Attorney's Fees. Attorney's fees are recoverable for breach of a manufacturer's express warranty -- even when the warranty is silent on the subject -- because it is "a claim based on an oral or written contract" under TCPRC § 38.001. Medical City Dallas, Ltd v. Carlisle Corporation, __S.W.3rd__ (Tex. 4/11/2008).

Insurance. Court holds that insured's collision with a drive axle and attached tandem wheels that had separated from a passing eighteen- wheel semi-trailer truck (which did not stop and could not be identified) did not constitute actual physical contact with a motor vehicle so as to trigger uninsured motorist coverage because the axle wheel assembly did not constitute a "motor vehicle." Nationwide Insurance Company v. Elchehimi, __S.W.3rd__(Tex. 3/28/08).

Employment Employee discharged by school district brought suit against both the district and the superintendent for violations of the Texas Commission on Human Rights Act and the common law. Court holds that the Texas Tort Claims Act election of remedies scheme "governs all suits against a governmental unit" even those involving claims that do not fit within the Act's waiver of immunity. However, the election of remedies provision only barred the employees' common law claims against the district not her claims under the TCHRA -- which represented a separate waiver of immunity and was not brought under the Texas Tort Claims Act. Mission Consolidated ISD v. Medina, __S.W.3rd__(Tex. 3/28/08).

Products Liability. The jury found that a BIC lighter was unreasonably dangerous due to defectively designed child-proofing features which resulted in serious burn injuries to a child. The plaintiff recovered actual and punitive damages. The Texas Supreme Court reversed, holding that the Consumer Product Safety Act had impliedly preempted common law design defect claims where, as here, the product had been certified to comply with the Consumer Product Safety Commission standards pursuant to the CPSA. BIC Pen Corp. v. Carter,__ S.W.3rd__ (Tex. Sup. 4/18/08).

Products Liability/Negligence. Wrongful death suit arising from a roll-over collision involving a motor vehicle purchased from a used car dealer who had purchased it at an auto auction. Court holds that auctioneer cannot be held liable under Restatement 402A strict liability because auctioneers are not in the business of selling automobiles for their own account but are in the business of simply facilitating sales. Court also holds that defendant auctioneer, who did not sell to the general public and sold the vehicle "as is," did not have a duty to replace the tires on the vehicle pursuant to a recall issued a few weeks before the auction took place. New Texas Auto Auction Services L.P. v. Gomez de Hernandez et al, __S.W.3rd__ (Tex. 3/28/08).

Real Property. Court holds that conveyance of interest in real property by father to his children was not effected before his death. Although the father asked his son to file the deed which was in the father's car, the son had no access to the locked car and never exercised control over the deed before his fathers death and, accordingly, the father never relinquished dominion or control over the deed. Without such relinquishment, there was no delivery and, therefore, no conveyance. Meduna v. Holder, __S.W.3rd__ (Tex. App. - Austin, 4/30/08).

Texas Tort Claims Act. Motorcyclist injured in an accident caused by a two-inch lane elevation differential as he changed lanes. Court holds that City was not liable under the Texas Tort Claims Act because (1) this condition did not constitute a "special defect" (imposing invitee liability) as it did not present "an unusual or unexpected danger to the normal users of roadways " and (2) this condition also did not constitute a "premise defect" (imposing licensee liability): although the drop-off had been reported to the City by an inspector, the danger posed thereby had not and, accordingly, the City did not have actual knowledge of the dangerous condition. City of Dallas v. Reed, __S.W.3rd__(Tex. 5/16/08).

Texas Tort Claims Act. Student injured when he tripped over a water hose placed across a sidewalk. Court holds that University was not liable for a premise defect under the Texas Tort Claims Act because the University's safety manual was not sufficient to create a fact issue about whether the University had actual knowledge that the water hose presented an unreasonable risk of harm. Court reasoned that a warning in the manual that "[f]lexible cords should never cross paths of travel unless suitably protected to avoid damage and the creation of tripping hazards" dealt with indoor safety (e.g. electrical cords) and had "no apparent relevance to water hoses or outdoor safety." That reasoning combined with the absence of prior claims convinced the Court that as a matter of law there was no evidence that the University knew that the hose's use presented an unreasonable risk of harm. The University of Texas - Pan American v. Acquilar, __S.W.3rd__(Tex. 4/18/08).

Texas Tort Claims Act. Wrongful death action brought by parents whose children who were killed when the car in which they were riding was swept away at a low water crossing. Court holds that evidence that the City knew there was inclement weather in the area and that the crossing tended to flood when it rained was not evidence that the City knew the crossing was flooded at the time of the incident and accordingly there was no evidence of a premise defect. City of Corsicana v. Stewart, __S.W.3rd__(Tex. 3/28/08).

Venue. Court holds that a plaintiff who was denied his initial venue of choice cannot non-suit his case in the transferee county and refile in a third county. Once a venue determination has been made it is conclusive as to those parties and claims. Trial Court's refusal to enforce prior venue ruling was correctable by mandamus.In re Team Rocket et al, __S.W.3rd__, (Tex. 5/23/08).

Venue. Trial court granted a motion to transfer venue without stating its reasons for doing so. Court holds that when motion to transfer venue sufficiently invokes TCPRC § 15.002 permitting transfer for "the convenience of the parties and witnesses and in the interest of justice," the order is not reviewable by appeal or mandamus. Trend Offset Printing Services, Inc. v. Collin County Community College District, __S.W.3rd__ (Tex. 3/28/08).

Negligence. Plaintiff went to Defendant's home to deliver products which Defendant had purchased. When Defendant opened the door, her three dogs rushed out and attacked Plaintiff. Plaintiff testified that Defendant did nothing to restrain the dogs during the attack. Court reverses a summary judgment for Defendant and holds that even if the owner of a dog does not know a dog has vicious propensities, the owner nevertheless owes a duty to exercise ordinary care to stop the dog from attacking a person after the attack has begun. Bushnell v. Mott, __S.W.3rd__(Tex. 3/28/08).

Indemnity. On April 19, 2006 the Fifth Circuit certified this question: When a distributor sued in a products liability action seeks indemnification from less than all of the manufacturers implicated in the case, does a manufacturer fulfill its obligation under TCPRC § 82.002 by offering indemnification and defense for only the portion of the distributor's defense concerning the sale or alleged sale of that specific manufacturer's product, or must the manufacturer indemnify and defend the distributor against all claims and then seek contribution from the remaining manufacturers? On March 28, 2008, the Court provided this answer: A manufacturer that offers to defend or indemnify a distributor for claims relating only to the sale or alleged sale of that specific manufacturer's product fulfills its obligation under Section 82.002. Owens & Minor, Inc et al v. Ansell Healthcare Products Inc et al, __S.W.3rd__(Tex. 3/28/08).

Dram Shop Court construes the "safe harbor" provision of the Texas Alcoholic Beverage Code which provides that the actions of an employee in over-serving a patron "shall not be attributable to the employer" if (1) the employer requires its employees to attend certain training classes, (2) the employee in question actually attended these classes, and (3) the provider did not directly or indirectly encourage that employee to violate the law. TABC§ 106.14(a). Court holds that the defendant employer carries the burden of proof on the first two elements but the plaintiff carries the burden of proving that the employer encouraged the employee to over-serve. ( The term "employer" includes "vice-principals" as that term is used in connection with punitive damages.) The Court holds that "a plaintiff can show encouragement not only by direct evidence that the provider knowingly ordered or rewarded over-service, but also by circumstantial evidence that the provider engaged in behavior that a reasonable provider should have known would constitute encouragement." 20801, Inc. v. Parker, __S.W.3rd__ (Tex. 3/28/08).

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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:

Southwest Tower, Suite 920
211 East 7th Street
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.

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Program

The 2009 Jury/Non-Jury Week Schedule is available here.

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Subrogation. Worker's Compensation Company's subrogation rights for death benefits paid to the widow and minor child could not be defeated by non-suiting all of the plaintiffs except the decedent's estate to which all of the settlement funds were directed. Texas Mutual Insurance Co. v. Ledbetter, __S.W.3rd__(Tex. 4/4/08)

Arbitration. Home buyers brought suit against builder and third party warranty company for defective construction. The warranty company -- over the home buyer's objection -- moved to compel arbitration. A hearing was never held on the motion and extensive discovery was undertaken. Shortly before trial, the home buyers sought and received -- over the defendants' objection -- an order compelling arbitration. The defendants' petition for mandamus was denied by the Texas Supreme Court. After the home buyers recovered an $800,000 arbitration award, the defendants appealed the judgment confirming the award, contending that the home buyers had waived their right to arbitration. The Court agreed holding that (1) a referral to arbitration can be reviewed after the award, (2) the pre- arbitration mandamus denial did not constitute the law of the case and (3) under the totality of the circumstances, the home buyers had waived arbitration by substantially invoking the judicial process to the defendants' detriment or prejudice. Perry Homes et al v. Cull, __S.W.3rd__(Tex. 5/2/2008).

Arbitration Defendants' action in removing case to Federal Court then having it transferred to the Federal MDL Court before its eventual remand to State District Court did not, under the totality of the circumstances, impliedly waive its contractual right to arbitrate the dispute.In Re Citigroup Global Markets, Inc. et al.__ S.W.3rd__(Tex. 5/16/08)

Medical Malpractice. Parents contend that medical providers treating their adult son for self- inflicted wounds suffered in suicide attempt were negligent in failing to do a comprehensive suicide assessment and that such negligence was a proximate cause of their son's death by suicide thirty- three hours later. Court reverses a verdict for the plaintiffs holding that, as a matter of law, any connection between his release and death was too attenuated for proximate cause. The Court reasoned that there was no evidence that if pressed by the physician the decedent would have consented to hospitalization, that the plaintiffs' expert did not testify that hospitalization would have "prevented" suicide but only reduced the risk and that the suicide was "too remote from his death in terms of time and circumstances." Providence Health Center et al v. Dowell, __S.W.3rd__(Tex. 5/23/08).

Discovery/Medical Malpractice. TRCP 202 pre-suit depositions are not permitted in connection with an unfiled but prospective health care liability claim until a claimant has served the expert report and curriculum vitae required by TCPRC § 74.351. In Re Jack Jordan, MD, __S.W.3rd__(Tex. 3/28/08).

Medical Malpractice. In this pre-2003 medical malpractice case against a hospital over it's "hiring, retention and supervision of a physician," Court holds that trial court's 2005 ruling that the statutorily required expert report was adequate is reviewable by mandamus. On the merits, the Court holds that the trial court abused it's discretion because Plaintiffs' physician expert had not demonstrated that she had special knowledge or expertise regarding hospital credentialing. Plaintiffs' claims that the hospital fraudulently misrepresented the doctor's qualifications were inseparable from the healthcare liability claims as they concerned the credentialing decision. The Court dismisses the Plaintiffs' case concluding that the inadequacy of the report was not the result of an accident or mistake. In Re McAllen Medical Center, Inc.,__ S.W.3rd__ (Tex. Sup. 5/16/08).

Medical Malpractice Anesthesiologist attending the mother was asked to intubate the infant; the procedure was unsuccessful. Accused of negligence, doctor asserted the Good Samaritan defense. Court holds that there was a fact issues as to whether the anesthesiologist was associated by the admitting or attending physician of the patient in question and, accordingly, the anesthesiologist was not entitled to summary judgment based on the Good Samaritan defense. Chau et al v. Riddle et al, __S.W.3rd__(Tex. 3/16/08).

Insurance Defense. Court addresses the issue of whether a liability insurer that uses staff attorneys to defend claims against its insureds is a corporation engaging in the unauthorized practice of law. Court holds that "an insurer may use staff attorneys to defend a claim against an insured if the insurer's interest and the insured's interest are congruent, but not otherwise." Court gives examples of incongruence. Court also holds that "a staff attorney must fully disclose to an insured his or her affiliation with the insurer." Unauthorized Practice of Law Committee v. American Home Assurance Company, Inc. et al, __S.W.3rd__(Tex. 3/28/08).

Jury Selection. Trial court overruled Plaintiff's motion to strike four jury members whose responses during voir dire evidenced confusion over the proper burden of proof. Court holds that trial judge did not abuse his discretion because the confusion did not indicate that the jurors would be unable or unwilling to follow the court's instructions once the burden of proof definitions were properly stated. Murff v. Pass, __S.W.3rd__ (Tex. 3/28/08).