Designated for publication
- U.S. v. Clark, 19-10186, appeal from N.D. Tex.
- Costa, J. (Higginbotham, Costa, Oldham), criminal, garnishment
- Affirming district court’s garnishment order on defendant’s brokerage account and IRA account funds, as not being “income” necessary to comply with child support orders.
- After examining the distinction between “income” and “assets,” the Court held that “the child-support exemption only applies to money akin to salary and wages—meaning amounts received directly for labor such as bonuses, tips, commissions, and fees,” and therefore did not include the liquidation of a brokerage account or retirement account to pay for child support.
- American Guarantee and Liability Insurance Co. v. ACE American Insurance Co., 19-20779, appeal from S.D. Tex.
- Jones, J. (Jolly, Jones, Willett), insurance
- Affirming district court’s judgment that primary insurer, ACE, violated its Stowers duty to accept a settlement within the policy limits, and that ACE therefore owed the secondary insurer for its share of the eventual settlement.
- ACE had rejected settlement demands of $1.9 to $2 million (the primary policy limit was $2 million), where its insured had been sued for causing the death of bicyclist. The jury awarded $40 million, which, after reduction for the underlying plaintiff’s comparative fault, was reduced to $28 million, with the parties eventually agreeing to settle for $10 million.
- “Under Texas law, the Stowers duty requires an insurer to exercise ordinary care in the settlement of claims to protect its insureds against judgments in excess of policy limits. … The Stowers duty is not activated by a settlement demand unless: (1) the claim against the insured is within the scope of coverage, (2) there is a demand within policy limits, and (3) the terms of the demand are such that an ordinarily prudent insurer would accept it, considering the likelihood and degree of the insured’s potential exposure to an excess judgment. Further, Stowers applies only when the settlement’s terms [are] clear and undisputed. The offer must also be unconditional and cannot carry[] risks of further liability.” (Internal quotation marks and citations omitted).
- The third of three offers was phrased by the underlying plaintiffs’ counsel as an “unconditional offer to settle within the primary policy limits represented to us to be applicable to any judgment rendered in this case to settle any and all claims that were asserted or could be asserted in the above-referenced matter for the total sum of $2,000,000.00.” The Court held that this offer triggered the Stowers duty, rejecting the argument that the need for the mother to gain court approval of the settlement on behalf of her children rendered the offer conditional. “[W]e perceive no inherent ex ante conflict, and thus no ‘conditionality’ precluding the Stowers duty, where a lump sum settlement offer is accepted on behalf of parents and children. In such circumstances, the issue of fairly dividing the proceeds arises only after the settlement is agreed upon, and Texas courts have the duty to scrutinize the apportionments.”
Unpublished
- Gutierrez v. Lumpkin, 19-11271, appeal from N.D. Tex.
- per curiam (Dennis, Southwick, Engelhardt), frivolous
- Dismissing as frivolous appeal from dismissal of mandamus action arising from plaintiff’s commitment at state hospital.
- U.S. v. Garansuay, 19-50964, appeal from W.D. Tex.
- per curiam (Higginbotham, Costa, Oldham), criminal, sentencing
- Affirming concurrent 240- and 300-month sentences on guilty plea to conspiracy to interfere with commerce by threats or violence and conspiracy to possess with intent to distribute methamphetamine and heroin.
- Morales-Padilla v. Wilkinson, 19-60928, petition for review of BIA order
- per curiam (Wiener, Southwick, Duncan), immigration
- Denying Honduran citizen’s petition for review of BIA denial of his appeal of IJ dismissal of application for asylum, withholding of removal, and protection under the Convention Against Torture.
- U.S. v. Reed, 20-10470, appeal from N.D. Tex.
- per curiam (Wiener, Southwick, Duncan), criminal
- Affirming conviction of possession of a firearm by a convicted felon, possession with intent to distribute a controlled substance, and conspiracy to possess with intent to distribute a controlled substance.
- U.S. v. Stamper, 20-30360, appeal from W.D. La.
- per curiam (Davis, Stewart, Dennis), criminal, supervised release
- Denying as unripe and therefore for lack of jurisdiction defendant’s challenge to terms of his supervised release while still incarcerated.
- U.S. v. Miller, 20-30512, appeal from W.D. La.
- per curiam (Davis, Stewart, Dennis), criminal
- Affirming district court’s dismissal for lack of jurisdiction of defendant’s postjudgment motion challenging his 2008 restitution order.
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