Insurance. Plaintiff stopped to help a stranded motorist who had collided with a retaining wall. After getting out of his car and walking around the front toward the wall, a car driven by third party slammed into both parked cars, pinning Plaintiff against the wall and crushing his pelvis. Defendant was both Plaintiff's worker's compensation insurance carrier and the insurer of the vehicle Plaintiff was driving. Plaintiff settled with the third party driver and filed suit pursuant to the UIM provisions of the MV insurance policy. Defendant intervened to recover the amounts it paid under the worker's compensation policy from any amounts it was forced to pay under the UIM policy. The Court held that Plaintiff was not entitled to recover under the UIM policy because at the time of the collision he was not "occupying" the vehicle. The policy defined "occupying" as "in, upon, getting in, on, out or off." The Court rejected the argument that Plaintiff met the definition because he was "upon" the vehicle when he was injured. The Court also held that although the Defendant admitted in it's subrogation claim that Plaintiff was occupying the vehicle it was not bound by that admission for purposes of the MV insurance policy because it stood in a different capacity with regard to the latter. United States Fidelity and Guaranty Co v. Goudeau, __S.W.3rd__(Tex. 12/19/08).

Indemnity/Corporate Liability. A defective cigarette lighter was designed by and manufactured for a Chinese corporation which distributed it through a wholly owned United States corporation (importer). The lighter was sold by the importer to the supplier who sold it to the retailer who sold it to the consumer. After the settlement of a wrongful death case arising out of a fire caused by the lighter, the supplier and retailer sought statutory and common law indemnity from the importer. The Court rejected the statutory indemnity claim holding that the importer did not meet the definition of "manufacturer" under Chapter 82 TCPRC even though the importer introduced the product into the U.S. marketplace and even if the importer claimed the product as its own. The Court also held that the importer was not responsible for the manufacturer's indemnity obligation under a single business enterprise theory concluding that: "corporations cannot be held liable for each other's obligations merely because they are part of a single business enterprise." The Court also rejected the common law indemnity claim holding that an upstream seller is not liable in indemnity to a downstream seller absent proof of responsibility for the defect. SSP Partners et al v. Gladstone Investments,__S.W.3rd__ (Tex. 11/14/08).

Products Liability. A jury found that design and manufacturing defects in a cigarette lighter had caused burn injuries to a child. On appeal the Texas Supreme Court reversed and remanded 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 CPSC standards. On remand, the Court of Appeals holds that the manufacturing defect claim had not been preempted because CPSC standards regulate only the design of consumer products, not their manufacture. The court also held that a spoliation instruction was properly submitted because the defendant had destroyed manufacturing quality reports after they had been requested in discovery. Finally, the court found that there was evidence to support liability and actual damages, but not malice. Bic Pen Corp v. Carter, __S.W.3rd__ (Tex. App. -- Corpus Christi 12/04/08).

Products Liability/ Jury Misconduct Patient suffered a fatal heart attack while on a course of treatment that included taking Vioxx. Court holds that there is sufficient evidence to sustain a jury verdict finding a marketing defect and causation. However, court reverses the trial court judgment for Plaintiff because a juror failed to reveal that he had received several no interest loans from the Plaintiff as recently as six months prior to trial and that there were cell phone calls made from the juror's phone to Plaintiff within days of the jury summons and the night before jury selection.Merck & Co. v. Garza, __S.W.3rd__ (Tex. App. -- San Antonio 12/10/08).

Specific Performance. When a seller wrongfully repudiates a real estate contract a buyer seeking specific performance is excused from tendering performance at the time of the breach but is not excused at trial from pleading and proving the it was ready, willing and able to perform at the time required by the contract. The buyer's failure to obtain a finding that it was ready, willing and able to perform pursuant to the contract was fatal to it's claim for specific performance. Digiuseppe et al v. Lawler, __S.W.3rd__ (Tex. 10/17/08).

Forum Non Conveniens. When all section 71.051(b) factors in a case favor the conclusion that an action or claim would be more properly held in a forum outside Texas, the statute requires the trial court to grant a motion requesting that it decline to exercise its jurisdiction. In re General Electric Company et al, __S.W.3rd__ (Tex. 12/05/08).

Texas Tort Claims Act. The decedent lost control of her vehicle while crossing a patch of loose gravel on a highway that had been repaved the previous day.The ensuing wrongful death case against the State was tried on the theory that the gravel was a special defect within the meaning of the statute. The Court reversed a verdict for the plaintiffs holding that, as a matter of law, a layer of loose gravel is not an "excavation" or "obstruction" and, accordingly, was not a special defect. The case was remanded for retrial on the higher premise liability standard. Texas Department of Transportation v. York et al, __S.W.3rd__ (Tex. 12/5/08).

Employment. The plaintiff who had been discharged for sexual harassment of a co-worker sued his former employer contending that, in fact, his age had been a motivating factor in his discharge. The jury agreed. The Court reversed and rendered holding that the testimony of another store manager that the defendant "intended to get rid of the old people" was a "stray remark" of no evidentiary value because the manager had no involvement in, influence over, or even knowledge of the reasons for the plaintiff's discharge. The Court concluded further that the plaintiff presented no evidence that the defendant treated him less favorably than any other employee of any age who had violated its sexual harassment policy. Autozone, Inc v. Reyes, __S.W.3rd __ (Tex. 12/5/08).

Sovereign Immunity. Plaintiff, the surface owner of certain real property, sued the Texas General Land Office (GLO), the owner of the mineral estate, after the GLO removed limestone from the property without compensation. Plaintiff sought a declaration that the limestone was not part of the mineral estate and compensation for the limestone. The Court of Appeals held that the declaratory judgment action to determine whether the limestone was part of the mineral estate was, in effect, a trespass to try title action against the State and, therefore, barred by the doctrine of sovereign immunity. That doctrine did not apply, however, to Plaintiff's "unconstitutional takings" claim because immunity against such claims is waived by the Texas Constitution. Koch v. Texas General Land Office, __S.W.3rd__ (Court of Appeals -- Austin 12/19/08).

Employment. Plaintiff brought suit under Texas Labor Code Chapter 451 against the Travis Central Appraisal District ("TCAD") for retaliatory discharge, alleging that she was fired by TCAD for filing a workers' compensation claim. The Court of Appeals rejected TCAD's plea to the jurisdiction, holding that there is no requirement to exhaust administrative remedies prior to initiating suit under this Chapter. The court also held that TCAD's governmental immunity was waived for retaliatory discharge claims under Chapter 451. Travis Central Appraisal District v. Norman,__S.W.3rd __ (Tex. App. Austin 12/19/08).

Water Code/Limitations. Suit over the diversion of water onto adjoining property. Court of Appeals holds that the diversion was sufficiently regular as to constitute a permanent injury; therefore limitations began to run when the water first caused injury. Although the plaintiff filed suit within the limitations period, service was not requested until four months after limitations expired. The Court held that the delay was not excused by an oral agreement between counsel as to service when that agreement had not been reduced to writing pursuant to Rule 11. Accordingly, there was no due diligence as a matter of law and limitations had run. Mitchell v. Timmerman, __S.W.3rd__ (Tex. App.-- Austin 12/31/08).

Sovereign Immunity/Employment. Herrera brought an employment discrimination suit against UTEP complaining that he was terminated in retaliation for taking leave under the self-care leave provision of the Family and Medical Leave Act. UTEP filed a plea to the jurisdiction alleging Herrera's retaliation claim was barred by sovereign immunity. The trial court's denied the plea. The Court of Appeals affirmed, rejecting the reasoning of the Fifth Circuit and holding that Congress had validly abrogated state sovereign immunity from suit for violation of FMLA's self-care provision. UTEP v. Herrera, __S.W.3rd__ (Tex. App. -- El Paso 11/25/08).

Professional Liability. Home Builder sues Defendant for breach of contract, DTPA, breach of warranty, negligence and negligent misrepresentation all arising out of defendant's design and construction of certain foundations. Part of the services provided by Defendant included professional engineering services. Defendant moved to dismiss the suit based upon Home builder's failure to file a certificate of merit pursuant to TCPRC §150.002. In response Home builder amended its petition to delete the negligence cause of action. The trial court denies the motion. The Court of Appeals holds that TCPRC §150.002 does not apply to non-negligence causes of action. Accordingly, Home builder did not need to provide a certificate of merit for its breach of contract, breach of warranty, and deceptive trade practices claims; it did however need to provide one for its negligent misrepresentation claim to the extent the claim "aris[es] out of the provision of professional services by a licensed or registered professional." Consolidated Reinforcement, LP et al v. Carothers Executive Homes Ltd, __S.W.3rd__ (Tex. App. -- Austin 12/05/08).

Recent Opinions Contd Next Column

Click HERE for a compendium of the 2008 "Recent Cases" grouped by topic.

If, while looking back through some of the opinions issued over the last year, you find yourself gritting your teeth or pumping your fist please remember that either way: I don't decide them, I just report them .

Best wishes for a safe and successful 2009. I look forward to working with you should the opportunity arise.

MC

The Travis County Courts at Law have updated their Local Rules effective 12/01/08

Four of the Travis County Civil District Courts have recently moved.

Travis County District Court Calendar of Future Scheduled Settings.

Travis County District Court Quick Reference Guide.

Report of the State Bar Task Force on Court Administration.

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Contracts. Suit on an oral employment agreement providing for payment of a percentage of the "fair market value" of a company or companies if the plaintiff-employee was terminated. The jury found for the plaintiff and awarded $6 million dollars in damages. The trial court entered a judgment n.o.v. for the defendant. The Court of Appeals affirmed holding that under the facts of the case the term "fair market value" was unenforceably indefinite as a matter of law. The Court held that a reasonable jury could not ignore two written communications by the plaintiff to the defendant indicating that the parties needed to agree on a "valuation methodology." To the Court this indicated that fair market value would be determined by a specific formula to which the parties had not yet agreed. Playoff Corporation et al v. Blackwell, __S.W.__ (Tex App.-- Fort Worth 12/11/08).

Venue. For the purpose of venue provisions which authorize or compel suit where a person "resides", the registered office and agent required by the Business Corporation Act "shall constitute a statutory place of residence of the corporation." In re Transcontinental Investors, Inc., __ S.W.3rd__ (Tex. 11/14/08).

Exhaustion of Remedies. Non-veterinarian equine dental practitioners sought a declaratory judgment that the attempt to regulate equine dentistry under the Veterinary Licensing Act was unconstitutional. The trial court granted a plea to the jurisdiction because the plaintiffs had not exhausted their administrative remedies. The Court of Appeals held that the Board of Veterinary Examiners had no jurisdiction over a challenge to the Constitutionality of the Licensing Act, and accordingly, it was a purely legal issue and there were no administrative remedies to exhaust. Mitz et al v. Texas State Board of Veterinary Medical Examiners et al, __S.W.3rd__ (Tex. Civ. App.--Austin 11/14/08).

Warranties/Attorney's Fees. A contract provision that "expressly disclaims all warranties, either expressed or implied, concerning the fitness for any particular purpose of the materials delivered" does not effectively disclaim the implied warranty of merchantability because the language does not mention merchantability. When a party fails to object to evidence, including testimony and billing records, on the ground that the fees should be segregated and does not object to the court's charge regarding attorney fees, it waives any complaint that the opposing party failed to properly segregate those fees. Kleas v. BMC West Corp et al, __S.W.3rd__(Tex. App -- Austin 12/19/08)

Medical Malpractice. Plaintiffs brought a health care liability claim against a doctor and the clinic. The defendant clinic contended that the expert report with which it was served was deficient because it did not mention the clinic or implicate it's behavior. Court holds that when a party's alleged health care liability is purely vicarious, a report that adequately implicates the actions of that party's agents or employees is sufficient. Gardner v. U.S. Imaging Inc, __S.W.3rd__(Tex. 12/19/08)

Medical Malpractice. Forwarding an expert report to a doctor's insurance carrier (as requested) prior to suit did not satisfy the requirement of former §74.351(a) of the Texas Civil Practice and Remedies Code that the claimant "serve" an expert report on a party or its attorney not later than the 120th day after the date the claim was filed. Poland v. Ott, __S.W.3rd __ (Tex. App.--Hou [1st Dist.] 12/19/08).

Medical Malpractice. In this medical malpractice case the defendant designated two additional physicians as responsible third parties. The plaintiff then joined the additional physicians within the time frame allowed by TCPRC § 33.004(e) but outside the two year limitations period. The Court of Appeals affirms a summary judgment for the additional physicians holding that the two year limitations period in TCPRC § 74.251 is not extended by the provisions of TCPRC § 33.004(e). The Court focused on the language in § 74.251 which provides that "notwithstanding any other law ... no health care liability claim may be commenced unless the action is filed within two years...." Kimbrell et al v. Molinet, __S.W.3rd__ (Tex. App. -- San Antonio 12/31/08).

Personal Injury. The surviving parents alleged that the defendants served alcohol to their minor son resulting in the automobile collision which caused his death. More than two years after the accident the defendants filed an amended answer alleging that plaintiffs' injuries were caused by the actions of one or more third parties, including Stephanie. Within 60 days, the plaintiffs amended their pleading to join Stephanie as a party defendant. The trial court granted summary judgment for Stephanie. The Court of Appeals affirmed holding that the plaintiffs were time barred because the amended answer did not qualify as a designation of a responsible third party under TCPRC § 33.004. Stephanie could only be designated as a responsible third party with a timely filed motion; an amended answer was insufficient. Sheffield v. Begeman, __S.W.3rd__ (Tex. App. -- Eastland 12/4/08).

Arbitration. Echols settled a personal injury action in exchange for the right to receive a $100,000.00 structured settlement payment in 2027. Transamerica was the annuity insurer and obligor. Rapid Settlements (RS) entered into a transfer agreement with Echols which provided that RS would pay Echols a lump sum of $5,000.00 in exchange for his right to the future payment. The transfer agreement contained an arbitration clause. When Echols attempted to cancel the transfer, RS obtained an arbitration award approving the transfer agreement and ordering Transamerica (who did not participate in the arbitration) to change the designated payee under the annuity. RS subsequently obtained a judgment confirming the award. On appeal the Court holds that since Transamerica was not a party to the transfer agreement and was more than a mere stakeholder under the Structured Settlement Protection Act that neither the arbitration award nor the trial court's judgment confirming that award was enforceable against it. Transamerica v. Rapid Settlements et al, __S.W.3rd__ (Tex. App. -- Houston [1st] 12/18/08).

Arbitration An agreement between 3 partners relating to the sale of partnership interests contained an arbitration agreement. A dispute arose, suit was filed by Partner A but arbitration was compelled. The arbitrator concluded that Partner A breached the agreement by (1) failing to assume a debt and (2) filing suit. The arbitrator awarded Partners B and C damages and attorney's fees for (1) and attorney's fees for (2). Partners B and C filed to have the award confirmed by the trial court and Partner A moved to vacate the award of attorneys fees. The trial court entered judgment on the award. On appeal Partner A argued that the arbitrator exceeded his authority in awarding attorneys' fees because the agreement did not provide for attorney's fees and the requirements of TRCP § 38.001 were not met. The Court of Appeals affirmed. The Court held that even if attorney's fees were not properly recoverable under Chap. 38, the issue of attorney's fees was submitted to the arbitrator by both parties and, accordingly, did not exceed his authority. Since it was within his authority the trial court was not authorized to second-guess the correctness of the arbitrator's decision on this issue absent "manifest disregard of the law" which is more than mere error or misunderstanding in applying the law and, in any event, was not raised below and thus not preserved for review. Saqer v. Ghanem, __S.W.3rd__ (Tex. App. -- Beaumont 12/18/08).