| The
Tort Times |
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July
2010
Volume 184 |
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| ONCE
VENUE IS ESTABLISHED BY COURT ORDER, A PLAINTIFF CANNOT NONSUIT
AND RE-FILE IN ANOTHER COUNTY |
In
re Team Rocket, LP, No. 06-0414. Mr. Creekmore purchased
an airplane kit from Team Rocket, LP which is headquartered in
Williamson County.
Mr. Creekmore resided in Harris County. Mr. Creekmore was killed
later when the airplane crashed in Fort Bend County. His family
brought a wrongful death and negligence suit against Team Rocket
and others. The suit was initially filed in Harris County.
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Team
Rocket moved to transfer venue on the grounds that venue was
improper in Harris County. The trial court granted Team Rocket’s
motion and transferred venue to Williamson County.
The plaintiffs then voluntarily nonsuited the
case and immediately re-filed the same claims against the
same defendants in Fort Bend County.
Team Rocket moved to transfer venue of this new
case to Williamson County based upon the Harris County court’s
venue order and the doctrine of collateral estoppel. The Fort
Bend County court denied the motion and the Court of Appeals
denied Team Rocket’s petition for writ of mandamus.
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The Supreme Court
said that a plaintiff may nonsuit his case at any time prior to
the close of the plaintiff’s pre-rebuttal evidence. The issue
in this case is whether that general rule allows a plaintiff to
use the procedural vehicle of nonsuiting a case to avoid unfavorable
venue rulings.
The Court concluded that once a venue determination
has been made, that determination is conclusive as to those parties
and claims. Because venue is then fixed in any suit involving the
same parties and claims, it cannot be overcome by nonsuit and subsequent
re-filing in another county.
The Supreme Court issued an order directing the Fort
Bend County court to vacate its venue order and to transfer the
case to Williamson County.
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| In this issue.
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Once Venue Is Established By Court Order, A Plaintiff
Cannot Nonsuit And Re File In Another County
Downs & Stanford Clients Prevail In Inadequate
Security Case
Age Discrimination Verdict Upheld
Insurance Company Loses Fight Over “Vacancy”
Clause
Premises Liability Claim Does Not Qualify As “Medical
Negligence”
Lessons Learned From The Dallas County
Courthouse In April 2008
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| DOWNS
& STANFORD CLIENTS PREVAIL IN INADEQUATE SECURITY CASE |
Durham
v. Zarcades, 270 S.W.3d 708 (Tex.App.–Fort Worth 2008).
Tab Keener of our firm was defense counsel in this case.
Ms. Durham and others were occupying Unit 411 of the
Skyline Place Apartments in Dallas. One night criminals came into
the apartment and sexually assaulted the Plaintiffs at gunpoint.
The Plaintiffs sued a group of Defendants
who had owned the premises prior to the event in question. It appears
that they did not bring suit against the current owner, because
the current owner was in bankruptcy. The allegations were that the
prior owners failed to disclose to the current owner and Plaintiffs,
or actively concealed, or both, the level of criminal activity regularly
occurring at the property, that the Dallas Police had the property
under ongoing review, and that there were not sufficient locks,
security devices or both on the units’ doors, specifically
Unit 411.
They also alleged that the prior owners were responsible
for allowing crime on the property to escalate to such a level that
it posed an unreasonable risk to tenants and guests. In support
of their negligence per se claims, Plaintiffs contended that the
prior owners violated Texas Property Code § 92.153 which, in
part, requires all front doors of apartment units to be equipped
with a keyless bolting device.
Our clients moved for summary judgment arguing, among
other things, that Plaintiffs could not prove proximate cause because
the ownership of our clients was too remotely connected with the
Plaintiffs’ alleged injuries. The trial court granted the
motion for summary judgment. The Court of Appeals affirmed.
In its opinion, the Court held that prior owners of
property normally owe no duty to keep a property safe after transfer
of ownership because they no longer exercise control over it. The
Court found that the evidence did not show that the prior owners
had created the dangerous condition which would be an exception
to the general rule. The Court also said that failure to ensure
that the door of Unit 411 had a keyless bolting device, as required
by statute, was not a proximate cause of the alleged injuries absent
a showing that the prior owners knew about criminal activity on
the complex or about security devices that were or were not on the
door.
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AGE DISCRIMINATION
VERDICT UPHELD
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Auto Zone, Inc. v. Reyes, 272 S.W.3d
644 (Tex.App.–Corpus Christi 2006). Mr. Reyes worked
at AutoZone. He began his employment as a counter-person and worked
his way up to parts service manager.
After he had worked there for about six years, a female
employee made a sexual harassment complaint against Mr. Reyes
and another employee, Mr. Alvarado. The investigation resulted
in the discharge of Mr. Reyes and the transfer of Mr. Alvarado.
Mr. Reyes conceded that he would greet the female employee, and
other male and female employees, with a kiss and hug as is customary
in South Texas. However, he denied sexually harassing her. Mr.
Reyes was 62 years old at the time of the discharge.
Mr. Reyes sued AutoZone for age discrimination under
§ 21.051 of the Texas Labor Code. In order for a plaintiff
to recover under this statute, he must show that (1) he was discharged;
(2) he was qualified for the position; (3) he was within the protected
class at the time of discharge; and (4) he was either replaced
by someone outside the protected class, replaced by someone younger,
or otherwise discharged because of his age.
During the trial of the case, Mr. Reyes testified that Mr. Alvarado
and another employee made comments such as, “You are getting
too old.” and “You need to be faster.” Mr. Reyes
testified that he felt pressured because of his inability to stay
up-to-date with increasingly difficult computer programs. The
testimony also showed that Mr. Alvarado told Mr. Reyes that Mr.
Villarreal, a manager at AutoZone, stated that Mr. Reyes had been
discharged due to his age.
Evidence at the trial also indicated that AutoZone gave
preferential treatment to younger employees by not firing them
after similar complaints were lodged against them. For instance,
Mr. Alvarado, who was younger than Mr. Reyes, was not discharged
as a result of the sexual harassment complaint, simply because
Alvarado denied harassing the female employee. Additionally, three
employees (a female in her twenties, a male in his twenties, and
a male in his thirties) who were discharged due to violations
of AutoZone’s sexual harassment policy were made eligible
for rehire while Mr. Reyes was not.
In addition, the evidence showed that a 40-year-old
employee who was discharged for violating AutoZone’s sexual
harassment policy, was first given a reprimand for the same type
of behavior and then discharged only after continuing violations.
Mr. Alvarado, a manager at the store where Mr. Reyes
worked, testified that Mr. Villarreal told him that Mr. Reyes,
the oldest employee at that store, had been terminated because
of his age. After hearing that Mr. Reyes had been terminated,
Mr. Alvarado approached Mr. Villarreal to turn in his keys and
told Mr. Villarreal that he preferred quitting to being fired
for sexual harassment. Mr. Villarreal responded by stating, “Whoever
needs to be punished has been punished. Also, AutoZone is just
trying to get rid of the old people.” The testimony showed
that Mr. Villarreal went on to say that the “old ones”
have a certain way of working and that AutoZone was trying to
make changes. Mr. Villarreal also said that although the female
employee had made a sexual harassment complaint against Mr. Alvarado,
he was not being terminated.
The jury reached a verdict in favor of Mr. Reyes and
awarded him $61,440 in back pay, $211,800 in compensatory damages,
and $1.5 million in exemplary damages. The trial court determined
that Mr. Reyes was not entitled to the front pay and that the
damages exceeded the statutory limitations imposed by law. The
court rendered judgment for $300,000, $39,615 in legal fees, and
court costs of $2,966.76.
The Court of Appeals felt that the evidence did not
support the award of punitive damages. There was nothing to show
that AutoZone had acted with malice or reckless indifference.
Therefore, it reversed the award of punitive damages, but upheld
the remainder of the verdict, feeling that the evidence was sufficient
to support the age discrimination claim and award of actual damages.
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| INSURANCE
COMPANY LOSES FIGHT OVER “VACANCY” CLAUSE |
Central Mutual
Ins. Co. v. KPE Firstplace Land, LLC, 271 S.W.3d 454.
KPE Firstplace Land purchased real estate located in Tyler, Texas.
It also owned a 90,000 square foot building on the property.
Thieves removed copper coils from the air-conditioning
equipment located on the roof of the building which caused the
air-conditioning equipment to become damaged. The loss was reported
to the Tyler Police Department the same day it was discovered.
KPE’s insurance agent reported the loss to the liability
insurer, Central Mutual Insurance, thirteen days after the loss
was discovered.
The relevant policy of insurance contained
a provision entitled “Loss Conditions.” In so many
words, this provision says that if the building has been vacant
for more than sixty consecutive days before the loss occurs, then
Central Mutual Insurance will not pay for any loss caused by vandalism
or theft, among other things.
The facts of the case showed that the building had
been vacant, as that term was defined in the policy, for more
than sixty consecutive days at the time the loss was discovered.
The claim was denied. KPE hired counsel and counsel made another
demand. At that point, Central Mutual Insurance took the examination
under oath of KPE’s representative and attempted to reach
a settlement. However, settlement did not occur.
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| KPE
sued Central Mutual, making claims for breach of contract,
unfair settlement practices and failure to comply with the
prompt payment statute. Both sides moved for summary judgment
on agreed facts. KPE argued that Central Mutual could not
prove its claim was excluded under the “vacancy”
clause because it could not demonstrate that the property
had been vacant for sixty days immediately prior to the loss.
In its motion, Central Mutual argued that the vacancy clause
excluded the claim because the property had, indeed, been
vacant for the preceding sixty days.
The trial court granted KPE’s motion for
partial summary judgment and denied Central Mutual’s
motion. KPE dismissed its extra-contractual claims and the
trial court entered a final judgment against Central Mutual.
Central Mutual appealed. The central issue was
the meaning of the word “occurs.” The relevant
provision said, “If the building where the loss or damage
occurs has been vacant for more than sixty consecutive days
before that loss or damage occurs…we will not pay for
any loss or damage caused by…vandalism… (or) theft….”
The court said that “occurs” means
when damage occurred, not when it was discovered. The problem
here for Central Mutual is that the building was vacant, people
were not there on a regular basis, so no one was able to accurately
pinpoint when the loss “occurred.”
The Court of Appeals affirmed the ruling of the trial court
in favor of KPE
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| PREMISES LIABILITY CLAIM DOES NOT QUALIFY AS “MEDICAL
NEGLIGENCE” |
| Harris
Methodist Fort Worth v. Ollie, 270 S.W.3d 720 (Tex.App.–Fort
Worth 2008). Ms. Ollie underwent a total knee arthroplasty
at Harris Methodist Hospital in Fort Worth.
She complained that when she attempted to get
out of the bathtub at the hospital, she fell on the slippery
wet floor which had created a dangerous and hazardous condition,
injuring her right shoulder. She sued the hospital alleging
two theories. First, she claimed general negligence. Second,
she claimed a medical negligence theory.
On the same day that she filed suit, Ms. Ollie
sent the hospital notice of a health care liability claim
as required by Chapter 74 of the Texas Civil Practice &
Remedies Code. However, she amended her petition later,
deleting her medical negligence claim, but keeping her general
negligence claim. |
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The hospital
filed a motion to dismiss the case because Ms. Ollie
had failed to comply with the requirements of §
74.351 of the Texas Civil Practice & Remedies
Code which called for a claimant to serve on each
party an expert report within 120 days of filing the
petition. The trial court denied the motion to dismiss
and the hospital then filed an interlocutory appeal.
The Court of Appeals
affirmed the decision of the trial court, holding
that the general negligence allegations did not constitute
a “health care liability claim” for which
the Plaintiff was required to serve the requisite
expert report.
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LESSONS
LEARNED FROM THE DALLAS COUNTY COURTHOUSE IN APRIL 2008
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In looking
back at an old copy of the Trial Reports, we note that in April
2008 the following lessons became apparent:
1. A plaintiff was rear-ended while standing still in
her vehicle waiting to turn left. Her damages were claimed to be
cervical disk bulges and a mild closed head injury. The verdict
was unanimous in her favor, and she was awarded $9,999.99 in past
lost wages, $24,036.10 in past medical expenses, and nothing for
pain, suffering, mental anguish, disfigurement and impairment.
Lesson: Dallas County juries are conservative on small damage motor
vehicle accidents.
2. Two plaintiffs were in a vehicle in a Wal-Mart parking
lot. They were stationary when struck from the rear by a defendant
who was backing up. The claimed injuries were cervical disk bulges
and severe soft-tissue sprains/strains. There was an eleven-to-one
verdict in favor of the plaintiffs. Despite the fact that they had
a combined total of $6,517 in past medical expenses, the plaintiffs
were awarded one dollar apiece for all of their damages.
Lesson: Dallas County juries are really conservative
on low-speed impact/soft-tissue damage cases.
3. A plaintiff was rear-ended by a defendant as the
plaintiff slowed down for traffic ahead of him. He claimed cervical
soft-tissue injuries and past medical expenses of $8,500. The jury
reached a unanimous defense verdict.
Lesson: Dallas County juries are really, really
conservative on motor vehicle accidents involving claims of soft-tissue
injuries.
4. Two plaintiffs were driving north on Interstate 35. They
claimed that the defendant changed lanes into them and that they
both suffered soft-tissue injuries. Their combined past medical
expenses totaled $10,000. The jury reached a unanimous defense verdict.
Lesson: Dallas County juries are really, really,
really conservative on motor vehicle accident cases involving claims
of soft-tissue injuries.
5. A minor was operating a mini motor scooter on a residential
street near his home. As he attempted to make a U-turn, he was struck
by a vehicle. His mother brought suit claiming that she had witnessed
the incident and that she suffered severe mental anguish because
of same. The jury reached a unanimous defense verdict. They put
20% of the responsibility on the driver that had struck the child,
20% on the child himself, and 60% on the mother for failing to adequately
supervise him.
Lesson: Dallas County juries expect parents to look
after their kids.
6. The plaintiffs had numerous instances of prior foundation
repair to their home. They brought a claim against State Farm, their
insurer, claiming that previously undetected sewer line leaks had
resulted in foundation movement and significant damage to their
property. State Farm took the position that the foundation movement
had been caused by other factors such as seasonal moisture fluctuations,
improper watering, improper drainage, and higher moisture needs
of older, large tress and vegetation in the yard. The jury found
in favor of the plaintiffs unanimously and awarded the cost to repair
the foundation, $19,500 – plus $130,000 in legal fees.
Lesson: Dallas County juries will award legal fees
even when they greatly exceed the value of the underlying claim,
if they think an insurance company should have paid the claim.
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NOTICE
The Tort Times is not a
substitute for legal counsel and does not presume to constitute
legal opinion. We urge you to consult legal counsel on specific
matters.
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