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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

Rushing v. Green Tree Servicing, LLC (In Re Rushing)

This memorandum of decision addresses motions to dismiss filed by defendants Green Tree Servicing, LLC and John Patrick Herr against plaintiffs Ira Glen Rushing (Debtor) and Jacqueline Y. Berry (non-debtor spouse). The plaintiffs alleged automatic stay violations under 11 U.S.C. § 362(k) stemming from the defendants' actions during Rushing's Chapter 13 bankruptcy. The court denied the motions to dismiss concerning Rushing's claims, ruling that automatic stay violation claims are not subject to arbitration or state limitations periods. However, the court granted the motions to dismiss regarding Berry's claims, determining that as a non-debtor spouse, she lacks standing to pursue a remedy under § 362(k) because her grievances are not within the zone of interests protected by the statute.

BankruptcyAutomatic StayArbitrationMotion to DismissFederal Arbitration ActStandingLimitations PeriodDebtor ProtectionCreditor ProtectionChapter 13
References
58
Case No. MISSING
Regular Panel Decision

Rush v. Barrios

Melvin Barrios, rendered quadriplegic by a roofing accident, initially hired attorney Warren D. Rush for product liability and ERISA claims. Barrios later fired Rush, citing poor communication, Rush's failure to pursue the ERISA claim (due to a perceived conflict with Rush's representation of Barrios's employer, Knight Oil Tools), and improper handling of the product liability suit. Barrios then retained Aaron W. Guidry and Mallia & Jacobs, who settled the product liability case for two million dollars. A subsequent dispute arose to apportion the $666,666.67 contingency fee among the attorneys. The trial court reduced Rush's jury-awarded fee from $111,111.11 to $33,333.33 for termination for cause, further applying a 10% reduction under Louisiana law to $29,999.99. Rush appealed, challenging the judgment notwithstanding the verdict, the summary judgment on termination for cause, and the court's personal jurisdiction. The appellate court affirmed the trial court's judgment.

Legal Fees DisputeAttorney MalpracticeTermination for CauseContingency Fee AgreementJudgment Notwithstanding VerdictSummary JudgmentPersonal JurisdictionERISA ClaimsProducts LiabilityAttorney-Client Conflict
References
48
Case No. 08-22-00226-CV
Regular Panel Decision
Sep 01, 2023

Rush Truck Centers of Texas, L.P. D/B/A Rush Enterprises Inc. A/K/A Rush Truck Center- El Paso v. Rosario Y. Mendoza, Individually and on Behalf of the Estate of Marco A. Hoyos Martinez

Justice Palafox dissents from the majority's decision, arguing that the appellees' gross negligence claim is explicitly excluded from the scope of the arbitration agreement. This exclusion is based on protections provided by the Texas Constitution, state laws, and controlling precedent, specifically referencing TEX. CONST. art. XVI, § 26 and various sections of the Texas Labor Code. The dissent further notes that the arbitration agreement itself excludes claims not subject to arbitration under current law, such as those related to workers' compensation benefits and exemplary damages for work-related deaths. Therefore, Justice Palafox concludes that a lawful basis existed to deny the motion to compel arbitration, and the trial court's ruling should have been affirmed in its entirety.

Texas lawarbitration agreementgross negligenceworkers' compensationexemplary damageswrongful deathemployer liabilityconstitutional lawlabor codeappellate dissent
References
2
Case No. MISSING
Regular Panel Decision

Rush v. Great American Insurance Company

Charleen Rush brought suit against Great American Insurance Company and Walter Harry Ostertag for loss of consortium after her husband, Richard Rush, sustained severe personal injuries in a motor scooter-automobile collision. The defendants demurred, arguing that no legal basis existed for such an action at common law in Tennessee, nor was there a statute permitting it. The trial court sustained the demurrer and dismissed the case. On appeal, the Court affirmed the trial court's decision, emphasizing that Tennessee, as a common law state, did not recognize a wife's right to sue for loss of consortium due to negligent injury of her husband without specific statutory provision, despite modern arguments for equality with a husband's similar right.

Loss of ConsortiumNegligenceCommon LawMarried Women's ActJudicial DiscretionStatutory InterpretationTort LawAppellate ReviewDamagesHusband and Wife
References
34
Case No. 06-14-00040-CV
Regular Panel Decision
Apr 10, 2015

Tillerd Ardean Smith, Medallion Transport & Logistics, LLC, Tomy Rushing D/B/A Rushing Transport Services, Inc. v. Brandi Williams

This post-argument letter brief, filed in the Sixth Court of Appeals, addresses several legal questions posed by justices during oral arguments held on April 1, 2015. The brief clarifies that spoliation findings and appropriate remedies are questions of law for the court, requiring a finding that lesser sanctions are insufficient before issuing a spoliation instruction. It also argues that defense counsel preserved objections to negligent hiring/training jury instructions despite not explicitly using "no-evidence," as the essence of the objection was the lack of evidentiary support. Furthermore, the brief discusses whether the plaintiff proved the defendant's employee status, asserting that the plaintiff's refusal to stipulate employment made it a fact issue requiring a jury question. Finally, it asserts that expert qualifications in personal injury cases are subject to the same rigorous standards as those in healthcare liability cases, countering the notion that a lower standard might apply to medical experts in personal injury matters.

spoliationnegligent supervisionnegligent hiringexpert witness testimonyappellate argumentslegal standard of carecausation analysisjury instructionsproportionate responsibility statuteemergency medical care liability
References
57
Case No. 06-12-00016-CV
Regular Panel Decision
Oct 02, 2012

in the Matter of the Marriage of Betty Janis Edwards and Marvin Laverl Edwards

Marvin Laverl Edwards appealed a trial court's property division in his divorce from Betty Janis Edwards. Betty was awarded reimbursement for the enhanced value of Laverl's separate real estate and for the value of cattle purchases, as well as appellate attorney's fees. Laverl challenged these awards, arguing Betty failed to establish the portion of enhanced value attributable to her separate funds, and that the cattle funds were commingled community property. The appellate court affirmed the trial court's judgment, finding sufficient evidence supported the reimbursement for the enhanced property value to the community estate, and that any mischaracterization of cattle funds as separate property was harmless as Betty was awarded half the net value. The court also upheld the conditional award of appellate attorney's fees to Betty.

DivorceProperty DivisionCommunity PropertySeparate PropertyReimbursementEnhanced ValueAppellate Attorney's FeesTexas Family LawMarital EstateEquitable Lien
References
38
Case No. 05-12-01407-CV
Regular Panel Decision
Aug 25, 2015

Christian Care Centers, Inc. v. Rebecca O'Banion and Janis L. Wood, Individually and as Personal Representatives of tEH Estate of J.D. Richmond

Christian Care Centers, Inc. (CCC) appealed the trial court's judgment in favor of Rebecca O’Banion and Janis L. Wood, as personal representatives of J.D. Richmond's estate. Richmond died after falling on a drainage grate at a CCC facility. The plaintiffs sued for negligence, alleging unsafe conditions and failure to warn. The jury found both CCC and Richmond 50% negligent and awarded damages for mental anguish and loss of companionship. The Court of Appeals affirmed the trial court’s judgment, finding sufficient evidence for the dangerous condition, foreseeability of death, and compensable mental anguish, and no abuse of discretion in submitting Richmond's negligence or denying gross negligence claims.

Premises LiabilityNegligencePersonal InjuryWrongful DeathComparative NegligenceMental Anguish DamagesForeseeabilityDrainage Grate HazardAssisted Living FacilityElderly Care
References
52
Case No. M2004-00324-COA-R3-CV
Regular Panel Decision
Feb 18, 2005

Virgil E. Rushing v. Walter E. Crockett, Sr.

This appeal concerns the apportionment of attorney fees and litigation costs following a compensable on-the-job injury, workers' compensation recovery, and a tort settlement with a third party. The employer, Bi-County Solid Waste Management, had subrogation rights, leading to a dispute over fee allocation between the plaintiff's attorney, Mr. Rassas, and the intervener's attorneys, Mr. Nolan and Mr. McDonner. The trial court apportioned the fees but deducted a previously awarded workers' compensation fee from the tort action fee and allocated litigation expenses. The appellate court affirmed the fee apportionment but vacated the deduction of the workers' compensation fee, finding no statutory basis for it, and affirmed the discretionary costs award.

Attorney FeesWorkers' CompensationSubrogation RightsTort ActionFee ApportionmentLitigation CostsCommon Fund DoctrineAmerican RuleAppellate ReviewDeduction of Fees
References
3
Case No. ADJ10159316
Regular
Sep 25, 2017

Rowdy Rushing vs. Foster Farms

The Workers' Compensation Appeals Board denied reconsideration of a decision finding that Rowdy Rushing did not sustain a left shoulder injury arising out of and occurring in the course of employment with Foster Farms. The Administrative Law Judge found the applicant's testimony regarding a pallet striking his arm not credible, noting inconsistencies with coworker statements and medical reports. Specifically, the applicant's account of the incident and the mechanism of injury was deemed unlikely and not supported by Dr. Ozaeta's medical opinion, which concluded the MRI findings were inconsistent with the described incident. Therefore, the Board affirmed the judge's take-nothing order.

Workers' Compensation Appeals BoardFoster FarmsRowdy RushingFindings and OrderTake nothing orderIndustrial injuryLeft shoulderOctober 92015Taper/packer
References
0
Case No. VNO 0510561, VNO 0510562
Regular

JANIS RUSH vs. CALIFORNIA CORRECTIONAL INSTITUTION, STATE COMPENSATION INSURANCE FUND

The defendant, State Compensation Insurance Fund, petitioned for removal to amend an order closing discovery to allow a deposition, but the petition was denied. The Workers' Compensation Appeals Board found the petition contained irrelevant information, suggesting it was partially plagiarized from another case. Crucially, the Board determined the closure of discovery would not cause significant prejudice or irreparable harm to the defendant.

petition for removalagreed medical evaluatorclosure of discoverysignificant prejudiceirreparable harmWCAB Rule 10843Report and Recommendationworkers' compensation administrative law judgeDENYING REMOVALCALIFORNIA CORRECTIONAL INSTITUTION
References
0
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