Yowell et al v. Seneca Specialty Insurance Company
Filing
27
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING PLAINTIFFS MOTION TO STRIKE re 16 MOTION for Partial Summary Judgment filed by David Yowell Construction, LLC, David Yowell, 22 MOTION to Strike 21 Response in Opposition to Motion, as to Summary Judgment Evidence filed by David Yowell Construction, LLC, David Yowell. Signed by Judge Louis Guirola, Jr on 7/28/15. (cm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
DAVID YOWELL and DAVID YOWELL
CONSTRUCTION, LLC
v.
PLAINTIFFS
CAUSE NO. 4:15CV80-LG-CMC
SENECA SPECIALTY
INSURANCE COMPANY
DEFENDANT
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY
JUDGMENT AND DENYING PLAINTIFFS’ MOTION TO STRIKE
BEFORE THE COURT is the Motion for Partial Summary Judgment [16]
filed by the plaintiffs David Yowell Construction, LLC, and David Yowell (hereafter
collectively referred to as “Yowell”), as well as the Motion to Strike [22] filed by
Yowell. Both Motions have been fully briefed by the parties. After reviewing the
submissions of the parties, the record in this matter, and the applicable law, the
Court finds that Yowell’s Motion for Partial Summary Judgment should be granted
in part and denied in part, and Yowell’s Motion to Strike should be denied.
BACKGROUND
Barry and Rebecca Schneider filed a lawsuit against Yowell in the District
Court of Collin County, Texas, 296th Judicial District.1 (Pet., ECF No. 1-1). In
their Petition, the Schneiders allege that they hired Yowell in June 2012 to
remediate past water damage in their home and to make repairs that would
prevent future water damage. (Id. at 3-4). On December 12, 2012, Yowell notified
1
The filing date on the copy of the Petition that was provided to the Court is
difficult to decipher, but it appears that the Petition was filed on July 21, 2014.
the Schneiders that all work on the home had been completed. (Id. at 14). The
Schneiders found mold in different areas of the home in March 2013, October 2013,
and November 2013. (Id. at 5-6). They claim that the mold was caused by defects
in the construction work performed by Yowell as well as Yowell’s failure to perform
work that was called for in the parties’ agreement. (Id. at 6-9). The Schneiders
filed the following claims against Yowell: (1) breach of contract; (2) violation of the
Texas Deceptive Trade Practices - Consumer Protection Act; and (3) common law
fraud. (Id. at 9-11).
On August 18, 2014, Yowell retained the firm McCauley, Westberg, &
Ramirez, PLLC, to defend it in the Schneider lawsuit. (Pls.’ Mot., Ex. D at 1, ECF
No. 16-4). One of the managing members of the firm, Michael John Ramirez, has
testified that he tendered Yowell’s defense to Seneca Specialty Insurance Company
on September 12, 2014. (Id. at 2). Seneca had issued a commercial general liability
policy to Yowell for the period June 26, 2012, through June 26, 2013. (Pls.’ Mot.,
Ex. A, ECF No. 16-1). Seneca rejected the tender of defense and denied coverage.
(Def.’s Resp., Ex. 2, ECF No. 21-2).
The Schneiders filed their First Amended Petition on November 13, 2014,
asserting the following claims: (1) breach of contract; (2) violation of the Texas
Deceptive Trade Practices - Consumer Protection Act; (3) common law fraud; (4)
breach of express warranties; (5) breach of implied warranties; and (6) negligence.
(1st Am. Pet. at 9-14, ECF No. 16-2). Ramirez has testified that he provided a copy
of the First Amended Petition to Seneca and once again tendered Yowell’s defense
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to Seneca on November 13, 2014. (Pls.’ Mot., Ex. D at 2, ECF No. 16-4). Ramirez
has testified that he subsequently contacted Seneca multiple times in an effort to
obtain Seneca’s involvement in the defense of the Schneider lawsuit. (Id. at 2-3).
On February 3, 2015, Yowell filed the present lawsuit against Seneca,
alleging that Seneca never filed a response to its request for a defense of the
Schneiders’ First Amended Petition. (Compl., ECF No. 1). Yowell seeks a
declaratory judgment that Seneca has a duty to defend and indemnify Yowell in the
Schneider lawsuit. (Id. at 6). Yowell also asserts a breach of contract claim, a claim
for violation of the Texas Insurance Code Unfair Settlement Practices Act, a claim
for violation of the Prompt Payment of Claims Act, and a claim for attorney’s fees.
(Id. at 6-8). On April 2, 2015, Seneca sent a letter to Yowell in which it agreed to
participate in Yowell’s defense subject to a reservation of rights. (Pls.’ Mot., Ex. G,
ECF No. 16-7).
DISCUSSION
Yowell has filed a Motion for Partial Summary Judgment on the following
grounds:
a. Seneca has a duty to defend Yowell based on the factual allegations
set out in the First Amended Petition in the Underlying Suit and the
terms of the Seneca insurance policy.
b. Seneca breached its duty to defend Yowell when it failed entirely to
respond to Yowell’s timely notice and request for defense.
c. Seneca cannot “unbreach” its contract now by offering [a] defense to
Yowell.
d. Because Seneca breached its duty to defend, Yowell is entitled to
recover attorney’s fees and costs Yowell has incurred and continues to
incur in defense of the Underlying Suit from the date of notice of the
First Amended Petition.
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e. Seneca’s refusal to pay defense costs in a timely manner constitutes
a violation of Chapter 542 of the Texas Insurance Code, Prompt
Payment [of Claims] Act, and subjects Seneca to the 18% penalty
imposed for such violation.
f. Because Seneca breached its duty to defend, Yowell is entitled to
recover the attorney’s fees and costs incurred to prosecute this
coverage action.
(Pls.’ Mot. at 6, ECF No. 16). Yowell’s request for a holding that Seneca cannot
“unbreach” the policy is essentially a request for a holding that Seneca has waived
its right to control Yowell’s defense, such that Yowell is permitted to proceed with
the attorney of its choice in the Schneider lawsuit. Yowell also argues that Seneca
cannot dispute the reasonableness and necessity of the defense fees and costs that
Yowell has incurred and will incur in the Schneider lawsuit. Yowell has proffered
expert testimony in an effort to obtain a judgment as to the amount of the fees
incurred in the Schneider lawsuit and the present lawsuit. Yowell also requests an
award of prejudgment interest.
Seneca filed a response in opposition to the Motion, arguing that it did not
breach its duty to defend Yowell because it never explicitly denied a defense to
Yowell after the First Amended Petition was tendered and it eventually agreed to
defend Yowell. Seneca also argues that the reasonableness of the attorney’s fees
incurred in the Schneider lawsuit is a question of fact; thus, summary judgment is
not appropriate. Furthermore, Seneca disputes the assertion that it violated the
Prompt Payment of Claims Act as well as Yowell’s ability to recover prejudgment
interest.
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I. WHETHER SENECA BREACHED ITS DUTY TO DEFEND YOWELL
Seneca does not dispute that it has a duty to defend Yowell against the
claims made in the Schneiders’ First Amended Petition. Yowell has produced
testimony that its attorney tendered the First Amended Petition to Seneca and
requested a defense and indemnity on November 13, 2014. (Pls.’ Mot., Ex. D at 2,
ECF No. 16-4). The record in this matter indicates that Seneca did not respond to
this request until it issued a reservation of rights letter on April 2, 2015. (Pls.’
Mot., Ex. G, ECF No. 16-7). Seneca has provided no explanation for this 140-day
delay.
The Texas state courts have not directly addressed the issue of whether an
insurer’s delay in agreeing to provide a defense to its insured constitutes a breach of
the duty to defend. However, in an unpublished decision, the United States District
Court for the Northern District of Texas has held that unreasonable delay
constitutes a breach of the insurance policy under Texas law. Kirby Co. v. Hartford
Cas. Ins. Co., No. 3:02-cv-1616-L, 2004 WL 2165367, at *4 (N.D. Tex. Sept. 23,
2004). In Kirby, the insurer asked the court “to rule that, as a matter of law,
merely acknowledging a duty [to defend its insured] (no matter how late)
constitutes full performance of that duty.” Id. at *1. The court disagreed, relying
on cases from other jurisdictions including Marathon Ashland Pipe Line LLC v.
Maryland Casualty Co., 243 F.3d 1232, 1243 (10th Cir. 2001), which held that an
“insurer’s four month delay in responding to [its] insured’s notice of claim breached
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the insurer’s duty, and was not cured by its untimely offer to defend under a
reservation of rights.”; See also Centex Homes v. Lexington Ins. Co., No. 3:13-CV-719BN, 2014 WL 1225501, at *6 (N.D. Tex. Mar. 25, 2014)(holding that under Texas law, where a
breach of the duty to defend is caused by an unreasonable delay, the insurer forfeits its right to
defend and, by extension, its right to select the counsel of its choosing.)
Here, Seneca has failed to tender any summary judgment evidence tending to
show that the delay was “reasonable.” In fact, Seneca has not explained why it to
needed 140 days to determine whether it had a duty to defend Yowell after the
Schneiders’ First Amended Petition was tendered. There is no evidence that Seneca
ever requested any additional information from Yowell or additional time to
consider the claims. Nor is there any showing in the record that Seneca needed any
additional information, aside from the First Amended Petition and the policy, to
make its determination. See Primo v. Great Amer. Ins. Co., 455 S.W.3d 714, 723
(Tex. Ct. App. 2015) (explaining that, under Texas law, the duty to defend is
determined by comparing the petition filed against the insured with the coverage
provided under the policy). As a result of Seneca’s delay, Yowell was forced to
continue to pay its own attorney to defend the First Amended Petition for almost
five months. Seneca’s 140-day delay was, in essence, a denial of a defense. Since
Seneca waited without apparent explanation for 140 days before agreeing to provide
a defense it now does not dispute it owes to the Yowell, the Court finds that Seneca
breached its duty to defend.
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II. WHETHER SENECA HAS WAIVED ITS RIGHT TO CONTROL
YOWELL’S DEFENSE
A liability insurance policy grants the insurer the right to control the defense
of claims filed against the insured. Unauthorized Practice of Law Comm. v. Am.
Home Assur. Co., 261 S.W.3d 24, 26 (Tex. 2008). This right of control usually
includes “the authority to select the attorney who will defend the claim and to make
other decisions that would normally be vested in the insured as the named party in
the case.” Id. at 42. However, “[i]t is well settled that once an insurer has breached
its duty to defend, the insured is free to proceed as he sees fit; he may engage his
own counsel and either settle or litigate, at his option.” Ideal Mut. Ins. Co. v. Myers,
789 F.2d 1196, 1200 (5th Cir. 1986) (citing Great Amer. Indem. Co. v. Corpus
Christi, 192 S.W.2d 917, 919 (Tex. Civ. App. 1946)). Thus, an insurer that breaches
its duty to defend forfeits its right to conduct the insured’s defense. Id.
Since Seneca breached its duty to defend, Seneca waived its right to control
the defense, and Yowell is free to utilize the attorney of its choice in the defense of
the Schneider lawsuit.
III. WHETHER SENECA CAN CONTEST THE REASONABLENESS AND
NECESSITY OF YOWELL’S DEFENSE COSTS INCURRED IN THE
SCHNEIDER LAWSUIT
Yowell argues that Seneca has also waived its right to contest the
reasonableness and necessity of the attorney’s fees incurred while defending the
Schneider lawsuit. To support this argument, it relies on Shore Chan Bragalone
Depumpo LLC v. Greenwich Insurance Company, 904 F. Supp. 2d 592 (N.D. Tex.
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2012). The Shore Chan court stated, “Without further guidance from the parties,
the [c]ourt believes that the Texas Supreme Court would . . . decide that an insurer
who abdicates its duty to defend is also barred from directly challenging the
reasonableness and necessity of the insured’s attorney’s fees.” Shore Chan, 904 F.
Supp. 2d at 603. However, the Fifth Circuit, while interpreting Texas law, had
previously reached the opposite conclusion. In American Home Assurance Company
v. United Space Alliance, LLC, 378 F.3d 482 (5th Cir. 2004), the Fifth Circuit held
that attorney’s fees that are recoverable as damages for breach of the duty to defend
must be reasonable and necessary. 378 F.3d at 490; see also Primrose Operating Co.
v. Nat’l Amer. Ins. Co., 382 F.3d 546, 559 (5th Cir. 2004) (“a breach of the duty to
defend entitles the insured to the expenses it incurred in defending the suit,
including reasonable attorney’s fees and court costs”) (emphasis added). This Court
must follow Fifth Circuit precedent and hold that Seneca has not waived its right to
contest the reasonableness and necessity of the defense fees incurred by Yowell.
IV. WHETHER SENECA VIOLATED THE PROMPT PAYMENT OF CLAIMS
ACT
The Prompt Payment of Claims Act provides:
Except as otherwise provided, if an insurer, after receiving all items,
statements, and forms reasonably requested and required under
Section 542.055, delays payment of the claim for a period exceeding
the period specified by other applicable statutes or, if other statutes do
not specify a period, for more than 60 days, the insurer shall pay
damages and other items as provided by Section 542.060.
Tex. Ins. Code Ann. § 542.058(a) (West 2005).
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The Texas Supreme Court has held that the Prompt Payment of Claims Act
applies to an insured’s claim against the insurer for defense costs. Lamar Homes,
Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 19 (Tex. 2007). “Lamar Homes is best
understood as holding that an insurer becomes liable under the statute when it
wrongfully rejects its defense obligation, but that attorney’s fees cannot be awarded,
and prejudgment interest does not begin accruing, until the insured actually incurs
the defense costs.” Trammell Crow Residential Co. v. Va. Sur. Co., Inc., 643 F.
Supp. 2d 844, 859 (N.D. Tex. 2008).
Seneca argues that it is not liable pursuant to the Prompt Payment of Claims
Act because it did not deny Yowell’s request for a defense or breach its duty to
defend Yowell. As explained previously, Seneca denied Yowell a defense since it
failed to respond to Yowell’s demand for 140 days. This denial is a breach of the
duty to defend. Thus, Seneca’s argument is without merit. The Court finds that
Seneca breached the Prompt Payment of Claims Act by failing to timely respond to
Yowell’s claim for a defense.
V. WHETHER SENECA IS ENTITLED TO RECOVER ATTORNEY’S FEES
INCURRED IN THE PRESENT LAWSUIT
Seneca did not respond to Yowell’s request for a defense, and as a result,
Yowell filed this lawsuit. Since Seneca had a duty to defend Yowell and it breached
that duty, Seneca is liable for the reasonable and necessary attorney’s fees that
Yowell has incurred in the present lawsuit up to the date of this Memorandum
Opinion and Order. See Evanston Ins. Co. v. Legacy of Life, Inc., 645 F.3d 739, 750
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(5th Cir. 2011); see also Tex. Civ. Prac. & Rem. Code § 38.001(8) (providing that
attorney’s fees may be recovered by the prevailing party in a breach of contract
action).
VI. WHETHER YOWELL IS ENTITLED TO SUMMARY JUDGMENT AS TO
THE AMOUNT OF ATTORNEY’S FEES INCURRED IN THE SCHNEIDER
LAWSUIT AND THE PRESENT LAWSUIT
In support of its demand for attorney’s fees, Yowell has provided expert
reports signed by Warren Westberg, the partner of the attorney representing Yowell
in the Schneider lawsuit, and Tarron Gartner-Ilai, one of the attorneys representing
Yowell in the present lawsuit. Westberg opines that his firm’s $350 per hour rate is
reasonable based on the factors utilized by the Texas Supreme Court. Similarly,
Gartner-Ilai testifies that her fees and the fees of her law partners are reasonable.
Seneca disputes the reasonableness of the fees incurred by Yowell, and it has
provided an affidavit signed by Kevin Risley, a Houston attorney, to support its
arguments. Yowell has filed a Motion to Strike Risley’s Affidavit.
A. YOWELL’S MOTION TO STRIKE RISLEY’S AFFIDAVIT
Yowell argues that Risley’s affidavit should be stricken in its entirety
because (1) he does not identify cases that he has handled that relate to insurance
coverage or construction liability; (2) he fails to set forth how much of his practice is
devoted to construction and insurance; (3) he does not state whether he typically
represents insurers or policyholders; and (4) Risley did not attach his curriculum
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vitae to his affidavit.2 Yowell also attempts to discredit the opinions given by
Risley.
In his affidavit, Risley testifies that he has been licensed to practice law in
Texas since October 30, 1981, and he has maintained a law practice that includes
litigation of construction liability and insurance cases since November 1, 1982.
(Def.’s Resp., Ex. 5 at 1, ECF No. 21-5). He has given expert opinions concerning
the reasonableness of attorney’s fees in other cases for approximately twelve years.
(Id.) He explains the law that applies to the determination of whether attorney’s
fees are reasonable, including the factors applied by the Texas Supreme Court. (Id.
at 2). He opines that the rate of $350 per hour is not a reasonable fee for the
defense of Yowell in the Schneider lawsuit and states that this opinion is based on
his own experience as well as the State Bar of Texas Department of Research and
Analysis 2013 Hourly Fact Sheet, a survey of attorneys practicing in Texas. (Id. at
3). He opines that a reasonable rate for defense of the Schneider lawsuit would be
$250 per hour, because the median hourly rate for construction attorneys in the
Dallas/Fort Worth area is $248 pursuant to the survey. (Id.) In addition, he notes
that the Schneider lawsuit is “not especially complicated.” (Id.)
Risley also opines that the following rates charged by Yowell’s attorneys in
the present lawsuit are not reasonable: $450/hour for Tarron Gartner-Ilai,
2
Yowell’s Motion is not a Rule 26(a)(2)(B) Motion contesting a deficient
designation of an expert witness, particularly since Seneca’s deadline for
designating expert witnesses has not expired.
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$395/hour for Dana Harbin, and $195/hour for Whitney L. Warren. (Id.) This
opinion is also based on his experience as well as the State Bar survey of Texas
lawyers. (Id.) According to the survey, the median hourly rate for insurance
attorneys in the Dallas/Fort Worth area is $189. (Id. at 4). Risley proposes that a
reasonable rate for Gartner-Ilai and Harbin would be $250 per hour, while a
reasonable rate for Warren would be $170 per hour, as a result of each attorney’s
experience in the insurance law field. (Id.) Risley also opines that some of the time
entries for these attorneys have “extensive redactions [that] make it impossible to
determine whether the amount of time allocated to a particular task is reasonable.”
(Id.) He suggests that the fees of these attorneys should be reduced by an
additional ten percent for this reason. (Id.)
Since Risley offers expert opinions, the Court finds that the admissibility of
those opinions should be evaluated pursuant to Rule 702 of the Federal Rules of
Evidence, which establishes the following standards for determining whether expert
testimony is admissible:
(a) the expert’s scientific, technical, or other specialized knowledge
[must] help the trier of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony [must be] based on sufficient facts or data;
(c) the testimony [must be] the product of reliable principles and
methods; and
(d) the expert [must have] reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. Thus, “expert testimony is admissible only if it is both relevant
and reliable.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir. 2002).
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Furthermore, Fed. R. Evid. 702 requires that an expert be qualified to offer
testimony by virtue of his “knowledge, skill, experience, training or education.”
However, “Rule 702 does not mandate that an expert be highly qualified in order to
testify about a given issue. Differences in expertise bear chiefly on the weight to be
assigned to the testimony by the trier of fact, not its admissibility.” Huss v.
Gayden, 571 F.3d 442, 452 (5th Cir. 2009).
Contrary to Yowell’s assertions, Risley’s affidavit is not vague, conclusory, or
speculative. Risley provides his qualifications for providing the opinions given, as
well as the bases and sources of the opinions. All of Yowell’s arguments concern the
weight that should be attributed to Risley’s testimony, not the admissibility. As a
result, Yowell has not demonstrated that Risley’s affidavit should be stricken.
B. THE MERITS OF YOWELL’S REQUEST FOR SUMMARY
JUDGMENT AS TO THE AMOUNT OF ATTORNEY’S FEES
1. ATTORNEY’S FEES INCURRED IN THE SCHNEIDER
LAWSUIT
The reasonableness of attorney’s fees is a question of fact for the jury, and the
jury is not bound by the testimony of expert witnesses on the issue. Powell Elec.
Sys., Inc. v. Hewlett Packard Co., 356 S.W.3d 113, 128 (Tex. Ct. App. 2011). The
Fifth Circuit has explained:
Texas courts have held that attorney’s fees incurred involving
litigation with a third-party are recoverable as actual damages . . . .
To show the reasonableness and necessity of attorney’s fees incurred,
Texas courts have generally held that a party seeking such fees must
offer the testimony of a witness who has been designated as an expert,
. . . or at the very least, some testimony by the claimant’s attorney that
the fees being sought as damages are reasonable. Furthermore, Texas
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courts have held that a court may take judicial notice of the
reasonableness of attorney’s fees based on the testimony given.
However, these courts have also held that when a court does not
clearly take judicial notice of reasonableness, and the testimony
offered as to reasonableness and necessity is that of an interested
witness, even if uncontradicted, such testimony does no more than
raise a fact issue to be determined by the jury.
Amer. Home, 378 F.3d at 490. However, “where the testimony of an interested
witness is not contradicted by any other witness, or attendant circumstances, and
the same is clear, direct and positive, and free from contradiction, inaccuracies, and
circumstances tending to cast suspicion thereon, it is taken as true, as a matter of
law.” Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010).
In the present case, Yowell has offered testimony from an interested witness,
its attorney’s law partner, as to the reasonableness of the fees incurred in the
Schneider lawsuit. Seneca has offered contradictory testimony from Kevin Risley
on the subject. Since the reasonableness of fees is generally a question of fact for
the jury and conflicting testimony has been presented to the Court, the Court finds
that a genuine issue of material fact exists and Yowell’s Motion for Partial
Summary Judgment must be denied to this extent.
2. ATTORNEY’S FEES INCURRED IN THE PRESENT
LAWSUIT
Yowell is entitled to recover attorney’s fees as to its claim for breach of the
duty to defend in the present lawsuit. Tex. Civ. Prac. & Rem. Code § 38.001(8). “It
is presumed that the usual and customary attorney’s fees for a claim of the type
described in Section 38.001 are reasonable.” Tex. Civ. Prac. & Rem. § 38.003. “An
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attorney’s affidavit constitutes expert testimony that will support an award of
attorney’s fees in a summary judgment proceeding.” Roth v. JPMorgan Chase
Bank, N.A., 439 S.W.3d 508, 514 (Tex. Ct. App. 2014) (citing Haden v. David J.
Sacks, P.C., 332 S.W.3d 503, 512 (Tex. Ct. App. 2009)). Once the presumption of
reasonableness attaches, it can only be rebutted by competent evidence.” Guardian
Life Ins. Co. v. Kinder, 663 F. Supp. 2d 544, 560 (S.D. Tex. 2009).
Seneca has rebutted Yowell’s claim for attorney’s fees by presenting the
affidavit of Risley. Summary judgment cannot be granted as to a claim for
attorney’s fees where conflicting affidavits are presented by the parties. Gen. Elec.
Supply Co. v. Gulf Electroquip, Inc., 857 S.W.2d 591, 601 (Tex. Ct. App. 1993). As a
result, Yowell’s Motion for Partial Summary Judgment must be denied in this
respect.
VII. YOWELL’S REQUEST FOR PREJUDGMENT INTEREST
Since a genuine issue of material fact exists regarding the amount of
attorney’s fees that Seneca must reimburse, the Court finds that Yowell’s request
for summary judgment as to prejudgment interest is premature.
VIII. YOWELL’S MOTION TO STRIKE PORTIONS OF THE AFFIDAVIT OF
DAVID MERCADO
Yowell asks the Court to strike portions of an affidavit signed by David
Mercado, one of Seneca’s claims adjusters. Since the contents of Mercado’s affidavit
do not affect the outcome of Yowell’s Motions, the Court finds that the portion of
Yowell’s Motion to Strike that pertains to Mercado’s affidavit should be denied as
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moot.
CONCLUSION
For the foregoing reasons, the Court finds that Yowell is entitled to summary
judgment as to its claim that: (1) Seneca breached its duty to defend Yowell; (2)
Seneca waived its right to control Yowell’s defense in the Schneider lawsuit; (3)
Seneca violated the Prompt Payment of Claims Act; and (4) Yowell is entitled to
recover reasonable and necessary attorney’s fees incurred in the present lawsuit up
to the date of this Memorandum Opinion and Order. Yowell’s Motion for Partial
Summary Judgment is denied in all other respects. Yowell’s Motion to Strike is
denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Motion for
Partial Summary Judgment [16] filed by the plaintiffs David Yowell Construction,
LLC, and David Yowell is GRANTED IN PART AND DENIED IN PART.
IT IS, FURTHER, ORDERED AND ADJUDGED that the Motion to
Strike [22] filed by the plaintiffs David Yowell Construction, LLC, and David Yowell
is DENIED.
SO ORDERED AND ADJUDGED this the 28th day of July, 2015.
s/
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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