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Vol. 3, Iss. 8
May 7, 2014

Justice Don Willett:
The Most Important Liability Insurance Coverage Judge In America

In any ranking of anything, be it left-handed second basemen or Seinfeld episodes, someone or something always has to be number one. So if there were a ranking of important liability insurance coverage judges in America, someone would have to hold the top stop. If such a list really did exist, I believe that Texas Supreme Court Justice Don Willett would be deserving of it.

Obviously, this is an incredibly subjective and unscientific conclusion on my part. And when I say my part I really mean my part. I reached this conclusion without asking anyone else for their opinion, there was no committee convened and nor was any vote taken. But I did give the subject serious thought, undertook a lot of research and used some objective considerations. So, for these reasons, I believe that my conclusion – while entirely unscientific -- at least has more validity than Country Living magazine’s conclusion that Big Butz Original is the best tasting barbecue sauce in America.

Here’s how I reached this conclusion.

First, the judge has to come from the state system. The most important insurance coverage judge in America could not be from the federal system since insurance coverage is entirely within the province of state law. When it comes to a coverage case, federal judges are only tasked with following or predicting state law. And, of course, such a judge must sit on his or her state’s highest court. So the most important insurance coverage judge in America is quickly and easily narrowed down to a state Supreme Court Justice. [True, some state high courts do not call their judges “Justice.” To keep it simple I’m overlooking, but am not unmindful of, this distinction.]

OK. That was the easy part. Now it gets trickier. On which state supreme court does the most important liability insurance coverage judge in America sit? To make this decision I considered a few things: states by population; how frequently a supreme court hears liability coverage cases; and whether a supreme court influences other courts nationally. This last one is clearly a non-provable conclusion and more along the lines of I know an influential court when I see one. However, it is something about which I have a good “gut sense” -- based on looking at thousands of liability coverage cases a year. This I do between my practice and for purposes of writing “General Liability Insurance Coverage: Key Issues in Every State” and Coverage Opinions.

Based on these three criteria I narrowed down the list to the following supreme courts: California and Texas. With all due respect to every other supreme court justice in America, these two states simply have too great of a percentage of the total U.S. population: California (12%) and Texas (8%) (2010 census). As such, their decisions potentially affect the most number of people. I also considered that Texas’s population is growing at a much faster clip than California’s. What’s more, the California and Texas Supreme Courts also fared very well in the other two categories. Both courts hear a good deal of liability coverage cases and both issue decisions that influence other courts nationally.

The next step was to choose between the California Supreme Court and the Texas Supreme Court. I did a lot of thinking here and looked at many factors. In the end I chose Texas for a few reasons. The Texas Supreme Court hears more liability coverage cases than California’s top court. This makes sense since the Texas Supreme Court is not bogged down with criminal cases. This is because Texas in fact has two top courts – one for civil cases (the Supreme Court) and a separate one for criminal cases (The Court of Criminal Appeals). In addition, the Fifth Circuit punts liability coverage cases to Austin now and then. This adds to the number of such cases that get before the Texas Supreme Court. [Why does Texas have two top courts when just about every other state has one? Because everything is bigger in Texas.]

But even if the difference between Texas and California, in number of liability coverage cases heard, is not significant, the Texas Supreme Court has issued many more decisions than its California counterpart when it comes to coverage for construction defect – the number one liability coverage issue for the past decade-plus and showing no signs of slowing down. Indeed, the California Supreme Court has not addressed the fundamental issue in construction defect -- whether faulty workmanship constitutes an “occurrence” (unless you count a brief 1959 decision with minimal analysis). Nor has the California Supreme Court addressed “trigger of coverage” for purposes of construction defect (Montrose is used in this area -- but it is not a CD case). The Texas Supreme Court has addressed both of these issues in detail.

I am aware that the California Supreme Court’s decisions in Buss and Montrose are granddaddies of liability coverage. If there were an insurance coverage Mt. Rushmore these two opinions would be chiseled in granite (and it would hopefully be located in a more convenient place than South Dakota). But two decisions, from seventeen and nineteen years ago respectively, and even a few others, were not enough to get California over the finish line. Also consider that trigger of coverage for latent injuries is well-settled nationally. So while Montrose is perhaps the most important liability coverage case ever, it is riding off into the sunset on trigger. Not to mention that Montrose’s influence on “known loss” is all but gone on account of the so-called Montrose Endorsement designed to circumvent the case’s holding.

As an example in the Texas Supreme Court-influence category, last year one of the biggest liability insurance coverage stories was that three state supreme courts (West Virginia; North Dakota; and Georgia) overruled prior decisions (which weren’t that old either) to now hold that an insured’s faulty workmanship can amount to an “occurrence” under a commercial general liability policy. All three of these high courts cited to the Texas Supreme Court’s 2007 decision in Lamar Homes, Inc. v. Mid-Continent Casualty as support for their ruling. [Admittedly, Justice Willett was in the dissent in Lamar Homes, but that does not take away from the influence of the court itself.]

So the final step in determining the most important liability insurance coverage judge in America was to choose between the nine Justices who sit on the Supreme Court of Texas. Justice Willett is fourth in seniority (joining the court in 2005). However, the two Justices directly ahead of him have been on the court for nearly the same amount of time as him. So, as a practical matter, Justice Willett is in a three-way tie for second place in the seniority category. The most seniority title belongs to Chief Justice Hecht, joining the court in 1988. The five remaining Justices have been on the court for between four and eight years fewer than the group of three tied for second place. The seniority of these four Justices sufficiently separated them from the other five to take these five out of the running.

Now the task came down to choosing among these four most senior Justices on the court: Chief Justice Hecht and Justices Willett, Green and Johnson. I asked the obvious question. Does one of them have a winning record in coverage cases that is significantly different than the other three? If so, this Justice would presumably be the most important. To check this I looked at (I think) every liability insurance coverage decision handed down by the Texas Supreme Court that involved all four Justices (excluding per curium). In other words, I looked at all cases involving disputes under general and professional liability policies since the time that Justice Willett, the least senior of this group, joined the court. I excluded auto coverage decisions, except for a couple where the same issue could arise under a general liability policy. All together I looked at 20 decisions that fit into this category.

These four Justices were on the winning side as follows (ignoring, for this exercise, opinions that concurred in only certain parts of a majority opinion): Chief Justice Hecht: 15 decisions; Justice Green: 18; Justice Johnson: 17; and Justice Willett: 17. My conclusion here is that the differences in these Justices’ voting records, in the who-gets-it-right category, is statistically insignificant. The only real difference in their voting records is that Chief Justice Hecht has voted in umpteen more coverage cases, given his many more years on the court than his three other colleagues.

Based on his extensive experience I could have easily given the title of most important liability insurance coverage judge in America to Chief Justice Hecht – and declared the other three tied for second place. However, I couldn’t get away from Justice Willett’s youth in my analysis. He was born in 1966. Chief Justice Hecht, Justice Green and Justice Johnson were born in 1949, 1952 and 1944 respectively. [The youngest of the other five Justices (Justice Jeff Brown) was born in 1970. However, he has been on the court for just seven months.]

Being so young, not to mention with nine years as a Justice already under his belt, and an expressed desire to remain on the court for the long-term, provided the voters agree, Justice Willett has the ability to influence more Texas Supreme Court liability insurance coverage decisions in the future than any other Justice. And this is not based solely on potential longevity, but also for being the Court’s most separate writer (but not without serious consideration before putting pen to paper on a concurring or dissenting opinion). And with the Texas Supreme Court’s decisions frequently serving as guidance for other courts around the country, Justice Willett’s influence could stretch beyond the Lone Star State for many years to come.

There you have it – the rationale for my completely unscientific conclusion that Texas Supreme Court Justice Don Willett gets the nod for the most important liability insurance coverage judge in America. [As a aside, I just ordered a bottle of Big Butz Original Barbecue Sauce. For real. I did. And you can too at http://bigbutzbbqsauce.net.]

Here are a few of Justice Willett’s liability insurance coverage decisions. As you’ll see, the decisions rule in favor of both insurers and policyholders. Don’t judge a judge by his cover-age.

• National Union v. Crocker, 246 S.W.3d 603 (Tex. 2008) (Willett, J.) (“Insurers owe no duty to provide an unsought, uninvited, unrequested, unsolicited defense. [W]e decline to impose an extra-contractual duty on liability insurers that would force them to keep track of potential litigants who may or may not be additional insureds, may or may not be entitled to coverage, and may or may not expect a defense to a claim. Accordingly, because insurers need not provide coverage to additional insureds who never seek it, National Union had no duty either to inform Morris of available coverage or to voluntarily undertake a defense for him, and its actual knowledge did not establish lack of prejudice as a matter of law.”)

• Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20 (Tex. 2008) (Willett, J. -- I wonder why he was chosen to write this opinion) (rejecting a manifestation trigger and adopting an actual injury or injury-in-fact trigger for purposes of construction defect claims)

• Pine Oak Builders, Inc. v. Great Am. Lloyds Ins. Co., 279 S.W.3d 650 (Tex. 2009) (Willett, J.) (following Don’s Bldg. Supply on trigger and addressing duty to defend: “In deciding the duty to defend, the court should not consider extrinsic evidence from either the insurer or the insured that contradicts the allegations of the underlying petition. The duty to defend depends on the language of the policy setting out the contractual agreement between insurer and insured.”)

• Tanner v. Nationwide, 289 S.W.3d 828 (Tex. 2009) (Willett, J.) (holding that an intentional-acts or intentional-injury exclusion under an automobile policy required intentional damage and not just intentional conduct) (“We understand the appeal of a broader exclusion that would withhold coverage for, as Nationwide’s predecessor policy put it, ‘willful acts which can be reasonably expected to result in damage or injury.’ But Nationwide replaced that test with the more restrictive version that controls today’s case. We must construe the policy as written, not as we might have written it nor as Nationwide once wrote it.”)

• Lamar Homes, Inc. v. Mid-Continent Casualty, 242 S.W.3d 1 (Tex 2007) (holding that faulty workmanship can constitute an “occurrence”) (Brister, J. dissent) (Willett, J. joining) (“The Court’s conclusion . . . turns the construction industry on its head. Instead of builders standing behind their subcontractors’ work and making necessary repairs, the Court shifts that duty to insurance companies. Every crack, stain, dent, leak, scratch, and short-circuit arising from a subcontractor’s work (which will be most of them) must be repaired by the builder’s insurer, who may have to pay the builder to repair its own home. Why should builders avoid unqualified subcontractors if their insurers (and other policyholders) will pay the consequences? No one really believes this is what the parties intended—that for a $12,005 annual premium the insurer agreed to repair all damage to every home Lamar Homes had ever sold (at the rate of almost $3 million annually). As that is precisely what the Court holds today, I respectfully dissent.”)


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