Volume 1, Issue 1, August 2013

Litigation news and recent relevant rulings
Volume 1, Issue 1 August 2013  


Medical Liens
Texas Demographics
Texas Trucking
Texas Jurors
In The News...

Additions to the Texas Rules of Procedure

Recently the Texas Supreme Court amended the Texas Rules of Civil Procedure to provide for a motion to dismiss and an expedited actions process>

Pursuant to the new Texas Rule of Civil Procedure 91a, a party can now file a motion to dismiss in Texas state court to dismiss a cause of action that has no basis in law or in fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts plead . A party does not, by filing a motion to dismiss, waive a special appearance or motion to transfer venue.

Filing a motion to dismiss, however, has risks: except in limited circumstances concerning governmental claims, a court must award the "prevailing party" all costs, and reasonable and necessary attorney's fees incurred with respect to the challenged claim. For example, if a defendant's motion to dismiss is granted, the pertinent cause of action is dismissed and the plaintiff must pay all of the defendant's court costs and attorney fees incurred in prosecuting the motion. On the other hand, if a defendant's motion to dismiss is denied, the case proceeds and the defendant must pay all of the plaintiff's court costs and attorney fees incurred in defending against the motion. Typically, a court must rule on a motion to dismiss within 45 days of its filing.

Amended Rule 47 requires that a claim for relief also include a statement that the party seeks either "(1) only monetary relief of $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest and attorney fees; or (2) monetary relief of $100,000 or less and non-monetary relief; or (3) monetary relief over $100,000, but not more than $200,000; or (4) monetary relief over $200,000, but not more than $1,000,000; or (5) monetary relief over $1,000,000." 

If the party seeks only monetary relief of $100,000 or less and the suit is not governed by Family Code, the Property Code, the Tax Code, or Chapter 74 of the Civil Practice & Remedies Code, the suit will proceed under the new Rule 169, Expedited Actions. Under Rule 169, all expedited cases will have limited discovery and a limited trial and the claimant may not recover a judgment in excess of $100,000.;
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The Willis Law Group Announces Continued Commercial Litigation Practice Expansion. Link

The Willis Law Group Expands Insurance Defense Practice. Link

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Supreme Court Decisions – A Good Day for Employers:
Supreme Court Endorses Narrow Definition
of "Supervisor" in Discrimination Claims

The Supreme Court provided much-anticipated clarity for lower courts and employers when it ruled that an employer may be vicariously liable for a supervisory employee's harassment (to the extent that it did not culminate in a tangible adverse employment action) only when the employer has empowered the employee to take tangible employment actions against the alleged victim of the harassment. And in the process, the Court soundly rejected the EEOC's enforcement guidance as "nebulous" and unpersuasive.
The ruling in Vance v. Ball State Univ., 570 U.S. ___ (June 24, 2013) ("Vance"), resolved an issue that the Court left open in its pair of 1998 cases, Faragher v. Boca Raton and Burlington Indus., Inc. v. Ellerth - that is, the question of who is a supervisor for purposes of holding an employer vicariously liable for workplace harassment. The definition of a "supervisor" for purposes of imposing liability had resulted in some appellate courts' following the EEOC's expansive guidance with others, including the Seventh Circuit in the Vance case, taking a narrower view.
   View the Case

Supreme Court Requires But-For Causation in Title VII Retaliation Claims

In a separate decision, the Supreme Court held that a plaintiff bringing a retaliation claim under Title VII must demonstrate "but for" causation, not merely that retaliation was a "motivating factor."
In University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ____(June 24, 2013) ("Nassar"), a physician of Middle Eastern descent claimed that he was denied employment at a medical center in retaliation for complaining that his supervisor discriminated against him due to bias against Arabs and Muslims. The question before the Supreme Court was whether the "motivating factor" standard of causation that applies to discrimination claims under Title VII also applies to claims of retaliation. The Court's answer was that it does not.  View the Case

Texas Supreme Court - Fifth Circuit Withdraws Groundbreaking Opinion in Ewing v. Amerisure,
Certifies Questions of Insurance Coverage
to Texas Supreme Court

The Fifth Circuit Court of Appeals has recently withdrawn its decision in Ewing Construction Company, Inc. v. Amerisure Insurance Company, 684 F.3d 512 (5th Cir. 2012), and certified an important question to the Texas Supreme Court. 2012 WL 3205557 (5th Cir., Aug. 8, 2012).

In its original 2-1 decision, the Fifth Circuit held that a contractor's obligation to perform its contract in a workmanlike manner constituted an “assumption of liability” which would trigger the contractual liability exclusion. Relying on the 2010 Texas Supreme Court decision of Gilbert Texas Construction, L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118 (Tex. 2010), the Fifth Circuit held that a subcontractor's insurer had no duty to defend the subcontractor in a construction defect action, as the subcontractor's contractual obligation to perform its work in a workmanlike manner itself constituted an assumption of liability sufficient to exclude coverage. The Fifth Circuit had also held that no exceptions to the exclusion would apply for liability that would exist in the absence of contract.

In its August 8 Order, the Fifth Circuit certified the following questions to the Supreme Court of Texas:
  1. Does a general contractor that enters into a contract in which it agrees to perform its construction work in a good and workmanlike manner, without more specific provisions enlarging this obligation, “assume liability” for damages arising out of the contractor's defective work so as to trigger the Contractual Liability Exclusion.
  2. If the answer to question one is “Yes” and the contractual liability exclusion is triggered, do the allegations in the underlying lawsuit alleging that the contractor violated its common law duty to perform the contract in a careful, workmanlike, and non-negligent manner fall within the exception to the contractual liability exclusion for “liability that would exist in the absence of contract.”
In its original decision in Ewing, a well-reasoned dissent argued that the majority had grossly misread Gilbert, and that's its decision would effectively upend much of established Texas insurance law. In seeking guidance from the Supreme Court of Texas, the Fifth Circuit noted the importance of the questions presented, and noted that the Texas Supreme Court's opinion would have a significant impact on Texas insurance law.

Further developments on this important issue will be covered by this newsletter as they occur.

Click here to view the Fifth Circuit's order withdrawing its opinion and certifying the question to the Texas Supreme Court.


Paid vs. Incurred Damages

In 2003, the Texas Legislature enacted Texas Civil Practices and Remedies Code §41.0105 as part of its tort-reform legislation. Since its passage, §41.0105 has been the subject of endless debate and speculation. On July 1, 2011, the Texas Supreme Court ended the ambiguity in the Supreme Court's ruling in Haygood v. Escobedo.
The Dallas Court of Appeals has distinguished the opinion of the Texas Supreme Court in Haygood v. Escabedo. In Big Bird Tree Services v. Gallegos, the Dallas Court of Appeals applied Haygood to a situation involving a charitable organization. The Plaintiff did not pay medical expenses since a charity provided medical care. A representative of the charity provided testimony that the charity intended to seek reimbursement for expenses if the plaintiff succeeded at trial. The court held that Section 41.0105 did not preclude recovery of the amount of medical expenses incurred by the charity on behalf of the Plaintiff.


Effective Litigation Is Not Boilerplate/Together Shaping The Future

The Willis Law Group knows each case and client is unique and we proceed accordingly by building individualized solutions, communicating regularly, being responsive and reaching efficient resolutions. We are based in Dallas, Texas and have offices in Houston, New Orleans, Oklahoma City and San Antonio. Our boutique legal defense firm has 25 attorneys practicing a wide variety of insurance defense and commercial litigation work, including construction, employment & labor, environmental, healthcare, rig/oil well disasters, insurance coverage and professional services.
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