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  • A recent decision in Federal Court cites the Century vs. Hardscape Federal District Court opinion argued by the firm in affirming the notion that a claimant is a proper defendant in a declaratory relief action involving insurance coverage, in light of Article III of the Constitution. Atlantic Casualty Insurance Co. v. Ramirez, ---F.Supp2d---, 2009 WL2842901 (N.D.Tex Sept 2, 2009)(slip op.)

    Century vs. Hardscape

    FDCC Article


    McFall, Breitbeil & Eidman, P.C. has gained a reputation for aggressively prosecuting, defending, and trying lawsuits. Set out below is a list of some of our successes at the trial court level, on appeal, or by way of contingency fee recovery:

  • Recently, a Houston jury returned a verdict in the amount of $136.8 million in favor of the firm's Houston-based client, Canatxx Energy Ventures, Inc. against General Electric Capital Corporation, in the United States District Court for the Southern District of Texas. The trial lasted three weeks. In December 2006, a Final Judgment was entered on the verdict awarding Canatxx actual damages of $136,100,000, together with exemplary damages of $700,000 resulting from the jury's finding that GE Capital Corporation acted with actual malice. Ken Breitbeil of McFall, Breitbeil & Smith, teaming with Guy Matthews of The Matthews Firm and Andrew Jefferson, spearheaded Canatxx's trial team. The verdict and corresponding $136.8 million judgment is believed to be one of the three largest in Texas and the 12th largest in the United States for 2006. The Final Judgment, as well as a summary of the case from the Texas Jury Verdict Reporter, can be viewed on this site by clicking the links below.

    Final Judgment

    Jury Verdict Report ©2006


    • Don McFall led a trial team in obtaining a defense verdict and judgment on behalf of our client, a nationally known lawyer, and business man, concerning allegations of breach of fiduciary duty, breach of contract, and other claims. the damages sought against our client were in the tens of millions of dollars. After a lengthy trial, the jury rendered a verdict in our client's favor.


    • Ken Breitbeil successfully represented one of the firm's publicly owned clients (and affiliates) in an appeal of an underlying judgment that had been entered in our client's favor. The court of appeals entered and opinion that completely validated our client's position at the trial court level on issues of partnership, wrongful termination, employment at will, and business defamation. The opinion is published at Brown v. Swett & Crawford of Texas, Inc., 178 S.W.3d 373, (Tex. App. -- Houston [1st Dist.] 2005, no pet.).


    • Don McFall and his team won a defense verdict for a prominent Washington, D.C. law firm in a legal malpractice case. One of the firm's transactional lawyers agreed to take over the representation of a friend (and her business), who had been sued because of a business dispute. The lawyer negotiated a settlement of that case; however, his friend failed to pay the settlement as the parties had agreed. The friend and her business eventually sued the lawyer and the firm for breach of contract, breach of fiduciary duty, fraud, fraudulent inducement, negligence, and gross negligence. Messrs. McFall and Little won a summary judgment for our client on the plaintiffs' breach of contract claim. The lawyer ultimately settled the claims against him, and the plaintiffs proceeded to trial against the firm. The court awarded our client a directed verdict on the plaintiffs' claims for breach of fiduciary duty, and the jury returned a defense verdict on the plaintiffs' remaining claims. The court denied the plaintiffs' motion for new trial, and the deadline for the plaintiffs' to appeal is approaching.

    • After obtaining a judgment in our client’s favor at the trial court level, Ken Breitbeil and Bruce Kemp succeeded in affirming the judgment on appeal before the 14th Court of Appeals of Houston. The case involved a wrongful death suit arising out of a construction site accident in downtown Houston, and the firm successfully defended the client against claims for negligence, premises liability and strict products liability. See Lopez, et al., v. Harsco Corporation, No. 14-05-00481-CV, 2006 WL 994668 (Tex. App. -- Houston [14 Dist.], April 18, 2006, no pet.).

    • Ken Breitbeil led an appellate team that succeeded on appeal in reversing an underlying judgment that had been improperly entered against one of the firm’s clients. The case concerned an employment dispute between a high producing professional and the company that employed him. The Corpus Christi Court of Appeals agreed with our argument that the trial judge improperly permitted the jury to hear tainted evidence of an earlier erroneous ruling by the same trial judge -- which itself had been the subject of a separate, and equally successful, appeal. See In re Houston, 92 S.W.3d 870 (Tex. App. -- Houston [14th Dist.] 2002, orig. proceeding). Finding that the tainted evidence irreparably influenced the jury, the underlying adverse judgment was reversed. See Houston, et al. v. Millennium Ins. Agency, et al.; No. 13-03-00235-CV, 2006 WL 1030102 (Tex. App. -- Corpus Christi, April 20, 2006, pet. filed).

    • The firm successfully tried a nursing home decubitus case in the 60th Judicial District Court of Jefferson County, Texas. Plaintiff had sued the nursing home and its corporate owner claiming that the resident’s multiple stage 3 and stage 4 wounds were caused by the negligence of the defendant nursing home. Plaintiff asserted various theories of corporate liability against the owner, which was not a health care provider. The unanimous jury returned its verdict in 40 minutes, finding no liability on the defendants. The two week jury trial ended on March 8, 2007. Jefferson County, Texas is a dangerous county for defendants.

    • The Firm with others successfully set aside a $9,000,000 default judgment against our client in Hidalgo County, Texas. Our firm lawyers were not involved before the default judgment. The jurisdictional clock was ticking quickly in a hostile forum. The default judgment had been signed by a judge who during the post-default proceedings committed suicide, thereby complicating the circumstances to which we had to respond in order to set aside the default. We also set aside the guardian ad litem award of $150,000 which had been awarded for about 24 hours of work. We obtained an eventual non-suit of our client with no settlement.

    • The firm recently obtained summary judgment, before any depositions were taken, for our client in a wrongful death drowning case in Brazoria County, Texas.

    • The Firm recently obtained a non-suit of our defendant client (without settlement) in a case wherein sixteen plaintiffs filed suit in a triple fatality arising out of a railroad crossing accident.

    • The firm successfully resolved a complicated matter arising out of our client’s road construction work. The driver of one vehicle was killed and the driver of the other vehicle required surgical amputation at the knee. Each driver was also a counter-defendant. Unknown vandals had moved traffic control devices which had been positioned by our client, allegedly causing the head-on collision. We obtained a timely order designating the unknown “John Doe” criminal assailants as “responsible third parties,” an important advantage to our client first available under Texas’ 2003 tort reform. This step allowed the submission to the jury of a proportionate responsibility question as to the anonymous criminals, thereby allowing the jury to place fault where it belonged, even though the wrongdoers were unknown. The case was successfully resolved before trial.

    • The firm successfully defended a trucking company in a non-jury trial on a claim for indemnification asserted against it by an intermodal equipment provider. The equipment provider claimed that our trucking company client was required to indemnify the provider for the provider’s own fault pursuant to the provisions of an industry standard intermodal agreement. The provider claimed that Maryland law controlled. The court held that Texas – not Maryland – law controlled; that the indemnity language did not satisfy the “express negligence” requirement set forth in Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705 (Tex. 1987); and that our trucking company client was not required, and did not agree, to indemnify the provider for the provider’s own fault.The firm recently won an arbitration award for one of our firm's oil and gas clients. One of our client's sales representatives left the company and sought to join a competitor. The sales representative claimed that he had been fraudulently induced to sign a contract with our client that included a covenant not to compete, and alleged that, even if the contract was valid, the covenant not to compete was unenforceable for other reasons. The arbitration panel entered an award enforcing the contract and the covenant not to compete that ran in favor of our client.

    • In a recent mandamus action, the firm successfully obtained an appellate court ruling sustaining objections to overly broad discovery requests submitted in an insurance coverage case. In its published opinion, the Beaumont Court of Appeals found that “[h]aving to produce overbroad discovery that is almost unlimited in time, to produce in response to vague requests that are not reasonably specific, or to produce attorney work product as a consequence of a hearing where the attorney work product privilege was not properly before the [trial] court would result in time, labor, and money spent on improper production that could not be retrieved.” The opinion is published as In re TIG Insurance Company, 172 S.W.3d 160 (Tex. App.--Beaumont 2005, no pet.). The win is featured in the August 26, 2005 edition of the Andrews Asbestos Litigation Reporter.

    • The firm obtained summary judgment on behalf of the firm’s client, a major insurer, in an insurance coverage claim. The plaintiff sued the firm’s client for defense and indemnity in the underlying mold litigation. Our attorneys argued that whether the court used the “manifestation” or “exposure” trigger theory, no coverage existed under the insurer/client’s policies. Furthermore, Texas law bars purchasers of real property from asserting claims for property damage that occurred before the purchaser owned the property. The firm is handling the plaintiff's subsequent appeal.

    • The firm won a major insurance coverage case recently in federal court in Amarillo. A pest control company won a large verdict against a similar company for allegedly lying about the plaintiff company on TV and charging that it was under investigation by state officials. The parties then did a “sweetheart deal” and the dependent company assigned its rights against its insurance carrier to the plaintiff. Arguing that there is no insurance coverage for intentionally harmful conduct, the firm represented the insurance carrier and won a summary judgment from the district court. The firm handled the appeal before the Fifth Circuit Court of Appeals. In December 2005, the firm argued the case before the appeals court panel of justices.

    • The firm successfully represented a well-known Houston law firm in arbitration against one of its former clients. The claimant alleged that our law firm client committed legal malpractice and breached its fiduciary duties, and used those claims to attempt to avoid paying our client's legal fees. The arbitration panel entered an award that our client had not engaged in any wrongdoing, and that our client was entitled to recover all of its fees. The panel also awarded our client their costs and attorneys' fees incurred in defending the arbitration proceeding.

    • The firm obtained a summary judgment on behalf of a prominent Beaumont law firm, which had been accused of business disparagement and tortious interference with contracts. The trial judge dismissed all of the claims against our law firm client, while allowing the claims against other parties in the lawsuit to proceed. The opposing parties have appealed the summary judgment that was rendered in our client's favor. The Ninth District Court of Appeals recently affirmed the summary judgment in favor of our client. 2005 WL 2450158.

    • Ken Breitbeil successfully represented one of the firm's publicly owned clients at the trial court level in a wrongful death case involving an industrial/construction site accident in downtown Houston. Our client was the only defendant who elected not to settle. the case involved issues of OSHA compliance, subcontractor duties, and premises liability. The plaintiffs have appealed the judgment that was rendered in favor of our client.

    • Ken Breitbeil successfully defended the firm's client, a large publicly traded company, through trial in a rural Texas county in a commercial lawsuit involving a claim for damages in excess of $8 million. The jury rendered a unanimous verdict for our client, and then found for our client on 100% of the damages sought in its counterclaim against the plaintiff, which also is a large publicly traded company. Consistent with our appellate expertise, the firm has continued to represent the client on the appeal that was initiated by the other party.

    • In a case that we handled under a modified contingency fee arrangement, Ken Breitbeil was successful in obtaining a settlement in excess of $12 million for the client. Our client had been the CEO of a major Houston-based company, and the claim related to company's attempt to deprive the client of incentive compensation plan benefits following his sudden termination. Prior to our legal representation, the company had only been willing to compensate the CEO for a small fraction of what became the ultimate settlement amount.

    • Ken Breitbeil successfuly represented the defendant in a burn case which arose out of a flash fire on a drilling location in south Texas. The Court of Appeals affirmed a take nothing judgment in favor of our defendant client. The court held that Chapter 95, Texas Civil Practices & Remedies Code, was the exclusive available remedy and the jury had answered the Chapter 95 verdict questions in favor of our client. Chapter 95, which is a tort reform measure enacted in 1995, provides protection under certain circumstances to the owner of property when the employee of a contractor or sub-contractor is injured or killed on the owner’s property. This is an especially important protection to owners of refinery facilities and other commercial and industrial properties. This case was one of the first and most important decisions interpreting Chapter 95 and giving that tort reform measure its intended application. The case is important for additional reasons as well. In an issue of first impression, the court held that an oil and gas operator which held mineral leases pertaining to premises and obtained mineral interests pursuant to such leases was a “property owner” for purposes of Chapter 95. The court held that a coiled tubing wash out qualified as either repair or renovation of an oil and gas well for purposes of Chapter 95. The court also discussed the role of the “company man”, as the term is used in the industry, of the defendant oil and gas well operator for purposes of Chapter 95. The court held that the “company man’s” alleged actual knowledge of the danger of proximity of a tank to a motor did not establish that the oil and gas operator itself had such actual knowledge. The court noted that in this case the “company man” was an independent contractor of an independent contractor of the oil and gas operator and that the “company man” did not have a contract with the defendant operator itself. Francis v. Coastal Oil & Gas Corporation, 130 S.W.3d 76 (Tex. App.—Hous. [1st Dist.] 2003, no pet.).

    • Ken Breitbeil successfully represented a Texas state court judge in connection with several claims brought against him, in his judicial capacity, by the beneficiary of a half-billion dollar trust. This suit alleged, among other things, violations of the beneficiary's rights under 42 U.S.C. § 1983. After we obtained a judgment in our client's favor at the U.S. District court level, the plaintiff appealed to the U.S. Court of Appeals for the fifth Circuit. In a published opinion the Fifth Circuit affirmed the lower court's ruling in our client's favor. See Bauer v. State of Texas, et al., 341 F.3d 352 (5th Cir. 2003).

    • Ken Breitbeil was successful in defending one of the firm's corporate clients in response to a series of EEOC and OSHA-based whistle blower claims, such that these claims were dismissed at the federal administrative level.

    • The firm serves as regional counsel for a large, publicly traded construction and industrial equipment manufacturing company. Ken Breitbeil successfully defended the company, Harsco Corporation, in two jury trials, one of which involved lawsuit claims for product liability and the other involved lawsuit claims for general negligence.