May 1, 2015

May 1, 2015

Greetings,

Happy Law Day! This week, the Texas Supreme Court released one opinion. It also granted 2 new Petitions for Review. We discuss each briefly below:

Ross v. St. Luke's Episcopal Hospital, Case No. 13-0439:

http://www.txcourts.gov/media/951862/130439.pdf

This case involves a premises liability claim involving a slip and fall by Plaintiff, who slipped on a recently buffed area of floor while exiting the hospital after visiting a patient. She was not initially seeking any medical treatment as part of her visit to St. Luke's.

Defendant moved to dismiss the case for Plaintiff's failure to provide an expert report under the TMLA. Plaintiff resisted, arguing her case was not a health care liability claim ("HCLC") as defined under the TMLA, thus no expert report was required. Defendant countered that Plaintiff's allegations that the hospital failed to follow standards of safety caused it to fall under the TMLA based upon Texas West Oaks Hospital, L.P. v. Williams, 371 S.W.3d 171. The trial court and court of appeals agreed with Defendants.

The Texas Supreme Court reversed. After determining it possessed jurisdiction to hear the appeal as well as determining that Plaintiff's filings in the trial court and court of appeal demonstrated Plaintiff had not waived the error, the Court determined that for a claim to fall under the TMLA, it must possess some relationship to the provision of health care other than the location of the occurrence, the status of the defendant, or both. Applying ejusdem generis, the Court held "that for a safety standards-based claim to be an HCLC there must be a substantive nexus between the safety standards allegedly violated and the provision of health care. And that nexus must be more than a "but for" relationship." The Court provided the following non-exclusive considerations for determining whether a safety standards claims is substantively related to the defendant's provision of health care, making it a HCLC:

1. Did the alleged negligence of the defendant occur in the course of the defendant's performing tasks with the purpose of protecting patients from harm;

2. Did the injuries occur in a place where patients might be during the time they were receiving care, so that the obligation of the provider to protect persons who require special, medical care was implicated;

3. At the time of the injury was the claimant in the process of seeking or receiving health care;

4. At the time of the injury was the claimant providing or assisting in providing health care;

5. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider;

6. If an instrumentality was involved in the defendant's alleged negligence, was it a type used in providing health care; or

7. Did the alleged negligence occur in the course of the defendant's taking action or failing to take action necessary to comply with safety-related requirements set for health care providers by governmental or accrediting agencies?

Measuring Ross's situation as a visitor to the hospital against these factors, the Court determined her slip and fall claim was not a HCLC under the TMLA, reversing the court of appeals and remanding the case back to the trial court.

Petitions for Review Granted:

Kingsaire, Inc. v. Melendez, Case NO. 14-0006:

This is a workers' compensation retaliation case involving whether an absence policy, non-discriminatorily applied, can constitute retaliation. Melendez sued Kings Aire for retaliation, arguing that his termination of employment after the expiration of his 12 weeks FLMA leave pursuant to Kings Aire's company absence policy was retaliation. Kings Aire sought summary judgment but was denied, and the case proceeded to trial. A jury awarded Melendez back pay and benefits and front pay and benefits totaling $124,654. The issues before the Court are:

1. Did the application of a uniformly enforced leave of absence policy legally bar Melendez' retaliatory discharge claim?

2. Was Kings Aire entitled to submit a question or instruction on its leave of absence policy defense?

3. Was the evidence legally sufficient to support the jury's finding of workers' compensation retaliation?

J&D Towing, LLC v. American Alternative Insurance Corp., Case No. 14-0574:

This automobile-insurance coverage dispute involves a challenge to an appellate decision that overturned a jury award. The jury award compensated J&D Towing for business losses it suffered when it was unable to immediately replace its only wrecker, which became unusable as the result of a car accident. It is undisputed that the wrecker was totally destroyed as a result of the negligence of an underinsured motorist. The only issue presented, as stated by insured J&D towing, is:

Does Texas law, in contrast to the emerging-consensus position adopted by nearly every court throughout the country that has recently considered the issue, create an exception to the principle of full-and-fair compensation by prohibiting a vehicle owner from recovering loss-of-use damages merely because his vehicle is totally destroyed, even where (1) the vehicle owner made reasonable attempts to mitigate; and (2) he nonetheless suffered an actual loss of business revenue because immediate replacement of the vehicle was impossible?

Conclusion:

We hope these summaries are useful to your practice. The Court is not scheduled to meet in conference this week. However, check back next week to see if the Court releases any new orders or opinions. In the meantime, don't forget to remind your friends, family, and colleagues on this Law Day of the important privilege we have to live in a society that respects the rule of law and trial by jury.

Best Regards,