Personal Injury. The rule that an insurer has no equitable right of subrogation until the insured has recovered a sufficient sum to be "made whole" does not apply to an insurer's contractual subrogation rights and, accordingly, the insurer was entitled to recover from the insured's recovery the policy benefits it paid even if the insured's total recovery did not make him "whole." Fortis Benefits v. Cantu, __S.W.3rd__ (Tex. 6/29/07). PDF

Tortious Interference. In a suit by a subcontractor against the architect for tortious interference with the contract between the subcontractor and the general contractor, the plaintiff does not have to provide a Certificate of Merit affidavit because the affidavit requirement applies only to actions alleging negligence, not intentional torts. Kniestedt v. Southwest Sound and Electronics, Inc, __S.W.3rd__, (Tex. App.--San Antonio 7/3/06)

Indemnity. Gilbane, the general contractor was sued for negligence by Nava, an employee of Keystone who was one of Gilbane's subcontractors. After Gilbane settled with Nava it sought to recover monies it paid in settlement from Keystone pursuant to an indemnity provision under which Keystone agreed to indemnify Gilbane for damages Gilbane suffered as a result of Keystone's negligence. Held: Since the indemnity provision does not meet the express negligence rule, Gilbane cannot recover from Keystone monies Gilbane paid in settlement for its own negligence. And, Gilbane cannot now litigate, post settlement, the question of whether Keystone's negligence caused Nava's injuries. Gilbane Building Company et al v. Keystone Structural Concrete, __S.W.3rd__(Tex. App.--Houston [1st Dist.] 7/26/07).

Indemnity/Contribution. Building owner complained to Paragon, the general contractor, about construction defects. Paragon settled with the owner and sued Guardian, one of the subcontractors, claiming that Guardian had breached the contract by failing to defend and indemnify Paragon pursuant to an indemnity provision under which Guardian agreed to indemnify Paragon for damages Paragon suffered as a result of Guardian's negligence. Held: Paragon could pursue its claim for indemnity. The express negligence rule does not bar Paragon's claim for contractual indemnity against Guardian since Paragon had not yet been found to be negligent and was not seeking indemnity for its own negligence. Paragon lost its right to pursue a contribution claim, however, by settling the entire claim with the owner. Paragon General Contractors, Inc. v. Larco Construction et al, __S.W.3rd__ (Tex. App. -- Dallas 7/26/07)

Personal Injury. The owner of a cement truck was not responsible for an injury sustained by an employee of an independent contractor when the owner did not retain actual or contractual control over the work; providing the contractor with safety procedures for cleaning concrete out of the truck did not impose a duty to monitor compliance with those procedures. The fact that the jury found the activity to be "inherently dangerous" and "a peculiar risk" did not create an nondelegable duty on the part of the owner to ensure the work was done safely. Central Ready Mix Concrete Company, Inc v. Islas, __S.W.3rd__(Tex. Sup. Ct. 6/29/2007).

Constructive Trust. Once a party seeking to impose a constructive trust on specific property meets the initial burden of tracing funds to the property, the entire property will be subject to the trust, except to the extent the record owner is able to distinguish and separate that portion which is legitimately his own. Wilz v. Flourney, __S.W.3rd__ (Tex. 6/29/07). PDF

Employment. In this suit under the Texas Commission on Human Rights Act (TCHRA) a jury finding that the plaintiff's pregnancy was a motivating factor in her termination was supported by the evidence that the employee's supervisor, who had expressed a desire not to have a pregnant employee in the office, influenced the decision maker. However, the $1,000,000 punitive damage award was properly reduced to the $200,000 cap set forth in TCPRC § 41.008 which by its own terms trumped the higher cap ($300,000) set forth in the TCHRA. Arismendez v. Nightingale Home Health Care, Inc., __F.3rd__(5th Cir. 7/23/07)

Employment. Court confirms that sovereign immunity for school districts has been waived by statutory provisions which prohibit retaliation against employees who file worker compensation claims and upholds sanctions against the school district for contesting same by plea to the jurisdiction. Pharr-San Juan- Alamo v. Acosta, __S.W.3rd__ (Tex. App. -- Corpus Christi, 7/26/07)

Attorney's Fees. The award of attorneys' fees in a declaratory judgment action is not depen- dent on a finding that a party "substantially prevailed" and the trial court's award will only be reversed for a clear abuse of discretion. Neeley et. al. v. West Orange-Cove Consolidated ISD et. al.,__S.W.3rd__ (Tex. App. -- Austin 6/21/07).

Lis Pendens. For a lis pendens to constitute constructive notice, the suit on which the lis pendens is based must claim a direct interest in the real property rather than a collateral interest. When the object of the constructive trust is misappropriated real property, the suit involves a direct interest. When the real property in question was purchased with misappropriated funds, the real property interest is collateral and a lis pendens is improper. Countrywide Home Loans, Inc. v. Howard, __S.W.3rd__ (Tex. App. 6/19/2007).

Legal Malpractice. The Texas Supreme Court's decision in Belt et al v. Oppenheimer, Blend, Harrison & Tate, Inc. et al. 192 S.W.3rd 780 (Tex. 2006) permitting a legal malpractice claim by the executor of an estate for negligent advice given to the testator was not limited to "estate planning advice." Accordingly, a malpractice action over legal advice given to O'Donnell years before his death in his capacity as executor of his wife's estate survived his death and could be pursued by his estate's representative to recover for economic losses the advice caused to the estate after O'Donnells death. O'Donnell v. Smith, __S.W.3rd__(Tex. App. -- San Antonio 7/25/07)

Health Care Liability Claim. Claim that a patient was injured when his bed in a treatment center collapsed was not a health care liability claim requiring a Chapter 74 expert report. Christus Health v. Beal, __S.W.3rd__(Tex. App. -- Houston [1st Dist.] 7/26/07)

Cont'd Lower Right Column

HB 1038. Amending the RCLA and Texas Residential Construction Commission Act.

HB 1237. Permitting attorneys to restrict public access to personal information held by the State Bar.

HB 3101. Giving residential tenants additional rights.

HB 1787. Allowing boundary line disputes to be decided in a Declaratory Judgment action.

HB 1268. Requiring attorney's fee provisions in government contracts to be reciprocal.

SB 502. Raising the minimum allowable MV liability insurance limits.

SB 512. Addressing the release of judgment liens against a homestead.

SB 561. Establishing apportionment rules for subrogation claims by local governmental units for benefits paid to injured employees whose third party recovery does not make them whole.

SB 555. Landmark legislation designating April as Texas Fruit and Vegetable Month.

SB 611. Establishing a website for the comparison of residential property and personal automobile insurance policies.

SB 699. Requiring party's last 3 digits of driver's licence number and SS number in initial court pleadings and in abstracts of judgment.

HB 3281, which would have amended TCPRC Section 41.0105 to limit its application to past medical expenses in health care liability claims under Chapter 74, was vetoed by the Governor on 6/15/07.

LawComix

Trial Presentation Blog

How Stuff Works

U.S. District Judge Jerry Buchmeyer's Blog

To facilitate scheduling, my mediation calendar is now online. You can access the calendar from my website www.mcmediate. com which also provides an e-mail link to schedule or hold a date for mediation.

There are no travel charges for mediations within 100 miles of Austin.

Of course, if you prefer, you are always welcome to call me to get available mediation dates. My phone number is 512-474-5573. If I am in a mediation, my assistant is available to help you. Click here to view the calendar. We update the calendar daily.

I am committed to providing the most productive and professional mediation service possible. I welcome your comments and your suggestions about any and all aspects of the mediation process.

Use the Forward Email link below to send this newsletter to anyone you think might have an interest in receiving it. If you are already overwhelmed with e-mail and do not want to receive future issues, you may unsubscribe as indicated below.

Best Regards,

Michael Curry

Premises Liability As a matter of law, the absence of a railing down the entirety of a ramp, which met applicable safety standards, was not unreasonably dangerous notwithstanding the opinion of an expert that the termination of the rail would mislead a customer into believing the ramp ended with the rail, when there was yellow striping on the pavement some four inches below the unrailed portion of the ramp and there had been no other injuries over a 10 year period. Brinson Ford Inc. v. Alger, __S.W.3rd__(Tex. Sup. Ct. 6/15/07). PDF.

Medical Malpractice. A patient's action against her surgeon for failure "to obtain [her] informed consent with regard to the stellate ganglion block" failed as a matter of law. The Court reasoned that although she specifically told her doctor that she did not want a ganglion block, there was no lack of informed consent within the meaning of Chapter 74 of the TCPRC since the doctor had informed her of the risks of such a procedure. The patient was limited to an action for "total lack of consent" e.g. battery, which was among the "other malpractice-related claims" earlier dismissed by agreement. Schaub v. Sanchez, __S.W.3rd__(Tex. Sup. Ct. 6/22/07). PDF.

Contracts. Parties signed a mediated settlement agreement calling for an agreed judgment. When one party moved for judgment on the agreement, the other party withdrew its consent. Held: Court could not enter an agreed judgment absent the consent of all parties. The moving party was required to enforce the settlement as a contract. Topham v. Patterson, __S.W.3rd__ (Tex. App. -- Waco, 7/18/07)