Procedural Irregularities with Certificate of Merit Require Dismissal of Suit

In yet another interlocutory appeal regarding procedural irregularities with a certificate of merit, the Dallas Court of Appeals reversed a trial court’s order and mandated dismissal of Plaintiff’s claims. In DHM Design v. Catherine Morzak, Cause No. 05-15-00103-CV (Tex. App.—Dallas June 19, 2015), Plaintiff sued the architect of record for bleachers at Breckenridge Park in Richardson, Texas after sustaining personal injuries from a fall at the park. Plaintiff alleged that the architect did not include sufficient contrasting color to distinguish between stairs and a seating area, preventing her from perceiving the change in depth of the risers between the stairs and the seating area. Plaintiff initially filed suit against the wrong architect, attaching a certificate of merit to her petition. The certificate alleged that the wrong architect had negligently designed the bleachers. Exactly two years after her fall, on the date the statute of limitations was set to expire, Plaintiff filed an amended petition, naming the correct architect of record for the bleachers as a Defendant. She attached the original certificate of

Owner Must Control the Work to Suffer Liability for Independent Contractor’s Injury

The Texas Supreme Court in Abutahoun, Individually and as Representative of the Estate of Henderson v. Dow Chemical, No. 13-0175 (May 8, 2015) issued a new opinion which addressed the previously unknown area of what exposure a property owner has for injury to an independent contractor due to the active negligence of the property owner. Under Texas Civil Practice & Remedies Code Chapter 95, a property owner is immune for liability for injuries to an independent contractor working on the property unless the property owner controls the work of the independent contractor and had actual knowledge of the dangerous condition. This doctrine generally insulates a property owner having construction performed on its property when an independent contractor was injured while performing their work. This case presented a different issue, wherein the injury caused to the independent contractor was not due to his own work, but rather was caused by some other negligent activity of the property owner. In this case, Dow Chemical contracted with Henderson’s employer to perform insulation work on the piping system in 1967-68.

Sovereign Immunity Does Not Extend to State Contractors

The Texas Supreme Court has recently held that the State’s sovereign immunity does not extend to contractors who contract with the government to perform construction services. Brown & Gay Engineering, Inc. v. Olivares, No. 13-0605 (April 24, 2015) concerned a wrongful death case in which the Olivares family sued the Fort Bend County Tollway Authority for an accident that they claim was caused because of design errors in the construction of an exit ramp, which allowed a drunk driver to enter the tollway going the wrong way where he struck and killed Pedro Olivares. Brown & Gay Engineering, Inc. was retained by the government to actually design the tollway. The Olivares family sued both the Tollway Authority and Brown and Gay Engineering. The Tollway Authority filed a Plea to the Jurisdiction in which it claimed that the doctrine of sovereign protected it from the Olivares’ claims of action. The trial court denied the motion, but the Court of Appeals granted the motion and remanded the case to the trial court, ruling that the

Arbitrator Fails to Fully Disclose Potential Conflicts

In determining that an arbitrator may be deposed after issuing his award, the Dallas Court of Appeals examined the standards for allowing post-award discovery to examine “evident partiality.” It also examined the evidentiary value of unsworn statements made by attorneys in court. In Fatima Rodas v. La Madeleine of Texas, Inc., Cause No. 05-14-00054-CV, an employee of La Madeleine, Rodas, sued La Madeleine for injuries she sustained on the job. La Madeleine compelled arbitration of the dispute. The arbitrator issued a take nothing award against Rodas. After the award was issued, Rodas filed a motion to vacate, arguing the arbitrator failed to disclose another arbitration he was presiding over and in which La Madeleine’s counsel was representing one of the parties. Rodas sought to depose the arbitrator about the undisclosed contact, but La Madeleine and the arbitrator opposed the discovery. During hearings on whether Rodas could depose the arbitrator, the arbitrator’s attorney disclosed that La Madeleine’s attorneys had two other arbitrations, not just one, with the arbitrator and provided inconsistent information about the