TODAY, the Texas Supreme Court returned from summer recess with a vengeance, handing down a flurry of opinions. This morning, the court in one case continued to disallow a cause of action for death of an unborn fetus and, in another case, limited the viability of a cause of action for intentional infliction of emotional distress brought by a victim of sexual harassment. And that’s not all.
NO CAUSE OF ACTION FOR DEATH OF AN UNBORN FETUS: This morning, the Supremes overruled constitutional equal protection arguments and upheld their decades old ruling (Witty) that the parents of a still born child have no wrongful death or survival cause of action against those allegedly responsible for the still birth. The parents in this case sued the hospital and attending physicians alleging that they had negligently caused the still birth. The court said there is no cognizable tort claim unless the injured fetus is born alive. As to the mother’s individual claim for her own mental anguish, the court said that aside from establishing grief at losing a child, which is not a compensable injury, the mother’s affidavit went further and raised a fact question as to mental anguish damages separate and apart from the “loss of society, companionship, and affection” of the child. The mother described a “long and painful delivery” that was made even more psychologically traumatic because she had to experience the delivery “knowing [her] baby was dead.” This evidence of mental anguish suffered during the course of the mother’s medical treatment was held sufficient to raise a fact question regarding compensable mental anguish from her own injury. Fort Worth Osteopathic Hospital, Inc v. Reese (Tex.2004).
PLAINTIFF CANNOT RECOVER DAMAGES FOR BOTH SEXUAL HARRASSMENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: Plaintiff sued her former supervisor and employer alleging sexually suggestive comments and lewd behavior. Among other things, the plaintiff claimed that her supervisor had raided her panty drawer when he paid a visit to her “home office.” After she complained to the company about the supervisor, he gave her an unacceptable job rating that led to her firing. The trial court awarded damages for both intentional infliction of emotional distress and for sexual harassment. The court of appeals affirmed. The Texas Supreme Court reversed, holding when the substance of the plaintiff’s complaint is for sexual harassment, the plaintiff must proceed solely under the statutory claim for it unless additional facts, unrelated to sexual harassment, support an independent basis for intentional infliction of emotional distress. The cause of action for damages arising from intentional infliction of emotional distress was meant, first and foremost, to be a “gap-filler” tort to supplement existing forms of recovery by providing a cause of action for egregious conduct that might otherwise go unremedied and should not be extended to circumvent the limitations placed on the recovery of mental anguish damages under more established tort doctrines. By combining her sexual harassment claim with the intentional-infliction tort, the plaintiff has circumvented, by more than thirty-fold, the legislative determination of the maximum amount that a defendant should pay for this type of conduct. The concurring opinion in this case would abolish any cause of action for intentional infliction of emotional distress. Hoffmann-La Roche, Inc v. Zeltwanger (Tex 2004).
FALLING OUT OF TRUCK HELD TO BE A “MOTOR VEHICLE ACCIDENT” Arriving at work one day, the plaintiff parked his truck and turned off the ignition. As he was gracefully alighting from his coach, he caught his foot on the threshold of the truck’s door causing him to fall to the ground and injure his shoulder and neck. He made a claim for medical expenses under the PIP coverage of his auto policy. The insurer denied the claim, concluding the injuries did not result from a “motor vehicle accident” as required by the policy. The plaintiff sued for breach of contract and unfair claims practices. He won in the courts below. The Supreme Court AGREED and held that a “motor vehicle accident” occurs, for purposes of personal-injury protection coverage, when one or more vehicles are involved with another vehicle, an object or a person, when the vehicle is being used as a motor vehicle, including exit and entry, and when the vehicle’s use can be shown to have caused the injury. A collision or near collision is not required, but the vehicle must be more than the mere site of accident or the event that produced the injury. The dissent ridiculed the majority saying that tripping while exiting a vehicle does not constitute a “motor vehicle accident.” Texas Farm Bureau Mut. Ins. Co. v. Sturrock (Tex. 2004)
INSURER PROFITS IN TEXAS BEST IN 5 YEARS: The Texas Department of Insurance told an interim committee of the Texas Legislature on Tuesday that homeowners insurance companies doing business in Texas are on track to make their highest profits in five years. The Department spokesman reported that companies paid out an average 34 percent of premiums they had taken in during the first two quarters of this year, putting them on track to earn the highest profit since 1999. We are sure that your erstwhile defense lawyers are at least partially responsible for this bonanza and that you will remember us kindly during the holiday season.
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