Aug 28, 2015
In King v. Burwell, the Supreme Court upheld a provision of the Affordable Care Act making subsidies available for all, whether they used a state or federal exchange. The ruling also affirms the mandate that employers may be subject to potential penalties with respect to the granting of subsidies or tax credits. But, did the court correctly interpret the statute?
At issue was the phrase: “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act.” The question was whether these words meant taxpayers would receive a credit only if they used an exchange set up by an individual state or did the statute also include Federal exchanges.
There are well known and established rules used in reading statutes and contracts. Typically when interpreting the wording of a contract or statute, there are five canons to keep in mind. The first and most obvious interpretation canon is the ordinary-meaning canon that dictates words are to be understood in their ordinary, everyday meanings unless the context indicates that they bear a technical sense. There is also the negative-implication canon that is the expression of one thing implies the exclusion of others.
Also, statutes can be interpreted through the last-antecedent canon,meaning a pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent. An important principle is thesurplusage canon which means if possible, every word and every provision is to be given effect. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence. Lastly, there is the associated-word canon which simply means words bear on one another’s meaning.
These canons are important because they provide predictability as to how what was drafted will be interpreted. Now, with these canons in your statutory interpretation arsenal, you can be the judge as to whether the Supreme Court correctly interpreted the Obamacare statute.
Aug 28, 2015
Millions of Texans are bicycle enthusiasts, and it is hard for them to find places to ride safely. Unfortunately every year, hundreds of bicyclists are injured or killed while riding on Texas’s streets and highways. Positive changes to the law may be on the way for Texas’s bicyclists during the 85th legislative session.
There were several proposals in the 84th legislative session focused on bicycle riders’ safety. that were particularly interesting. House Bill 2459 would give bicyclists more room when a vehicle passes, and provides a criminal sanction against drivers who don’t give bicyclists the proper amount of room. House Bill 471 would require nighttime riders to have lamps on their bikes that shine a steady or flashing light, and House Bill 80 would ban texting while driving throughout the state (a distracted driver is even more dangerous to a bicyclist). By the end of the 84th legislative session, all three of these bills passed a House vote. The Bills were passed to the Senate Committee where were left pending.
It will be interesting to see if the proposals in House Bills 2459, 471, and 80 are brought up again during the 85th legislative session. It will also be interesting to watch whether new proposals are introduced to change Texas’s laws regarding bicyclists’ safety.
In the meantime, I hope all motorists are aware of people on bikes. We are all busy, but getting somewhere just a little faster is not worth the serious injury or death of a fellow Texan. For those on bikes, please always wear a helmet while riding, and wear bright colored clothing to make you more visible to traffic. Be sure also to have plenty of reflective material on you and your bicycle.
Aug 28, 2015
The Texas Supreme Court recently handed down a decision, In re Deepwater Horizon, which illustrated dangerous holes that companies should actively seek to avoid regarding indemnity and insurance provisions.
In the Deepwater decision, BP was left with a lot of unintended liability for a rig explosion in the Gulf of Mexico. BP was an additional insured under a company’s insurance policy, Transocean, who BP contracted with to perform drilling in the Gulf. Under the contract, Transocean’s indemnity obligations to BP included above-surface pollution releases, but BP remained liable for subsurface releases. Under the contract’s insurance provisions, BP was to be named as an additional insured on Transocean’s policy only for liabilities assumed by the company in the contract. The companies’ contract, however, was not constructed favorably. While BP was listed as an additional insured under Transocean’s insurance policy, BP was not covered by the contract.
The court viewed Transocean’s insurance policy and Transocean’s contract with BP holistically and did not restrict its analysis to the four corners of the documents. Transocean’s policy connected the additional insured coverage to the indemnities assumed by Transocean in the contract with BP. The contract with BP’s wording restricted the scope of BP’s additional insured status under the insurance policy to above-surface releases. BP sought coverage for a subsurface release that was not included in the liabilities assumed section of Transocean’s indemnity obligations to BP in the drilling contract. Therefore, Transocean was not obligated to provide coverage for BP because it was a subsurface release. Because Transocean was not obligated to provide coverage for BP, under Transocean’s insurance policy, BP was not an additional insured for this event.
The decision in Deepwater shows the potential pitfalls for companies. A company can take several steps to avoid these pitfalls. Companies must be mindful of their insurance policies’ and contracts’ construction, and it may need to seek counsel and not take an insurance broker’s word on what policies mean. Companies must remain vigilant in their search for unequal obligations in service contracts and insurance policies. Insurance policies and contracts should be read carefully in conjunction to avoid differences so that companies are not left unprotected.
Aug 28, 2015
On May 18, 2015, Governor Greg Abbott signed into law House Bill 40, which pre-empts regulation of oil and gas activity at the municipal and local levels, and places that duty and power with the State. In addition, the newly enacted law requires that any local regulation of surface activity be “commercially reasonable,” and not effectively prohibit an oil and gas operation. The law defines commercially reasonable as “a condition that would allow a reasonably prudent operator to fully, effectively, and economically exploit, develop, produce, process, and transport oil and gas.”
HB 40 helps bring uniformity to oil & gas regulation. In praising the bill, Governor Abbott said “HB 40 does a profound job of helping to protect private property rights here in the state of Texas, ensuring those who own their own property will not have the heavy hand of local regulation deprive them of their rights. This law ensures that Texas avoids a patchwork quilt of regulations that differ from region to region, differ from county to county or city to city”.
HB 40 does preserve some local oversight, however. In this regard, the bill allows cities to retain their setback authority, and have some say over surface activities. The authority exercisable at the local level will be set forth in section 81.0523 of the Natural Resources Code.
In total, HB 40 offers regulatory certainty for the oil & gas industry, and appears to strike a balance between private mineral rights and local self-government. Despite its benefits, not all are happy with HB 40, as the new law prohibits enforcement of “fracking ban” laws that were passed by some local governments. The new law takes effect immediately.
Aug 15, 2014
The Texas Supreme Court recently handed down its long-awaited decision concerning the spoliation of evidence in Brookshire Brothers, Ltd. v. Jerry Aldridge, 2014 Tex. LEXIS 562 (Tex. 2014). Spoliation concerns the improper destruction of evidence, proof of which may give rise to a presumption that the missing evidence was unfavorable to the spoliator.
The underlying facts of the Aldridge case involve a slip-and-fall at a Brookshire Brothers grocery store. Id. at *5-6. The fall was recorded by a surveillance camera that recorded video in a continuous loop which, after thirty days, recorded over itself. Id. at *6. After the customer reported his injury to the grocery store, the grocery store decided to retain and copy approximately eight minutes of the video, beginning just before the customer entered the store, and ending shortly after the fall. Id at *7. The remainder of the video from that day was later recorded over pursuant to the grocery store’s retention policy. Id.
The slip-and-fall claimant asked the trial court to submit a spoliation instruction to the jury, arguing that Brookshire Brothers’ failure to preserve the additional video footage from the day of the fall amounted to spoliation of evidence. Id. at *9. Namely, he argued that such evidence would have been helpful to determining the key issue of whether the spill was on the floor long enough to give Brookshire Brothers a reasonable opportunity to discover it. Id. The trial court agreed, and submitted a spoliation instruction to the jury stating that if they found that spoliation had occurred, they could consider such spoliated evidence to have been unfavorable to Brookshire Brothers. Id. at *10-11.
On appeal, the Texas Supreme Court found that the trial court abused its discretion in submitting the spoliation instruction. Id. at *48. The Court held that “a party must intentionally spoliate evidence in order for a spoliation instruction to constitute an appropriate remedy.” Id. at *32. Here, the Court did not find any intentional destruction of evidence; rather, the evidence was simply destroyed pursuant to Brookshire Brothers’ retention policy. Id. at *44-46. Notably, the Court crafted a “narrow exception” for situations in which “a party’s negligent breach of its duty to reasonably preserve evidence irreparably prevents the nonspoliating party from having any meaningful opportunity to present a claim or defense.” Id. at *38.
Aldridge is a big win for Texas businesses and the Texas defense bar. As noted in the Aldridge dissent, the Court’s holding “potentially provides future litigants with a blueprint for successfully shielding themselves from spoliation liability: simply establish a document retention policy with a limited duration.” Id. at *78. It will be interesting to see how Texas courts handle spoliation issues in light of Aldridge, and it will particularly be interesting to see whether the “narrow exception” carved out for negligent destruction of evidence stays narrow, or is broadened.
Curnutt & Hafer, L.L.P. is an AV-rated law firm that concentrates its practice in civil trial law, with an emphasis on business and commercial litigation, oil and gas litigation, and select personal injury and wrongful death matters. The firm is located in Arlington, Texas-the heart of the Dallas-Fort Worth, Texas Metroplex-and provides legal services for a wide variety of clients, including Fortune 500 companies, small businesses, and former executives and partners.
Jan 23, 2014
Adverse possession refers to a process through which a person can gain legal title to real property belonging to another by possessing it for a certain length of time. While this doctrine may seem harsh at first glance (it essentially allows property to be taken away from the rightful owner), courts have justified the doctrine by noting that it encourages the efficient use of scarce resources and awards property rights to those who value it most. Typical situations involving adverse possession include property that has been fenced in by a neighbor, and property that has been abandoned for years.
The statutes governing adverse possession are found in Chapter 16 of the Texas Civil Practice & Remedies Code. Those statutes define adverse possession as “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.” Thus, to prove a claim for adverse possession, a claimant must establish: (1) actual possession of property; (2) that is open and notorious; (3) that is peaceable; (4) under a claim of right; (5) that is adverse or hostile to the claim of the owner; and (6) consistent and continuous for the duration of the statutory period.
Cases involving adverse possession often hinge on whether the possession is “open and notorious” and “hostile to the claim of the owner.” “Open and notorious” means that the adverse possessor must visibly appropriate the property as to give notice to others that they claim a right to the property. This can be done by filing an affidavit in the county real property records setting forth the specific basis of adverse possession. It can also be accomplished by fencing the property or making other noticeable improvements that give notice of adverse possession (e.g., building a garage or driveway over the property). “Hostility” requires that the possession must be to the exclusion of all others. In this regard, shared possession of the property with the owner is insufficient to establish adverse possession. Likewise, possessing land at the permission of the owner does not establish adverse possession.
Perhaps the most important element in establishing a claim of adverse possession is whether possession has been consistent and continuous for the duration of the statutory period. The statutory periods for establishing a claim for adverse possession depend upon the circumstances of the claim. The three most common statutory periods involving adverse possession (the three-year statute, the five-year statute, and the ten-year statute) are discussed below. Keep in mind that possession must be continuous for the entire statutory period. Intermittent possession is insufficient.
The Three-Year Statute – Tex. Civ. Prac. & Rem. Code § 16.024 establishes a three-year statute of limitations for bringing suit against an adverse possessor who is possessing the property under title or color of title. This refers to a possessor who has some instrument purporting to convey title, but that in actuality does not convey title.
The Five-Year Statute – Tex. Civ. Prac. & Rem. Code § 16.024 establishes a five-year statute of limitations for brining suit against an adverse possessor who: (1) cultivates, enjoys, or uses the property; (2) pays taxes on the property; and (3) claims the property under a registered deed.
The Ten-Year Statute – Tex. Civ. Prac. & Rem. Code § 16.025, also known as the “catch-all” or “bare possession” statute, establishes a ten-year statute of limitations for brining suit against an adverse possessor who cultivates, uses, or enjoys the land. Unlike the three and five-year statutes, the ten-year statute does not require a written instrument purporting to convey title.
Owners faced with a situation where someone is trying to adversely possess their property have several remedies at their disposal. One remedy is to peaceably remove the possessor from their property. Another remedy is to file an affidavit in the county real property records disputing the adverse possessor’s claim. Of course, the owner may also need to file suit against the adverse possessor. For their part, adverse possessors often need to file suit to gain title by way of adverse possession.
The attorneys at Curnutt & Hafer, L.L.P. have experience in dealing with adverse possession claims, having represented both adverse possession claimants as well as owners opposing adverse possession. Please contact us at (817) 548-1000 to set up an initial consultation.
*Disclaimer – This article is provided for general information purposes only and is not offered as legal advice upon which anyone may rely. Consulting a lawyer relating to your individual needs is advisable before taking any action that has legal consequences. Curnutt & Hafer, L.L.P. does not represent you unless and until it has been retained and has agreed in writing to represent you.
