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Bearing Witness to Hate

Texas Insurance Law in 2021 and Beyond

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Joshua Lee is a trial lawyer and partner at Armstrong & Lee LLP and serves as President-Elect of the Asian American Bar Association of Houston (AABA). Sarah Tejada is an immigration attorney and partner at the Rosas Law Group and serves as the current President of the AABA. Kristina Vu is a litigation associate at Baker Botts L.L.P. and serves on the AABA’s Public Statements Committee. Nadine Ona is a litigation associate at Germer PLLC and serves on the AABA’s Public Statements Committee.


1. STOP AAPI HATE, STOP AAPI HATE NAT’L REPORT, 2. See Anna Bauman, Asian Texans Establish Goals to Tackle Uptick in Hate Crimes, HOUS. CHRON., Mar. 23, 2021, updated Apr. 9, 2021, news/houston-texas/texas/article/Asian-Texans-establishgoals-to-tackle-uptick-in-16047205.php. 3. For example, firearms purveyors across the country have reported a surge in the number of first-time purchases among Asian American customers. See Aaron Smith, More Asian-Americans Are Buying Guns for Protection from Hate Crimes, FORBES (Mar. 18, 2021), sites/aaronsmith/2021/03/18/asian-americans-buy-gunsfor-protection-from-hate-crimes/?sh=5dd5c6da3edd. 4. Korematsu v. United States, 323 U.S. 214 (1944). 5. The history of the 19th century is replete with examples of mass lynchings perpetuated against Asian Americans. Some of the most egregious examples include the Massacre of Wyoming of 1885 (twenty-eight Chinese murdered, fifteen wounded, hundreds driven from their homes); the Massacre of Washington of 1885 (three Chinese murdered in Squak Valley with similar incidents occurring in Tacoma and Seattle); and the Massacre of Oregon of 1887 (thirty-four Chinese murdered; no one held accountable). 6. The authors thank H.C. Chang of McGehee, Chang, Landgraf, Feiler, for the historical research he provided for this article. They would also like to thank Mr. Chang for the efforts that he and OCA Greater Houston are undertaking to raise awareness of and identify solutions for the rise in AAPI hate incidents. 7. Five Children Killed as Gunman Attacks a California School, N.Y. TIMES, Jan. 18, 1989, at A-1. 8. Steven Yaccino et al., Gunman Kills 6 at a Sikh Temple Near Milwaukee, N.Y. Times, Aug. 5, 2012, at A-1, https://www. 9. CeFaan Kim, Asian American Mother Says She Was Spit at While Holding Baby, Called “Chinese Virus”, ABC 7 NY, WABC-TV (Mar. 11, 2021), 10. Courtney Vinopal, What We Know About the Atlanta Spa Shootings That Killed 8, Including 6 Asian Women, PBS NEWS HOUR (Mar. 17, 2021, 7:20 p.m., updated Mar. 19, 2021, 1:47 p.m.), what-we-know-about-the-atlanta-spa-shootings-thatkilled-8-including-6-asian-women. 11. E.g., Statement of President Joe Biden on Senate Passage of the COVID-19 Hate Crimes Act, The White House (Apr. 23, 2021), 12. RONALD DWORKIN, LAW’S EMPIRE 413 (1986).

Winter Storm Uri The icy misery of the storm is still only the recent past, so insurance litigation, if there is going to be any arising out of the storm, has not yet begun in earnest. When and if litigation ensues, it will be another opportunity to apply Texas Insurance Code Chapter 542A. This statute became effective on September 1, 2017, and the common law interpreting the statute is still in the early stages of development. The statute applies to first-party claims arising “from damage to loss of covered property caused, wholly or partly, by forces of nature, including an earthquake or earth tremor, a wildfire, a flood, a tornado, lightning, a hurricane, hail, wind, a snowstorm, or a rainstorm.”3 Claimants must provide additional pre-suit notice and a mandatory opportunity for the insurer to re-inspect the loss.4 Insurers can accept the liability of an adjuster, a provision aimed at the improper joinder of in-state adjusters.5 Winter Storm Uri also serves as a reminder that policyholders should always be reviewing their insurance policies so that they understand what will be covered and what will not be covered. An insured is generally bound by the terms of the policy, whether he or she reads it or not.6 Practice of Insurance Law Like many other fields of law, attorneys practicing insurance law have had to quickly come up to speed in taking depositions by Zoom and other remote services providers. Given the cost savings, insurers and other large institutional clients are likely to prefer virtual depositions even after the pandemic subsides. Zoom is also helpful for some activities that are particular to insurance law. For example, appraisal umpires are holding remote hearings with appraisers. Video conferencing has many advantages over a conference call, or exchanges of emails, as in appraisals past. For example, in real time, appraisers can highlight and draw arrows on photographs, scroll through estimates, and present other supporting evidence.7 Finally, TexasBarCLE’s Insurance Law 101 and Advanced Insurance Law courses were recently rescheduled from June 2021 to September 29–October 1, 2021. The courses will be an excellent opportunity to stay informed on changes to insurance law coming out of this challenging year. Stephen P. Pate is a member at Cozen O’Connor in Houston. He has practiced first party insurance law for 36 years. He is a Regent in the American College of Coverage Counsel, an Advocate in the American Board of Trial Advocates, and a Member of the American Law Institute. Karl A. Schulz is a partner with Cozen O’Connor in its Houston office. He has extensive experience in first party property insurance and is widely published on the subject. Endnotes

1. See e.g., Steiner Steakhouse, LLC v. Amco Ins. Co., No. 1:20-CV-858-LY, 2020 U.S. Dist. LEXIS 252012, *8 (W.D. Tex. Dec. 30, 2020). 2. See Selery Fulfillment, Inc. v. Colony Ins. Co., No. 4:20-cv0853, 2021 U.S. Dist. LEXIS 47483, *12 (E.D. Tex. Mar. 15, 2021). 3. TEX. INS. CODE ANN. § 542A.001(2)(C). 4. Id. §§ 542A.003–.004. 5. See id. § 542A.006; Koenig v. Unitrin Safeguard Ins. Co., No. SA-20-CV-00887-JKP-HJB, 2021 U.S. Dist. LEXIS 1703, *4 (W.D. Tex. Jan, 6, 2021). 6. Heritage Manor of Blaylock Props, Inc. v. Petersson, 677 S.W.2d 689, 691 (Tex. App.—Dallas 1984, writ ref’d n.r.e.); Howard v. Burlington Ins. Co., 347 S.W.3d 783, 792 (Tex. App.—Dallas 2011, no pet.). 7. See McGinty v. Hennen, 372 S.W.3d 625, 627 (Tex. 2012); Paschal v. Engle, No. 03-16-00043-CV, 2016 Tex. App. LEXIS 9161, *9 (Tex. App.—Austin Aug. 23, 2016, no pet.); Smith v. Overby, No., 04-15-00436-CV, 2016 Tex. App. LEXIS 9172, *17 (Tex. App.—San Antonio Aug. 24, 2016, no pet.).

May/June 2021