Abbott, Simses & Kuchler Prevails on Breach of Indemnity Claim in Harris County, Texas

What is Abbott, Simses & Kuchler prepared to do to defend its clients' interests? To paraphrase Sean Connery's character in director Brian De Palma's movie, The Untouchables, Abbott, Simses is prepared to go all the way. We know the opposition is not going to give up without a fight. When it is in our client's interest, we are willing to do whatever it takes to prevail; if that means taking it to a supreme court level, Abbott, Simses will take it to the supreme court level. That's the Abbott, Simses way.

In a case whose origins began in 2000 in a Louisiana state court where thousands of plaintiffs sued hundreds of defendants ended in August 2008 before the Texas Supreme Court.

Bruce Evanick, a former ASK shareholder who passed away in 2007, represented E.I. du Pont de Nemours and Company in the Louisiana proceedings where the plaintiffs alleged injuries resulting from comingled wastes escaping from an disposal site. The Louisiana plaintiffs claimed DuPont was one of the defendants who transported wastes to the site. The Louisiana plaintiffs alleged that waste was shipped from two DuPont facilities.

By way of background, in the 1980s, DuPont purchased a facility from a major international company and DuPont agreed to continue to make product for the former owner of the facility in exchange for a defense and indemnity against all claims "related to Waste Materials" generated at the facility. Plaintiffs' allegations against DuPont included allegations related to Waste Materials from this facility.

DuPont's tenders of its defense related to the Waste Materials were met with silence or a refusal to accept tender. DuPont did not seek a defense and indemnity for all of plaintiffs' claims, instead because the Louisiana plaintiffs claimed waste originated at two DuPont sites, Abbott, Simses, after navigating through the legal maze that existed in Texas regarding segregation of attorney fees, sought a reasonable allocation of fees and costs. Eventually, the underlying Louisiana case was removed to federal court where it settled.

As a result of the refusal to accept tender, Abbott, Simses filed a breach of indemnity claim in Harris County, Texas. The key to the indemnity claim was the interpretation of the parties' indemnity agreement. Opposing counsel sought to limit DuPont's recovery to $31,000.00 in fees and costs that were related only to the Waste Materials. Charles Miers, from the Firm's Houston office, handled the Texas litigation, and believed that the indemnity language meant exactly what was written; a defense and indemnity was required if the Louisiana claim "related to Waste Materials." Whether the claim related to other waste materials was irrelevant, in light of the unambiguous contract language. The interpretation was critical because hundreds of thousands of dollars in fees and costs were "related to Waste Materials" and DuPont sought a reasonable allocation of the amount of defense fees and costs DuPont paid in the Louisiana litigation.

Undeterred by a trial court's ruling that granted DuPont only $31,000.00 in fees and costs, Charles pressed forward. The eventual reward; the Fourteenth Court of Appeals reversed and remanded the case granting DuPont the exact amount requested on its behalf, just under $800,000.00. The Fourteenth Court of Appeals then denied a motion for rehearing and motion for en banc consideration. Finally, in August 2008, the Texas Supreme Court denied the opposing party's petition for review.