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

Case No. 01-19-00580-CV
Regular Panel Decision
Aug 26, 2021

Thomas Gunnar Kelly v. Sherry Marie Kelly

This divorce appeal addresses the division of marital property and spousal maintenance. Appellant Thomas Kelly challenged the trial court's characterization of his 401(k) account, severance payments, an investment account, and a car. He also contested the spousal maintenance award and attorney's fees, arguing insufficient evidence for his wife's disability or minimum needs. The appellate court affirmed the dissolution of marriage but reversed and remanded the property division and spousal maintenance due to errors in classifying the 401(k) and a potential trust interest, necessitating a new determination of financial resources. The court affirmed the characterization of severance payments, the E*Trade account, and the Ford Mustang.

DivorceProperty DivisionSpousal MaintenanceCommunity PropertySeparate Property401(k) ApportionmentSeverance PaymentsInvestment AccountGift PropertyTestamentary Trust
References
69
Case No. MISSING
Regular Panel Decision

LOPEZ-JUAREZ v. Kelly

Alejandro Juarez died in a multi-vehicle accident involving an initial rear-end collision by Michael A. Weisheit, which propelled Juarez's vehicle into the path of a tour bus driven by Andrew Johnson, an employee of Huey Kelly, d/b/a Kelly Tours. Juarez's wife, Gloria Lopez-Juarez, sued multiple parties; however, only the allegations against Kelly Tours proceeded to trial, where the jury found Weisheit solely responsible. Lopez-Juarez appealed, raising issues regarding the admissibility of expert testimony from Trooper Colby Hobbs and the denial of a negligence per se instruction. The appellate court found that the trial court abused its discretion in admitting Hobbs' expert testimony due to his lack of qualifications for complex accident reconstruction. However, this error was deemed non-reversible as Hobbs' testimony was cumulative. The court also affirmed the denial of the negligence per se instruction, concluding there was insufficient evidence of proximate causation linking the bus driver's expired medical certificate to the accident. Consequently, the appellate court affirmed the trial court's judgment.

Traffic AccidentMulti-vehicle CollisionExpert Testimony AdmissibilityAccident ReconstructionNegligence Per SePolice Officer QualificationsAppellate ReviewProximate CauseDriver Medical CertificateTexas Courts of Appeals
References
82
Case No. 06-10-00082-CV
Regular Panel Decision
Aug 16, 2011

Gloria Lopez-Juarez, Individually and as of the Estate of Alejandro Juarez, and as Next Friend of Gloria Alejandra Juarez v. Huey Kelly, D/B/A Kelly Tours

Alejandro Juarez died following a multi-vehicle accident in Gregg County, Texas, involving a rear-end collision and a subsequent impact with a tour bus. His wife, Gloria Lopez-Juarez, sued Huey Kelly, d/b/a Kelly Tours, for negligence under the Texas Wrongful Death and Survival Statutes. Lopez-Juarez appealed the trial court's admission of Trooper Colby Hobbs' expert testimony and the denial of a negligence per se instruction. The appellate court affirmed the judgment, finding the admission of Hobbs' testimony, though erroneous due to his lack of qualifications, was harmless as it was cumulative. It also upheld the denial of the negligence per se instruction, concluding there was insufficient evidence of proximate cause between the statutory violation and the accident.

NegligenceAccident ReconstructionExpert WitnessAppellate ReviewHarmless ErrorProximate CauseMedical CertificateCommercial Motor VehicleWrongful DeathSurvival Statute
References
102
Case No. 528566
Regular Panel Decision
May 26, 2022

In the Matter of the Claim of Christine Kelly (Kelly, Kevin (dec'd)

Claimant Christine Kelly filed a claim for death benefits after her husband's death, alleging it was causally-related to his established asbestos-related occupational disease. Liability for the original disability claim had been transferred to the Special Fund for Reopened Cases in 2011. The employer argued the Special Fund should be liable for the death benefits claim. However, the Workers' Compensation Board and the Appellate Division, Third Judicial Department, affirmed that the death benefits claim was a new and distinct claim, accruing at the time of death in 2016. Therefore, its transfer to the Special Fund was precluded by Workers' Compensation Law § 25-a (1-a), as the Special Fund closed to new applications effective January 1, 2014, a ruling supported by Matter of Verneau v Consolidated Edison Co. of N.Y., Inc. The decision of the Workers' Compensation Board, ruling that liability did not shift to the Special Fund for Reopened Cases, was affirmed.

Workers' Compensation Law § 25-aSpecial Fund for Reopened CasesDeath Benefits ClaimOccupational DiseaseAsbestosisCausally Related DeathLiability TransferStatutory Cut-off DateAppellate DivisionThird Judicial Department
References
2
Case No. MISSING
Regular Panel Decision

North American Thought Combine, Inc. v. Kelly

Petitioner North American Thought Combine, Inc. (Thought) sought to confirm an arbitration award against Respondent Kathleen Kelly (Kelly) concerning a contract for exclusive representation of Kelly's artwork. The arbitrator had determined Thought had a continuing right to represent specific licensed properties and receive compensation, but the agreement for all works had expired. Kelly opposed the confirmation, arguing the federal court lacked subject matter jurisdiction as the amount in controversy did not meet the statutory requirement for diversity jurisdiction. The court agreed with Kelly, ruling that the value of the arbitration award itself, not the underlying arbitration claim, determines the amount in controversy for confirmation petitions. As Thought failed to provide competent proof that the value of its continuing rights exceeded $75,000, the court dismissed the petition for lack of federal subject matter jurisdiction.

Arbitration ConfirmationSubject Matter JurisdictionDiversity JurisdictionAmount in ControversyFederal Arbitration ActContract DisputeExclusive AgencyArtwork LicensingFederal Court DismissalSecond Circuit Precedent
References
8
Case No. MISSING
Regular Panel Decision

Kelly Kare, Ltd. v. O'ROURKE

Kelly Kare, Ltd., a Medicaid provider in Westchester County, sued the County after its contract was terminated without cause before its expiry. Kelly Kare alleged violations of federal and constitutional rights, including property and liberty interests, and anti-union bias as reasons for the termination. The court found no protected property interest in the contract's continuation nor a liberty interest due to 'stigmatization' without false information being released. Regarding the anti-union bias claim, the court determined that Kelly Kare failed to provide adequate evidentiary showing to warrant injunctive relief. Consequently, the motion for a preliminary injunction was denied, and prior restraining orders were dissolved.

Medicaid ProviderContract TerminationPreliminary InjunctionDue ProcessProperty InterestLiberty InterestAnti-union BiasSocial Security ActGovernment ContractsHealthcare Law
References
26
Case No. 136 F.Supp.3d 385
Regular Panel Decision
Jan 01, 2016

Kelly v. New York State Office of Mental Health

Plaintiff Sharon Kelly, a registered nurse, initiated this action against her former employers, the New York State Office of Mental Health and the Brooklyn Children’s Center, alleging disability discrimination and retaliation under the Rehabilitation Act of 1973. Kelly claimed she was discriminated against due to her anxiety, depression, and hypertension, citing instances like an alleged assault, failure to investigate, a hostile work environment, and constructive discharge. Defendants moved to dismiss the Second Amended Complaint for failure to state a claim. The court, presided over by Judge Matsumoto, determined that Kelly failed to plausibly allege she had a disability within the meaning of the Act or that she experienced adverse employment actions or a hostile work environment. Consequently, the defendants' motion to dismiss was granted, and all of Kelly's claims were dismissed with prejudice.

Disability DiscriminationRehabilitation ActEmployment RetaliationHostile Work EnvironmentConstructive DischargeMotion to DismissFederal Court DecisionMental Health ImpairmentPhysical ImpairmentPro Se Litigation
References
100
Case No. 14-07-00083-CV
Regular Panel Decision
Nov 25, 2008

Jimmy J. Kelly v. American Interstate Insurance Co., Hammerman & Gainer, Inc., and Sheryl Butman

Jimmy J. Kelly appeals separate trial court orders transferring venue and sustaining pleas to the jurisdiction and granting a motion to dismiss for lack of jurisdiction. Kelly argued that he was not given proper notice of the venue hearing and that he was not required to exhaust further administrative remedies due to binding Benefit Dispute Agreements (BDAs). The court found that Kelly had sufficient actual notice of the venue hearing. Regarding jurisdiction, the court determined that the BDAs, while affirming a compensable injury, did not create an express entitlement to specific medical benefits like spinal fusion, thereby requiring Kelly to exhaust administrative remedies with the Texas Workers' Compensation Commission (TWCC) before suing. The court affirmed the trial court's judgment, concluding it lacked subject-matter jurisdiction.

Venue TransferSubject-Matter JurisdictionAdministrative Remedies ExhaustionWorkers' Compensation ActBenefit Dispute AgreementMedical Benefits DenialSpinal FusionNotice RequirementAppellate ReviewAbuse of Discretion
References
17
Case No. 2022 NY Slip Op 03952
Regular Panel Decision
Jun 16, 2022

Kelly v. State of New York

The Appellate Division, Third Department, affirmed the Court of Claims' dismissal of claimant James F. Kelly's action against the State of New York. Kelly, a part-time police officer, challenged his ineligibility to take a full-time officer exam due to exceeding an age limit imposed by Civil Service Law § 58. The court held that federal constitutional claims under 42 USC § 1983 cannot be asserted against the State in the Court of Claims for lack of subject matter jurisdiction. Furthermore, Kelly's Age Discrimination in Employment Act (ADEA) claim was dismissed as Civil Service Law § 58 falls within the ADEA's law enforcement exception, allowing age-based hiring for police officers. Finally, the claim based on Civil Service Law § 54 was also dismissed, as that statute permits reasonable age requirements for civil service positions.

Age DiscriminationCivil Service LawPolice OfficerCourt of ClaimsAppellate ReviewSubject Matter JurisdictionFederal Constitutional ClaimsADEA ExceptionLaw Enforcement ExemptionFailure to State a Cause of Action
References
13
Case No. MISSING
Regular Panel Decision
Jun 03, 1985

United States Fire Insurance Co. v. Kelly ex rel. Thomas

United States Fire Insurance Company (USFI) appealed a June 3, 1985 judgment which awarded Michelle Renee Kelly periodic worker’s compensation benefits for the death of her father and attorney’s fees. The judgment was based on an October 8, 1984 settlement agreement. USFI contended the trial court erred by rendering judgment on the stipulations, arguing Kelly's subsequent acts constituted rescission. However, the appellate court, lacking a statement of facts, presumed the validity of the judgment and overruled USFI's point of error. Kelly’s cross-point seeking damages for a frivolous appeal was also denied. The court affirmed the trial court's judgment.

Worker's CompensationAppealSettlement AgreementJudgment AffirmationStipulationsFrivolous AppealStatement of FactsAppellate ProcedurePresumption of ValidityTexas Civil Appeals
References
3
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