Texas Rule of Civil Procedure 91a became effective March 1, 2013, and is similar to Federal Rule of Civil Procedure 12(b)(6); however, there are some key differences including, but not limited to, the requirement that the court award the prevailing party its costs and attorneys’ fees. TEX. R. CIV. P. 91a.7. Initially, Texas litigators shied away from using Rule 91a for fear of having mandatory fees imposed against their clients or carrier for filing the motion to dismiss. A body of law is slowly developing which interprets and strictly construes Rule 91a. As the common law evolves, it emboldens the Texas Defense Bar to take advantage of this powerful tactical cost shifting tool.

Plaintiffs frequently avail themselves of what has been labeled ‘Holt demands’ as was established in S. General Ins. Co. v. Holt, 262 Ga. 267 (1992). In Georgia, liability insurance providers owe a duty to an insured to act in good faith in settling their liability. ‘Holt’ demands are a means plaintiffs, through their attorneys, can set up and bring bad faith claims against their insurer if the insurer does not pay policy limits within the time specified in the pre-suit demand. Should the insurer not pay the policy limit demand within the deadline and the verdict ultimately exceeds the policy limit, the insured could file or assign the right to file an action for the entire amount of the judgment plus interest. This reality necessarily eradicates a defendant’s policy limits. In bad faith cases, juries determine whether the insurer acted in “bad faith” in rejecting the plaintiff’s pre-suit demand, consequently exposing the insured to a potential excess judgment.

Pedestrians trip and fall for many reasons. Some fall because they are clumsy or not paying attention, while others are caused to fall due to the condition of the sidewalk. The City of New York, as well as many other municipalities around New York State, is actively involved in the beautification of its sidewalks, including installation of decorative sidewalk stones or bricks. These cities also direct the planting of trees within dirt or grass-filled “tree wells” embedded in the sidewalk. However, because contractors do not install them correctly or due to the effects of weather, trees may break or die and tree wells and stones may become uneven, creating a tripping hazard and exposing the adjacent property owner to liability.

After the Court of Appeal reversed an order compelling arbitration, the California Supreme Court has granted the firm's petition for review in Sabia v. Orange County Metro Realty, Inc., et al., S220237. In Sabia, the plaintiffs in  a putative class action alleged they signed loan modification agreements that contained an arbitration clause that only required the plaintiffs to arbitrate their claims against the defendants (not vice versa).

Last month, the California Court of Appeal, First Appellate District, Division One (San Francisco) issued an opinion in Stine v. Dell’Osso, 2014 Cal. App. LEXIS 1039, analyzing “whether a successor conservator can sue for legal malpractice committed in connection with the representation of a prior conservator, and if so, whether malfeasance while serving as conservator.” (Slip opn., p. 4.)

On October 21, 2014, in Grace v. Law, the New York Court of Appeals issued a ruling that clarifies an issue that had been somewhat unclear with respect to attorney malpractice litigation. The Court held that in a malpractice action arising from an underlying litigated matter, the failure of the malpractice plaintiff to pursue an appeal of the underlying adverse ruling will only bar a subsequent legal malpractice case if it can be determined that the appeal was likely to have succeeded.

New Court of Appeal Opinion re: Anti-SLAPP Statute in Malicious Prosecution Case Arising from Testimony in Criminal Prosecution

The Washington Supreme Court issued a divided opinion in Schmidt v. Coogan, 2014 Wash. LEXIS 838, which will significantly impact future legal malpractice cases in Washington. The long-running and convoluted case presented two questions of first impression: (1) whether the elements of legal malpractice include the collectability of an underlying judgment; and (2) whether emotional distress damages are available in legal malpractice cases. Answering the first question, the Court adopted the growing trend to make the uncollectability of a underlying judgment an affirmative defense that negligent attorneys must plead and prove.