Nathan Hecht on the ubiquity of the phenomenon:
Potholes pock the surface of the civilized world. If potholes — all but yawning chasms capable of suddenly swallowing up an entire vehicle — posed an unreasonable risk of harm to anyone, let alone experienced and reasonably careful drivers, whole swaths of civilization would have to be closed off to human traffic.
Manhattan would be the first to shut down, but no city, town, or village would escape. Across the planet, ground transportation would be brought to a halt. Commerce would cease.
The end could not be averted by posting adequate warnings. Signs at city limits — Warning! Potholes! — would hardly be adequate. Each pothole would require its own warning sign. Even if available resources could supply enough signs, warnings that unreasonable danger is everywhere provide no warning that it is anywhere in particular.
Potholes do pose a risk of harm, no question. But the risk is simply not an unreasonable one unless the pothole is one of those rare, menacing kinds that lure unsuspecting travelers into danger. The potholes that permeated the dirt road to the Dolen sand pit were all of the ordinary variety.
Source: Dissent by Justice Hecht inTXI Operations, LP v. Perry, No. 05-0030 (Tex. Feb. 27, 2009)(Majority Opinion by Green)(premises liability, duty of warn of danger, private road defect, speed limit warning sign)
Saturday, March 28, 2009
Family's Multivehicle Insurance Policy Documents Created Facts Issues
Supremes reverse summary judgment because of contradictions in auto insurance policy documents that require extrinsic evidence for resolution by the fact finder.
Progressive County Mutual Ins. Co. v. Kelley, (Tex. 2009)
No. 08-0073 (Tex. Mar. 27, 2009)(per curiam) (insurance policy documents were ambiguous, thus raising issues of fact precluding summary judgment) (contract construction, insurance coverage dispute, contract consisting of multiple documents, definiteness, ambiguity)
FROM THE OPINION:
In this case, we consider whether two documents issued by an insurance company constitute two separate insurance policies or a single policy. We hold that this is a fact question and remand to the trial court.
Regan Kelley was struck by a car while riding her horse. Medical expenses for her injuries are alleged to have exceeded $1 million. After receiving $100,000 in benefits from the motorist’s insurer, Kelley made a claim with Progressive County Mutual Insurance Company (“Progressive”) for underinsured benefits under a policy issued to her parents, which also covered Kelley. At the time of the accident, Kelley was an adult living with her parents. Progressive paid the policy limit of $500,025. To cover the remaining damages, Kelley then made a claim under an alleged second policy with a limit of $500,025, also issued by Progressive. At the time of the accident, Progressive insured five of the Kelleys’ vehicles. Four vehicles were listed on a two-page document, and the fifth was listed on a separate two-page document. However, the documents had separate policy numbers. Nevertheless, Progressive denied there was a second policy and refused to make any additional payments.
* * *
After reviewing the face of the documents and extrinsic evidence, we hold that the documents are ambiguous, and therefore, a fact finder should resolve the meaning. See J. M. Davidson, 128 S.W.3d at 230–31; Coker, 650 S.W.2d at 394 (“When a contract contains an ambiguity, the granting of a motion for summary judgment is improper because the interpretation of the instrument becomes a fact issue.”).[3] Therefore, without hearing argument, we reverse the court of appeals judgment and remand to the trial court
PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY v. REGAN KELLEY; from BrazosCounty; 10th district (10-06-00263-CV, ___ SW3d ___, 12-12-07)Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and withouthearing oral argument, the Court reverses the court of appeals' judgment and remands the case to thetrial court. Per Curiam Opinion
Progressive County Mutual Ins. Co. v. Kelley, (Tex. 2009)
No. 08-0073 (Tex. Mar. 27, 2009)(per curiam) (insurance policy documents were ambiguous, thus raising issues of fact precluding summary judgment) (contract construction, insurance coverage dispute, contract consisting of multiple documents, definiteness, ambiguity)
FROM THE OPINION:
In this case, we consider whether two documents issued by an insurance company constitute two separate insurance policies or a single policy. We hold that this is a fact question and remand to the trial court.
Regan Kelley was struck by a car while riding her horse. Medical expenses for her injuries are alleged to have exceeded $1 million. After receiving $100,000 in benefits from the motorist’s insurer, Kelley made a claim with Progressive County Mutual Insurance Company (“Progressive”) for underinsured benefits under a policy issued to her parents, which also covered Kelley. At the time of the accident, Kelley was an adult living with her parents. Progressive paid the policy limit of $500,025. To cover the remaining damages, Kelley then made a claim under an alleged second policy with a limit of $500,025, also issued by Progressive. At the time of the accident, Progressive insured five of the Kelleys’ vehicles. Four vehicles were listed on a two-page document, and the fifth was listed on a separate two-page document. However, the documents had separate policy numbers. Nevertheless, Progressive denied there was a second policy and refused to make any additional payments.
* * *
After reviewing the face of the documents and extrinsic evidence, we hold that the documents are ambiguous, and therefore, a fact finder should resolve the meaning. See J. M. Davidson, 128 S.W.3d at 230–31; Coker, 650 S.W.2d at 394 (“When a contract contains an ambiguity, the granting of a motion for summary judgment is improper because the interpretation of the instrument becomes a fact issue.”).[3] Therefore, without hearing argument, we reverse the court of appeals judgment and remand to the trial court
PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY v. REGAN KELLEY; from BrazosCounty; 10th district (10-06-00263-CV, ___ SW3d ___, 12-12-07)Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and withouthearing oral argument, the Court reverses the court of appeals' judgment and remands the case to thetrial court. Per Curiam Opinion
Med-Mal Reform Plus: Driving Lawyers From Texas
Justice Scott Brister would require trial judge to go after attorneys when blood cannot be drawn from dead malpractice plaintiff -- as punishment for bringing health care liability claim without expert report. Hecht would join in the blood-letting to further enfeeble the plaintiff's bar in the name of legislative intent and in denigration of "the American Rule" against fee recovery by prevailing defendants.
Gurkoff, D.O. v. Jersak, No. 08-0398 (Tex. Feb. 27, 2009)(Brister)(Dissent from denial of petition for review) (urging that sanctions in the form of defendant's attorney's fees for failure to file expert report in medical malpractice suit be imposed on plaintiff's attorneys when no money can be collected from client's estate)
EXCERPT FROM THE BRISTERING DISSENT:
Generally, trial judges should hesitate to impose sanctions on an attorney lest they chill zealous representation. But the Legislature found that such hesitation was driving physicians from Texas and patients from medical care they needed.[7] When an attorney is responsible for filing a suit without expert support, it is both illogical and wasteful to insist that the defendant pursue a plaintiff with no assets. Accordingly, I would reverse the court of appeals' opinion and order the trial court to assess sanctions against Jersak's attorneys.
JERRY GURKOFF, D.O. v. ROSEMARY JERSAK; from Tarrant County; 2nd district (02‑07‑00101‑CV, ___ SW3d ___, 04‑10‑08) Justice Brister, joined by Justice Hecht, delivered an opinion dissenting from the denial
Gurkoff, D.O. v. Jersak, No. 08-0398 (Tex. Feb. 27, 2009)(Brister)(Dissent from denial of petition for review) (urging that sanctions in the form of defendant's attorney's fees for failure to file expert report in medical malpractice suit be imposed on plaintiff's attorneys when no money can be collected from client's estate)
EXCERPT FROM THE BRISTERING DISSENT:
Generally, trial judges should hesitate to impose sanctions on an attorney lest they chill zealous representation. But the Legislature found that such hesitation was driving physicians from Texas and patients from medical care they needed.[7] When an attorney is responsible for filing a suit without expert support, it is both illogical and wasteful to insist that the defendant pursue a plaintiff with no assets. Accordingly, I would reverse the court of appeals' opinion and order the trial court to assess sanctions against Jersak's attorneys.
JERRY GURKOFF, D.O. v. ROSEMARY JERSAK; from Tarrant County; 2nd district (02‑07‑00101‑CV, ___ SW3d ___, 04‑10‑08) Justice Brister, joined by Justice Hecht, delivered an opinion dissenting from the denial
Contractual Jury Waiver Enforced by Mandamus
In Re Bank of America, N.A. (Tex. 2009)
No. 07-0901 (Tex. Feb. 27, 2009) (per curiam mandamus) (contractual jury waiver enforced by mandamus in analogy to arbitration clauses, conspicuousness of waiver, knowing and voluntary waiver)
OPINION EXCERPTS:
In this contract dispute, we decide whether our holding in In re Prudential—which held that a contractual waiver of a jury trial is enforceable—creates a presumption against waiver that places the burden on the party seeking enforcement to prove that the opposing party knowingly and voluntarily agreed to waive its constitutional right to a jury trial. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 30–33 (Tex. 2004).
On interlocutory appeal, the court of appeals applied such a presumption and reversed the trial court’s enforcement order. 232 S.W.3d at 151–52. Today, we conditionally grant Bank of America’s petition for writ of mandamus to clarify that Prudential does not impose a presumption against a contractual jury waiver.
* * *
In Prudential, we agreed with the United States Supreme Court that “arbitration and forum-selection clauses should be enforced, even if they are part of an agreement alleged to have been fraudulently induced, as long as the specific clauses were not themselves the product of fraud or coercion.” 148 S.W.3d at 134–35 (citing Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974)).
Since Prudential indicates that the same dispute resolution rule expressed by the United States Supreme Court in Scherk should apply to contractual jury-waiver provisions, the court of appeals’ analysis errs by distinguishing jury waivers from arbitration clauses, thereby imposing a stringent initial presumption against jury waivers. 232 S.W.3d at 151–52. Statutes compel arbitration if an arbitration agreement exists, see Tex. Civ. Prac. Rem. Code Sec.171.021(a) (Texas General Arbitration Act), and more importantly, “Texas law has historically favored agreements to resolve such disputes by arbitration.” In re Poly-America, L.P., 262 S.W.3d 337, 348 (Tex. 2008); see also In re. D. Wilson Constr. Co., 196 S.W.3d 774, 782–83 (Tex. 2006) (recognizing presumption favoring arbitration clauses).
We see no reason why there should be a different rule for contractual jury waivers.
We hold that Prudential does not impose a presumption against jury waivers that places the burden on Bank of America to prove that the waiver was executed knowingly and voluntarily. Therefore, we conditionally grant the petition for writ of mandamus and direct the court of appeals to vacate and withdraw the opinion and judgment of May 3, 2007, and to reinstate the trial court order enforcing the parties’ jury waiver. Tex. R. App. P. 52.8(c); see also Prudential, 148 S.W.3d at 139–140 (holding that mandamus is appropriate remedy to enforce contractual jury waivers). We are confident the court of appeals will comply, and the writ will issue only if it fails to do so.
IN RE BANK OF AMERICA, N.A.; from Tarrant County; 2nd district (02-05-00397-CV, 232 SW3d 145, 05-03-07) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion(Justice Johnson not sitting)
No. 07-0901 (Tex. Feb. 27, 2009) (per curiam mandamus) (contractual jury waiver enforced by mandamus in analogy to arbitration clauses, conspicuousness of waiver, knowing and voluntary waiver)
OPINION EXCERPTS:
In this contract dispute, we decide whether our holding in In re Prudential—which held that a contractual waiver of a jury trial is enforceable—creates a presumption against waiver that places the burden on the party seeking enforcement to prove that the opposing party knowingly and voluntarily agreed to waive its constitutional right to a jury trial. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 30–33 (Tex. 2004).
On interlocutory appeal, the court of appeals applied such a presumption and reversed the trial court’s enforcement order. 232 S.W.3d at 151–52. Today, we conditionally grant Bank of America’s petition for writ of mandamus to clarify that Prudential does not impose a presumption against a contractual jury waiver.
* * *
In Prudential, we agreed with the United States Supreme Court that “arbitration and forum-selection clauses should be enforced, even if they are part of an agreement alleged to have been fraudulently induced, as long as the specific clauses were not themselves the product of fraud or coercion.” 148 S.W.3d at 134–35 (citing Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974)).
Since Prudential indicates that the same dispute resolution rule expressed by the United States Supreme Court in Scherk should apply to contractual jury-waiver provisions, the court of appeals’ analysis errs by distinguishing jury waivers from arbitration clauses, thereby imposing a stringent initial presumption against jury waivers. 232 S.W.3d at 151–52. Statutes compel arbitration if an arbitration agreement exists, see Tex. Civ. Prac. Rem. Code Sec.171.021(a) (Texas General Arbitration Act), and more importantly, “Texas law has historically favored agreements to resolve such disputes by arbitration.” In re Poly-America, L.P., 262 S.W.3d 337, 348 (Tex. 2008); see also In re. D. Wilson Constr. Co., 196 S.W.3d 774, 782–83 (Tex. 2006) (recognizing presumption favoring arbitration clauses).
We see no reason why there should be a different rule for contractual jury waivers.
We hold that Prudential does not impose a presumption against jury waivers that places the burden on Bank of America to prove that the waiver was executed knowingly and voluntarily. Therefore, we conditionally grant the petition for writ of mandamus and direct the court of appeals to vacate and withdraw the opinion and judgment of May 3, 2007, and to reinstate the trial court order enforcing the parties’ jury waiver. Tex. R. App. P. 52.8(c); see also Prudential, 148 S.W.3d at 139–140 (holding that mandamus is appropriate remedy to enforce contractual jury waivers). We are confident the court of appeals will comply, and the writ will issue only if it fails to do so.
IN RE BANK OF AMERICA, N.A.; from Tarrant County; 2nd district (02-05-00397-CV, 232 SW3d 145, 05-03-07) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion(Justice Johnson not sitting)
Order Granting Motion for New Trial must be in writing
New docket control order won't do, Texas Supreme Court says, even if it contains a new trial date and thus implies that prior judgment was set aside. High court grants mandamus relief to nix revival of suit.
In Re Lovito-Nelson, (Tex. 2009)
No. 08-0482 (Tex. Feb. 27, 2009) (per curiam) (mandamus granted)(written order required for grant of motion for new trial)(order granting new trial must be in writing within court's plenary power)
OPINION EXCERPT:
Rule 329b(c) of the Texas Rules of Civil Procedure states that a motion for a new trial can be granted only by a written, signed order:
In the event an original or amended motion for new trial or a motion to modify, correct or reform a judgment is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period.
In the action underlying this original mandamus proceeding, the trial court determined that its scheduling order had the effect of granting a motion for new trial even though it did not do so explicitly. We disagree.
* * *
It is important that the requirement of a written order granting a motion for new trial be a bright-line rule. Otherwise, one might argue that all sorts of conduct should be given the same effect — a trial setting or other setting, a status conference, a hearing on a discovery motion, a request for discovery — the list is endless. The uncertainty would carry over to appellate deadlines and possibly give rise to mandamus proceedings, like this one. The requirement is not difficult to meet, and the movant who fails to satisfy it is not left without possibility of relief. He may still attempt to prosecute an appeal, a restricted appeal, or a bill of review. But a motion for new trial is not granted without a signed, written order explicitly granting the motion.
IN RE JOANNE LOVITO-NELSON; from Tarrant County Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion
RELATED CONCEPTS: motion for new trial post-judgment motions, extension of court's plenary power to set aside judgment appellate deadlines motion to modify the final judgment direct attack on the judgment perservation of error through motion for new trial or other post-judgment motion
In Re Lovito-Nelson, (Tex. 2009)
No. 08-0482 (Tex. Feb. 27, 2009) (per curiam) (mandamus granted)(written order required for grant of motion for new trial)(order granting new trial must be in writing within court's plenary power)
OPINION EXCERPT:
Rule 329b(c) of the Texas Rules of Civil Procedure states that a motion for a new trial can be granted only by a written, signed order:
In the event an original or amended motion for new trial or a motion to modify, correct or reform a judgment is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period.
In the action underlying this original mandamus proceeding, the trial court determined that its scheduling order had the effect of granting a motion for new trial even though it did not do so explicitly. We disagree.
* * *
It is important that the requirement of a written order granting a motion for new trial be a bright-line rule. Otherwise, one might argue that all sorts of conduct should be given the same effect — a trial setting or other setting, a status conference, a hearing on a discovery motion, a request for discovery — the list is endless. The uncertainty would carry over to appellate deadlines and possibly give rise to mandamus proceedings, like this one. The requirement is not difficult to meet, and the movant who fails to satisfy it is not left without possibility of relief. He may still attempt to prosecute an appeal, a restricted appeal, or a bill of review. But a motion for new trial is not granted without a signed, written order explicitly granting the motion.
IN RE JOANNE LOVITO-NELSON; from Tarrant County Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion
RELATED CONCEPTS: motion for new trial post-judgment motions, extension of court's plenary power to set aside judgment appellate deadlines motion to modify the final judgment direct attack on the judgment perservation of error through motion for new trial or other post-judgment motion
Restricted Appeal: What is error on the face of the record?
Texas Supreme Court says absence of evidence of notice not sufficient to satisfy the requirement that error appear on the face of the record, even if clerk of the court below confirms in writing absence of evidence that proper notice of intent to dismiss was given).
Ginn v. Forrester, (Tex. 2009)
No. 08-0163 (Tex. Mar. 27, 2009)(per curiam)(absence of evidence of notice insufficient to meet requirement of error on face of the record for purpose of restricted appeal f/k/a writ of error).
FROM THE OPINION: A restricted appeal requires error that is apparent on the face of the record; error that is merely inferred will not suffice. In this case, the clerk’s supplemental record contains a notation that the clerk’s office was unable to locate documents indicating notice was sent or a hearing was held on the trial court’s dismissal for want of prosecution. Construing the notation as affirmative evidence that the trial court failed to provide notice, a divided court of appeals concluded the requirements for a restricted appeal were met. ___ S.W.3d ___. Because the clerk has no affirmative duty to record the giving of notice, however, a statement that the record reflects none cannot establish error on the face of the record. Accordingly, we reverse the court of appeals’ judgment and render judgment dismissing the case.
* * *
[Appellant] Forrester contends, and the court of appeals held, that the clerk’s notation in the trial record that the clerk’s office was “[u]nable to locate other items requested” affirmatively reveals that the trial court failed to notify Forrester of its intent to dismiss the case. Because the clerk’s notation is in writing and appears in the record, Forrester asserts, the record as to notice is not silent but rather demonstrates on its face that no notice was given. According to Forrester, the clerk’s notation comports with the requirements we have articulated for a restricted appeal. We fail to see the distinction, however, between a record that is silent and a record that contains a written notation that the record is silent; either way, proof of error is absent.
EMMANUEL GINN, A&R TRANSPORT, INC., KEITH JACKSON, STEVE BRANTLEY v. JEFFFORRESTER AND KIM FORRESTER; from Harris County; 14th district (14-06-00549-CV, ___ SW3d ___, 01-10-08) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and withouthearing oral argument, the Court reverses the court of appeals’ judgment and renders judgment. Per Curiam Opinion
Ginn v. Forrester, (Tex. 2009)
No. 08-0163 (Tex. Mar. 27, 2009)(per curiam)(absence of evidence of notice insufficient to meet requirement of error on face of the record for purpose of restricted appeal f/k/a writ of error).
FROM THE OPINION: A restricted appeal requires error that is apparent on the face of the record; error that is merely inferred will not suffice. In this case, the clerk’s supplemental record contains a notation that the clerk’s office was unable to locate documents indicating notice was sent or a hearing was held on the trial court’s dismissal for want of prosecution. Construing the notation as affirmative evidence that the trial court failed to provide notice, a divided court of appeals concluded the requirements for a restricted appeal were met. ___ S.W.3d ___. Because the clerk has no affirmative duty to record the giving of notice, however, a statement that the record reflects none cannot establish error on the face of the record. Accordingly, we reverse the court of appeals’ judgment and render judgment dismissing the case.
* * *
[Appellant] Forrester contends, and the court of appeals held, that the clerk’s notation in the trial record that the clerk’s office was “[u]nable to locate other items requested” affirmatively reveals that the trial court failed to notify Forrester of its intent to dismiss the case. Because the clerk’s notation is in writing and appears in the record, Forrester asserts, the record as to notice is not silent but rather demonstrates on its face that no notice was given. According to Forrester, the clerk’s notation comports with the requirements we have articulated for a restricted appeal. We fail to see the distinction, however, between a record that is silent and a record that contains a written notation that the record is silent; either way, proof of error is absent.
EMMANUEL GINN, A&R TRANSPORT, INC., KEITH JACKSON, STEVE BRANTLEY v. JEFFFORRESTER AND KIM FORRESTER; from Harris County; 14th district (14-06-00549-CV, ___ SW3d ___, 01-10-08) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and withouthearing oral argument, the Court reverses the court of appeals’ judgment and renders judgment. Per Curiam Opinion
Texas Supreme Court Answers Another Certified Insurance Law Question from the Fifth Circuit
Q: Must an insurer show prejudice to deny payment on a claims-made policy, when the denial is based upon the insured's breach of the policy's prompt-notice provision, but the notice is nevertheless given within the policy's coverage period? XL Specialty Ins. Co. v. Fin. Indus. Corp., 259 F. App’x 675, 678 (5th Cir. 2007), certified question accepted, 51 Tex. Sup. Ct. J. 298 (Jan. 14, 2008).
A: Insurer must show prejudice to deny payment on a claims-made policy, when the denial is based upon the insured's breach of the policy's prompt-notice provision, but the notice is given within the policy's coverage period.
Financial Industries Corp. v. XL Specialty Ins. Co.,
No. 07-1059 (Tex. Mar. 27, 2009) (Jefferson) (cert. question from the 5th Circuit) (effect of insured's failure to give insurer prompt notice of claim, prejudice criterion, insurance policy construction)
FINANCIAL INDUSTRIES CORPORATION v. XL SPECIALTY INSURANCE COMPANY
The Court answers the question certified by the United States Court of Appeals for the Fifth Circuit. Chief Justice Jefferson delivered the opinion of the Court.
Decided contemporaneously:
Prodigy Communications Corp. v. Agricultural Excess & Surplus Insurance,
No. 06-0598 (Tex. Mar. 27, 2009) (Jefferson) (insurance law, effect of noncompliance with prompt notice requirement as condition precedent for coverage of claim, prejudice factor) (Supreme Court concludes that "“notice as soon as practicable” was not an essential part of the bargained-for exchange under the claims-made policy at issue here." Following its earlier decision in PAJ, the Court holds that, "in the absence of prejudice to the insurer, the insured’s alleged failure to comply with the provision does not defeat coverage."
PRODIGY COMMUNICATIONS CORP. v. AGRICULTURAL EXCESS & SURPLUS INSURANCECOMPANY, N/K/A GREAT AMERICAN E & S INSURANCE COMPANY AND GREAT AMERICANINSURANCE COMPANY; from Dallas County; 5th district (05-05-00442-CV, 195 SW3d 764, 05-30-06) The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case tothe trial court. Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright,Justice Brister, Justice Medina, and Justice Green joined.
Justice Wainwright delivered a concurring opinion.
Justice Johnson delivered a dissenting opinion, in which Justice Hecht and Justice Willett joined.
Links: 2009 Texas Supreme Court Insurance Law Decisions 2008 Insurance Law Rulings by the Tex. Sup. Ct.
A: Insurer must show prejudice to deny payment on a claims-made policy, when the denial is based upon the insured's breach of the policy's prompt-notice provision, but the notice is given within the policy's coverage period.
Financial Industries Corp. v. XL Specialty Ins. Co.,
No. 07-1059 (Tex. Mar. 27, 2009) (Jefferson) (cert. question from the 5th Circuit) (effect of insured's failure to give insurer prompt notice of claim, prejudice criterion, insurance policy construction)
FINANCIAL INDUSTRIES CORPORATION v. XL SPECIALTY INSURANCE COMPANY
The Court answers the question certified by the United States Court of Appeals for the Fifth Circuit. Chief Justice Jefferson delivered the opinion of the Court.
Decided contemporaneously:
Prodigy Communications Corp. v. Agricultural Excess & Surplus Insurance,
No. 06-0598 (Tex. Mar. 27, 2009) (Jefferson) (insurance law, effect of noncompliance with prompt notice requirement as condition precedent for coverage of claim, prejudice factor) (Supreme Court concludes that "“notice as soon as practicable” was not an essential part of the bargained-for exchange under the claims-made policy at issue here." Following its earlier decision in PAJ, the Court holds that, "in the absence of prejudice to the insurer, the insured’s alleged failure to comply with the provision does not defeat coverage."
PRODIGY COMMUNICATIONS CORP. v. AGRICULTURAL EXCESS & SURPLUS INSURANCECOMPANY, N/K/A GREAT AMERICAN E & S INSURANCE COMPANY AND GREAT AMERICANINSURANCE COMPANY; from Dallas County; 5th district (05-05-00442-CV, 195 SW3d 764, 05-30-06) The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case tothe trial court. Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright,Justice Brister, Justice Medina, and Justice Green joined.
Justice Wainwright delivered a concurring opinion.
Justice Johnson delivered a dissenting opinion, in which Justice Hecht and Justice Willett joined.
Links: 2009 Texas Supreme Court Insurance Law Decisions 2008 Insurance Law Rulings by the Tex. Sup. Ct.
Saturday, March 7, 2009
Mar 2009 Opinions from the Texas Supreme Court
March 27, 2009 Tex. Opinions
Exxon Corp. v. Emerald Oil & Gas Co., L.C.,
No. 05-0729 (Tex. Mar. 27, 2009) (Opinion by Dale Wainright) (oil and gas law, statutory construction, cause of action for improperly plugging oil well, no standing of subsequent lessee)
EXXON CORPORATION AND EXXON TEXAS, INC. v. EMERALD OIL & GAS COMPANY, L.C.; fromRefugio County; 13th district (13-99-00757-CV, 228 SW3d 166, 01-27-05) The Court reverses the court of appeals' judgment and renders judgment.Justice Wainwright delivered the opinion of the Court. (Justice O'Neill not sitting)
Exxon Corp. v. Miesch,
No. 05-1076 (Tex. Mar. 27, 2009)(Wainwright)(plugging of oil well to prejudice future production subsequent to dispute over royalties, false statement to Railroad Commission, fraud, statute of limitations, oil and gas law,)
EXXON CORPORATION AND EXXON TEXAS, INC. v. EMERALD OIL & GAS COMPANY, L.C. ANDLAURIE T. MIESCH, ET AL.; from Refugio County; 13th district (13-00-00104-CV, 180 SW3d 299,11-29-05) The Court reverses and renders judgment, in part, and affirms, in part, the court of appeals' judgment,and remands the case to the trial court.Justice Wainwright delivered the opinion of the Court.(Justice O'Neill not sitting)
Prodigy Communications Corp. v. Agricultural Excess & Surplus Insurance,
No. 06-0598 (Tex. Mar. 27, 2009)(Jefferson) (insurance law, effect of noncompliance with prompt notice requirement as condition precedent for coverage of claim, prejudice factor)
PRODIGY COMMUNICATIONS CORP. v. AGRICULTURAL EXCESS & SURPLUS INSURANCECOMPANY, N/K/A GREAT AMERICAN E & S INSURANCE COMPANY AND GREAT AMERICANINSURANCE COMPANY; from Dallas County; 5th district (05-05-00442-CV, 195 SW3d 764, 05-30-06) The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case tothe trial court. Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice Brister, Justice Medina, and Justice Green joined.
Justice Wainwright delivered a concurring opinion.
Justice Johnson delivered a dissenting opinion, in which Justice Hecht and Justice Willett joined.
Financial Industries Corp. v. XL Specialty Ins. Co.,
No. 07-1059 (Tex. Mar. 27, 2009)(Jefferson)(cert. question from the 5th Circuit) (effect of insured's failure to give insurer prompt notice of claim, prejudice criterion, insurance policy construction)
FINANCIAL INDUSTRIES CORPORATION v. XL SPECIALTY INSURANCE COMPANYThe Court answers the question certified by the United States Court of Appeals for the Fifth Circuit. Chief Justice Jefferson delivered the opinion of the Court.
Progressive County Mutual Ins. Co. v. Kelley,
No. 08-0073 (Tex. Mar. 27, 2009)(per curiam) (insurance policy documents were ambiguous, thus raising issues of fact precluding summary judgment) (contract construction, insurance coverage dispute, contract consisting of multiple documents, definiteness, ambiguity)
PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY v. REGAN KELLEY; from BrazosCounty; 10th district (10-06-00263-CV, ___ SW3d ___, 12-12-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and withouthearing oral argument, the Court reverses the court of appeals' judgment and remands the case to thetrial court. Per Curiam Opinion
Ginn v. Forrester,
No. 08-0163 (Tex. Mar. 27, 2009)(per curiam) (absence of evidence of notice insufficient to satisfy requirement of error on face of the record for purpose of restricted appeal)
EMMANUEL GINN, A&R TRANSPORT, INC., KEITH JACKSON, STEVE BRANTLEY v. JEFFFORRESTER AND KIM FORRESTER; from Harris County; 14th district (14-06-00549-CV, ___ SW3d ___,01-10-08) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and withouthearing oral argument, the Court reverses the court of appeals’ judgment and renders judgment. Per Curiam Opinion
March 6, 2009
Phillips MD v. Bramlett,
No. 07-0522 (Tex. Mar. 6, 2009) (Majority opinion by Justice David Medina) (insurance law, Stowers doctrine, liability cap)
BENNY P. PHILLIPS, M.D. v. DALE BRAMLETT, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRAPTOR OF THE ESTATE OF VICKI BRAMLETT, DECEASED, SHANE FULLER AND MICHAEL FULLER; from Lubbock County; 7th district (07-05-00456-CV, 258 SW3d 158, 03-19-07) The Court reverses the court of appeals' judgment and remands the case to the trial court.Justice Medina delivered the opinion of the Court, in which Justice Wainwright, Justice Brister, Justice Johnson, and Justice Willett joined.
FROM THE MAJORITY OPINION:
We granted the petition for review in this case to consider the relationship between two provisions of the Medical Liability and Insurance Improvement Act of 1977, now repealed. See Tex. Rev. Civ. Stat. art. 4590i.[1] The first provision caps the liability of physicians (and other health care providers) above a fixed amount, adjusted for inflation, while the second creates an exception to this cap when the physician’s insurer has negligently failed to settle within the meaning of the Stowers Doctrine, that is, has negligently failed to settle a claim within the limits of the physician’s liability policy. The trial court here applied the Stowers exception to permit the rendition of a judgment against the physician in excess of the statutory cap. The court of appeals, in a divided decision, affirmed, concluding that the excess judgment was permissible because there was evidence that the insurer negligently failed to settle the claim against its insured, the physician. 258 S.W.3d 158. In other words, the court concluded that the statutory Stowers exception waived the liability cap for both the insurer and the insured physician. We disagree that this exception applies to the physician and accordingly reverse the court of appeals’ judgment and remand the case to the trial court.* * *In summary, we conclude that the Stowers exception of article 4590i, section 11.02(c), expressly applies to insurers only and does not waive the liability cap of section 11.02(a) generally. We further conclude that any probable harm caused by the asserted improper remarks in this case could have been cured by an instruction or retraction. No ruling, however, was requested or obtained, and the party’s objection was not alone sufficient to preserve the alleged error.
The court of appeals’ judgment is reversed and the cause is remanded to the trial court for it to apply the cap and render judgment consistent with our opinion.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Hecht, and Justice Green joined.
Exxon Corp. v. Emerald Oil & Gas Co., L.C.,
No. 05-0729 (Tex. Mar. 27, 2009) (Opinion by Dale Wainright) (oil and gas law, statutory construction, cause of action for improperly plugging oil well, no standing of subsequent lessee)
EXXON CORPORATION AND EXXON TEXAS, INC. v. EMERALD OIL & GAS COMPANY, L.C.; fromRefugio County; 13th district (13-99-00757-CV, 228 SW3d 166, 01-27-05) The Court reverses the court of appeals' judgment and renders judgment.Justice Wainwright delivered the opinion of the Court. (Justice O'Neill not sitting)
Exxon Corp. v. Miesch,
No. 05-1076 (Tex. Mar. 27, 2009)(Wainwright)(plugging of oil well to prejudice future production subsequent to dispute over royalties, false statement to Railroad Commission, fraud, statute of limitations, oil and gas law,)
EXXON CORPORATION AND EXXON TEXAS, INC. v. EMERALD OIL & GAS COMPANY, L.C. ANDLAURIE T. MIESCH, ET AL.; from Refugio County; 13th district (13-00-00104-CV, 180 SW3d 299,11-29-05) The Court reverses and renders judgment, in part, and affirms, in part, the court of appeals' judgment,and remands the case to the trial court.Justice Wainwright delivered the opinion of the Court.(Justice O'Neill not sitting)
Prodigy Communications Corp. v. Agricultural Excess & Surplus Insurance,
No. 06-0598 (Tex. Mar. 27, 2009)(Jefferson) (insurance law, effect of noncompliance with prompt notice requirement as condition precedent for coverage of claim, prejudice factor)
PRODIGY COMMUNICATIONS CORP. v. AGRICULTURAL EXCESS & SURPLUS INSURANCECOMPANY, N/K/A GREAT AMERICAN E & S INSURANCE COMPANY AND GREAT AMERICANINSURANCE COMPANY; from Dallas County; 5th district (05-05-00442-CV, 195 SW3d 764, 05-30-06) The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case tothe trial court. Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice Brister, Justice Medina, and Justice Green joined.
Justice Wainwright delivered a concurring opinion.
Justice Johnson delivered a dissenting opinion, in which Justice Hecht and Justice Willett joined.
Financial Industries Corp. v. XL Specialty Ins. Co.,
No. 07-1059 (Tex. Mar. 27, 2009)(Jefferson)(cert. question from the 5th Circuit) (effect of insured's failure to give insurer prompt notice of claim, prejudice criterion, insurance policy construction)
FINANCIAL INDUSTRIES CORPORATION v. XL SPECIALTY INSURANCE COMPANYThe Court answers the question certified by the United States Court of Appeals for the Fifth Circuit. Chief Justice Jefferson delivered the opinion of the Court.
Progressive County Mutual Ins. Co. v. Kelley,
No. 08-0073 (Tex. Mar. 27, 2009)(per curiam) (insurance policy documents were ambiguous, thus raising issues of fact precluding summary judgment) (contract construction, insurance coverage dispute, contract consisting of multiple documents, definiteness, ambiguity)
PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY v. REGAN KELLEY; from BrazosCounty; 10th district (10-06-00263-CV, ___ SW3d ___, 12-12-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and withouthearing oral argument, the Court reverses the court of appeals' judgment and remands the case to thetrial court. Per Curiam Opinion
Ginn v. Forrester,
No. 08-0163 (Tex. Mar. 27, 2009)(per curiam) (absence of evidence of notice insufficient to satisfy requirement of error on face of the record for purpose of restricted appeal)
EMMANUEL GINN, A&R TRANSPORT, INC., KEITH JACKSON, STEVE BRANTLEY v. JEFFFORRESTER AND KIM FORRESTER; from Harris County; 14th district (14-06-00549-CV, ___ SW3d ___,01-10-08) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and withouthearing oral argument, the Court reverses the court of appeals’ judgment and renders judgment. Per Curiam Opinion
March 6, 2009
Phillips MD v. Bramlett,
No. 07-0522 (Tex. Mar. 6, 2009) (Majority opinion by Justice David Medina) (insurance law, Stowers doctrine, liability cap)
BENNY P. PHILLIPS, M.D. v. DALE BRAMLETT, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRAPTOR OF THE ESTATE OF VICKI BRAMLETT, DECEASED, SHANE FULLER AND MICHAEL FULLER; from Lubbock County; 7th district (07-05-00456-CV, 258 SW3d 158, 03-19-07) The Court reverses the court of appeals' judgment and remands the case to the trial court.Justice Medina delivered the opinion of the Court, in which Justice Wainwright, Justice Brister, Justice Johnson, and Justice Willett joined.
FROM THE MAJORITY OPINION:
We granted the petition for review in this case to consider the relationship between two provisions of the Medical Liability and Insurance Improvement Act of 1977, now repealed. See Tex. Rev. Civ. Stat. art. 4590i.[1] The first provision caps the liability of physicians (and other health care providers) above a fixed amount, adjusted for inflation, while the second creates an exception to this cap when the physician’s insurer has negligently failed to settle within the meaning of the Stowers Doctrine, that is, has negligently failed to settle a claim within the limits of the physician’s liability policy. The trial court here applied the Stowers exception to permit the rendition of a judgment against the physician in excess of the statutory cap. The court of appeals, in a divided decision, affirmed, concluding that the excess judgment was permissible because there was evidence that the insurer negligently failed to settle the claim against its insured, the physician. 258 S.W.3d 158. In other words, the court concluded that the statutory Stowers exception waived the liability cap for both the insurer and the insured physician. We disagree that this exception applies to the physician and accordingly reverse the court of appeals’ judgment and remand the case to the trial court.* * *In summary, we conclude that the Stowers exception of article 4590i, section 11.02(c), expressly applies to insurers only and does not waive the liability cap of section 11.02(a) generally. We further conclude that any probable harm caused by the asserted improper remarks in this case could have been cured by an instruction or retraction. No ruling, however, was requested or obtained, and the party’s objection was not alone sufficient to preserve the alleged error.
The court of appeals’ judgment is reversed and the cause is remanded to the trial court for it to apply the cap and render judgment consistent with our opinion.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Hecht, and Justice Green joined.
Feb 2009 Texas Supreme Court Opinions
TXI Operations, LP v. Perry, No. 05-0030 (Tex. Feb. 27, 2009)(Green)(premises liability, duty of warn of danger, private road defect, sufficiency of speed limit warning sign) TXI OPERATIONS, L.P. v. DAVID PERRY; from Liberty County; 9th district (09-04-00070-CV, ___ SW3d ___, 11-18-04) The Court affirms the court of appeals' judgment.Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Wainwright, Justice Brister, Justice Medina, and Justice Johnson joined. Justice Hecht delivered a dissenting opinion, in which Justice Medina and Justice Willett joined. Dissent by Justice Nathan Hecht
Retamco Operating, Inc. v. Republic Drilling Co. No. 07-0599 (Tex. Feb. 27, 2009)(Paul Green)(personal jurisdiction over out-of-state defendant, Texas Longarm Statute, minimum contacts, UFTA, transfer of real estate interest in Texas, oil and gas law) RETAMCO OPERATING, INC. v. REPUBLIC DRILLING COMPANY; from Bexar County; 4th district (04-06-00727-CV, ___ SW3d ___, 03-28-07) The Court reverses the court of appeals' judgment and remands the case to the trial court.Justice Green delivered the opinion of the Court.
In Re Bank of America, N.A. (Tex. Feb. 27, 2009)(per curiam)(mandamus)(contractual jury waiver enforced by mandamus, conspicuousness of waiver, knowing and voluntary waiver)
IN RE BANK OF AMERICA, N.A.; from Tarrant County; 2nd district (02-05-00397-CV, 232 SW3d 145, 05-03-07)Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.Per Curiam Opinion (Justice Johnson not sitting)
Retamco Operating, Inc. v. Douglas B. McCallum, LLC, No. 08-0405 (Tex. Feb 2009)(per curiam) (UFTA, oil and gas royalties transfer)
RETAMCO OPERATING, INC. v. DOUGLAS B. MCCALLUM, LLC; from Bexar County; 4th district (04-07-00482-CV, ___ SW3d ___, 04-09-08)Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion
In Re Lovito-Nelson, No. 08-0482 (Tex. Feb. 27, 2009)(per curiam)(mandamus granted) (written order required for grant of motion for new trial; docket control order with new trial date insufficient, plenary power)
IN RE JOANNE LOVITO-NELSON; from Tarrant County Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.Per Curiam Opinion
In Re Jindal Saw Limited, No. 08-0805 (Tex. Feb. 27, 2009)(per curiam)(mandamus) (arbitration, nonsignatories, wrongful death beneficiaries compelled to arbitrate, workplace death)IN RE JINDAL SAW LIMITED, JINDAL ENTERPRISES LLC, AND SAW PIPES USA; from Harris County; 1st district (01-07-01068-CV, 264 SW3d 755, 05-22-08)stay order issued October 24, 2008, lifted Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion
SCOTT BRISTER DISSENTS FROM DENIAL OF PETITION FOR REVIEW
Gurkoff, D.O. v. Jersak, No. 08-0398 (Tex. Feb. 27, 2009)(Brister)(Dissent from denial of petition for review) (enforcement of sanctions in the form of defendant's attorney's fees for failure to file expert report in med-mal suit)
08-0398 JERRY GURKOFF, D.O. v. ROSEMARY JERSAK; from Tarrant County; 2nd district (02‑07‑00101‑CV, ___ SW3d ___, 04‑10‑08) Justice Brister, joined by Justice Hecht, delivered an opinion dissenting from the denial of PFR.
Pine Oak Builders, Inc. v. Great American Lloyds Ins. Co., No. 06-0867 (Tex. 2009)(Willett)(insurance coverage dispute, duty to defend not triggered by allegations in suit)
PINE OAK BUILDERS, INC. v. GREAT AMERICAN LLOYDS INSURANCE COMPANY; from Harris County; 14th district (14-05-00487-CV, ___ SW3d ___, 07-06-06) 2 petitionsThe Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court.Justice Willett delivered the opinion of the Court.
In re Labatt Food Service, LP, No. 07-0419 (Tex. 2009)(Johnson)(arbitration mandamus, arbitration of wrongful death claim by nonsignatories compelled)
IN RE LABATT FOOD SERVICE, L.P.; from Bexar County; 4th district (04-07-00312-CV, ___ SW3d ___, 05-16-07)The Court conditionally grants the petition for writ of mandamus.Justice Johnson delivered the opinion of the Court.
Old Farms Owners Assn., Inc. v. HISD, No. 07-0924 (Tex. 2009)(per curiam)(tax suit, tax bill mailed to incorrect address, penalties, statutory construction, effect of nonsuit)
OLD FARMS OWNERS ASSOCIATION, INC. AND SUSAN C. LEE, TRUSTEE OF THE TRUST CREATED UNDER ARTICLE IV OF THE WILL OF KATHERINE P. BARNHART, DECEASED v. HOUSTON INDEPENDENT SCHOOL DISTRICT, ET AL.; from Harris County; 1st district (01-04-00538-CV, 236 SW3d 375, 07-26-07)Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and reinstates the trial court's judgment. Per Curiam Opinion
In re Coppock, No. 08-0093 (Tex. 2009)(O'Neill)(contempt in divorce case overturned by habeas corpus)
IN RE GAYLE E. COPPOCK; from Denton County; 2nd district (02-07-00427-CV, ___ SW3d ___,01-04-08) The Court grants the petition for writ of habeas corpus and sets aside the order of contempt.Justice O'Neill delivered the opinion of the Court.
Retamco Operating, Inc. v. Republic Drilling Co. No. 07-0599 (Tex. Feb. 27, 2009)(Paul Green)(personal jurisdiction over out-of-state defendant, Texas Longarm Statute, minimum contacts, UFTA, transfer of real estate interest in Texas, oil and gas law) RETAMCO OPERATING, INC. v. REPUBLIC DRILLING COMPANY; from Bexar County; 4th district (04-06-00727-CV, ___ SW3d ___, 03-28-07) The Court reverses the court of appeals' judgment and remands the case to the trial court.Justice Green delivered the opinion of the Court.
In Re Bank of America, N.A. (Tex. Feb. 27, 2009)(per curiam)(mandamus)(contractual jury waiver enforced by mandamus, conspicuousness of waiver, knowing and voluntary waiver)
IN RE BANK OF AMERICA, N.A.; from Tarrant County; 2nd district (02-05-00397-CV, 232 SW3d 145, 05-03-07)Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.Per Curiam Opinion (Justice Johnson not sitting)
Retamco Operating, Inc. v. Douglas B. McCallum, LLC, No. 08-0405 (Tex. Feb 2009)(per curiam) (UFTA, oil and gas royalties transfer)
RETAMCO OPERATING, INC. v. DOUGLAS B. MCCALLUM, LLC; from Bexar County; 4th district (04-07-00482-CV, ___ SW3d ___, 04-09-08)Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion
In Re Lovito-Nelson, No. 08-0482 (Tex. Feb. 27, 2009)(per curiam)(mandamus granted) (written order required for grant of motion for new trial; docket control order with new trial date insufficient, plenary power)
IN RE JOANNE LOVITO-NELSON; from Tarrant County Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.Per Curiam Opinion
In Re Jindal Saw Limited, No. 08-0805 (Tex. Feb. 27, 2009)(per curiam)(mandamus) (arbitration, nonsignatories, wrongful death beneficiaries compelled to arbitrate, workplace death)IN RE JINDAL SAW LIMITED, JINDAL ENTERPRISES LLC, AND SAW PIPES USA; from Harris County; 1st district (01-07-01068-CV, 264 SW3d 755, 05-22-08)stay order issued October 24, 2008, lifted Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion
SCOTT BRISTER DISSENTS FROM DENIAL OF PETITION FOR REVIEW
Gurkoff, D.O. v. Jersak, No. 08-0398 (Tex. Feb. 27, 2009)(Brister)(Dissent from denial of petition for review) (enforcement of sanctions in the form of defendant's attorney's fees for failure to file expert report in med-mal suit)
08-0398 JERRY GURKOFF, D.O. v. ROSEMARY JERSAK; from Tarrant County; 2nd district (02‑07‑00101‑CV, ___ SW3d ___, 04‑10‑08) Justice Brister, joined by Justice Hecht, delivered an opinion dissenting from the denial of PFR.
Pine Oak Builders, Inc. v. Great American Lloyds Ins. Co., No. 06-0867 (Tex. 2009)(Willett)(insurance coverage dispute, duty to defend not triggered by allegations in suit)
PINE OAK BUILDERS, INC. v. GREAT AMERICAN LLOYDS INSURANCE COMPANY; from Harris County; 14th district (14-05-00487-CV, ___ SW3d ___, 07-06-06) 2 petitionsThe Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court.Justice Willett delivered the opinion of the Court.
In re Labatt Food Service, LP, No. 07-0419 (Tex. 2009)(Johnson)(arbitration mandamus, arbitration of wrongful death claim by nonsignatories compelled)
IN RE LABATT FOOD SERVICE, L.P.; from Bexar County; 4th district (04-07-00312-CV, ___ SW3d ___, 05-16-07)The Court conditionally grants the petition for writ of mandamus.Justice Johnson delivered the opinion of the Court.
Old Farms Owners Assn., Inc. v. HISD, No. 07-0924 (Tex. 2009)(per curiam)(tax suit, tax bill mailed to incorrect address, penalties, statutory construction, effect of nonsuit)
OLD FARMS OWNERS ASSOCIATION, INC. AND SUSAN C. LEE, TRUSTEE OF THE TRUST CREATED UNDER ARTICLE IV OF THE WILL OF KATHERINE P. BARNHART, DECEASED v. HOUSTON INDEPENDENT SCHOOL DISTRICT, ET AL.; from Harris County; 1st district (01-04-00538-CV, 236 SW3d 375, 07-26-07)Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and reinstates the trial court's judgment. Per Curiam Opinion
In re Coppock, No. 08-0093 (Tex. 2009)(O'Neill)(contempt in divorce case overturned by habeas corpus)
IN RE GAYLE E. COPPOCK; from Denton County; 2nd district (02-07-00427-CV, ___ SW3d ___,01-04-08) The Court grants the petition for writ of habeas corpus and sets aside the order of contempt.Justice O'Neill delivered the opinion of the Court.
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