Attorney wins case

An attorney in Thompson Coe’s Houston office recently severed their insurer client from a personal injury lawsuit involving an amputated finger in In Re Essex Insurance.

According to the decision, Israel Lopez sued Murphy Industrial for premises liability in a Harris County district court after he sustained injuries while working as a temporary employee at Murphy’s facility. Lopez alleged that a pressurized paint gun he was using malfunctioned and shot epoxy into one of his fingers that later required amputation.

After they were sued, Murphy filed a third-party petition against its insurer, Essex Insurance Co., alleging that Lopez’s premises liability lawsuit triggered Murphy’s coverage defense under a liability policy—coverage that they also alleged Essex had wrongfully denied.

Essex then moved to sever the lawsuit by requesting that Murphy’s insurance claims against it be seperated from the personal injury suit. In Texas insurance law the general rule is that an injured party may not sue a tortfeasor’s insurer directly unless the tortfeasor’s liability has been finally determined.

But Murphy and Lopez opposed the motion to sever, arguing that any prejudice that would arise in the case could be resolved by bifurcating the trial into two phases—the first involving the tort claim and the second involving the insurance coverage issues.

The trial court judge denied Essex’s severance motion but granted Murphy and Lopez’s request for separate trials. Essex then filed a petition for writ of mandamus with the First Court challenging the trial court’s order.

In their writ, Essex cited Rule 38 and Rule 51 of the Texas Rules of Civil Procedure, which both stand for the proposition that insurers cannot be joined in civil actions in which they are not directly liable to the injured plaintiff.

And in her Nov. 8 decision, Justice Jane Bland determined that Essex deserved mandamus relief and ordered the trial court to sever the insurer from the tort claim by splitting the lawsuit into two separate causes of action.

“Absent mandamus relief, Essex would be required to participate in discovery and monitor a separate liability trial in the face of the prospect that Murphy may not prevail on its suit for coverage and a defense, and with the prejudice that could result from having the same jury that determines Murphy’s liability also determine Murphy’s insurance coverage for that liability,” Bland wrote.

“The First Court’s decision reaffirms why insurance companies shouldn’t be joined as third parties in tort cases,” attorney said. “It’s really to deal with judicial economy. In this particular case you may have made an insurance company to go through an entire case where it was found not to have had coverage. And generally, I think juries should be looking at whether or not the alleged tortfeasor did wrong without taking into consideration who’s going to pay for it.”