This week’s orders list brought three grants for oral argument and one petition salvaged from the denial pile on rehearing.

Grants

Can fire insurance be denied for technical breaches (that don’t affect causation)?

Under Texas Insurance Code §862.054, a policyholder’s breach of a condition or warranty is no defense to coverage under a fire insurance policy unless it “contributed to cause the destruction of the property.”

This case involves a property that was left vacant by the owner. The petition argues that, because there is no proof that vacancy contributed to the fire, coverage should not have been denied on that basis. Among other arguments, the respondents contend that the better reading of §862.054 is that it applies only to coverage for “personal property,” not for the structure itself.

Set for argument December 5th

Damages to market value caused by “temporary” environmental contamination

The petition challenges a damage award for lost market value of property, arguing that the landowner failed to show a “permanent” reduction in market value.

In one issue, the petition also argues that TCEQ regulations displace their common-law duties.

Set for argument December 5th

Objections to a charge made after the charge conference; Jones Act liability

The substantive issue is about how to draw the line between “specific orders” and “general orders” for purposes of maritime liability under the Jones Act.

A procedural issue raised is whether a proposed jury instruction tendered before the charge is read to the jury is timely under Rule 272 (“…before the charge is read to the jury”), even if it occurs after a different deadline set by the trial court (such as a charge conference).

Set for argument December 5th

Rehearing granted

The Court granted rehearing for Texas Department of Aging and Disability Services a/k/a Brenham State School, Anthony V. Watson, Dwane B. Hubbard... v. Mary Cannon, individually and As Representative of the Estate of Patrick Tate Dyess, Deceased, No. 12-0830 , a petition about §101.106(e) immunity, which the Court had denied at the petition stage in April. The case will now receive full briefing on the merits.

Puzzler of the week

What is the procedure when the Texas Supreme Court is, itself, reversed?

The Court also sent Vernon F. Minton v. Jerry W. Gunn, Individually, Williams Squire & Wren..., No. 10-0141 back to the lower court after it was reversed by the U.S. Supreme Court. The mechanism that the Texas Supreme Court used was inelegant: it withdrew the original grant of review (from February 2011, before its decision or the U.S. Supreme Court appeal) as having been “improvidently granted” and dismissed the petition.

That accomplishes the goal of passing the case back to the court of appeals, which can then issue its own mandate.

But withdrawing the grant as “improvident” after so much has happened seems a little like Season 9 of Dallas (“Good morning!”). (( For my statistical purposes, I’ll assume that withdrawing the grant of review in February 2011 has no effect on the December 2011 opinions that resulted from that grant. ))

That said, I don’t know that the Court had a more elegant option under the Texas rules. Suggestions are welcome.