- Certificate of Merit Statute: Constitutional or Unconstitutional?
- Increased Insurance Premiums: Are They Recoverable from Third-Party Tortfeasors?
- Texas Supreme Court Clarified the Applicable Standard for Proving Attorney’s Fees
- The Oregon Rule and Presumption of Fault
- Drivers’ Liability: The Unavoidable Accident Defense
- Fraudulent Concealment: When does the statute of limitations begin to run for a breach of contract claim, if fraudulent concealment is asserted?
- Application of the Discovery Rule to Breach of Contract Claims
- Proper Procedure to Obtain Entry on Real Property of a Nonparty for Purposes of Inspection and Photographing
- Designating Unknown Responsible Third Parties: How to Properly Designate an Unknown Driver
- Premises Liability: Do Open and Obvious Naturally Occurring Conditions Pose an Unreasonable Risk of Harm?
Showing 18 posts from 2016.
Any case can be removed to federal court, but unless certain criteria are met, the case will be summarily remanded to state court, and costs and expenses may be assessed against the defendant for “improvident removal”. Generally, removal is proper if there is a civil action that involves (1) federal-question jurisdiction; (2) diversity jurisdiction; (3) a statute that authorizes removal or; (4) alienage jurisdiction. Read More ›
The imputation doctrine is a common-law rule deriving from the law of agency. Under this doctrine, a principal is deemed to know facts that are known to its agent. Texas courts have found that a principal may be held liable for fraud or misrepresentation of an agent acting within the scope of the agency, even though the principal has no knowledge of the fraud or misrepresentation. However, if the fraud is committed by the agent toward the principal, the imputation doctrine does not apply. Read More ›
Nonmanufacturing sellers are not always exempt from liability of harm caused by defective products.
Generally, in Texas, a nonmanufacturing seller of a defective product is not liable for harm caused by that product. However, there is a provision that permits a plaintiff to proceed against a nonmanufacturing seller if the product's manufacturer is “not subject to the jurisdiction of the court.” Moreover, if “after service on a nonresident manufacturer... the manufacturer fails to answer or otherwise make an appearance in the time required by law, it is conclusively presumed... that the manufacturer is not subject to the jurisdiction of the court unless the seller is able to secure personal jurisdiction over the manufacturer in the action.” Read More ›
Seger v. Yorkshire Insurance Co., No. 13-0673, on petition for review from the Court of Appeals for the Seventh District of Texas, was argued September 3, 2015 and decided June 17, 2016. After an accident, the parents of a deceased derrick hand (“Segers”) sued the company that owned the drilling rig (“Diatom”). Seger was employed with ECS. As an employee of ECS, the deceased provided services to Diatom. The drilling company demanded that its commercial general liability (“CGL”) insurers defend it in the litigation. The policy provided for a maximum of $500,000 of coverage for any one bodily injury accident, and contained a condition excluding leased-in workers and employees, but included independent contractors. The insurers refused claiming lack of coverage. The parents obtained a judgment against the drilling company, the company assigned its rights against the insurers to the parents, and the parents brought a Stowers action against the insurers. Read More ›
In TIC Energy & Chem. Co. v. Martin, No. 15-0143 (Tex. June 3, 2016), a Union Carbide employee, Kevin Martin, lost one of his legs in a workplace accident and recovered workers' compensation benefits through an owner-controlled insurance program (OCIP) administered by Union Carbide's parent company, Dow Chemical Company. Because Union Carbide was protected by the worker's compensation bar to suit, it could not be sued. Martin thus sued TIC Energy & Chemical Company, a subcontractor providing maintenance services at the facility, alleging TIC's employees negligently caused his injury. Read More ›
Sport shooting ranges are not immune from civil liability. Plaintiffs may initiate suit against a sport shooting range for causes of action such as: 1) breach of contract; 2) harm to private property caused by the discharge of firearms on the range; 3) personal injury or death caused by the discharge of a firearm on the range; and 4) injunctive relief to enforce a valid ordinance, statute, or regulation. In a suit against a shooting range, an owner or operator of a shooting range, or the owner of real property where a shooting range is located, plaintiffs must file an expert report with their pleadings. Such expert reports are required because the expert's testimony provides a basis for the trial court to conclude plaintiff's claims have merit and “shall” be filed not later than the 90th day after the original petition is submitted. If the report is not timely filed, the court must enter an order awarding attorney's fees and court costs incurred by the defendant and dismiss the claim with prejudice. The award and dismissal are mandatory, not discretionary. Read More ›
The Economic Loss Doctrine (“ELD”) has been adopted by a majority of states and jurisdictions. The ELD consists of three different views: 1) the traditional/majority (Texas); 2) intermediate (California); and 3) minority (Colorado). With regard to a product which damages itself and only itself, each rule has a different way of assigning liability and sometimes one view may rule a different way than another. Read More ›
The express negligence doctrine is a rule of contract interpretation which requires contracting parties seeking to indemnify a party from the consequences of its own negligence to express that intention in specific terms, within the four corners of the document. Read More ›
The Supreme Court of Texas has issued two recent opinions regarding the applicability of Chapter 95 of the Texas Civil Practice & Remedies Code, First Texas Bank v. Carpenter and Ineos USA, LLC v. Elmgren. Both of these opinions provide openings for plaintiffs to assert Chapter 95 is not applicable as an affirmative defense or avoid its applicability all together. Read More ›
Standard for Sealing Records
Under Texas law, court records are generally open to the public and access to them is guaranteed to all attorneys in any court. In re The Dallas Morning News, Inc., 10 S.W.3d 298, 301 (Tex. 1999) (concurring opinion); Davenport v. Garcia, 834 S.W.2d 4, 23 (Tex. 1992) (orig. proceeding); see Tex. R. Civ. P. 76a(1) “court records, as defined in this rule, are presumed to be open to the general public and may be sealed only upon a showing of... a specific, serious and substantial interest which clearly outweighs... (1) this presumption of openness; (2) any probable adverse effect that sealing will have upon the general public health or safety,... [and] no less restrictive means than sealing records will adequately and effectively protect the specific interest asserted.” Read More ›