A recent decision in Federal
Court cites the Century vs. Hardscape Federal District
Court opinion argued by Bob Shults in affirming the notion
that a claimant is a proper defendant in a declaratory
relief action involving insurance coverage, in light of
Article III of the Constitution. Atlantic Casualty Insurance
Co. v. Ramirez, ---F.Supp2d---, 2009 WL2842901 (N.D.Tex
Sept 2, 2009)(slip op.)
McFall,
Breitbeil & Shults, P.C. has gained a reputation for
aggressively prosecuting, defending, and trying lawsuits.
Set out below is a list of some of our successes at the
trial court level, on appeal, or by way of contingency fee
recovery:
Recently, a Houston jury returned a
verdict in the amount of $136.8 million in favor of the
firm's Houston-based client, Canatxx Energy Ventures,
Inc. against General Electric Capital Corporation, in
the United States District Court for the Southern District
of Texas. The trial lasted three weeks. In December 2006,
a Final Judgment was entered on the verdict awarding Canatxx
actual damages of $136,100,000, together with exemplary
damages of $700,000 resulting from the jury's finding
that GE Capital Corporation acted with actual malice.
Ken Breitbeil of McFall, Breitbeil & Shults, teaming
with Guy Matthews of The Matthews Firm and Andrew Jefferson,
spearheaded Canatxx's trial team. The verdict and corresponding
$136.8 million judgment is believed to be one of the three
largest in Texas and the 12th largest in the United States
for 2006. The Final Judgment, as well as a summary of
the case from the Texas Jury Verdict Reporter, can be
viewed on this site by clicking the links below.
Don McFall led a trial team in obtaining
a defense verdict and judgment on behalf of our client,
a nationally known lawyer, and business man, concerning
allegations of breach of fiduciary duty, breach of contract,
and other claims. the damages sought against our client
were in the tens of millions of dollars. After a lengthy
trial, the jury rendered a verdict in our client's favor.
Ken Breitbeil successfully represented
one of the firm's publicly owned clients (and affiliates)
in an appeal of an underlying judgment that had been entered
in our client's favor. The court of appeals entered and
opinion that completely validated our client's position
at the trial court level on issues of partnership, wrongful
termination, employment at will, and business defamation.
The opinion is published at Brown v. Swett & Crawford
of Texas, Inc., 178 S.W.3d 373, (Tex. App. -- Houston
[1st Dist.] 2005, no pet.).
Don McFall and his team won a defense
verdict for a prominent Washington, D.C. law firm in a
legal malpractice case. One of the firm's transactional
lawyers agreed to take over the representation of a friend
(and her business), who had been sued because of a business
dispute. The lawyer negotiated a settlement of that case;
however, his friend failed to pay the settlement as the
parties had agreed. The friend and her business eventually
sued the lawyer and the firm for breach of contract, breach
of fiduciary duty, fraud, fraudulent inducement, negligence,
and gross negligence. Messrs. McFall and Little won a
summary judgment for our client on the plaintiffs' breach
of contract claim. The lawyer ultimately settled the claims
against him, and the plaintiffs proceeded to trial against
the firm. The court awarded our client a directed verdict
on the plaintiffs' claims for breach of fiduciary duty,
and the jury returned a defense verdict on the plaintiffs'
remaining claims. The court denied the plaintiffs' motion
for new trial, and the deadline for the plaintiffs' to
appeal is approaching.
After obtaining a judgment in our client’s
favor at the trial court level, Ken Breitbeil and Bruce
Kemp succeeded in affirming the judgment on appeal before
the 14th Court of Appeals of Houston. The case involved
a wrongful death suit arising out of a construction site
accident in downtown Houston, and the firm successfully
defended the client against claims for negligence, premises
liability and strict products liability. See Lopez,
et al., v. Harsco Corporation, No. 14-05-00481-CV,
2006 WL 994668 (Tex. App. -- Houston [14 Dist.], April
18, 2006, no pet.).
Ken Breitbeil led an appellate team that succeeded on appeal
in reversing an underlying judgment that had been improperly
entered against one of the firm’s clients. The case concerned
an employment dispute between a high producing professional
and the company that employed him. The Corpus Christi Court
of Appeals agreed with our argument that the trial judge improperly
permitted the jury to hear tainted evidence of an earlier erroneous
ruling by the same trial judge -- which itself had been the
subject of a separate, and equally successful, appeal. See In
re Houston, 92 S.W.3d 870 (Tex. App. -- Houston [14th Dist.]
2002, orig. proceeding). Finding that the tainted evidence irreparably
influenced the jury, the underlying adverse judgment was reversed.
See Houston, et al. v. Millennium Ins. Agency, et al.;
No. 13-03-00235-CV, 2006 WL 1030102 (Tex. App. -- Corpus Christi,
April 20, 2006, pet. filed).
The firm successfully tried a nursing
home decubitus case in the 60th Judicial District Court
of Jefferson County, Texas. Plaintiff had sued the nursing
home and its corporate owner claiming that the resident’s
multiple stage 3 and stage 4 wounds were caused by the
negligence of the defendant nursing home. Plaintiff asserted
various theories of corporate liability against the owner,
which was not a health care provider. The unanimous jury
returned its verdict in 40 minutes, finding no liability
on the defendants. The two week jury trial ended on March
8, 2007. Jefferson County, Texas is a dangerous county
for defendants.
Allison Whitten with others successfully
set aside a $9,000,000 default judgment against our client
in Hidalgo County, Texas. Our firm lawyers were not involved
before the default judgment. The jurisdictional clock
was ticking quickly in a hostile forum. The default judgment
had been signed by a judge who during the post-default
proceedings committed suicide, thereby complicating the
circumstances to which we had to respond in order to set
aside the default. We also set aside the guardian ad litem
award of $150,000 which had been awarded for about 24
hours of work. We obtained an eventual non-suit of our
client with no settlement.
The firm recently obtained summary
judgment, before any depositions were taken, for our client
in a wrongful death drowning case in Brazoria County,
Texas.
Allison Whitten recently obtained
a non-suit of our defendant client (without settlement)
in a case wherein sixteen plaintiffs filed suit in a triple
fatality arising out of a railroad crossing accident.
The firm successfully resolved a complicated
matter arising out of our client’s road construction
work. The driver of one vehicle was killed and the driver
of the other vehicle required surgical amputation at the
knee. Each driver was also a counter-defendant. Unknown
vandals had moved traffic control devices which had been
positioned by our client, allegedly causing the head-on
collision. We obtained a timely order designating the
unknown “John Doe” criminal assailants as
“responsible third parties,” an important
advantage to our client first available under Texas’
2003 tort reform. This step allowed the submission to
the jury of a proportionate responsibility question as
to the anonymous criminals, thereby allowing the jury
to place fault where it belonged, even though the wrongdoers
were unknown. The case was successfully resolved before
trial.
The firm successfully defended a trucking
company in a non-jury trial on a claim for indemnification
asserted against it by an intermodal equipment provider.
The equipment provider claimed that our trucking company
client was required to indemnify the provider for the
provider’s own fault pursuant to the provisions
of an industry standard intermodal agreement. The provider
claimed that Maryland law controlled. The court held that
Texas – not Maryland – law controlled; that
the indemnity language did not satisfy the “express
negligence” requirement set forth in Ethyl Corp.
v. Daniel Const. Co., 725 S.W.2d 705 (Tex. 1987); and
that our trucking company client was not required, and
did not agree, to indemnify the provider for the provider’s
own fault.The firm recently won an arbitration award for
one of our firm's oil and gas clients. One of our client's
sales representatives left the company and sought to join
a competitor. The sales representative claimed that he
had been fraudulently induced to sign a contract with
our client that included a covenant not to compete, and
alleged that, even if the contract was valid, the covenant
not to compete was unenforceable for other reasons. The
arbitration panel entered an award enforcing the contract
and the covenant not to compete that ran in favor of our
client.
In a recent mandamus action, Bob Shults
successfully obtained an appellate court ruling sustaining
objections to overly broad discovery requests submitted
in an insurance coverage case. In its published opinion,
the Beaumont Court of Appeals found that “[h]aving
to produce overbroad discovery that is almost unlimited
in time, to produce in response to vague requests that
are not reasonably specific, or to produce attorney work
product as a consequence of a hearing where the attorney
work product privilege was not properly before the [trial]
court would result in time, labor, and money spent on
improper production that could not be retrieved.”
The opinion is published as In re TIG Insurance Company,
172 S.W.3d 160 (Tex. App.--Beaumont 2005, no pet.). The
win is featured in the August 26, 2005 edition of the
Andrews Asbestos Litigation Reporter.
Bob Shults obtained summary judgment
on behalf of the firm’s client, a major insurer,
in an insurance coverage claim. The plaintiff sued the
firm’s client for defense and indemnity in the underlying
mold litigation. Our attorneys argued that whether the
court used the “manifestation” or “exposure”
trigger theory, no coverage existed under the insurer/client’s
policies. Furthermore, Texas law bars purchasers of real
property from asserting claims for property damage that
occurred before the purchaser owned the property. Bob
Shults is handling the plaintiff's subsequent appeal.
Bob Shults won a major insurance coverage
case recently in federal court in Amarillo. A pest control
company won a large verdict against a similar company
for allegedly lying about the plaintiff company on TV
and charging that it was under investigation by state
officials. The parties then did a “sweetheart deal”
and the dependent company assigned its rights against
its insurance carrier to the plaintiff. Arguing that there
is no insurance coverage for intentionally harmful conduct,
the firm represented the insurance carrier and won a summary
judgment from the district court. Bob Shults handled the appeal before the Fifth Circuit
Court of Appeals. In December 2005, Bob Shults argued
the case before the appeals court panel of justices.
The firm successfully represented
a well-known Houston law firm in arbitration against
one of its former clients. The claimant alleged that
our law firm client committed legal malpractice and
breached its fiduciary duties, and used those claims
to attempt to avoid paying our client's legal fees.
The arbitration panel entered an award that our client
had not engaged in any wrongdoing, and that our client
was entitled to recover all of its fees. The panel also
awarded our client their costs and attorneys' fees incurred
in defending the arbitration proceeding.
The firm obtained a summary judgment
on behalf of a prominent Beaumont law firm, which had
been accused of business disparagement and tortious
interference with contracts. The trial judge dismissed
all of the claims against our law firm client, while
allowing the claims against other parties in the lawsuit
to proceed. The opposing parties have appealed the summary
judgment that was rendered in our client's favor. The
Ninth District Court of Appeals recently affirmed the
summary judgment in favor of our client. 2005 WL 2450158.
Ken Breitbeil successfully represented
one of the firm's publicly owned clients at the trial
court level in a wrongful death case involving an industrial/construction
site accident in downtown Houston. Our client was the
only defendant who elected not to settle. the case involved
issues of OSHA compliance, subcontractor duties, and
premises liability. The plaintiffs have appealed the
judgment that was rendered in favor of our client.
Ken Breitbeil successfully defended
the firm's client, a large publicly traded company, through
trial in a rural Texas county in a commercial lawsuit
involving a claim for damages in excess of $8 million.
The jury rendered a unanimous verdict for our client,
and then found for our client on 100% of the damages sought
in its counterclaim against the plaintiff, which also
is a large publicly traded company. Consistent with our
appellate expertise, the firm has continued to represent
the client on the appeal that was initiated by the other
party.
In a case that we handled under a
modified contingency fee arrangement, Ken Breitbeil
was successful in obtaining a settlement in excess of
$12 million for the client. Our client had been the
CEO of a major Houston-based company, and the claim
related to company's attempt to deprive the client of
incentive compensation plan benefits following his sudden
termination. Prior to our legal representation, the
company had only been willing to compensate the CEO
for a small fraction of what became the ultimate settlement
amount.
Ken Breitbeil successfuly represented
the defendant in a burn case which arose out of a flash
fire on a drilling location in south Texas. The Court
of Appeals affirmed a take nothing judgment in favor of
our defendant client. The court held that Chapter 95,
Texas Civil Practices & Remedies Code, was the exclusive
available remedy and the jury had answered the Chapter
95 verdict questions in favor of our client. Chapter 95,
which is a tort reform measure enacted in 1995, provides
protection under certain circumstances to the owner of
property when the employee of a contractor or sub-contractor
is injured or killed on the owner’s property. This
is an especially important protection to owners of refinery
facilities and other commercial and industrial properties.
This case was one of the first and most important decisions
interpreting Chapter 95 and giving that tort reform measure
its intended application. The case is important for additional
reasons as well. In an issue of first impression, the
court held that an oil and gas operator which held mineral
leases pertaining to premises and obtained mineral interests
pursuant to such leases was a “property owner”
for purposes of Chapter 95. The court held that a coiled
tubing wash out qualified as either repair or renovation
of an oil and gas well for purposes of Chapter 95. The
court also discussed the role of the “company man”,
as the term is used in the industry, of the defendant
oil and gas well operator for purposes of Chapter 95.
The court held that the “company man’s”
alleged actual knowledge of the danger of proximity of
a tank to a motor did not establish that the oil and gas
operator itself had such actual knowledge. The court noted
that in this case the “company man” was an
independent contractor of an independent contractor of
the oil and gas operator and that the “company man”
did not have a contract with the defendant operator itself.
Francis v. Coastal Oil & Gas Corporation,
130 S.W.3d 76 (Tex. App.—Hous. [1st Dist.] 2003,
no pet.).
Ken Breitbeil successfully represented
a Texas state court judge in connection with several claims
brought against him, in his judicial capacity, by the
beneficiary of a half-billion dollar trust. This suit
alleged, among other things, violations of the beneficiary's
rights under 42 U.S.C. § 1983. After we obtained
a judgment in our client's favor at the U.S. District
court level, the plaintiff appealed to the U.S. Court
of Appeals for the fifth Circuit. In a published opinion
the Fifth Circuit affirmed the lower court's ruling in
our client's favor. See Bauer v. State of Texas, et
al., 341 F.3d 352 (5th Cir. 2003).
Ken Breitbeil was successful in defending
one of the firm's corporate clients in response to a
series of EEOC and OSHA-based whistle blower claims,
such that these claims were dismissed at the federal
administrative level.
The firm serves as regional counsel
for a large, publicly traded construction and industrial
equipment manufacturing company. Ken Breitbeil successfully
defended the company, Harsco Corporation, in two jury
trials, one of which involved lawsuit claims for product
liability and the other involved lawsuit claims for
general negligence.
