Texas Supreme Court opinions (6/12/15) -- Part 2

Posted by Scott Stolley, Thompson & Knight  In its weekly orders for 6/12/15, the Texas Supreme Court issued ten opinions and granted review in four cases. In a post linked here, Rich Phillips summarized four of the opinions and the four grants. In this post, I will summarize the other six opinions. Click here to read the order list and access all of the opinions.No. 11-0481, Atkins N. Am., Inc. v. CCE, Inc. —  A road contractor sued the design engineer for extra costs the contractor incurred due to allegedly faulty design plans. The contractor lost on summary judgment as to three causes of action, on the ground that the economic-loss rule barred the claims. But in its summary-judgment motion, the engineering firm did not argue the economic-loss rule as to a negligent-misrepresentation claim. The Supreme Court ruled that whether the economic-loss rule barred the negligent-misrepresentation claim would be best addressed by the trial court on remand.No. 13-0303, Harris Cnty. Flood Control Dist. v. Kerr — In this inverse-condemnation case, over 400 plaintiffs blame Harris County and the flood control district for approving new development without mitigating resulting runoff and drainage issues, causing their homes to flood. The defendants asked the Supreme Court to find that their plea to the jurisdiction should have been granted. The Supreme Court declined, finding fact issues on whether: (1) the government entities knew that unmitigated development would lead to flooding; (2) they approved development without appropriately mitigating it; and (3) this caused the flooding.No. 13-0709, Valdez v. Hollenbeck — Over ten years after an estate had been closed — and more than three years after learning that the estate had been significantly undervalued — the heirs sought statutory and equitable bills of review to reopen the estate and sue the administrator. The probate court denied the statutory bill of review, but granted the equitable bill of review. The Supreme Court held that the equitable bill of review was untimely. Even if tolling applied, the tolling effect would have ended more than two years before the bill-of-review proceeding was filed.No. 14-0216, Austin v. Kroger Tex., L.P. — An employee of a workers’ compensation nonsubscriber was injured while remedying a dangerous condition on the employer’s premises. On the employee’s premises-liability claim, the Supreme Court ruled that generally, an employer does not have a duty to warn or protect employees from dangerous premises conditions that are open and obvious or are known to the employee. Two exceptions to this general rule may apply in premises-liability cases — those involving third-party criminal activity or a necessary use of the premises. The employee also sued for the employer’s failure to provide reasonably safe equipment necessary to perform the job. Since this “instrumentality” claim is based on nonfeasance, the absence of contemporaneous negligence does not bar the claim.No. 14-0272, SeaBright Ins. Co. v. Lopez — In this worker’s compensation death case, an employee was killed while driving a company vehicle on his daily 40-mile commute from a motel to a remote job site. The job site was some 450 miles from the employee’s home, and the employer required the employee to stay near the job site. The employee was paid a per diem for lodging and had a company credit card to pay for gas. The Supreme Court held that the employee was killed in the course and scope of employment.