With today’s orders list, the Texas Supreme Court chose two new cases for oral argument — one direct appeal and one certified question.

Direct appeal challenging the constitutionality of the margins tax

IN RE NESTLE USA, INC., No. 12-0518

Set to be argued on September 18, 2012

I wrote a little about this case last month in “Nestle II: Revisiting the Texas business-margins tax”. As anticipated, the Court chose an argument date outside of its regular schedule to accommodate the Legislature’s short 120-day deadline for this class of cases.

This oral argument has been set for September 18, 2012 — a day previously marked as an internal conference.

Certified question about construction insurance


Set to be argued on February 27, 2013

These questions come from the Fifth Circuit, which had previously reached a deeply divided 2-1 panel decision. The panel disagreed, in part, about what Texas law would provide about this insurance question. You can read about that earlier opinion over at 600camp.

On rehearing, the Fifth Circuit panel decided to withdraw its previous opinion and instead certified the following two questions to the Texas Supreme Court for an authoritative answer about Texas law:

  1. Does a general contractor that enters into a contract in which it agrees to perform its construction work in a good and workmanlike manner, without more specific provisions enlarging this obligation, “assume liability” for damages arising out of the contractor’s defective work so as to trigger the Contractual Liability Exclusion.

  2. If the answer to question one is “Yes” and the contractual liability exclusion is triggered, do the allegations in the underlying lawsuit alleging that the contractor violated its common law duty to perform the contract in a careful, workmanlike, and non-negligent manner fall within the exception to the contractual liability exclusion for “liability that would exist in the absence of contract.”

This is the second recent certified question from the Fifth Circuit, joining a recent set of questions about at-will employment status.