Last Friday, a federal grand jury indicted Lewis “Scooter” Libby, Vice President Dick Cheney’s chief of staff, for making false statements, obstruction of justice and perjury. Texas Update could have predicted this was going to happen. A grown man who goes by the name of “Scooter” will eventually run up against the law sooner or later. “Sport” or even “Squirt” might have worked, but not “Scooter.”
Can a personal injury plaintiff, who has not signed an arbitration agreement, be forced to arbitrate her personal injury claim? In a ground breaking decision last Friday, the Texas Supreme Court startled the Texas legal community and answered “ yep.”
In this case, Patricia Von Bargen, the daughter of the home purchaser, sued for asthma she alleged to be a result of the homebuilder’s faulty construction and repair of a house in which she lived with her father. Her father, a widower, was sole signatory on the home-purchase contract. He and the family trust to which he transferred title (Von Bargen is the sole trust beneficiary) sued for various design and construction defects. The trial court ordered the father and trust to arbitrate their claims, but not Von Bargen. The court of appeals denied the homebuilder’s mandamus petition to order Von Bargen to arbitrate, saying she did not sign the contract and was not suing under it; but rather, was making a negligence claim for personal injury.
The Supreme Court held that Von Bargen must arbitrate her personal-injury claim. Although Von Bargen did not purport to sue on the contract as either a trustee or beneficiary, the court nonetheless declared she was both, and any recovery would inure to her direct benefit as the sole beneficiary and equitable titleholder. The Texas Supreme Court adopted an obscure doctrine it called “direct benefits estoppel” and said that since Van Bargen deliberately sought substantial and direct benefits from the contract, as she did here by interjecting herself in construction details and directing repairs, equity prevents her from avoiding the arbitration clause in the purchase agreement. In re Weekley Homes (Tex. October 28,, 2005).
Tx/Up’s Passing Observation: An invisible man marries an invisible woman. The kids aren’t much to look at either.
FROM TEXAS UPDATE’S MAILBAG:
Dear Tx/Up: While on vacation in the Bahamas this past summer, I woke up in a sweat one night wondering whether a general contractor has a legal duty to inquire into the driving record of an independent contractor. Now I can’t think of anything else. Do you have an answer? Genevieve, Amarillo, Tx.
Golly, Gen, yes we do. First, you really need to get a life. Second, the answer to your question depends on whether the general contractor has exercised supervisory control over the details of the independent contractor’s work and has specifically required the independent contractor to drive as part of the work. If the general contractor has not exercised supervisory control over the details of the work, has not required the independent contractor to drive as part of the work and has left the choice of the manner of transportation to the independent contractor, then the general contractor has no duty to check the driving record of the independent contractor. After you have had an opportunity to calm down a little bit, read Jeffrey v Robertson Sales & Service, Inc (Tex App.—Eastland , October 13, 2005) (general contractor not liable for failing to check driving record of an independent contractor who had 5 speeding tickets in the 2 ½ year period before she collided with and injured the plaintiff).