If the Texas Supreme Court opinions don't seem that "recent" it is because the Court has released only one opinion in the last 5 weeks.

Insurance. Defendant has two primary insurers, one of which also provided excess coverage. Both policies have "other insurance" clauses calling for payments to be shared pro-rata. Plaintiff offers to settle with insured for $1.5M which is greater than the $1M primary on each policy. Insurer A wants to accept offer and asks Insurer B to split settlement equally. Insurer B evaluates the exposure at only $300,000 and offers one-half, or $150,000. Insurer A makes up the difference ($1,350,0000) and then brings this post-settlement action seeking reimbursement from Insurer B. Held: Insurer A had no right of contribution because that right does not exist when there is an "other insurance" clause which limits each insurer's obligation to a pro-rata portion of the loss. Insurer A's subrogation claim also fails because (1) the insured, having been fully indemnified, has no contractual rights to which Insurer A could be subrogated and (2) the insured had no common law claims against Insurer B which Insurer A could assert. Mid-Continent Insurance Co. v. Liberty Mutual Insurance Co., __ S.W.3rd__ (Tex. Sup. 10/12/07).

Employment/Civil Rights In suit alleging disability discrimination under §501 of the Rehabilitation Act, the causation standard is the same as the causation standard under the ADA: the plaintiff must prove that the disability played a motivating role in the adverse employment action. The sole cause standard of §504 does not apply. Pinkerton v. US Department of Education et al., __F.3rd__ (5th Cir. 11/13/07).

Attorneys Fees. Shopping Center sued Tenant for damages which occurred after Tenant's contractor drilled into an underground storm drain during the construction of its slab. Tenant claimed that Shopping Center had a contractual duty to remove the drain line prior to Tenant's construction activities and that this breach of contract entitled Tenant to recover its attorney's fees in the defense of Center's claim. Tenant prevailed in the trial court. Appellate Court holds that since Tenant was not seeking damages resulting from the Center's breach of contract, Tenants attorney's fees were not recoverable under TCPRC § 38.001; nor were they recoverable as "damages" caused by the Center's breach since they were incurred in this case and not incurred in "prior litigation involving a third party." MRO Southwest Inc. v. Target Corp., __S.W.3rd__(Tex. App. -- San Antonio, 10/31/07)

Insurance. Developer's failure to grant homeowners a lakeside park easement , as represented, resulting in their inability to continue using the property in question for that purpose was not a covered loss under a CGL policy because it did not constitute the "loss of use of property" due to an "occurrence" within the meaning of the policy nor an "invasion of the right of private occupancy" for purposes of the Personal and Advertising Injury Liability coverage. Robert Trotter Gift Fund et al v. Trinity Universal Insurance Co., __ S.W.3rd__ (Tex. App. -- Austin 9/13/07)

Limitations. The Texas Constitution's "open courts" provision does not toll limitations but only gives the plaintiff a reasonable opportunity to discover the alleged wrong and bring suit within the limitations period or within a reasonable time after discovering the alleged wrong. Enforcing the two year statute of limitations in former article 4590i §10.01 (now CPRC §74.251) does not violate the "open courts" provision as applied to the plaintiff (who was permanently incapacitated during surgery) because the plaintiff's guardian filed suit (against other defendants) five months before the two year limitations provision expired and failed to sue these defendants for another 22 months. Yancy et al v. United Surgical Partners International et al., __S.W.3rd__ (Tex. Sup. 10/19/07).

Professional Liability In a suit against a licensed or registered professional, a certificate of merit is not required under TCPRC § 150.002 for causes of action other than negligence. Gomez v. STFG, Inc., __S.W.3rd__(Tex. App. -- San Antonio 10/3/07).

Sovereign Immunity. Employee brought suit against Texas A & M and supervisor for breach of an employment contract. The trial court denied the defendants' jurisdictional pleas of sovereign immunity. Court holds that the supervisor -- who was sued in his official capacity -- could take an interlocutory appeal under TCPRC §51.014 (a)(8) notwithstanding the fact that it refers only to jurisdictional pleas by a "governmental unit. " Noting that the State is immune from suit for breach of contract (absent statutory permission) and that the subject contract does not fall under the exception "suggested" in Lawson (involving settlements of a claim for which sovereign immunity has been waived) Court upholds the pleas to the jurisdiction; since the jurisdictional defect cannot be cured by re-pleading, no reasonable opportunity to replead need be given. Texas A & M University System v. Koseoglu, __ S.W.3rd__ (Tex. Sup. 9/7/07).

Sovereign Immunity. Plaintiff alleged that State employees improperly installed radio, siren and lights on a TDPW patrol boat causing the boat to catch fire and damage Plaintiff's storage facility. Trial court denied Defendants' sovereign immunity plea to the jurisdiction. Court holds that work on boat did not constitute a "use or operation" of a motor vehicle within meaning of the Texas Tort Claims Act. The waiver of immunity for personal injury or death caused by a dangerous property condition, does not extend to a claim for property damages. The Texas Parks and Wildlife Department et al v. E.E. Lowery Realty, Ltd et al, __S.W. 3rd __ (Tex. 9/28/07)

Attorney's Fees. Financial Institution failed to process paperwork necessary to create a Joint Account with Right of Survivorship for Plaintiff and her father as promised. After father's death, account funds were distributed through his estate rather than to Plaintiff. Plaintiff brought suit in tort and contract but after verdict elected to recover damages and attorneys fees for breach of contract. Held: Plaintiff must carve out those attorney's fees which relate solely to a claim for which fees are unrecoverable. It is only when legal services advance both recoverable and unrecoverable claims that the services are so intertwined that the associated fees need not be segregated. The Court remanded for a new trial on attorney's fees. A. G. Edwards and Sons, Inc. v. Beyer, __S.W.3rd__(Tex. 9/28/07)

Contd Lower Right Column

You can search and read 70 years worth of State Bar Journal articles. Go here and click on Bar Journal Archive: 1938-2007. If you peruse the early journals, you will see that lawyers in the 1930s and 1940s struggled with many of the same issues we concern ourselves with today.

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Wills and Estates. When survivor of a joint mutual will revokes that will and executes a new one, the new will is valid but subject to an equitable action by beneficiaries under the revoked will to enforce their rights. As the Plaintiff was not a beneficiary in the revoked will but only a putative recipient of a lapsed gift she had no standing to complain. Carroll v. Mertz et al. __S.W.3rd__ (Tex App. -- Austin 11/1/07)

Venue. Venue in an action for breach of a settlement agreement is independent from the venue of the underlying action. Thus, when a settlement demand and a letter accepting a settlement offer were generated by Plaintiff's Bexar County attorney and when that attorney also received calls regarding the case from the opposing lawyer, there was evidence to support the trial court's determination that venue was proper in Bexar County for breach of the settlement agreement even if venue could not have been sustained in Bexar County for the underlying suit. Killeen v. Lighthouse Electrical Contractors, Inc, __ S.W.3rd__ (Tex. App. -- San Antonio 11/14/07)

Settlement Agreements. Settlement agreements concerning pending suits must comply with TRCP 11 to be enforceable. Knapp Medical Center v. Javier E. De La Garza et al, __S.W.3rd__(Tex. Sup. 11/2/07).

Tax Liability of Settlement. In determining whether settlement proceeds are non-taxable Courts look at whether 1) the underlying cause of action giving rise to the recovery is based on tort or tortlike rights and (2) the damages were received on account of personal injury or sickness [amended in 1995 to read:"personal physical injuries or physical sickness"]. The taxpayer must show that the payor's dominant reason for making the settlement payment was for damages for personal injury or sickness and not as payment of punitive damages or for economic loss. After considering the language of the settlement agreement and the surrounding circumstances, the Court holds that plaintiff/taxpayer was unable to show that the proceeds denominated "additional damages" in the settlement agreement were non-taxable income. Green v. Commissioner of Internal Revenue, __F.3rd__ ( 5th Cir. 11/7/07).

Arbitration. Court rejects multiple arguments against enforcement of homebuilder's arbitration clause holding (among other things) that even if the arbitration agreements were contracts of adhesion, adhesion contracts are not automatically unconscionable, there is nothing per se unconscionable about arbitration agreements, and a schedule of AAA 's usual arbitration fees standing alone does not constitute "specific evidence that a party will actually be charged excessive arbitration fees." Court also holds that Plaintiffs must arbitrate with the individual (non-corporate) defendants even though they were non-signatories to the contract since their liability arises from and must be determined by reference to the parties' contract rather than general obligations imposed by law. In re U.S. Home Corporation et al, __S.W.3rd__(Tex. Sup. 10/12/07)