Gore vs. Faye

Opinion issued January 14, 2008, 7th District Court of Appeals, Amarillo.

More on the opinion:

In Gore v. Faye, a “paid or incurred” case, the Amarillo Court of Appeals unanimously held that the trial court did not abuse its discretion in refusing to submit to the jury evidence of payments and adjustments made by the plaintiff’s health insurer to the total medical charges incurred for her injuries.  In dicta, the court held it was not an abuse of discretion for the trial court to consider payments and adjustments post-verdict.  The court did not consider whether CPRC 41.0105 violated the collateral source rule.  The court summarized its holding as follows:

“Even if Gore is correct that admission of her section 41.0105 evidence would not violate the collateral source rule, it is obvious that the admission of such evidence before the jury in a personal injury case involves a significant departure from existing trial practice in Texas. See, e.g., Taylor, 132 S.W.3d at 625 (“It is generally considered error for insurance coverage of either party to be mentioned by the other party during trial of a personal injury cause of action.” (citations omitted)). Without a more explicit statutory provision or guidance from our supreme court, we see no abuse of discretion in the trial court’s decision to apply section 41.0105 post-verdict.”

TTLA Files Amicus Brief

On Tuesday, January 9, 2007 TTLA through its Amicus Committee filed its first brief in an appeal involving the paid/incurred issue. Though based on Jim Perdue Jr.'s Texas Tech law review article, it also includes some new arguments and resources. Many thanks to Jim, whose original scholarship on the issue has been invaluable, and Kirk Pittard, who did the bulk of the substantial drafting.

TTLA members Ted Liggett and Joe Lovell are representing the appellee, Jainaba Faye, in the case.

Access the brief here. 
Access State Farm's Amicus Brief.  

I caution that the brief is not a compendium of all possible arguments that can be made, but rather is tailored to complement and supplement the parties' briefing. Because this brief is being filed in a court of appeals, policy arguments have been de-emphasized--they will be of more interest to the Texas Supreme Court.

We are currently preparing an amicus brief to be filed in the paid/incurred case in the San Antonio court. As always, if you know of any paid/incurred cases going up on appeal, or news of any trial court dispositions of the issue, please forward the relevant information to me at pkelly@heightslaw.com or Zoe Taylor at zoe@ttla.com.

Click here for more on the paid/incurred issue, including articles, court orders and sample briefs.