Texas Supreme Court Orders (9/26/14)

The Texas Supreme Court did not issue any opinions in its weekly orders. But the Court did accept a case on a certified question from the United States Court of Appeals for the Fifth Circuit. The Court also set the date for oral argument in another certified-question case that the Court had previously accepted. You can see the entire order list here.The Court set oral argument in No. 14-0216, Austin v. Kroger Texas, L.P. Our summary of the issues in the case is here.The Court accepted the certified question in No. 14–0753, U.S. Metals, Inc. v. Liberty Mutual Group, Inc. This is an insurance coverage case involving the construction of two exclusions in a commercial general liability policy. The Fifth Circuit certified four questions:1. In the “your product” and “impaired property” exclusions, are the terms “physical injury” and/or “replacement” ambiguous?2. If yes as to either, are the aforementioned interpretations offered by the insured reasonable and thus, must be applied pursuant to Texas law?3. If the above question 1 is answered in the negative as to “physical injury,” does “physical injury” occur to the third party’s product that is irreversibly attached to the insured’s product at the moment of incorporation of the insured’s defective product or does “physical injury” only occur to the third party’s product when there is an alteration in the color, shape, or appearance of the third party’s product due to the insured’s defective product that is irreversibly attached?4. If the above question 1 is answered in the negative as to “replacement,” does “replacement” of the insured’s defective product irreversibly attached to a third party’s product include the removal or destruction of the third party’s product?No date for oral argument has been set.Finally, apropos of this post about word limits, the Court granted a motion to exceed the word limits in a motion for rehearing in No. 12-0772, Zachry Construction Corp. v. Port of Houston Authority of Harris County, Texas. Our coverage of the opinion in this case is here.- Rich Phillips, Thompson & Knight