Texas Tech Law Review
During the period from June 2002 to July 2003, the Court of Appeals for the Fifth Circuit decided twenty-two appeals originating in eight federal district courts. Certainly, the greater majority of the insurance appeals involved recurring substantive and procedural conflicts. Major disagreements about the interpretation and enforcement of insurance contracts were before the court. Also, federal preemption questions and conflicts over subject-matter jurisdiction appeared in several cases. Furthermore, the Fifth Circuit addressed one case of first impression, and on remand from the Supreme Court, the appellate court modified and reinstated portions of a vacated opinion. For the most part, the decisions adequately addressed litigants’ concerns, and the court of appeals researched the laws of Louisiana, Mississippi, and Texas to reach intelligible and fair conclusions. On the other hand, far too many of the Fifth Circuit’s conclusions evolved out of thin air. This was especially true in controversies involving Texas litigants. The court of appeals either ignored or refused to apply Texas’s undisputed principles of insurance law. Instead, the Fifth Circuit created new law and engaged in strained and convoluted analyses to reach, arguably, predetermined results. Once more, such an enterprise does little to garner respect for the court and for its rulings. But more important, the Fifth Circuit’s propensity to ignore settled principles of insurance law can easily cause learned jurists to conclude rightly or wrongly that the court is biased against insureds. After all, two-thirds of the actions were declaratory judgment actions, requiring the court to make sound interpretations based on settled principles of law. Yet in two-thirds of the actions, the insurers defendants won. Statistically, the latter result is a very unexpected outcome, one that many other legal researchers have attributed to judicial bias.
Willy E. Rice, Insurance Decisions - A Survey and Empirical Analysis, 35 Tex. Tech L. Rev. 947 (2004)