Recent Appellate Court Decision in Workplace Injury Case

Originally published by By Chelsie Garza.

The Fourteenth Court of Appeals recently handed down a decision in the E.I. DuPont de Neours and Company v. Roye matter. In doing so, some argue that the majority misapplied and/or ignored well established Texas law. The Roye matter involved an independent contractor working at a DuPont facility. While on the premises Roye fell through a pallet when the ground below caved in landing in a pool of 400 degree condensate up to his chest. Roye suffered second and third degree burns over 75% of his body. A jury of his peers, awarded Roye in excess of $ll million to compensate him for his harms and losses.

The majority took up two issues within its decision. First being a charge issue; did the trial court submit the correct question to the jury. The more controversial of the two was the second issue. The majority looked at whether DuPont had knowledge of the hazard presented by the pool of 400 degree condensate. This is where the dissenting opinion takes issue, as do many who stand to criticize the opinion. Between the majority and dissent, the knowledge issue boils down to this, the level of proof the plaintiff needs in order to make their case. In Roye, the plaintiff argued that DuPont created the pool of hot condensate through its decision not to install a drainage system to remove the hazard. If DuPont created the pool, the Keetch decision says the jury can infer DuPont had actual knowledge of the hazard and can therefore be held responsible for the harm caused by the hazard. The majority, however, took the position that the pool of hot condensate developed over time applying the CMH decision to conclude the plaintiff had not presented sufficient evidence that DuPont knew or, through reasonable inspection, should have known the pool developed.

Although I did not sit in the courtroom, nor have I read the record, it appears from reading the majority and the dissent, that there is a difference of opinion as to the application of the law to the facts. In other words, a fact issue. Did DuPont create the pool of condensate or did the hazard develop over time. Ordinarily in civil litigation fact issues are decided by the jury.

If you or someone you know have been injured in a workplace accident, contact the attorneys at Abraham, Watkins, Nichols, Sorrels, Agosto, and Friend by calling 713-222-7211 or 1-800-870-9584.

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New book on persuasion

Originally published by Legal Writing Prof.

Linda Edwards has published a new book titled Readings in Persuasion: Briefs That Changed the World. As Lucille Jewell’s review of the book explains, it presents briefs from real cases, including Loving v. Virginia and Lawrence v. Texas, infused with…

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Government Agency Warns Consumers of Virtual Currency Risks

Originally published by Gerry W. Beyer.

As I have previously discussed, virtual currency is a growing market with over 200 currencies for investors to choose from. The Consumer Financial Protection Bureau (CFPB) is now warning consumers of the risks of using virtual currency. In a Consumer…

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Requirement to Request Renewal of Expired Intellectual Disability …

Originally published by Jerri Lynn Ward, J.D..

DADS has issued the following Information Letter(s):

Information Letter 14-48 – Requirement to Request Renewal of Expired Intellectual Disability/Related Conditions and Individual Plan of Care Forms

Effective September 1, 2014, some individuals residing in Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICF-IID) or receiving long-term services and supports (LTSS) through the Community Living Assistance and Support Services (CLASS), Deaf Blind with Multiple Disabilities (DBMD), Home and Community-based Services (HCS) or Texas Home Living (TxHmL) programs will begin receiving their acute care services from a Managed Care Organization (MCO) through the State of Texas Access Reform+Plus (STAR+PLUS) program.

The purpose of this information letter is to request submission of renewal documents to the Department of Aging and Disability Services (DADS) for individuals enrolled in your program. Renewal documents include DADS form 8578, Intellectual Disability/Related Conditions Assessment, that identifies an individual’s Level of Care (LOC), and Individual Plan of Care forms as applicable to the program. Expired LOCs or IPCs will place individuals at risk of being unable to access needed acute care services through STAR+PLUS, such as doctor visits, hospital or emergency room services, and prescription medications. It is important that DADS receives renewal requests for LOCs and IPCs immediately for every individual who currently has an expired LOC or IPC.

Submission requirements and processes for each program differ, but have not changed as a result of the STAR+PLUS expansion. Program providers, Case Management Agencies (CMAs), Direct Services Agencies (DSAs) and Local Authorities are required to follow their normal submission processes to request renewal of these authorizations, as described below:

• ICF-IID: submit the Intellectual Disability/Related Conditions (ID/RC) renewal form through the Texas Medicaid and Healthcare Partnership Long-Term Care online portal.

• CLASS and DBMD program providers: fax the ID/RC and IPC packet renewal documents to the Program Enrollment/Utilization Review (PE/UR) unit at (512) 438- 5135.

• HCS and TxHmL program providers: submit the ID/RC and IPC renewals through the Client Assignment and REgistration (CARE) system and if prompted, fax the ID/RC, IPC packet renewal documents or both to the PE/UR unit at (512) 438- 4249.

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Say WHat?! – Of the Rankest Sort

Originally published by State Bar of Texas.

From Robert Finlay of Honolulu, HI, this testimony from “a hotly contested murder trial” involving a difficult, albeit zoological, point of evidence:

Prosecutor: On the photograph, what are on the brown, blood-like smudge?

Mr. Heu: From my zoological background, I keyed in on it because it had ants on it. [This was significant because it] indicated to me that it was fresh material rather than something that was days or weeks old.

Prosecutor: First of all, is there a difference between worker ants and soldier ants?

Mr. Heu: Yes. The soldier ants have large heads and the worker ants have small heads. The worker ants go out to forage – to find something. If it’s a large find, the word will go back to the ant nest. The ants will send out more workers and if it’s a big find, they’ll send soldiers along.

Defense Attorney: I object to the materiality of the witness’ statement.

The Court: Your objection is on the grounds of relevance?

Defense Attorney: Yes, sir. It’s also hearsay as to what the ants tell each other.

The Court (wisely): Objection overruled.

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Say What?! – Objection Sustained

Originally published by State Bar of Texas.

From Associate Judge Kathleen C. Anderson of El Paso, this excerpt from a family-violence protective order hearing held in her court. “The Applicant was being cross-examined by the Respondent’s attorney, whose theory of the case included the notion that the Applicant was involved in a romantic relationship with the Respondent at the time of the alleged family violence.” The objection was made by Michael Alvarez, the Assistant County Attorney.

Q. At any rate, by October 23rd of the year 2000, you did not love Mr. Juarez. Is that correct?

Mr. Alvarez: Objection. What’s love got to do with it?

The Court: How long were you waiting to make that kind of an objection? Sustained.

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Which State Law Applies to My Insurance Claim?

Originally published by Shaun Marker.

As discussed in the first part of this series, sometimes there is a question of which state law will apply to an insurance dispute in litigation. Policyholders could be domiciled in one state; fill out an application for insurance in another state for a property located in another state. This question is called choice of law.

In Quarty v. Ins. Co. of North America,1 the Florida Second District Court of Appeal was looking into the issue of whether Florida law applied. The policyholder had filed suit in Florida against the insurer. The facts are: the insurance carrier had issued the policy in New York insuring the contents of the policyholder’s dwelling in New York; the home was burglarized and personal property was stolen from her home in New York; several months later, the policyholder moved to St. Petersburg, Florida, and became a resident of that city after notifying the insurance carrier; over a year and a half after the burglary, the insurance carrier denied the claim; the…

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