Cases

Representative Reported Decisions:

Canutillo ISD v. National Union Fire Insurance Company, 99 F.3d 695 (5th Cir. 1996) - Paul was engaged following an adverse jury verdict and judgment for bad faith that imposed compensatory damages of $73,000 and punitive damages of $7 million against insurer. The case had been tried by other counsel. On appeal, the Fifth Circuit reversed, holding that the policy did not cover claims against the school district for the sexual assaults committed by one of its teachers and rendered judgment that the school district repay to the insurer $1 million previously paid to settle the case.

Feld v. Zale (in re Zale Corporation), 62 F.3d 746 (5th Cir. 1995) - Paul represented an excess directors and officers liability insurer of Zale Corporation. The primary D&O insurer settled with the claimant for less than the primary policy's limit, but the claimant gave the insureds a "credit" equal to the primary policy's limit. The settlement omitted one director-defendant. The bankruptcy court then approved the settlement and entered a bar order barring claims against the primary D&O insurer. The omitted director-defendant and the excess insurer appealed. The Fifth Circuit reversed, holding that the bankruptcy court exceeded its jurisdiction in barring contract and tort claims against the primary insurer.

Thigpen v. Sparks v. FDIC, 983 F.2d 644 (5th Cir.1993). Held: The D'Oench Duhme doctrine did not apply to breach of warranty claim arising from bank's sale of asset in nonbanking transaction.

Bartley v. National Union Fire Insurance Company, 824 F. Supp. 624 (N.D. Tex. 1992) - Claim by former officers and directors of First RepublicBank in Dallas against D&O insurer. Held: Binder included regulatory exclusion; exclusion enforceable and applicable to FDIC's claims against officers and directors.

Fidelity & Deposit Co. of Maryland v. Conner, 973 F.2d 1236 (5th Cir. 1992). Held: Public policy did not invalidate regulatory exclusion and "insured v. insured" exclusion of directors and officers liability policy.

Dahl v. Akin, 630 F.2d 277 (5th Cir.1980). Held: Allegations that the daughter and her husband through court proceedings and in deprivation of due process secured plaintiff's confinement in mental hospital did not allege conduct taken "under color of" state law, and thus did not state claim for relief under 42 U.S.C. § 1983, despite contention that daughter initiated commitment proceedings in her official capacity as state-appointed guardian.

Southwest Bank & Trust Co. v. Bankers Commercial Life Ins. Co.,563 S.W.2d 329 (Tex. Civ. App.–Dallas 1978, writ ref’d n.r.e.). Held: The "discovery rule" did not apply to toll the statute of limitations as against the bank in the absence of proof of the bank's fraudulent concealment of the transaction because the conversion of the check was not "inherently undiscoverable."

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Brooks, 548 F.2d 615 (5th Cir. 1977). Held: The broker could recover the amount due from the investor even though the broker had maintained the account in an undermargin condition and had delayed giving a margin call, where the investor was sophisticated and had full knowledge of the margin condition and would not have liquidated had the broker made an earlier call, and the investor consented to delay. The investor would not be excused from payment on the ground that extension of credit violated a rule or regulation of the board of trade.

Washington v. Estelle, 525 F.2d 1213 (5th Cir.1976). Held: Admission at trial of accused's statements that he did not know why he killed his wife and that he threw away the gun used, in response to questions asked before the giving of Miranda warnings, was prejudicially erroneous, in that, even if the statements were offered for the purposes of impeachment, they tended to establish the substantive elements of intent to kill and malice aforethought and there was no cautionary instruction given that statements could be considered only in passing on the accused's credibility and not as evidence of guilt.

Barker & Bratton Steel Works, Inc. v. North River Ins. Co., 541 S.W.2d 294 (Tex. Civ. App.–Dallas 1976, writ ref’d n.r.e.). Held: Though fabricator claimed entitlement to moneys from general contractor's surety on theory that it had a materialman's lien, where fabricator not only failed to file affidavit required by statute, but also failed to give notice to surety as alternatively provided by statute, failure of fabricator to comply with statutory requirements meant that it had no lien on property and, hence, no claim against surety on payment bond; further, conversations between officers of general contractor and fabricator prior to time lien affidavit was due or filed were not evidence of an intentional relinquishment of rights or of conduct warranting an inference of such relinquishment and, hence, did not operate to establish a waiver by owner, contractor or surety of any defect in affidavit or timely filing thereof.

Triton Oil & Gas Corp. v. E. W. Moran Drilling Co., 509 S.W.2d 678 (Tex. Civ. App.–Fort Worth 1974, writ ref’d n.r.e.). Held: In oil-and-gas-drilling case, the evidence supported a finding that the contractor had substantially performed the drilling contract; that the court properly refused to submit a jury issue concerning the contractor's maintenance of drilling mud; that the court did not abuse its discretion in refusing to strike testimony of an expert witness for the contractor; that the contractor could recover for third-party bills incurred during day work even though such bills had not been paid; that the third-party subcontractors were neither indispensable nor necessary parties to the action; and that the contractor was entitled to prejudgment interest on equipment furnished and lost by the contractor during the day work.

Richardson Nat'l Bank v. Reliance Ins Co., 619 F.2d 557 (5th Cir. 1980) represented a bank in litigation involving a banker's blanket bond regarding Insuring Agreement E and concerning allegedly "forged" manufacturer's statements of origin.

First Nat'l Bank v. F&CNY, 634 F.2d 1000 (5th Cir. 1981) represented a financial institution bond insurer regarding issues of discovery of loss and compliance with conditions precedent, including proof of loss.

Hixon v. Cox, 633 S.W.2d 330 ( Tex. App.--Dallas 1982, writ ref'd n.r.e.) represented the issuer of a check in case involving whether accord and satisfaction principles apply to a check delivered in payment of a disputed debt.

Fidelity & Cas. v. First City Bank, 675 S.W.2d 316 (Tex. App.--Dallas 1984, writ ref's n.r.e.) represented a bank in negotiable instrument case involving forged endorsements and application of the no interest payee rule of UCC section 3.405.

Charter Bank v. Evanston Ins. Co., 791 F.2d 379 (5th Cir. 1986) represented a bank in a case involving coverage under a financial institution bond regarding allegedly "altered" certificates of deposit.

Travelers Indem. Co. v. Dahlen, 734 S.W.2d 729 ( Tex. App. Dallas 1987) represented a surety in suit against indemnitors regarding a miscellaneous bond and allegations of material alteration of underlying risk.

McDowell v. Dallas Teachers Credit Union, 772 S.W.2d 183 ( Tex. App.--Dallas 1987, no writ) represented a credit union in a case involving forged checks and application of the repeater rule of UCC section 4.406.

Reliance Ins. Co. v. Capital Bank, 912 F.2d 756 (5th Cir. 1990) represented a financial institution insurer in a case involving Insuring Agreement E regarding allegedly "counterfeit" stock certificates.

Knights of Columbus Credit Union v. Stock, 814 S.W.2d 427 (Tex. App.--Dallas 1991, writ denied) represented a credit union in a case involving issues relevant to the notice of sale of collateral following default by the borrower.

First Texas v. Reliance Ins. Co., 950 F.2d 1171 (5th Cir. 1992) represented a financial institute bond insurer in a case involving the loan exclusion and allegations of insurer bad faith.

Matter of World Hospitality, 983 F.2d 650 (5th Cir. 1993) represented a commercial fidelity bond insurer in a case involving issues relevant to the definition of "employee" and the "alter ego" defense.

American Airlines Emp. Fed. Credit Un. V. Martin, 29 S.W.3d 86 (Tex. 2000) represented a credit union in a case involving the validity of shortened notice provisions in an account deposit agreement as relevant to UCC section 4.406.

Buck v. U.S. Fidelity & Guaranty Co., 2003 WL 22860932 (Tex. App.--Corpus Christi 2003, no pet.) represented lost stock bond surety and stock issuer in a matter involving lost stock certificates.

Borinski v. Williamson, 2004 WL 433746 (N.D. Tex. 2004) represented a credit union in a case involving issues relevant to the Right to Financial Privacy Act and the Fair Credit Reporting Act.

Owens v. Comerica Bank, 229 S.W.3d 544 (Tex. App.-- Dallas 2007, no pet.) represented bank in case involving deposit of $1.9 million of fraudulently deposited checks in which Court holds bank violated no duty to check issuer.