Download November 2012 Headnotes PDF - Dallas Bar Association

Dallas Bar Association 

HEADNOTES 

November 2012 Volume 37 Number 11 

Doing the Right Thing 

Payne Mitchell Law Group and 

Justice Deborah Hankinson Donate 

$25,000 to EAJ Campaign 

Focus Tort & Insurance Practice 

by Alicia Hernandez 

“Doing the right thing” has been the mantra 

of legal aid programs for years. The well and 

possibly overused argument for upholding civil 

legal aid for the poor through pro bono service 

and financial support speaks to the noble sides of 

lawyers who aspire to open justice. But, when it 

comes to the skeptics or simply those who want 

to know that their contributions to legal aid programs 

are well spent, it comes down to facts and 

figures and the bottom line economic incentives 

for supporting legal aid to the poor. 

In recent years, more focus has been placed 

on the economic impact of legal aid programs 

on our communities. The data has upheld what 

many of us have always believed—that legal 

aid programs not only make a difference in the 

lives of the poor, but they also have a significant 

impact on the economic health of our communities. 

The Perryman Group studied the economics 

of legal aid in 2009 and issued a report entitled 

“The Impact of Legal Aid Services on Economic 

Activity in Texas: An Analysis of Current 

Efforts and Expansion Potential.” The study also 

found that the activity generated approximately 

$30.5 million in yearly fiscal revenues to state 

and local governmental entities. 

Closer to home, the Dallas Volunteer Attorney 

Program (DVAP) volunteer attorneys helped 

clients realize over $1.5 million in annualized 

benefits in 2011. With additional income, clients 

are less likely to need food stamp, Medicaid and 

housing assistance from local, state and federal 

resources, and they also have more funds to put 

back into our local economy. This is an impact 

Andy Payne and Jim Mitchell 

that not only helps our clients in their daily lives, 

but helps our community as a whole. 

This is what Andy Payne and Jim Mitchell, of 

Payne Mitchell Law Group, are doing with their 

$25,000 gift to this year’s Equal Access to Justice 

Campaign—making an impact on individual clients 

while helping our community as a whole. 

“Equal Access to Justice not only helps preserve 

the legal rights of our fellow citizens who cannot 

afford a lawyer, it also has a significant economic 

impact on their lives and our community” said Mr. 

Payne. “We are grateful that Payne Mitchell can 

again support the important work of the Dallas Volunteer 

Attorney Program.” 

Payne Mitchell Law Group has supported the 

campaign since 2007 with over $126,000 in donations. 

Giving from the heart with an eye towards 

the practical impact, Payne Mitchell’s donation 

will continue to help DVAP clients stand on their 

own two feet and become more capable of better 

supporting themselves and, in turn, the local economy. 

Justice for All is a great cause that embodies the 

idealism of an open legal system with practical economic 

results that are very relevant to our times,” 

added Mr. Mitchell. “We are proud to be a part of it.” 

Justice Deborah Hankinson, of Hankinson 

LLP, is also supporting this year’s Equal Access to 

Justice Deborah Hankinson 

Justice Campaign benefitting the Dallas Volunteer 

Attorney Program with a $25,000 donation. 

Justice Hankinson’s commitment is not just a gift 

to DVAP, it demonstrates her firm commitment 

to the positive impact that access to justice can 

have on everyone. “One of the things on which 

all Americans agree is that justice should not be 

based on what you can afford to pay for it,” said 

Justice Hankinson. A steadfast supporter of legal 

aid, Justice Hankinson has donated countless hours 

to the cause on a statewide and national level and 

$216,000 to the Equal Access to Justice Campaign 

over the years. 

For more information on the Campaign or the 

Dallas Volunteer Attorney Program, please visit 

www.dvapcampaign.org or contact Alicia Hernandez 

at (214) 220-7499 or ahernandez@dallasbar.org. 

Recognition levels and donor benefits are available. 

All individual donors at the $1,000 level and above 

and all firm and corporate donors at the $5,000 

level and above will be recognized in an ad in the 

Dallas Morning News during the week of December 

16, 2012, in The Texas LawBook and in Texas Lawyer 

in January or February 2013. HN 

Alicia Hernandez is the director of the Dallas Volunteer Attorney Program 

and the DBA director of community services. She can be reached at 

ahernandez@dallasbar.org. 

Inside 

9 Working With Adjusters for the Non-Specialist 

12 2012 Bench Bar Conference 

15 Recognizing Life Insurance Beneficiary Disputes 

November Focus: Tort & Insurance Practice 

This month’s Headnotes articles focus on the topic of Tort & Insurance Practice. 

The DBA Tort & Insurance Practice Section provides CLE presentations that 

offer competing views on cutting-edge issues and explores the intricacies and 

interwoven nature of tort and insurance law. Join this Section for $20, by 

contacting kwatson@dallasbar.org.

2 Headnotes l Dallas Bar Association November 2012 

Calendar November Events Visit www.dallasbar.org for updates on Friday Clinics and other CLEs. 

FRIDAY CLINICS 

NOVEMBER 9-NORTH DALLAS** 

Noon “Recent Developments in Eminent Domain Law – Texas Senate Bill 18,” Florentino Ramirez. (MCLE 1.00)* 

At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is 

available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are 

several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor 

Griffith Nixon Davison P.C. RSVP to kzack@dallasbar.org. 

NOVEMBER 16-BELO 

Noon Topic Not Yet Available 

THURSDAY, NOVEMBER 1 

Noon 

Construction Law Section 

“An Update on Insurance Coverage for Defective 

Construction,” Lee Shidlofsky. (MCLE 1.00)* 

Family Law Section Board Meeting 

Judiciary Committee 

Lawyer Referral Service Committee 

St. Thomas More Society 

FRIDAY, NOVEMBER 2 

3:30 p.m. DBA Annual Meeting 

MONDAY, NOVEMBER 5 

Noon 

Tax Law Section 

“Hot Topics in Texas LLCs: Avoiding Drafting 

Pitfalls in Company Agreements and Preserving 

the ‘LL’ (Limited Liability) in the LLC,” Prof. 

Elizabeth Miller. (MCLE 1.00)* 

Peer Assistance Committee 

TUESDAY, NOVEMBER 6 

Noon 

Corporate Counsel Section 

“Insurance 101: Fundamentals of Liability 

Insurance for In-House Counsel,” Amy Elizabeth 

Stewart. (MCLE 1.00)* 

Morris Harrell Professionalism Committee 

WEDNESDAY, NOVEMBER 7 

Noon 

Employee Benefits & Executive 

Compensation Law Section 

“News You Can Use: DOL Updates,” Deborah L. 

Perry. (MCLE 1.00)* 

Intellectual Property Law Section 

“Untangling Aspects of Complex Intellectual 

Property Litigation,” Leon Carter, Glenn Newman, 

Steve Shortgen and Sanford Warren. (MCLE 1.00)* 

Solo & Small Firm Section 

“Estate Tax Planning – Year End and Beyond 

– Practical Knowledge, Guidelines and Forms,” 

James V. Roberts. (MCLE 1.00)* 

Public Forum Committee 

5:30 p.m. Bankruptcy & Commercial Law Section 

“Privacy & Data Protection in Bankruptcy,” 

Camisha L. Simmons. (MCLE 1.00)* 

6:00 p.m. DAYL Board of Directors Meeting 


11:00 a.m. Federal Bar Association 

11:30 a.m. DAYL Lawyers Serving Children 

Noon 

CLE Committee 

Law in the Schools & Community Committee 

Publications Committee 

Christian Lawyers Fellowship 

Dallas Asian American Bar Association 

6:00 p.m. J.L. Turner Legal Association 


Noon 

Friday Clinic-North Dallas** 

“Recent Developments in Eminent Domain 

Law – Texas Senate Bill 18,” Florentino Ramirez. 

(MCLE 1.00)* At Two Lincoln Centre, 5420 

Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 

75240. Parking is available in the Visitor’s Lot 

located in front of the entrance to Two and Three 

Lincoln Centre. There are several delis within the 

building. Food is allowed inside the Conference 

Center. Thank you to our sponsor Griffith Nixon 

Davison P.C. RSVP to kzack@dallasbar.org. 

Government Law Section 

“Confidential Communications, Data Security, 

and Privacy in the Cloud,” Peter B. Haskel. 

(Ethics 1.00)* 

Tort & Insurance Practice/Trial Skills 

Sections 

“Making the Courtroom Your Living Room,” 

Rusty Hardin. (Ethics 1.00)* Co-sponsored 

by DAYL, Texas Association of Defense 

Counsel and Dallas Trial Lawyers Association. 

DAYL Lunch & Learn CLE. For more information 

contact cherieh@dayl.com. 

KoonsFuller Receives Lisa Blue and Fred Baron Access to Justice Award 


Noon 

Alternative Dispute Resolution Section 

“Negotiating Using Settlement Counsel: Legal, 

Practical and Ethical Considerations,” Chris 

Nolland. (Ethics 1.00)* 

Real Property Law Section 

“Ethical Issues in Representing Multiple Clients 

in Real Estate Transactions,” Prof. Fred Moss. 

(Ethics 1.00)* 


9:00 a.m. Directory Photo Sessions Available at Belo 

Noon 

Business Litigation Section 

“Dealing and Communicating With Problem 

Clients and Problem Colleagues,” William J. 

Chriss. (MCLE 1.00)* 

Mergers & Acquisitions Section 

“2012 M&A Review and 2013 M&A Outlook,” 

Mike McGill and Shawn D. Terry. (MCLE 1.00)* 

Entertainment Committee 

Dallas Bar Foundation Board Meeting 

4:00 p.m. DAYL Swearing In Ceremony 

6:00 p.m. Home Project Committee 


7:45 a.m. Dallas Area Real Estate Discussion Group 

11:30 a.m. House Committee Walk Through 

Noon 

Family Law Section 

“Childhood Development Milestones and What 

They Mean,” Dr. Dean Beckloff. (MCLE 1.00)* 

Speakers Committee 

5:15 p.m. Legalline. Volunteers welcome. Second floor Belo. 


9:00 a.m. Directory Photo Sessions Available at Belo 

Noon 

Appellate Law Section 

Topic Not Yet Available 

Minority Participation Committee 

Christian Legal Society 

Dallas Gay & Lesbian Bar Association 

3:30 p.m. DBA Board of Directors Meeting 

5:30 p.m. DBA New Member Reception. Honoring our 

New DBA Members and Newly Licensed Attorneys. 

For more information, contact Kim Watson at 

kwatson@dallasbar.org. or (214) 220-7414. 


Noon 

Friday Clinic-Belo 


Transition to Law Practice Program 

“The Beginning Lawyer’s Opportunities in and 

Responsibilities to the World Beyond the Office,” 

Aubrey Myers, Laura O’Rouke, Tom Stutz and 

Aaron Tobin. (Ethics 1.00)*. All members 

welcome. 


Noon 

Labor & Employment Law Section 

“ADR Update,” Cecilia Morgan. (MCLE 1.00)* 

Criminal Justice Committee 

DBA Community Service Fund Board Meeting 


Noon 

Antitrust & Trade Regulation Section 

“A Cybercrime Primer,” Rose Romero. (MCLE 

1.00)* 

International Law Section 

“How to Find What You Need to Know on 

Immigration Law,” Eugene J. Flynn. (MCLE 

1.00)* 

Community Involvement Committee 

DAYL Animal Welfare Committee 

DAYL Elder Law Committee 


Noon 

Energy Law Section 


Health Law Section 

“Physician peer Review and Credentialing,” 

Sherri Alexander. (MCLE 1.00)* 

Non-Profit Law Study Group 


DBA Offices closed in observance of Thanksgiving 


DBA Offices Closed 


Noon DAYL Solo & Small Firm Committee 


Noon 

Probate, Trust & Estate Section 

“Drafting, Attacking and Defending Pre and 

Post Marital Agreements,” Norm Lofgren. 

(MCLE 1.00)* 

Courthouse Committee 

American Immigration Lawyers Association 

6:00 p.m. Dallas Hispanic Bar Association 


Noon Pro Bono Activities Committee 

DVAP New Lawyers Luncheon. For more 

information, contact reed-brownc@lanwt.org. 

DAYL Equal Access to Justice Committee 

Municipal Justice Bar Association 


8:30 a.m. DBA Diversity Summit. Featured speakers 

include Jack Balagia, Janet Dhillon, Robert 

J. Grey, Roland Martin, Dr. Walter Sutton, Jr. 

and many more. Register online at 

www.dallasbar.org/diversitysummit 

Noon 

Criminal Law Section 

“Blood Test Evidence,” Dr. Gary Wimbish. 

(MCLE 1.00)* 


Noon DAYL CLE Committee 

At the Pro Bono Awards Celebration on October 18, KoonsFuller was presented with the Lisa 

Blue and Fred Baron Access to Justice Award, which is given jointly by the DBA and Legal 

Aid of NorthWest Texas to a deserving individual, group or organization for their outstanding 

dedication to pro bono work and serving those less fortunate. Joel Winful, Board Chair Legal Aid 

of NorthWest Texas (right), presents the award to Ike Vanden Eykel of KoonsFuller. 

DBA DUES REMINDER: 

Your 2013 DBA DUES STATEMENT was mailed to your preferred mailing address on October 11, 2012! 2013 DBA DUES must be paid 

by December 31, 2012 to continue receiving ALL your member benefits. Thank you for your support of the Dallas Bar Association! 

If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. 

All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. 

*For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. 

**For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.

November 2012 Dallas Bar Association l Headnotes 3 

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By Paul K. Stafford 

President's Column 

Precedential Election 

Nearly 300 years after the institution of slavery was 

introduced into what would someday become these United 

States, and a little over 30 years after Emancipation, the 

U.S. Supreme Court ruled in its 1896 Plessy v Ferguson decision 

that separate but equal was equal. 

During the ensuing 50-plus years, people of conscience 

continued striving daily to build a better life for themselves 

and their progeny, while simultaneously continuing their 

struggle for all Americans to realize those inalienable rights 

guaranteed in their Constitution—among them, life, liberty, 

the pursuit of happiness—in addition to full citizenship 

and equality under the law. 

In its seminal 1954 Brown v Board decision, 

the U.S. Supreme Court overturned the Plessy 

precedent, ruling that separate but equal is 

not equal. In Brown, the Court went on to 

state that integration should be accomplished 

“with all deliberate speed.” The 

vagueness of the term endures today. 

In the generations since Brown, we 

have travelled deliberately, at varying 

speeds, but the vestiges of what can be 

considered a bygone era remains. Its 

echo is evident in our educational system, 

employment opportunities and societal 

disengagement. It manifests itself in 

the disparity between various segments of 

our populous, and the discontent associated 

therewith. It was, and continues to be, a struggle 

to fulfill America’s promise and to live out the 

true meaning of a creed that all citizens are created 

equal. Valuing diversity and ensuring equal opportunity 

for all are integral to fulfilling this promise—a promise that 

will ensure the vitality of the republic for generations hence. 

On the heels of advocacy surrounding another attempt 

by our nation’s high court to address an aspect of diversity— 

in this instance, a case involving university admissions 

which will have far-reaching implications for the future of 

diversity within our educational system and our nation as 

a whole—we must reflect on our own efforts individually 

and collectively to advance the cause of diversity within 

our profession and throughout our society. Promoting diversity, 

tempered with the challenges of ensuring fairness while 

providing equal access and opportunity to all, takes courage 

and commitment. We reflect upon our own efforts in 

this regard as we await the promulgations of this court and 

future courts. 

But how does diversity translate in our local legal market 

The Dallas Bar Association (founded in 1873) predates 

Plessy, and is one of the oldest, most vibrant and most 

respected bar associations in the country. For decades, the 

DBA and the sister bars have worked together to promote 

a diverse and inclusive legal environment. Suffice to say, 

however, that this spirit of diversity and collaboration has 

not always been so. Much like the high court, the Dallas 

legal community and its bar associations are not immune 

from changing precedent. 

Progress has been made though the Dallas Bar Association, 

the sister bars and countless other stakeholders— 

armed with knowledge and conviction, steadied by courage 

and committed to positive change for the profession. 

The type of commitment and conscience that admitted 

Fred Finch as the DBA’s first African American member in 

1963 and admitted C.B. Bunkley and W.J. Durham posthumously 

in 2006. 

The type of courage that resulted in the DBA’s Task 

Force on Opportunities for Minorities in the Profession’s 

Long Range Plan for Inclusion promulgated in 1990, 

which (among other goals) called for increased minority 

lawyer participation in the DBA, an enhanced relationship 

between the DBA and the Minority Bar Associations, 

increased economic opportunities for 

minority lawyers and an increased presence 

of minority lawyers in majority 

law firms. 

The type of conviction that resulted 

in the DBA’s Statement of Goals of 

Dallas Law Firms and Corporate Legal 

Departments for Increasing Minority 

Hiring, Retention and Promotion 

(1994), which reinforced the goals of 

the Long Range Plan for Inclusion, 

with many of Dallas’ largest and most 

prominent firms as signatories, as well 

as endorsements by all of the major bar 

associations in Dallas. 

The Dallas Bar’s commitment to 

diversity and inclusion is also evident in 

various other promulgations of the Dallas 

Bar, including its By Laws, the “A Bar 

For All” Report of 2008, and the Vision 

2020 Strategic Plan (2010). The goals, 

objectives, aspirations and philosophy embodied in these documents 

and others have endured and will continue to endure. 

DBA’s commitment to a diverse profession and bar association 

is also evident through its programming, including 

mentoring at Dallas ISD, through the Big Brothers Big 

Sisters Amachi program, and at SMU and Texas Wesleyan 

law schools; through its commitment to Pipeline Projects, 

including Mock Trial, the Summer Law Intern Program and 

Law in the Classrooms; and through the Dallas Bar Foundation’s 

Sarah T. Hughes Diversity Scholarships, funded in 

part through the efforts of Bar None and the annual “An 

Evening With” dinner. 

With this history, and in this spirit, the DBA’s Diversity 

Summit will be held on Thursday, November 29, 2012 from 

8:30 a.m. to 4:30 p.m. at the Belo Mansion. The purpose 

of the Diversity Summit is to promote diversity within the 

legal profession by focusing on best practices through discussions 

with attendees and representatives from law schools, 

law firms, corporate counsel and bar associations. For additional 

information on this must-attend event, please visit 

www.dallasbar.org/diversitysummit. 

Precedents can be affirmed, rejected or established. Like 

those courageous trailblazers who have preceded us to create 

our path, there is still much work to be done to achieve 

the type of profession which we desire—the type of profession 

which we deserve. HN 

Headnotes 

Published by: 

DALLAS BAR ASSOCIATION 

2101 Ross Avenue 

Dallas, Texas 75201 

Phone: (214) 220-7400 

Fax: (214) 220-7465 

Website: www.dallasbar.org 

Established 1873 

The DBA’s purpose is to serve and support the legal 

profession in Dallas and to promote good relations among 

lawyers, the judiciary, and the community. 

OFFICERS 

President: Paul K. Stafford 

President-Elect: Sally Crawford 

First Vice President: Scott McElhaney 

Second Vice President: Brad C. Weber 

Secretary-Treasurer: Shonn Brown 

Immediate Past President: Barry Sorrels 

Directors: Jerry Alexander (Chair), Kim Askew (At-Large), 

Chip Brooker (President, Dallas Association of Young 

Lawyers), Wm. Frank Carroll, Victor Corpuz (President, 

Dallas Asian American Bar Association), Rob Crain, Laura 

Benitez Geisler, Lori Hayward (President, J.L. Turner 

Legal Association), Hon. Martin Hoffman, Michael K. 

Hurst, Michele Wong Krause, Karen McCloud, Christina 

McCracken (At-Large), Hon. Kenneth Molberg ( Judicial 

At-Large), Carlos Morales (President, Dallas His-panic Bar 

Association), Mary L. Scott, Diane M. Sumoski, Robert L. 

Tobey and Aaron Tobin (At-Large). 

Advisory Directors: Angelina LaPenotiere (President- 

Elect, Dallas Hispanic Bar Association), Mandy Price 

(President-Elect, J.L. Turner Legal Association), Sarah 

Rogers (President-Elect, Dallas Association of Young 

Lawyers) and Jennifer Wang (President-Elect, Dallas Asian 

American Bar Association). 

Delegates, American Bar Association: 

Rhonda Hunter, Hon. Douglas S. Lang 

Directors, State Bar of Texas: Lawrence Boyd, Christina 

Melton Crain, Ike Vanden Eykel, Andy Payne, Frank E. 

Stevenson, II 

HEADNOTES 

Executive Director/Executive Editor: 

Catharine M. Maher 

Communications/Media Director 

& Headnotes Editor: Jessica D. Smith 

In the News: Judi Smalling 

Art Director: Thomas Phillips 

Display Advertising: Karla Howes, Jessica Smith 

Classified Advertising: Judi Smalling 

PUBLICATIONS COMMITTEE 

Co-Chairs: Vincent J. Allen and Lea Dearing 

Vice-Chairs: Natalie L. Arbaugh and Dawn Fowler 

Members: Timothy G. Ackermann, Kevin Afghani, Favad 

Bajaria, Matthew Baker, Jody Bishop, Lisa Blackburn, Jason 

Bloom, Kandice Bridges, William Brown, Lance Caughfield, 

Sally Crawford, James Crewse, Joel Crouch, G. Edel Cuadra, 

David Dodds, Adam Dougherty, Sabeen Faheem, Enrique 

Flores, Megan George, Susan Halpern, Zachary Hoard, James 

Holbrook, Ezra Hood, Mary Louise Hopson, Dyan House, 

Michael Hurst, Michelle Jacobs, Jessica Janicek, Taylor Jerri, 

Soji John, Douglas Johnson, Adam Kielich, Michelle Koledi, 

Susan Kravik, Scott McElhaney, Nick Nelson, Jenna Page, Kirk 

Pittard, Laura Anne Pohli, Robert Ramage, Jared Slade, Thad 

Spalding, Paul K. Stafford, Jeanette Stecker, John C. Stevenson, 

Scott Stolley, Michael Sukenik, Robert Tobey, Peter S. Vogel, 

Suzanne R. Westerheim and B. Joyce Yeager 

DBA & DBF STAFF 

Executive Director: Catharine M. Maher 

Accounting Assistant: Shawna Bush 

Communications/Media Director: 

Jessica D. Smith 

Controller: Sherri Evans 

Director of Community Services: 

Alicia Hernandez 

Events Coordinator: Rhonda Thornton 

Executive Assistant: Mary Ellen Johnson 

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LRS Program Assistant: Biridiana Avina 

LRS Interviewer: Marcela Mejia 

Law-Related Education & Programs 

Coordinator: Amy E. Smith 

Membership Coordinator: 

Kimberly Watson 

Projects Coordinator: 

Kathryn Zack 

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Receptionist/Staff Assistant: Teddi Rivas 

DALLAS VOLUNTEER ATTORNEY PROGRAM 

Director: Alicia Hernandez 

Managing Attorney: Michelle Alden 

Volunteer Recruiter: Chris Reed-Brown 

Paralegals: Whitney Breheny, Miriam Caporal, Lakeshia 

McMillan, Andrew Musquiz, Tina Douglas 

Program Assistant: Patsy Quinn 

Copyright Dallas Bar Association 2012. All rights reserved. No 

reproduction of any portion of this publication is allowed without 

written permission from publisher. 

Headnotes serves the membership of the DBA and, as such, editorial 

submissions from members are welcome. The Execu-tive Editor, 

Editor, and Publications Committee reserve the right to select 

editorial content to be published. Please submit article text via e-mail 

to jsmith@dallasbar.org (Communications Director) at least 45 days 

in advance of publication. Fea-ture articles should be no longer than 

750 words. DISCLAIMER: All legal content appearing in Headnotes 

is for informa-tional and educational purposes and is not intended as 

legal advice. Opinions expressed in articles are not necessarily those of 

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Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar 

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POSTMASTER: Send address changes to Headnotes, 2101 Ross 

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Focus 

by Amy Elizabeth Stewart 

Tort & Insurance Practice 

Downhole Navigator | The Right to Independent Counsel 

In June 2012, the Fifth Circuit 

issued its opinion in Downhole Navigator, 

L.L.C. v. Nautilus Insurance Company, 

686 F.2d 325 (5th Cir. 2012), 

affirming the district court’s ruling that 

the insured was not entitled to select 

its own defense counsel at the insurer’s 

expense. Analyzing Texas law, the Fifth 

Circuit concluded that the facts to be 

adjudicated in the underlying lawsuit 

against the insured were not the same 

facts on which coverage turned, as 

required to preempt the insurer’s right 

to control the defense. 

Downhole, an oil drilling servicer, 

was hired by an oil well operator to 

redirect a well toward a better location 

within a particular reservoir. Downhole 

developed a plan to conduct the deviation 

and participated in the deviation 

process, during which the well was damaged. 

The well operator sued Downhole 

for negligence in Texas state court. 

Downhole notified its commercial 

general liability insurer of the lawsuit. 

The insurer tendered a qualified 

defense, reserving its right to deny coverage 

based on several policy exclusions, 

including: (1) the “expected or 

intended injury” exclusion; (2) the 

“property damage” exclusion, which 

excluded certain “physical injury to tangible 

property;” and (3) the “testing or 

Trials – Arbitrations – Appeals 

• Securities 

• Financial 

• Commercial Fraud 

• Business 

• Energy 

consulting” exclusion, which excluded 

damages arising from an error, omission, 

defect or deficiency in any test performed 

or in any evaluation, consultation 

or advice given. 

The policy also contained a “professional 

liability” exclusion, excluding 

damages arising from “the rendering 

of or failure to render any professional 

services,” including the preparation or 

approval of opinions, reports, surveys, 

drawings, specifications and the like. 

Finally, the policy’s “data processing” 

exclusion excluded damages arising 

from the rendition of or failure to render 

electronic data processing services. 

Based on the reservation of rights, 

Downhole rejected the qualified defense 

and engaged its own defense counsel. 

When the insurer insisted that Downhole 

had no right to independent counsel 

“unless or until” a coverage issue 

developed, Downhole filed suit seeking 

a declaration that the insurer was 

required to defend, cover the cost of 

independent counsel, and indemnify it 

in the underlying lawsuit. 

The issue in the underlying case was 

whether Downhole negligently performed 

its work for the oil well operator. 

The coverage dispute, on the other 

hand, turned on the exclusion for testing 

or consulting services, the expected 

or intended injury exclusion, the property 

damage exclusion, and the professional 

liability exclusion. The Fifth 

Circuit concluded that these exclusions 

raised issues that would never be 

addressed in the underlying case. And 

whether Downhole acted negligently, 

which would be decided in the underlying 

case, did not impact the coverage 

issues. 

[T]he underlying fact-finder will 

not decide whether Downhole’s work 

constituted “testing” or “consulting.” 

Likewise, while several other issues— 

whether Downhole provided “professional” 

or “data processing” services 

to Sedona, whether Downhole should 

have expected the damage to the well 

resulting from its work, or whether 

Downhole was occupying the property 

while providing its deviation-correction 

services—could be critical coverage 

issues, they are irrelevant to whether 

Downhole acted negligently. Because 

the issues in the coverage dispute were 

not the issues to be determined in the 

underlying case, the court ruled that 

the insured did not have a right to independent 

counsel. 

The test applied by the Fifth Circuit 

comes from Northern County 

Mutual Insurance Company v. Davalos, 

140 S.W.3d 685 (Tex. 2004), in which 

the Texas Supreme Court recognized 

that circumstances exist in which “an 

insurer may not insist upon its contractual 

right to control the defense.” 

In the typical coverage dispute, an 

insurer will issue a reservation of rights 

letter, which creates a potential conflict 

of interest. And when the facts to 

be adjudicated in the liability lawsuit 

are the same facts upon which coverage 

depends, the conflict of interest will 

prevent the insurer from conducting 

the defense. 

In reaching its conclusion, the Fifth 

Circuit rejected Downhole’s argument 

that facts could be developed in the 

underlying litigation that might be used 

to disclaim coverage. The court noted, 

moreover, that the insurer would breach 

its duty to defend if it directed defense 

counsel to advance the insurer’s interest 

at the expense of the insured. 

Although the prospect that the 

attorney provided by Nautilus could 

develop facts harmful to Downhole’s 

pursuit of coverage does not itself 

raise an actual conflict, if the attorney 

(at Nautilus’s direction) improperly 

advanced Nautilus’s interests at the 

expense of Downhole’s interests, Nautilus 

would breach its duty to defend 

Downhole. Such breach would free 

Downhole to reject the counsel provided 

by Nautilus and entitle Downhole 

to reimbursement for the cost of its 

own independent counsel. HN 

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Stewart PC. She can be reached at amy@amystewartlaw.com. 

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Fulbright & Jaworski Recognized 

as Pro Bono Law Firm of the Year 

John O’Connor Recognized as 

Pro Bono Lawyer of the Year 

Staff report 

Pro Bono Attorney of the Year John O’Connor 

and Joel Winful, Board Chair Legal Aid of 

NorthWest Texas. 

Each year, the Dallas Volunteer 

Attorney Program (DVAP), a joint 

project of the Dallas Bar Association 

and Legal Aid of Northwest Texas, 

honors the lawyers, judges and other 

legal professionals who donate pro 

bono services. 

At the Annual Pro Bono Awards 

Reception on October 18, the Dallas 

office of Fulbright & Jaworski 

L.L.P. was recognized as Pro Bono 

Law Firm of the Year for providing 

nearly 2,000 hours of pro bono services 

to DVAP clients. 

The international law firm 

encourages its attorneys to participate 

in pro bono work throughout 

the year and firm-wide its lawyers 

have donated tens of thousands of 

hours to pro bono matters in the 

United States and internationally. 

Fulbright & Jaworski’s culture of 

commitment to public service continues 

to serve as a pillar of the firm’s 

philosophy. 

John O’Connor, an associate in 

the Dallas office of Weil, Gotshal & 

Manges, LLP, was named Pro Bono 

Lawyer of the Year. 

Mr. O’Connor contributed 

nearly 500 hours of pro bono service 

through his participation in the 

2011 DVAP Lend-A-Lawyer Program. 

The program created by Weil, 

Gotshal & Manges, LLP in 2006 

gives young lawyers an opportunity 

to learn about pro bono over a threemonth 

period by serving full-time at 

the DVAP offices. 

Mr. O’Connor focuses on complex 

commercial litigation as well as 

arbitration and mediation and serves 

on Weil’s Pro Bono Committee. His 

commitment to pro bono was also 

recognized recently by the State Bar 

of Texas with the 2012 Frank J. Scurlock 

Award for outstanding pro bono 

work. 

DVAP congratulates Fulbright & Jaworski 

L.L.P. and John O’Connor. HN 

With a Song in My Heart 

Pamela Perdue Musgrove 

2013 DLA President 

by Mary Lee Cox 

The 87th President of the Dallas 

Lawyers Auxiliary, Pamela Perdue 

Musgrove, definitely has a song in her 

heart! Born in Muskogee, Oklahoma, 

she is a graduate of the University of 

Oklahoma with a Bachelor of Fine 

Arts in Vocal Performance. While at 

OU she lived on campus at the Pi Beta 

Phi house. As good fortune would have 

it, future husband Len Musgrove, Jr. 

just happened to have a job there as 

a houseboy while he attended OU’s 

School of Law. He was also a talented 

musician, and quickly noted that Pam 

was an amazing singer who occasionally 

needed a piano man. Wouldn’t you 

know he picked the prettiest girl in 

the house, and they have been making 

beautiful music together ever since! 

Len is a San Antonio native, and 

did his undergraduate work at Southern 

Methodist University. After they 

were married, the Musgroves lived in 

Midland, Texas for three years and 

then moved to Dallas where they have 

resided for the last 23 years. Len’s first 

job in Dallas was with the law firm of 

Arter and Hadden. He later became 

the managing partner in the firm of 

Bellinger and DeWolf, LLP. Recently, 

Len founded his own firm, Musgrove 

Law Firm, P.C. 

Music is never far away at the Musgrove 

house. Pam and Len perform 

together in several Dallas party bands 

with bookings at some of Dallas’ top 

spots, as well as corporate parties, 

charitable events, weddings, community 

theatre, etc. Pam is often called 

upon to sing her a capella version of the 

National Anthem, which she does to 

Pamela Perdue Musgrove 

perfection. She also sings lead for the 

Discovery Mass Band at St. Michael 

and All Angels Episcopal Church, and 

has been referred to as the “Aretha 

Franklin of the Episcopal Church.” 

Pam and Len are the proud parents 

of two lovely teenage daughters, Madison, 

16, who attends Dallas Lutheran 

School, and M’Lynn, 14, who attends 

Parish Episcopal School. They also love 

to sing and perform. Pam’s parents, Winnie 

and Ron Perdue, and sister, Melissa 

Perdue, reside in Tulsa, Oklahoma. 

Pam’s community involvement 

includes the Junior League of Dallas 

(Sustainer), the Jr. Group of the Marianne 

Scruggs Garden Club, Jr. Group 

of the Dallas Symphony and The Dallas 

Opera. Pam’s favorite pastimes are 

tennis and, of course, singing. 

Pam is honored to serve, and is looking 

forward to her year as President of the 

Dallas Lawyers Auxiliary. It is certain to 

be an entertaining year! HN 

Mary Lee Cox is past president of the Dallas Lawyers 

Auxiliary. She may be reached at (214) 368-1421. 

•2012 Pro Bono Awards• 

Law Firm of the Year 

Fulbright & Jaworski L.L.P. 

Outstanding Clinic Sponsor 

Prudential Investment Company 

Joel Winful (right) presents the award for Pro Bono Law Firm of the Year—Fulbright & 

Jaworski L.L.P.—to attorney Michael Regitz. 

DVAP’s Finest 

Abby Ruth 

Abby Ruth is a Senior Associate at Fulbright & Jaworski 

L.L.P., specializing in business litigation. She has successfully 

handled numerous divorce matters for DVAP, many of 

which posed unique factual and procedural issues. Specifically, 

Abby has handled matters where she addressed various 

complications, including overseas and foreign respondents, 

unavailable respondents and spouses filing for divorce 

prior to the DVAP client’s initial consultation with counsel. 

Thank you for all you do, Abby! 

Pro Bono: It’s Like Billable Hours for Your Soul. 

To volunteer or make a donation, call 214/748-1234, x2243. 

Lawyer of the Year 

John O’Connor, Weil, Gotshal & 

Manges LLP 

Lisa Blue and Fred Baron Access to 

Justice Award 

KoonsFuller 

Gold Award for Pro Bono Service 

Baker Botts, L.L.P. 

Bracewell & Giuliani LLP 

Haynes and Boone LLP 

Patton Boggs LLP 

Silver Award for Pro Bono Service 

Akin Gump Strauss Hauer & Feld LLP 

The Bassett Firm 

Jones Day 

Weil, Gotshal & Manges LLP 

Bronze Award for Pro Bono Service 

American Airlines, Inc. 

Andrews Kurth LLP 

Locke Lord LLP 

Vinson & Elkins LLP 

Hartman Judicial Pro Bono Service 

Award 

Hon. Tena Callahan, 

302nd District Court 

Outstanding New Pro Bono Lawyer 

Dan Nathan, Attorney at Law 

Pro Bono Coordinator of the Year 

Kendall Hayden, Cozen O’Connor 

Pro Bono Appreciation Award 

Paul K. Stafford, Carter Stafford PLLC 

Outstanding Outreach 

Clinic Attorney 

Craig Collins, Attorney at Law 

Outstanding Clinic 

Attorney Volunteers 

West Dallas Clinic 

Russ Hubbard, American Airlines, Inc. 

Garland Clinic 

L. Brad Johnson, 

L. Brad Johnson, PLLC 

South Dallas Clinic 

Lisa Shirley, 

Simon Greenstone Panatier Bartlett 

East Dallas Clinic 

Justin Connor, Fulbright & Jaworski 

L.L.P. 

Lois Bacon Special Services Award 

DAYL Elder Law Committee 

Pro Bono 

Court Reporter of the Year 

Glenda Johnson, 

256th Family District Court 

Outstanding Court Personnel 

Twyla Weatherford, 

302nd Family District Court 

Outstanding Support Volunteer 

Janet McClain, 

Texas Health and Human Services 

Outstanding In-House Volunteer 

Ilene Breitbarth, Attorney at Law


KM_Headnotes_redwall_101512.pdf 1 10/16/12 12:15 PM 

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Healthcare Fraud Investigations on the Rise 

by Sarah Q. Wirskye 

Healthcare fraud is a government 

priority. Understanding how the government 

audits providers can help a provider 

minimize their liability if they are 

under investigation. 

Services Not Rendered 

The government often examines 

whether services billed were actually 

rendered. One technique for doing so 

is examining the amount of time the 

provider spends with each patient. The 

government divides the number of hours 

the provider is in the office by the number 

of patients seen during that day. If 

the time per patient is unreasonable in 

the government’s opinion, it may take 

the position that the provider did not 

see all of the patients and/or did not see 

the patients long enough to adequately 

provide the service. The government 

has a stronger case in cases where the 

billing codes are time based. The government 

may also examine a provider’s 

travel and credit card records to determine 

which days he or she was in the 

office, and compare that analysis with 

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billing records. 

If the government concludes that 

unqualified personnel must be treating 

patients because of the number of 

patients seen and/or the provider is 

not spending adequate time with each 

patient, the government views this as 

a quality of care issue. When there is a 

quality of care issue, the government is 

much more likely to suspend payments. 

If services are not being rendered at all, 

a criminal indictment is also possible. 

The provider needs to ensure that 

she is spending adequate time with 

each patient. It is also helpful to have 

the appropriate provider document 

and sign the charts contemporaneously 

upon treatment. Such a policy can help 

“prove” that the provider personally provided 

the service. 

Necessity 

Necessity is another critical issue. If 

the government can successfully challenge 

the determination of necessity, 

then in certain areas, the government 

can take the position that all charges 

paid for a patient were improper. 

The person making the determination 

of necessity must be qualified. If 

the requirement in a particular area is 

that a doctor must make the determination, 

this task cannot be delegated to 

an assistant. The government will also 

examine how and if the person making 

the determination of necessity is 

compensated. If it is an unrelated individual, 

the government will examine 

whether there are improper payments, 

or potentially kickbacks. If it is someone 

affiliated with the entity, the government 

will examine whether the professional 

is being paid fair market value 

and whether the compensation is based 

on the number of patients approved for 

treatment or revenue. Again, such compensation 

arrangements can be viewed 

as a kickback. 

Upcoding and Unbundling 

The government often examines 

whether a provider is consistently coding 

a more complex procedure, for which 

the reimbursement is higher, rather than 

a less complex version of that same procedure. 

This is called upcoding. It is 

critical that the documentation in the 

patient chart supports the level of service 

that is being provided. 

Unbundling is where one procedure 

is split up and billed as a number 

of individual procedures to maximize 

reimbursement. When two procedures 

are performed together and there is 

one lower paying “combination” billing 

code, that code must be used. 

Kickbacks 

Kickbacks can be gifts or benefits to 

referral sources, beneficiaries or employees. 

These are typically easier cases for 

the government to prove than cases that 

turn largely on expert testimony regarding 

complex medical procedures. It is 

good practice not to make any substantial 

gifts to referral sources or any gifts 

at all to beneficiaries, such as rebates or 

gift cards. The government also sometimes 

takes the position that employee 

compensation based upon revenue is a 

kickback. 

A provider’s marketing practices 

may be examined, including advertising 

and mailed materials. Providers need to 

ensure that their marketing professionals 

know what is appropriate in the healthcare 

field, what is generally accepted in 

many other industries may be illegal in 

the healthcare industry. 

While the Federal Criminal Anti- 

Kickback Statute prohibits remuneration 

for referrals wholly or partially paid 

for by government funds, the Texas law 

is much broader. The Texas Patients’ 

Solicitation Act prohibits any remuneration 

for soliciting or securing a patient or 

patronage for or from a person licensed, 

certified, or registered by a state healthcare 

regulatory agency. 

Proactive Measures 

In addition to severe monetary sanctions, 

the government has the ability to 

require a provider to have a corporate 

monitor, place a monetary hold or suspend 

payments to a provider, exclude 

a provider from government programs 

and even bring criminal charges against 

a provider. The collateral consequences 

from a government investigation may 

also implicate licensure issues with the 

State Board. 

One of the most basic things a provider 

can do to minimize liability is to 

accurately chart to support the services 

rendered and know the rules. HN 

Sarah Wirskye is a partner with the firm of Meadows Collier. 

She represents individuals and entities in civil and criminal 

disputes with the federal and state governments. She can be 

reached at swirskye@meadowscollier.com. 

THE 

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8/14/12 5:01 PM


Focus 

By Stephen Smith 


Working With Adjusters for the Non-Specialist 

The following provides the nonspecialist 

some approaches for working 

with insurance adjusters in claim negotiations, 

and are based on 20 years of 

working both for and against insurance 

companies: 

1. Know your case. In addition 

to the details of the case, know 

its value, research verdicts and talk to 

other attorneys. There are a number 

of resources to help you, the primary 

one being the American Association 

for Justice (formerly the ATLA), as 

well as trial reporting services. You do 

not want your demand to be so high 

as to cause the company to dig in, or 

so low that you fail to maximize settlement 

value. My experience has been 

that cases settle more quickly and for a 

higher value if you slightly under price 

the initial demand. 

To arrive at a dollar value, while 

the old formula of trebling special 

damages may be outdated, it still serves 

as a starting point. Adjustments to the 

formula can be made based upon type 

of injury (soft tissue vs. hard tissue), 

comparative negligence and whether 

the claim involves any sort of disfigurement. 

2. Know who you are dealing 

with. This applies to both the company 

and the individual adjusters. I once had 

a plaintiff’s attorney list for me the different 

branch offices of one insurance 

company I worked for, who was in those 

offices and how those offices and individuals 

were likely to approach claims. 

While the same principles are regularly 

employed in claim evaluation, different 

companies have different cultures 

and approaches. Some companies are 

tough. Some are not. I worked for one 

company that absolutely did not want 

to take cases to trial. This approach 

drove up settlement values since attorneys 

knew about it. Other companies 

take very hard lines. In one simple personal 

injury claim, the adjuster called 

me on a Saturday to lower his settlement 

offer because he thought I would 

not be in the office. The point is you 

need this information to help you with 

your approach to settlement. 

3. Be organized and timely. 

While it can be difficult to always 

be timely and consistent in providing 

information and responding to 

requests, adjusters have more respect 

and will be more responsive to the 

extent you are proactive. Adjusters 

remember attorneys who do not provide 

documentation, do not respond to 

phone calls and wait until the last minute 

to file suit. While there are some 

times when this has to happen—for 

instance, if your client has not finished 

treating—you still need to respond and 

communicate. 

4. Never take a case you cannot 

try. Attorneys frequently file claims in 

hopes they will get a quick settlement. 

The majority of cases need to be evaluated 

and approached as if you will take 

them to trial. If an adjuster feels you do 

not intend to take the case to trial, it 

lowers the settlement value. 

5. First-party and third-party 

claims are different. Cases involving 

third-party claims are handled differently 

by an insurer than first-party 

claims. In a third-party claim, the 

only leverage you have with the insurance 

adjuster is a potential judgment 

against the insured and defense costs. 

In first-party claims, the standards are 

different. Those claims give you additional 

leverage as the potential exists 

for attorney’s fees, treble damages and 

prompt pay damages under Sections 

541 and 542 of the Texas Insurance 

Code if the adjuster does not handle 

the claim correctly. 

6. Property damage and personal 

injury claims are different. Property 

damage claims are evaluated solely on 

the cost to repair or replace property 

damage, rather than by factoring the 

cost of treatment for pain and suffering. 

Make sure you are knowledgeable 

about reparability and costs. Consult 

with an expert as in a personal injury 

claim. 

7. Remember you are dealing 

with human beings. Many attorneys 

feel they get more by trying to intimidate 

or bully the adjuster. My experience 

is that while this can work in the 

short run, over time more is achieved 

by treating the insurance adjuster with 

respect. First, most adjusters deal every 

day with claimants pushing for more 

money. Bullying and intimidation is 

simply less successful, as you are just 

another on the list. Second, harsh tactics 

tend to breed resentment, reaction 

and intransigence. By the same token, 

treating others with respect tends to 

provoke a response. Better settlements 

can be obtained by developing a rapport 

with the adjuster. HN 

Stephen Smith is Chair of the Insurance and Defense 

Section at Underwood Perkins P.C. He has 25 years of 

experience in assisting insureds and insurers in handling 

claims and can be reached at ssmith@uplawtx.com. 

Wills & Power of Attorney Seminar 

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Speakers include: 

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Pro bono Will and POA cases will be available for you to accept at the CLE, 

and mentor attorney assistance through DVAP will be provided. 

Sponsored by DVAP and J.L. Turner Legal Association 

To RSVP, or for more information, contact perkinsa@lanwt.org. 

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Obtaining and Using Deleted Internet Evidence 

by Jason P. Bloom 

All Members Are Invited To: 

“Making the Courtroom Your Living Room” 

Speaker: Rusty Hardin of Rusty Hardin & Associates 

Ethics 1.00 

Friday, November 9, Noon at Belo 

Co-sponsored by DBA Tort & Insurance Practice and Trial Skills Sections, 

DAYL, Texas Association of Defense Counsel and 

Dallas Trial Lawyers Association. 

The Internet permeates all aspects 

of modern life, facilitating communications, 

business transactions, news 

gathering and dissemination, advertisements 

and consumption, to a 

degree never accomplished by any 

other medium. As such, the Internet 

is increasingly a place where civil and 

criminal wrongs are committed and is, 

accordingly, a potential repository of 

evidence. 

By its nature, however, the Internet 

is fluid and ever-changing. What 

is there and causing harm today could 

very easily be removed by the time a 

lawsuit is filed or discovery begins, 

only to rear its ugly head again when 

the dust settles. This can be especially 

applicable in cases involving defamation 

or intellectual property infringement 

in which the infringing or defamatory 

content needed to prove a plaintiff’s 

case can be removed by the defendant 

before the case is tried or even 

filed. 

In a perfect world, plaintiffs or their 

attorneys will be able to capture evidence 

from the Internet when they see 

it, either by converting the pages to 

PDF documents or otherwise capturing 

the content in a permanent form. It is 

often the case, however, that potential 

litigants are not able to capture 

infringing, defamatory or other evidentiary 

content before it is removed from 

the Internet, either because they did 

not think or know to do so or because 

they did not envision future litigation 

at the time. 

Fortunately, there is a tool known 

as the WayBack Machine, which 

enables one to travel back in cybertime 

to view and capture content from 

web pages as they once appeared. The 

WayBack Machine, which resides at 

www.archive.org, is a service provided 

by the Internet Archive, a non-profit 

organization that has been capturing 

and cataloging the Internet since 1996. 

The WayBack Machine captures 

Internet data by use of a web crawler 

which crawls from webpage to webpage 

taking snapshots of the data as it 

appeared on a given day and time. The 

snapshots are then cataloged by URL 

and date. One need only know the 

URL of the website in question to use 

this free service. 

While the Internet Archive maintains 

a multi-petabyte repository of 

historical web data, it is by no means 

a perfect and complete library of 

everything that was ever on the Internet. 

Most sites are not captured every 

day, but only periodically as the web 

crawler reaches them. And, those sites 

that are captured will not be accessible 

through the WayBack Machine for 

6 to 24 months. Moreover, the Way- 

Back Machine does not capture password 

protected sites or sites where the 

webmaster has taken appropriate steps, 

such as including a robot.txt file, to 

prevent the crawler from capturing the 

site. 

Despite these shortcomings, 

the WayBack Machine is often an 

extremely useful litigation tool that 

can provide crucial evidence of content 

that has been removed from the 

Internet. Such evidence may be of little 

value, however, unless it is deemed 

admissible. 

The primary obstacles to the admission 

of evidence obtained from the 

WayBack Machine are authentication 

and hearsay. See Fed. R. Evid. 802, 

901. The authentication obstacle may 

generally be satisfied by an affidavit 

from the Internet Archive explaining 

how the WayBack Machine works 

and identifying the pages at issue as 

printouts from the Internet Archive’s 

records. The Internet Archive will 

provide its standard notarized affidavit 

to that effect for a fee of $350 (plus $20 

per authenticated URL). For an additional 

cost, the Internet Archive can 

increase the scope of the request and 

may even modify its standard affidavit 

to fit the needs of a particular case, 

although the standard affidavit should 

generally be sufficient to satisfy Rule 

901. 

As for hearsay, it is often the case 

that archived data is not being offered 

for the truth of the statements on the 

website, but rather to show that untrue 

defamatory statements were made or 

that infringing material was displayed. 

Also, the archived pages may contain 

non-hearsay admissions of the offering 

party’s opponent. In those instances, 

the hearsay rule would not bar admission 

of the archived pages. The Internet 

Archive’s affidavit may also be 

used to overcome a hearsay objection 

by establishing that the archived pages 

fall under the business records exception. 

See Fed. R. Evid 803(6). 

A number of courts have admitted 

evidence obtained by use of the 

WayBack Machine, and the use and 

admission of such evidence is likely 

to rise as familiarity with the Internet 

Archive and the need for Internet 

evidence continues to grow. Knowing 

how to use the WayBack Machine and 

authenticate evidence derived from it 

is an invaluable tool for any litigator to 

have. HN 

Jason Bloom is an attorney in the Business Litigation, 

Intellectual Property Litigation, and Social Media practice 

groups at Haynes and Boone, LLP. He can be reached at 

jason.bloom@haynesboone.com.


Focus 

by Jennifer K. Kenchel 


Common Interest Doctrine 

In Texas, the common interest doctrine 

embodied in Rule 503(b)(1)(C) 

of the Texas Rules of Evidence creates a 

privilege for a client to prevent the disclosure 

of confidential communications 

made for the purpose of facilitating the 

rendering of professional legal services 

when such communications are made by 

the client’s lawyer to a lawyer representing 

another party in a pending action and 

concerning a matter of common interest. 

It is not an independent privilege, but 

rather an exception to the general rule 

that no attorney-client privilege attaches 

to communications that are made in the 

presence of or disclosed to a third party. 

While the common interest doctrine 

is sometimes referred to as the “joint client” 

privilege, the “joint defense” privilege 

and the “common interest” privilege, 

each involve distinct doctrines that serve 

different purposes. See In re XL Specialty 

Insurance Company and Cambridge Integrated 

Services Group, Inc., 2012 WL 

2476851 (Tex. June 29, 2012). 

Finding the term “allied litigant” 

privilege more appropriate a term for the 

“common interest” privilege, the Texas 

Supreme Court in XL Specialty reiterated 

that the “common interest” privilege only 

applies where there is active, ongoing litigation. 

This is also known as the “pending 

action” requirement. Moreover, the 

common interest privilege does not exist 

just for co-defendants, but applies to any 

other party in the pending litigation. 

Because the “common interest” privilege 

protects communications made 

between a client or the client’s lawyer to 

another party’s lawyer or representative of 

the lawyer, the “common interest” privilege 

only applies when the parties have 

separate counsel and does not extend to 

communications made directly between 

the parties themselves. Applying the 

foregoing principles, the Texas Supreme 

Court in XL Specialty found the “common 

interest” privilege did not apply to communications 

between a worker’s compensation 

insurer’s attorney and the insuredemployer 

in an administrative proceeding 

regarding an injured employee’s claim for 

benefits. 

Importantly, the “common interest” 

doctrine requires that the parties have a 

common legal interest. There must be a 

need for a common defense rather than 

merely a common problem. The underlying 

rationale of the privilege is that when 

parties must work together by necessity, 

a privilege must be afforded to their joint 

attorney client communication and work 

product or else those protections would 

be hollow. However, the privilege must be 

construed narrowly to cover only the necessary 

consultation by legal advisors and 

clients. So the privilege does not apply 

to joint consultations where there is no 

common interest to be promoted such as 

when the parties meet to discuss claims 

against each other. Adverse parties cannot 

create a “common interest” just by 

unilaterally declaring it so. Thus, the 

mere existence of a confidentiality agreement 

between parties is not, in itself, sufficient 

to protect joint communications 

from discovery. 

Examples of parties with a common 

legal interest include indemnitor/indemnitee, 

vicarious liability of employer for 

employee or alleged conspirators in an 

antitrust case. In those situations, the parties 

have a common interest because the 

liability of one may, by operation of law, 

JRFRIM_Ad2012.indd 1 

be imputed to another. They must work 

together, and shared information must be 

protected or the attorney-client privilege 

and work product doctrine would be illusory. 

Parties do not have a “common interest” 

just because they have (or have created) 

a common adversary. For example, 

there is no common interest just because 

the defendants are all charged with violating 

the same patent. But if the plaintiffs 

allege a conspiracy to violate the patent, 

then the defendants might have had 

an identical legal interest in establishing 

that no such conspiracy took place. 

In sum, the “common interest” privilege 

protects confidential communications 

made between a client or a representative 

of the client or the client’s lawyer 

to a lawyer or a representative of a 

lawyer representing another party in the 

litigation for the purpose of facilitating 

the rendition of professional legal services 

provided that: (1) the parties exchanging 

the privileged material share a common 

legal interest, as opposed to a mere 

business interest; (2) the documents and 

communications are shared in furtherance 

of the common legal interest; (3) 

the sharing of the privileged information 

takes place during pending litigation; and 

(4) the parties reasonably expect that the 

shared documents and communications 

will remain confidential. HN 

Jennifer Kenchel is a member at Cozen O’Connor. She can be 

reached at jkenchel@cozen.com. 

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Emeritus Members 

The Dallas Bar Association honors members who have contributed to the legal profession for 

50 or more years. All 50-year members are invited to attend the Annual Meeting on Friday, 

November 2, 2012 at 3:30 p.m. to be recognized. To RSVP, please contact Mary Ellen Johnson 

at 214-220-7474 or mjohnson@dallasbar.org. 

Licensed in 1939 

Lawrence W. Anderson 

Bernard Hirsh 


Bardwell D. Odum 


Royal H. Brin, Jr. 

Robert S. Strauss 


William F. Alexander 

Claude D. Bell, Jr. 

Frank Ripy McWhorter 

Charles O. Shields 


Jeannette Williams Sadler 


James R. Alexander 

Frank G. Newman 

Robert E. Rain, Jr. 

Jean L. White 


James G. Blanchette, Jr. 

Gordon R. Carpenter 

Joseph W. Geary 

George Hopkins 

George Garrison Potts 

John F. Wilson 


George Ashley 

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Paul Harkey 

Billy B. Joiner 

C. Sidney McClain 

Joel T. Williams, Jr. 


Jack E. Brady 

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Harold L. Hitchins 

William L. Keller 

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B. Thomas McElroy 

Hon. Ted Z. Robertson 


George C. Anson 

Albert L. Bartley, Jr. 

Harold B. Berman 

D. Louise Boucher 

Hon. Dean M. Gandy 

Charles C. Garner 

Henry Gilchrist 

Wayne Hancock 

William C. Herndon 

H. Louis Morrison, Jr. 

William C. Odeneal 

A.W. Patterson, Jr. 

Ralph W. Pulley, Jr. 

F.W. Reese 

Robert G. Vial 


Hon. L.A. Bedford, Jr. 

Ramsey Clark 

M. Wayne Cummings 

H. Sam Davis, Jr. 

James E. Day, Jr. 

William C. Dowdy Jr. 

Zack E. Mason 

Joseph W. McKnight 

John L. Roach 

Hon. Thomas B. Thorpe 

H.E. Walker, Jr. 

J. Ralph Wood, Jr. 


John R. Anthony, Jr. 

Robert F. Ashley 

Prof. Alan R. Bromberg 

John H. Chiles 

James E. Coleman, Jr. 

Hon. Harry T. Holland 

Vester T. Hughes, Jr. 

Jerry N. Jordan 

Graham R.E. Koch 

Wayne A. Melton 

Joseph M. Stuhl 

William (Bill) H. Tinsley 

James A. Williams 

Richard S. Woods 


Donald C. Alexander 

Joe Don Denton 

Roy W. Howell, Jr. 

James A. Knox 

Hon. James W. Mast 

William R. McGarvey 


Frederick H. Benners 

Cooper Blankenship 

Paul M. Brewer 

Hon. Joe B. Brown 

Hon. Ben F. Ellis 

Robert A. Gwinn 

Charles W. Hall 

John M. Hamilton 

Harold F. Kleinman 

J. Redwine Patterson 

Benjamin E. Pickering 

Hon. Robert E. Price 

Allen P. Schoolfield 

Maxel (Bud) Silverberg 

James C. Tubb 

John R. Wright 


Winston L. Adkins 

Hon. Ted M. Akin 

Dennis G. Brewer, Sr. 

Charles D. Cabaniss 

Eugenio Cazorla 

Thomas N. Griffith 

Jess T. Hay 

Lawrence P. Hochberg 

Jack Pew, Jr. 

Anthony G. Riddlesperger 

Forrest Smith 

Robb Stewart 

Lee D. Vendig 


Benjamin R. Collier 

John L. Estes 

Frank Finn 

Merle R. Flagg 

Richard A. Freling 

Joseph J. French, Jr. 

Roger A. Hansen 

Frank S. La Barba, Jr. 

Marvin L. Levin 

Wilmer D. Masterson 

Elton M. Montgomery 

Hobert Price, Jr. 

Frank Tupper Smith, Jr. 

Sidney Stahl 

Claude R. Wilson, Jr. 

Gerry N. Wren 


Barton E. Bernstein 

William F. Bowles 

Bill H. Brister 

Don T. Cates 

Frank W. Elliott 

Jerry C. Gilmore 

V. Rock Grundman 

Ivan Irwin, Jr. 

Tom James 

William C. Koons 

Edward J. Lynch 

Bernard C. McGuire 

Kenneth J. Mighell 

Harold E. Moore 

Neil J. O’Brien 

William D. Powell 

Ronald Roberts 

Morton A. Rudberg 

Merlyn D. Sampels 

J. Richard Sanderson 

Clay C. Scott, Jr. 

Carl A. Skibell 

Jason B. Sowell, Jr. 

Hon. Milton Sturman 

Robert H. Thomas 

Louis J. Weber, Jr. 


Burt Berry 

Walton P. Bondies, Jr. 

R.W. Calloway 

Leland W. Carter 

Robert C. Cox 

Robert Edwin Davis 

F. Lynn Estep, Jr. 

Robert (Jim) Foreman 

Ben A. Goff 

John W. Hicks Jr. 

Bill C. Hunter 

Jerry Lastelick 

John E. Lawhon 

John T. McCully 

John H. McElhaney 

Robert H. Power 

William T. Satterwhite 

Harry R. Shawver, Jr. 

Dan W. Stansbury 

Jack R. Wahlquist 

Emory L. White, Jr. 

Barney T. Young 

Norman A. Zable 


Tom A. Blakeley, Jr. 

Allen Butler 

Durwood D. Crawford 

Marshall J. Doke, Jr. 

Robert A. Fanning 

A.D. “Gus” Fields 

Frederick W. Fraley, III 

Larry L. Gollaher 

James J. Hartnett 

Jack W. Hawkins 

Norman P. Hines, Jr. 

James H. (Blackie) Holmes, III 

Herbert L. Hooks 

Ray Hutchison 

Jerry P. Jones 

Richard A. Lempert 

George R. Milner 

George David Neal 

Donald F. Padgett 

Burton H. Patterson 

Paul L. Salzberger 

Edwin M. Sigel 

Joe A. Stalcup 

Charles M. Supple 

Robert C. Taylor 


E. Karl Anderson 

Anthony Atwell 

Paul E. Ave 

Lester V. Baum 

P. Oswin Chrisman 

Edward A. Copley 

David S. Curtis 

Alan D. Feld 

Paul L. Fourt 

Lawrence W. Jackson 

Leo J. Jordan, Sr. 

John L. Lancaster, III 

Joe H. Loving Jr. 

Hon. Robert B. Maloney 

Tom D. Matthews, Jr. 

Hon. Pat McDowell 

Hon. Robert C. McGuire 

Hon. Don Metcalfe 

Robert L. Meyers, III 

Robert F. Middleton 

Hon. Robert O’Donnell 

Jerome L. Prager 

William M. Ravkind 

Cecil A. Ray, Jr. 

Rust E. Reid 

James B. Sales 

Malcolm L. Shaw 

C. Freeman Stallings, Jr. 

Donald A. Swanson, Jr. 

Arthur I. Ungerman 

William D. White, Jr. 


Arch A. Beasley, Jr. 

John F. Boyle, Jr. 

William T. Burke, Jr. 

Adelfa B. Callejo 

Roy C. Coffee, Jr. 

Jim E. Cowles 

Adair Dyer, Jr. 

Albert B. Fenton 

John A. Gilliam 

David G. Glickman 

Jay Rodney Kline 

Larry M. Lesh 

Warren C. Lyon 

Clark J. Matthews, II 

Donald C. McLeaish 

Stan McMurry 

John W. Payne 

Paul W. Phy 

Virgil E. Rogers 

James T. Rudd 

Miles L. Schulze 

Wade C. Smith 

Simeon R. Trotter 

Paul B. Underkofler 

Fred D. Ward 

Christopher M. Weil 

Ben B. West 

Fletcher L. Yarbrough 


Reyburn U. Anderson 

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Bruce Baldwin 

Charles G. Barnett 

John H. Boswell 

Joseph T. Cain 

George C. Chapman 

George C. Dixie 

Robert E. Edwards 

Raymond J. Elliott 

Christie S. Flanagan 

Kenneth D. Fuller 

Houston E. Holmes, Jr. 

A. Holt Irby 

Jimmy D. Ivy 

Tim K. Kirk 

Hon. Don Koons 

Hon. William F. Kortemier, II 

David R. Latchford 

O. Fred Lohmeyer 

Donald J. Malouf 

Lawrence R. Maxwell, Jr. 

Hon. John P. McCall 

Frank E. McLain 

William H. McRae 

Curtis W. Meadows, Jr. 

William C. Roberts, Jr. 

Norman R. Rogers 

John Q. Stilwell, JD, PhD 

Mark A. Troy 

James A. Walters 

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presents 

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Wed., Nov. 14, 2012 

8 a.m. to 10 a.m. • Belo Mansion - Dallas 

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judges share their perspectives on trial procedure, motion practice and 

how best to plead your client’s case in family court. 

Judge Tena Callahan 

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Judge Dennise Garcia 

303rd District Court 

Judge Chris Oldner 

416th District Court 

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Focus 

By J. Michael Young 


Recognizing Life Insurance Beneficiary Disputes 

Court of Appeals at Belo 

Life insurance is a contract between 

the insured policyholder and the insurance 

company. Payment of insurance benefits 

is controlled by the policy terms and the 

insured’s designation of beneficiary. However, 

at times, someone other than the 

named beneficiary may have a viable claim 

to policy benefits. Examples include disputes 

involving current or ex-spouses, the 

insured’s possible lack of capacity, undue 

influence on the insured to change a designation 

or the insured’s imperfect efforts to 

change a beneficiary designation. 

Texas or Federal Law 

The first step in analyzing a beneficiary 

dispute is determining whether 

Texas or Federal law applies. This can be 

complex, but generally Texas law applies 

unless the insured obtained the policy 

through an employer. If the insurance 

was obtained as a benefit of employment, 

it is likely that it will be a policy 

governed by a federal law commonly 

referred to as ERISA (Employee Retirement 

Income Security Act of 1974). 

ERISA generally preempts state laws, 

particularly regarding claims for policy 

benefits. It generally overrides Texas law 

recognizing a community property interest 

of a spouse in the policy, as well as 

the Texas Family Code provision that 

effectively voids beneficiary designations 

in favor of an ex-spouse. ERISA favors 

On September 24, justices from the Fifth District Court of Appeals heard a live oral argument 

at the Belo Mansion in front of 250 DISD students. The presiding justices included (left to 

right) Hon. Lana Myers, Hon. David Bridges and Hon. Molly Francis. 

strict adherence to plan documents to 

aid predictability and uniformity for the 

benefit of the plan administrator. However, 

the Supreme Court has left open 

the possibility that a competing claimant 

could bring suit against the designated 

beneficiary after the beneficiary 

receives the policy benefits. 

The Ex-Spouse as Beneficiary 

In Texas, a divorce generally operates 

to revoke a prior beneficiary designation 

in favor of an ex-spouse. Texas Family 

Code § 9.301. Exceptions in the statute 

are limited and courts have been reluctant 

to find equitable exceptions. 

The Spouse’s Community 

Property Claim 

The current spouse may obtain the 

policy proceeds if the designation of an 

ex-spouse is invalidated under the Texas 

Family Code. Another scenario is when 

the policy designates a third party who is 

not the current spouse or an ex-spouse. 

This commonly occurs if the couple has 

separated but not divorced. 

Texas is a community property state. 

Assets earned or acquired by either 

spouse during marriage are presumed to 

be community property. This applies to 

marriages dissolved by death, as well as 

by divorce. Under Texas law, a surviving 

spouse may have a claim for constructive 

fraud when an insurance policy was 

purchased with community funds for the 

benefit of a person outside the community. 

Capacity and Undue Influence 

Beneficiary designations can be 

challenged on the basis that the insured 

either lacked the mental capacity to 

make the designation or was unduly 

influenced to do so. The evidence necessary 

to prove such claims is very similar 

to that in a traditional will contest, 

although the capacity required to make 

a designation is theoretically greater 

than the capacity to make a will. 

As noted, when ERISA applies, state 

laws are preempted. However, capacity 

and undue influence claims are still 

possible because they are not attacks 

on the designation based on reference 

to external documents or state laws 

regarding designations. Instead, they 

are attacks on the validity of the designation 

document itself. Note, however, 

that ERISA does not allow for jury trials, 

so a judge will be the finder of fact 

for such claims. 

The Attempted Beneficiary 

Change 

Sometimes, the insured will 

attempt to change a designation, but 

fails to do so in the manner prescribed 

by the insurance company. The insurance 

company may reject the effort 

and ask the insured to make the designation 

on the form and in the manner 

required by the company. Under Texas 

law, a beneficiary designation is effective 

if it is in “substantial compliance” 

with the insurance company’s procedure, 

which has been defined as the 

insured’s doing all that he could reasonably 

have done to effect a change. 

Federal courts apply a similar standard 

in ERISA cases. HN 

J. Michael Young is an attorney at Sanders, O’Hanlon, Motley 

& Young. He can be reached at michael.young@somlaw.net


Focus 

by Steven Badger 

and Lindsey Bruning 

Torts & Insurance Law 

Appraisal Since Johnson – What The Hail Is Going On 

Local courts have recently seen a 

dramatic increase in the filing of hail 

damage actions. Many of these actions 

are not conventional lawsuits, but 

requests for the judicial appointment 

of an appraisal umpire. Considering 

that hail (and hail damage claims) is 

nothing new to North Texas, what has 

spawned the recent increase in these 

non-traditional filings 

To the insurance practitioner it is 

obvious—State Farm Lloyds v. Johnson 

290 S.W.3d 886, 889-90 (Tex. 2009). 

Prior to Johnson, appraisal was 

limited to a narrow range of disputes 

involving the “amount of loss.” 

Appraisal was not appropriate to determine 

questions of causation, coverage 

or liability. It was appropriate only 

when the carrier or policyholder agreed 

on the existence of covered damage, 

but disagreed on the cost to repair such 

damage. 

Johnson changed everything. In 

Johnson, the Texas Supreme Court 

confirmed the historical view that 

appraisal was intended to address 

“damages” and not “liability,” but it 

muddied the water in distinguishing 

one from the other. 

Typical disputes involve questions 

as to the existence of hail damage or 

the cause of such damage (either hail 

or pre-existing conditions). These 

questions historically fell outside the 

appraisal process and conventional litigation 

offered the parties’ only vehicle 

to resolve such issues. 

The Johnson Court changed that, 

stating: if “appraisers can never allocate 

damages between covered and 

excluded perils . . . appraisals can never 

asses hail damage unless a roof is brand 

new . . . .” Johnson, 290 S.W.3d at 892- 

93. Seizing on this language, courts 

have generally interpreted Johnson as 

permitting appraisers to resolve questions 

of causation. 

Virtually every disputed hail damage 

claim is now subject to appraisal. 

This has spawned a cottage industry 

in which public adjusters, contractors 

and “claim consultants” go door-todoor 

marketing their services to building 

owners in pursuit of hail damage 

claims. When the claim cannot be 

resolved through the claim adjustment 

process, it is put into appraisal. 

A close examination of the recent 

rash of appraisal-related filings in local 

courts suggests many of the underlying 

hail claims are not being pursued by the 

policyholder, but by public adjusters, 

contractors and “claim consultants” 

acting on the policyholder’s behalf. 

A lawyer is hired to file the petition 

to appoint an umpire. But once the 

umpire is appointed, it is back to the 

non-judicial world of appraisal where 

no procedural rules or ethical codes of 

conduct exist, and only the terms of 

the insurance policy govern the proceeding. 

This results in a process ripe for 

abuse. For example, if a contractor 

appoints his long-time friend as 

appraiser, all that is needed to ensure a 

favorable result is the appointment of 

a friendly umpire. Fortunately, insurance 

policies generally require that 

the appraisers and umpire be competent 

and disinterested, meaning they 

do not have any financial interest in 

the award. This provides a remedy if 

an appraiser’s or umpire’s competency 

and/or partiality is subject to challenge. 

However, once an appraisal award 

is issued, little can be done. Success 

in disputing an appraisal award is 

unlikely. Courts have repeatedly stated 

that “[e]very reasonable presumption 

will be indulged to sustain an appraisal 

award.” Appraisal awards may be challenged 

only where the award: (1) is 

made without authority; (2) results 

from fraud, accident, or mistake; or (3) 

was not made in substantial compliance 

with the policy. 

So what does the future hold Until 

the Texas Supreme Court recognizes 

the unintended consequences of Johnson 

and restricts appraisal to its traditional, 

pre-Johnson scope, it is likely the 

wave of appraisal-related filings will 

continue (not only in hail claims, but 

also hurricane/wind damage claims). 

Additionally, carriers should consider 

amending their policy language to 

clearly limit the appraisal process to 

the narrow situation in which the parties 

agree on the existence of covered 

damage, but disagree on the cost to 

repair such agreed damage. HN 

Steven Badger and Lindsey Bruning are attorneys at Zelle 

Hofmann Voelbel & Mason LLP. They can be reached at 

SBadger@zelle.com and LBruning@zelle.com, respectively. 

METROPLEX LEGAL JOB FAIR 

~ In Memoriam ~ 

Since 1875, the DBA has honored recently deceased members 

by passing resolutions of condolences. This tradition continues 

through the work of the DBA Memorial & History Committee. 

To view the Memorial Resolutions presented to the families of 

deceased members, visit www.dallasbar.org. 

Need a Law Clerk Need an Associate 

Why not let them come to you! 

METROPLEX LEGAL JOB FAIR 

9 a.m. – 5 p.m. 

Friday, February 15, 2013 

Candidates from St. Mary’s University School of Law, Texas Tech 

University School of Law and the University of Houston Law Center 

will be available for interviews through the Metroplex Legal Job Fair. 

Employers will have the opportunity to pre-screen the materials of law 

students and recent graduates, and pre-select 100% of their candidates for 

interviews. Candidates will interview at employers’ offices. 

To register, contact: 

Suzanne Patrick • spatrick@stmarytx.edu • (210) 431-2265 

Ashley Withers • ashley.withers@ttu.edu • (806) 742-3990 ext. 232 

Kourtney James Perry • kljames3@central.uh.edu • (713) 743-5622 

Webber Beall, Jr. (1932-2012), a 

1959 graduate of the SMU Dedman 

School of Law 

Norma Lea Beasley (1931-2012), 

a 1954 graduate of the University of 

Arkansas School of Law 

Clarence Bentley (1921-2012), 

a 1948 graduate of Baylor Law School 

William Richard (Dick) Bernays 

(1917-2012), a 1941 graduate of 

Northwestern University 

School of Law 

John Biggers (1931-2012), 

a 1955 graduate of the SMU 

Dedman School of Law 

John W. Collins, Jr. (1922-2011), 

a 1949 graduate of Baylor Law School 

Edward Junius Drake 

(1924-2011), a 1949 graduate of the 

University of Texas School of Law 

Thomas L. Fiedler (1925 -2012), 



Thomas Freytag (1940-2012), a 

1966 graduate of 

University of Michigan Law School 

Ernest Leroy Hallman, Jr. 

(1915-2012), a 1939 graduate of the 


Linda F. Jenkins (1951-2011), 

a 1979 graduate of the St. Mary’s 

School of Law 

Lester A. Levy (1922-2012), 

a 1947 graduate of the University of 

Texas School of Law 

John McCormack (1917-2012), 

a 1948 graduate of Columbia Law School 

Edwin McNees (1925 -2012), 



Harold A. Pollman (1924-2012), 

a 1951 graduate of the 


Janet F. Resetar (1951-2011), 

a 1987 graduate of the Louisiana State 

University School of Law 

Harry P. Stuth, Jr. (1929-2011), 


St. Mary’s School of Law 

Eldon Vaughan (1921-2011), 

a graduate of the 

SMU Dedman School of Law 

Thomas L. Wheeler, Jr. (1949- 

2012), a 1977 graduate of the 

SMU Dedman School of Law 

Charles Winikates (1927 -2012), 


SMU Dedman School of Law


Focus 

by Octavio A Dominguez 

Torts & Insurance Law 

Supreme Court Eliminates Bad Faith Tort 

In a 5-4 decision, a split Texas Supreme 

Court held in Texas Mutual Insurance Co. v. 

Ruttiger that workers’ compensation claimants 

can no longer assert a common-law 

claim for breach of the duty of good faith 

and fair dealing. 55 Tex. Sup. Ct. J. 912 (Tex. 

2012). The decision overruled the Court’s 

decision in Aranda v. Insurance Co. of North 

America. 

The duty of good faith and fair dealing 

arises out of a special trust relationship 

between the parties. Twenty-five years ago, 

the Court expressly recognized a special relationship 

apart from a fiduciary relationship in 

Arnold v. National County Mutual Fire Insurance 

Co. In Arnold, the duty of good faith and 

fair dealing was imposed on an insurer based 

on the disparity of bargaining power and the 

exclusive control that the insurer exercised 

over the processing of claims. Over the years, 

the Court has been reluctant to impose a 

similar duty in other relationships. 

But it did in Aranda. Decided one year 

after Arnold, the Court in Aranda extended 

the duty of good faith and fair dealing to 

injured workers suing workers’ compensation 

carriers. The Court explained that workers’ 

compensation claims processing was functionally 

indistinct from first-party insured 

claims processing in three ways: (1) the disparity 

of bargaining power; (2) the exclusive 

control that the insurer exercised over 

the processing of claims; and (3) the ability 

of carriers to make arbitrary decisions to pay 

or delay a valid claim, leaving the injured 

employee with no immediate recourse. 

Following Aranda, the 72nd Legislature 

overhauled the workers’ compensation system 

in 1989 with the Workers’ Compensation 

Act (WCA). Under the WCA, the 

Texas Department of Insurance regulates 

claims by establishing processing standards, 

ordering expedited reviews, issuing binding 

orders for payment and setting up Benefit 

Review Conferences (BRCs), which are 

non-adversarial, informal dispute resolution 

meetings between the parties. 

It was this revision that the Court focused 

on in Ruttiger. In that case, a compensation 

insurance carrier initially denied benefits to 

Timothy Ruttiger, alleging the injuries were 

not work-related. Three months after the dispute 

began, Ruttiger finally requested a BRC 

and the parties settled. Ruttiger then sued 

the carrier and alleged, among other claims, 

bad faith in the processing of the claim. 

The jury sided with Ruttiger, but last 

summer the Court ruled that Ruttiger take 

nothing under the other claims and sent the 

common-law bad faith claim back for reconsideration 

by the First Court of Appeals in 

Houston. Before the appellate court acted, 

the Court granted a request for a rehearing 

on that issue. 

On rehearing, the Court held the bad 

faith claim distorted the new WCA system 

and frustrated the Legislature’s intent to 

resolve the dispute expeditiously. It noted 

that an incentive existed for an injured 

worker to delay seeking immediate relief 

because even if a carrier complied completely, 

as Texas Mutual did, it could still be 

liable under common law. 

The dissent argued that the Legislature 

did not abrogate the claim in the WCA, 

and in fact recognized it, and thus the claim 

was compatible with the revised system. The 

majority countered that the dissent not only 

incorrectly interpreted the WCA, but also 

failed to address“[t]he essential question” 

which was “to what extent the judiciary will 

respect the Legislature’s function of addressing 

the concerns and adjusting the rights of 

parties[.]” 

Justice Willett’s concurrence provided 

perhaps a stronger argument: Aranda was 

no longer needed because the WCA’s 

changes remedied the concerns underlying 

Aranda. Once the conditions no longer 

existed, the bad faith claim was no longer 

necessary. 

The Court’s decision can be expected 

to reduce litigation over claims practices. 

It eliminates one of the most frequently 

pleaded causes of action in workers’ compensation 

disputes in Texas. The claimant must 

now rely solely on the process set out by the 

WCA and should generally request a BRC 

as soon as it is apparent that the insurer will 

contest the claim. 

The potential liability for insurers is also 

reduced, thus providing them with increased 

predictability when making decisions on 

challenging claims. Going through the BRC 

process may cost the parties more time and 

effort initially, but it will ultimately resolve 

disputes more quickly than litigation. With 

more claims settled prior to litigation, legal 

costs may well decrease which could lead to a 

reduction in rates for employers. HN 

Octavio Arturo Dominguez is an attorney at Touchstone, Bernays, 

Johnston, Beall, Smith & Stollenwerck, LLP. He can be reached at 

octavio.dominguez@tbjbs.com. 

Want to Update Your Directory Photo 

The DBA Directory Photographer will available to take photos 

for the 2013 Directory on: 

 

 

Tuesday, November 13, 9 a.m. to 3 p.m. at Belo 

Thursday, November 15, 9 a.m. to 1 p.m. and 

during the New Member Reception 5 p.m. to 8 p.m. 

Photo session is FREE, requires no reservation and only takes 5 minutes. 

Photos may be purchased for personal use. 

Questions Judi Smalling at jsmalling@dallasbar.org or (214) 220-7452.


In the News 

November 

FROM THE DAIS 

Natalie L. Webb, of The Webb Family 

Law Firm, P.C., spoke at the Advanced 

Family Law Conference in Houston on the 

topic of “Screening the Case.” 

Kenneth C. Johnston, of Kane Russell 

Coleman & Logan PC, spoke on “Bank 

Overdraft Fee Litigation and Regulatory 

Developments.” 

Kirby Drake, of Klemchuk Kubasta LLP, 

addressed the American Chemical Society 

on “IP Issues in Advertising and Promotion 

of the Chemical Industry.” 

KUDOS 

Justice Douglas S. Lang, of the Fifth District 

Court of Appeals, has been elected 

Secretary of the American Inns of Court 

Foundation. He has also been named the 

2012 recipient of the Citation of Merit 

from the University of Missouri School of 

Law, the highest award conferred by the 

Law School. 

Victoria Neave, of Weil, Gotshal & 

Manges LLP, has been accepted into the 

2012 Dallas Association of Young Lawyers 

Leadership Class. 

Michele Wong Krause, of The Wong 

Krause Law Firm, will receive the 2012 

Louise B. Raggio Award from the Dallas 

Women Lawyers Association. 

David M. Bennett, of Thompson & 

Knight LLP, has been named to lead the 

firm’s Corporate Reorganization and Creditors’ 

Rights Practice Group. 

Julie H. Quaid, of Quaid & Quaid LLC., 

has been named to the Board of Directors 

of Texas Loves Children. Christopher M. 

Farish, also of the firm, has been named 

to the Board of Directors of the Collin 

County Bar Association and the International 

Academy of Collaborative Professionals 

and the Board of Directors of the 

Legacy Court Foundation. 

Michael M. Boone, of Haynes and Boone, 

LLP, received 2012 Methodist Health 

System Folsom Leadership Award. Larry 

Pascal, also of the firm received the 2012 

Member of the Year award from The World 

Services Group. 

Audrey Moorehead, a solo practioner, 

has been appointed to the Texas Criminal 

Defense Lawyer’s Project Committee, 

appointed to the Dallas County Child 

Welfare Board by the Dallas County Commissioner’s 

Court, and elected by the 

Board of the State Bar of Texas to serve as 

Co-Chair of the Council of Chairs for the 

2012-2013. 

ON THE MOVE 

Mary Louise Phelps and Michael D. 

Wysocki have joined McCurley Orsinger 

McCurley Nelson & Downing, L.L.P. as 

Associates. 

Elizabeth M. Ryan, David Y. Sillers and 

Jason E. Wright joined Weil, Gotshal & 

Manges LLP as Associates. 

Eric Van Horn has joined Wick Phillips 

Gould & Martin, LLP as Associate. 

Adam Dougherty, Alejandro (Alex) 

Arellano and Bradley E. Levy have joined 

Winstead PC as Shareholder and Associates, 

respectively. 

Mary Goodrich Nix, Kelly C. Ganzberger 

and Derek H. Sparks have joined 

Munsch Hardt Kopf & Harr, P.C. as Shareholder 

and Associates, respectively. 

Vince Murchison has formed the Murchison 

Law Firm located at 325 North 

St. Paul Street, Suite 2700, Dallas, Texas 

75201. 

John C. Dickey has joined Dykema Gossett 

PLLC. 

Sarah P. Hicks has joined Humphreys 

& Partners Architects, L.P. as General 

Counsel. 

Jae Ellis has joined Huron Consulting 

Group as Senior Director. 

Amy E. Davis has joined Christiansen 

Davis Bullock, LLC as a Named Partner. 

Paul Storm has joined Gardere Wynne 

Sewell LLP as Partner. 

Edel Cuadra has joined Quilling, Selander, 

Lownds, Winslett & Moser, P.C. as Shareholder. 

Michael Feiler, Rachel Hytken, 

Megan Johnson, Kelly Miaw and Kendall 

Yow have joined the firm as Associates. 

Brandon C. Wilson has joined Taber 

Estes Thorne & Carr PLLC as Associate. 

Judge Teresa Guerra Snelson has joined 

the Dallas County District Attorney’s 

Office as the Chief Attorney for the Civil 

Division. 

Marc A. Hubbard has formed the intellectual 

property law firm of Hubbard Law, 

PLLC, located at 740 E. Campbell Road, 

Suite 550, Richardson, Texas 75081. 

Phone: (214) 396-6000. 

Meghan Nylin and Tracy G. Smith have 

joined Thompson & Knight LLP as Associates. 

Kamal Jafarnia has joined Alston & Bird 

LLP as Counsel. 

Lindsay Germano has joined Weil, Gotshal 

& Manges LLP as Associate. 

Paul V. Downey has joined Kane Russell 

Coleman & Logan PC as Senior Counsel. 

Guy I. Wade, III has joined the firm of 

Derryberry Zips Wade Lawhorn, LLC as 

Partner. 

News items regarding current members of 

the Dallas Bar Association are included 

in Headnotes as space permits. Please send 

your announcements to Judi Smalling at 

jsmalling@dallasbar.org. 

United States Postal Service -- PS Form 3526 

Statement of Ownership, Management, and Circulation 

(1) Publication Title: Headnotes. (2) Publication Number: 1057-0144. (3) Filing Date: September 14, 2012. (4) 

Issue Frequency: Monthly. (5) Number of Issues Published Annually: Twelve. (6) Annual Subscription Price: 

$30. 

(7) Complete Mailing Address of Known Office of Publication: 2101 Ross Ave., Dallas, TX 75201-2768. Contact 

Person: Jessica D. Smith. Telephone: 214-220-7477. (8) Complete Mailing Address of Headquarters or General 

Business Office of Publisher: 2101 Ross Ave., Dallas, TX 75201. (9) Full Name and Complete Mailing 

Address of Publisher: Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Full Name and Complete 

Mailing Address of Editor: Cathy Maher, Executive Editor, 2101 Ross Ave., Dallas, TX 75201. Full Name and 

Complete Mailing Address of Managing Editor: Jessica D. Smith, Editor, 2101 Ross Ave., Dallas, TX 75201. 

(10) Owner: Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. (11) Known Bondholders, Mortgagees, 

and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or 

Other Securities: None. (12) Tax Status: Has Not Changed During Preceding 12 Months. (13) Publication Title: 

Headnotes. (14) Issue Date for Circulation Data: September 1, 2011. 

(15) Extent and Nature of Circulation. (First number is Average No. Copies Each Issue During Preceding 12 

Months; Second number is No. Copies of Single Issue Published Nearest to Filing Date). (15a) Total Number of 

Copies (net press run): 11,335; 14,330. (15b1) Mailed Outside-County Paid Subscriptions Stated on PS Form 

3541: 1,615; 2,597. (15b2) Mailed In-County Paid Subscriptions Stated on PS Form 3541: 9,478; 11,455. 

(15b3) Paid Distribution Outside the Mails Including Sales Through Dealers and Carriers, Street Vendors, 

Counter Sales, and Other Paid Distribution Outside USPS: 0; 0. (15b4) Paid Distribution by Other Classes of 

Mail Through the USPS: 0; 0. (15c) Total Paid Distribution: 11,093; 14,052. (15d1) Free or Nominal Rate Outside-County 

Copies Included on PS Form 3541: 45; 44. (15d2) Free or Nominal Rate In-County Copies Included 

on PS Form 3541: 32; 30. (15d3) Free or Nominal Rate Copies Mailed at Other Classes Through the USPS: 

28; 25. (15d4) Free or Nominal Rate Distribution Outside the Mail: 81; 106. (15e) Total Free or Nominal Rate 

Distribution: 186; 205. (15f) Total Distribution: 11,279; 14,257. (15g) Copies not Distributed: 56; 73. (15h) Total: 

11,335; 14,330. (15i) Percent Paid: 98.35%; 98.56%. 

(16) Publication of Statement of Ownership. Publication required. Will be printed in the November 1, 2012, 

issue of this publication. (17) Signature and Title of Editor, Publisher, Business Manager, or Owner: 

Jessica D. Smith, Editor. Date: September 14, 2012. I certify that all information furnished on this form is true 

and complete. I understand that anyone who furnishes false or misleading information on this form or who 

omits material or information requested on the form may be subject to criminal sanctions (including fines and 

imprisonment) and/or civil sanctions (including civil penalties). 

Our mediation office in Dallas, Texas serves clients 

in an atmosphere of fairness and excellence. 

Focused on Resolution 

Mike McCullough works to resolve 

your case in a fair and efficient 

manner. You can trust our staff to 

serve with balance and respect. 

Contact Us 

Phone: (214) 365-9000 

www.McCulloughMediation.com 

9400 N. Central Expwy., Suite 1305 

Dallas, TX 75231


Classifieds 

November 

OFFICE SPACE 

2 rooms approx. 346 sf in total for 

rent within Dallas Immigration Law 

Firm. Other common areas available for 

Use. $589/month. LBJ Fwy and Abrams 

Rd. Ideal for Family Law Attorney. Call 

for further details. (214) 570-8100. 

Upscale, furnished office space for rent 

within small law firm. Great location at 

9400 N. Central Expressway (Central 

and Park Lane). Two window offices plus 

space for an assistant. Rent includes covered 

parking and access to kitchen and 

conference rooms. Postage meter, scanner, 

copies, fax, phone and high speed 

internet. Call (214) 365-9000 ext. 307 or 

email mike@mcculloughmediation.com. 

Medium size Tax Law Firm, AV Preeminent 

rated, has Class A space available 

for lease and space sharing. Small 

and large offices with midtown views 

of downtown. Prefer real estate experience. 

Opportunity for referral business. 

(214) 691-7781 - ask for Kelly. 

North Dallas. Law firm located at Lincoln 

Centre has two partner size offices, one 

small office and cubicles available. Easy 

access to Tollway and LBJ; two conference 

rooms; break room/kitchen; copiers; postage 

machine. Email: dallasipfirm@gmail.com for 

more information. 

Plano Office Space. Easily accessible to 

George Bush and Dallas Tollway. Two 

Executive offices with plenty of support staff 

space available. One is approximately 900 

square feet; second office is approximately 

500 square feet, both on the 2nd level. Full 

amenities. For further information please 

contact Jennifer at (972) 380-4222. 

Office available in converted historic 

house in Uptown. Includes hardwood 

DESTRUCTION 

floors, fireplace, and built-in bookcase. 

Base rate is $1,200 per month. Call 

(214) 563-3157 for inquiries. 

Office Space near old downtown 

Plano and Collin Creek Mall. One 

block East of Central Expressway (75). 

Prime first floor location. One window 

office approximately 18 x 12 ft. and one 

small staff office available. Practice in 

a relaxed yet professional environment 

which includes access to conference 

room, kitchen, DSL and reception area. 

Lots of accessible visitor parking. Call 

(972) 422-2424 for details. 

Unfurnished office space for rent with 

Uptown family law/business litigation 

firm. Great location at Cedar Springs 

and Maple. Two window offices plus an 

open workspace. Total of approximately 

485 sq. ft. Rent includes underground 

parking, receptionist, and access to 

shared kitchen and conference rooms. 

Postage meter, copier, scanner, and fax 

also available if needed. Possibility of 

referral work. Please call (214) 520- 

7494 or email cfaust@sullivancook.com 

for details. 

Large furnished office space available 

within small real estate law firm 

located at 4054 McKinney Avenue. 

Shared conference and break room, 

copier, fax, DSL & phone equipment 

are available if needed. There is a possibility 

of overflow real estate work. No 

long term commitment and a monthly 

rate of $650.00. Call (214) 520-0600 

POSITION AVAILABLE 

Health Law Attorney Needed. Experience 

in healthcare regulatory and payment 

matters - Medicare, Medicaid, 

licensing, transactional or criminal 

law services to healthcare providers. 

We prefer a problem solver with a disciplined 

work ethic, excellent writing 

skills, good attitude who is self-motivated 

and will participate in marketing 

& seminar presentations. Please email 

resume to markskennedylaw@msn.com. 

Established Real Estate Boutique in Dallas 

seeks attorney with 5 or more years 

of experience in commercial real estate. 

Candidate must demonstrate exceptional 

skills, attention to detail and an 

ability to handle direct client contact. 

Experience in home builder representation, 

a plus. Email your resume to attorneyresumes17@yahoo.com. 

Established Real Estate Boutique in 

Dallas seeks paralegal experienced in 

commercial real estate, including ability 

to review title and prepare form 

documents. Email your resume to attorneyresumes17@yahoo.com. 

POSITION WANTED 

Highly motivated high school senior 

seeking paid after school job (2-6 p.m.) in 

small law firm to gain experience. Contact 

Griffin Lewin at griffinlewin10@aol.com. 

SERVICES 

Economic Damages Experts - Thomas 

Roney has more than twenty five years’ 

experience providing economic consulting 

services, expert reports and 

expert testimony in court, deposition 

and arbitration. His firm specializes in 

the calculation of economic damages 

in personal injury, wrongful death, 

employment, commercial litigation, 

IP, valuation and divorce matters. Mr. 

Roney and his experienced team of 

economic and finance experts can help 

you with a variety of litigation services. 

Thomas Roney LLC serves attorneys 

across Texas with offices in Dallas, 

Fort Worth and Houston. Contact 

Thomas Roney in Dallas/Fort Worth 

(214) 665-9458 or Houston (713) 513- 

7113. troney@thomasroneyllc.com. 

“We Count.” 

Mexican Law Expert - Attorney, 

law professor testifying since 1997 in 

U.S. lawsuits involving Mexican law 

issues: FNC motions, Mexican claims/ 

defenses, personal injury, moral damages, 

contract law, corporations. Coauthor, 

leading treatise in field. J.D., 

Harvard Law. David Lopez, (210) 222- 

9494. dlopez@pulmanlaw.com. 

Legal Document Retrieval, Inc. 800- 

487-2245. Immediate access to copies of 

documents from active and closed files 

from Courts, Archives and Government 

Agencies. Property, Titles, Assets, 

Liens search. Legislative Intent Documents. 

Service of process in states and 

abroad. Contact: legaldocusa@aol.com. 

DIAMOND AND GOLD BUYER 

Buying all types of Diamonds, Immediate 

Cash Paid. Consignment terms 

available @ 10 -20% over CASH. For 

consultation and offers please call 

(214) 739-0089. 

KILLINGSWORTH Aircraft Valuation 

Service LLC. Specializing in General 

Aviation. Fixed wing and Rotorcraft. 

Accredited by: American Society of 

Appraisers. Member of Forensic Expert 

Witness Association. www.kairvals.com, 

www.appraisers.org. (281) 796-4812. 

Need Process served in the DFW area 

Get fast results. Call Mike McCully, 

Licensed Process Server at (972) 998-6313 

or email mikemcc1018@sbcglobal.net. 

To place an affordable classified ad here, 

contact Judi Smalling at (214) 220- 

7452 or email jsmalling@dallasbar.org. 

Connect jobseekers with employers in the legal 

field. Run your ad in the DBA’s online Career 

Center. www.dallasbar.org/career-center. 

NEED TO REFER 

A CASE 

The DBA Lawyer Referral Service Can Help. 

Log on to 

www.dallasbar.org/dallas-lawyer-referral-service 

or call (214) 220-7499. 

Need a safe and cost 

effective plan to shred those 

old documents Don’t let your 

sensitive information end up 

in a dumpster AND trash your 

reputation. Tindall guarantees 

all your paper is cut to pieces. 

We’ve earned our clients’ trust. 

Serving the Metroplex Since1981. 

Give us a call to learn more. 

RECORD.com 

www. 

Toll Free 866.429.2210 

DAYL Foundation 

Annual Fellows 

Luncheon 

Keynote Speaker: 

Texas Supreme Court Justice Eva Guzman 

Thursday, December 13, 2012 

11:30 a.m. at Belo 

For ticket and table information, contact 

cherieh@dayl.com. 

Founding Member of NAPPS 

One Stop... One Provider... Best Technology 

· Service of Process 

· Court Filing Services 

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· Litigation Photocopy 

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Dallas 

Reputation. Resources. Results. 

Twenty-Four Attorneys. 

Plano 

1717 McKinney Avenue, Suite 1500 Dallas, Texas 75202 

Four Offices. 

One Focus... 

Southlake 

5700 West Plano Parkway, Suite 2200 Plano, Texas 75093 

OUR CLIENTS. 

Divorce 

Child Custody 

Complex Property Arrangements 

Visitation Issues 

Asset Tracing 

Paternity Issues 

Prenuptial Agreements 

Post-Marital Agreements 

Mediation 

Post-Divorce Modifications 

Enforcement of Orders 

Collaborative Law 

Denton 

181 Grand Ave, Suite 225 Southlake, Texas 76092 

www.koonsfuller.com 

KoonsFuller, P.C. 

320 West Eagle Drive, Suite 200 Denton, Texas 76201

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