Jones Day Wins Significant Insurance Victory For Total Petrochemicals In The Texas Supreme Court

LAWFUEL – Legal Newswire –
On February 15, 2008, the Texas Supreme Court, reversing itself, handed down a significant decision favoring insureds in coverage disputes and rendered judgment of $5.75 million for Total Petrochemicals USA, Inc. Evanston Insurance Co. v. Atofina Petrochemicals, Inc. (n/k/a Total Petrochemicals USA, Inc.), Case No. 03-0647, 2008 WL 400394 (Tex. 2008).

The Supreme Court’s opinion contains a number of significant rulings for Texas insureds, the foremost of which is that an insurer who wrongly denies coverage cannot later contest the reasonableness of the insured’s settlement.

Atofina sought coverage as an additional insured on a contractor’s primary and excess umbrella policies following litigation resulting from the death of the contractor’s employee. The excess carrier, Evanston, denied coverage. Atofina settled the underlying wrongful death claim and sued Evanston to recover the settlement amount. The Texas Supreme Court initially held that while Atofina was an insured, coverage depended on whether Atofina was solely negligent. The Court later granted Atofina’s Motion for Rehearing, vacated its earlier opinion, and rendered judgment for Atofina for the full amount of the settlement.

The Court’s ruling precluding a breaching insurer from challenging the reasonableness of a settlement entered into by the insured will substantially streamline coverage litigation and facilitate settlements in cases where coverage remains in controversy. The opinion also clarifies the relationship between indemnities and additional insured provisions by holding that the scope of coverage afforded to an additional insured is determined by the language of the policy alone and is not limited by the scope or enforceability of any indemnity agreement entered into by the contractor.

Total was represented by Jack Carnegie of Jones Day’s Issues & Appeals group and John Hagan of the Jones Day Trial Practice group, both in the Houston office.


Class Action Litigation On Behalf Of Purchasers of ChoiceDek Decking Products

SEATTLE, Feb. 27, 2008 LAWFUEL – Litigation Newswire — A consortium of law firms announce that they filed a nationwide class action lawsuit on behalf of all purchasers of Weyerhaeuser ChoiceDek(r) decking products. The Plaintiffs filed their suit in the United States District Court for the Western District of Washington in Seattle against Weyerhaeuser Company
(NYSE:WY) (ChoiceDek(r) seller); Advanced Environmental Recycling
Technologies, Inc. (Nasdaq:AERT) (ChoiceDek(r) manufacturer); and
Lowe’s Companies, Inc. (NYSE:LOW) (ChoiceDek(r) retailer)
(collectively, the “Defendants”).

ChoiceDek(r) is a composite material, primarily composed of wood fibers
and recycled plastic, used in residential decking throughout the United
States. The Defendants have sold hundreds of millions of dollars of
this product since it was first introduced into the market. The
Plaintiffs’ legal complaint alleges that ChoiceDek(r) is defective
because it develops extensive and recurring mold and mildew stains due
to inherent manufacturing flaws and that Defendants fraudulently
advertised the product as being “low maintenance” despite having
knowledge of these problems.

The Plaintiffs contend that although the products are promoted as
“virtually moisture proof,” they are, in fact, highly susceptible to
moisture in the outdoor environment. Additionally, the manufacturer of
ChoiceDek(r) acknowledges that it utilizes “contaminated” recycled
plastic that it fails to adequately clean, which introduces food waste
into the decking boards.

The Plaintiffs are seeking an injunction that would require the
Defendants to honor the warranty that comes with the product and
replace defective decks or provide consumers with refunds.
Alternatively, Plaintiffs are seeking compensatory and punitive
damages.

The law firms that filed the lawsuit are Cohen, Milstein, Hausfeld &
Toll, P.L.L.C. (Washington, DC); Keller Rohrback L.L.P. (Seattle, WA)
and Gary, Naegele & Theado, LLC (Lorain, OH). These firms have
successfully represented consumers in hundreds of class actions across
the United States.

For more information please contact attorney Mark Griffin at (206)
623-1900 or at mgriffin@kellerrohrback.com. You may also view a copy of
the complaint via our website at: www.krclassaction.com.

More information on this and other class actions can be found on the
Class Action Newsline at www.primenewswire.com/ca.

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