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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 2017 NY Slip Op 00956
Regular Panel Decision
Feb 08, 2017

Cacanoski v. 35 Cedar Place Associates, LLC

The plaintiff, Krste Cacanoski, was injured after falling through a skylight during asbestos removal work for 35 Cedar Place Associates, LLC. He commenced an action against 35 Cedar Place Associates, LLC, alleging a violation of Labor Law § 240 (1) for failing to provide adequate safety devices. 35 Cedar Place Associates, LLC, subsequently initiated a third-party action against Cacanoski's employer, Superior Abatement, Inc., seeking contractual indemnification under a subcontract executed after the accident. The Supreme Court denied both the plaintiff's motion for summary judgment on the Labor Law claim and Superior Abatement, Inc.'s motion to dismiss the third-party complaint. On appeal, the Appellate Division, Second Department, reversed the Supreme Court's order with respect to the plaintiff's motion, granting summary judgment on the Labor Law § 240 (1) cause of action, finding that the absence of necessary protection was a proximate cause of the plaintiff's injuries. The court affirmed the denial of Superior Abatement, Inc.'s motion to dismiss the third-party complaint, concluding that a triable issue of fact existed regarding whether the parties intended the indemnification provision to apply retroactively.

Labor Law § 240(1)Personal InjurySummary JudgmentAsbestos RemovalFall from heightSky-lightContractual IndemnificationRetroactive AgreementWorkers' Compensation Law § 11Appellate Division
References
19
Case No. MISSING
Regular Panel Decision
Mar 25, 1997

Byrd v. Abate

Plaintiff William Byrd, an inmate, was assaulted on Riker's Island due to a corrections officer leaving his post. Byrd filed a Section 1983 action, initially against a "John Doe" officer, later identified as Officer Wade Hults. Hults moved to amend his answer to include a statute of limitations defense. The court denied Hults' motion, deeming the amendment futile. It ruled that Byrd's Second Amended Complaint related back to the original filing because Corporation Counsel, representing both Hults and the supervisory defendants, had delayed identifying Hults, and Hults had sufficient constructive notice of the claim.

Section 1983 LitigationStatute of Limitations DefenseRule 15(c) Relation BackJohn Doe Defendant IdentityCorrectional Facility NegligenceDiscovery AbuseFutility of AmendmentImputed NoticeGovernmental ImmunityCivil Rights Action
References
26
Case No. MISSING
Regular Panel Decision

Claim of Dellauniversita v. Tek Precision Co.

The case involves an appeal from a Workers’ Compensation Board decision regarding a claim for death benefits. Claimant’s husband suffered a work-related injury in 1987 and later died. The claimant, as his widow, filed for death benefits. However, the claimant herself died before the causal relationship between her husband’s death and the 1987 incident could be established. The Workers’ Compensation Board ruled that her claim for death benefits abated upon her death. The appellate court affirmed this decision, citing precedents that claims for death benefits abate if a determination on the merits, such as causal relationship, has not been established prior to the claimant’s death.

Workers' CompensationDeath BenefitsClaim AbatementCausal RelationshipAppellate ReviewProcedural IssuesPrecedentLegal Interpretation
References
3
Case No. 07-03-0320-CR
Regular Panel Decision
Sep 19, 2003

John Folmer v. State

Appellant John Folmer appealed his conviction for theft over $1,500. The court reporter indicated that Folmer had not paid for or arranged payment for the record, and there was no evidence in the record regarding his indigence. Consequently, the appellate court abated the appeal and remanded the case to the 106th District Court of Lynn County. The trial court was ordered to conduct a hearing to determine if Folmer wished to prosecute the appeal and if he was indigent, and then to transcribe the hearing, make findings of fact and conclusions of law, and file a supplemental record by October 17, 2003.

Theft convictionCriminal appealIndigence determinationCourt record paymentAbatement and remandDue processAppellate procedureTrial court hearingSufficiency of evidenceTexas Court of Appeals
References
26
Case No. MISSING
Regular Panel Decision

Lisenby v. Texas Employers' Insurance Ass'n

Plaintiff, H. H. Lisenby, an employee of Bethlehem Steel Corporation, sought workmen's compensation benefits for an injury sustained while working on a dry dock floating in the Neches River. The defendant, Texas Employers’ Insurance Association, argued that the claim fell exclusively under the Federal Longshoremen’s & Harbor Workers’ Act. The trial court sustained the defendant's plea in abatement and plea to the jurisdiction, finding that the dry dock was covered by the federal statute and not an extension of land. The appellate court affirmed this decision, distinguishing the present case from Travelers Insurance Company v. Shea by emphasizing that the injury occurred on a functional dry dock located on navigable waters, which is covered by the Act, unlike the permanently anchored pier in the Shea case.

Longshoremen's ActHarbor Workers' ActDry Dock InjuryNavigable WatersFederal JurisdictionPlea in AbatementPlea to JurisdictionSitus RuleWorkers' Compensation BenefitsMaritime Law
References
15
Case No. H-93-1776
Regular Panel Decision
Mar 12, 1999

Northwinds Abatement, Inc. v. Employers Insurance of Wausau

This case involves a dispute over workers' compensation benefits paid to six former employees of Northwinds Abatement, Inc. Northwinds, an asbestos removal company, contends that its servicing agent, Employers Insurance of Wausau, improperly paid fraudulent claims, which led to an inflated Experience Modifier Rating (EMR) and hindered Northwinds' ability to secure contracts. The federal court had previously abstained, applying the doctrine of primary jurisdiction, requiring Northwinds to exhaust administrative and judicial review procedures in Texas state forums regarding compensability, fraud, and EMR calculation. The court found that Northwinds sufficiently complied with these directives, as state agencies either declined to make definitive findings or judicial review was completed or time-barred, allowing the federal case to proceed to trial on claims of fraudulent/bad faith settlement practices, negligence, deceptive trade practices, Texas Insurance Code violations, and breach of contract.

Workers' CompensationPrimary JurisdictionAdministrative ExhaustionFraudulent ClaimsExperience Modifier RatingInsurance DisputeTexas Labor LawJudicial ReviewState Court AbstentionFederal Court Jurisdiction
References
25
Case No. MISSING
Regular Panel Decision

Summit Construction Services Group, Inc. v. ACT Abatement, LLC

Plaintiff, a general contractor named Summit, sued its subcontractor, ACT Abatement, LLC, and insurance brokers Allen Freeman, Scott Handwerger, and A. Logan Insurance Brokerage for fraudulent misrepresentation. Plaintiff alleged that the insurance brokers provided inaccurate certificates of insurance, leading Summit to believe ACT had valid workers' compensation coverage. Two ACT employees were injured while uninsured, forcing Summit to cover their claims and incur increased insurance premiums. The court found that the disclaimers on the certificates of insurance made it unreasonable for Summit to rely on them as proof of coverage. Therefore, the motions for summary judgment and dismissal of the complaint by the defendant insurance brokers were granted, dismissing the claims against them.

Fraudulent MisrepresentationInsurance Broker LiabilityWorkers' CompensationSummary JudgmentCertificate of InsuranceDisclaimer ClauseNegligent MisrepresentationGeneral ContractorSubcontractorInsurance Coverage Lapse
References
16
Case No. 15-25-00124-CV
Regular Panel Decision
May 12, 2025

Brian Beckcom v. Texas A&M University

Appellant Brian Beckcom seeks to abate his appeal and remand the case to the trial court for findings of fact and conclusions of law. This motion is filed after the trial court's May 12, 2025 order dismissed Beckcom's petition for a writ of mandamus against Texas A&M University. Beckcom argues that the lack of specific findings from the trial court, despite a timely request, hinders his ability to present a proper appeal. The underlying dispute involves Texas A&M's alleged non-compliance with Public Information Act requests related to the Corps of Cadets' freshman experience program and a hazing investigation. Beckcom asserts that without these detailed findings, the legal and factual bases for the dismissal remain unclear, potentially jeopardizing his appellate arguments.

Public Information ActMandamusOpen RecordsTexas A&M UniversityCorps of CadetsHazingStudent ConductDue ProcessFreedom of InformationHigher Education
References
39
Case No. MISSING
Regular Panel Decision

Hearst Newspapers, LLC v. Status Lounge Inc.

This case involves Status Lounge Incorporated suing media outlets, Hearst Newspapers, LLC and KHOU-TV, Inc., along with their reporters, for libel and business disparagement stemming from articles published about a shooting incident. The defendant media outlets filed a verified plea in abatement under the Defamation Mitigation Act (DMA), which automatically abated the lawsuit for sixty days. Following the abatement period, they moved to dismiss the claims under the Texas Citizens Participation Act (TCPA), but the trial court denied these motions as untimely, adhering to the TCPA's strict sixty-day filing deadline post-service. On appeal, the central question was whether the DMA's abatement period tolls the TCPA's deadline for filing a motion to dismiss. The appellate court concluded that the DMA's abatement period does toll the TCPA's filing deadline, thereby making the defendants' motions timely, and consequently reversed the trial court's order and remanded the case for further proceedings on the merits.

DefamationLibelBusiness DisparagementTexas Citizens Participation ActDefamation Mitigation ActAbatementStatutory DeadlinesFirst Amendment RightsFree SpeechInterlocutory Appeal
References
16
Case No. No. 05-14-01342-CV
Regular Panel Decision
Jul 20, 2015

Baylor University Medical Center v. Mary Greeson

Baylor University Medical Center appealed an order abating a case and refusing to compel arbitration regarding Mary Greeson’s workplace injury claim. Baylor argued the trial court should have compelled arbitration and erroneously continued the abatement pending merits discovery. The Court of Appeals agreed with Baylor on the abatement issue, finding the Rule 11 agreement allowed Baylor to end the abatement by filing a motion to reopen. The court reversed the trial court's order and remanded the case for further proceedings, including a ruling on Baylor's motion to compel arbitration and attorneys' fees.

ArbitrationAbatementRule 11 AgreementInterlocutory AppealAppellate ProcedureContract ConstructionFAAWorkplace InjuryMotion to CompelDiscovery
References
14
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