Matthew Duke Joins SWB’s Transactional Business Practice

Saunders, Walsh & Beard welcomes associate Matthew Duke. Matt’s primary practice areas focus on transactional, real estate, and business law, as well as estate planning. With experience as in-house counsel, Matt has the insight to navigate the issues a company might face, ranging from formation to wind-down plans, as well as the day-to-day issues that occur in the interim. Read more about Matt here. Please join us in welcoming, Matthew!

 

Warning to Restoration Contractors and Roofers: The Old Way of Doing Business is Over.

On August 3, 2017, the 2nd District Court of Appeals in Fort Worth granted class certification against Lon Smith Roofing (LSRC), a prominent North Texas Roofer, for violation of the Texas Public Insurance Adjusting Act. Given the direction the courts in North Texas have gone in the past few years, the ruling is not a surprise. It is a warning to restoration contractors in general, and roofers in particular, that the old way of doing business is over. Contractors that negotiate with, or even represent themselves as able and willing to negotiate with, insurance adjusters do so at their own peril. (read more)

By way of background, in September 2013, the Keys sued LSRC asking the court to declare their contract void and to order the return – to them – of all monies their insurance company paid to the roofer. It’s important to remember that this is not a lawsuit about whether the roof was properly or timely installed. The roof doesn’t leak, the color isn’t wrong, the roofer didn’t damage the driveway or flower beds, or fail to respond to warranty claims. This lawsuit, which is a continuation of a dispute that started in 2011, is about language that, until recently, was commonly found in roofing contracts throughout the state of Texas.  Language that I still routinely see in roofing contracts today.

The Keys asked the 236th District Court in Tarrant County to approve them to act as representative plaintiffs in a class action lawsuit against LSRC. On October 15, 2015, the district court judge signed an order granting the class certification. That order was immediately appealed. Last week, after almost two years, the appellate court issued its ruling upholding the class certification on the Keys’ claim for the “return” of all monies paid to the roofer as part of their declaratory judgment claim (violation of Public Insurance Adjuster’s Statute/Insurance Code 4102) and the DTPA claim that provides for the potential for treble damages for violation of Texas Insurance Code 541 (unfair methods of competition and unfair or deceptive acts or practices). Class certification was denied for the DTPA claim for unconscionability.

The appellate court’s decision can, and likely will, be appealed to the Texas Supreme Court, who can choose to review that ruling, or to leave it undisturbed. In the meanwhile, the ruling upholding class certification is a further step in the continuum of cases favoring consumers to the detriment of restoration contractors. In discussing the facts supporting its decision to uphold the class certification, the court cited to testimony from Mr. Keys that the roofer “never told him that he could or should get a public insurance adjuster involved in his roof-damage claim under his homeowners’ policy” and that the homeowner “understood that [Roofer] was contracting to discuss his insurance claim with his insurer and was also contracting to repair his roof.“

Some groups are claiming this as a victory for consumers. Whatever your perspective on this issue, what is clear is that lawsuits claiming violations of the Public Insurance Adjuster (PIA) law have just been given a big boost via class certification.

What does mean for those of you working in the restoration contracting community? First, what happened to this roofer could have happened to any number of other roofers using the same or similar language in their contracts. Or any roofer negotiating claims with insurance adjusters. The ability to initiate class action lawsuits will embolden plaintiff’s attorneys to pursue similar claims against restoration contractors and roofers since they’ll only have to prove the representative plaintiff’s claim rather than the claims of every plaintiff taking part in the class action suit (one plaintiff – multiple verdicts). The cost to defend against a lawsuit of this type, win or lose, is extremely expensive. Further, if you lose, you not only have to write a check to the property owner for anything paid to you by them or their insurance company, sometimes tripled depending on whether the violation is determined to be knowing or intentional, you’ll also have to pay their legal fees, which will almost certainly greatly exceed the cost of the roof, to potentially every owner you sold for the last ten years (the span of the Keys/LSRC class action certification).

What should you do? Make sure your contract doesn’t contain any of the language the courts have determined violates the PIA statute. Include language in your contracts that specifically puts the owner on notice that you are not offering to and will not provide any PIA services. Don’t hold yourself out as an insurance expert. Understand and be ready to educate owners about their rights and options for dealing with insurance adjusters (attorney, appraisal, public insurance adjuster), making referrals where appropriate to ethical attorneys, appraisers, and public insurance adjusters who can advocate for the homeowner without taking away your sale. Restrict your conversations with insurance adjusters to answering questions regarding your scope and price – don’t negotiate the claim with the insurance adjuster.

Karen, you say, you don’t know what it’s like out in the real world. But I do understand, including that the majority of “negotiations” are initiated by the insurance adjuster. However, this PIA law isn’t going away. Instead, it is being vigorously and strictly enforced in the courts and by TDI, and the ramifications to your business cannot be ignored.

The Difference between a Rule of Interpretation and a Canon of Construction

One evening, sitting by the fireplace, sipping on a cup of hot coco, I found myself musing on the subject of contract interpretation.  I was pondering various active cases and my fading memory of my first year of law school when I had two revelations:  1) I am getting old, and 2) I had no idea if “construe against the grantor” was a rule or a canon.  I suspected that I was not the first attorney to have this particular question, so I became determined to find the answer and share it with you.

2015 is “in the books” — is it in your corporate books?

corpKit

An out-of-date corporate book can cause unexpected legal problems!

It is important to keep your entity’s books up-to-date and to ensure compliance with the Texas Secretary of State’s Office and the Texas Comptroller’s Office.  Here are some common issues in need of updates:

  • Did your entity hold its required annual meeting and transcribe the minutes of that meeting?
  • Did your entity’s governing persons change during 2014-15?
  • Did ownership of the entity change during 2014-15?
  • Did your entity start transacting business in another state?
  • Did your entity start transacting business under a “DBA” or assumed name?
  • Did the registered agent information for your entity change?
  • Have additional shares or membership interests been issued?
  • Does your entity’s Company Agreement, Partnership Agreement, or Bylaws need to be updated to reflect changes or agreements between shareholders / partners / members?
  • Did you decide to terminate or wind up your entity?
  • If your entity experienced involuntary tax forfeiture, has your entity applied for reinstatement?

Other issues we assist clients with frequently are: lease renewals, real estate purchases, borrower financing representation, contract reviews, and collections.
Most of these updates take little time and can done very affordably.  Call anytime at (214) 919-3555.