wpe6.jpg (85173 bytes)Structured Settlements


Damages recovered for personal injuries are excluded from this for tax purposes

What is gross income?



This tax hazard can occur when the plaintiff has too much control over structured funds.

What is constructive receipt?



Persuading the carrier to label a seriously injured beneficiary this way can significantly increase a structure’s payout

What is as a rated up risk?



Of present value, actual cost and guaranteed payout, the measure which should be used to calculate a contingent fee on a structured settlement

What is actual cost?  (except where present value is lower)



This transfer of an obligation to make fixed periodic payments in exchange for release is governed by Internal Revenue Code 130

What is a qualified assignment?


Liability Insurance Policies


Absent a “consent clause,” a liability insurer enjoys this absolute right in conjunction with its duty to defend

What is settle within policy limits?



This provision in a professional liability policy lowers policy limits if the insured refuses to consent to a proposed settlement.

What is the “hammer clause?”





This provision in a liability policy requires the insured to assist in the investigation and defense of a claim

What is the cooperation clause?



What a carrier must establish in order to deny a claim due to late notice.

What is prejudice?



Per Texas Farmers Ins. v. McGuire, these doctrines do not create coverage where none existed in the contract of insurance.

What are waiver and estoppel?


Conflicts of Interest


This 1973 decision held a defense attorney's duty to the client trumps the interests of the carrier paying for the defense.

What is Employers Casualty Co. v. Tilley?



The two things a lawyer must do to ethically represent both the driver and passenger in an auto collision injury case.

What is believe that the representation of each client will not be materially affected and get their consent?



The advice which an insurance defense counsel must give to an insured who wants to cooperate with the plaintiff to “set up” the carrier.

What is “hire independent counsel?”



The advice which an insurance defense counsel can freely give when an insured seeks advice about coverage issues ?

What is none at all, or “get independent counsel”





The TRCP-prescribed compensation for an ad litem appointed to resolve a potential conflict between a minor and next friend.

What is a reasonable fee taxed as costs 


Insurance Code Deadlines


Under Art. 21.55, an insurer that has notified a claimant that it will pay all or part of the claim must do so no later than this interval after the notice.

What is five business days?



The time an insurer has to notify its insured in writing of an offer to settle a claim against the insured.

What is ten days after the offer? Art. 21.56



After proof of loss, the time an insurer has to give written notice that it accepts or rejects a valid claim.

What is fifteen business days?  Art. 21.55



The time an insurer has to notify its insured in writing of a settlement of a claim against the insured.

What is thirty days after the settlement?  Art. 21.56



An insurer’s failure to meet the deadlines of Art. 21.55 entitles the claimant to the amount of the claim, reasonable attorneys fees and this as damages.

What is 18% per annum of the amount of the claim?


Rights of Third Parties


Though similar to MedPay coverage, this auto policy benefit does not create a right of subrogation.

What is Personal Injury Protection (PIP) Coverage?




One of two entities whose subrogation rights are sometimes called “Superliens.”

What is Medicare or Medicaid?



The workers compensation carrier’s right with respect to settlement funds in excess of subrogation, fees and costs.

What is a credit or offset against future benefits?



Two things a lawyer receiving funds in which a client or third party has an interest must promptly do after notifying the client and third party.

What is deliver the funds to the client/third party and render a full accounting?



This rule can be used to block a claim for common law subrogation when the plaintiff's compensation is insufficient.

What is the “Made Whole” doctrine?


Settlement Credits


The settlement credit method that applies when conflicting elections are made

What is the sliding scale?



By 1995 amendment to the Civ. Pract. & Rem. Code, it's required before submission of a settling person's conduct to the jury.

What is “sufficient evidence to support the submission?”  



If a sliding scale election is made, the sum that is credited against a one million dollar verdict?

What is $145,000

5% of damages to $200,000

10% of damages from $200,001 to $400,000

15% of damages from $400,001 to $500,000 and

20% of damages greater than $500,000.



In the 1999 Drilex case, the Tx. S. Ct. treats all family members asserting derivative claims as this.

What is “one claimant?”



Under the Utts decision, to seek a credit for settlement with a non-party, the amount of settlement must be of record and this must be alleged. 

What is "a benefit to non-settling claimants?"


wpe9.jpg (83117 bytes)Double Jeopardy


Fee Agreements


An oral fee agreement is permitted between a lawyer and client,
with this exception?

What is a contingent fee?

Ethics Rules 1.04



Ethically-speaking, this lawyer can collect attorney’s fees without doing any work on the client’s behalf.

What is a “forwarding” lawyer?

Ethics Rules 1.04(f)



A contingent fee agreement signed by the client but not the lawyer is this if not fully performed

What is voidable and unenforceable
Tex. Gov't Code Ann. 82.065; Sanes v. Clark , 25 S.W.3d 800
Tex. App.-Waco 2000, pet. denied)



A modification of the attorney employment agreement made in the course of representation is presumed to be this

What is tainted with fraud on the part of the attorney?



Per Texas Ethics Opinion 542, a “fixed fee” arrangement between an insurer and defense counsel must be based on this?

What is “defined stages of representation in the liability defense?”


Do You Know your Arce from your Elbow


The cause of action at the heart of Arce v. Burrow

What is Breach of Fiduciary Duty



The fearsome remedy recognized by the Texas Supreme Court in Burrow v. Arce

What is Fee Forfeiture?



Under Arce, it’s what’s required to prove causation after breach of fiduciary duty has been shown

What is nothing at all?



Of “nature of the wrong,” “degree of culpability,” “adequacy of other remedies” & “amount of attorney fee,” the one not a factor for a court deciding fee forfeiture

What is amount of the attorney fee?



The remedial options available to a  jury for a breach of fiduciary duty

What is none?  Only the trial court can determine issues of equitable remedies


Beginning with “S”


What Texas lawyers call the claimant’s offer to settle a claim within policy limits

What is Stowers Demand?



A hospital lien for first confinement is only valid when treatment   commences within this interval after injury

What is seventy-two hours



Medical insurers may possess this legal right requiring resolution in connection with settlement

What is subrogation?



Per DR 106(a), an attorney may not represent opposing parties to this

What is the same litigation?



In addition to A.M. Best, this rating service should be consulted when gauging the financial stability of an annuity carrier

What is Standard & Poors?


Privileged and Confidential


Insurance defense counsel may keep the insurer reasonably informed, but must get the insured’s consent before sharing this

What is confidential client information? (Privileged and unprivileged)



Insurance defense counsel must get this before submitting a descriptive fee billing to a third-party auditor

What is the client’s informed consent?



The only instance when, absent client consent, defense counsel may be permitted to reveal client confidences to the carrier

What is “when necessary to prevent the client from committing a criminal or fraudulent act?”



The ‘great’ name used to describe a mandatory separation between in-house coverage counsel and captive defense counsel

What is Chinese Wall?



Communications between attorney and client must always have this character before they can be considered privileged

What is confidential?


Odds and Ends


The banned settlement strategy where a defendant acquires an interest in the plaintiff’s claim but stays in the case

What is a Mary Carter agreement?



Notice from a carrier that, although it will furnish a defense to the claim, it may be unwilling to indemnify all or part of the outcome under the terms of the policy

What is a Reservation of Rights a/k/a Non-Waiver Agmt?



The required response when defense counsel learns the client may have excess liability coverage

What is notify the excess carrier?



Required for a valid fee agreement granting a lawyer the greater of a contingent fee or an hourly rate

What is the contingent fee percentage and the hourly rate must both be below the lawyer’s customary rate?



The rule barring a plaintiff from recovering in settlement a sum greater than the damages determined by the finder of fact

What is the “one satisfaction of judgment” rule?




The one who decides trial strategy issues, such as whether to hire experts or file a motion for summary judgment

What is the attorney, exercising independent professional judgment?

Insurance companies cannot direct or restrict how retained counsel conducts the defense of the insured.  Tex. Disc. Rule of Prof. Conduct, Rule 1.08(e)  Texas Ethics Opinion 533



Settlement terms may require confidentiality and return of proprietary information, but cannot prohibit plaintiff’s counsel from doing this

What is representing others against the defendant.  Tex. Disc. Rule of Prof. Conduct, Rule 5.06(b)



It’s required to limit the scope of the defense furnished by defense counsel

What is the consent of the client after consultation?



Number of Ethics Opinions that have been issued by the Supreme Court Professionalism Committee

What is 542?



The response required of defense counsel when the carrier refuses to authorize retention of a necessary expert

What is hire the expert anyway?


Final Jeopardy

The name of any Justice of the Texas Supreme Court other than Phillips, Hecht, Enoch and Owen

Who is Harriett O’Neill, Wallace Jefferson, Michael Schneider, Steven Smith or Dale Wainwright?