Last month, we covered Williams v. Homeland Ins. Co. No. 20-30196 (5th Cir. 2021) as the Fifth Circuit rejected the fraudulent misjoinder doctrine again. In December, just weeks after the decision,  the Williams case was reported in footnote 11 of Ticer v. Imperium Insurance Co 21-10108 (5th Cir. 2021). This case confirms the Fifth Circuit rule on misjoinder vs improper joinder. On the latter, the court can consider brief summary judgment type evidence.  In Ticer, there was an errors and omissions policy -malpractice- policy. The Court affirmed the district court's substantive analysts of coverage. Concluding there was none. So there was no viable claim against the insurer. The remand of the case was denied but dismissal of the suit against the insurer can ONLY be WITHOUT PREJUDICE. 

This decision leaves us with a few questions. Is that claim barred in light of this language?  What happens if, after it is addressed in state court, the state court says there are issues of fact, which is not uncommon in the E&O context? Interesting. What would you do after dismissal?  Note if the court had found misjoinder the entire case would be remanded. Click here to read our coverage of Williams. Read the full Ticer case here.

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