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

Case No. 2014-2225 K C
Regular Panel Decision
Oct 27, 2017

Acupuncture Approach, P.C. v. NY Cent. Mut. Fire Ins. Co.

This case concerns an appeal from an order of the Civil Court of the City of New York, Kings County, relating to assigned first-party no-fault benefits. Acupuncture Approach, P.C., as assignee, sought to recover sums from NY Central Mutual Fire Ins. Co. The defendant moved for summary judgment, arguing timely payment according to the workers' compensation fee schedule for some claims, and lack of medical necessity for others. The plaintiff cross-moved for summary judgment. The Appellate Term modified the Civil Court's order, denying the defendant's motion for summary judgment on claims totaling $3,495, $2,695, and $1,965, due to the defendant's failure to demonstrate timely denial. The Appellate Term affirmed the reduction of the amount in controversy for other claims and the denial of the plaintiff's cross-motion.

No-Fault BenefitsSummary JudgmentAppellate ReviewInsurance ClaimsWorkers' Compensation Fee ScheduleMedical NecessityTimely DenialCivil Court OrderAssignee ClaimsPreclusion
References
4
Case No. 03-11-00688-CV
Regular Panel Decision
Jul 03, 2012

Approach Operating, LLC v. Resolution Oversight Corporation, as Special Deputy Receiver of Financial Insurance Company of America And the Texas Property and Casualty Insurance Guaranty Association

This case concerns an appeal from a summary judgment regarding a workers' compensation carrier's subrogation rights. Appellant Approach Operating, LLC, a general contractor, argued that the carrier had waived its subrogation rights through a Master Service Agreement (MSA) with subcontractor Lilly Construction, Inc. An employee of Lilly, Rodolfo Martinez, was injured and received workers' compensation benefits from Financial Insurance Company of America (FICA) and later The Texas Property and Casualty Insurance Guaranty Association (TPCIGA). The district court found no waiver of subrogation and granted summary judgment for FICA and TPCIGA. The Texas Court of Appeals, Third District, affirmed the lower court's judgment, emphasizing that explicit contractual language is required for a waiver of subrogation, which was absent in the MSA.

Workers' CompensationSubrogation WaiverMaster Service AgreementContract InterpretationSummary JudgmentTexas Court of AppealsInsurance LawOil and Gas IndustryExplicitness RuleThird-Party Claim
References
24
Case No. MISSING
Regular Panel Decision

Lusardi v. Lusardi

This appeal concerns the applicability of amendments to Workers' Compensation Law § 2 (4) and § 54 (6) to policies issued before the amendments' effective date. These amendments excluded workers’ compensation coverage for sole shareholder and executive officer employees unless affirmatively elected. The Workers’ Compensation Board initially found the amendments applicable since the accident occurred after the effective date, but later reconsidered, concluding they do not apply to pre-existing policies. The court affirmed the Board's decision, applying prospective application to the amendments, as they restricted existing rights and would not alter current insurance contracts. The decision to affirm the award to the claimant was deemed rational.

Workers' CompensationStatutory InterpretationProspective ApplicationLegislative AmendmentsInsurance PolicyCorporate EmployerSole ShareholderExecutive OfficerCoverage ElectionBoard Decision
References
4
Case No. MISSING
Regular Panel Decision
May 07, 2012

Walker v. HongHua America, LLC

Plaintiffs, composed of Crane Operators and Roughneck/Riggers, filed a lawsuit against HongHua America, LLC, alleging violations of the Fair Labor Standards Act (FLSA). They claimed HongHua misclassified them as independent contractors to avoid paying proper overtime compensation. The plaintiffs sought to conditionally certify a collective action for all similarly situated employees, with two individuals also claiming retaliatory termination. The Court, applying the Lusardi approach, granted the motion in part and denied it in part, conditionally certifying two distinct classes: Crane Operators and Roughneck/Riggers. The certified period for these classes is from May 7, 2009, to January 12, 2012.

FLSA ViolationIndependent Contractor MisclassificationOvertime WagesCollective Action CertificationConditional CertificationFair Labor Standards ActEmployment LawWage and Hour DisputeRetaliatory TerminationWorker Classification
References
46
Case No. MISSING
Regular Panel Decision

Cruz v. ConocoPhillips

Plaintiff Eric Cruz alleges that he and other Project Leads were misclassified and improperly compensated on a day rate basis by Defendants Conoco-Phillips and ConocoPhillips Company, violating the Fair Labor Standards Act (FLSA) overtime requirements. Despite working long hours, often seven days a week, they were not paid overtime. Cruz filed a motion to conditionally certify a FLSA collective class of all Project Leads paid a day rate since three years prior to the complaint. The Court, applying the Lusardi approach, granted the motion. The decision was based on a reasonable basis for believing aggrieved individuals exist, that they are similarly situated due to a common compensation policy, and that many individuals desire to opt into the lawsuit.

FLSAOvertime PayConditional CertificationCollective ActionDay Rate CompensationEmployee MisclassificationEconomic Realities TestLusardi ApproachWage and Hour LawEmployment Litigation
References
24
Case No. 15
Regular Panel Decision

Dyson v. Stuart Petroleum Testers, Inc.

Plaintiff Rory Dyson initiated a collective action against Stuart Petroleum Testers, Inc. and Scott Yariger, alleging violations of the Fair Labor Standards Act (FLSA). Dyson, a 'flow tester,' claimed that he and other similarly situated workers were misclassified as independent contractors and consequently denied overtime pay for hours exceeding forty per week. The plaintiff filed a motion seeking conditional certification of the lawsuit as a collective action under the FLSA. Applying the lenient Lusardi two-stage approach, the Court found sufficient evidence indicating the existence of similarly situated individuals and a widespread discriminatory practice by the defendants. Consequently, the Court granted the plaintiff's motion for conditional certification, established the definition of the collective action, and ordered the defendants to provide contact information for potential class members.

FLSACollective ActionConditional CertificationOvertime PayIndependent Contractor MisclassificationFlow TestersOil and Gas IndustryWage and Hour DisputeOpt-in PlaintiffsLusardi Approach
References
45
Case No. MISSING
Regular Panel Decision

Snively v. Peak Pressure Control, LLC

Plaintiffs Jason Snively, Stephen Clark, and others similarly situated filed a motion for conditional certification against Defendants Peak Pressure Control, LLC and Nine Energy Service, LLC. The lawsuit alleges violations of the Fair Labor Standards Act (FLSA), specifically that Pressure Control Operators were not paid overtime wages despite working in excess of 40 hours per week, instead receiving a base salary and bonuses. The court reviewed the motion under the Lusardi two-stage approach and found sufficient evidence that aggrieved and similarly situated individuals exist and desire to opt-in. Consequently, the court granted in part the motion for conditional certification, setting forth directives for a revised notice to potential plaintiffs, including a 60-day opt-in period and approval for notice dissemination via mail, email, and workplace posting.

FLSACollective ActionConditional CertificationOvertime WagesWage and HourPressure Control OperatorsOilfield ServicesFair Labor Standards ActEmployer LiabilityMisclassification
References
26
Case No. MISSING
Regular Panel Decision
May 07, 2007

Lentz v. Spanky's Restaurant II, Inc.

This Amended Order addresses a plaintiff's motion for notice to potential class members in a Fair Labor Standards Act (FLSA) collective action. The plaintiff, a waiter, alleges that defendants Spanky’s Restaurant II, Inc. d/b/a Double Nickel Steakhouse, Lisa West, and Lady West Enterprises, LTD d/b/a Double Nickel Steakhouse violated FLSA by requiring waitstaff to participate in a "tip pool" with expediters who do not customarily receive tips and by failing to display required notice. The court, considering both the Lusardi and Shushan approaches to class certification, denied the plaintiff's motion. The denial was based on the plaintiff's failure to identify a sufficient number of similarly situated individuals and to provide adequate factual evidence beyond conclusory allegations. The court also noted the novelty of defining expediters' eligibility for tip-sharing and concerns about the breadth of the proposed notice. Consequently, the plaintiff's motion for notice to potential class members was denied.

FLSACollective ActionTip PoolingClass CertificationSimilarly SituatedWage and HourEmployment LawFair Labor Standards ActNotice RequirementsDenial of Motion
References
30
Case No. 11-0332
Regular Panel Decision
Aug 30, 2013

Robert Masterson, Mark Brown, George Butler, Charles Westbrook, Richey Oliver, Craig Porter, Sharon Weber, June Smith, Rita Baker, Stephanie Peddy, Billie Ruth Hodges, Dallas Christian, and the Episcopal Church of the Good Shepherd v. the Diocese of Northwest Texas, the Rev. Celia Ellery, Don Griffis, and Michael Ryan

This case concerns a property dispute arising from a schism within a local church, The Episcopal Church of the Good Shepherd, after a majority of its members voted to disassociate from The Episcopal Church (TEC). The Diocese of Northwest Texas and loyal parishioners sued for control of the property, which was held by the church as a non-profit corporation. The Texas Supreme Court addressed the legal methodology for resolving such church property disputes, ultimately holding that Texas courts must apply the "neutral principles of law" approach, rather than the "deference" approach. This methodology requires civil courts to decide non-ecclesiastical issues like property ownership based on generally applicable secular law. Consequently, the Court reversed the lower court's summary judgment, which had been granted using the deference methodology, and remanded the case for further proceedings consistent with the neutral principles approach, emphasizing that the secular legal aspects of corporate governance and property ownership must be examined.

Church Property DisputeReligious AutonomyNeutral Principles of LawHierarchical ChurchCorporate GovernanceChurch SchismFirst AmendmentFree Exercise ClauseSummary JudgmentTexas Supreme Court
References
60
Case No. No. 44
Regular Panel Decision
May 24, 2022

The People v. Marc Mitchell

Marc Mitchell, the defendant, appealed his conviction for fraudulent accosting, arguing that the term 'accost' requires a physical, aggressive approach to a specific individual. The New York Court of Appeals rejected this narrow interpretation, stating that dictionaries from the statute's enactment defined 'accost' as 'to approach,' 'speak to first,' or 'address.' The Court found the complaint sufficient, as Mitchell blocked a Manhattan sidewalk with milk crates, requiring pedestrians to walk around him, and asked passing pedestrians to 'Help the homeless,' while allegedly misrepresenting where donations would go. The Court concluded that his actions, including blocking the sidewalk and calling out, constituted accosting. The dissenting opinion argued that the majority's interpretation was too broad, potentially criminalizing protected speech, and that 'accost' implies a more assertive, targeted contact, which was not present in Mitchell's actions. The Appellate Term's order was affirmed.

fraudulent accostingstatutory interpretationNew York Court of Appealsmisdemeanor complaintfacial sufficiencyactus reusmens reaconfidence gamestreet swindlelegislative intent
References
58
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