Apr 20, 2016
The Texas Supreme Court issued two rulings on April 15, 2016 that favored parties seeking attorney fees. In Sullivan v. Abraham, a First Amendment case, the Court examined the criteria for the award of attorneys’ fees under Texas’ anti-SLAPP law (“strategic lawsuit against public participation”), which requires mandatory awards of reasonable attorney fees and does not allow a court to reduce the amount for equity and justice. The case is significant because the Texas Supreme Court takes great effort interpreting the statute authorizing attorneys’ fees. This opinion is a primer on the importance of language, grammar, and punctuation when considering a statute. Applying these rules, the Court ruled that the law’s language and punctuation mean reasonable attorney fees are awarded to the winner of a motion to dismiss without consideration of factors such as justice and equity.
In Wheelabrator Air Pollution Control v. City of San Antonio, the Texas Supreme Court found that a city does not have governmental immunity from an attorney fee claim dealing with the activities of a city-owned public utility company. Immunity would apply if the case arose from the city’s governmental function, but not if it arose from the city’s proprietary function. The Texas Supreme Court has distinguished between those functions and acts performed as a branch of the state, and those performed in a proprietary, non-governmental capacity. Under Texas law, a governmental act or function are those things done as a branch of the state—such as when a city exercises powers conferred on it for purposes essentially public pertaining to the administration of general laws made to enforce the general policy of the state. An example would be “garbage and solid waste removal, collection and disposal.” Proprietary functions are those functions performed by a city, in its discretion, primarily for the benefit of those within the corporate limits of the municipality. The operation of a public utility by the city was found to be proprietary under Texas law and did not give the city immunity.
By Douglas R. Hafer
Business Trial Lawyer | Curnutt & Hafer, LLP
Sep 17, 2015
Last month, firm partner Kelly Curnutt was appointed Interim President and CEO of the Arlington Chamber of Commerce. While he reiterated the position is only temporary, and that he also continues to represent clients of the firm, Mr. Curnutt is motivated about the new position: “I was pleased to accept the Board’s request to step in as Interim President and CEO of our Chamber. Like everyone in the Chamber, I love and am committed to Arlington’s future and success. As a product and proud alumnus of the Arlington ISD and UTA, I am blessed along with my wife to have grown up in Arlington, raised our families here, and worked and built our businesses here. For these reasons, I am committed to pursue the success of the Chamber, and in turn our city’s success through the Chamber.”
Sep 4, 2015
Curnutt & Hafer, LLP is proud to announce that Senior Associate Attorney Logan Simmons was recently hired by the Second Court of Appeals in Fort Worth, Texas. He will work as Staff Attorney for Justice Sue Walker. The firm will miss Logan but knows that he will serve the Court and the State of Texas well in his new role. 
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.
