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General Agents Insurance Co. of America3/15/2000
Opinion by:Phil Hardberger, Chief Justice
REVERSED AND REMANDED
General Agents Insurance Company of America, Inc. ("GAINSCO") appeals a judgment rendered in favor of The Home Insurance Company of Illinois, Inc. ("Home") in a subrogation action. GAINSCO presents seven issues for review, asserting: (1) Home is barred from recovering as a subrogee because it violated the provisions of GAINSCO's policy; (2) Home is precluded from recovering on its subrogation claim because: (a) Home breached its policy by failing to defend the insured; and (b) Home had unclean hands in the handling and settlement of the underlying lawsuit; (3) the jury charge was erroneous; (4) Home is judicially estopped from asserting a right to recover based on a contrary position taken in another lawsuit; and (5) Home is not entitled to recover attorney's fees. We reverse the trial court's judgment and remand the cause for a new trial.
Factual Background
GAINSCO and Home were concurrent primary insurers of Power Equipment International, Inc. ("Power Equipment"). Both policies had $1 million limits. Power Equipment also had excess insurance through Royal Insurance ("Royal"), in the amount of $5 million.
Manuel Godines died after a tank truck he was driving rolled over and caught on fire. There were gruesome pictures depicting Godines's injuries, and there was some evidence that Godines survived a short period of time while burning. Godines was survived by his wife of 38 years, his four adult children, and his fourteen grandchildren. The evidence revealed that Godines was a likeable family man and a hard worker.
Various causes were alleged to have contributed to the accident, including: (1) the poor condition of the road, (2) Godines's negligent driving during rainy weather that caused the truck to hydroplane, (3) the poor mechanical condition of the truck, and (4) the brakes. Various entities were sued, including Power Equipment. Power Equipment had worked on the truck's brakes three months prior to the accident. In examining the brakes after the accident, oil was located on a portion of the brakes, and the plaintiffs contended that this oil evidenced negligence in the work that Power Equipment previously performed. Power Equipment's attorney stated that the oil could have been caused by: (1) the accident itself; or (2) the oil that poured from the central axle during the disassembly of the truck by the plaintiffs' expert. There was competing expert testimony with regard to whether the brakes were a contributing factor to the accident. There were four eyewitnesses, but none saw Godines's brake lights come on. The inference was that Godines never applied his brakes. The investigating DPS officers concluded that the accident was due to Godines's failure to take evasive action. Witnesses were available to testify regarding the poor condition of the road and the problems they had experienced with that road during rainy weather. A mechanic, who inspected the truck the day before the accident, would testify that the brakes were fine. This testimony had its weaknesses because of the cursory nature of the mechanic's inspection. Members of Godines's family would testify that Godines continually complained of the condition of the truck, including the brakes. This testimony was corroborated by a co-worker, who also said that the brakes were not working properly. In summary, there was the usual potpourri of evidence favoring and disfavoring both sides. It is likely that a jury verdict favoring either side would have sufficient evidence to support it.
GAINSCO was the first to receive notice of the claim and hired Larry Coffey to defend Power Equipment. Home later receive
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