“Homebuilder’s Attic Claim Had No Foundation.” Chamberlain ♦ McHaney Obtains Summary Judgment. While a homebuilder was showing a new home buyer and his friend how to change the air conditioning filters in the attic of a new home it was about to sell, the buyer’s friend stepped off the attic walkway. He fell through the insulation and sheetrock to the garage floor below and suffered tragic paraplegic injuries. The homebuilder was sued for premises liability, with multimillion-dollar exposure. The home builder then sued the subcontractors involved in constructing the attic for contribution, indemnity, and breach of contract. Chamberlain ♦ McHaney successfully obtained a summary judgment for the third-party insulation subcontractor on all grounds, establishing with our motion for summary judgment that there was no evidence of liability and causation.
Chamberlain ♦ McHaney Successfully Defends Psychiatrist Before the Texas Medical Board. A patient initiated a complaint before the Texas Medical Board alleging her psychiatrist had improperly admitted and detained her at a mental health hospital. She also alleged that the psychiatric medications her psychiatrist prescribed were not medically indicated or provided at proper dosages. In response, we pointed out to the Board that the patient was admitted to the hospital pursuant to an order of emergency detention issued by law enforcement because the patient had expressed detailed plans for homicide (of her infant daughter) and suicide. We also presented expert medical testimony that the prescribed medications were in fact indicated and were administered in proper dosages. Most importantly, we presented evidence that the patient made a remarkable recovery during her hospitalization and was discharged in stable condition on the exact date of the planned discharge. After hearing the evidence, the Board promptly dismissed the complaint.
Court blows hot air as it determines that a Tornado might not be a Windstorm. In this case a homeowners insurance carrier was dismissed from a lawsuit that involved property damage from a tornado. The homeowners held a homeowners’ insurance policy through PURE. They notified PURE of their loss and filed a claim for damages totaling $748,858.19.” “PURE paid only a portion of the claim because PURE maintained the tornado that struck and damaged the home was a windstorm and, therefore, the claim was subject to the policy’s ‘Windstorm or Hail Deductible.’” On appeal, a divided Dallas Court of Appeals reversed the trial court’s decision and sent the case back to the trial court because the term “Windstorm” is ambiguous in the policy and may or may not include a Tornado. The case is Mankoff v. Privilege Underwriters Reciprocal Exch., No. 05-22-00963-CV, 2024 WL 322297, at *1 (Tex. App.—Dallas Jan. 29, 2024, no pet. h.).
While the case reported above may appear to be a belated April Fool’s Joke, it’s not. This is yet another reason why partner David Chamberlain has accepted an invitation to be a part of a peer-selected working group to pass legislation in Texas to increase and improve statutory requirements regarding judicial qualifications and judicial education. The anticipated legislative bill will address new requirements for all judges and judicial candidates to document prior courtroom experience, implement board certification in judicial administration, and require additional mandatory legal training.
Texas Supreme Court lends a helping hand in discovery with “hand-selected” medical providers. Following a car accident a plaintiff settled with the other driver for his policy limits. The Plaintiff then sued her own car insurance company for UIM benefits. The insurance carrier sought in discovery 15 years of prior medical records as the injuries were disputed. The trial court refused to allow the discovery of these prior medical records and sanctioned the insurance carrier’s counsel. On Mandamus Review, the Texas Supreme Court held that the trial court’s “order prevents [the insurance carrier] from obtaining records from [Plaintiff’s] primary doctor regarding her pre-accident condition and whether she complained of similar injuries from her multiple other car accidents.” The Supreme Court further held that the “discovery may produce information that undercuts the evidence adduced by [the Plaintiff] and her hand-selected providers regarding the cause of Harris’s ailments” and the trial court’s “order thus denies Liberty a reasonable opportunity to develop a defense that goes to the heart of its case.” The case is In re Liberty Cnty. Mut. Ins. Co., 679 S.W.3d 170, 176 (Tex. 2023). It should be noted that in nearly every personal injury case, attorneys send their clients to preferred or “hand-selected” medical doctors for excessive or unnecessary medical treatment. They then attempt to prevent discovery of pre-existing conditions. The Texas Supreme Court has again allowed this information to be discovered.
Randall’s and Albertson’s refuse to “bag-down” in slip and fall case. While this case does not involve bagging groceries it does involve a leaky bag that was placed in a shopping cart and allegedly tracked a puddle on the floor when the Plaintiff slipped and fell. At trial Randall’s received a take-nothing judgment. Plaintiff appealed claiming charge error. The Texas Supreme Court reasoned that any charge error was harmless because Plaintiff failed to present evidence that Randall’s had actual or constructive knowledge of a wet floor, rather the store only had knowledge of a potentially leaky bag in a shopping cart. The court held that knowledge of the leaky bag is not knowledge of a puddle on the floor and the bag was not the dangerous condition that caused the Plaintiff to fall but the alleged puddle on the floor was. The case is Albertsons, LLC v. Mohammadi, No. 23-0041, 2024 WL 1470905 (Tex. Apr. 5, 2024).
Let’s get ready to Rumble! (or rather arbitrate). Recently the United State Court of Appeals for the Fifth Circuit upheld an arbitration clause in a ticket sale at a WWE wrestling event. The Plaintiff received a ticket to a World Wrestling Entertainment event from his nephew who purchased the ticket. The Plaintiff injured his hearing when a pyrotechnics blast occurred during the event. The Plaintiff argued that because he did not purchase the ticket himself he was not bound by the arbitration provision in the ticket. However, the Fifth Circuit made it clear that under Texas law the “spectator’s nephew, who had purchased tickets for both spectator and nephew to attend the match, was acting as the spectator’s agent when the nephew presented the spectator’s ticket on behalf of the spectator for admittance to stadium, as could render spectator bound by the arbitration agreement of ticket.” The case is Jackson v. World Wrestling Entm’t, Inc., 95 F.4th 390 (5th Cir. 2024)
CHAMBERLAIN ♦ McHANEY defends complex cases in trial and on appeal. We have lawyers on staff that are board certified in civil trial law, personal injury trial law and civil appellate law. Please give us a call.
David E. Chamberlain and Sean B. Swords