TEXAS
UPDATE
By
CHAMBERLAIN McHANEY
TEXAS
LAWYERS
You know, we miss Rodney
Dangerfield. Now, the only one left on the block that
does not get any respect is Texas
Update. Ok, we’ll take the job…here
goes. I was such an ugly kid…when I played in the sandbox, the
cat kept covering me up.
A VALID REJECTION?
Each Texas
automobile insurance policy must provide PIP and UM coverage unless the
coverages are rejected by the named insured in the manner provided by
statute.
This morning, the
Texas Supreme Court ruled that rejection of PIP and UM coverage by
the spouse of the named insured was a valid rejection even though the spouse was
not listed as an insured on the policy’s declaration page.
Mrs.
Sanchez applied for auto insurance in her husband’s name and signed a rejection
for personal injury protection (PIP) and uninsured/underinsured motorist (UM)
coverage. Mr.
Sanchez was the sole named insured on the policy’s declarations page.
Mr.
Sanchez sought UM benefits after he was severely injured by an uninsured
motorist. Old American declined. The Supreme Court held that “any
insured named in the policy” is synonymous with “named insured” for purposes of
waiving PIP and UM coverage. The policy explicitly defined the “named insured” to include both the person
named in the declaration page and that person’s spouse, if a resident of the
same household. Old
American County Mutual Fire Insurance Co. v. Sanchez
(Tex.
2004).
NEWS AND NOTES: While covering another legal story at the
Travis County Courthouse, TEXAS
UPDATE overheard Judge
Hammer tell Defendant
Nail: “Relax, just give the system a
chance.”
HE
WAS SORE AT THE STORE: EXEMPLARY DAMAGES: Mr.
Silva went to Dillard’s Department Store to exchange three shirts given to him
as a gift. As he cruised through the store, he was confronted by the house
detective who demanded he open his bag and produce a receipt. When Mr
Silva discovered he left his receipt in the car, the detective laid Silva out on
his belly, cuffed him and then had him do a “perp walk” in handcuffs through the
store to a back office. He was interrogated by store personnel and then
bound over to the Houston police. He was then prosecuted for theft, but
acquitted by the jury in a criminal trial.
Mr. Silva then sued Dillard’s for false imprisonment alleging
actual and punitive damages. The jury agreed and awarded $13,124 in actual
damages and $50,000 in punitive damages. Dillard’s appealed saying there
was no evidence to overcome the “shopkeeper’s privilege” which allows a store
owner to investigate and prevent theft by detaining suspected shoplifters.
The Texas Supreme court said there was enough evidence to justify a jury finding
of actual damages caused by false imprisonment, but no evidence to support an
award of punitive damages. Said the Supremes: “There is no clear and
convincing evidence of malice in this case…” Dillard’s
Department Stores v Silva (Tex.
2004).
NO GENERAL LIABILITY FOR TEXAS WORKSITE
ACCIDENTS: Ok,
perhaps that states it a little too broadly, but last week the Texas Supreme
Court declined to review Etie
v Walsh. In Etie,
the lower court decided that the purposes of the Texas Workers'
Compensation Act are best served by deeming immune from suit all subcontractors
and lower tier subcontractors who are collectively covered by the general
contractor's workers' compensation insurance. The Act's deemed employer/employee
relationship extends throughout all tiers of subcontractors when the general
contractor has purchased workers' compensation insurance that covers all of the
workers on the site. All such participating employers/subcontractors are thus
immune from suit. Also, the participating employees are fellow servants, equally
entitled to workers' compensation benefits and equally immune from suit.
Etie
v Wash
(Tex.
App.-Houston 2004, pet denied).
Did you know, or care,
that past issues
of TEXAS
UPDATE
are now available on our website. Check it out at www.chmc-law.com.
BIG
TEX
STUMPED BY JURY: Wednesday,
a Williamson County jury took only an hour of deliberations before rebuffing the
State of Texas on its claim to recover $695 in property damages to a State truck
dented in a fender bender. The State spent $11,600 in attorneys fees and
expenses in a vain effort to recover the small booty. The
Defendant, an elderly farmer, accused the state of being a frivolous litigant.
The Attorney General’s office said in statement that it had to pursue this
claim “to look out for the interest of the taxpayers.”
…..Sigh. State of Texas v
Wheeler.
TEXAS
UPDATE is brought to you as a service of this
firm.
David E,
Chamberlain
Chamberlain-McHaney
Austin & San
Antonio
512.474.9124