Texas Supreme Court Argument Preview - 9/2/15

Posted by Rich PhillipsOn Tuesday, September 2, 2015, the Supreme Court of Texas is scheduled to hear argument in three cases:No. 13-0499, In re RSR Corp. – This mandamus proceeding seeks review of the trial court’s decision to disqualify relator’s counsel. The trial court found (and the court of appeals agreed) that the relator’s counsel should be disqualified because it engaged in ex parte contact with a former employee of the real party in interest who was involved in litigation-related activities while still employed by the real party in interest. The primary issue is what standard should apply to determine whether disqualification is appropriate. A secondary issue is whether the real party in interest waived its argument that the standard in In re American Home Products Corp., 985 S.W.2d 68 (Tex. 1998) by waiting too long to cite the case to the special master appointed by the trial courtNo. 13-0768, BCCA Appeal Group Inc. v. City of Houston – This appeal arises from a suit seeking a declaration that the City’s clean air ordinance is unconstitutional. The BCCA Appeal Group argues that the ordinance is preempted by the Texas Clean Air Act and that it violates the non-delegation doctrine. 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? and (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?