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In this second issue of Under Advisement, we explore how to combat punitive damage claims with no-evidence motions for summary judgment.

We also provide an update on the discoverability of witness statements—one Texas court of appeals has held that attorney-client communications remain protected.

Using Summary Judgment to Combat Punitive Damage Claims

[click here for detailed information...]

Allegations of malice/gross negligence by a plaintiff may damage the defense of a general negligence case, compel the defendant to produce private net-worth information, and substantially add to the value of a case. Seriously consider filing a no-evidence motion for summary judgment to dispose of the malice/gross negligence allegation. It may simplify the issues in the case.

The Texas Rules of Civil Procedure provide for a no-evidence motion for summary judgment. Modeled after its federal counterpart, the Texas rule requires a plaintiff to produce evidence showing a "genuine issue" of "material fact" in order to defeat a no-evidence motion for summary judgment.

After "adequate time for discovery" has passed, a complete lack of proof concerning any essential element of the case necessarily renders all other facts immaterial. In such a case, the court must grant the motion.

In Texas, malice/gross negligence involves two components. First, the defendant’s act must involve an extreme degree of risk with respect to both the magnitude and probability of potential harm or injury to other persons. Second, the defendant must have actual awareness of the extreme degree of risk, but nevertheless proceed in conscious indifference to the welfare, rights, or safety of other persons.

A no-evidence motion for summary judgment is a powerful tool for eliminating baseless allegations of malice/gross negligence. For this reason, seriously consider filing such a motion.

• Prevent the submission of the exemplary damage issue to the jury;
• Allow the defendant to avoid producing private net-worth information;
• Narrow the scope of discovery and lower litigation expenses;
• Narrow issues in the case and preclude the admission of prejudicial evidence at trial; and
• Force the plaintiff to disclose its malice/gross negligence evidence, and allow the defense to remind the judge about the plaintiff’s burden of proof, the law favorable to the defense, and the weak facts underlying the plaintiff’s claims.
• [click here for detailed information...]

A Texas court of appeals has recently upheld a claim of attorney-client privilege to prevent the discovery of a pre-suit "witness statement" prepared by a defendant doctor for his insurance carrier and attorney. See In re Fontenot, 13 S.W.3d 111 (Tex. App.–Fort Worth 2000, orig. proceeding). This case marks a significant departure from the outcomes of three prior cases, which were discussed in the last issue of Under Advisement.

• When forwarding important or self-critical information to an insurance carrier, the potential defendant should communicate directly to or through an attorney;
• Insurance carriers should document facts establishing that any statement or information is being provided to facilitate legal representation and that the insurance carrier is acting as "a representative of the client";
• Insurance carriers should develop a record for the court to show that the carrier has the authority to obtain professional legal services or act on legal advice on behalf of the client; and
• When in doubt, insurance carriers should limit written communications and retain counsel to provide advice about handling pre-suit communications of critical information about the claim. [click here for detailed information...]

THE INFORMATION CONTAINED IN UNDER ADVISEMENT IS BUT A PRESENTATION OF OPINION(S) BY ONE OR MORE ATTORNEYS AS TO CERTAIN MATTERS OF LAW. THIS INFORMATION IS NOT PRESENTED AS A CONCLUSIVE OR FORMAL LEGAL ANALYSIS; NEITHER IS IT PRESENTED FOR THE PURPOSE OF PROVIDING ANY LEGAL SERVICE OR ESTABLISHING ANY ATTORNEY-CLIENT RELATIONSHIP. HICKS & Llamas, P.C. PROVIDES UNDER ADVISEMENT FREE OF CHARGE, DOES NOT GUARANTEE THE ACCURACY, ADEQUACY, OR COMPLETENESS OF ANY INFORMATION CONTAINED HEREIN, AND IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS OR FOR THE RESULTS OBTAINED FROM USE OF ANY INFORMATION CONTAINED HEREIN. HICKS & Llamas, P.C. ASSUMES NO RESPONSIBILITY OR LIABILITY, EXPRESS OR IMPLIED, FOR ERRORS OR OMISSIONS OF ANY KIND, AND NO WARRANTIES OF MERCHANTIBILITY OR FITNESS, EXPRESS OR IMPLIED, ARE MADE OR ARE TO BE IMPLIED. UNDER ADVISEMENT IS BEING ACCEPTED AS IS WITH ALL FAULTS, ERRORS, AND OMISSIONS.

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