By CHAMBERLAIN McHANEY
EXCUSE the
delay, but approximately 45 seconds before we completed this
week's edition of Texas Update, a fight broke out in our editorial staff room complete with
flying beer cups, popcorn, ice and chairs. Suspensions are pending.
OSHA
REGULATIONS HELD ADMISSIBLE IN PRODUCT LIABILITY CASE: LAST WEEK, the Dallas Court of Appeals held that
OSHA regulations were admissible in a product liability case to counter the
plaintiff's claims that a forklift was defectively designed and caused his
injuries. Juan Castillo sustained a traumatic amputation of his left leg
when the stand-up forklift he was operating dropped off the edge of a
loading dock. He sued the forklift manufacturer claiming that the
forklift should have been designed with a door to hold him inside the
operator's compartment, which would have prevented his injury. The trial
court permitted the manufacturer to introduce OSHA regulations which recommended that operators of stand-up forklifts be
trained to promptly abandon ship if a tipover
occurs. The manufacturer argued that a door would prevent the
operator from safely exiting the forklift contrary to what OSHA
recommends. The plaintiff argued that the OSHA regulation was irrelevant
and thus inadmissible in a products case because it was a not a product design
standard.
The appellate court affirmed the trial court's ruling,
holding that the plaintiff in a design defect case has the burden to prove a
safer alternative design that would have prevented the injury. To
establish a safer alternative design, a plaintiff must show that the
alternative design would not, under any circumstances, impose an equal or
greater risk of harm. The defendant is entitled to counter by offering
evidence that the plaintiff's proposed alternative design is not safer.
The OSHA regulations were admissible in this case because they were some
evidence that it was safer to have a clear exit rather than a door impeding an
exit. Costilla v. Crown Equipment Corp (
INSURER
BREACHES INSURANCE POLICY BY OFFERING TO REPLACE DAMAGED OLD ROOF WITH AN
IDENTICAL NEW ROOF:
Last Week, The
Texas Supreme Court held
that offering to replace an insured's hail damaged roof with an identical new
roof was a breach of the insuring agreement. Mex-Tex
suffered hail damage to an old ballast roof on a commercial
building. Rejecting a $145,460 check from Republic Insurance Company to
replace the roof with an identical ballast roof, the insured retained a
contractor to go ahead, without waiting on Republic, and replace the roof at a
cost of $179,000 with one of the same kind, but which would be fixed to the
building mechanically, rather than by ballast (that is, rocks) as the old roof
had been. Mex-Tex then brought suit alleging
Republic had breached the insurance policy by not paying the full $179,00 for a mechanically attached roof. The lower courts
held for Mex-Tex.
Republic appealed to the Supremes arguing that it could not
have breached the policy by offering to replace the insured's roof with an
identical one and refusing to pay for a more expensive one. The Supremes
disagreed with Republic and said the policy provides the insurer is required to
repair or replace the damaged property "with property of comparable
material and quality." Comparable does not mean identical.
Said the court: "The policy clearly allows more leeway than
that...and Mex-Tex's new roof was within that
leeway." The experts testified at trial that the roofs were
comparable and the only difference was cost. The Supremes also assessed an
18% delay penalty on the difference in the two amounts pursuant to article
21.55 of the Texas Insurance Code, thereby reducing the lower court's
assessment of the statutory delay penalty on the full amount of $179,000.
Republic
Underwriters Ins Co v. Mex-Tex,
Inc. (
TxUp Defensive Strategy: While
planning our defense to the inevitable prosecution arising from the recent
melee in our editorial staff room, we were advised that we should simply apply
for a pardon from President Bush. It seems as though he has a history
of pardoning turkeys at this time of year.
By the way, we
identified the staff writer who threw the first beer cup:
DAVID E. CHAMBERLAIN
CHAMBERLAIN-McHANEY
512.474.9124
VISIT US AT www.chmc-law.com where TEXAS UPDATE is archived.