Plaintiff is an automobile dealership who formerly owned and held a lien on the automobile identified as a 2001 BMW 540i automatic, 4-door sedan.

Defendant Ahmad Elnumeiri, who was not the rightful owner of the Automobile, sought to have repair work performed on the automobile at the Car King Auto Center.  Defendant Car King performed repair work on the vehicle even though Elnumeiri was neither the rightful owner, nor listed on the title.

Upon Elnumeiri’s failure to pay for the repairs, Car King Auto Center improperly seized the vehicle and sold it.  Plaintiff complained to Car King Auto Center and provided written notice of its lien on the automobile and of pending litigation.  Plaintiff filed suit against Defendants and Defendants denied such complains and denied all wrongdoing in connection with the conversion of the automobile.

Injury

AutoSpec owned the 2001 BMW 540i automatic, 4-door sedan.  Elnumeiri and Car King wrongfully exercised dominion or control over the vehicle.  AutoSpec suffered injury as a result of Elnumeiri and Car King’s actions, and sought recovery for the following:

1. Economic damages, including but not limited to loss of value;
2. Exemplary damages;
3. Pre-judgment interest;
4. Post-judgment interest;
5. Court costs; and
6. Attorneys’ fees and expenses of litigation.

Demand was made to Defendants for $18,000.00.

Verdict Information

$17,200 ($5,200 actual damages, plus $12,000 in attorneys’ fees)

Insured builder sought a declaratory judgment that commercial general liability (CGL) insurer owed duty to defend and indemnify insured in homeowners’ suit alleging construction defects. The United States District Court for the Western District of Texas, Lee Yeakel, J., 335 F.Supp.2d 754, granted summary judgment in favor of insurer. Insured appealed. The Court of Appeals, 428 F.3d 193, certified questions.

Vincent and Janice DiMare purchased a new home from Lamar Homes, Inc. and several years later encountered problems that they attributed to defects in their foundation. The DiMares sued Lamar and its subcontractor complaining about these defects. Lamar forwarded the lawsuit to Mid-Continent Casualty Company seeking a defense and indemnification under a commercial general liability or CGL insurance policy. Mid-Continent refused to defend, prompting Lamar to seek a declaration of its rights under the CGL policy. Lamar also sought recovery under article 21.55 of the Texas Insurance Code.

On cross motions, the federal district court granted summary judgment for Mid-Continent, concluding it had no duty to defend Lamar for construction errors that harmed only Lamar’s own product. Lamar Homes, Inc. v. Mid-Continent Cas. Co., 335 F.Supp.2d 754 (W.D.Tex.2004). The court reasoned that the purpose of a CGL policy is “to protect the insured from liability resulting from property damage (or bodily injury) caused by the insured’s product, but not for the replacement or repair of that product.”Id. at 759.Noting disagreement among Texas courts about the application of the CGL policy under these circumstances, the Fifth Circuit has asked us to resolve the conflict.

Verdict Information

The Supreme Court, Medina, J., held that:

1. builder’s allegedly defective construction or faulty workmanship in building house foundation was occurrence;
2. cracks in sheetrock and stone veneer allegedly as result of defective construction or faulty workmanship in building foundation were property damage; and
3. an insured’s claim against liability insurer for defense costs is a “first party claim” within the meaning of the prompt payment statute making the insurer liable for interest and attorney fees if it does not promptly respond to or pay first party claim, abrogating TIG Insurance Co. v. Dallas Basketball, Ltd, 129 S.W.3d 232,Summit Custom Homes, Inc. v. Great Am. Lloyds Ins. Co., 202 S.W.3d 823, Utica Cas. Co. v. Allied Pilots Ass’n, 187 S.W.3d 91, Serv. Lloyd’s Ins. Co. v. Jc. Wink, Inc., 182 S.W.3d 19.

The accident report indicates that the automobile accident occurred at approximately 7:21 p.m. The report also indicates that Gateway West is a one-way, three-lane roadway that runs west along 1-10. Plaintiff Mario Bejarano, in his 1995 red Saturn, was traveling westbound along Gateway West. The accident report indicates “witnesses stated that Unit #1 had been traveling at a high rate of speed and lost control after going over the mud pile on the Gateway. Unit #1 veered to the left and struck the south curb and went into the rock median then rolled over numerous times.” The accident was originally reported as a death case to police when the accident happened. A priest was called to come to the scene and performed last rites.

Plaintiff admittedly sustained brain injury after the accident with a Glascow Coma Scale of 4. He underwent a frontal crainomity and was diagnosed with multiple scalp lacerations for the open depressed skull fracture in the left frontal region. Plaintiff was hospitalized for 45 days at Thomason Hospital and Del Sol Rehabilitation in El Paso, Texas. Priest was called and performed last rites at hospital.

Verdict Information

Jury awarded $121,600 to Plaintiff, based on finding that Border Mechanical was 20% at fault and based on total damage award of $608,000