With today’s orders list, the Texas Supreme Court did not issue any opinions or choose new cases for argument.

The Court did, however, announce an argument date for the certified question it previously accepted involving the Deepwater Horizon oil spill (what many outside of a courtroom call the “BP Oil Spill”).

This is a fairly quick argument setting. In December, the Court accepted this certified question from the Fifth Circuit, and the parties are wrapping up merits briefing in the Texas Supreme Court now. (( The docket calendar indicates that the reply brief was due yesterday, but that filing is not yet listed. It may be detained in e-filing purgatory. )) The argument will be 25 days from today.

Does a claim for wrongful denial of insurance benefits require independent damages?

IN RE DEEPWATER HORIZON, No. 15-0891

insurance
Set to be argued on March 8, 2016

This is one of many cases percolating in the Fifth Circuit about the Deepwater Horizon (BP) oil spill. Here, the dispute is between various insurers over some subrogation and indemnification arrangements, internal to the complex stack of insurance that might apply to the project.

The Fifth Circuit resolved some of those questions under what it found to be well-settled law, and certified one other question to the Texas Supreme Court on a point that it found to be unsettled in Texas:

Whether, to maintain a cause of action under Chapter 541 of the Texas Insurance Code against an insurer that wrongfully withheld policy benefits, an insured must allege and prove an injury independent from the denied policy benefits?

The Fifth Circuit explains the uncertainty as being about whether Vail v. Texas Farm Bureau Mutual Insurance Co., 754 S.W.2d 129 (Tex. 1988), remains good law. That case would answer the question "no." Two decades later, a different panel of the Fifth Circuit analyzed intervening Texas authority and held that Vail was no longer controlling on this point. Great American Insurance Co. v. AFS/IBEX Financial Services, Inc., 612 F.3d 800, 808 & n.1 (5th Cir. 2010). In now certifying this question to SCOTX for an authoritative answer, the panel observes that some intermediate Texas courts, contrary to the Fifth Circuit's conclusion in Great American, still treat Vail as controlling law.

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