Legislative Changes to 18.001 and What it Means to You

It’s fall in an odd-numbered year and that means only one thing in Texas–lawyers have a whole host of new and updated rules to learn after the recent legislative session.

One of the most substantive changes occurred in Chapter 18.001 of the Civil Practice and Remedies Code. In the good old days (three months ago) a plaintiff could file an affidavit from a medical provider stating the amount charged for the services was reasonable and the medical services provided were necessary. If this affidavit was timely filed 30 days prior to trial (or 30 days prior to the date evidence was heard at trial), then the affidavit alone would be sufficient evidence to support a finding of fact that the amounts charged were reasonable and necessary. Once filed, the burden was then on the defendant to show the charges were not reasonable and necessary by filing a controverting affidavit within 30 days of being served with the plaintiff’s affidavit. If the defendant did not file their own controverting affidavit within 30 days, then the defendant would not be able to contest the necessity and reasonableness of the charges at trial.

HB 1693 changes all of that.

The deadlines surrounding the new rule are the most important change. Now, plaintiffs must serve their 18.001 affidavit on a defendant within 90 days of the defendant filing an answer. This is vastly different than the previous 30 day before trial (first hearing of evidence) deadline and will result in fewer defendants being rushed to file a controverting affidavit on the eve of trial.

If a court orders, or a portion of the Texas Rules of Civil Procedure set, the plaintiff’s expert designation earlier than 90 days after the defendant files its original answer, then plaintiff must serve its 18.001 affidavit by the earlier expert designation deadline. Simply put, if a court orders a plaintiff’s expert designation on a date 60 days after the defendant’s answer, then the plaintiff must file its 18.001 affidavit by its expert designation deadline, rather than the 90 days.

A defendant now has 120 days after the date they file their answer to serve their controverting affidavit. Similar to the rules for plaintiffs, defendants will have to serve their controverting affidavit earlier if a court orders the defendant’s expert designation for a time earlier than 120 days after defendant’s answer.

Practically speaking, this change will result in defendants receiving more complete sets of medical records at an earlier stage of litigation and it’s likely that service of 18.001 affidavits will now be included in agreed scheduling orders, removing doubt and adding efficiency to the litigation process.

Congratulations to our 2019 Texas Super Lawyers!

Saunders, Walsh & Beard is proud to announce J. Brantley Saunders, Mark A. Walsh, Lewis L. Isaacks, Alexander N. Beard, and David M. Kennedy as 2019 Texas Super Lawyers.

About Super Lawyers
Super Lawyers is a rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Attorneys are selected through a multi-phased process including independent research, peer nominations, and peer evaluations.

Can I Sue My Home Builder for Shoddy Workmanship?

Jacob Thomas, a top-rated construction litigation attorney with Saunders, Walsh & Beard, weighs in on residential construction defect claims with Super Lawyers. Super Lawyers is a rating service of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement. Mr. Thomas has been recognized as a Texas Rising Star by Super Lawyers every year since 2015.

Construction liability when weather causes damage based on defects

By Super Lawyers staff
Whether you are building a brand new home or undertaking major renovations, you will be required to put a tremendous amount of faith into the hands of a construction company. Unfortunately, in far too many cases, contractors can fail to live up to their end of the bargain; in turn, poor workmanship and construction defects cause serious problems.

As stressful and frustrating as dealing with a construction defect is for a homeowner, there are legal options available. Yes, negligent construction companies can be held liable for property defects.

How to Hold a Builder Liable for Poor Workmanship

Under the Texas Residential Construction Liability Act (RCLA), home builders can be held legally liable for damage caused by shoddy workmanship or construction defects. The RCLA provides very important legal protections to homeowners, property owners and real estate developers. Among other things, it gives them the right to sue for poor workmanship.

“Anytime a potential client calls me that has anything to do with residential construction, it’s the first thing I consider,” says Jacob D. Thomas, a construction litigation attorney at Saunders, Walsh & Beard in McKinney. “It’s the carrot and the stick. From the contractor’s perspective, it’s supposed to prevent people from running to the courthouse and filing a lawsuit. It gives the contractor an opportunity to inspect and make an offer of settlement. For the homeowner, if the contractor is a stand-up guy and is going to follow the law, it gives them a basis on which to communicate. It benefits both parties.”

The RCLA establishes a number of different procedural requirements that plaintiffs must meet prior to initiating a defect construction claim. Before a Texas homeowner or other party can file a lawsuit against a contractor under the RCLA, they must give the defendant (the construction contractor) at least 60-days’ notice.

After receiving an official construction defect notice, the responsible contractor will then have 35 days to conduct an inspection of a homeowner’s property. And after completing their inspection, they can make a written settlement offer to the homeowner. A settlement could include an agreement to conduct repairs, financial compensation, or some combination of both. However, if no agreement can be reached, the homeowner will then have the right to file a lawsuit.

“I’m of the opinion that the RCLA is actually quite beneficial for the homeowner,” says Thomas. “It very clearly sets out what kind of efforts need to be taken in advance, what needs to be in the demand letter, how it needs to be sent to the contractor. It creates a map to guide you through the initial process.”

Construction Defect Claims are Subject to Strict Deadlines

If you discovered a possible construction defect in your home, it is imperative that you take immediate action to protect your rights. The sooner you discuss your case with a Texas construction law attorney, the better off you will be. One of the most challenging things about construction defect claims is navigating the filing deadlines. In most cases, construction defects are not obvious to the naked eye. It is often years before a homeowner even has a chance to recognize the problem.

In Texas, plaintiffs must deal with both the statute of limitations and the statute of repose. Under the statute of repose, all construction defect claims in Texas must be filed within ten years of the date that the work was ‘substantially completed’. However, that is not the only relevant legal deadline. The statute of limitations also requires Texas homeowners to file a poor workmanship claim within two years of the date that they knew or should have known about the defect.


Original Post Found Here: https://www.superlawyers.com/texas/article/can-i-sue-my-home-builder-for-shoddy-workmanship/ad9e2621-1c98-49a4-94b0-ea96318e021f.html



SWB Welcomes Associate Skye Mileger to Civil Litigation Team

Skye Mileger has been a great addition to the Saunders, Walsh & Beard family. Skye is extraordinarily efficient, demonstrates outstanding research and writing skills, and interacts with other lawyers and clients like a seasoned lawyer. We are lucky to have her on our team. Welcome, Skye!

Civil Litigation Attorneys Collin County
Skye Mileger, Associate Attorney


Read more about Skye here:  https://saunderswalsh.com/skye-mileger/

“Dinosaur” Lawyers Successfully Obtain Dinosaur Insurance Recovery

Congratulations to Saunders, Walsh & Beard’s client, The Dinosaur Company (a division of Billings Productions), for obtaining full insurance benefits for the loss of 21 of its dinosaur replicas in North Carolina due to Hurricane Florence. The insurer for the Dinosaur Company initially filed the claim for the loss, and SWB’s own “dinosaur” lawyers, Alex Beard and Mark Johnson, stepped in to make sure Billings received all the insurance benefits it was entitled to under its insurance policy. Mr. Beard & Mr. Johnson convinced the insurance company its initial decision to pay only a portion of the loss was incorrect and, as a result, the Dinosaur Company received over a half a million dollars in additional policy benefits–all without having to file a lawsuit.

Mr. Beard (far right) at Billings Productions on June 28, 2019, with SWB Summer Interns and Associate Attorney, Haley Heinrich

At SWB, we help our clients (large and small) get the insurance coverage they paid for when they purchased their insurance policy. Two of our partners–Alex Beard and Mark Johnson–each have decades of experience dealing with insurance companies and analyzing insurance policies. In fact, both Mr. Beard and Mr. Johnson both represented insurance companies exclusively for several years, and they now leverage that valuable experience in representing our policyholder clients and assisting them with their insurance-related issues. You can read more about our Insurance-Related Dispute practice here: https://saunderswalsh.com/insurance-related-disputes/.

Call us today and schedule a time when we can discuss your particular insurance-related issue or dispute.