| Workplace Law (Texas 2006-2008) Workers' Comp - Nonsubscribers - Torts Houston Opinions |
Transcontinental Ins. Co. v. Crump (Tex.App.- Houston [1st Dist.] Aug. 26, 2008)(Anderson) (worker's compensation death benefits judicial review proceeding, attorneys fees) AFFIRMED: Opinion by Justice Anderson Before Justices Brock Yates, Anderson and Brown 14-06-00905-CV Transcontinental Insurance Company v. Joyce Crump Appeal from 400th District Court of Fort Bend County Trial Court Judge: Clifford J. Vacek Ardoin v. Anheuser-Busch (Tex.App.- Houston [14th Dist.] Aug. 28, 2008)(Guzman) (workplace accident death, no gross negligence found) AFFIRMED: Opinion by Justice Guzman Before Justices Frost, Seymore and Guzman 14-07-00210-CV Donna Ardoin, Individually, and as Legal Representative of the Estate of Floyd Ardoin, Deceased v. Anheuser-Busch, Incorporated Appeal from 157th District Court of Harris County Trial Court Judge: Randy Wilson Sonic Systems Int., Inc. v. Croix (Tex.App.- Houston [14th Dist.] Aug. 27, 2008)(Seymore) (insurance law, workers comp claim denial) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Seymore Before Justices Fowler, Frost and Seymore 14-07-00103-CV Sonic Systems International, Inc. v. Randy Croix, Eddie Croix Insurance Agency, Inc., and Texas Mutual Insurance Company F/K/A Texas Worker's Compensation Insurance Fund Appeal from 157th District Court of Harris County Trial Court Judge: Randy Wilson Metro v. Harris County (Tex.App.- Houston [1st Dist.] Aug. 26, 2008)(Fowler) (workers comp subrogation) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Fowler Before Justices Fowler, Frost and Seymore 14-06-00513-CV Metropolitan Transport Authority v. Harris County, Texas Appeal from County Civil Court at Law No 1 of Harris County Trial Court Judge: R. Jack Cagle Texas Mutual Ins. Co. v. Ruttiger (Tex.App.- Houston [1st Dist.] July 31, 2008) (opinion on rehearing by Jennings) (worker's compensation insurance bad faith, code violation, DTPA, loss to credit reputation) MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: 01-06-00897-CV Texas Mutual Insurance Company v. Timothy J. Ruttiger Appeal from 122nd District Court of Galveston County Trial Court Judge: Hon. John Ellisor Barton v. Whataburger, Inc. (Tex.App.- Houston [1st Dist.] July 31, 2008) (Bland) (workplace safety, murder not forseeable, no employer liability) AFFIRM TC JUDGMENT: Opinion by Justice Bland Before Chief Justice Radack, Justices Alcala and Bland 01-06-01121-CV Rose Barton, Individually and as Personal Representative of the Estate of Christopher Martin Dean v. Whataburger, Inc. Appeal from 157th District Court of Harris County Trial Court Judge: Hon. Ronald L. Wilson G.E. v. Moritz, No. 04-0871 (Tex. June 13, 2008)(Brister) (workplace injury, premises liability, independent contractor, no duty holding precludes land owner liability for contractor's injury on the premises) Justice Green delivered a dissenting opinion In re Jindal Saw Limited (Tex.App.- Houston [1st Dist.] May 22, 2008)(Alcala) (workplace safety, occupational injury, worker's comp, nonsubscriber, arbitration, wrongful death, survival action) GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala Before Justices Taft, Keyes and Alcala 01-07-01068-CV In re Jindal Saw Limited, Jindal Enterprises LLC, and Saw Pipes USA Appeal from Probate Court No 1 of Harris County Trial Court Judge: Hon. Russell Austin Attorneys: Levi G McCathern II, Jeffrey Christopher Wright | Attorney Kurt B. Arnold, Marvin B. Peterson, Micajah Daniel Boatright Texas Mutual Ins. Co. v. Havard (Tex. App.- Houston [1st Dist.] Mar. 6, 2008)(Bland) (workers comp, compensability, intoxication claim, sanctions, failure to impose sanctions not error) AFFIRM TC JUDGMENT: Opinion by Justice Bland 01-07-00268-CV Texas Mutual Insurance Company v. Richard Havard Appeal from 21st District Court of Washington County Trial court judge: Hon. Reva L. Towslee Corbett Vanderbeek v. San Jacinto Methodist Hospital (Tex.App- Houston [14th Dist.] Jan 31, 2008)(Frost) (workplace injury, premises owner liability, plumber) AFFIRMED: Opinion by Justice Frost Before Chief Justice Hedges, Justices Frost and Guzman 14-06-00783-CV Gary Vanderbeek v. San Jacinto Methodist Hospital Appeal from 125th District Court of Harris County (Judge John A Coselli) Bartee v. BCM (Tex.App.- Houston [14th Dist.] Oct. 16, 2007)(Frost)(workplace injury, construction, subcontractor, dangerous condition) AFFIRMED: Opinion by Justice Frost Before Justices Frost, Seymore and Guzman 14-06-00324-CV Robey Bartee v. Baylor College of Medicine, David E. Harvey Builders, Inc., and Emcor Gowan, Inc.--Appeal from 157th District Court of Harris County (Hon. Randy Wilson) Ace American Ins. Co. v. Marez (Tex.App.- Houston [1st Dist.] Apr. 13, 2007)(Hudson) [workers comp case; attorneys fees] REVERSED AND RENDERED: Opinion by Justice Hudson (Before Chief Justice Hedges, Justices Hudson and Edelman 14-06-00592-CV Ace American Insurance Company v. Erasmo Marez Appeal from 234th District Court of Harris County (Judge Reese Rondon) Green v. Fort Bend ISD (Tex.App. - Houston [1st Dist.] Dec. 20, 2007)(Higley)(employment law, workers comp appeal, judicial review suit) AFFIRM TC JUDGMENT: Opinion by Justice Higley 01-06-01157-CV Robert F. Green v. Fort Bend Independent School District Appeal from 240th District Court of Fort Bend County (Judge Thomas R. Culver, III) The evidence supports the trial court’s conclusion that Green was not entitled to benefits because he failed to show that his period of disability extended beyond October 3, 2002. Hence, even if Green showed that he had not achieved maximum medical improvement until after October 3, 2002, he is not entitled to benefits because the evidence shows that he was not disabled beyond October 3, 2002. We cannot conclude that the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Francis, 46 S.W.3d at 242. We hold that the evidence is factually sufficient. Accordingly, we overrule Green’s fourth issue. Douglas v. Moody Gardens, Inc. (Tex.App.- Houston [14th Dist.] Dec. 20, 2007)(Seymore)(PI workers comp, course and scope of employment, estoppel) AFFIRMED: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Anderson and Seymore 14-07-00016-CV Linda Douglas v. Moody Gardens, Inc. and Transcontinental Insurance Company Appeal from County Court No. 3 of Galveston County (Hon. Roy M. Quintanilla) Morales v. Liberty Mutual Ins. Co., No. 05-0754 (Tex. Dec. 8, 2007)(O'Neill) (worker's comp. employment status) MARGARITA MORALES, INDIVIDUALLY AND AS NEXT FRIEND OF PAULETTE MORALES AND LAURA MORALES, MINOR CHILDREN OF GUADALUPE D. MORALES, DECEASED v. LIBERTY MUTUAL INSURANCE COMPANY AND CONTINENTAL CASUALTY COMPANY; from El Paso County; 8th district (08-04-00135-CV, 169 S.W.3d 485, 07/28/05) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice O'Neill delivered the opinion of the Court. The Texas Workers’ Compensation Act provides alternative avenues for judicial review of a Texas Workers’ Compensation Commission appeals panel decision depending upon whether the nature of the dispute regards “compensability or eligibility for . . . benefits” or something else. See Tex. Lab. Code §§ 410.252, 410.301, 410.255; Tex. Gov’t Code §§ 2001.171–178. In this case, Margarita Morales seeks review of an appeals panel’s decision that her deceased husband was an independent contractor rather than an employee of one of three companies, two of which were workers’ compensation insurance subscribers and one of which was not. We hold that the question of a worker’s employment status is one of compensability governed by section 410.301(a) of the Texas Labor Code, and reverse and remand the case to the El Paso district court for further proceedings. Jury verdict in favor of injured worker reversed Ranger Conveying & Supply Co. v. Davis (Tex.App.- Houston [1st Dist.] May 3, 2007)(Alcala)(first superseded opinion, workplace injury, liability, no duty, take nothing] REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Alcala 01-05-00128-CV Ranger Conveying & Supply Company v. Daryl Davis Appeal from 61st District Court of Harris County (Judge John Donovan) Ace American Ins. Co. v. Marez (Tex.App.- Houston [1st Dist.] Apr. 13, 2007)(Hudson) [workers comp case; attorneys fees] REVERSED AND RENDERED: Opinion by Justice Hudson 14-06-00592-CV Ace American Insurance Company v. Erasmo Marez Appeal from 234th District Court of Harris County (Judge Reese Rondon) Rogers v. Texas Sterling Construction (Tex.App.- Houston [14th Dist.] Mar. 29, 2007)(Yates)(premises liability, death) Ellwood Texas Forge Corp. v. Jones (Tex.App.- Houston [14th Dist.] Jan. 9, 2007)(Fowler)(workplace injury, negligence) McCoy v. North Forest ISD (Tex.App.- Houston [14th Dist.] Nov. 15,2 007)(per curiam)(workers compensation settlement judgment void, failure to follow statutory requirements, appellate procedure, motion to reinstate was late, denial not separately appealable, deadline for filing notice of appeal not extended, appeal dismissed as untimely for want of jurisdiction) DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Seymore) 14-07-00523-CV Barney L. McCoy v. North Forest independent School District and Janice Jackson Appeal from Co Civil Ct at Law No 3 of Harris County (Hon. Linda Storey) Georgia-Pacific Corp. v. Stephens (Tex.App.- Houston [1st Dist.] Jul. 26, 2007)(Bland)(workplace injury, asbestos, proof of causation, expert testimony, jury award reversed, take-nothing judgment rendered) REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Bland (Before Justices Alcala, Hanks and Bland) 01-05-00132-CV Georgia-Pacific Corporation v. Fred Stephens and Betty Stephens Appeal from 23rd District Court of Brazoria County (Hon. Ben Hardin) In Re Ward (Tex.App.- Houston [1st Dist.] Nov. 1, 2007)(Taft)(workplace injury, workers comp, order for medical examination, mandamus denied) DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Taft Before Justices Taft, Hanks and Higley 01-07-00558-CV In re Esther Ward Appeal from 270th District Court of Harris County (Hon. Brent Gamble) Hardee v. Kellogg Brown & Root, Inc. (Tex.App.- Houston [14th Dist.] Oct. 16, 2007)(Anderson) (workplace law, pre-injury release bars recovery by injured job applicant)(summary judgment for defendant affirmed 14-06-01048-CV Robert Hardee v. Kellogg Brown & Root, Inc. Appeal from 280th District Court of Harris County (Hon. Tony Lindsay) Bartee v. BCM (Tex.App.- Houston [14th Dist.] Oct. 16, 2007)(Frost)(workplace injury, construction, subcontractor, dangerous condition)(summary judgment for defendant affirmed) 14-06-00324-CV Robey Bartee v. Baylor College of Medicine, David E. Harvey Builders, Inc., and Emcor Gowan, Inc.--Appeal from 157th District Court of Harris County (Hon. Randy Wilson) Plant Owner Entitled to Exclusive Remedy Defense Acting as Its Own General Contractor Entergy Gulf State, Inc. v. Summers (Tex. Aug. 31, 2007)(Willett)(premises owner and exclusive remedy defense under Workers' Compensation Act) WORKPLACE SAFETY Central Ready Mix Concrete Co., Inc. v. Islas, No. 05-0940 (Tex. Jun. 29, 2007)(Opinion by Justice Brister)(liability for work-related injury) LMC Complete Automotive, Inc. v. Burke (Tex.App.- Houston [1st Dist.] Jun. 21, 2007)(Bland)(workplace safety, negligence, nonsubscriber, amount of supersedeas bond) AFFIRM TC JUDGMENT: Opinion by Justice Bland Before Justices Nuchia, Hanks and Bland 01-06-00694-CV LMC Complete Automotive, Inc. v. Ronald Burke Appeal from 127th District Court of Harris County (Hon. Sharolyn P. Wood) We hold that the evidence is legally sufficient and sufficiently reliable to support the jury’s negligence finding, and the trial court did not abuse its discretion in excluding the evidence that Burke received compensation for his injury from collateral sources. We therefore affirm the trial court’s judgment. We further hold that the record demonstrates that LMC has a net worth of $149,736.04. We therefore vacate the trial court’s July 25, 2006 order denying LMC’s motion to decrease the security required to suspend enforcement of the judgment, and order that the security for supersedeas for LMC be set at $74,868.02, fifty percent of LMC’s net worth. Our order entered on February 15, 2007, staying the enforcement of the judgment in this case, will remain in effect for fifteen days after the date this opinion is issued to allow the parties to seek further review of our security determination. We dismiss appellate cause number 01-07-00126-CV for want of jurisdiction. Ace American Ins. Co. v. Marez (Tex.App.- Houston [1st Dist.] Apr. 13, 2007)(Hudson) (Plaintiff did not prevail in workers comp case; award of attorneys fees reversed) Jury verdict in favor of injured worker reversed Ranger Conveying & Supply Co. v. Davis (Tex.App.- Houston [1st Dist.] May 3, 2007)(Alcala) [workplace injury, liability, no duty, take nothing] REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Alcala Before Chief Justice Radack, Justices Alcala and Bland 01-05-00128-CV Ranger Conveying & Supply Company v. Daryl Davis Appeal from 61st District Court of Harris County (Judge John Donovan) Guevara Belteton v. Desco Steel Erectors and Concrete, Inc. (Tex.App.- Houston [14th Dist.] Mar. 13, 2007) (Hedges) (workplace death, agency, negligence, duty, control) AFFIRMED: Opinion by Chief Justice Hedges (Before Chief Justice Hedges, Justices Fowler and Edelman) 14-06-00301-CV Luis Arturo Guevara Belteton, Temporary Administrator of the Estate of Flavio Gonzales-Soto, Et Al v. Desco Steel Erectors and Concrete, Inc. and Jose De Santiago d/b/a Desco Steel Erectors Et Al Appeal from 61st District Court of Harris County Trial Court Judge: JOHN J. DONOVAN Employer Not Liable for Negligence Because Employer's Duty not Established Jack in the Box, Inc. v. Skiles, No. 05-0911 (Tex. Feb 9, 2007(per curiam) (workplace safety, injury, nonsubscriber employer, no duty, no liability for negligence) Can Employers Be Held Liable for Employee's Off-Duty Conduct? Loram Maintenance of Way v. Ianni, No. 04-0666 (Tex. Jun 30, 2006)(Opinion by Justice Paul Green) In general, an employer owes no duty to protect the public from the wrongful acts of its off-duty employees that are committed off the work site unless the employer exercises control over the employees’ off-duty activities that cause harm. See Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309, 311 (Tex. 1983). Here, we are asked to decide whether an employer owes a duty to protect the public from an employee’s wrongful off-duty conduct, even though the employer exercised no control over the employee’s off-duty activities, because the employer knew its employee was drug-impaired and had threatened violence to others. We conclude that the employer owes no such duty. . . . Based on the facts surrounding the occurrence in question, we conclude that Loram owed no duty to Ianni with respect to Tingle’s off-duty conduct. Because Loram owed no duty, we need not reach the remaining issues. We Reverse the court of appeals’ judgment against Loram and Render a take-nothing judgment in Loram’s favor. Faulty jury instruction subject to harmless error test on appeal Bed, Bath and Beyond v. Urista No. 04-0332 (Tex. Dec. 29, 2006)(Green) [personal injury law, PI, workplace injury, jury instruction, unavoidable accident, charge error, harmless error] BED, BATH & BEYOND, INC. v. RAFAEL URISTA; from Harris County; 1st district (01-02-00150-CV, 132 S.W3.d 517, 02 19 04) The Court reverses the court of appeals' judgment and remands the case to that court. In this case we decide whether an unavoidable accident instruction given to the jury caused reversible error and requires a new trial. We conclude that because the record does not support a finding that the trial court’s submission of the instruction probably caused the rendition of an improper judgment, Tex. R. App. P. 61.1(a), any error in including the instruction in the jury charge was harmless. Accordingly, we reverse the court of appeals’ judgment and remand the case to that court for consideration of the remaining issues. Is Employer Liable for Torts of Independent Contractor? Fifth Club v. Ramirez, No. 04-0550 (Tex. Jun. 30, 2006)(Justice Paul Green) In this case we revisit the rule that an employer is generally not liable for the acts of an independent contractor unless the employer exercises sufficient control over the details of the independent contractor’s work. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001). We do so to consider whether a “personal character exception” makes a business owner’s duties to the public nondelegable when contracting for private security services to protect its property. Because we do not recognize a personal character exception to the rule that an owner is not liable for the tortious acts of independent contractors, and because the evidence in this case is legally insufficient to support the jury’s negligence, malice, and exemplary damages findings against the owner, we reverse and render judgment in the owner’s favor. We do find legally sufficient evidence to support the future mental anguish damages award against the independent contractor and affirm the judgment as to the contractor. . . . In summary, we reverse the court of appeals’ judgment against Fifth Club based on jury findings of vicarious liability negligence and malice in hiring, and we enter a take-nothing judgment in Fifth Club’s favor. We affirm the court of appeals’ judgment against West as to future mental anguish damages. WORKERS COMPENSATION ACT Woods v. Texas Aggregtes, L.L.C., 459 F.3d 600 (5th Cir. 2006)(workers comp, nonsubscriber, arbitration, ERISA, state law common-law negligence claim) Travelers Indemnity Co of Conn. v. Espinosa (Tex.App.- Houston [1st Dist.] May 31, 2007)(Hanks)(workers comp, atty fees, jurisdiction, attorney's fees] MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Hanks Before Justices Nuchia, Hanks and Bland 01-05-00836-CV Travelers Indemnity Company of Connecticut v. Jesus Espinosa Appeal from 61st District Court of Harris County (Hon. John Donovan) (in this workers compensation case, Travelers Indemnity Company of Connecticut ("Travelers"), appellant, complains of the award of attorney's fees after its unsuccessful challenge of a Texas Workers Compensation Commission ("TWCC") ruling. In four issues, Travelers alleges that (1) the trial court lacked jurisdiction to order payment of attorney's fees in a post-trial proceeding absent pleadings to support such relief, (2) the evidence was legally and factually insufficient to support the award of attorney's fees, and (3) the trial court erred in failing to condition the award of appellate attorney's fees on an unsuccessful appeal. We reform the judgment and, as reformed, affirm." ... A trial court may not penalize a party for taking a successful appeal. Sipco Serv's Marine v. Wyatt Field Serv., 857 S.W.2d 602, 607 (Tex. App.--Houston [1st Dist.] 1993, no writ). An unconditional award of an appellant's appellate attorney's fees is improper. Id. at 607-08. Therefore, the trial court must condition the award of appellate attorney's fees upon the appellant's unsuccessful appeal. Id. at 607. However, an unconditional award of appellate attorney's fees does not require reversal; instead, we may modify a trial court's judgment to make the award of appellate attorney's fees contingent upon the receiving party's success on appeal. Pao v. Brays Vill. E. Homeowners Ass'n, 905 S.W.2d 35, 38-39 (Tex. App.--Houston [1st Dist.] 1995, no writ). We sustain Travelers' fourth issue and reform the judgment.") Christus Health/St. Joseph Hospital v. Price (Tex.App.- Houston [1st Dist.] May 24, 2007)(Alcala)(opinion on rehearing) (workers comp, HIV, non-compensable injury) AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Chief Justice Radack, Justices Alcala and Bland 01-05-00210-CV Christus Health/St. Joseph Hospital v. Angela Price Appeal from 268th District Court of Fort Bend County (Judge Hon. Brady G. Elliott) Hunt v. State Office of Risk Management (Tex.App.- Houston [14th Dist.] May 15, 2007)(Guzman)(workers comp) (employment workplace law, jury, workers comp, workplace injury, psychological injury) AFFIRMED: Opinion by Justice Guzman Before Justices Frost, Seymore and Guzman 14-05-00819-CV Norma Hunt v. State Office of Risk Management Appeal from 55th District Court of Harris County (Judge Jeff Brown) Aguirre v. Vasquez (Tex.App.- Houston [1st Dist.] May 1, 2007)(Fowler)(workers comp) (workplace safety, car crash, workers compensation act, exclusive remedy defense) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Fowler Before Chief Justice Hedges, Justices Fowler and Edelman 14-06-00325-CV Daniel Antonio Aguirre, Et Al v. Dora G. Vasquez Appeal from Probate Court No 4 of Harris County (WM CAMERON MCCULLOCH) Ace American Ins. Co. v. Marez (Tex.App.- Houston [1st Dist.] Apr. 13, 2007)(Hudson) [workers comp case; attorneys' fees] REVERSED AND RENDERED: Opinion by Justice Hudson (Before Chief Justice Hedges, Justices Hudson and Edelman 14-06-00592-CV Ace American Insurance Company v. Erasmo Marez Appeal from 234th District Court of Harris County (Judge Reese Rondon) Arguelless v. KBR (Tex.App.- Houston [14th Dist.] Mar. 27, 2007)(Frost) (workplace injury, explosion, duty of care, finality of judgment) AFFIRMED: Opinion by Justice Frost Before Justices Anderson, Edelman and Frost 14-04-01022-CV Abel Arguelles, Terrie A. Augustino, Petra Renee Barfield, William A Barfield, Adolph Brown, Desmond Burnett, Dora A. Burnett, Ricky A. Carter, Et Al v. Kellogg Brown & Root, Inc., Individually and as Successor in Interest to the M.W. Kellogg Company, and Halliburton Company, Individually and as successor in Interest to the M.W. Kellogg Company Appeal from 334th District Court of Harris County Western Steel Co. v. Altenburg, No. 05-0630 (Tex. Oct. 27, 2006)(per curiam)(workers comp defense, status of injured employee) Texas Payday Law Claim Requires Compliance with Statutory Requirements Hull v. TWC (Tex.App.- Houston [14th Dist.] Dec. 21, 2006)(Anderson)(judicial review of TWC ruling) [payday law claim, election of remedies, judicial review of administrative determination by TWC, exhaustion of remedies, untimely administrative request for rehearing, jurisdiction DWOJ by trial court] AFFIRMED: Opinion by Justice Anderson Before Justices Anderson, Edelman and Frost 14-05-00785-CV Donald Wayne Hull v. Texas Workforce Commission Appeal from Co Civil Ct at Law No 4 of Harris County (Hon. Roberta Anne Lloyd) Concurring Opinion by Justice Frost WORKPLACE INJURY CASES - NEGLIGENCE Jury verdict in favor of injured worker reversed Ranger Conveying & Supply Co. v. Davis (Tex.App.- Houston [1st Dist.] May 3, 2007)(Alcala) [workplace injury, liability, no duty, take nothing] REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Alcala Before Chief Justice Radack, Justices Alcala and Bland 01-05-00128-CV Ranger Conveying & Supply Company v. Daryl Davis Appeal from 61st District Court of Harris County (Judge John Donovan) W.G. Yatsv. OSH Review Comm’n, 459 F.3d 604 (5th Cir. 2006)(OSHA, supervisor’s violation, imputation of knowledge) Hill v. Consolidated Concepts (Tex.App.- Houston [14th Dist.] Aug. 31, 2006)(Fowler) (workplace safety, fall from roof, negligence, gross negligence, admission of evidence, collateral source doctrine, improper jury argument) AFFIRMED: Opinion by Justice Fowler Before Justices Hudson, Fowler and Frost) 14-05-00345-CV John Earnest Hill Jr.; John Anthony Hill, Matthew David Hill, and Gracie Love Hill, Minor Children by and through next friend John Earnest Hill. Jr.; and Christina Hill, Wife of John Earnest Hill, Jr., v. Consolidated Concepts Inc. Appeal from 165th District Court of Harris County (Judge Elizabeth Ray) Hernandez v. Harsco Corp (Tex.App.-Houston [14th Dist.] April 18, 2006)(Anderson) [workplace safety, death by fall, negligence, duty, proximate cause, summary judgment for employer affirmed] AFFIRMED: Opinion by Justice Anderson Before Chief Justice Hedges, Justices Brock Yates and Anderson 14-05-00481-CV Rosa Maria Hernandez Lopez, Individually; as Representative of the Estate of Victor Escobar, Deceased; and a/n/f of Victor Ramon Escobar, Rosina Escobar Hernandez and Manuel Escobar Hernandez, Minors v. Harsco Corporation Appeal from 269th District Court of Harris County AT WILL EMPLOYMENT Talford v. Columbia Medical Center at Lancaster Subsidiary, L.P., (Tex.App. - Dallas 2006)(employment at will, withdrawal of offer, breach of contract) Sheshunoff Management Services v. Johnson, No. 03-1050 (Tex. Oct. 22, 2006)(Justice Don R. Willet) (enforceability of covenant not to compete, noncompete agreements, employment at will, consideration) Chief Justice Jefferson delivered a concurring opinion in Sheshunoff v. Johnson Justice Wainwright delivered a concurring opinion in Sheshunoff v. Johnson EMPLOYMENT ARBITRATION CLAUSES Employer's Arbitration Policy Held Enforceable - Mandamus Granted to Compel Arbitration In Re Dillard Department Stores, Inc. No. 04-1132 (Tex. March 2, 2006)(per curiam)(motion to compel arbitration) From El Paso County; 8th district (08 -04 -00262 -CV, ___ S.W.3d ___, 11-24-04). Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion In this original proceeding, relator Dillard Department Stores, Inc. seeks to compel arbitration of a retaliatory discharge claim filed by its former employee. The trial court denied Dillard’s motion to compel, and the court of appeals rejected Dillard’s petition for writ of mandamus. 153 S.W.3d 145. Because the trial court clearly abused its discretion in denying the motion to compel arbitration, we conditionally grant Dillard’s petition for writ of mandamus. Delia Garcia worked as a sales associate at Dillard’s Sunland Park store in El Paso. In August 2000, Dillard adopted an arbitration policy covering most employment disputes, including retaliatory discharge. In 2002, Garcia was fired six months after requesting workers’ compensation benefits for work-related injuries. Garcia filed the underlying suit for retaliatory discharge, and Dillard moved to compel arbitration. In response, Garcia alleged that she never agreed to the arbitration policy, and even if she had, the agreement would be unenforceable because Dillard retained the right to modify the policy at any time, rendering its promise to arbitrate illusory. The trial court clearly abused its discretion in denying Dillard’’s motion to compel arbitration. Accordingly, without hearing oral argument, we conditionally grant the writ of mandamus and order the trial court to vacate its order denying Dillard’’s motion to compel arbitration, and to enter a new order compelling arbitration of Garcia’’s claims. Tex. R. App. P. 52.8(c) CASES FROM THE HOUSTON COURT OF APPEALS New Opinion issued in HIV workers comp case Christus Health/St. Joseph Hospital v. Price (Tex.App.- Houston [1st Dist.] May 24, 2007)(Alcala)(opinion on rehearing) [workers comp, HIV, non-compensable injury) AFFIRM TC JUDGMENT: Opinion by Justice Alcala 01-05-00210-CV Christus Health/St. Joseph Hospital v. Angela Price Appeal from 268th District Court of Fort Bend County (Judge Hon. Brady G. Elliott) Arguelless v. KBR (Tex.App.- Houston [14th Dist.] Mar. 27, 2007)(Frost) (workplace injury, explosion, duty of care, finality of judgment) AFFIRMED: Opinion by Justice Frost Before Justices Anderson, Edelman and Frost 14-04-01022-CV Abel Arguelles, Terrie A. Augustino, Petra Renee Barfield, William A Barfield, Adolph Brown, Desmond Burnett, Dora A. Burnett, Ricky A. Carter, Et Al v. Kellogg Brown & Root, Inc., Individually and as Successor in Interest to the M.W. Kellogg Company, and Halliburton Company, Individually and as successor in Interest to the M.W. Kellogg Company Appeal from 334th District Court of Harris County Mosqueda v. G&H Diversified MFG (Tex.App.- Houston [14th Dist.] Jan. 31, 2007, pet filed)(Seymore) (workplace PI, borrowed employees, workers compensation act, exclusive remedy, alter ego, joint business enterprise) Mosqueda v. G & H Diversified MFG., Inc. AFFIRMED: Opinion by Justice Seymore 14-04-00183-CV Guillermina Mosqueda v. G & H Diversified MFG., Inc. and Pacesetter Personnel Service, Inc.-- Appeal from 281st District Court of Harris County. Justice Seymore wrote a second concurring opinion in Mosqueda v. G&H Diversified MFG (Tex.App.- Houston [14th Dist.] Jan. 31, 2007)(concurring opinion by Justice Seymore) Justice Edelman dissented in Mosqueda v. G&H Diversified MFG (Tex.App.- Houston [14th Dist.] Jan. 31, 2007) (dissenting opinion by Edelman) Ellwood Texas Forge Corp. v. Jones (Tex.App.- Houston [14th Dist.] Jan. 9, 2007)(Fowler)(workplace injury, negligence) REVERSED AND RENDERED: Opinion by Justice Fowler 14-05-00909-CV Ellwood Texas Forge Corporation v. Bobby Jones and Kelly Jones Appeal from 151st District Court of Harris County (Judge Caroline Elizabeth Baker) Ellwood Texas Forge Corporation ("Ellwood") hired Process Installations ("API"), an independent contractor, to remove and replace an air conditioning unit on top of a machine called a "manipulator" on Ellwood's premises. Bobby Jones, an employee of PI, was injured when he fell from the top of the manipulator. He and his wife, Kelly, sued Ellwood for negligence. A jury returned a verdict in favor of the Joneses, and the trial court entered a final judgment on the jury's verdict. On appeal, Ellwood contends, among other things, that the evidence is legally and factually insufficient to support the jury's finding that Ellwood retained or exercised control over PI's work, as required by section 95.003 of the Texas Civil Practice and Remedies Code. For the reasons explained below, we agree with Ellwood and reverse and render a take-nothing judgment against the Joneses. |