When Houston, Texas, received over five feet of rain from Hurricane Harvey in August 2017, authorities at the nearby Lake Conroe dam decided to open the spillways and release a massive amount of water. The release rate was extremely powerful and similar to that of Niagara Falls.
This action resulted in the water moving counterclockwise, much like a drain in a sink or bathtub, which loosened and pushed boats, uprooted trees and various other debris into the Playa Vista Conroe Condominiums boat dock slips. Twenty-two slips were damaged overall, leading the condominium association to make a $208,177.44 claim against its insurance company. The claim was denied by Insurance Company of the West, which stated that damage from a hurricane was not included in the policy.
On March 5, 2021, the 5th Circuit Court of Appeals ruled that Insurance Company of the West must pay the Playa Vista Conroe condominium association $190,827.50 for the boat dock damage caused by the hurricane. In addition, the insurer was ordered to pay the $50,000 in legal fees incurred by the condo association. Judge Andrew Oldham openly criticized the insurance company's legal team, stating its argument was "absurd" and created simply to deflect mistakes it had made during the litigation process.
The court statement revealed that Insurance Company of the West wrote its insurance contracts in such a way to avoid any burden of proof. Under Texas law, there exists a framework of "burden shifting" where the insured party is obligated to establish coverage, but the insurance company itself is obligated to prove there is any applicable exception.
The court also established that the insurance company sold a policy that excluded damage from flooding due to tropical storms and hurricanes to Playa Vista Condominiums. In the policy, "flood" was defined as "inundation of water on typically dry land." While the insurer paid an extra endorsement fee for damage from flooding, it also had an exclusion for flood damage to the docks and boat slips.
It was not clear why Insurance Company of the West had created the policy in such a way to exclude damage claims to property that is situated on water and not on land. The court determined that since the insurer was responsible for the way the policy was written, it would have to suffer the consequences of the language it chose.
When the Playa Vista condominium association filed its lawsuit, Insurance Company of the West had the case moved to the US District Court for Southern Texas, located in Houston. In an affidavit, Robert Copes, the president of the condo association, said the boats weathered the direct rainfall from Hurricane Harvey but were later damaged by the suction effect created when the San Jacinto Water Authority ordered the water release from Lake Conroe. The suction resulted in mass amounts of debris being pulled in from every part of the lake, which caused the boat slips to be destroyed.
The insurance company decided not to challenge the testimony from Robert Copes but instead enter into a stipulation with Playa Vista Condominiums that stated the damage was directly caused by the water release instead of the hurricane.
After the condominium association received a summary judgment in its favor, the insurance company filed its own motion for a summary judgment. It presented an argument for dismissal of the case because Playa Vista admitted that the boat slip destruction was caused by a body of government, which was not covered by the insurance policy.
Despite this argument, the 5th Circuit Court did not accept that Insurance Company of the West had established a victory by way of a legal loophole. The court said the effort was "too little, too late," and if the insurer wanted to win the case through "exclusion of a governmental body," it had the obligation to raise the issue during the summary judgment phase of the trial.
Hurricane Harvey caused more than $125 billion in damage during its life cycle, the majority of which was caused by torrential rains in the greater Houston area and along the southeast coast of Texas. A total of 106 people lost their lives, and the name "Harvey" was retired from the list of storm names in 2018.
U.S. firms continue to mask up in Texas despite the rollback of its statewide mask mandate. Target Corp, Macy's, General Motors, and Toyota Motor plan to keep Covid-19 safety protocols in place regardless of Governor Greg Abbott's move to lift the mask requirement and fully reopen the state for business.
As of Wednesday, Texans will no longer be subject to a statewide mandate to wear masks in public. All businesses have the go-ahead to resume operations at full capacity with protections in place to prevent residents from being penalized for not wearing a mask.
Despite Abbott's executive order, most major U.S. firms operating in the Lone Star State have no plans to enact any changes to their current safety precautions. Many companies voiced their intent to continue requiring both employees and customers to wear a face-covering or mask while on the premises.
Pushback from city and county leaders across the state is widespread. Major companies, retailers, health care providers, and other customer-facing organizations intend to disregard the Governor's mandate and keep COVID-19 safety measures in place. Most plan on sticking with their current procedures to combat COVID-19 transmission, which is in line with guidance from the Centers for Disease Control and Prevention (CDC).
The Retail Industry Leaders Association's vice president of communications and state affairs, Jason Brewer, voiced his frustration with lifting the mask requirement. "Relaxing common-sense, non-intrusive safety protocols like wearing masks is a mistake," Brewer said. He insisted that removing the mask ban "will unfairly put retail employees back in the role of enforcing guidelines still recommended by the CDC and other public health advocates."
Even if vaccinated, individuals are still capable of transmitting COVID-19 asymptomatically. Public health officials continue to recommend masks, social distancing, and frequent hand washing as the best way to minimize transmission. Such guidance influences corporate entities' response in dealing with inconsistent mask mandates between state and federal governments. In lieu of consistent messaging across the state lines, industry groups are choosing to follow federal guidelines, even if doing so marks a return to mask wars that were prevalent at the start of the pandemic.
The National Retail Federation (NRF) responded to Governor Abbott's lifting of the mask mandate with a statement reiterating businesses' rights to create their own policies regarding COVID-19. "Retail stores are private entities," said Bill Thorne of the NRF, "if they require you to wear a mask in their stores, and you choose not to, that store can refuse admission or service."
Big-box retailer Target said it would enforce the use of masks and face coverings throughout all of its stores and premises, for employees as well as guests. Texas is no exception. Target plans to continue providing its store teams with reusable and disposable masks in order to maintain the current status quo, even as vaccinations increase. "Those who have been vaccinated for coronavirus are still required to wear a mask and follow all social distancing guidelines," a Target spokesperson said, which would keep the corporation's safety protocols "in line with current CDC guidance."
Macy's department stores are operating on the presumption that all workers and customers will need to mask up in office and retail space for the near future. No changes are expected in regards to the mask ban being lifted.
GM spokesperson Patrick Morrissey echoed the sentiment and reiterated, "We'll keep our COVID-19 safety protocols in place to ensure we continue to protect our employees." GM employees number about 13,500 in the state of Texas. All staff and workers will be asked to mask up at work, despite the Governor's mandate.
Toyota's 7000 Texas employees are also expected to follow suit at its San Antonio plant and Toyota headquarters in Plano. "The early read is - no change for us," according to Toyota's spokesperson, Scott Vazin. Senior leadership at Toyota is currently reviewing the mandate with no word on any expected change to its policies.
The use of masks or facial coverings will continue to be enforced on all federal properties in Texas. A majority of U.S. states, including the District of Columbia and Puerto Rico, are currently under state-imposed public mask mandates. As of last year, Mississippi, Montana, Iowa, and North Dakota do not require residents and visitors to mask up within their state borders.
Steps that owners of trucking fleets can take to help avoid big-rig accidents. As an employer, taking steps to maintain a safe truck fleet is top priority. It ensures that your employees are healthy, other motorists on the road aren't at risk, and that your bottom line wont be impacted by a tragic accident. Below are tips to minimize risk and keep your truck drivers safe on the roads.
In some instances, when a driver is in a truck accident, the employer may be held responsible, especially if they failed to keep their trucks up to safety and maintenance standards. A trucker has a duty to drive in accordance with safety standards and report any deviations in unsafe driving. If an employer allows drivers to drive beyond their safety standard and neglects to remove the problem, the drivers injuries are almost always their own fault.
It should go without saying, but every driver on the road must follow safety standards. Truck drivers have a vital role to play in keeping truck accidents to a minimum.
The following are 6 tips for employers which first appeared at the law blog at dolmanlaw.com: