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May 2023

Gordon & Rees Dallas Team Wins 2% Defense Verdict Through Comparative Fault and the "Excessive Demand" Defense

The Gordon & Rees Dallas trial team consisting of Partner Bob Bragalone and Senior Counsel Ryan Fellman greatly reduced damages payable by the firm's clients, an insurance agency and its former agent, in a week-long jury trial for a professional liability claim.

During this trial in Jefferson County (Beaumont), Texas, a notoriously pro-plaintiff venue, the firm's clients were accused of having failed to procure a homeowners’ policy for the plaintiffs before Hurricane Laura caused significant damage to their home. The plaintiffs alleged that the agent failed to even obtain a quote, let alone a policy.   

Facing a spoliation instruction due to the agency’s inability to locate information that the agent testified she recorded when she procured the policy, Gordon & Rees embraced the challenge of defending the agency and its agent against claims of breach of contract, breach of fiduciary duty, negligent misrepresentation, fraud, deceptive trade practices, violations of the Texas Insurance Code, and gross negligence. 

At trial, the plaintiffs asked the jury to award them $900,000 for mental anguish under the Deceptive Trade Practices Act and more than $260,000 for attorney’s fees, for a total of approximately $1.5 million. The Gordon & Rees team argued the often-overlooked affirmative defense of “excessive demand,” which allows a jury to decide whether a pre-suit demand was unreasonable or made in bad faith, wiping out the ability to recover attorney’s fees.

The firm's team succeeded in the affirmative defense of unreasonable demand that wiped out the fees and managed to place comparative fault on the plaintiffs themselves. After application of proportionate liability and a settlement credit, the jury’s verdict against Gordon & Rees' clients amounted to less than $44,000 or approximately two percent of the claims.

Robert A. Bragalone
B. Ryan Fellman