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

Case No. 04-17-00565-CV
Regular Panel Decision
Jul 17, 2019

David Mora, Texas Sterling Construction Co. A/K/A Texas Crushed Concrete, and Sterling Construction Company, Inc. A/K/A Sterling Delaware Holding Company, Inc. v. Martin Valdivia Sr. and Maria Cervantes Valdivia, Both Individually and as Sole Heirs of the Estate of Martin Valdivia Jr.

This appeal stems from a personal injury lawsuit where two construction workers were injured and one killed when an unsecured toolbox fell from their foreman's trailer. The plaintiffs, Martin Valdivia Sr. and Maria Cervantes Valdivia, sued the foreman David Mora and employers Texas Sterling Construction Co. and Sterling Construction Company, Inc. for negligence and gross negligence. The jury found the driver of the third vehicle not negligent and Texas Sterling grossly negligent, awarding substantial damages. The appellate court affirmed the trial court's judgment, finding sufficient evidence to support the jury's conclusions on the course and scope of employment, the defense of sudden emergency, and gross negligence attributable to Texas Sterling through its Corporate Safety Director, José González.

Personal InjuryNegligenceGross NegligenceWorkers' Compensation ActCourse and Scope of EmploymentSudden Emergency DefenseEmployer LiabilityAppellate ReviewDamagesLegal Sufficiency
References
55
Case No. E2014-00139-COA-R3-CV
Regular Panel Decision
Sep 30, 2014

MSK Construction, Inc. v. Mayse Construction Company

MSK Construction, Inc. (MSK) filed a breach of oral contract action against Mayse Construction Company (Mayse) for failure to pay for equipment and fuel used in a construction project for the City of Athens. Mayse denied liability and filed a counterclaim for negligent misrepresentation, alleging MSK failed to include concrete testing costs in their estimate. Following a bench trial, the trial court found in favor of MSK, awarding damages and prejudgment interest, and denied Mayse's counterclaim. Mayse appealed the decision. The Court of Appeals of Tennessee at Knoxville affirmed the trial court's decision in its entirety, finding a valid oral contract existed and dismissing the negligent misrepresentation claim.

Breach of Oral ContractConstruction DisputeEquipment UsePrejudgment InterestNegligent MisrepresentationSubcontractor AgreementVendor AgreementAppellate ReviewContractual ObligationsDamages
References
28
Case No. 05-95-01259-CV
Regular Panel Decision
Feb 26, 1997

Lemke Concrete Construction v. Employers Mutual Casualty Company, Union Mutual Insurance Company of Providence, Emcasco Insurance Company, Patterson, Lamberty, Stanford, Walls & Dwyer, P.C. and John R. Robinson

Lemke Concrete Construction appealed the trial court's summary judgment in favor of Employers Mutual Casualty Company, Union Mutual Insurance Company of Providence, and Emcasco Insurance Company (carriers). Lemke alleged breach of contract, negligence, breach of good faith, and violations of the Texas Deceptive Trade Practices-Consumer Protection Act and Texas Insurance Code, stemming from the carriers' handling of a workers' compensation claim and a subsequent retaliatory discharge suit filed by Lemke's employee, Jesus Gonzalez. The carriers had settled the workers' compensation claim but denied coverage for the wrongful discharge claim, leading Lemke to incur legal fees and a settlement. The trial court granted summary judgment for the carriers, concluding that the policies did not cover wrongful discharge claims and, thus, the carriers owed no duty to defend or settle such claims. The appellate court affirmed the trial court's judgment, upholding that without coverage, Lemke's claims of bad faith and negligence were meritless, and estoppel could not create coverage.

Workers' CompensationSummary JudgmentBreach of ContractGood Faith and Fair DealingInsurance CoverageNegligenceTexas Deceptive Trade Practices-Consumer Protection ActTexas Insurance CodeVicarious LiabilityRetaliatory Discharge
References
31
Case No. MISSING
Regular Panel Decision

United States Ex Rel. E & R Construction Co. v. Guy H. James Construction Co.

E & R Construction Co., Inc. sued Guy H. James Construction Company and Federal Insurance Company under the Miller Act for breach of a subcontract related to the Cordell Hull Lock and Dam project. E & R presented twelve claims alleging material interference and breaches of contract by James, leading to increased costs and damages. The court found that James materially breached the contract through various actions, including wrongfully depositing shot rock, requiring extra work, and causing delays, entitling E & R to recover damages on several claims under a *quantum meruit* theory. However, the court denied claims regarding arbitrary dredge limits and dredge delay. The court also clarified that the surety, Federal Insurance Company, was not liable for certain delay and property damage claims.

Construction LawMiller ActSubcontractBreach of ContractQuantum MeruitDelay DamagesConstruction DisputesFederal CourtContract InterferenceSite Conditions
References
51
Case No. 05-0295
Regular Panel Decision
Feb 24, 2006

Fidelity & Guaranty Insurance Company v. Drewery Construction Company, Inc.

Drewery Construction Company, Inc. obtained a default judgment against Fidelity and Guaranty Insurance Company, a surety. Fidelity's motion for a new trial was denied by the trial court and subsequently affirmed by the court of appeals. The Supreme Court of Texas granted review and determined that Fidelity had successfully demonstrated that its failure to answer was not due to intentional or conscious indifference, thereby satisfying the first Craddock element for setting aside a default judgment. The Court found the affidavits detailing the breakdown in Fidelity's system for handling service papers to be sufficient evidence. Consequently, the Supreme Court reversed the judgment of the court of appeals and remanded the case to the trial court for further proceedings.

Default JudgmentMotion for New TrialService of ProcessCraddock ElementsConscious IndifferenceSurety BondSubcontractorTexas Appellate ProcedureTexas Civil ProcedureAppellate Review
References
19
Case No. 05-0295
Regular Panel Decision

Fidelity and Guaranty Insurance Company v. Drewery Construction Company, Inc.

Drewery Construction Company, Inc. secured a default judgment against Fidelity and Guaranty Insurance Company, acting as a surety for general contractor JenCra, Inc., regarding a suit on a surety bond. Fidelity's subsequent motion for a new trial was denied by the trial court and upheld by the court of appeals. Upon review by the Supreme Court of Texas, Fidelity's claim that its failure to appear was due to lost service papers, rather than intentional or consciously indifferent conduct, was deemed meritorious. The Supreme Court found that the affidavits provided by Fidelity sufficiently detailed the system breakdown in handling service documents. Consequently, the Supreme Court reversed the court of appeals' judgment and remanded the case for further proceedings.

Default judgmentMotion for new trialCraddock elementsService of processCitationLost documentsAccident or mistakeConscious indifferenceSurety bondSubcontractor
References
13
Case No. MISSING
Regular Panel Decision

Walls v. Turner Construction Co.

This case concerns an appeal from an order regarding Labor Law claims against Turner Construction Company and Jordan Construction Company. The original order denied summary judgment to Turner for dismissing plaintiffs' claims under Labor Law § 240 (1) and § 241 (6), granted summary judgment to plaintiffs on their § 240 (1) claim against Turner, and denied Jordan's motion to amend its answer for a recalcitrant worker defense. It also denied Jordan summary judgment for dismissal of Turner's cross claims for contractual indemnification, contribution, and failure to procure insurance, while granting summary judgment to Turner on that cross claim. The appellate court modified the original order by dismissing Turner's cross claim concerning Jordan's failure to obtain insurance, but otherwise affirmed the order. A dissenting opinion argued that Turner, as construction manager, was not the owner's statutory agent for liability under Labor Law §§ 240 (1) and 241 (6) due to limited authority.

Labor LawStatutory AgentConstruction ManagementContractual IndemnificationRecalcitrant Worker DefenseSummary JudgmentCross ClaimsFailure to Procure InsuranceAppellate ReviewWorkplace Safety
References
8
Case No. No. 05-20-00835-CV
Regular Panel Decision
Feb 18, 2022

G Force Framing LLC, Kerry Graves, Kerry Graves on Behalf of G Force Framing LLC, and Kerry Graves D/B/A G Force Framing v. MacSouth Forest Products, L.L.C. v. Stoneleigh Construction Company, LLC, SC Switchyard, LLC, XL Specially Insurance Company and Travelers Surely and Casually Company

G Force Framing LLC (G Force) and Kerry Graves appealed the trial court's final judgment from Dallas County, Texas, which had dismissed G Force's claims and discharged its mechanic's liens. The trial court ruled based on G Force's prior tax forfeiture and alleged lack of capacity to sue. The Court of Appeals reversed, holding that G Force was not a 'terminated entity' under the Texas Business Organizations Code because its tax forfeiture was eventually set aside, thus allowing it to pursue its claims. The appellate court also found the indemnity bonds filed by Stoneleigh Construction Company, LLC were insufficient to discharge the mechanic's liens. However, the court affirmed the dismissal of Graves's individual claims as they belonged solely to the corporation.

Tax ForfeitureCorporate ReinstatementCapacity to SueSummary JudgmentRule 91a Motion to DismissMechanic's LiensIndemnity BondsStatutory InterpretationTexas Business Organizations CodeTexas Tax Code
References
61
Case No. MISSING
Regular Panel Decision

Houston Lighting & Power Co. v. Allen & Coon Construction Co.

Gordon Wagner, employed by Frank Crown Plastering Company, was electrocuted, leading to Texas Employers Insurance Association (TEIA), the compensation carrier, paying nearly $30,000 in benefits. Wagner then sued Allen & Coon Construction Company (A&C) and Houston Lighting & Power Company (HL&P) as third-party tortfeasors. TEIA intervened to recover its expenditures. A&C settled with Wagner for $80,000 and agreed to indemnify Wagner against TEIA's claims. HL&P later settled with Wagner for another $80,000, and TEIA endorsed the checks, with Wagner receiving the full proceeds. Wagner then assigned his indemnity rights against A&C to TEIA. TEIA sued A&C, and A&C sought contribution from HL&P. The trial court granted summary judgment for TEIA against A&C and for A&C for contribution from HL&P. On appeal, the court affirmed TEIA's judgment against A&C, based on the "first money" rule, establishing A&C's liability to TEIA upon its initial settlement with Wagner. However, the court reversed the judgment awarding A&C contribution from HL&P, concluding that A&C had only settled its own liability and failed to establish a claim for contribution.

Worker's Compensation SubrogationThird-Party TortfeasorSettlement AgreementIndemnity AgreementSummary JudgmentContributionJoint and Several LiabilityFirst Money RuleAppellate DecisionPersonal Injury
References
12
Case No. 03-00-00427-CV
Regular Panel Decision
Aug 30, 2001

All American Life Insurance Company American General Life Insurance Company American National Insurance Company American National Life Insurance Company of Texas IDS Life Insurance Company And USLIFE Life Insurance Company v. Carole Keeton Rylander, Comptroller of Public Accounts of Texas And John Cornyn, Attorney General of Texas

Several insurance companies appealed a district court judgment affirming the Comptroller's assessment of premium and maintenance taxes on 'internal rollover' transactions, where policyholders transfer accumulation values within the same company for new policies. The Texas Court of Appeals, Third District, At Austin, reviewed the construction of Texas Insurance Code articles 4.11 and 4.17 de novo. The court determined that 'internal rollovers' do not involve funds being 'received' or 'collected' by the insurance companies, as the funds remain within the company. Therefore, these transactions are not subject to the premium and maintenance taxes. The judgment of the district court was reversed in part, and the case was remanded for a determination of the refund amounts owed to the companies.

Insurance LawTax LawPremium TaxInternal RolloversStatutory ConstructionTexas Court of AppealsInsurance CompaniesComptrollerGross PremiumsTax Refund
References
9
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