Insurance. Triple S contracted to perform work for ATOFINA, and agreed to indemnify ATOFINA for personal injuries or property damage sustained during the performance of the contract (except to the extent the loss was caused by ATOFINA's sole or concurrent negligence). Pursuant to its contract Triple S purchased a CGL policy and an excess policy which covered it's indemnity obligation to ATOFINA and named ATOFINA as an additional insured on both policies. When ATOFINA was sued over the death of a Triple S employee, the excess carrier denied ATOFINA coverage. ATOFINA settled with the plaintiff' and sought reimbursement from the excess carrier. The Texas Supreme Court withdrew its May, 2006 opinion and issued a new opinion holding: (1) ATOFINA was covered as an additional insured even if it was not entitled to indemnity under the contract for it's own negligence; (2) the excess carrier's denial of coverage barred it from challenging the reasonableness of ATOFINA's settlement; and (3) ATOFINA's claim against it's excess insurer for reimbursment was a "third party claim" not subject to Ins. Code Art. 21.55 (now §542.051-.061).Evanston Ins. Co. v. ATOFINA Petrochemicals Inc., __S.W.3rd__(Tex. 2/15/2008).

Products Liability. Texas Supreme Court found error in a jury question asking whether there was a "manufacturing defect in the 1999 Ford F-350 pickup truck at the time it left Ford's possession that was a producing cause of the June 5, 1999 incident in question" because it did not include "the requirement that a manufacturing defect must deviate from its specifications or planned output." The Court reasoned that the question, although using the term "manufacturing," nevertheless permitted the jury to consider "design" defects in arriving at its answer. The Court disapproved of PJC 71.3 which the jury question tracked.

The Court also disapproved of the PJC 70.1 definition of "producing cause" submitted to the jury. The Court held that the correct definition of "producing cause" is: "a substantial factor in bringing about an injury, and without which the injury would not have occurred. There may be more than one producing cause." Ford Motor Company v. Ledesma,__ S.W.3rd__ (Tex. Sup. 12/21/07). PDF

Insurance. The insured under a CGL policy failed to notify the insurer of a third party claim asserted against the insured for four to six months after the suit was filed. The insurer denied coverage for failure to give notice "as soon as practicable." The parties stipulated that notice was not timely and that the insurer was not prejudiced by same. Held: an insured's failure to timely notify it's insurer of a claim or suit does not defeat coverage if the insurer was not prejudiced by the delay. PAJ, Inc. v. The Hannover Insurance Co., __ S.W.3rd__ (Tex. Sup. 1/11/08).

Insurance. In response to certified questions from the Fifth Circuit, the Court holds that (1) where an additional insured does not and cannot be presumed to know of coverage under an insurer's liability policy, the insurer that has knowledge that a suit implicating policy coverage has been filed against its additional insured does not have a duty to inform the additional insured of the available coverage and (2) proof of an insurer's actual knowledge of service of process in a suit against its additional insured, when such knowledge is obtained in sufficient time to provide a defense for the insured, does not establish, as a matter of law, the absence of prejudice to the insurer from the additional insured's failure to comply with the notice-of-suit provisions of the policy. National Union Fire Ins. Co. v. Crocker, __S.W.3rd__(Tex. 2/15/08).

Jury Argument. Court holds that it was an improper and incurable jury argument for plaintiff's counsel to compare the nursing home lawyer's "attempts to minimize damages to a World War II German program in which elderly and infirm persons were used for medical experimentation and killed" and no trial court objection was necessary to preserve the error. Living Centers of Texas, Inc. v. Penalver, __S.W.3rd__(Tex. 1/25/08).

Insurance. On rehearing, the Texas Supreme Court withdraws its May, 2005 opinion, reverses course, and holds that an excess insurance carrier is not entitled to recoup from its insured the amount the company paid in settlement of a claim when it is later determined that there was no coverage. In this case, the insured had consented to the settlement but not to the excess insurer's asserted reimbursement right thereby distinguishing Tex. Ass'n of Counties County Gov't Risk Mgmt. Pool v. Matagorda County in which the Court had authorized a reimbursement claim when the insured had consented to the insurer's right to seek reimbursement upon a later determination of no coverage. Excess Underwriters at Lloyds London et al v. Franks Casing Crew and Rental Tools, Inc et al, __S.W.3rd__(Tex. 2/1/08)

Homestead. When a borrower obtained a constitutionally impermissible home-equity loan secured by agricultural homestead property, disbursed a portion of the proceeds at closing to pay off constitutionally permissible purchase-money and tax liens (the "refinance portion"), and kept the remaining balance (the "cash-out portion") the lender of the unenforceable loan was nevertheless equitably subrogated to the prior lienholders' interests to the extent of the portion of the loan proceeds that were used to pay the debtor's constitutionally permissible pre-existing debt. Lasalle Bank N.A. v. White et al, __S.W.3rd__(Tex. 12/21/07).

Residential Construction. RCLA applies to a roofing contractor; the definition of "contractor" under the RCLA is broader than the definition of "builder" under the RCCA . The RCLA required the trial court to dismiss a homeowner's claim when the homeowner failed to give a timely written explanation of why the contractor's offer of settlement was unreasonable. (Note: the 2007 amendments provide for abatement rather than dismissal.) In re Calvin D. Wells, __S.W.3rd__(Tex. App. -Houston [14th Dist.] 2/7/08).

Probate/Guardianship. The trial court's jurisdiction over a proposed guardianship requires service of citation on the proposed adult ward, which service cannot be waived and cannot be accepted by an attorney in fact under a durable power of attorney. In re Martinez, __S.W.3rd__ (Tex. App. --San Antonio (1/30/08).

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I have moved my office to the Southwest Tower, located at the Southeast Corner of Seventh and Brazos -- one block east of Congress Ave. Parking is free and now the garage is even attached to the building -- not across the street! All of my contact information is the same except for the mailing address:

211 East 7th Street
Suite 920
Austin, TX 78701


Of course, I am also available to mediate at lawyers' offices (or any other location) by agreement of the parties. There are no travel charges within 100 miles of Austin.

Wireless (Wi-Fi) high speed internet access is available in my office.

The Jack Jenkins Debate Opportunity Fund

"The goal of the Jack Jenkins Debate Opportunity Fund is to reduce the economic barriers for high school students who demonstrate aptitude for debate but who are otherwise unable to participate meaningfully in competitive debate because they are financially disadvantaged. The Fund will support these students and enhance their debate skills by providing tournament fees and travel expenses, scholarships to university-sponsored debate camps, debate consultants to augment the preparation offered by local high schools, and computer equipment to assist students in their research and writing. [They] hope to find volunteer mentors, as well."

Click here for more information or to help.

A State Bar task force is studying whether there should be a rule requiring disclosure of professional liability insurance coverage, or the lack thereof, to clients or the public. The Task Force has posted a survey to solicit input from Texas attorneys concerning this issue. For more information click here.

To take the survey click here.

To facilitate scheduling, my mediation calendar is now online. You can access it 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 or additional charges for mediations within 100 miles of Austin.

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.

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Michael Curry

Medical Malpractice. Plaintiff's claim against a nurse for sexual assault during a hospital stay was not a health care liability claim requiring an expert report pursuant to TRCP §74.351(a) but Plaintiff's claim against the hospital for negligent hiring, training, and supervising and for vicarious liability were health care liability claims. As to vicarious liability the Court reasoned that the assertion of vicarious liability for the actions of the nurse was nothing more than a "recasting" of the direct claim against the hospital relating to the hiring, training and supervising. (Hilbig, J) Holguin v. Laredo Regional Medical Center __S.W.3rd__(Tex. App.-- San Antonio 2/6/08).

Sovereign Immunity Court holds that the immunity waiver under the Texas Tort Claims Act for a school district is limited under TCPRC §101.051 to the operation or use of motor vehicles by a school district. Accordingly, the school district was immune from suit for injuries sustained when the district's gate crashed into a vehicle driven by the plaintiff. Kerrville ISD v. Botkin, __S.W.3rd__ (Tex. App. -- San Antonio (2/6/08).

Exemplary Damages. In response to the certified question from the Fifth Circuit , Court holds that the public policy of Texas does not prohibit insurance coverage of exemplary damages for gross negligence of the employer in the workers' compensation context. Court declines, without clear legislative intent, to decide whether public policy generally prohibits or allows the insurance of exemplary damages arising from gross negligence, but takes the opportunity to discuss the issue at length. Fairfield Insurance Co. v. Stephens Martins Paving et . al., __S.W.3rd__ (Tex. 2/15/08).