Journal Title

Texas Tech Law Review





First Page


Document Type


Publication Information



The Fifth Circuit Court of Appeals decided a considerable number of insurance-related controversies between June 2007 and May 2008. Arguably, the most important, comprehensive decisions are discussed-nineteen insurance cases that originate in just five federal district courts. Generally, the Fifth Circuit decided familiar questions of law and fact. More specifically, the following types of procedural and substantive conflicts appear in the nineteen insurance decisions: (1) one case involving the constitutionality of a Texas insurance statute; (2) two federal preemption and removal controversies involving the Employee Retirement Income Security Act (“ERISA”); (3) two disagreements requiring the court of appeals to make “Erie guesses”; (4) eight duty-to-indemnify conflicts; (5) three duty-to-defend disputes; (6) three cases surrounding whether insurers have a duty to pay proceeds in the wake of Tropical Storm Allison and Hurricane Katrina; (7) one dispute involving a putative class action; and (8) one case of first impression.

The lucidity and thoroughness of the analyses of the nineteen decisions ranged from very good to less than ideal. On one hand, the opinions were well-reasoned and the Fifth Circuit diligently applied Louisiana, Mississippi, and Texas common law and statutes. Furthermore, when comparing this year's opinions to those decided five years ago, the result is undisputable: Rather than awarding or denying summary relief without an explanation, both the district courts’ and the Fifth Circuit’s panels discussed facts carefully, applied the five doctrines of contract construction and interpretation, and explained their rulings. On the down side, the Fifth Circuit continues to ignore states’ settled principles in far too many instances. This is especially true, when the Fifth Circuit decides controversies involving a resident of Texas and a foreign litigant. During the 2007-2008 session, the court of appeals created a rule out of thin air and applied it, while ignoring an on-point Texas principle. Even more troublesome, the Fifth Circuit completely ignored Texas law and applied the laws of the Fifth Circuit and its panels. To be sure, correcting these unsettling practices would make the decisions more predictable, intelligible, and arguably, more fair.

Recommended Citation

Willy E. Rice, The Court of Appeals For The Fifth Circuit: A Review of 2007-2008 Insurance Decisions, 41 Tex. Tech L. Rev. 1013 (2009).

Included in

Insurance Law Commons



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.