South Texas Insurance Defense Attorney
  Zeke Moya
Partner  ·  Roerig, Oliveira & Fisher, L.L.P.  ·  McAllen, Texas

As an insurance defense attorney in Texas, defending premises liability lawsuits can be challenging but rewarding work. These cases often involve complex legal principles and intricate details that require a deep understanding of both law and strategy. Here are some key insights and trends in defending premises liability claims. Understanding Premises Liability Premises liability refers to the responsibility of property owners and occupiers to maintain a safe environment for those who enter their property. In Texas, the injured party must prove that the property owner was negligent in maintaining the property, leading to their injury. This involves demonstrating that the owner had actual or constructive knowledge of the dangerous condition and failed to address it adequately. Key Defense Strategies 1.  Challenging Notice:  One of the most effective defenses is to challenge whether the property owner had actual or constructive notice of the dangerous condition. This involves investigating the incident thoroughly to establish that the owner was unaware of the hazard or that it did not exist long enough to warrant action. Here are some Texas cases holding that the premises owner did not have notice:   Wal-Mart Stores, Inc. v. Reece (2002) : The Texas Supreme Court held that Wal-Mart did not have constructive notice of a spill because there was no evidence indicating how long the spill had been present. The court emphasized the "time-notice rule," which requires temporal evidence to establish constructive notice. Albertsons, LLC v. Mohammadi (2024):  The court found that the placement of a leaking bag in a cart did not establish that Albertsons (premises owner) had constructive knowledge of water on the floor because there was no evidence that Albertsons’ had a policy or practice of leaving leaky bags in shopping carts or that Albertsons knew the problem routinely recurred. The court clarified the constructive and actual knowledge standards in premises liability cases.   2.  Open and Obvious Doctrine:  If the dangerous condition was open and obvious, the defense can argue that the injured party should have recognized the hazard and taken steps to avoid it. This doctrine can significantly limit the property owner's liability.   Austin v. Kroger (2024) : The Texas Supreme Court found that Kroger (premises owner) did not have notice of the dangerous condition because the spill was open and obvious. The plaintiff, Austin, was the employee responsible for mopping up the oily liquid that caused his fall. Since the spill was visible and Austin was aware of it, the court ruled that Kroger had no duty to warn him about the hazard. This decision underscores the principle that property owners are not required to warn the injured party about open, obvious, or known dangers.   3.  Comparative Fault:  Texas follows the comparative fault rule, which allows for the allocation of fault between the parties. The defense can proportionately reduce the property owner's liability by demonstrating that the plaintiff's actions contributed to their injury. 4.   Utilizing Surveillance Footage:  With the prevalence of surveillance cameras, obtaining video evidence can be a game-changer in defending premises liability cases. Video footage can provide a clear and objective account of the incident, potentially discrediting the plaintiff's version of events.    5.    Expert Testimony:  Engaging expert witnesses can be pivotal. Experts can testify about safety standards, the nature of the injury, and the cause of the accident. Their testimony can provide critical support to the defense's arguments. Emerging Trends Emphasis on Documentation:  Ensuring thorough and accurate documentation of the property conditions and maintenance activities is becoming increasingly important. Proper documentation can demonstrate that the property owner took reasonable steps to maintain safety. Technological Advances:  Technology such as 3D modeling and accident reconstruction software can enhance the defense's ability to present a compelling case. These tools can help illustrate the property conditions and the sequence of events leading to the incident. Spoliation of Evidence:  Defense attorneys are increasingly vigilant about preserving evidence. Failure to preserve critical evidence can result in spoliation claims, undermining the defense's position. Conclusion Defending premises liability lawsuits in Texas requires a strategic approach and a keen understanding of the law. Defense attorneys can effectively represent their clients and mitigate liability by focusing on challenging notice, leveraging the open and obvious doctrine, asserting comparative fault, and utilizing technological advancements. Staying abreast of emerging trends and best practices is essential for successful outcomes.   As the legal landscape evolves, insurance defense attorneys must adapt and innovate to provide the best possible defense for their clients. Don't hesitate to reach out if you have any questions or need assistance with a premises liability claim. The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.

On June 6, 2025, the Texas Supreme Court issued a 5-4 opinion in Leibman v. Waldroup , No. 23-0317, a closely watched case testing the boundaries of the Texas Medical Liability Act (TMLA). At issue was whether a physician’s conduct—authoring letters for a former patient supporting the need for a service animal—constituted a “health care liability claim” (HCLC) subject to the procedural requirements of Chapter 74 of the Texas Civil Practice and Remedies Code. The Court said no. This ruling is significant. It clarifies the extent to which a physician’s actions, particularly those outside the traditional physician-patient setting, may be shielded under the TMLA. The case drew sharp lines between the majority and dissenting justices over the purpose and reach of the statute. Background: When Medicine Meets Misrepresentation Dr. Maurice Leibman, a gynecologist, provided two letters for his former patient, Jennifer Romano, attesting that she required a service animal to assist with generalized anxiety disorder. These letters were used by Romano to fraudulently obtain service animal credentials for her dog, Kingston. More than a year after her treatment with Dr. Leibman ended, Kingston attacked a child, R.W., in a Houston-area restaurant. The child’s parents sued Dr. Leibman, alleging negligence and fraud. Dr. Leibman responded with a motion to dismiss under the TMLA, arguing that the claims were HCLCs and should be dismissed due to the plaintiffs’ failure to serve an expert report within 120 days, as required by Section 74.351. The trial court denied the motion. The appellate court affirmed. Dr. Leibman petitioned the Texas Supreme Court, arguing that his conduct—assessing Romano’s mental health condition and documenting the need for a service animal—was inextricably intertwined with the provision of medical care. The Supreme Court Majority Opinion: Attenuation and the Limits of the TMLA Writing for the majority, Chief Justice Hecht concluded that the Waldroups' claims did not fall under the TMLA. The Court emphasized that: Dr. Leibman’s conduct did not involve diagnosis, treatment, or professional medical judgment regarding Romano’s condition at the time the letters were issued; The letters were written well after the physician-patient relationship ended;   The harm (a dog bite to a third party) was too remote and attenuated from any act of medical care;   No expert medical testimony was necessary to assess whether Dr. Leibman acted reasonably in providing the letters. The Court cautioned that applying the TMLA to these facts would unreasonably extend its protections to non-clinical conduct with only tangential ties to health care. “To say that this is an HCLC is to stretch the Act beyond what its plain language supports,” Chief Justice Hecht wrote. The Dissent: A Warning Against Artful Pleading Justice Huddle, joined by Justices Devine, Young, and Bland, dissented sharply. She argued that the majority’s focus on the post-treatment timing and third-party injury ignored the TMLA’s broader scope. She emphasized that under Texas West Oaks Hospital v. Williams , the statute encompasses claims involving “safety” standards if they bear a substantive relationship to the provision of medical care. The dissent viewed Dr. Leibman’s conduct as a continuation of medical services: The letters were based on Dr. Leibman’s treatment of Romano for anxiety; The decision to endorse the need for a service animal required professional judgment;   Evaluating whether he acted within the standard of care would require expert testimony. Justice Huddle warned that the majority’s opinion invites plaintiffs to evade Chapter 74’s protections through creative pleading. “The Court allows an artfully pleaded claim to bypass the Legislature’s express requirements for HCLCs,” the dissent concluded. Key Takeaways: What This Decision Means Going Forward 1.     The Physician’s Role Alone Is Not Determinative Just because a physician authored the document at issue doesn’t make the resulting claim an HCLC. The context, timing, and nature of the act matter.   2.     Attenuation Matters Conduct occurring well after the treatment relationship has ended—and resulting in harm to third parties—may not qualify as related to health care.   3.     Expert Testimony as a Touchstone A central question remains whether expert testimony is necessary to evaluate the claim. If not, the claim likely falls outside the TMLA.   4.     Artful Pleading or Legitimate Classification? The dissent’s concern signals that future disputes will likely turn on how well plaintiffs craft their pleadings to avoid Chapter 74’s procedural hurdles.   Conclusion Leibman v. Waldroup marks a notable boundary-setting decision in Texas health care liability jurisprudence. While it provides clarity on the limits of Chapter 74, it also leaves room for future litigation over when a professional opinion—even outside the exam room—crosses the line into protected medical conduct. This case is a must-read for Texas litigators, health care providers, and insurers navigating the evolving contours of health care liability law.

A year ago, I bet on myself. I transitioned to Roerig, Oliveira & Fisher, LLP with one goal in mind: to start my own team and plant my own flag. Not just in title, not just in name, but in identity. In ownership. In direction. Starting something new always sounds exciting from the outside. Living it day-to-day is different. There were moments this year when I felt the weight of that decision. I felt the pressure of wanting to build something meaningful. I also felt a responsibility to represent clients at a high level. At some point, every professional faces the same internal question: Can I really do this the way I envision it? This year gave me that answer. Stretching in All the Right Ways This past year stretched me in the best ways. It challenged me professionally and forced me to grow strategically. One of the biggest highlights was getting back into marketing in a way I hadn’t done in a while. When you’re deep in litigation work, marketing can easily get pushed aside. But for me, it became part of the mission. Marketing forced clarity. It made me think intentionally about my message, my consistency, and what I want clients to feel when they place their trust in me. It was also refreshing to market in the context of being an insurance defense attorney, because in this world, credibility matters. Consistency matters. Relationships matter. Trust matters. Moment No. 1: “You’ve Made It Small” One of the most impactful moments of my year did not happen in a courtroom. It happened in a conversation. I met with a client who is also a friend. As we talked, we realized we had many mutual connections. I smiled and said, “Man, we live in a small world.” He responded with something I will never forget: “It’s not that the world is small. You’ve made it small.” That hit me. Because what he was really saying was that relationships do not just happen. They are built. Earned. Maintained. They require consistency, follow-through, and showing up over time. That statement will stay with me for a long time. It is also a reminder, as we enter 2026, that connection is not luck. It is intentional. Moment No. 2: Wins That Reminded Me Why We Fight This year also brought meaningful wins for clients, the kind that matter deeply. Some wins come through dismissal. Some come through a settlement that protects a client’s bottom line. Some come through preparation, paying off at precisely the right moment. Each of those outcomes embodies discipline, focus, and strategy. I am grateful for every client who has trusted me with the fight. Moment No. 3: Finding Rhythm Again At some point this year, something clicked. I found rhythm. The kind of rhythm that comes from being in the right place, surrounded by the right people, doing work that feels aligned with who you are and how you want to practice. I have joined a team of lawyers I genuinely respect. They are people I can count on, learn from, and stand shoulder to shoulder with when it matters. Talent matters, but team matters more. Having the right people around you makes the pressure lighter. It also makes the mission clearer. Looking Toward 2026 This year was not just about changing firms. It was about building identity, expanding capacity, and earning momentum. As I look ahead, I’m stepping into 2026 with new goals and bigger ambitions. I want to keep building the team, serving clients at a high level, growing the brand, and pushing myself to operate at an even higher standard. I am proud of what this past year represented. Growth. Resilience. Progress toward something I have been envisioning for a long time. Ever forward.

October 30, 2025 – Thirteenth Court of Appeals Issues Favorable Ruling in Chapter 74 Case Attorney Zeke Moya of Roerig, Oliveira & Fisher, LLP successfully represented a local hospital in both the trial court and on appeal, securing a full dismissal with prejudice in a slip-and-fall lawsuit after the Thirteenth Court of Appeals ruled the claim constituted a Health Care Liability Claim (HCLC) under Texas law. Case Overview The plaintiff, a patient referred for aquatic therapy, alleged she slipped on water in a locker room immediately after completing a therapy session at the hospital. She sued under a premises liability theory, asserting the hospital failed to maintain a safe condition. Zeke Moya, representing the hospital, moved to dismiss the case under Chapter 74 of the Texas Civil Practice & Remedies Code, arguing that the claim was actually a health care liability claim requiring the plaintiff to serve an expert report. The trial court denied the motion—but the appellate court reversed. Key Findings by the Appellate Court In its October 30, 2025, opinion, the Court held that the plaintiff’s claim was inextricably linked to the delivery of health care. Applying the Ross v. St. Luke’s  framework, the Court emphasized: The plaintiff was a patient, not a visitor. The locker room was an extension of the therapeutic environment, not a general common area. The alleged unsafe condition (a wet floor) was a foreseeable risk inherent to aquatic therapy. The hospital’s duties in this context were professional safety standards, not general premises obligations. 📌 The Court explained: “The locker room, where patients shower and change after aquatic therapy, is indirectly related to the provision of health care.”  — Doctors Hosp. at Renaissance v. Corona , No. 13-25-00360-CV The result: Dismissal with prejudice and an award of attorneys’ fees and costs to the hospital under § 74.351(b). Why This Ruling Matters This decision reinforces that therapy-related claims involving patient care and treatment-specific areas must be evaluated through the lens of Chapter 74. Artful pleading does not control—substance prevails over labels. For health care providers across Texas, this case underscores the importance of asserting Chapter 74 defenses early, especially when post-treatment areas like therapy pools, showers, or locker rooms are involved. A Word from Lead Counsel “It was an honor to defend our client through every stage of this litigation,” said Zeke Moya, who handled the case from pre-suit through final appellate resolution. “The Court’s ruling affirms what we’ve argued from the start—claims tied to patient care, even outside the operating room, fall squarely within the protections of Chapter 74.”

By Zeke Moya, Trial Counsel for Petitioner in Renaissance Medical Foundation v. Lugo On May 23, 2025, the Texas Supreme Court issued a highly anticipated decision in Renaissance Medical Foundation v. Lugo , addressing whether a nonprofit health organization (NPHO) can be held vicariously liable for the alleged negligence of its employed physician. I had the honor of serving as trial counsel for the petitioner, Renaissance Medical Foundation, in this pivotal case. The Core Legal Question At issue was whether Chapter 162 of the Texas Occupations Code—specifically Section 162.0021, which prohibits NPHOs from interfering with or controlling a physician’s professional judgment—modifies the traditional common law rules of vicarious liability. The plaintiff alleged that a neurosurgeon employed by the NPHO negligently caused injury during surgery. The NPHO moved for summary judgment on the grounds that it could not be held vicariously liable where the alleged negligence stemmed from the physician’s independent medical judgment, which the organization is statutorily prohibited from directing or controlling. Supreme Court’s Holding The Texas Supreme Court affirmed the lower courts’ denial of summary judgment, but did so while establishing a new legal framework for evaluating vicarious liability claims against NPHOs. Key takeaways from the majority opinion authored by Justice Brett Busby include: Statutory Limits Matter : A nonprofit health organization cannot be held vicariously liable where doing so would require it to control or interfere with its physician’s independent medical judgment in violation of § 162.0021. Not a Blanket Immunity : NPHOs can still be vicariously liable in circumstances where the alleged negligence does not involve independent medical judgmen t , or where the organization exercised impermissible control in violation of the statute. Summary Judgment Guidance : The Court outlined a path for future litigants, explaining that NPHOs may defeat vicarious liability claims at the summary judgment stage if they can show that the conduct in question falls within the physician’s exclusive domain of professional judgment. Why This Matters This is the first time the Texas Supreme Court has squarely addressed how Chapter 162 interacts with common-law employer liability. The opinion reconciles statutory protections for medical autonomy with long-standing agency principles, providing a roadmap for future litigation involving hospitals, physician groups, and nonprofit health systems. While the Court ultimately affirmed the denial of our summary judgment motion, it accepted our core premise: that Texas law places meaningful limits on when NPHOs can be held liable for the conduct of their physician employees. The Court invited a renewed summary judgment motion under the clarified standard, which now more clearly delineates when an NPHO’s right of control exists—and when it doesn't. My Reflections as Trial Counsel This case presented a unique opportunity to shape the intersection of health law and tort liability in Texas. From the outset, we argued that imposing liability where an NPHO is prohibited  from exercising control would create an untenable legal contradiction. The Supreme Court’s opinion validates that concern and provides important doctrinal clarity. As healthcare law continues to evolve, this decision will stand as a touchstone for how courts assess the boundaries of vicarious liability within the context of professional autonomy. Zeke Moya Partner, Roerig, Oliveira & Fisher, LLP Trial Counsel for Petitioner in Renaissance Medical Foundation v. Lugo Insurance Defense | Healthcare Litigation | Strategic Risk Management

Texas Senate Bill 30 (SB 30) continues to evolve as one of the most closely watched civil justice reform proposals in recent memory. While the bill’s journey began with bold proposals to impose strict limits on medical damages and non-economic recovery, its current form reflects months of negotiation, legislative compromise, and public testimony. Here’s a breakdown of how SB 30 has changed—and where it stands now. 🏛️ The Original SB 30: Aimed at Capping Recovery and Increasing Uniformity Filed during the 89th Texas Legislature, the original version of SB 30 introduced sweeping changes: • Medical Damages Cap: Limited unpaid medical damages to 150% of private payer rates, derived from the Texas All-Payor Claims Database. • Non-Economic Damages Definition: Sharply narrowed recoverable mental anguish, disfigurement, and loss of enjoyment of life. • Remittitur Triggers: If non-economic damages exceeded preset monetary thresholds (e.g., $1M for mental anguish), the trial court would be required to remit or justify the award. • Jury Unanimity Requirement: Required unanimous jury findings for non-economic damage awards. • Referral Disclosures: Made referral relationships between attorneys and providers automatically admissible, regardless of whether the provider testified. While insurers and business groups praised these proposals, critics—including survivors, trial lawyers, and some physicians—argued the bill went too far in limiting access to fair compensation and infringing on jury rights. ⚖️ The Senate Engrossed Version: A Strategic Retreat After public hearings and amendments, SB 30 passed the Texas Senate on April 16, 2025 by a vote of 20-11. The Engrossed version preserved many of the bill’s structural reforms but walked back some of the more controversial provisions: • Medical Damages Benchmark Revised: Replaced the All-Payor Claims Database with a 300% Medicare cap, applicable only to care provided under letters of protection (LOPs). • Remittitur and Jury Unanimity Dropped: The mandatory remittitur provisions and the unanimity requirement for non-economic damages were removed. • Refined Disclosure Rules: Referral and financial relationship disclosures were only admissible if the provider testified or their records were used at trial. • 18.001 Affidavits: Replaced counteraffidavits with a notice of intent to controvert, easing procedural burdens on defendants. The Senate’s version retained the bill’s core: promoting billing transparency, limiting recovery based on inflated charges, and increasing predictability in jury verdicts. 🧾 The House Committee Substitute (May 21, 2025): A Procedural and Evidentiary Shift The House Committee Substitute released on May 21, 2025 significantly restructures how health care damages and trial disclosures function in Texas litigation. While it keeps SB 30’s transparency goals, it offers a more flexible and detailed procedural framework. Key Changes: • No More Medicare Cap: Instead of a one-size-fits-all cap, evidence that may be offered to prove the amount of healthcare expenses includes: • Medicare rates • Texas Workers’ Compensation fee guidelines • Usual & Customary (UCR) rates • Provider’s contracted rates or collected charges • Billed charges (as a last resort) • Stricter Evidentiary Rules: Medical billing evidence must now include CPT/HCPCS codes, service dates, and descriptions, and must be disclosed at least 45 days before trial if introduced via expert. • Expanded Disclosures: • Attorneys must disclose referral sources and the number of past referrals to each provider. • Providers must disclose payment histories and referral volumes from the referring attorney. • Letters of protection and financial arrangements are automatically admissible if the provider testifies or records are introduced. • Mental Anguish Recovery: Recovery remains limited to grievous, debilitating distress that causes substantial disruption to daily life, arising from defined categories like disfigurement or loss of companionship. • 18.001 Affidavit Reform: Affidavits are stripped of evidentiary weight once controverted. A notice of intent to controvert replaces the former counteraffidavit requirement. • Effective Date: • Immediately if the bill receives a two-thirds vote in both chambers. • Otherwise, it takes effect on September 1, 2025. • Applies to cases filed on or after the effective date, or tried on or after January 1, 2026. 🧭 Where We Stand Now SB 30 is now in the hands of the Texas House, where further amendments and negotiations are possible. The House version represents a deliberate shift from hard caps to data-driven, procedure-based reform, which may help it withstand both political and constitutional scrutiny. For insurers, businesses, and litigators, the bill’s latest version signals a more sophisticated approach to controlling damages while preserving access to trial and jury discretion. Whether it passes in its current form—or is reshaped again on the floor—SB 30 is poised to have lasting implications on how personal injury cases are litigated in Texas. Zeke Moya is a civil litigator and former U.S. Army officer representing insurers, hospitals, and businesses in South Texas. He tracks legislative developments that impact Texas litigation strategy, risk exposure, and trial outcomes.

Texas may be on the brink of a significant shift in civil litigation. House Bill 4806 (HB 4806), currently under review by the Judiciary & Civil Jurisprudence Committee as of March 6, 2025, is set to curb runaway jury awards, limit inflated medical damages, and create greater fairness in personal injury and wrongful death lawsuits. If passed, this bill will protect insurance carriers, business owners, and defendants from excessive claims while ensuring fair compensation for injured plaintiffs. Why HB 4806 Matters Over the past decade, Texas has seen an alarming rise in nuclear verdicts—jury awards that far exceed reasonable compensation and are often driven by emotional appeals and inflated damages calculations. HB 4806 seeks to address these issues by limiting noneconomic damages, reforming medical expense recovery, and restricting punitive damages. Key Provisions of HB 4806 1.Limits on Noneconomic Damages (Pain & Suffering, Mental Anguish) Under HB 4806, juries must unanimously agree on the amount awarded for pain and suffering, and mental anguish, which will now be capped as follows: $1 million cap for mental anguish in wrongful death cases. Pain & suffering in personal injury cases: Capped at the lesser of: 3x the total of past and future medical expenses, OR $100,000 per year of life expectancy. $1 million cap for mental anguish in cases arising from emotional injury. $250,000 cap for mental anguish in cases where the plaintiff suffered physical injury. These provisions will prevent excessive damage awards, ensuring compensation aligns with actual injuries rather than speculative claims. 2. Stricter Rules on Medical Expense Recovery Past and future medical damages will be limited to : The amount actually paid by insurance or the injured party. If no payment was made, 150% of the median market rate based on the Texas All Payor Claims Database. Eliminates the use of inflated medical bills, particularly those supported by letters of protection (LOPs), which often distort actual costs to increase settlements and jury awards. Medical providers who do not intend to testify at trial cannot have their charges controverted, provided they meet the 150% threshold of market rates. This will prevent the use of artificially inflated medical charges that are not reflective of real-world pricing. 3. Limits on Punitive Damages Plaintiffs must prove by clear and convincing evidence that the defendant acted with fraud, malice, or gross negligence. A unanimous jury decision is required for punitive damages. Employers cannot be held liable for punitive damages unless they authorized, ratified, or knowingly retained an unfit employee. This ensures punitive damages are reserved for truly egregious conduct, rather than being used as a tool for excessive verdicts. 4. Stronger Discovery Rights for Defendants Plaintiffs must disclose letters of protection, medical provider relationships, and referral arrangements. Defense attorneys can request anonymized lists of other patients referred by the plaintiff’s lawyer to the same medical provider over the past two years. Courts must limit arbitrary formulas used to calculate damages (e.g., “$X per day for pain and suffering” arguments). This increases transparency, preventing collusion between attorneys and medical providers that artificially inflates damages. The Potential Impact of HB 4806 ✅ Reduces settlement pressure caused by inflated damages claims. ✅ Prevents excessive verdicts that inflate insurance premiums and business costs. ✅ Ensures fair compensation without excessive windfalls. ✅ Increases predictability in litigation, benefiting insurance carriers and business owners. What’s Next? HB 4806 is currently under committee review. If it advances, it could become law as early as September 1, 2025, fundamentally altering the litigation landscape in Texas. Final Thoughts This bill represents a significant step toward fairness in the courtroom for insurance carriers, business owners, and defense attorneys. While plaintiffs will still be able to recover reasonable compensation, HB 4806 ensures damages reflect actual harm rather than exaggerated claims. We will continue to monitor HB 4806’s progress and provide updates on how it may affect litigation strategy and claims handling in Texas. 🔹  What are your thoughts?  Is this the right move for tort reform in Texas, or do you foresee challenges ahead? Let’s discuss in the comments. #TexasTortReform #HB4806 #NuclearVerdicts #InsuranceDefense #Litigation