Supreme Court of Texas Blog: Legal Issues Before the Texas Supreme Court

Two opinions: Texas’s limits on arbitration clauses in medical contracts struck down; the duty of good faith within oil and gas royalty interests [Mar. 6, 2015]


With today’s orders list, the Supreme Court issued two substantive opinions, two per curiam reversals (applying one of today’s more substantive opinions), and formally accepted […]

With today’s orders list, the Supreme Court issued two substantive opinions, two per curiam reversals (applying one of today’s more substantive opinions), and formally accepted a certified question from the Fifth Circuit about exemplary damages.

The Court granted a request to reschedule oral argument in BCCA APPEAL GROUP, INC. v. CITY OF HOUSTON, TEXAS, No. 13-0768 , which had been set for March 25. The new argument date has not yet been set.


Duties between participants in an oil-and-gas royalty interest

A summary will be added in the next few days

  • A day for certified questions (September 26, 2014)
  • Statute that limits doctors from using arbitration clauses is preempted

    In the past decade, it only seemed that the Texas Supreme Court had already decided every permutation of health-care liability claim and every challenge to an arbitration clause. What happens when one case presents both — a challenge to the Texas law that restricts doctors and other health-care providers who might try to insert arbitration clauses in their contracts?

    The Texas statute is Section 74.451 of the CIvil Practice and Remedies Code, which imposes some strict requirements on any arbitration clause between a health-care provider and a patient. There was no dispute in this case that the defendant nursing home (Fredericksburg) failed to meet those requirements, so if the Texas law applied, the arbitration clause it demanded of patients would be unenforceable. On its side, the Federal Arbitration Act generally preempts state laws such as this one that impose heightened requirements on the validity of arbitration clauses, at least for contracts involving interstate commerce.1

    The wrinkle here is that Congress has generally permitted states, not the federal government, to take the lead in regulating insurance. Within the upside-down world of insurance, the doctrine of federal preemption yields (by virtue of the McCarran-Ferguson Act or "MFA") so that insurance-specific state laws can, in that limited sphere, be supreme over a generally applicable federal law.

    The Texas Supreme Court's opinion focused, therefore, on whether Section 74.451 was a law that fit within the MFA. The question is whether it was a "law enacted by [the] State for the purpose of regulating the business of insurance." 15 U.S.C. §1012(b). If so, it could survive preemption. If not, it would be preempted.

    The bulk of the Court's analysis focuses on legislative "purpose." Looking at the statute as a whole, the Court concluded that its purpose is not direclty related to the relationship between insurance companies and their insureds ("the business of insurance"). The Court acknowledged that one of the broader goals was to lower health-care costs by, among other things, lower premiums for malpractice insurance. But the Court concluded that was too attenuated to satisfy the U.S. Supreme Court's test. (The U.S. Supreme Court has distinguished the "business of insurance" from the "business of insurance companies," which basically asks whether the regulation is about paperwork or profits. If the goal is to reduce an insurer's costs and maybe get a trickle-down reduction in premiums, then it's the latter category and too attenuated.) And even zooming to focus just on Section 74.451, the picture would be the same. That provision says nothing about insurance directly but instead talks about the relationship between doctor and patient.

    Section 74.451 is, the Court held, preempted by the Federal Arbitration Act for any health-care contracts that affect interstate commerce.

    So, does a health-care provider now have to choose between demanding arbitration and the procedural protections they fought so hard for in 2003 (with mandatory expert reports and interlocutory appeals)? Maybe not. With this new hybrid category of arbitration and health-care liabilty appeals, a whole new world of permutations beckons. Who will be the first defendant to wait for the expert report deadline, file an interlocutory appeal challenging its adequacy, and after losing that appeal, demand arbitration — perhaps triggering a second interlocutory appeal?

    1. That may be nearly every defendant of any size, in our era of third-party-payor health care. As the Court explains, even accepting Medicare payments can bring a provider within the bounds of the FAA. 

    The Court also issued short per curiam opinions in two related cases, in each reversing based on today’s opinion in THE FREDERICKSBURG CARE COMPANY, L.P. v. JUANITA PEREZ, VIRGINIA GARCIA, PAUL ZAPATA..., No. 13-0573 :

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    Two opinions, including one about whether limitations bars suing a partner over partnership debts [Feb. 27, 2015]


    With today’s orders list, the Texas Supreme Court issued opinions in two pending cases. It did not select any new cases for oral argument.

    Among […]

    With today’s orders list, the Texas Supreme Court issued opinions in two pending cases. It did not select any new cases for oral argument.

    Among the orders, the Court granted the State’s request to appear as amicus curiae to argue in MIRTA ZORRILLA v. AYPCO CONSTRUCTION II, LLC AND JORGE LUIS MUNOZ, No. 14-0067 , a case about the exemplary damages provisions in Chapter 41.


    Plaintiffs suing a partnership can wait until after judgment to seek recovery from individual partners

    When a plaintiff sues a partnership, must they immediately join the individual partners as defendants or risk having no recourse if the partnership entity turns out to be insolvent?

    The underlying contract claim was brought against the partnership itself and, after about a decade of litigation, resulted in a judgment of liability that exceeded the partnership's own assets. The plaintiffs then turned to the individual partners for satisfaction, under the principle that they are jointly and severally liable for the partnership entity's debts. The partners invoked limitations, arguing that the clock had expired years before when they were not joined in the original action.

    The Court held that limitations did not bar this post-judgment claim by a judgment creditor against individual partners.

    It noted that the plaintiff could have sued the partners at the outset. And it acknowledged the general principle that a claim "accrues" when it could be brought. But, as the Court explained, the structure of this claim warranted a different result. The Court looked to the provisions of the Texas Revised Partnership Act, which makes this kind of liability contingent on there being a judgment entered against the partnership entity and on the entity failing to pay for 90 days. These features, the Court held, made this kind of statutory claim against individual partners more akin to indemnification than more typical tort or contract claims. Thus, the Court held, the claims were not barred by limitations.

    When does this limitations clock start to run? Is it at the time judgment is entered against the partnership, when any appeal of that judgment is complete, or at some other time? This case did not require finely tuning that answer. The Court suggests that the limitations clock actually begins to run only when the judgment can be collected against an individual partner, which might mean 90 days after the judgment can be executed. So, a supersedeas filing may, it appears, have the side effect of extending the limitations period for collection claims against individual partners.

    The Workers' Comp statute precludes courts from addressing causes of action related to claims handling, even if framed as tort or statutory claims

    A claimant for workers' compensation benefits brought a separate lawsuit against the carrier and some of its employees, contending that the way they had handled his claims independently violated tort and statutory duties, for which he sought damages.

    The Division of Workers' Compensation has exclusive jurisiction over the underlying claim for workers' compensation benefits. Does that exclusive grant of jurisdiction extend to these other claims, which might fall outside of its ability to grant relief?

    The Court held that it does. It explained that its previous decision in TEXAS MUTUAL INSURANCE COMPANY v. TIMOTHY J. RUTTIGER, No. 08-0751 established a broad field of preemption for workers compensation, including challenges to the "investigation, handling, and settling" of claims for these benefits. The Court explained that Ruttiger was not to be read narrowly and, thus, that the claims here fell within the agency's exclusive jurisdiction.

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    The Fifth Circuit asks whether Texas’s civil penalty statutes are covered by its limits on exemplary damages


    A federal court has asked the Texas Supreme Court to clarify whether Texas’s statute restricting exemplary damages also limits statutory civil penalties.The federal case is […]

    A federal court has asked the Texas Supreme Court to clarify whether Texas’s statute restricting exemplary damages also limits statutory civil penalties.The federal case is Forrte v. Wal-Mart Stores, Inc., No 12-40854 (5th Cir.). That panel has now withdrawn its prior opinion — which held that Texas’s general statute about exemplary damages (Chapter 41 of the Civil Practice and Remedies Code) barred the recovery of specific statutory penalties under the Texas Optometry Act. The conduct that led to the penalty was Wal-Mart signing optometrists to leases that specified certain hours of operation, in violation of Texas law. The maximum statutory civil penalty for this is $1000 per day, which led to the multimillion-dollar penalty awarded here.1

    The panel has issued a new opinion further explaining the tension it sees in this area of Texas law. The panel’s original opinion had concluded that these statutory civil penalties could not be imposed unless a plaintiff also met the more general requirements of Chapter 41 covering exemplary damages. Here, the plaintiffs did not attempt to show damages flowing from specific injuries but, instead, focused only on civil penalties. The panel originally held that this was barred under Chapter 41, which bars “exemplary damages” disconnected from at least some actual damages.That opinion has now been withdrawn. In its new opinion certifying this question to the Texas Supreme Court, the panel suggests two paths that might lead to the opposite result. First, it speculates that a plaintiff’s claim for civil penalties alone might not be a claim for “damages” that would fit within Chapter 41. Second, it speculates that perhaps statutory civil penalties are not “exemplary damages” within the meaning of Chapter 41.I would expect the Texas Supreme Court to accept the certified questions and hear oral argument this fall.H/T: David Coale’s 600 Camp blog, which also covered the earlier opinion in this case in August: “Civil penalties capped at — zero”.

    1. In a strange symmetry, the lease contract also had a “per day” penalty. An optometrist who failed to adhere to the agreed hours might be subjected, under the lease terms, to $200 per day in liquidated damages. []

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    State of the Texas Judiciary 2015


    On Wednesday, Chief Justice Hecht delivered his first “State of the Judiciary” address to the Texas Legislature. The State Bar has a page on storify […]

    On Wednesday, Chief Justice Hecht delivered his first “State of the Judiciary” address to the Texas Legislature. The State Bar has a page on storify collecting some photos and tweets.

    I wasn’t able to live tweet this year, or even to watch live. But I’ve had a chance to watch the video and wanted to pass along the highlights.

    Statutory interpretation

    The speech began with a subject of occasional tension between the branches: statutory interpretation. (The debate about the role of “text” versus “legislative intent” is a long one, and one that understandably looks different to the legislator whose unspoken intent may not be reflected well in the text.)

    Read more…

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    Eight grants of review for oral argument in March [Feb. 20, 2015]


    With today’s orders list, the Texas Supreme Court granted review in eight cases to be heard in March. It did not issue any opinions.

    The […]

    With today’s orders list, the Texas Supreme Court granted review in eight cases to be heard in March. It did not issue any opinions.

    The first two petitions on this grant list have the added distinction of being grants of rehearing. The Court originally denied both on October 3, 2014. Today’s orders reinstate them and set them for argument.

    Details about each case will appear in this blog post as they are added to my system.

    Grants of Review and Rehearing


    Set to be argued on March 24, 2015



    Chosen for future argument by order issued February 20, 2015


    Set to be argued on March 26, 2015


    Set to be argued on March 26, 2015


    Set to be argued on March 26, 2015

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    Texas Supreme Court issues temporary order stopping same-sex marriage licenses in Austin


    Some detail added on Thursday evening.

    This week, two state judges in Travis County have issued orders indicating that Texas’s ban on same-sex marriage is unconstitutional, […]

    Some detail added on Thursday evening.

    This week, two state judges in Travis County have issued orders indicating that Texas’s ban on same-sex marriage is unconstitutional, culminating in an order that permitted one license to be issued. (Here’s some collected coverage from KUT, our local NPR station.)

    As that news story was blanketing local media this morning, the Texas attorney general was filing papers with the Texas Supreme Court requesting a stay of these Travis County rulings. The State’s motion was filed at 11:02am and asked the Court to issue immediate relief; I’ve uploaded a copy of the State’s motion. The Court issued a stay this afternoon, an order that the orders list document describes as granting the relief the AG has requested “in part.” Although the full text of the stay order is not (as I write this) yet on the Court’s website, you can get a sense of what “in part” means from the State’s request. The State requested the Court to stay both the temporary restraining order below and “all further state trial proceedings that seek to resolve the issues” of same-sex marriage or divorce. When we do see the order, I’d expect a formal stay of the order in this case but for the Court to stop short of actually “staying” other trial proceedings, some of which might not yet have been filed. [Update: Yes, here’s the stay order. It covers the specific restraining order below and does not mention other proceedings.]

    There was speculation this afternoon about whether the marriage license already issued is valid. Chuck Lindell of the Statesman summarizes the AG’s press release about the stay, which suggests it is not:

    My understanding, having now read the State’s motion for emergency relief, is that the AG has not yet requested a ruling on that question. (The State’s formal “petition,” which is not yet online, might request broader relief.)

    As a legal matter, this subtlety about whether the license was “void”, or merely issued in error, has implications for whether it can be challenged after-the-fact, and perhaps by whom. That same question is deeply entangled with the AG’s attempt to intervene in a 2010 case in which a different Travis County judge issued a same-sex divorce decree. That set of appeals is still pending; the State argues in its filings today that the Court should freeze these new Travis County orders at least until that prior appeal is disposed.

    Those merits decisions have been slowed down by, presumably, the Texas Supreme Court waiting on some relevant US Supreme Court cases to first be resolved. (The three petitions are among the oldest pending cases at the Court.) With the US Supreme Court now expected to issue its next ruling on same-sex marriage by the end of June, I would expect the Texas Supreme Court to wait to see the outcome before deciding this issue with finality. We may, or may not, from the Fifth Circuit in the meantime.


    Because the State is challenging two distinct orders, there are two docket numbers in the Court.

    • IN RE STATE OF TEXAS, No. 15-0135 : On Tuesday, the State filed a petition asking the Court to stay the first, more general order from a Travis County judge declaring Texas’s ban on same-sex marriages to be facially unconstitutional. Today, the Supreme Court granted that requested stay in full.

    • IN RE STATE OF TEXAS, No. 15-0139 : The second petition was filed Thursday morning, about two hours after a Travis County court issued a restraining order demanding the county clerk issue one specific marriage license. The Texas Supreme Court granted the stay request only “in part.” You can read the State’s motion for emergency relief to get a sense of the issues. As a bonus, that motion attaches most of the trial court filings from earlier today. I’ll post the text of the stay order when available.

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    Admissibility of seat-belt evidence in accident cases; Insurance coverage for the BP oil spill [Feb. 13, 2015]


    With today’s orders list, the Texas Supreme Court issued opinions in two cases. It did not choose any new cases for review.

    Opinions Evidence about seat-belt use […]

    With today’s orders list, the Texas Supreme Court issued opinions in two cases. It did not choose any new cases for review.


    Evidence about seat-belt use is now admissible in auto accident cases

    In 1974, the Court ruled that evidence about whether a car’s occupant was wearing a seat belt was not admissible in an auto-accident case. Carnation Co. v. Wong, 516 S.W.2d 116 (Tex. 1974). Today, the Court overrules that decision.

    It explained that the legal background motivating that rule had changed. First, Texas no longer has a contributory-negligence system, under which a plaintiff could be absolutely barred from recovery if they were even the slightest degree negligent. It now has a system of comparative negligence, with a plaintiff’s recovery merely reduced by the percentage of their own fault — unless that fault exceed 50%.1

    Second, the Court noted that mandatory seat-belt laws began, and became more strict, after its 1974 ruling. Given that change, the Court referred to its prior holding as “a vestige of a bygone legal system and an oddity in light of modern societal norms.”

    The Court rejected the argument that intervening statutes had, implicitly through silence, approved the blanket rule against the admission of seatbelt evidence. In 1985, while approving Texas’s first mandatory-seatbelt law, the Legislature had passed a prohibition on the admission of evidence about seatbelt use that was even broader than the Court’s. But in 2003, the Legislature repealed that provision while making other changes. The Court saw this repeal — without adding other language about the seat-belt question — as the Legislature choosing for its part to be silent. Thus, the Court rejected the argument that the Legislature had weighed in either way.

    The Court holds that normal rules of evidence should apply, leaving the details to be sorted out in the usual way:

    Today’s holding opens the door to a category of evidence that has never been part of our negligence cases, but we need not lay down a treatise on how and when such evidence should be admitted. Seat-belt evidence has been unique only in that it has been categorically prohibited in negligence cases. With that prohibition lifted, our rules of evidence include everything necessary to handle the admissibility of seat-belt evidence. As with any evidence, seat-belt evidence is admissible only if it is relevant. … The defendant can establish the relevance of seat-belt nonuse only with evidence that nonuse caused or contributed to cause the plaintiff’s injuries. And the trial court should first consider this evidence, for the purpose of making its relevance determination, outside the presence of the jury. … Expert testimony will often be required to establish relevance, but we decline to say it will be required in all cases. And, of course, like any other evidence, even relevant seat-belt evidence is subject to objection and exclusion under Rule 403.

    The Court also considered how this should be handled for children who are not wearing seat belts, concluding that it can be proper for a jury to consider both whether an adult in the car bears some responsibility for that injury, as well as whether the child was acting as would an “ordinarily prudent child of [the same] age, intelligence, experience and capacity.”

    And the Court addressed whether the jury should be asked who caused the accident (what the Court calls “occurrence-causing conduct) and then asked separately who caused each person’s injury (“injury-causing conduct”). The Court said no, that both kinds of fault should be folded into a single apportionment question. “There is nothing about injury-causing conduct that renders it incompatible with being considered alongside occurrence-causing conduct in one responsibility apportionment for the harm suffered by the plaintiff.”

    1. The facts involve a collision in which multiple passengers were ejected from a car, including children, and there is conflicting evidence about which adults or children were wearing seatbelts. Even without hearing evidence of seat-belt use, the jury assessed fault for the accident as being 51% to the trucking company and 49% to the family-car driver. Even with the reduction, the family’s award here was $2.3 million. 

    BP does not have insurance coverage as an "additional insured" under the policy purchased by Transocean

    In 2010, a drilling rig owned by Transocean and developed by BP exploded in the Gulf of Mexico, leading to months of subsurface oil leakage, damage to coastal communities and industries, and other serious claims. In the parties’ drilling contract, Transocean was to be responsible for above-surface pollution risks while BP was to be responsible for subsurface pollution risks. Another provision of the contract required Transocean to provide "additional insured" protection to BP.

    BP sued over the scope of this "additional insured" coverage, arguing that Transocean’s insurers must cover BP’s losses, regardless whether the specific cause was above or below the surface.

    The Fifth Circuit originally ruled in favor of BP, concluding that the insurance policy itself did not limit the scope of coverage afforded to BP and that, under EVANSTON INSURANCE COMPANY v. ATOFINA PETROCHEMICALS, INC., No. 03-0647, it should not look beyond the text of that document to find a limitation to coverage. On rehearing, however, the Fifth Circuit withdrew its opinion and chose to certify this question to the Texas Supreme Court to authoritatively address two questions under Texas law:

    1. Does ATOFINA compel a finding that BP is covered for these damages?

    2. Does the doctrine of contra proferentem (that is, construing a contract against the person who drafted it) apply even in a sophisticated commercial context?

    The Texas Supreme Court reached the opposite result, basing its decision on a less restrictive reading of ATOFINA, one that is compatible with the idea that an insurance policy can effectively “incorporate” another document needed to understand its scope:

    Texas law has long allowed insurance policies to incorporate other documents by reference, and policy language dictates the extent to which another document is so incorporated. The policies here provide additional-insured coverage automatically where required and as obligated by written contract in which an insured has agreed to assume the tort liability of another party. Because BP is not named as an insured in the Transocean policies or any certificates of insurance, the insurance policies direct us to the additional-insured provision in the Drilling Contract to determine the existence and scope of coverage. Applying the only reasonable construction of that provision, we conclude that, as it pertains to the damages at issue, BP is an additional insured under the Transocean policies only to the extent of the liability Transocean assumed for above-surface pollution.

    Having concluded that BP is covered by Transocean’s policies only to the extent that the drilling contract required, the Court answered the first question no, that there is no coverage.

    The Court did not reach the second question about the contra preferentum doctrine because that rule applies only to ambiguous text, and it saw no ambiguity here.

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    Four opinions, no grants [Feb. 6, 2015]


    With today’s orders list, the Court issued signed opinions in two cases, issued two per curiams, and did not grant any new cases for review.

    Lack […]

    With today’s orders list, the Court issued signed opinions in two cases, issued two per curiams, and did not grant any new cases for review.

    Lack of consent is part of the definition of trespass, not an affirmative defense

    A farming company (FPL) got into a dispute with an environmental-wastewater company (EPS) that was injecting wastewater into the deep subsurface where it, allegedly, ended up beneath FPL's property. The farming company sued the enviornmental-wastewater company for trespass, that trespass taking place in the deep subsurface water table beneath its land.

    If that scenario sounds familiar, it may be because this case is making its second visit to the Texas Supreme Court. In 2011

    This case is making its second visit to the Supreme Court. The first time, the court of appeals held that the farming company could not sue for trespass because the State regulator had issued a permit. The Texas Supreme Court reversed, holding that the permit was not a bar to civil liability. FPL FARMING LTD. v. ENVIRONMENTAL PROCESSING SYSTEMS, L.C., No. 09-1010

    On remand, the court of appeals ruled that the farming company should get a new trial. Part of its reasoning was that the jury charge was defective because it required the plaintiff farming company to prove a lack of consent to recover for trespass. In the court of appeals’s holding, that was an affirmative defense on which the defendant should have had the burden to establish the presence of consent.

    With this opinion, the Texas Supreme Court disagreed. It surveyed a line of its own cases, going back to the days of the Republic, which described consent as part of the definition of trespass itself. Responding to FPL’s citation to some courts of appeals that used the term “affirmative defense” to describe the question of consent, the Court suggested that may have been discussing just the general concept that a defendant who did prove consent would defeat the claim, no matter whose burden of proof it actually way. As such, those courts may have “perhaps hastily used the term ‘affirmative defense’ to describe this proposition.” (The Court also notes that “[t]here is no pattern jury charge for a trespass to real property cause of action in Texas.” One suspects that might change.)

    Having held that a plaintiff in a trespass claim does bear the burden to prove the lack of consent, the Court concluded that the jury charge here was not erroneous. Because this part of the Court’s decision was sufficient for the defendant to prevail, and because the Court was rendering judgment rather than sending the case back for a new trial, the Court saw no need in this case to reach the broader question of whether Texas law imposes a duty on a landowner to avoid causing this kind of “deep subsurface wastewater migration” beneath neighboring land.

    Making a UDJA claim to stave off foreclosure can subject you to paying the lender’s attorney’s fees

    When Wells Fargo began a foreclosure process on a home-equity loan, this homeowner fought by back filing what the Court calls a “separate and original proceeding” (a phrase that will come into play in its reasoning). In that separate suit, the homeowners sought injunctive relief, asserted fraud claims, and sought relief under the UDJA. Wells Fargo, in response, sought its own declaration and asked for attorney’s fees under the UDJA.

    The trial court ultimately ruled for Wells Fargo and awarded it attorney’s fees under the UDJA. The homeowners appealed, arguing that Wells Fargo did not assert a valid declaratory claim. The court of appeals agreed — but to strike down the fees, it had to go a step further. Either side can recover under the UDJA, so to reverse the award, the court of appeals also had to determine whether the homeowners had a valid UDJA claim. It concluded that neither side had a valid UDJA claim and, thus, that there was no basis for a fee award.

    The Supreme Court reversed. On the procedural question, it ruled that the homeowners' challenge to the award was fatally incomplete. Because they had not challenged whether his own UDJA claim was valid, the court of appeals could not reach that question sua sponte. And, thus, the basis for the court of appeals’s ruling was invalid.

    That led to a constitutional question: Can a lender recover attorney’s fees in this situation, consistent with Texas’s constitutional provisions about home-equity lending?

    The Court held that the key was that this was a “separate and original proceeding.” Rather than defending the lender’s original suit (in which, the Court suggests, no fees would have been available), the homeowners filed this separate proceeding.

    Objecting to a trial court’s pretrial sanction order can preserve error against an eventual spoliation instruction

    This is a negligent-spoliation case. After a contested hearing before trial, the district court ordered that a spoliation instruction would be given to the jury. When it came time to approve the jury charge, however, the defendant did not renew this objection. The court of appeals held that this waived any complaint about spoliation.

    The Supreme Court disagreed. It held that the objections made before trial were clear enough, and clearly enough ruled upon, that the question of whether some spoliation question was proper had been adequately preserved. (It noted that there was no challenge here to the precise wording of the instruction, a challenge that might have required a different type of objection or ruling.)

    Moving a police car to point its headlights into oncoming traffic is a “use” of property for which immunity is waived

    The plaintiff contends that a car accident was caused by the headlights of a police car, which was at the time being moved and was facing oncoming traffic. The County invoked sovereign immunity. The question on appeal is whether this situation withs within the “use of property” exception in the Texas Tort Claims Act.

    The Supreme Court held that it does fit the exception and, thus, that a waiver of sovereign immunity had been pleaded. The key fact turned out to be that, in this case, the police car was being operated (“relocat[ed]”) at the time of the accident.

    The County argued that an accident caused by headlights alone could not fit within the waiver, citing a Houston case from 2007 in which that court found immunity against an accident claimed to have been caused by a parked police car with its emergency lights activated. Texas DPS v. Grisham, 232 S.W.3d 822 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The driver in that case claimed the accident was caused by the fact that they had to change lanes to comply with state law. That court of appeals, however, held that the police car in question was not in “use” merely by virtue of being parked with its emergency lights on.

    In this case, the Supreme Court was expressly careful not to either approve or disapprove the holding of Grisham. (“Although we express no opinion as to the substance of the Grisham panel’s analysis, we decline to follow its reasoning here.”). That may be a question for another day.

    To decide this case, the Supreme Court chose merely to distinguish Grisham, noting that the police car here was unquestioningly being operated at the time. This was not a parked car, it was a car in motion.

    The Court also rejected the County’s argument that the accident was caused by the “illegal conduct” of the driver, an illegality based on the Transportation Code requirement to change lanes or reduce speed when approaching a parked emergency vehicle. This car, it noted, was not parked. And the ultimate effect of such a finding would, the Court noted, be merely to reduce proportionate responsibility; there is not a general bar to suit based on “illegal conduct.”

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