Last week, I noted that the absence of an order list on Good Friday created a very long gap between the Court’s conference and its next order list. (( Since that conference ended, the Court has issued at least one special order each day other than Good Friday (Wed Thu Mon Tue Wed Thu). ))

Today, the Court showed it has put that extra time to good work — issuing nineteen merits opinions with this order list. (( There was a twentieth opinion, a per curiam in which the Court explained its dismissal of County of Dallas v. Sempe as having been improvidently granted. )) It looks like 9 per curiams and 10 signed opinions. Of the 10 signed majority opinions, Justice Brister wrote three, Justice O’Neill wrote two, and Justices Hecht, Wainwright, Green, Medina, and the Chief Justice each wrote one.

I’m sorry to disappoint any of you who like to time how quickly I can analyze the new opinions. I’m out of town today attending to a family matter, but I’ll start posting some this weekend.

The Court set an argument date for the certified-question case Financial Industries Corp. v. XL Specialty Insurance Co., No. 07-1059 [described here]. It will be argued April 1st — the first day of the next sitting. That argument slot came open because the Court also moved In re Caballero, a disciplinary appeal, from April 1st to April 2nd [described here].

In addition to that shuffling, the Court also granted two new cases for review —

• Tanner v. Nationwide Mutual Fire Insurance Co., No. 07-0760, and
• In re Labatt Food Service, L.P., No. 07-0419.

The Court has not yet set the date of those arguments.

After trickling out just one briefing request on Wednesday [here] and another on Thursday [here], the Court quietly issued fifteen more briefing requests sometime on Good Friday. ((I had expected a silent weekend from the Court after Osler McCarthy’s distribution-list email that there would be no order list and the Court’s holiday schedule. Thanks to Roger Hughes of Adams & Graham for noticing some of these requests and prompting me to look again.))

The case of personal interest to the most Texas lawyers may be Abbott v. State Bar of Texas, No. 07-0836, from 03-06-00592-CV. COA Opinion. This is an open-records case about whether the information the State Bar maintains about its members is subject to disclosure and — if not — why not. The district court held that the information was confidential by nature. The court of appeals held that the information was “judicial” in nature because it was held pursuant to rules by the Supreme Court of Texas. The Attorney General’s petition (I am assuming) claims it is neither.

But the cases most likely to make the evening news (again) are definitely the two defamation cases out of Fort Worth, which fit together as a set. Both involve defamation suits brought by Gamal Abdel-Hafiz against television news networks and personalities (including Charlie Gibson and Bill O’Reilly). The allegations relate to news stories that named the plaintiff — an FBI agent who is Muslim — as having impeded some investigations prior to September 11, 2001 by, in the stories’ description, refusing to “wear a wire”. More details are to be found in the court of appeal’s opinions.

• 07-1073 Abdel-Hafiz v. ABC, Inc., from 02-06-00244-CV. COA Opinion

• 07-1074 Abdel-Hafiz v. Fox Entertainment Group, Inc., from 02-06-00353-CV. COA Opinion

The other dozen lucky cases moving to the next round of the appellate process follow the jump.

[Read more →]

An email from the Court this morning has confirmed that there will be no regular order list issued today (Good Friday).

With today’s order list, the Court did not decide any pending cases or set any new cases for argument.

Although there were no decisions handed down in today’s order list, the Court did make some changes to its upcoming oral argument calendar. The Court filled out its April 2 argument calendar and assigned two cases (so far) to its April 22, 2008 calendar, when the Court will be sitting at Texas Tech University in Lubbock.

Now being argued Wednesday April 2, 2008

• City of Waco v. Kelley, No. 07-0485 [granted on 2-15-2008 and discussed here].

  This is the case that garnered so much attention for its colorful dissent, which included a mock letter that began “Dear City of Waco, Sorry to put you through this, but you are going to have to go to the Supreme Court in Austin, again. … Good luck on your trip to Austin.”

  Something just wouldn’t have felt right if that case had been assigned to the Court’s sitting in Lubbock.

• In re Schmitz, No. 07-0581 [granted on 2-15-2008 and discussed here]

Now being argued Tuesday, April 22, 2008 at Texas Tech in Lubbock

• Phillips v. Bramlett, No. 07-0522 [granted on 1-25-2008 and discussed here], which is moving from its current April 2, 2008 argument date to the April 22, 2008 sitting.

• Kerlin v. Concepcion Sauceda, No. 05-0653 [granted on 2-15-2008 and discussed here].

Today, the Texas Supreme Court issued one new decision — a summary application of one of last year’s more divisive insurance cases.

No new petitions were set for oral argument in the April sitting.

• Grimes Constr., Inc. v. Great Am. Lloyds Ins. Co., No. 06-0322. Per Curiam Decision. In this duty-to-defend insurance dispute, the Court held that the outcome of this case was dictated by its previous decision in
  Lamar Homes, Inc. v. Mid-Continent Casualty Co., 242 S.W.3d 1 (Tex. 2007). [Majority Opinion — Dissenting Opinion — Dissent From Denial of Rehearing]

  Lamar Homes was a certified question from the Fifth Circuit asking about how Texas law construed the duty to defend in certain insurance contracts. The Texas Supreme Court divided 6-3 on the question, the majority holding that the insurers did indeed owe the policyholder a contractual duty to defend. The division on the Court lingered through the rehearing stage, with the three dissenting Justices issuing a somewhat rare opinion dissenting to the Court’s denial of rehearing.

  The Court today unanimously applied Lamar Homes to this similar case. Here, a builder sought to invoke his insurance contract’s duty to defend clause against certain claims that involved allegations of bad workmanship. The court of appeals (before Lamar Homes was decided) rejected that argument, relying in part on a distinction between contract-type claims and tort-type claims. The Texas Supreme Court unanimously reversed, explaining that “[W]e rejected similar arguments in Lamar Homes, concluding that labels of tort or contract could not override the language of the insuring agreement. 242 S.W.3d at 13. It remanded the cause to the trial court.

Today, the Texas Supreme Court issued a short order list that included only one opinion — granting the pending motion for rehearing and issuing a new opinion and judgment in El Paso Hospital District v. Texas Health and Human Services Comission.

The order list also denied two other motions for rehearing — Fort Worth Independent School District v. Service Employment Redevelopment, No. 05-0427 (motion for rehearing filed 9-21-2007). and Mid-Century Insurance Co. v. Ademaj, No. 05-0016 (motion for rehearing filed 12-12-2007).

• El Paso Hospital District v. Texas Health and Human Services Commission. The original opinion in El Paso Hospital District had been issued among thirteen decisions on August 31, 2007 — the Court’s traditional burst of opinions just before the end of the fiscal year.

  This case involves a challenge by several hospitals to a deadline set by HHSC for calculating reimbursement rates. The hospitals contended that the deadline was too early and thus prevented certain particularly expensive claims from being included. HHSC disagreed with that assertion and contended that some cutoff was needed to make the system operate smoothly — that the calculation had to, at some point, be final.

  Originally, the Court reversed in part and affirmed in part, concluding that the rules had not been validly enacted but that they should nonetheless be left in effect until the agency had an opportunity to cure them under Texas Government Code §2001.040.

  The revised opinion — like the first, a unanimous opinion of the Court authored by Justice Medina — reverses in full, concluding that the invalid agency rule should be enjoined immediately under Texas Government Code §2001.035.

  The new opinion also removes some language from the original that — although it may not have itself created confusion in the law — had seemed to embrace it.

  The original opinion included these sentences:

  No definitive test exists for determining whether an agency’s statement affects private rights. Although we recognize no bright line rule or single test, one approach is to consider whether an agency’s “statement” (here the cutoff) has a binding effect on a private party. For instance, if the cutoff is merely the agency’s view on an issue as found in letters, guidelines, reports or court briefs, and the statement has no binding effect on a private party, it is likely nothing more than a statement of the agency’s internal policies or procedures. See Brinkley v. Tex. Lottery Comm’n, 986 S.W.2d 764, 769-70 (Tex. App.—Austin 1999, no pet.). However, if the cutoff adopts guidelines, practice requirements, or enforcement policies that will have a binding effect on private parties, it more likely affects private rights. See Tex. Alcoholic Beverage Comm’n v. Amusement & Music Operators of Tex., Inc., 997 S.W.2d 651, 658-59 (Tex. App.—Austin 1999, pet. dism. w.o.j.).

  The revised opinion omits those sentences entirely. It instead simply says that the provision at issue here “directly affect[s] the Hospitals’ right to reimbursement, but was not adopted through proper rule-making procedures.”

This post finishes my coverage of today’s order list. The first part of the coverage — including three other decisions and the three new cases set for argument — can be found in the preceding post.

Today’s fourth, fifth, and sixth decisions

The first two are certified questions from the Fifth Circuit involving questions of Texas insurance law.

• Fairfield Insurance Co. v. Stephens Martin Paving, L.P., No. 04-0728. The Justices in this case agree about the substance of their answer to the certified question. But they divide into three camps about how broad a response the Court should give.

  First, the easy part: All nine Justices agree that Texas public policy does not preclude this liability insurance provider from indemnifying an award for punitive damages based on gross negligence. The Court concluded that the Texas statutes governing the question do not prevent such indemnification agreements.

  The disagreement begins only after that work is done. Although that statutory analysis answered the Fifth Circuit’s question as it applied to the dispute in the pending case, the opinion of the Court (written by Justice Wainwright) provided additional analysis in a Part III titled “Public Policy Considerations.” The Court began by explaining that this part of the opinion was not strictly necessary to the opinion (“Although the Legislature’s expressed direction ends our inquiry in the present case…”) but that a fuller description would help provide guidance because of “the import of this issue.” For that reason, the Court “discuss[ed] some of the considerations relevant to determining whether Texas public policy prohibits insurance coverage of exemplary damages in other contexts in the absence of a clear legislative policy decision.”

  Meanwhile, four Justices, in an opinion authored by Justice Hecht, concurred to add additional analysis — “The Court provides some insight into the relevant considerations, but I would add to them and describe in more detail the way they should be analyzed.”

  Justice Johnson, by contrast, did not join Part III of the majority opinion and instead wrote a separate concurrence to explain why. In his view,

  I consider part III of the opinion to go further than necessary in responding to the certified question presented even in light of Texas Constitution article V, section 3-c. Accordingly, I do not join part III and express neither agreement nor disagreement with its substance.

  If the majority opinion’s characterization of Part III is taken at face value — that it is unnecessary to “our inquiry in the present case” and is instead responsive to “the Fifth Circuit[‘s] … broad inquiry about Texas public policy” about which the Court “hesitate[d] to opine” without having future facts or policy language to examine — it may be interesting to see if future decisions of the Texas Supreme Court treat Part III of this opinion as binding precedent or as helpful dicta. That uncertainty is not to downplay the value of the majority opinion and Justice Hecht’s concurrence for litigants curious how these Justices approach these public-policy questions. But there is some force to Justice Johnson’s point in concurrence. If the Court later treats Part III as binding precedent, that itself could provide guidance to litigants (and perhaps to the Fifth Circuit) about the scope of questions that can be certified to the Texas Supreme Court.

• National Union Fire Insurance Co. v. Crocker, No. 06-0868.

  The Texas Supreme Court answered two questions that had been certified by the Fifth Circuit, concluding that (1) Texas law does not impose an extra-contractual duty on an insurer to notify a possible additional insured that it had coverage and (2) that, under Texas law, an insurer’s actual knowledge that a suit had been filed against an additional insured does not conclusively establish the absence of prejudice to the insurer from the insured’s failure to formally request a defense.

  With regard to that first question, the Court answered that Texas law did not impose such a duty beyond the contract. Instead, any duty falling on the insurer is not triggered until the insured requests a defense.

  With regard to the second question — which asks about whether an insurer can claim be prejudiced by the failure of an insured to give such notice when the insurer has independent, actual knowledge of the underlying suit — the Court distinguished its recent decision in PAJ v. Hanover Insurance Co. (covered here — and to which the author of today’s opinion dissented) by explaining that, “[i]n the pending case, … the additional insured’s notice was not merely late” but had never been given at all.

  The Court went on to explain why an insurer might justifiably believe that the insured’s failure to provide notice might mean that the insured did not want an insurer-provided defense:

  [a]s we have said, the requirement that an additional insured provide notice that it has been served with process is driven by a purpose distinct from the purpose underlying the requirement for notice of a claim or occurrence. Notice of service of process lets the insurer know that the insured is subject to default and expects the insurer to interpose a defense. An insurer cannot necessarily assume that an additional insured who has been served but has not given notice to the insurer is looking to the insurer to provide a defense. Potential insureds, for a variety of reasons, might well opt against seeking a defense from an insurer. For example, an additional insured may opt against invoking coverage because it wants to hire its own counsel and control its own defense. Indeed, Emeritus’s counsel believed that Morris had done just that in this case. Counsel for Emeritus testified that he had asked Morris before his deposition if he could speak to him and Morris “refused on the basis that he was waiting for a call from his attorney. [Emeritus’s counsel] assumed that [Morris] had an attorney and did not want to talk to [Emeritus’s counsel] on that basis.”

  Justice Willett delivered the opinion of the Court.

The sixth decision was the day’s only per curiam decision.

• Chau v. Riddle, No. 07-0035. With a per curiam opinion, the Court reverses a summary judgment in favor of a doctor who had invoked Texas’s “good samaritan” statute and remands the case to the court of appeals to consider the other issues raised in the case.

  The doctor (RIddle) was the on-call anesthesiologist for the labor and delivery suites and, while on shift, administered anesthesia to Chau during her emergency cesarean section. One of Chau’s twins was born not breathing; Riddle was asked to, and did, intubate, and then immediately left the area. When the neonatologist arrived, it was discovered that the intubation had gone down the infant’s esophagus instead of his trachea.

  The doctor invoked Texas’s “good samaritan” statute, which shields medical providers from liability in certain circumstances in which the care goes beyond their normal duties. The court of appeals affirmed a summary judgment on his behalf, citing that statute.

  The Texas Supreme Court reversed, holding that there was a fact question as to whether this doctor was acting within his duties and thus was not shielded by this statute. For that reason, summary judgment on that defense was inappropriate:

  Our application of the statute in this case is consistent with the legislative purpose behind extending the Good Samaritan defense to medical professionals in hospital settings. The statute is intended to increase the incentives for physicians to respond voluntarily to medical emergencies, even if they occur in a hospital. McIntyre, 109 S.W.3d at 745. The exclusions built into the statute ensure that medical professionals are only entitled to the defense if their actions are truly voluntary, not simply part of the professional’s ordinary duties. See Tex. Civ. Prac. & Rem. Code §74.001(b)–(c). As such, this case can be distinguished from McIntyre, where we upheld the doctor’s assertion of the Good Samaritan defense. There, Douglas McIntyre, an obstetrician, was in the hospital visiting one of his patients when he responded to a page over the intercom requesting that a doctor immediately assist with Debra Ramirez’s delivery. Unlike in this case, McIntyre was not part of Ramirez’s labor and delivery team, was not on-call, and was not expected to respond to such an emergency. Instead, he was going about his scheduled appointments when he voluntarily came to another patient’s aid. McIntyre, 109 S.W.3d at 743, 749. In contrast, there is evidence here that it was part of Riddle’s job as the anesthesiologist in the delivery room to intubate a newborn if the circumstances required.

  Given the legislative purpose behind the Good Samaritan defense and the fact that Riddle was part of the labor and delivery team, we cannot agree with the court of appeals’ conclusion that Riddle established his entitlement to the defense as a matter of law.

  The Texas Supreme Court did not resolve the alternate grounds advanced by the doctor for affirming his favorable summary judgment. Those issues were instead remanded to the court of appeals.