Certificate of Merit Statute: Constitutional or Unconstitutional?

Professional associations representing design professionals have, for a number of years, promoted legislation that requires plaintiffs to obtain an opinion from a professional consultant before instituting suit against a design professional.  These statutes are often referred to as “certificate of merit” laws.  In general, these laws require a plaintiff to obtain an opinion from a design professional confirming that its claim for professional negligence has merit.  Most statutory schemes require the plaintiff’s complaint to be dismissed if the requisite certificate is not obtained. Read More ›

Increased Insurance Premiums: Are They Recoverable from Third-Party Tortfeasors?

For the typical American employer, payments of insurance premiums are among the greatest expenses, and are important and unavoidable costs of operating a business.  It is common for an employer to see a spike in the cost of these premiums after experiencing an accident with an employee or a significant loss.  Insurance companies raising rates for coverage is hardly a phenomenon, but it does raise a question of fairness: should the insured bear the burden of paying increased premiums raised as a result of the tortious acts of a third-party?  According to Texas courts, principles of fairness must take a back seat on this issue. Read More ›

Texas Supreme Court Clarified the Applicable Standard for Proving Attorney’s Fees


Under the doctrine known as the “American Rule,” each party involved in a lawsuit is customarily responsible for their own respective attorney's fees incurred in litigation, unless provided for by statute or prior agreement.[1]  One the most common statutes permitting recovery of attorney's fees is Chapter 38 of the Texas Civil Practice and Remedies Code. Read More ›

The Oregon Rule and Presumption of Fault

Under the Oregon Rule, a vessel under power that strikes a fixed object is presumptively at fault.[1] This presumption is closely related to the doctrine of res ipsa loquitor, which creates a rebuttable presumption of fault on the part of the person controlling the instrumentality.[2] Moreover, these rules shift the burden of production and persuasion to the offending party.[3] Read More ›

Drivers’ Liability: The Unavoidable Accident Defense

Texas courts acknowledge an automobile collision may be an “unavoidable accident,” which is defined as “an event not proximately caused by the negligence of any party to it.”[1] Stated differently, an unavoidable accident “is an accident that ordinary care and diligence could not have prevented, or one which could not have been foreseen or prevented by the exercise of reasonable precautions.”[2] Under Texas law, unforeseeable loss of consciousness can be considered an unavoidable accident.[3] The purpose of an unavoidable accident instruction “is to ensure that the jury will understand that ‘they do not necessarily have to find that one or the other parties to the suit was to blame for the occurrence complained of.’”[4] Read More ›

Fraudulent Concealment: When does the statute of limitations begin to run for a breach of contract claim, if fraudulent concealment is asserted?

Introduction: Fraudulent Concealment

In Texas, a breach of contract claim is governed by a four-year statute of limitations.[1] Generally, the limitations period begins to run when a contract is breached.[2] However, a defendant's fraudulent concealment of the breach tolls the statute of limitations until the fraud is discovered or should have been discovered with reasonable diligence.[3] Determining when a plaintiff knew or reasonably should have known of the fraudulent concealment is generally a question of fact.[4] The party asserting fraudulent concealment as an affirmative defense to the statute of limitations must establish the defendant (1) actually knew a wrong occurred; (2) had a fixed purpose to conceal the wrong; and (3) did conceal the wrong.[5] Read More ›

Application of the Discovery Rule to Breach of Contract Claims

Under Texas law, a four-year statute of limitations applies to breach of contract claims.[1]  A cause of action for breach of contract generally accrues when the contract is breached.[2]  However, the discovery rule may serve to delay the commencement of the limitations period.[3]  When applicable, the discovery rule will defer accrual of a cause of action until the plaintiff knew or, by exercising reasonable diligence, should have known of the facts giving rise to a cause of action.[4] Read More ›

Proper Procedure to Obtain Entry on Real Property of a Nonparty for Purposes of Inspection and Photographing

Rule 205.1 limits what the trial court may order in relation to discovery from a nonparty. A party can gain entry on the land of the nonparty by filing a motion, requesting a hearing, and obtaining an order. A party may compel discovery in the form of entry on and inspection of real property from a nonparty only by obtaining a court order under Tex. R. Civ. P. 196.7. An order for entry onto the property of a nonparty may only be issued upon a showing of "good cause" and only if the discovery is relevant to the cause of action. In determining whether to grant the order, Texas courts conduct a greater inquiry into the necessity for the inspection, testing, or sampling because entry onto the property of a nonparty involves unique burdens and risks such as confusion and disruption of the defendant's business and employees. Read More ›

Designating Unknown Responsible Third Parties: How to Properly Designate an Unknown Driver

A responsible third-party is any person who is alleged to have caused or contributed in any way to causing the harm for which recovery of damages is sought.  Tex. Civ. Prac. & Rem. Code § 33.011.  When a party moves to designate an unknown person as a responsible third-party, Texas law provides additional requirements on the designating party.  Accordingly, in a case stemming from an automobile collision, a party attempting to designate an unknown driver as a responsible third party must be aware of all requirements Texas law provides. Read More ›

Premises Liability: Do Open and Obvious Naturally Occurring Conditions Pose an Unreasonable Risk of Harm?

Introduction: Premises Liability

In Texas, a landlord can be held liable on a premise liability claim for an invitee’s injuries.[1]  An invitee is one who enters on another's land with the owner’s knowledge and for the mutual benefit of both.[2]  In order to establish premises liability, an invitee must show (1) the landlord’s actual or constructive knowledge of a condition on the premises by the landlord; (2) the condition posed an unreasonable risk of harm; (3) the landlord did not exercise reasonable care to reduce or eliminate the risk; and (4) the landlord’s failure to use such care proximately caused the plaintiff's injuries.[3]  A landlord does not have a duty to warn or protect an invitee against conditions that are naturally occurring and open and obvious.[4] Read More ›