Originally published by craigball.
Disagreements about scope and process in e-discovery shouldn’t split between plaintiffs and defendants interests. After all, everyone is a requesting and producing …
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by murraylobbpllc.
Significant risks to the construction contractor can arise from the contracts entered into for various projects. However, these risks can be managed by a thorough understanding of key contract provisions and assistance of counsel in negotiating and drafting contract provisions to clarify rights and obligations of the parties, fair allocation of risks, and other protections that may be available. A well-drafted construction contract clearly defines key terms such as scope of work, price, terms and conditions of payment, and allocation of foreseeable risks.
The contract process in the construction industry often starts with the bidding process. Bidding for construction jobs can make or break the construction contractor. It is essential for the contractor to know how to effectively bid for work to make a profit and have a successful business. There are a number of ways to bid construction contracts. But whichever method is used, success depends upon developing the most accurate cost estimate and formulating the lowest reasonable bid.
A project can be either private or public. Usually a private project is one let by a private individual or entity, while a public project is let by a governmental entity. The private project process usually involves solicitation of quotes or formal bid proposals from contractors, bids or offers by the contractors, and acceptance of the bid, resulting in a legally enforceable contract. On the other hand, the public construction contract bidding process must follow set requirements under federal, state, and local laws.
Construction contracts are usually priced according to one of several methods involving two basic types, fixed price and cost reimbursable.
Two more common fixed price methods are Lump Sum and Unit Price.
Lump Sum is an agreement to a fixed price prior to the contract award which is not subject to adjustment except for changes in the scope of work. An example would be an agreement that the contractor will build a garage for a fixed price of $15,000. Under this scenario, the contractor bears any overage in labor and/or material costs.
Unit Price is an agreement to a fixed price for a given unit of work and the total price is the unit price times the quantity of items delivered, installed or erected. An example would be an agreement that a contractor build a garage for a set price per square foot.
One of the more common cost reimbursable methods is Cost Plus Fee. Under this method, the agreement is for payment of all contractor labor and material costs plus a fee which can be expressed as a percentage or a lump sum, such as an agreement that a contractor will build a garage for the cost of labor and materials plus 25%.
Ten significant contract provisions that should be considered are as follows:
A properly negotiated and drafted construction contract will be fairly complex if it is to be clear as to all material terms and provide for a fair allocation of risks. Any contractor or owner preparing to take on a construction project would be well advised to have a solid understanding of all of the primary contract provisions and to seek legal counsel to assist in negotiation and drafting of the construction contract. Failure to understand the contract one signs or the failure to seek assistance of counsel are not legal defenses to problems that might arise later after the project is underway.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Don Cruse.
With today’s orders list, the Texas Supreme Court issued opinions in one case. The Court also chose two other cases for future oral argument.
A visitor to a hospital slipped and fell in the lobby. When she sued, the hospital moved to dismiss on the ground that she had failed to timely submit an expert report as would be required for a health-care liability claim.
The trial court agreed, dismissing the claim. The court of appeals affirmed, concluding that under TEXAS WEST OAKS HOSPITAL, LP AND TEXAS HOSPITAL HOLDINGS, LLC v. FREDERICK WILLIAMS, No. 10-0603 there need not be a connection between the safety standard in question and the actual provision of health care.
The Texas Supreme Court granted review and, now, reverses, holding that:
for a safety standards-based claim to be an HCLC there must be a substantive nexus between the safety standards allegedly violated and the provision of health care. And that nexus must be more than a “but for” relationship. That is, the fact that Ross, a visitor and not a patient, would not have been injured but for her falling inside the hospital is not a sufficient relationship …. The pivotal issue in a safety standards-based claim is whether the standards on which the claim is based implicate the defendant’s duties as a health care provider, including its duties to provide for patient safety.
The Court rooted this holding in doctrines of statutory construction that look ot the overall structure of the law (“the purpose of the statute, the context of the language at issue”). It noted, in particular, that the reading urged by the hospital would result in a situation where defendants had “a special procedural advantage [in all suits] in the guise of requiring plaintiffs to file expert reports.” The Court declined to read the statute as conferring benefits based on the identity of the defendant, rather than the nature of the duty. (“We do not believe the Legislature intended the statute to have such arbitrary results.”)
As for how to apply this construction, the Court listed seven “non-exclusive considerations”:
The Court acknowledged that “the line between a safety standards-based claim that is not a[ health-care liability claim] and one that is … may not always be clear.” On this record, as it turns out, all seven of those considerations favored the plaintiff.
The opinion of the Court does not offer explicit guidance about how lower courts should deal with a situation in which these considerations point in different directions. The concurring opinion (written by Justice Lehrmann and joined by Justice Devine) argues that, when such a situation arises, two of the considerations (the third and fifth) should be viewed as more important than the others because they focus most directly on the relationship between patient and doctor.
KINGSAIRE, INC. D/B/A KINGS AIRE, INC. v. JORGE MELENDEZ, No. 14-0006
An injured employee, absent from work, was classified by his employer as being on FMLA leave. According to the employer’s company policy, that type of family and medical leave cannot last longer than 12 weeks. When the employee did not return at the end of that period, the employer immediately fired them.
When the employee sued for retaliatory discharge under Chapter 451 of the workers’ compensation law, the employer argued that its company leave-of-absence policy was uniformly applied and, thus, legally barred a claim for retaliatory discharge. Alternatively, the employer argued that the jury hearing that retaliation claim should have been asked about this defense or given an instruction about the legal effect of its leave-of-absence policy.
The trial court sided with the employee. The court of appeals affirmed, holding that the company’s leave-of-absence policy did not create a legal presumption. The Supreme Court has granted the employer’s petition and will consider the issue.
J&D TOWING, LLC v. AMERICAN ALTERNATIVE INSURANCE CORPORATION, No. 14-0574
The case involves a tow truck that was rendered a total loss by a vehicle accident. The truck was the sole vehicle used by a small towing company. The towing company reached a settlement with the other driver that would compensate it for the market value of the lost truck, but that driver’s policy limits ($25,000) did not permit recovery for additional damages. The towing company then sued its own insurance carrier, arguing that its uninsured/underinsured motorist protection should also cover the company’s damages from loss-of-use of the truck.
The district court ruled in favor of the towing company, rendering a judgment of $22,500 in additional damages. The court of appeals reversed, concluding that Texas law bars any recovery for this type of consequential loss-of-use damages when a piece of property is damaged beyond repair.
The towing company filed a petition for review, arguing that there is a split in Texas law on this question. The Texas Supreme Court has now granted the petition.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by State Bar of Texas.
From Sean P. Healy of Tyler (courtesy of court reporter Kristy Crawford), this exchange in the 321st District Court where “Joe Shumate and Sam George were making announcements at docket call”:
The Court: Okay. Do y’all want a hearing today after 11 then?
Mr. George: No. I’m not ready today your honor.
The Court: Okay. Y’all want to put it off till next Monday.
Mr. Shumate: I can’t be ready today either.
The Court: Okay.
Mr. George: Well, then I may be ready.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Sean Tracey.
A statute of limitations is a constraint on the amount of time any entity or a person may delay prior to taking legal action on any matter that they feel has infringed their rights. The statute of limitations in Texas is divided into two main categories. These limitations establish and stipulate how soon after an…
The post Statute Of Limitations In Texas appeared first on .
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Cleve Clinton.
Discriminate Against Smokers in Texas? Yes, Gus Grohcer and Canned Foods 4 Less can refuse to hire smokers despite any threat or complaint of Chimm Nee Stax. Smokers are not a protected class under federal law, nor is being short, being overweight or being ugly. Refusing to hire smokers is not illegal in Texas and some 19 other states where it is perfectly legal for an employer to ask if you are a smoker and let that be determinative of hiring.
Eighteen states prohibit discrimination against tobacco users; and eight protect an employee’s right to use in the workplace an otherwise lawful consumable product. Four states prohibit discriminating against employees engaged in lawful activities outside work, including smoking tobacco in California, Colorado, New York and North Dakota, where it is illegal to not hire you simply because you smoke. What about a marijuana smoking Colorado employee Chimm Nee Stax might ask? A case is pending before the Colorado Supreme Court. Even in those some 30 states that prohibit discrimination, if being a nonsmoker is an important part of a specific job’s qualifications, such as an antismoking advocacy group like the American Lung Association, smokers can be rejected.
Relationship Between Smokers and Healthcare Costs? When the smoke clears, Gus Grohcer and Canned Foods 4 Less are not missing the mark on reducing labor costs. The Center for Disease Control reports that smoking is the leading preventable cause of death, disease and disability in the United States, is responsible for more than 480,000 deaths per year, costs more than $289 billion a year, including at least $133 billion in direct medical care for adults, and costs more than $156 billion in lost productivity. Eliminating smokers will increase the bottom line because tobacco users’ annual health care costs are $3,000 to $4,000 greater than non-smokers.
And Gus is not the only one. Estimates are that 61% of large employers are surcharging tobacco users. Hospitals like Baylor Health Care System lead the way with 21% of all hospitals having bans this year (one-third are expected to have bans next year) by imposing a health insurance surcharge on smoking employees of greater than a thousand dollars annually. Those smokers seeking health insurance through the exchanges are seeing insurance rates of approximately $4,000 per year above those for a comparable nonsmoker.
Socioeconomic Discrimination? Since smoking is unevenly distributed, some argue that by refusing to hire Chimm Nee Stax, Gus and others like him are unethical because they are cherry-picking ‘low-risk’ employees and denying smokers employment, risking hurting vulnerable groups. “More than 36% of Americans living below the federal poverty line are smokers, as compared with 22.5% of those with incomes above that level.” And since about 45% of unemployed people smoke, no-hire policies would create a “double-whammy” among this group.
Tilting the Scales in Your Favor. The uncertainty of the costs and regulatory implications of Obamacare undoubtedly encourages every company, including Gus Grohcer and Canned Foods 4 Less to promote the health and well being of its employees. Whether the rationale is as fickle as physical appearance or as pragmatic as healthcare costs and productivity, a non-smoking, fit employee has fewer unplanned, missed work days and is likely to be less burdensome upon the company’s healthcare program. The result? A better, cheaper insurance plan for all employees of Canned Foods 4 Less. Our Gray Reed employment experts Ruth Ann Daniels and Michael Kelsheimer[1] advise that companies are becoming more mindful of excluding job applicants who smoke and are obese. Some companies are even modifying their Employee Handbooks to motivate the reduction and even elimination bad health habits and to promote healthier habits, including health club memberships and the like.
* Thanks to one of our faithful readers Mary Ann Markowitz who recommended this April Tilting article. We welcome recommendations for any legal or business issue affecting your closely held company.
RELATED ARTICLES: Avoiding Job Applicants Who Tip the Scales and Coming Up Short: Is it the Height of Prejudice Not to Hire Short People?
The post Avoiding Job Applicants who Smoke: Is Snuffing out Smokers Discrimination? appeared first on Tilting the Scales.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Alex Fuller.
Just before leaving on his route, Boone got into an argument with and assaulted Samantha in the Alamo offices. In a desperate attempt to commit suicide, he later drove his bus off of the road and into a ditch, injuring 30 passengers. A subsequent government investigation revealed that Boone had a previous conviction for assault. Is Alamo Lines liable for Samantha’s injuries? For the injuries to the passengers on Boone’s bus?
No and Yes. Alamo Lines is not liable to Samantha because her injuries were unforeseeable. However, Alamo Lines is probably liable to its passengers because the harm caused to them was foreseeable.
What Risks Must Alamo Guard Against? Generally, employers have no duty to guard against unforeseeable risks. However, employers do generally have a duty to hire employees who are competent at their jobs. While a company that employs drivers has a duty to ensure that its drivers are safe and competent drivers – which may include running a background check on their driving record – employers in Texas generally have no duty to conduct criminal background checks on their employees because those employee’s potential criminal acts are, as a matter of law, unforeseeable. Because Texas courts hold that an employee’s criminal acts are not foreseeable. Therefore, because Boone’s assault of Samantha was unforeseeable, Alamo Lines is not responsible.
On the other hand, Alamo Lines not only employed an unsafe, suicidal driver – it actually was aware of Boone’s mental problems and suicidal thoughts before allowing him to drive one of its buses. Even if Alamo Lines did not have a duty to give its drivers psychological tests, a court could conclude that, with actual knowledge of Boone’s severe mental problems, Alamo Lines was obligated to sideline Boone until a psychiatrist cleared him to drive.
Tilting the Scales in Your Favor. Employers are unquestionably required to hire and retain people who are competent at their jobs, and generally do not have a duty to prevent unforeseeable accidents. Employers who do get actual knowledge of an employee’s violence or severe mental illness are put on notice to proactively take steps to ensure the safety of fellow employees, your company and your customers.
The post Safety Over Convenience: When Should Employers Investigate their Employees’ Mental State? appeared first on Tilting the Scales.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
