Friday, May 29, 2015
CAUSE OF ACTION FOR DEFAMATION
To prove a cause of action for defamation, a plaintiff must prove that (1) the defendant published a statement of fact about the plaintiff; (2) the statement was defamatory; (3) the statement was false; (4) the defendant acted negligently in publishing the false and defamatory statement; and (5) the plaintiff suffered damages as a result. See WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Brown v. Swett & Crawford of Texas, Inc., 178 S.W.3d 373, 382 (Tex.
App.—Houston [1st Dist.] 2005, no pet.). Whether a communication is defamatory is a question of law. See Musser v. Smith Protective Servs., 723 S.W.2d 653, 654 (Tex. 1987).
For a statement to be actionable as defamation, it must refer to an ascertainable person. Robertson v. Sw. Bell Yellow Pages, Inc., 190 S.W.3d 899, 902 (Tex. App.— Dallas 2006, no pet.); Double Diamond, Inc. v. Van Tyne, 109 S.W.3d 848, 854 (Tex. App.—Dallas 2003, no pet.). The statement must “point to the plaintiff and to no one else.” Newspapers, Inc. v. Matthews, 339 S.W.2d 890, 894 (1960).
See Ledig v. Duke Energy Corp., 193 S.W.3d 167, 180 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (noting person is referred to in defamatory statement if person is named in statement or if those who know person would understand that statement was referring to person).
Defamatory statements are conditionally or qualifiedly privileged and therefore not actionable when “made in good faith on any subject matter in which the author has an interest, or with reference to which he has a duty to perform to another person having a corresponding interest or duty.” TRT Dev. Co.-KC v. Meyers, 15 S.W.3d 281, 286 (Tex. App.—Corpus Christi 2000, no pet.) (quotation omitted).
A conditional or qualified privilege arises out of the circumstances in which the allegedly false statement is published in a lawful manner for a lawful purpose. See Minyard Food Stores, Inc. v. Goodman, 50 S.W.3d 131, 139–40 (Tex. App.—Fort Worth 2001), rev’d in part on other grounds, 80 S.W.3d 573 (Tex. 2002). This privilege applies to bona fide statements made in good faith under circumstances where the author believes that the public has an important interest in a particular subject matter requiring publication, or where the author believes that a person having a common interest in a particular subject matter is entitled to know the information. See Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995).
However, proof that a statement was motivated by actual malice existing at the time of publication defeats the privilege. Id.; Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 631 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.). In the defamation context, a statement is made with actual malice when the statement is made with knowledge of its falsity or with reckless disregard as to its truth. See Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771 (Tex. 1994). To invoke the privilege on summary judgment, an employer must conclusively establish that the allegedly defamatory statement was made with an absence of malice. See Jackson v. Cheatwood, 445 S.W.2d 513, 514 (Tex. 1969); Goodman v. Gallerano, 695 S.W.2d 286, 287–88 (Tex. App.—Dallas 1985, no writ). A defendant can negate actual malice by presenting evidence that shows it did not publish the alleged defamatory statement with actual knowledge of any falsity or with reckless disregard for the truth. Casso v. Brand, 776 S.W.2d 551, 559 (Tex. 1989).
SOURCE: HOUSTON COURT OF APPEALS - NO. 01-13-01065-CV - 3/17/2015
ATTORNEY’S FEE CLAIM A SUBSTANTIVE ISSUE – GOVERNED BY CONTRACTUAL CHOICE OF LAW
The recovery of attorneys' fees is a substantive, not a procedural, issue and will be governed by the law governing the substantive issues. Midwest Med. Supply Co. v. Wingert, 317 S.W.3d 530, 537 (Tex. App.-Dallas 2010, no pet.); Rapp Collins Worldwide, Inc. v. Mohr, 982 S.W.2d 478, 487-88 (Tex. App.-Dallas 1998, no pet.).
SOURCE: Dallas Court of Appeals 05-06-00966-CV – 5/10/11 (California law applies)
FAILURE TO FILE MOTION FOR JUDICIAL NOTICE OF OTHER STATE’S LAW LIKELY TO RESULT IN APPLICATION OF TEXAS LAW
Although the policies and procedures provide that the law of the state of Utah shall govern all other matters relating to or arising from the policies and procedures, neither party has argued either that contract law regarding the state of Utah should be applied or that Utah's law differs substantially from that of Texas. Accordingly, we will apply the contract-law principles of Texas. See Johnson v. Structured Asset Servs., LLC, 148 S.W.3d 711, 720 (Tex. App.-Dallas 2004, no pet.).
SOURCE: Dallas Court of Appeals 05-10-00776-CV – 5/5/11
Thursday, May 14, 2015
Texas Supreme Court: A slip-and-fall in a hospital lobby is not a health-care liability claim. -- Duh! - Comment on Ross v. St. Luke's Episcopal Hospital (May 1, 2015)
Comment on Ross v. St. Luke's Episcopal Hospital (Tex. 2015)
JURISPRUDENCE, TEXAS STYLE
The slippery slope on the med-mal front in Texas:
Wet floor not medical malpractice after all
Sadly, a truism such as this passes for exciting legal news in Texas, and beyond. It is an illustration of how abstruse the Texas Supreme Court's rulings have become to justify the high court's resolution of most appeals it agrees to hear in a manner to vindicate the interest of a narrow group of favored litigants, which includes big corporations and health care providers.
The Texas Supreme Court's earlier ruling that a claim against a health care provider need not be a medical malpractice claim to qualify for dismissal as a medical malpractice claim -- thereby effectively granting immunity to doctors and hospitals for all sorts of other claims -- just went too far even for the practicing bar that is accustomed to take its "guidance" from the supreme court; is not allowed to criticize sitting justices; and would be bound by supreme nonsense articulated in precedent-setting opinions in any event, no matter how troubled they may be by it.
The cognitive dissonance and sheer disbelief engendered by the supreme court's pronouncements in its relentless pursuit of judicial tort reform are, after all, an occupational hazard for litigators; -- something that comes with the territory. Texas trial lawyers' BS detectors have to be periodically re-calibrated to avoid overheating when coping with volleys of opinions from the high court that abrogate rights and remedies, deny ordinary people their day in court, and already put many of their peers out of business on both sides of the docket.
The high court has now "corrected" one such supreme nonsense -- nonsense with grave consequences for the rights of injured people because lower courts have to enforce it -- by restricting the earlier ruling to the effect that a med-mal claim no longer needs to involve medical malpractice by announcing a laundry list of factors that may still justify treating a claim against a hospital or doctor as a med-mal claim, with attendant expert report requirement and other procedural hurdles, when the claimant is not a hospital visitor who slipped and got hurt in the facility's lobby.
The latter was the fact scenario in the case in which the supremes have now elevated truism to a new genre of jurisprudence, following a string of legal news of the weird, and subdued griping and whispers of dissension on lawfirm blogs and web sites. Not to mention a law review article politely exposing how "Texas" had gone too far in the medical liability realm.
Read opinion on Google Scholar by clicking on case style below
ROSS V. ST. LUKE'S EPISCOPAL HOSPITAL, Tex: Supreme Court 2015
and the Supreme Court ruling that caused the fracas:
Texas West Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012)
and subsequent citing cases (progeny)
Meanwhile, the Corpus Christi Court of Appeals had ruled that a hospital visitor injured by a sliding door with lateral guillotine functionality -- a plaintiff who like Ross in the supreme court case also was not a patient -- can't pursue a premises liability claim against the hospital because her personal injury claim is a health care liability claim and she did not file an expert report showing how the limb-chopping door violated the applicable standard of medical care. To add insult to injury, the maternity ward visitor struck by the malfunctioning door was told she will have to pay the hospital's attorney's fees.
Angela Morris. "Lawmaker: Employment Lawsuit Isn't Health Care Claim." TEXAS LAWYER, May 4, 2015, p. 12.
John Counsel. "Dallas Judge: Doctor's Cow in Road Is Not Med Mal". TEXAS LAWYER, April 20, 2015, p. 8.
"How Is Hitting a Cow in the Road Med Mal? TEXAS LAWYER, Jan. 29, 2015.
Bob Kraft. "Medical Malpractice Tort Reform Runs Wild in Texas." Feb. 24, 2015 (blog post).
Ross v. St. Luke's Episcopal Hospital, 58 Tex. S.Ct. J. 766 (May 1, 2015)
Bob Kraft. "Medical Malpractice Tort Reform Runs Wild in Texas." Feb. 24, 2015 (blog post).
Ross v. St. Luke's Episcopal Hospital, 58 Tex. S.Ct. J. 766 (May 1, 2015)
Wednesday, May 13, 2015
WHAT IS A TITLE INSURANCE POLICY?
“A title insurance policy is a contract of indemnity.” Chicago Title Ins. Co. v. McDaniel, 875 S.W.2d 310, 311 (Tex. 1994) (citing S. Title Guar. Co. v. Prendergast, 494 S.W.2d 154, 158 (Tex. 1973)). The issuance of a policy does not constitute a guarantee or representation as to the status of title.
McDaniel, 875 S.W.2d at 311. Instead, it obligates the title insurer to pay the loss or damage suffered by the insured as a result of the title defect. Id.
We analyze disputes over the interpretation of insurance contracts under the well-established principles of contract construction, attempting to determine the parties’ intent through the written language of the policy. See Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 126 (Tex. 2010). We examine the entire policy and seek to harmonize and give effect to all provisions so that none will be meaningless or inoperative. Id. If a contract for insurance has a clear and definite meaning, then it is not ambiguous as a matter of law, even if the parties interpret the policy differently. Id. at 133.
SOURCE: HOUSTON COURT OF APPEALS - NO. 01-14-00170-CV - 5/12/2015
CITED SUPREME COURT CASE
CHICAGO TITLE INSURANCE COMPANY
Jerry E. McDANIEL and Christina W. McDaniel.
Supreme Court of Texas.
This cause involves claims against a title insurer based on the Texas Deceptive Trade Practices-Consumer Protection Act, TEX.BUS. & COM.CODE §§ 17.41-.63 (DTPA). The court of appeals held that "there are genuine issues of material fact under the DTPA," and therefore reversed the trial court's summary judgment in favor of the title insurer. 873 S.W.2d 712. Because we conclude that there is no genuine issue of fact concerning any misrepresentations by the title insurer, we reverse the judgment of the court of appeals.
Jerry and Christina McDaniel purchased a home from Couch Mortgage Company in September 1983. At the time of the closing, the McDaniels also purchased a title insurance policy to be issued by Chicago Title Insurance Company. The policy, which the McDaniels received several weeks later, provides in part that Chicago Title "for value does hereby guarantee to the Insured ... that as of the date hereof, the Insured has good and indefeasible title to the estate or interest in the land described or referred to in this policy."
In December 1988, the McDaniels received notice from the bankruptcy trustee of Couch Mortgage that their property was subject to a preexisting lien that had been properly filed and recorded in April 1983. The McDaniels abandoned the property in October 1989. Three months later, a federal bankruptcy court ruled that the McDaniels' purchase money lien on the property was superior to the preexisting lien.
The McDaniels brought this suit in late 1990, seeking damages under the DTPA based on Chicago Title's representations. In April 1991, Chicago Title secured the release of the preexisting lien.
Chicago Title asserts that it has discharged its obligations under the title insurance policy, and that it cannot be liable under the DTPA because it has made no representations regarding the status of the title to the McDaniels' property. We agree.
311*311 A title insurance policy is a contract of indemnity. Southern Title Guar. Co. v. Prendergast, 494 S.W.2d 154, 158 (Tex. 1973). In other words, the only duty imposed by a title insurance policy is the duty to indemnify the insured against losses caused by defects in title. See Martinka v. Commonwealth Land Title Ins. Co., 836 S.W.2d 773, 777 (Tex.App.—Houston [1st Dist.] 1992, writ denied); see also Stewart Title Guar. Co. v. Cheatham, 764 S.W.2d 315, 320-21 (Tex.App.—Texarkana 1988, writ denied). Thus, Chicago Title's issuance of a policy did not constitute a representation regarding the status of the property's title; rather, it constituted an agreement to indemnify the McDaniels against losses caused by any defects.
A title insurer may be held liable under the DTPA for an affirmative representation that is the producing cause of damages to the insured. First Title Co. v. Garrett, 860 S.W.2d 74 (Tex.1993). In the present case, however, there is no allegation of any such affirmative representation. Nor is there any allegation that Chicago Title breached its duty under the contract, or that it may be liable to the McDaniels in any other respect apart from the DTPA. Accordingly, because there is no genuine issue of fact regarding the representations made in the title insurance policy, a majority of this Court grants Chicago Title's application for writ of error and, without hearing oral argument, reverses the judgment of the court of appeals and renders judgment for Chicago Title. Tex. R.App.P. 170.
 In First Title, the title commitment issued by the defendant title companies included an affirmative representation that there were no restrictive covenants of record. The record reflected that it was "customary and usual" for an insured to rely on a title commitment as an assessment of the state of title. 860 S.W.2d at 76 n. 2.
Sunday, May 10, 2015
Immunity jurisprudence now even protects drunk drivers - Texas Supreme Court lets allegedly intoxicated driver of city vehicle off the hook on a pleading technicality; -- blames victim. Molina v Alvarado (Tex. 2015)
NEWEST ADDITION TO HECHT COURT'S IMMUNITY JURIS(MAL)PRUDENCE:
DRUNK DRIVER IMMUNITY
Here is yet another example of the Texas Supreme Court's penchant for creating and invoking immunity theories to deny plaintiffs their day in court against a party that caused injury, and thereby preventing a trial on the merits and recovery of damages from the tortfeasor proven to have committed the tort. There will be no trial and no opportunity to hold the driver accountable. Molina v Alvarado (Tex. 2015).
Attorney for collision victim should have sued the driver first, rather than the employer-city under the Tort Claims Act. Amending the petition later won't do.
The El Paso Court of Appeals had denied the immunity argument of the city employee (who also invoked the Fifth to avoid self-incrimination), and had this to say:
We seriously doubt that the Texas Legislature intended to extend immunity to city employees driving vehicles under the influence of alcohol. Whether the employee is actually acting within the scope of employment — in which case the employee is sued in his official capacity and serves merely as a jurisdictional stand-in for the agency — is a question of fact for the trial court to decide. As such, whether Molina was actually driving the City of McCamey vehicle within the scope of his employment or under the influence of alcohol are both questions of material fact that prevent a grant of summary judgment.
But the Supreme Court reversed, and granted the driver absolution. Defendant wins, as usual. Case closed.
OPINION OF THE SUPREME COURT
IN THE SUPREME COURT OF TEXAS
════════════ NO. 14-0536 ════════════
JESUS RUBEN MOLINA, PETITIONER, v. ELIAS ALVARADO, RESPONDENT ═══════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE COURT OF APPEALS
FOR THE EIGHTH DISTRICT OF TEXAS
Governmental employee Jesus Molina contends the trial court incorrectly denied his summary-judgment motion under the Texas Tort Claims Act (TTCA)’s election-of-remedies provision. We agree that Molina was immune from suit.
We reverse the court of appeals and render judgment for Molina.
Because Alvarado did not do so, he essentially chose his defendant before being required to do so by the election-of-remedies provision. That choice is still an irrevocable election under section 101.106, and the TTCA bars him from later filing suit against Molina. Accordingly, we grant Molina’s petition for review and, without hearing oral argument, reverse the judgment of the court of appeals and render judgment for Molina. See TEX. R. APP. P. 59.1.
OPINION DELIVERED: May 8, 2015.
OPINION OF THE EL PASO COURT OF APPEALS
Jesus Ruben MOLINA, Appellant,
Elias ALVARADO, Appellee.
CONTRACT CONSTRUCTION - INSURANCE POLICY
An insurance policy is a contract, generally governed by the same rules of construction as all other contracts. Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 126 (Tex. 2010). When construing a contract, our primary concern is to ascertain the intentions of the parties as expressed in the document. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 514 (Tex. 2014). We begin our analysis with the language of the contract because it is the best representation of what the parties mutually intended. Gilbert Tex. Constr., 327 S.W.3d at 126; see also Anglo-Dutch Petroleum Int’l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 445, 451 (Tex. 2011). Unless the policy dictates otherwise, we give words and phrases their ordinary and generally accepted meaning, reading them in context and in light of the rules of grammar and common usage. See Gilbert Tex. Constr., 327 S.W.3d at 126; Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). We strive to give effect to all of the words and provisions so that none is rendered meaningless. See Gilbert Tex. Constr., 327 S.W.3d at 126; Forbau, 876 S.W.2d at 133. “No one phrase, sentence, or section [of a contract] should be isolated from its setting and considered apart from the other provisions.” Forbau, 876 S.W.2d at 134 (quoting Guardian Trust Co. v. Bauereisen, 121 S.W.2d 579, 583 (Tex. 1938)).
When construing an insurance policy, we are mindful of other courts’ interpretations of policy language that is identical or very similar to the policy language at issue. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 824 (Tex. 1997). “Courts usually strive for uniformity in construing insurance provisions, especially where . . . the contract provisions at issue are identical across the jurisdictions.” Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 522 (Tex. 1995); see also Zurich Am. Ins. Co. v. Nokia, Inc., 268 S.W.3d 487, 496–97 (Tex. 2008) (“We have repeatedly stressed the importance of uniformity ‘when identical insurance provisions will necessarily be interpreted in various jurisdictions.’”) (quoting Cowan, 945 S.W.2d at 824).
RSUI and Lynd offer conflicting constructions of the Scheduled Limit of Liability endorsement. If only one party’s construction is reasonable, the policy is unambiguous and we will adopt that party’s construction. See Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 459 (Tex. 1997). But if both constructions present reasonable interpretations of the policy’s language, we must conclude that the policy is ambiguous. See id. at 458; Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 741 (Tex. 1998). In that event, “we must resolve the uncertainty by adopting the construction that most favors the insured,” and because we are construing a limitation on
coverage, we must do so “even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties’ intent.” Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex. 1991). “This widely followed rule is an outgrowth of the general principle that uncertain contractual language is construed against the party selecting that language,” and is “justified by the special relationship between insurers and insureds arising from the parties’ unequal bargaining power.” Balandran, 972 S.W.2d at 741 n.1 (citing STEVEN PLITT, ET AL., 2 COUCH ON INSURANCE § 22.14 (3d ed. 1997); Arnold v. Nat’l Cnty. Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987)).
In contract law, the terms “ambiguous” and “ambiguity” have a more specific meaning than merely denoting a lack of clarity in language. Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154, 157 (Tex. 1951). “An ambiguity does not arise simply because the parties offer conflicting interpretations.” Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003). Instead, “a contract is ambiguous only when the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.” Daniel, 243 S.W.2d at 157; see Balandran, 972 S.W.2d at 741. Thus, a contract is ambiguous only if, after applying the rules of construction, it remains “subject to two or more reasonable interpretations.” Balandran, 972 S.W.2d at 741. Our task in this case is to determine whether Lynd’s construction of the RSUI policy is reasonable. If it is, we must enforce that construction, even if RSUI’s construction is also reasonable.
SOURCE: Texas Supreme Court – No. 13-0080 - 5/8/2015
We hold that the Scheduled Limit of Liability endorsement at issue in this case is reasonably subject to both parties’ proposed constructions and that the endorsement is therefore ambiguous. Because our rules require us to construe an insurance policy’s ambiguous coverage limitation in favor of coverage for the insured, we affirm the court of appeals’ judgment adopting Lynd’s proposed construction.
SOURCE: RSUI Indemnity Company v The Lynd Company, No. 13-0080 (Tex. May 8, 2015)
(Opinion by Boyd)(Hecht wrote a dissenting opinion)