The "made whole" doctrine, under which an insurer is not entitled to subrogation if the insured's loss is in excess of the amounts recovered from the insurer and the third party causing the loss, does not override a claim for reimbursement asserted by an employee benefit plan which paid death benefits, when the plaintiff entered into a settlement agreement with the Plan (in conjunction with the payment of benefits) explicitly promising to reimburse the Plan from any proceeds obtained from a third party. Rosa's Cafe, Inc. v. Wilkerson, __S.W.3rd __, (Tex. App. -- Eastland, 12/21/05)

The law does not require the parties to dictate and agree to all of the provisions to be contained in all of the documents necessary to effectuate a mediated settlement agreement in order for the agreement to be enforceable; it only requires the parties to reach an agreement as to all material terms; a trial court may enter a decree containing terms which implement and effectuate the agreement. Haynes v. Haynes, __S.W.3rd __, (Tex. App. -- Dallas, 1/05/06)

When the undisputed evidence establishes that future knee replacement surgery would be necessary -- regardless of the subject motor vehicle accident (MVA) -- due to a pre-existing condition, the evidence is legally insufficient to support the award of damages for the future surgery; however, when there is medical expert testimony that because a knee was weakened by meniscus surgery necessitated by the MVA the knee suffered a new injury during rehabilitation, recovery of damages for the second meniscus surgery is supportable. City of San Antonio v. Esparza, __S.W.3rd __, (Tex. App. -- San Antonio, 12/21/05)

The EEO Policy formally adopted by the City Council by resolution was a “law” within the meaning of the Whistleblower Act and not simply an internal policy;the CHRA was not the employee's exclusive remedy; and the evidence supported the employee's good faith belief that the EEO Officer was an appropriate law enforcement authority to whom to report a violation of the EEO Policy. City of Waco v. Lopez, __S.W.3rd __, (Tex. App. -- Waco, 12/14/05). Dissent.

Insured brought suit against its liability insurance carrier to recover defense costs which the insured incurred in defending a claim. The Court held that: the under the Wilkinson exception (undertaking the defense of a case without an effective reservation of rights) the insurer was estopped from asserting non-coverage; the insured was entitled to recover attorneys fees for breach of contract; but Ins. Code Art. 21.55 did not apply to this "third party claim." Ulico Casualty Company v. Allied Pilots Assoc., __S.W.3rd __, (Tex. App. -- Fort Worth, 12/15/05)

Update: The Texas Supreme Court has granted a rehearing in Excess Underwriters at Lloyd's, London v. Frank's Casing Crew and Rental, __ S.W. 3rd __, 2005 Tex. LEXIS 418 (48 Tex. Sup. Ct. J. 735, 5/27/05). In that decision, involving the settlement of a case in which an insurance defense had been tendered with a reservation of rights, the Texas Supreme Court held that an insurance carrier is entitled, under some circumstances, to recoup from its insured the amount it paid in settlement of a claim when it is later determined that there was no coverage.

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