BEAUMONT - It has taken four years, but a Texas appeals court has finally affirmed victory for personal injury lawyer Brent Coon in a malpractice lawsuit accusing him of mishandling a 2010 Deepwater Horizon oil spill claim.
The Ninth District Court of Appeals on Nov. 21 ruled for Coon in a case brought by Nicholas Marteny, a merchant marine who argued his claims against BP were sunk by Coon's tardiness in filing and pursuing them.
Twice Coon has won summary judgment in the trial court, but the Ninth District in 2020 reversed the first. Its latest decision affirms the second. Marteny alleges Brent Coon & Associates BCA failed to file his six-figure claim and that BP settled others' claims.
"However, he failed to establish through expert testimony that BP would have paid to settle his moratorium claims despite a judicial determination it was not liable for such claims," Chief Justice W. Scott Golemon wrote.
"To conclude otherwise would foster the pursuit of otherwise frivolous claims."
Coon took Marteny's case in 2011 to seek damages for loss of earning capacity following the oil spill. In 2012, Coon failed to file a presentment claim under the Oil Pollution Act that would have asked for $162,445.20.
The claim was ultimately rejected as untimely, leading Marteny to fire Coon. But he changed his mind in 2012 and in the years that followed was allegedly led to believe by Coon that the lawyer was still pursuing it.
Marteny ended up suing Coon, who won summary judgment in 2018 because the court handling BP claims said the company was not responsible for economic loss caused by a moratorium on activities.
The Ninth District overturned, finding Coon had failed to carry his burden to negate challenged elements of duty and damage. This time, though, he had, and Marteny failed to respond with expert testimony to create a fact issue on whether Marteny had been damaged.
"Marteny could have provided a controverting expert affidavit explaining why his claims were not purely moratoria related or explaining why his type of claim was entitled to a settlement despite a judicial determination that such claims were non-compensable," Golemon wrote.
"He asserts that neutrals settled thousands of other moratoria related claims, but he does not attempt to explain with expert testimony 'how and why' he would have qualified for such a settlement."
Marteny had instead moved to compel BCA to provide records of settlements of "similar clients" to show he should have received compensation. Courts ruled Marteny failed to tailor his requests sufficiently after the term "similar clients" was challenged.