David Kirby is a partner in the firm and represents businesses and individuals in arbitration, litigation, and appellate matters, including insurance, commercial, energy, pipeline, contract, personal injury, products liability, and premises liability disputes.  He handles matters from inception, including investigation and work-up, through trial and appeal.  He has also been called in at the eleventh hour for trial, where his ability to simplify complex factual scenarios and bring legal issues into sharp focus have served him, and his clients, well.

Mr. Kirby’s practice also focuses on commercial risk management, where he advises clients on insurance coverage, contractual risk shifting, internal policies & procedures, and service contracts.  He also assists clients with starting new businesses and guiding shareholders, partners, and executives through the complexities of compliance and termination, where necessary.

Outside of work Mr. Kirby enjoys spending time with his lovely wife, Leslie, and their two children.   On occasion, he is able to slip away for a round of golf.

Primary Practice Areas

Insurance Coverage Litigation:

  • Review and assess coverage under a variety of insurance policies, including commercial liability, commercial property, commercial auto, business owners package, pollution liability, professional liability, directors and officers, employee practices, cyber liability, umbrella/excess liability, and others
  • Assist clients in establishing claim programs in mass tort settings and in identifying historical coverage for “long tail” liability
  • Pursue coverage under insurance policies through negotiation, mediation, arbitration, and/or litigation

Commercial Litigation:

  • Represent business clients in breach of contract, tortuous interference, breach of fiduciary duty, restrictive covenant,  and fraud lawsuits and injunctions
  • Advise businesses and individuals with respect to covenants not to compete, non-solicitation covenants, confidentiality/non-disclosure agreements, and trade secrets
  • Represent energy companies with respect to pipeline-related acquisition and construction controversies and prosecute condemnation actions for common carrier entities
  • Handle state and federal appeals

Business Law:

  • Oversee small business formation, organization, transfer, and sale and draft related legal documents
  • Review and analyze insurance policies and advise clients on appropriate insurance coverage and risk management programs
  • Draft polices & procedures, contracts, risk shifting provisions, indemnity provisions, employment agreements, non-compete agreements, and others
  • Counsel clients on general business matters

Environmental Law:

  • Represent clients with respect to CERCLA, CWA, CAA, and OPA liability
  • Advise oil and gas businesses in disputes related to claims brought by landowners and governmental entities for property damage arising from historic exploration and drilling activities, including Louisiana legacy liability claims
  • Counsel businesses on environmental remediation

Products & Premises Liability:

  • Lead clients through catastrophic injury and commercial litigation based on claims of defective vehicles, tires, underground storage tanks, resins, asbestos-containing materials, and other products
  • Handle premises litigation for pipeline, refinery, manufacturing,  construction, and other businesses
  • Assist with claims arising from allegations of negligence, defective design, defective manufacture, defective marketing, strict liability, breach of warranty, and deceptive trade practices as well as defenses to liability based on independent contractor status and Chapter 95
Representative Experience:
  • Represented international flooring manufacturer in successful resolution of insurance dispute related to coverage under a series of umbrella policies for asbestos-related liability
  • Guided renewable energy client to a very favorable settlement of a property damage claim under an “all risks” insurance policy
  • Obtained arbitration award on behalf of major energy partnership in a breach of contract action involving a novel issue under the Louisiana Oilfield Anti-Indemnity Act
  • Tried a trade secret, civil theft, and conversion case to verdict
  • Represented an individual in an investigation conducted by the U.S. Securities and Exchange Commission’s Office of International Affairs
  • Obtained summary judgment in favor of client in relation to multi-million dollar insurance dispute regarding offshore drilling rigs damaged by Hurricane Ike
  • Represented client in appeal to the Fifth Circuit concerning issues arising from the retrofit of a super-yacht
  • Represented a drilling interest group as amicus curiae with respect to appeals to the Fifth Circuit stemming from the Deepwater Horizon litigation
  • Obtained dismissal of arbitration proceeding concerning denial of insurance coverage for sunken yacht
  • Successfully represented City of Gonzales in electrocution lawsuit
  • Represented multi-national resin manufacturer in lawsuit regarding alleged chemical contamination that resulted in non-suit of client
  • Represented refinery service company in multi-fatality refinery explosion lawsuit
  • Defended individual in All-Terrain Vehicle accident lawsuit
  • Successfully represented individual in lawsuit against condominium association related to water intrusion into bedroom and living room
  • Prosecuted action on behalf of an individual whose property was damaged due to the improper installation of an air conditioning unit
Education:
  • South Texas College of Law, Doctor of Jurisprudence, 2010
    • Managing Editor, South Texas Law Review
    • Dean’s Scholar
  • Sewanee: The University of the South, Bachelor of Science, 2006
Admissions:
  • State Bar of Texas
  • United States District Courts for the Northern, Southern, Eastern, and Western Districts of Texas
  • United States Court of Appeals for the Fifth Circuit
Memberships/Affiliations:
  • State Bar of Texas
    • Insurance Section
    • Litigation Section
  • Houston Bar Association
    • Litigation Section
  • Texas Association of Defense Counsel
    • Director, 2018-2020
    • Young Lawyer Chair, 2016-2017
  • Golfers Against Cancer
    • Director, 2020
Honors and Awards:
  • Texas Super Lawyers (a Thomson Reuters® service) Rising Star, Texas Monthly Magazine (2014–2020)
  • “Top Lawyer,” Houstonia Magazine (2017-2019)
  • AVVO “Superb” Rating – 10/10
  • Texas Bar Foundation, Fellow
  • Texas Bar College, Member
Publications:
Speaking Engagements:
  • Permissive Appeals in Texas, Texas Association of Defense Counsel 2018 Spring Seminar
  • A Review of the Tripartite Relationship and Considerations in Protecting the Coverage Interests of the Client-Insured, Texas Association of Defense Counsel 2016 Summer Seminar