March 13, 2015

After meeting in conference this week on Tuesday and Wednesday, the Supreme Court of Texas did not release any new opinions. However, the Court did grant 4 petitions for review covering a variety of topics of interest to litigators, insurers, and property owners. The Court did not set the cases discussed below for oral arguments.

Seger v. Yorkshire Ins. Co., Ltd., Case 13-0673:

Of interest to insurers and policy holders involved in coverage disputes, the Texas Supreme Court granted this petition for review to examine the issues surrounding the validity of a post-judgment assignment of the insured's Stowers claim by an judgment debtor whose surplus lines insurers denied their duties to defend and indemnify. The specific issues identified are:

1. When a liability insurer has breached its duty to defend, does a valid post-trial Stowers assignment automatically trigger Gandy's fully adversarial trial requirement absent a showing of collusion?

2. If a valid post-trial Stowers assignment does trigger Gandy's application, is a fully adversarial trial judged solely on insured's ability to mount her own defense in insurer's absence?

3. Alternatively, why did the court of appeals reverse and render Plaintiff judgment-creditor's recovery of policy limits as third-party beneficiary under the CGL policy?

Occidental Chemical Corp. v. Jenkins, Case 13-0961:

This premises liability case stems from a workplace injury claim arising from a designed improvement built by a former owner of a chemical plant prior to its sale of the facility to plaintiff's employer. Plaintiff sued the former property owner for his post-sale injuries. The specific issues facing the Court:

1. Under Texas law, is Occidental-a former owner of a chemical plant in Baytown, Texas-liable for injuries allegedly caused by a defective condition of an improvement Occidental built on the property eight years before it conveyed the property to Plaintiff's employer and 14 years before the accident at issue occurred?

2. Do Texas's 10-year statutes of repose for design and construction protect Occidental from being held liable for its role in improving its former chemical plant 14 years before Plaintiff's injury?

KBMT Operating Co., LLC et al v. Toledo, Case 14-0456:

This defamation case stems from a broadcast reporting on the Texas Medical Board's ("TMB") disciplinary action against a local pediatrician based upon allegedly improper sexual conduct with a patient (who was not a minor but a 60 year old man-a fact KBMT failed to report). The specific issues before the Court:

1. Did the Court of Appeals err in finding the broadcasts defamatory by comparing the broadcasts to facts from Toledo's affidavit that are not reported in the TMB Records?

2. Did the Court of Appeals err in affirming the denial of KBMT's motion to dismiss when Toledo failed to offer legally sufficient evidence that KBMT acted with actual malice as the standard of care imposed by the fair reporting privilege?

3. In its analysis of the broadcasts, the Court of Appeals focused on the use of the terms "pediatrician" and "engaged in sexual contact with a patient" in the same sentence, and that a similar coupling of those words does not exist in the TMB Records. In determining whether the statements in the broadcasts were defamatory, did the Court of Appeals err in failing to evaluate the broadcasts as a whole as required by longstanding Texas jurisprudence?

4. Did the Court of Appeals err in failing to reverse the trial court and dismiss Toledo's defamation claim pursuant to the TCPA and award KBMT's attorneys' fees and court costs?

Lindsey v. Ramsey, Case 14-0983:

This appeal stems from a forcible detainer case originally filed in the justice of the peace court, in which the landlord prevailed. The tenant appealed to the county court at law, but his appeal was rejected for failing to pay filing fees by the deadline calculated by the clerk, which tenant argued was miscalculated by the clerk's office. The county court denied tenant's motion to retain the case and the court of appeals determined it lacked jurisdiction reasoning that the county clerk's letter deprived the county court of jurisdiction. The court alternatively held that the county clerk's letter constituted the judgment triggering the deadlines contained within Texas Rule of Civil Procedure 329b, rather than the signed county court order. The specific issues presented include:

1. Does a county clerk's letter "remanding" a case back to JP court deprive the county court of jurisdiction to consider the propriety of that action?

2. Are the deadlines contained in Texas Rule of Civil Procedure 329b triggered by the county clerk's letter, or by the signed county court order?

Conclusions:

We hope this brief summary of the Petitions for Review granted by the Court this week are useful to your practice. Please check back in next week, as we continue to update you on the weekly activities of the Supreme Court of Texas. In the interim, don't hesitate to reach out to The Bassett Firm if we can assist you with any litigation or coverage needs you may have.

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