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2004 was an interesting year for those following insurance law in Texas. The “law of Mold” continued to develop, with courts tackling the issues of trigger and fortuity created by the change in forms. The complaint allegation rule came under renewed scrutiny in the federal courts, and may get attention by the Texas Supreme Court. Negligent construction as an “occurrence” continued as a mainstay of insurance litigation-with few answers, but a lot of theories. “Misappropriation of advertising ideas” was further refined.

The Texas Supreme Court tackled a number of unresolved issues: selection of defense counsel when rights are reserved; the difference between professional and ordinary negligence; and the application of 21.55 to partial tenders. More is on the way-the insurability of punitive damages is pending on a certified question, and the use of extrinsic evidence to determine defense obligations may be addressed by the Court in the near future.

Stay tuned…2005 promises to be full of new issues and maybe even a few answers.

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