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

Case No. MISSING
Regular Panel Decision

In Re Beecham

This Memorandum Opinion and Order addresses the application of Donna R. Beeeham for a waiver of the Chapter 7 filing fee. Ms. Beeeham, a debtor with a reported monthly income of $804 and expenses of $1075, had filed her petition along with the fee waiver application. A hearing was held on November 16, 1994, to assess her entitlement to an In Forma Pauperis waiver, during which she disclosed a pending Workers' Compensation claim and substantial medical debts. The court, presided over by Judge G. Harvey Boswell, ultimately denied the application, citing Federal Rule of Bankruptcy Procedure 1006(b)(3). This rule mandates that the filing fee must be fully paid before an attorney receives payment for bankruptcy-related services, and Ms. Beeeham had paid her attorney a $500 fee, thus indicating an ability to pay the filing fee, even if borrowed. Consequently, she was ordered to pay the $160 filing fee within thirty days or file an installment payment application to prevent case dismissal.

Chapter 7 BankruptcyFiling Fee WaiverIn Forma PauperisBankruptcy ProcedureDebtor's Attorney FeesAbility to PayInstallment PaymentsCase Dismissal AvoidanceWestern District of TennesseeJudicial Conference Pilot Program
References
9
Case No. MISSING
Regular Panel Decision

Elmgren v. Ineos USA, LLC

Johannes "Joe" Elmgren, an employee of Zachry Industrial, Inc., suffered severe burns from an explosion and superheated gas release while replacing valves at an Ineos plant. Joe and his wife, Valarie Elmgren, sued Ineos USA, LLC and Jonathan Pavlovsky for negligence and wrongful termination. The defendants sought summary judgment, arguing protection under Chapter 95 of the Texas Civil Practice and Remedies Code, which limits property owner liability to contractors' employees. The trial court granted summary judgment, applying Chapter 95 to all claims. The appellate court affirmed the summary judgment for Ineos regarding premises-liability negligence claims, finding that Chapter 95 applied and the Elmgrens failed to raise a fact issue on Ineos's actual knowledge of the danger. However, the court reversed the summary judgment for Pavlovsky, concluding he did not prove Chapter 95's applicability to him as an employee. The appellate court also reversed the summary judgment for both Ineos and Pavlovsky concerning negligent-activity and negligent-undertaking claims, stating that Chapter 95 does not inherently bar these distinct negligence theories.

Texas Civil Practice and Remedies CodeChapter 95 ApplicabilityPremises LiabilityNegligent ActivityNegligent UndertakingSummary Judgment AppealProperty Owner DutyContractor Employee InjuryIndustrial AccidentChemical Plant Explosion
References
40
Case No. MISSING
Regular Panel Decision

Francis v. Coastal Oil & Gas Corp.

Algenard Francis, an independent subcontractor working on Coastal Gas Corporation's premises, sustained serious injuries in an explosion. He sued Coastal for negligence, premises liability, and negligence per se. A jury initially awarded Francis damages under common-law negligence, but the trial court set aside this verdict and rendered a take-nothing judgment for Coastal, applying Chapter 95 of the Civil Practice and Remedies Code as the exclusive remedy. The appellate court affirmed the trial court's judgment, holding that Chapter 95 applied to Francis's claims, Coastal was a 'property owner,' the well was an 'improvement to real property,' and cleaning the well constituted repair or renovation. The court also found no error in allowing a trial amendment to assert Chapter 95, concluded that Chapter 95 does not violate the 'open courts' provision of the Texas Constitution, and ruled that negligence per se based on Railroad Commission regulations was not applicable.

Explosion InjuryIndependent Contractor LiabilityProperty Owner LiabilityChapter 95 Civil Practice and Remedies CodeOil and Gas Well OperationsWorkplace AccidentNegligence ClaimsPremises LiabilityNegligence Per SeTrial Amendment
References
26
Case No. MISSING
Regular Panel Decision

In Re Cypresswood Land Partners, I

The case involves an objection by Cypresswood Land Partners, I (Debtor) to the final fee application of its former counsel, Beirne, Maynard & Parsons, L.L.C. (BMP), in a Chapter 11 bankruptcy. The Debtor alleged that BMP failed to properly disengage from representing Stephen A. Morrow, the Debtor's managing venturer, individually, and failed to adequately disclose this continued representation to the court. Additionally, the Debtor claimed BMP's final application was untimely filed, and an agreement signed by Morrow, which made him and another entity (Grace Interests, L.L.C.) liable for BMP's fees, was overreaching. The Bankruptcy Court sustained the Debtor's objections, denying all compensation and reimbursement to BMP, and ordering the firm to disgorge all fees already paid. The court found that BMP violated professional conduct rules, failed to disclose conflicts, filed late without cause, and presented an overreaching agreement.

BankruptcyChapter 11Attorney FeesFee Application ObjectionProfessional EthicsConflict of InterestDisclosure ViolationDisgorgement of FeesUntimely FilingFiduciary Duty
References
29
Case No. MISSING
Regular Panel Decision

Thielmann v. MF Global Holdings Ltd. (In re MF Global Holdings Ltd.)

This case involves motions to dismiss an amended class action complaint filed by former employees (Plaintiffs) against James W. Giddens, as SIPA Trustee for MF Global Inc., and Louis J. Freeh, as Chapter 11 Trustee for MF Global Holdings Ltd., MF Global Finance USA, Inc., and MF Global Holdings USA, Inc. The Plaintiffs allege violations of the federal WARN Act and the New York WARN Act due to employment termination without sufficient notice. The Court granted the SIPA Trustee's motion to dismiss with prejudice, finding the "liquidating fiduciary" principle applicable to MFGI as its statutory purpose was liquidation. However, the Chapter 11 Trustee's motion to dismiss was granted without prejudice and with leave to amend, as the factual record did not conclusively establish that the Chapter 11 Debtors were solely liquidating at the time of layoffs, and the complaint was otherwise deficient. Claims for vacation pay and unpaid wages were dismissed without prejudice to be handled in the claims allowance process.

WARN ActNew York WARN ActClass ActionMass LayoffsPlant ClosingsBankruptcy ProceedingsCorporate LiquidationChapter 11 ReorganizationSIPA TrusteeLiquidating Fiduciary Principle
References
26
Case No. Consolidated Chapter 13 Cases (e.g., 91-20422 to 97-36152)
Regular Panel Decision

In Re Phillips

This Memorandum Opinion and Order addresses objections by chapter 13 trustees to the postpetition claims for attorney's fees and expenses filed by William A. Cohn, an attorney representing numerous chapter 13 debtors. Mr. Cohn had routinely filed these claims under 11 U.S.C. § 1305(a)(2), arguing it served as an alternative to the § 330 procedures for professional compensation. The Court found that § 1305(a)(2) is intended for exigent circumstances where prior trustee approval is impracticable, not for routine legal work, and that Mr. Cohn failed to meet its conditions. It emphasized that § 330, which requires notice, a hearing, and detailed documentation, is the appropriate procedural vehicle for approving attorney's fees to ensure reasonableness and benefit to the debtor. Consequently, the Court disallowed all of Mr. Cohn's postpetition claims filed under § 1305(a)(2), vacated prior administrative orders that had mistakenly allowed these claims, and ordered Mr. Cohn to either file proper § 330(a)(4)(B) applications with full time and expense documentation by July 31, 1998, or disgorge all received postconfirmation fees and expenses by August 14, 1998.

Bankruptcy LawChapter 13 ProceedingsAttorney CompensationPostpetition ClaimsFee ApplicationsDisgorgement of FeesProcedural ComplianceProfessional EthicsJudicial ReviewAdministrative Errors
References
15
Case No. MISSING
Regular Panel Decision

In Re American Plumbing & Mechanical, Inc.

Gerald Riggs and Rick Jepson, former senior executives of AMPAM Riggs, an operating subsidiary of American Plumbing & Mechanical, Inc. (a Chapter 11 debtor), applied for payment of administrative expenses claims, specifically year-end bonuses based on exceeding EBITDA targets. They argued entitlement under a pre-petition incentive plan and that the payments constituted ordinary course business expenses, which a prior court order allegedly authorized. The Plan Agent and the Official Creditors' Committee objected, contending that Riggs and Jepson were ineligible as they had resigned in April 2004 before bonus payments, and that AMPAM Riggs had not actually met its 2003 EBITDA target once certain late-reported insurance claims were properly factored in. The court found that after adjusting the 2003 EBITDA for these claims, the target was not met, meaning no 15% bonus was owed. Additionally, the court ruled that even if the bonuses were earned, they did not qualify as administrative expenses under Bankruptcy Code section 503(b)(1)(A) because they were not attributable to services rendered post-petition and did not confer a discernible benefit to the estate, especially since the applicants had voluntarily resigned. The application for payment of administrative expense claims was therefore denied.

BankruptcyAdministrative ClaimIncentive Bonus PlanEBITDA AdjustmentPost-Petition ServicesChapter 11 ReorganizationFiduciary DutyCreditors' CommitteeVoluntary ResignationBenefit to Estate
References
27
Case No. 12-20-00243-CV
Regular Panel Decision
Jun 30, 2021

Bobby Martin v. WPP Properties, LLC, Jennifer M. Williams, William R. Pulley and Zachary D. Pulley

Bobby Martin, an independent contractor, sustained a fractured hip after tripping and falling down an external staircase while performing 'make ready' renovation work at the Manor Terrace Apartment complex, owned by WPP Properties, LLC. He subsequently sued WPP Properties, LLC, Jennifer M. Williams, William R. Pulley, and Zachary Pulley (Appellees) alleging negligence and premises liability. The trial court granted summary judgment for Appellees, concluding that Chapter 95 of the Texas Civil Practice and Remedies Code applied and that Appellees did not retain control over Martin's work. The appellate court affirmed, holding that Martin's work constituted 'renovation' under Chapter 95, the staircase was part of the same 'improvement' as the apartment, and Martin failed to establish a fact issue regarding Appellees' control over his work, which is a prerequisite for liability under Chapter 95.

Negligence ClaimPremises LiabilityIndependent Contractor InjurySummary Judgment AffirmationTexas Civil Practice and Remedies Code Chapter 95Property Owner ImmunityWorkplace InjuryRenovation WorkControl Over WorkActual Knowledge
References
20
Case No. 14-13-00044-CV
Regular Panel Decision
Mar 20, 2014

Johannes Joe Elmgren and Valarie Elmgren, Individually and as Next Friends of Their Minor ChildrenAPE Rehear v. INEOS USA, LLC F/K/A Innovene USA, LLC, INEOS Polymers, Inc., A/K/A/ INEOS Olefins, Ineos Olefins & Polymers USA, a Division of Ineos USA, LLC and Jonathan Bubba Pavlovsky

Joe Elmgren, an employee of a subcontractor, suffered severe burns from an explosion and super-heated gas release while replacing valves at an Ineos plant. The Elmgrens (Joe, Valarie, and their minor children) sued Ineos and Jonathan "Bubba" Pavlovsky for negligence and wrongful termination. The trial court granted summary judgment in favor of Ineos and Pavlovsky, applying Chapter 95 of the Texas Civil Practice and Remedies Code. The appellate court affirmed the summary judgment for Ineos on premises-liability claims as the Elmgrens failed to show actual knowledge of the danger. However, the court reversed the summary judgment for Pavlovsky, stating that Chapter 95 does not apply to employees, and also reversed the summary judgment for both Ineos and Pavlovsky regarding negligent-activity and negligent-undertaking claims, finding Chapter 95 does not automatically bar these distinct negligence theories.

Summary JudgmentNegligencePremises LiabilityTexas Civil Practice and Remedies Code Chapter 95Negligent ActivityNegligent UndertakingPersonal InjurySubcontractor LiabilityProperty Owner LiabilityActual Knowledge
References
38
Case No. ADJ1054155 (LAO 0854446) ADJ1247741 (LAO 0854447) ADJ1895803 (LAO 0854448)
Regular
May 03, 2011

HIRITI OKUAMICHAEL vs. PAUL OWENS SHOES INC., STATE FARM FIRE AND CASUALTY COMPANY, STATE COMPENSATION INSURANCE FUND

This amended order clarifies that the Workers' Compensation Appeals Board has granted the applicant's petition for reconsideration of the February 8, 2011 Findings and Awards. This reconsideration aims to allow the Board to thoroughly study the factual and legal issues, including those to be raised in the applicant's supplemental petition. The applicant's request to file a supplemental petition has also been granted and reaffirmed. All future communications regarding these cases should be directed to the Office of the Commissioners of the WCAB.

Supplemental PetitionReconsiderationAppeals Board Rule 10848Findings and AwardsDecision After ReconsiderationOffice of the CommissionersWCABADJ1054155ADJ1247741ADJ1895803
References
0
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