12/30/09 DALLAS – After going all the way to the Texas Supreme Court and back down on remand, the Fourteenth District Court of Appeals in Houston recently rendered its decision in favor of Shain Khoshbin’s client in Warwick Towers Council Of Co-Owners v. Park Warwick, LP, Park Warwick Investments, LLC. and Park Hotel Investments, LLC.

The case concerns substantial property/business damages arising in the aftermath of Tropical Storm Allison. Specifically, the Warwick Towers and various residents filed suit claiming the Warwick Hotel failed to employ its flood barrier system during a severe rainstorm and, as a result, caused over seven figures in damages. St. Paul Fire & Marine Insurance Co., a subsidiary of Travelers (NYSE:TRV), insured the Towers and made payments as a result of the damage also sought in the lawsuit.

The trial court granted partial summary judgment against the plaintiffs dismissing their trespass and nuisance claims – – which allowed them to proceed with their negligence claim. However, it granted summary judgment against St. Paul dismissing all of its claims based on a contractual waiver provision. St. Paul hired Shain Khoshbin of Clouse Dunn Khoshbin LLP to appeal the trial court decision.

After oral argument, the Court of Appeals reversed the trial court’s judgment dismissing St. Paul’s subrogation claim (including for negligence) and the nuisance claim, and remanded the case to the trial court. The Court of Appeals held defendants’ proof was insufficient to establish that a waiver clause in an easement agreement applied to foreclose St. Paul’s claim as a matter of law. Moreover, it held the nuisance claim should not have been dismissed as a matter of law – – reasoning defendants’ argument that “‘a single, isolated event’ can[not] support ‘a claim for nuisance’ begs the following question: What type of ‘claim for nuisance’ is being asserted?”

“We are glad the court parsed through the complex contractual issues, and agreed with our analysis regarding the waiver. We were confident in our position,” says Shain Khoshbin – – Lead Counsel for Appellant. “In this new age of environmental-related litigation, we are also pleased the court agreed with our analysis regarding the nuisance claim.” CDK associate Robin Bechtold also represented St. Paul in the appeal.

Clouse Dunn Khoshbin LLP is a Dallas-based law firm dedicated to zealous representation, outstanding results and attentive client service. As a boutique devoted to business and employment litigation, the CDK prides itself on adroit reaction to its clients’ needs, innovation, and cost-effective dispute resolution.

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