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

Case No. 08-19-00004-CV
Regular Panel Decision
Sep 09, 2021

Bernardo L. Gonzalez v. Momentum Design and Construction, Inc.

The dissenting opinion argues that Momentum Design & Construction, Inc. did not waive its right to pursue a Chapter 150 motion to dismiss, contrary to the majority's finding. It evaluates Momentum's litigation activities over seventeen months, including responding to and initiating discovery, and filing a motion to designate a responsible third party, against Texas Supreme Court precedents on waiver. The dissent concludes that Momentum's actions were not "unequivocally inconsistent" with its right to dismissal, suggesting discovery aimed to bolster its motion and protective measures like designating a third party do not indicate waiver. The judge posits that the delay in filing the motion could be attributed to gathering necessary support or counsel's workload, not an intent to abandon its statutory rights. Therefore, the dissent would affirm the trial court's decision of no waiver.

WaiverChapter 150Certificate of MeritMotion to DismissLitigation ConductDiscoveryAffirmative ReliefStatute of LimitationsResponsible Third PartyProfessional Services
References
11
Case No. M2004-1043-COA-R3-JV
Regular Panel Decision
Mar 21, 2006

State of Tennessee, Department of Children's Services v. D.H. - Dissenting

The dissenting opinion by Judge Clement, Jr. addresses an appeal concerning the denial of appointed counsel for D. H. and Mary Ellen H. in a dependent and neglect proceeding. While acknowledging the importance of a parent's right to counsel, the judge dissents from the majority's decision, believing the facts support affirming the trial court. He argues that the parents demonstrated irresponsibility and lack of diligence in seeking legal representation, including inadequate financial disclosures and delaying their request for counsel until the day of trial. The dissent concludes that the trial court judges did not abuse their discretion in denying appointed counsel, as the parents' hardship was a direct consequence of their own actions.

Indigent counselParental rightsAbuse of discretionAppellate reviewChild support obligationAffidavit of indigencyDue inquiryTrial court discretionLack of diligenceDependent and neglect proceedings
References
6
Case No. M2021-01193-SC-R11-CV
Regular Panel Decision
Sep 29, 2023

Robert Crotty v. Mark Flora, M.D. (Concur in Part and Dissent in Part)

This is a dissenting opinion regarding an interlocutory appeal that centers on the interpretation of Tennessee Code Annotated section 29-26-119 and its impact on the collateral source rule in health care liability actions. The dissenting judge argues that this statute abrogates the collateral source rule, asserting that recoverable damages should be limited to the actual economic losses suffered, specifically the amounts actually paid by plaintiffs or their insurance, rather than the full, undiscounted medical bills. The opinion emphasizes that the statutory language, particularly "actual economic losses suffered" and "paid or payable," clearly supports this interpretation. Furthermore, it references legislative intent behind the Medical Malpractice Act, which aimed to control healthcare costs, as a rationale for a strict construction of the statute.

Medical MalpracticeCollateral Source RuleStatutory InterpretationHealth Care Liability ActActual Economic LossesDamagesInsurance LawPretrial OrdersTennessee Supreme CourtDissenting Opinion
References
27
Case No. 9419-13267 / 01-A-01-9511-JV-00508
Regular Panel Decision
Oct 02, 1996

Michael Scott Evans v. Karen Marie Bisson Steeman - Dissenting

Michael Scott Evans seeks to establish paternity and legitimize Jacob Ryan Steelman, a child born to Karen Marie Bisson Steelman while she was married to another man. Despite initial acknowledgment, Ms. Steelman later returned to her husband, listing him as the father. Evans's petition for legitimation was dismissed without blood tests, based on a prior court's interpretation of Tennessee's legitimation statutes regarding children 'born in lawful wedlock.' This dissenting opinion argues that the majority's decision to affirm the dismissal is based on an erroneous and outdated judicial interpretation. The dissent contends that the statute should be reinterpreted in light of modern understanding of parental rights and reliable paternity testing, asserting that a biological father who takes prompt action should have standing to pursue legitimation.

PaternityLegitimationParental RightsMarital PresumptionStare DecisisStatutory ConstructionDue ProcessEqual ProtectionBiological FatherChild Support
References
102
Case No. 03A01-9902-CV-00049
Regular Panel Decision
Nov 08, 1999

William D. Hunley, Jr., Brenda K Hunley, & Velvac Inc. v. Silver Furniture Mfg. Co. & Tab Service Corp., - Dissenting

In a dissenting opinion, Judge Charles D. Susano, Jr. argues against the majority's decision to extend a workers' compensation carrier's subrogation rights to Mrs. Hunley's loss of consortium claim. He asserts that such claims, being a separate cause of action and involving non-economic damages, do not fall under the purview of Tennessee's subrogation statute, T.C.A. § 50-6-112(c)(1). The judge disputes the relevance of prior case law, *Sexton v. Tri-Cities Insulation, Inc.* and *Beam v. Maryland Casualty Co.*, citing a more recent Supreme Court decision, *Jordan v. Baptist Three Rivers Hosp.*, which he believes implicitly alters previous interpretations regarding wrongful death and consortium claims. He concludes that the statutory language does not support extending subrogation to the reasonable settlement value of a spouse's separate loss of consortium claim and would advocate for reversing the trial court's judgment and remanding the case to assess the reasonableness of the settlement allocation.

Subrogation RightsLoss of Consortium ClaimDerivative ActionsWorkers' Compensation CarrierThird-Party TortfeasorStatutory ConstructionTennessee LawAppellate DissentSettlement ProceedsDamages Allocation
References
6
Case No. 2010 NY Slip Op 32441[U]
Regular Panel Decision
Oct 25, 2010

United States Fidelity & Guaranty Co. v. American Re-Insurance

This dissenting opinion addresses the affirmation of a judgment that granted plaintiffs' motion for summary judgment. The dissent argues that a genuine triable issue of fact exists regarding whether a portion of a substantial settlement between United States Fidelity & Guaranty Company (USF&G) and Western MacArthur was attributable to bad faith claims, which are purportedly not covered by the defendants' reinsurance treaty. The dissenting judge contends that the treaty's plain language excludes such extra-contractual liabilities and that the majority incorrectly applied the 'follow the fortunes' clause. Furthermore, the dissent cites findings from bankruptcy court and evidence from the underlying Western MacArthur v USF&G coverage litigation, both suggesting that bad faith damages were indeed part of the settlement. Therefore, the dissenting justice advocates for denying the plaintiffs' motion for summary judgment and vacating the judgment.

ReinsuranceBad Faith ClaimsSettlement AgreementSummary JudgmentContract InterpretationDissenting OpinionExtra-Contractual LiabilityFollow the Fortunes ClauseBankruptcy Court FindingsCoverage Litigation
References
7
Case No. MISSING
Regular Panel Decision

DeLeon v. State

Justice Christopher dissents from the majority's decision to reverse and remand for a new punishment hearing due to ineffective assistance of counsel. The dissent argues that defense counsel's strategy of calling a probation officer, Charles Russ, was sound, aiming to persuade the jury towards probation by explaining its conditions and sex offender treatment requirements. Furthermore, the dissent contends that counsel's failure to object to Russ's testimony on sex offender rehabilitation was a reasonable strategic choice, utilized to support the argument for probation. The dissenting justice concludes that there was no deficient performance by counsel and no prejudice, given other evidence presented, such as the family's willingness to allow the appellant access to children.

Ineffective Assistance of CounselCriminal AppealsPunishment PhaseTrial StrategyProbation Officer TestimonySexual OffendersRehabilitationPrejudiceDissenting OpinionSixth Amendment
References
35
Case No. 95-112-K277
Regular Panel Decision

Fain v. State

This document is a dissenting opinion concerning a murder conviction. The dissent argues that the trial court, the 277th Judicial District Court of Williamson County, acted unconstitutionally by conducting the trial in Smith County instead of its designated county seat in Williamson County. It posits that this action violated Article V, Section 7 of the Texas Constitution, rendering the proceedings void and the resulting judgment invalid. The opinion emphasizes that jurisdiction cannot be created or waived through agreement of the parties in such fundamental constitutional matters. Furthermore, the dissent contends that a harmless error analysis is not applicable to a judgment deemed void due to such a constitutional violation. The dissent incorporates a panel opinion from March 12, 1998, to support its arguments.

Constitutional LawJudicial ProcedureChange of VenueJurisdictionTexas Constitution Article V Section 7Criminal ProcedureVoid JudgmentHarmless Error AnalysisAppellate ProcedureDissenting Opinion
References
54
Case No. MISSING
Regular Panel Decision

Wilinski v. 334 East 92nd Housing Development Fund Corp.

The dissenting opinion addresses a plaintiff's claim under Labor Law § 240 (1) for injuries sustained when metal plumbing pipes, standing vertically from the floor, toppled onto him during demolition work. The dissent argues that the majority errs by finding the case falls under the statute. Citing precedents like Misseritti, Narducci, and Melo, the dissenting judge asserts that the plaintiff's injuries were not the result of an elevation-related hazard contemplated by section 240 (1), as the base of the falling objects was at the same level as the plaintiff and his work site. Furthermore, the plaintiff failed to demonstrate that a specific, enumerated safety device would have prevented the accident. The dissent concludes that section 240 (1) should not apply under these circumstances and would affirm the Appellate Division's order.

Workers' CompensationLabor LawElevation HazardFalling ObjectSummary JudgmentAppellate ReviewDissenting OpinionStatutory InterpretationSafety DevicesConstruction Site
References
8
Case No. MISSING
Regular Panel Decision

United States Fidelity & Guaranty Co. v. Goudeau

Justice Green, joined by Chief Justice Jefferson and Justice Johnson, dissents from the main opinion. The dissent argues that the United States Fidelity and Guaranty Company (USF & G), acting as both defendant and intervenor, should be bound by its admission that Louis Goudeau was an insured under its auto policy, regardless of the capacity in which the admission was made. USF & G had denied Goudeau's insured status as a defendant but admitted it as an intervenor in the same lawsuit. The dissenting justices contend that allowing USF & G to dispute this admission constitutes tactical gamesmanship and undermines the fairness of judicial procedures, particularly as the company never clarified a distinction between its roles. Therefore, the dissent asserts that the insurer's motion for summary judgment should have been denied, and the judgment of the court of appeals, which reversed the summary judgment, should be affirmed.

Insurance PolicyUnderinsured Motorist CoverageWorkers' CompensationSummary JudgmentJudicial AdmissionsInterventionSubrogationParty IdentityDissenting OpinionTexas Civil Procedure
References
16
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