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Texas Supreme Court Rules on Forum Non Conveniens Case

The aviation litigation practice at Brown Dean often involves parties and accidents outside of Texas. Thus, the doctrine of forum non conveniens is usually a litigated issue. When the plaintiffs are not Texas residents and the accident occurs outside of Texas, most likely Texas is not a proper forum for any litigation arising out of the accident. However, when any plaintiff is a Texas resident the statute creating the doctrine states the the case may be litigated here. It is considered an exception to the statute prohibiting dismissal of the case on forum non conveniens grounds if one plaintiff is a Texas resident. Recently the Texas Supreme Court clarified that “intervening wrongful death beneficiaries are distinct plaintiffs within the meaning of the Texas-resident exception.” Read the Court’s opinion here:

http://www.supreme.courts.state.tx.us/historical/2014/jul/120957.pdf

Texas Supreme Court Rule Regarding Causation in Asbestos Cases

Last week the Texas Supreme Court held that the causation required in asbestosis cases is the same causation required in mesothelioma cases. The Court concluded, “…in products liability cases where the plaintiff was exposed to multiple sources of asbestos, substantial factor causation is the appropriate basic standard of causation without including as a separate requirement that the plaintiff meet a strict but for causation test.” Read the full opinion here.

 

Economic Loss Rule Applied to Negligent Misrepresentation in Construction Claim

The economic loss rules limits a party’s ability to recover purely economic losses under tort theories such as negligence and strict liability. The Texas Supreme Court’s latest decision on the Rule is a good review of the applicable case law. Ultimately, in this case, the Court held a general contractor could not “recover the increased costs of performing its construction contract with the owner in a tort action against the project architect for negligence misrepresentation—errors—in the plans and specifications.” The full opinion is here.

General Contractors – When Sued, It Just Became Easier to Sue the Engineer or Architect.

On July 3, 2014, the Texas Supreme Court clarified an issue which has come up in my practice more than once – if a general contractor is sued, does the GC have to file a certificate of merit with any pleading against an engineer or architect that the Plaintiff has already sued or the GC brings into the lawsuit?

 

In the past, most law firms representing GCs have filed a certificate of merit. Then, typically when subcontractors also sue the architect or engineer, they typically attempt to incorporate the GC’s certificate, but some file a separate one in an abundance of caution. Now, the Court has saved GCs and subcontractors the time and expense and held that only “the plaintiffs” meaning “the parties that initiated the suit” are required to file certificates of merit to sue architects or engineers.  

 

Of course, this ruling makes it much easier for a defendant to bring an architect or engineer into the lawsuit than these professionals would probably like. However, typically, these claims will be for contribution and indemnity and not substantive. On one hand, this makes it easier for the GC and these professionals to create a unified defense because the GC is no longer having to obtain an opinion letter that the architect or engineer did something incorrect (which is the purpose of the certificate of merit). On the other hand, arguably, for the GC to prove it is entitled to contribution or indemnity, the GC will have to meet its burden of proof at trial and show evidence of the professional’s alleged wrongdoing. In addition, should the Plaintiff decide to sue the professional after it is brought in by the GC, the Plaintiff will be required to file a certificate of merit. Of course in disputes initiated by the GC against an architect or engineer, a certificate of merit will be required as always.

 

To read the full opinion click here.