Texas Personal Injury Podcast

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Attorney Jay Jackson III

Jay Jackson, a Houston personal injury lawyer at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, discusses important Texas Supreme Court rulings.

• Hoffstater v. General Interior Construction Inc.
• Galveston Independent School District v. Jaco and UT SW Med Center v. Gentilello
• Whirlpool v. Camacho
• Metro Allied Ins. Agency v. Lin

Transcript

Host: Welcome to the Texas Personal Injury Podcast. Your source of up to date legal information. This week’s topic is Texas Supreme Court, recent rulings. Presented by trial attorney Jay Jackson from Abraham, Watkins, Nichols, Sorrels, Agosto & Friend in Houston Texas. Jay Jackson and I will be discussing ruling on several cases. Thanks for joining us today Jay.

Jay: Glad to be here.

Host: What does the phrase “personal jurisdiction” mean and how has the Supreme Court recently interpreted that issue?

Jay: Personal jurisdiction means that the defendant, the person being sued, has some connection with the state where the law suit is pending. In the event that it is a corporation, the corporation would have to do business in the State of Texas first. A person who is being sued would have had to come into the State of Texas or he would have to do business directly with the state of Texas, so that it is considered constitutional for the State of Texas to exercise authority over that non-resident. There is a recent case called Hafstatter v. General Intension Construction, Inc., it came out on January 15th of this year. In that case, the defendants were individuals who had a corporation that was out of state. They hired some local contractors who hired subcontractors to repair a hotel here in Houston. A dispute developed because they didn’t pay their bill to their local subcontractor. When the underlying contractor who was getting the job paid for, failed to pay the subcontractors, the subcontractors here in Houston wanted to sue the individuals that worked for that company. Texas has a rule that says that when you are paying off the subs you have to indicate that everybody has been paid all of his money, you have to actually sign some paperwork to indicate that, so that they can issue it and subcontractors get paid. The notion is that when the contractor receives the money it is acting sort of like a trust fund. So, therefore, they have to make sure that with this trust fund the subcontractors have been fully paid. In this particular case, the subcontractor didn’t get paid and sued the individuals that were out of state, and said that they mishandled the trust fund and didn’t pay them the money. Well the Texas Supreme Court noted that, although the hotel was here in Houston, and although these individuals that controlled the out of state company made several trips to Houston to supervise the job, it said that these people did not have enough contact with the State of Texas to exercise personal jurisdiction. In this case, what happened was that the contractor did not pay the subcontractor; since the contractor was an entity out of state, the local subcontractor brought suit against them here in state Court. And the Supreme Court said no, Texas Courts will not exercise jurisdiction over those out of state defendants. The effect of it is this: you have a local in-state subcontractor who is hired to do a job here in Houston, but the Supreme Court is saying that Texas courts will not be available to enforce Texas law that imposes a trust fund on the money paid to the general contractor to make sure that the subs get paid. In essence the general contractor is thrown out of court because the Texas Supreme Court is refusing to enforce Texas law against an out of state defendant who has commercial activities in our state.

Host: Has the Supreme Court recently ruled on the defense of governmental immunity in the context of whistleblower cases, and how does that work?

Jay: Yes it has, as a matter a fact, the most recent ruling was February 12th of this year. What’s going on here is a collision of two bodies of law. First off is the notion that the government is immune from being sued. Governmental immunity is a common law principle that came over from England and the idea is that the sovereign cannot be sued by any person in the realm. But because of the hardship that would impose upon people in the sophisticated and complicated modern society, the Texas Legislature, like most states, has waved sovereign immunity in very specific cases. So, typically when a person is injured by the activities of a governmental employee and he brings suit, the government will attempt to say that you can’t sue us, we’re the government, we are going to plead that there is no jurisdiction. One of the unique parts of the law in this area is that the government can appeal an adverse ruling when the trial Court believes that there is jurisdiction, when there has been a waiver of sovereign immunity. So, that is one body of law. The second body of law is a whistleblower act. Now it’s name implies that the whistleblower act attempts to protect people who works for the government or any large agency and reports violations of the law. If a whistleblower sees that a law has been violated and reports it to the correct authority, then the company or the agency is not allowed to punish or demote the whistleblower or fire him, the whistleblower, for that matter. So, in this particular case, the athletic director of Galveston Independent School District found out that a certain football player at Ball High School in Galveston had violated the rules of competition for high school athletes. That set of rules is put out by something called the University Interscholastic League. So, when the athletic director found out that this high school football player had violated the rules, he reported that to the University Interscholastic League. Well, after that, the school demoted this particular athletic director. So he brought suit. As soon as he did, Galveston Independent School District filed what’s called a Plea to the Jurisdiction saying you haven’t proved your whole case. You have to prove that you have actually reported this to the appropriate authority. Now the trial court said he didn’t have to prove his whole case, he simply had to show he had a case under the whistleblower act. The Court of Appeals agreed, but the Supreme Court reversed. It said that he had to show, on the jurisdictional question, that he had reported it to the appropriate authority. So, in other words, from a legal point of view, the consideration for jurisdiction has been blended together with the consideration of liability meaning whether he actually followed the whistleblower statute and was entitled to relief and protection from that act. So, the Texas Supreme Court has blended these two requirements and said that he has to prove his underlying case; if he doesn’t, his claim will be thrown out. And so that would mean that the jury will never get to hear all of the things that the Galveston Independent School District did to him, if he doesn’t prove to the trial court before the jury is ever impaneled that he followed the proper rules and reported the violations to the correct authority. That’s why this case is significant, and several other cases have been decided in a similar vein saying that when you bring a whistleblower case, you have to not only show that you are bringing a case under the whistleblower act against a governmental authority, but you have to prove the elements of that act by showing that you did report it to the correct authority, to the judge before you are allowed to prove it to the jury.

Host: What is discovery in a civil lawsuit and how has the Supreme Court recently ruled upon it?

Jay: Discovery means that each party to a civil case is allowed to find out about the information that the other side has, as well as to preserve evidence for trial. It is the time period after the lawsuit is filed and before it goes to Court, when both parties can interview witnesses and can obtain records and documents from the other side. Discovery is the backbone of modern civil litigation. The idea is that if both sides can understand what the facts will show at trial, there is a good chance that the case can be worked out in advance of trial. In products liability cases where the plaintiff is injured and believes that the product manufactured by a defendant has caused the injury, it’s extremely important for the plaintiff to be able to find out about the other instances where that other product has failed. Now, often times, a manufacture has numerous products that are very similar to one and other, but perhaps of a different product name, or different product designation. So, for instance, a lawnmower that has a certain size engine might be called the “01” model and a lawnmower that has the next size up engine, might be the “02” model. Now, it may be that the defect has nothing to do with the size of the engine, perhaps a wheel falls off, perhaps the engine is unstable. And so for years, when plaintiffs have been trying to get information from the product maker, they have been asking for all information for the same kind of product across its entire line. Defendants, on the other hand, attempt to restrict the product as narrowly as possible and only give information about the very unit that failed. So that’s been a fight that has existed in Texas courts for many years. In a recent case, called In re John Deer, the Texas Supreme Court helped the plaintiff a little bit, but with one hand gave and another hand took away, because it ruled that the trial Courts order was erroneous. Here is what happened. The plaintiff was seeking information about multiple models that John Deer manufactured. John Deer was refusing to give any information about other models. After a hearing, the trial court ordered that the plaintiff would be entitled to get records from similar models. When the plaintiff was originally seeking the records, the plaintiff had limited the time period of the models, but when the Order was actually signed by the Judge, it didn’t contain that limitation. It was evident what years were included in the plaintiff’s discovery request. Nevertheless, the Supreme Court took the case and reversed the trial court’s Order. The Supreme Court said you can find out information about related similar models, but because the Order did not have a time limit written into it, the Supreme Court reversed it and send it back to the trial court, so they have to start all over at that point.

Host: What happens when a insurance agency fails to obtain the insurance request by its customer?

Jay: Well, that very situation occurred in a case called Metro Allied Insurance vs. Lynn. It was decided or handed down by the Supreme Court in December of last year. The situation there was that a certain contract or with the government wanted to have a very specific kind of insurance and he provided all of the information that he needed to his insurance agent. The insurance agent went around and got certain quotes and then he finally settled on a certain policy. That is what he thought he did, but it turned out that the agent had never placed the insurance in the first place, so the man went forward with the contract with the government, but there was a problem that developed. Later, the government brought suit against him on the contract, so the insured, the person that bought the policy he thought was issued, asked to have the insurance company defend him, as the commercial general liability insurance policy would normally do. Well, that was when it was discovered that the insurance agent never bothered to buy the insurance. So, he had no coverage and he lost his case against the government. As a result, he turned around and sued his agency. He went to trial and he won his case against his agency and it went on appeal, and he won the appeal. But it got to the Supreme Court of Texas, and the Supreme Court said, no, we are going to reverse this case. You can’t win. What was the reason? It was because, at trial, the plaintiff in this case, Mr. Lynn, who was the defendant in the underlying case, did not offer evidence of policies that had similar terms to the one that he had requested. It was undisputed what policy provisions he wanted, the agent knew that, but Mr. Lynn came to Court and said, “Here is another policy that is like the one I was trying to purchase. So, the Supreme Court said, that by not offering another policy than the one that he didn’t purchase, in evidence in the trial Court, he was going to lose this case. The Supreme Court said that that was based on causation. That has been a common theme amongst the Texas Supreme Court opinions over the last several years. If you look very closely at the questions of causation, once they believe that they can find the break in causation, the break in perfect causation, then they can throw the case out of court. And that’s exactly what they did here.

Host: That is very interesting and thanks again for joining us. Well that concludes our conversation about Texas Supreme Court recent rulings. For more information, please visit our website at www.abrahamwatkins.com or call us at 713-222-7211 or toll free at 1-800-870-9584. Thank you for joining us today and we hope we’ve been helpful to you.

See Also

http://www.supreme.courts.state.tx.us/historical/recent.asp

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Attorney Johnny Garza

Johnny Garza, a Houston construction accident lawyer at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, discusses incidents at construction sites and plants.

Transcript

Host: Welcome to Texas Personal lnjury Podcast your source of up to date legal information. This week’s podcast is about incidents at constructions sites and plants presented by trial attorney Johnny Garza from Abraham, Watkins, Nichols, Sorrels, Agosto and Friend in Houston, Texas. Johnny and l will be discussing what a construction worker or plant worker should do if their injured on the job. Thanks for joining us today Johnny.

Johnny: Oh you’re welcome

Host: What should an injured construction or plant worker do immediately after an incident occurs?

Johnny: An injured construction worker needs to report his or her injury to their supervisors immediately and when their reporting injuries they need to be very complete if you’re suffering some soreness or tightness most people don’t think that’s something serious or they don’t discuss it or they don’t report it but that soreness and tightness is very very important cause it needs to be reported cause you never know how that soreness or tightness will feel the next day and it could lead to an injury that you don’t think that you’ve suffered at that point in time. So again, everything must be reported. Another thing that an injured worker must do if you’re in a plant assume there is an explosion and the injured worker falls off the scaffold or falls off some type of platform and there are other workers that are next to you sometimes you know them sometimes you may not know them at that point in time. You need to get their names, get their phone numbers because they are witnesses to what happen to you when this explosion occurred. The third thing that the injured worker should do is get treatment. Sometimes when there is an accident at work or there is an explosion the employer will send everybody home and they don’t ask what injuries somebody has serious or not. So the worker just goes home. They’re not knowing what to do so then they show up for work the next day and they begin working and at that point again they haven’t reported an injury and they haven’t sought medical treatment so it’s
important that after the incident occurs the worker goes out and gets treatment if they really need the treatment or their feeling the soreness or tightness if they’ re going to get checked out by the emergency room or their own family doctor or sometimes employers have doctors on site so they need to be seeing somebody that afternoon or that evening or after the incident. I make sure they are seeking treatment.

Host: How would an injured worker make sure that the company they work for or other third party companies don’t destroy any evidence at the incident site?

Johnny: At that point the injured worker needs to contact an attorney to make sure that the attorney contacts the person responsible for causing the incident and the attorney will tell the company responsible that you need to keep the evidence the same exact way. Do not alter it. And so it’s gonna be
a hard balance to juggle because you’re dealing with your injuries but at the same time you need to start looking for legal help so that the evidence can remain intact after the incident and again once you contacted an attorney the attorney will handle the evidence and making sure it does not get alter.

Host: How important is it to investigate if other companies besides your own employer are responsible for the incident?

Johnny: It very important to investigate if other companies are at the job site. Most of the times there are other companies doing different types of work whether it be sandblasters, piperfitters, scaffold builders at a site one of these companies may be responsible for causing the incident so you need to talk to your co-workers, you need to talk to your supervisors and find out who these other companies were and also start asking questions why the incident happen. Start asking which company is responsible for causing this incident. When you get this information write it down somewhere and when you go talk to an attorney it’s extremely important that you tell your attorney about the other companies that were out there and also your attorney will begin its own investigation to find out which companies were out there and cooperate with you with information you obtain from your coworkers and your supervisors.

Host: Should the injured worker give a written statement to their employer and any other company?

Johnny: The injured worker should give a written statement only in his or her words. Do not let anybody else write the statement and again use only your words. Do not let anybody else tell you what to write in your statement.

Host: What about hiring a translator? Would that be a good idea or is the court willing to except in a foreign language?

Johnny: A worker should not let anybody else translate the statement. Because immediately after the incident everybody is trying to get details and you’re not sure who this translator is working for. The translator may have the companies best interest in mind so you go back and make sure the written statement you are providing is in your own words and in your own handwriting and in your signature.

Host: How does workers compensation apply in this case?

Johnny: The employer of the worker usually has workers compensation and what workers compensation does is that it provides treatment for the injured worker so the worker is going to see a doctor. Workers compensation will pay the doctor also if the worker is unable to return to work because
of the injuries workers compensation will pay the worker’s salary up until the point the worker can return to work. Now if the company does not have workers compensation insurance the worker is going to be required to pay for his or her own medical treatment and if the worker cannot return to work she or he will not be receiving a salary and at that point it is extremely important that the worker talk to an attorney and discuss their rights and discuss the incident and discus their injuries.

Host: Should the injured worker go back to work?

Johnny: The injured worker should go back to work if he or she feels healthy enough to work and also if the doctor has released the worker to return to work. Now upon the worker returning to work and the pain or injuries get worse then the worker needs to notify a supervisor and asked to get treatment for
the injuries and also if the worker has a follow up appointment with the doctor the worker needs to tell the doctor the pain has gotten worse or just let them know about the symptoms and how he or she cannot do the work they previously did.

Host: My last question is what should the family do if the worker is killed on the job?

Johnny: The family should contact the coworkers that were on the site and find out what happen and also get the names of other witnesses to the incident. Second thing which is the most important thing is that the family should immediately talk to the attorney so that the attorney can immediately begin doing an investigation and preserve all the evidence.

Host: Well thank you for all of your tips and insight today. That concludes our conversation about incidents at construction sites and plants. For more information please visit our website at www.abrahamwatkins.com or call us at (713) 222-7211 or toll free at (800) 870-9584. Thank you for joining us today and we hope we’ve have been helpful to you.