Texans who are being wrongfully abused by their insurance companies, and provide the statutory benefits the Legislature enacted to help prevent wrongful treatment of insureds in all cases where the insurer violated the statute.

Insured’s Who Are Not Timely Paid In Full Can Recover Statutory Penalties

If you have been mistreated by your insurance company during the claims process, or your payment has been wrongfully delayed, contact the experienced lawyers at Raizner Slania LLP, who can help get you the benefits you deserve.

fire damage insurance attorneys

Industrial Building Owner Files Bad Faith Insurance Lawsuit After Fire

Raizner Slania LLP has filed a bad faith insurance lawsuit on behalf of an industrial building owner against Certain Underwriters at Lloyd’s London – Brit Syndicate 2987 and Hibbs-Hallmark & Company after its insurance claim was wrongfully denied.

Catastrophic Fire Devastates Commercial Property

The plaintiff owns a scrap metal dealing business that processes metal and then sells it to mills for profit. The property encompasses nearly four acres of land and includes multiple buildings, including a large scrap metal yard, a main office building, and several covered areas throughout the property. The business also utilizes numerous machines and large pieces of equipment, such as excavators, shredders, and separators, among others.

On May 5, 2017, a catastrophic fire broke out at the property. As a result, the business equipment on the property was severely damaged. In addition to damaged business equipment, the plaintiff lost extensive business income as a result of the fire damage to the property. Two pieces of industrial machinery were completely destroyed and two others sustained significant damage.

The damaged machinery prevented the plaintiff from processing and preparing its scrap metal. Because of this, the plaintiff lost business on significant materials that could have been purchased and sold to mills for a profit in the course of ordinary business operations. The damaged machines meant the plaintiff was unable to process the metal, so the plaintiff was forced to resell bulk material after the fire. Unfortunately, the post-fire material had to be processed manually, which caused the materials to incur higher labor costs.

Soon after the fire, the plaintiff filed an insurance claim for substantial property damages and lost business income. The plaintiff asked that the cost of the damages be covered pursuant to the policy, but Lloyd’s has refused to make a full payment on the plaintiff’s claim.

Lloyd’s conducted an unreasonable and inadequate investigation of the damages to the equipment and looked to find policy exclusions in order to deny the claim. Lloyd’s wrongfully denied, underpaid, and delayed plaintiff’s claim for actual damages to the property and lost business income. Specifically, Lloyd’s has chosen to continue to deny and delay timely payment of the damages.

Violations of the Texas Insurance Code

Our clients cites numerous violations of the Texas Insurance Code, including the failure to effectuate a prompt, fair, and equitable settlement of a claim and misrepresentation of the insurance policy under which it affords property coverage to the plaintiff. Our client also alleges numerous violations of the Texas Deceptive Trade Practices-Consumer Protection Act.

Get Help With Your Insurance Claim

If your commercial insurance claim includes damage to specialty equipment, you will need the help of an experienced insurance attorney. Insurance companies often try to use dishonest tactics and misrepresentation to deny coverage for specialty equipment. At Raizner Slania LLP, our fire damage insurance attorneys have helped scores of clients with insurance claims and we know how to evaluate specialty equipment insurance claims. Contact us today to schedule a free consultation to discuss your case.