October 5, 2020
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Progressive County Mutual Insurance v. Trevino and Moyeda, 202 S.W.3d 811 (2006)
Procedural Background Comment by Justin Blount: Your spacing is incorrect throughout this entire document. Reference the short video I have recorded for you that shows you exactly how to get this right and fix it.
The insured’s creditors Trevino and Moyeda sued theProgressive in the 365th Judicial Court, Maverick County, to collect on a default judgment against Alvaredo, a driver who Progressive insured. The district court ruled for Trevino and Moyeda. automobile liability insurer following to their collecting on default judgment which is against the insured. The case was heard in a court of law in the 365th Judicial District Court, which is in Maverick County, and the judge ruled the case in favour of creditors. ProgressiveThe insurer appealed to the San Antonio Court of Appeals. which stated that clauses of cooperation had conditions precedent to coverage, termination of the cooperation agreement by the insured prejudiced the insurer according to law and the clause about cooperation was valid.
Facts Comment by Justin Blount: You are going to have to do some heavy editing to your writing to make this clearer. I really can’t understand what you are saying in this section. What you need to do is read the case carefully, think about what it says, and then describe the facts of the case in your own words, using plain English. This reads like you have just copied things from the case and then moved the words around so that it’s not plagiarism. If that is what you have done, you can’t do that and still have your writing make sense. It’s not plagiarism to use some of the same words. It is plagiarism to copy entire sentences/phrases. Just use good, simple English and describe the basic facts of the case here.
Alejandro Alvarado is a driver covered by automobile insurance. In the case, Trevino and Moyeda acquired an after answer wrong judgment against Alvarado. However, according to Progressive, Alvarado had regularly told Progressive of negligence suit raised by Trevino and Moyeda, and he rejected cooperating with his defense. Due to Alvarado’s refusal to cooperate the lawyers who were hired by the Progressive to stand for Alvarado exited. Before their exit, they filed a motion to proceed with the trial and Trevino, and Moyeda confirmed their attendance, but Alvarado did not show up for trial. The district court went ahead to listen to the facts and reasoning from them entering a decision which awarded $45000 to Trevino and $25000 to Moyeda. Comment by Justin Blount: I have no idea what this is. Just use the correct legal terminology – they got a “default judgment” against him. It’s not plagiarism to use the correct names for things. You can’t just arbitrarily change words and still convey the same meaning.
The issue is to know if the cooperation clause of an automobile is a condition precedent to policy covering. Comment by Justin Blount: Read the instructions. This should be a question. Again, just use simple sentence structure to convey meaning. This sentence is a mess. Just say something simple like “Was the cooperation clause in the insurance policy a condition precedent or a covenant?”
Rule Comment by Justin Blount: This entire section has to be redone. What you have written here just doesn’t make any sense. You need to do what I expressly tell you to do in the instructions – just copy in this section, but put it in quotes. It’s critically important to writing a good brief that you get the law write. So I don’t understand why you aren’t doing what I told you to do and copying the law used by the court verbatim in this section. Just read the case carefully and find the law the court uses to resolve the case, and put it down here verbatim, but just put quotation marks around it. This is the one section of the brief that I expressly tell you that this is OK.
In the determination of the clause, if it is a covenant or condition precedent, there are principles of contract understanding which argue that conditions precedent to an obligation happens after the establishment of an agreement that has to take place prior to the performance and before a breach of a contractual duty. Lack of limiting clauses if a particular contractual provided is a condition, not a promise, is collected from the agreement and the intention of the people. Nevertheless, in a case, the purpose of the people is not certain can lead to an impossible outcome, then the contract will be determined as causing a covenant instead of a condition.
Application Comment by Justin Blount: This entire section has to be redone. Your writing issues continue here so it is really hard to understand what you are saying, but virtually all of what you are saying here is not application. You have to be much more structured and ordered in your writing. Follow the example I have given you and the instructions – reference back to your rule(s), and then apply those rules to your facts to answer the legal issue that needs to be resolved. You simply aren’t doing that here. You are just writing a bunch of stuff. I’ve provided a roadmap here to help you out on this. Flesh this roadmap out and you’ll have a much better answer. Remember – use simple, clear sentence structure and plan English so your reader can understand what you are saying.
Under the law, if the cooperation clause in the policy is a condition precedent to Progressive’s performance, then Trevino and Moyeda have a burden to prove that the condition precedent was satisfied by Alvaredo to collect on their judgment. However, if cooperation clause is a covenant, Progressive has the burden of proof. The court notes that in Harwell, the Supreme Court of Texas held that [describe the Harwell decision by referencing back to your rules section.] Since the cooperation clause in this case is almost identical to the cooperation clause from Harwell, the court rules that [describe that the court rules with respect to Harwell and whether this cooperation clause is a condition precedent or a covenant].
In this case, Progressive was prejudiced by Alvaredo’s failure to cooperate. This is because [explain the facts relating to how Alvaredo failed to cooperate and how this impacted Progressive’s ability to defend itself.]
After getting the wrong judgment against Alvarado, they sued Progressive because due to the decision against Alvarado, it made them creditors of judgment and thus brought a claim against Progressive. In their petition, Trevino and Moyeda pled that all conditions had been achieved. However, Progressive rejected that all conditions precedent had been met. Progressive reasoned that due to the cooperation clause being a precedent, they had the challenge to ascertain that Alvarado followed the clause and failure to bring facts, they would be unable to ascertain the fulfilment. Trevino and Moyeda answered by stating that cooperation clause was not a condition precedent but a covenant and that as a covenant, Progressive had the challenge of demonstrating Alvarado did not fulfil the covenant and Progressive was prejudiced as an outcome. After the court’s rejection of the motion, Progressive brought its facts and conclusion, which led to judgment although the court rejected the motion and decided for Trevino and Moyeda.
Applying Harwell v. State Farm Mutual Automobile Insurance, we affirm that cooperation clause is a condition precedent. Trevino and Moyeda were challenged to show fulfilment considering that the obligation of the insurer relied on the approval of all conditions precedent being used and require a complainant to accept that all conditions have been fulfilled and to demonstrate the opposite party expressly denies only such of them. However, they did not bring forward facts that Alvarado had abided by the clause.
The court reversed the decision of the trial court. It rendered a take-nothing decision in favour of Progressive since they did not avail facts about cooperation and due to Progressive’s prejudice according to law and Trevino and Moyeda cannot recover from Progressive. Comment by Justin Blount: This sentence makes absolutely no sense. You need to completely rewrite this sentence using simple sentence and plan English so that it makes sense. Comment by Justin Blount: In American English, “favour” is incorrect. It is “favor.”
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