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

Case No. 01-14-00687-CV
Regular Panel Decision
Mar 13, 2015

the Better Business Bureau of Metropolitan Houston, Inc., the Better Business Bureau of Metropolitan Houston Education Foundation, Dan Parsons, Chris Church, Church Enterprises, Inc., Gary Milleson, Ronald N. McMillan, D' Artagnan Bebel, Mark Goldie, Cha v. John Moore Services, Inc. and John Moore Renovation, LLC

This document contains two responses from John Moore Services, Inc. and John Moore Renovation, LLC. The primary document, filed March 13, 2015, is a response to the Appellants' (Better Business Bureau et al.) objections to consolidation of related cases for submission. John Moore Services, Inc. and John Moore Renovation, LLC (Appellees) advocate for consolidation, asserting it would serve justice and efficiency by resolving all issues in a single judgment and prevent further confusion arising from separate appeals. The embedded document, filed June 12, 2014, is a response and objection to the Better Business Bureau's motion for attorneys' fees, court costs, expenses, and sanctions. John Moore argues that the requested fees are not reasonable or necessary, that the issue of reasonableness requires a jury trial, and that the supporting evidence (Elkin Affidavit and invoices) is legally insufficient and conclusory. Furthermore, John Moore contends that awarding fees at this stage would be neither just nor equitable, given the ongoing viable claims, and requests the court to deny the motion for fees, sustain their objections, grant their motion to consolidate, and compel discovery responses.

LitigationAttorney FeesCase ConsolidationAnti-SLAPP StatuteTexas Civil ProcedureAppellate PracticeJury TrialEvidence ObjectionsDiscovery DisputesLegal Fees Reasonableness
References
27
Case No. MISSING
Regular Panel Decision
May 08, 2007

Canal Carting, Inc. v. City of New York Business Integrity Commission

Petitioners Canal Carting, Inc. and Canal Sanitation, Inc., long-standing private sanitation businesses, challenged the Business Integrity Commission's (BIC) denial of their license renewals. The BIC cited Canal's knowing failure to provide required documentation, inability to demonstrate eligibility, and two violations for illegal dumping and operating an illegal transfer station. Canal argued the findings were arbitrary, capricious, and unprecedented, insisting their financial issues were unrelated to organized crime, which Local Law 42 (governing BIC) aimed to combat. The court found no due process violation regarding a formal hearing but concluded that the BIC's denial, effectively closing Canal's 50-year business for what amounted to poor business management, was arbitrary, unduly harsh, and shocking to one's sense of fairness. Consequently, the court granted the petition, annulled the BIC's denial, and remanded the case for reconsideration.

License RenewalAdministrative LawArticle 78 ProceedingBusiness Integrity CommissionTrade Waste IndustryDue ProcessArbitrary and CapriciousJudicial ReviewLocal Law 42Financial Responsibility
References
6
Case No. MISSING
Regular Panel Decision

Wilson v. International Business MacHines, Inc.

Plaintiff Caroline Wilson sued defendants International Business Machines (IBM) and Frank Urban, alleging gender and/or pregnancy discrimination under Title VII of the Civil Rights Act of 1964 and N.Y. Executive Law § 296. Wilson's employment was terminated in 2002 during a reduction in force, shortly after returning from maternity leave. She argued she was unfairly laid off in favor of a male colleague. The defendants moved for summary judgment, asserting a legitimate, non-discriminatory business reason related to retaining the other employee's customer relationships and ongoing deals. The court found that while Wilson established a prima facie case, she failed to demonstrate that the defendants' reasons were a pretext for discrimination, or to present sufficient other evidence of unlawful discrimination. Consequently, the court granted the defendants' motions for summary judgment, dismissing the complaint.

DiscriminationGender DiscriminationPregnancy DiscriminationTitle VIIHuman Rights LawSummary JudgmentLayoffReduction in ForcePretextPrima Facie Case
References
12
Case No. MISSING
Regular Panel Decision

GAB Business Services, Inc. v. Moore

Sherry Moore, an employee of the City of Marshall, suffered a work-related injury in January 1987. Although GAB Business Services, the insurance adjuster, initially paid for some medical expenses, they denied weekly workers' compensation benefits for her back injury, claiming it was from a separate incident at home. Moore successfully appealed to the Industrial Accident Board and later won a bench trial, which found her back injury compensable and led to a lawsuit against GAB, the City, and the Risk Pool for bad faith and deceptive trade practices. A jury found in favor of Moore against GAB for $25,000 in actual damages and $75,000 in exemplary damages. The appellate court affirmed the trial court's judgment against GAB, finding sufficient evidence to support the jury's findings that GAB acted in bad faith by denying the claim without a reasonable basis, and engaged in unfair practices, causing Moore mental anguish damages. The court also rejected GAB's defenses of governmental and official immunity and upheld the trial court's evidentiary rulings.

Workers' Compensation ClaimsInsurance Bad FaithDeceptive Trade Practices ActSufficiency of EvidenceMental Anguish DamagesGovernmental ImmunityOfficial ImmunityIndependent ContractorJury InstructionsEvidentiary Rulings
References
17
Case No. MISSING
Regular Panel Decision
Oct 17, 1983

Claim of McIntosh v. International Business Machines, Inc.

Claimant suffered a back injury on September 29, 1977, while working for International Business Machines, Inc. She continued to work until October 21, 1977, but subsequently experienced frequent absences due to disability. The Workers' Compensation Board made varying determinations regarding her disability, ultimately classifying it as a permanent partial disability with a 75% earning capacity. Despite conflicting medical opinions from numerous doctors, the Board's determination was supported by substantial evidence. The decision appealed from found that claimant had a permanent partial disability, and the appellate court affirmed this decision.

Permanent Partial DisabilityEarning CapacityMedical TestimonyConflicting EvidenceBoard DeterminationBack InjuryEmployment InjuryAffirmed DecisionJudicial ReviewWorkers' Compensation Board Decision
References
2
Case No. MISSING
Regular Panel Decision

Ogiba v. Business Services Co. of Utica

The plaintiff, Robert Ogiba, sued his former employer, Business Services Company of Utica (BSC), alleging age discrimination under the ADEA after his termination as a copier technician during a company-wide downsizing in 1992. Ogiba claimed his termination was due to his age, citing comments made by superiors and the retention of younger employees. BSC countered that Ogiba was terminated due to unsatisfactory job performance compared to coworkers, which was the criterion used for a reduction in force. The court found that while Ogiba met the satisfactory performance element of a prima facie case, he failed to provide sufficient evidence to infer age discrimination, noting the 'same actor inference' and the innocuous nature of alleged discriminatory comments. Consequently, BSC's motion for summary judgment was granted, and the complaint was dismissed.

Age DiscriminationEmployment TerminationSummary JudgmentADEADisparate TreatmentReduction in ForceJob PerformancePrima Facie CaseEvidentiary StandardDiscrimination Inference
References
23
Case No. MISSING
Regular Panel Decision
Jan 23, 1985

Sprague v. International Business Machines Corp.

This case concerns an appeal by Orange County Insulation Corp., a third-party defendant, against an order from the Supreme Court, Westchester County. The order had granted International Business Machines Corp.'s, the defendant and third-party plaintiff, motion to compel further responses to a notice for discovery and inspection. The appellate court reversed the lower court's order and denied the motion, ruling that the workers' compensation carrier's claim file for the plaintiff in the underlying action was protected as material prepared for litigation. The court emphasized that the requesting party failed to demonstrate that the material could not be duplicated or that its withholding would lead to injustice. Additionally, the court found the request for the entire file overly broad and noted that the notice for discovery should have been served directly upon the non-party carrier.

Discovery DisputeAppellate ReviewPrivileged InformationWork Product DoctrineCPLRThird-Party DiscoveryMotion to CompelOverly Broad DiscoveryWorkers' Compensation Claim FileLitigation Preparation
References
5
Case No. MISSING
Regular Panel Decision

Murphy v. International Business MacHines Corp.

This case involves five pro se plaintiffs who filed a complaint against International Business Machines Corporation (IBM), alleging constructive discharge in violation of the Age Discrimination in Employment Act (ADEA). IBM sought to dismiss the complaint on multiple grounds, including the plaintiffs' failure to exhaust administrative remedies by not filing charges with the EEOC. The court found that Kamalakar V. Narsule and Stephen M. Zick had not filed EEOC charges, leading to the dismissal of their claims. Erach Maneska Singpurwala's claim was dismissed due to untimeliness and issue preclusion, as he had previously sued IBM on the same facts. Michael John Shelpack's claim was also dismissed as untimely, having filed his EEOC charge more than 300 days after his employment ended. Lastly, Peter J. Murphy's claim was dismissed because he had signed a knowing and voluntary waiver of his right to sue IBM for age discrimination, accepting a severance package. Consequently, the court granted summary judgment, dismissing the complaint against IBM for all plaintiffs.

Age DiscriminationConstructive DischargeSummary JudgmentExhaustion of Administrative RemediesEEOCRight to Sue LetterUntimely FilingWaiver of ClaimsOlder Workers Benefit Protection ActRes Judicata
References
11
Case No. 16 NY3d 706
Regular Panel Decision
Dec 13, 2011

Federal Insurance v. International Business MacHines Corp.

Federal Insurance Company (Federal) sought a declaration that its excess insurance policy did not cover attorneys' fees paid by International Business Machines Corporation and the IBM Personal Pension Plan (collectively, IBM) in a class action lawsuit (*Cooper v IBM Personal Pension Plan*). The *Cooper* action alleged violations of ERISA pertaining to age discrimination. IBM sought reimbursement from Federal after exhausting an underlying Zurich policy. The core dispute revolved around whether the disputed language in Federal's "follow form" policy extended coverage to IBM's actions as a plan settlor, which are not considered fiduciary acts under ERISA. The Supreme Court initially denied Federal's motion, but the Appellate Division reversed, granting summary judgment to Federal. The New York Court of Appeals affirmed the Appellate Division's decision, holding that the policy's plain language limited coverage to acts of an insured undertaken in its capacity as an ERISA fiduciary, which IBM was not in this instance.

Insurance Policy InterpretationERISAFiduciary DutyExcess InsuranceSummary JudgmentPlan SettlorEmployee Benefit PlansContract LawPolicy CoverageAge Discrimination
References
18
Case No. MISSING
Regular Panel Decision

Texas Ass'n of Business v. Texas Air Control Board

The Texas Association of Business (TAB) filed a declaratory judgment action against the Texas Air Control Board and the Texas Water Commission, challenging the constitutionality of statutes allowing these agencies to levy civil penalties. Specifically, TAB argued that provisions requiring a supersedeas bond or cash deposit for judicial review violated the open courts and jury trial provisions of the Texas Constitution. The trial court denied TAB's relief. On appeal, the Supreme Court of Texas affirmed the trial court's decision regarding the jury trial challenge, concluding that no right to a jury trial exists for appeals from administrative environmental adjudications. However, the Court reversed the trial court on the open courts challenge, holding that mandating a bond or cash deposit as a prerequisite to judicial review was an unreasonable and unconstitutional restriction on court access.

Constitutional LawAdministrative LawStandingJudicial ReviewOpen Courts ProvisionJury Trial RightEnvironmental LawCivil PenaltiesTexas ConstitutionSeparation of Powers
References
91
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