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

Case No. 03-06-00428-CV
Regular Panel Decision
May 01, 2007

Susan Combs, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, Attorney General of the State of Texas v. STP Nuclear Operating Company

This case involves an appeal by Susan Combs, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, Attorney General, against STP Nuclear Operating Company. STP, a Texas corporation operating the South Texas Nuclear Project, procured insurance from Nuclear Electric Insurance Limited (NEIL), an unlicensed insurer in Texas. STP paid an independently procured insurance tax under protest and sought a refund, arguing the tax was unconstitutional and violated the McCarran-Ferguson Act. The trial court ruled in favor of STP. However, the Texas Court of Appeals, Third District, found that STP’s significant in-state activities related to the insurance procurement established a sufficient nexus for Texas to levy the tax. Therefore, the appellate court reversed the trial court's judgment and rendered judgment in favor of the Comptroller, upholding the constitutionality of the tax as applied to STP.

Insurance taxIndependently procured insuranceMcCarran-Ferguson ActDue ProcessEqual ProtectionState taxationAppellate reviewSummary judgmentConstitutional challengeOut-of-state insurer
References
11
Case No. MISSING
Regular Panel Decision

Combs v. STP Nuclear Operating Co.

This case concerns an appeal by the Comptroller of Public Accounts and the Attorney General of Texas from a trial court's grant of summary judgment in favor of STP Nuclear Operating Company (STP). The core dispute revolves around the State's ability to collect independently procured insurance tax from STP, an operator of a nuclear power plant required to carry insurance from a Bermuda-incorporated, non-Texas-licensed insurer (NEIL). STP had paid these taxes under protest, asserting they violated Due Process, Equal Protection, and the McCarran-Ferguson Act. The appellate court reversed the trial court's judgment, ruling that the independently procured insurance tax, as applied to STP, does not violate Due Process or the McCarran-Ferguson Act due to STP's significant in-state activities related to procuring the insurance. The court also rejected STP's arguments regarding equal protection and the vagueness of the statutory scheme, thereby rendering judgment in favor of the Comptroller.

Independently Procured Insurance TaxMcCarran-Ferguson ActDue ProcessEqual ProtectionSummary JudgmentState TaxationInsurance RegulationNuclear Power PlantForeign CorporationsTexas Insurance Code
References
44
Case No. MISSING
Regular Panel Decision
Apr 08, 2009

Tepperwien v. Entergy Nuclear Operations, Inc.

Plaintiff James Tepperwien filed a Title VII action against his former employer, Entergy Nuclear Operations, Inc., alleging same-sex sexual harassment by a co-worker, Yito Messina, and subsequent retaliation. The harassment included physical assault and sexually explicit remarks, which Tepperwien reported to management. Entergy moved for summary judgment on claims of hostile work environment, retaliation, and constructive discharge. The court denied summary judgment on the hostile work environment and a portion of the retaliation claim, finding sufficient factual disputes for trial. However, the court granted summary judgment to Entergy on the constructive discharge claim, concluding that the plaintiff's working conditions were not objectively intolerable.

Same-sex harassmentTitle VIIHostile work environmentRetaliationConstructive dischargeSummary judgmentWorkplace discriminationSexual harassmentEmployer liabilityFederal court decision
References
50
Case No. E2016-01075-COA-R3-CV-FILED-NOVEMBER 28, 2016
Regular Panel Decision
Nov 28, 2016

Richard Michelhaugh v. Consolidated Nuclear Security, LLC

This case concerns an appeal by employees Richard Michelhaugh and John Williams against Consolidated Nuclear Security, LLC (CNS) over disputed vacation benefits. Plaintiffs alleged CNS unlawfully deprived them of vacation time earned in 2014 by implementing a new policy on December 11, 2014, effective January 1, 2015, which retroactively eliminated their accrued vacation. The Circuit Court for Anderson County initially granted CNS's motion to dismiss, concluding the vacation plan was not a contract and CNS had the right to change policies. However, the Tennessee Court of Appeals at Knoxville reversed this decision, ruling that while the plan itself was not an employment contract, employees could not be divested of compensation (vacation benefits) already earned under the previous policy. The appellate court remanded the case for further proceedings, emphasizing that employers cannot retroactively reduce earned compensation.

Vacation benefits disputeEmployment policy changeMotion to dismiss appealContractual obligationsEmployee compensationRetroactive policy alterationBreach of contract allegationsFiduciary duty claimGood faith and fair dealingAppellate review of dismissal
References
22
Case No. MISSING
Regular Panel Decision
May 17, 1996

In Re the Arbitration Between Nuclear Electric Insurance Ltd. & Central Power & Light Co.

This case concerns a petition by Nuclear Electric Insurance Limited (NEIL) to compel Central Power and Light (CPL) to arbitrate a dispute arising from an insurance policy and to stay CPL's ongoing state court action in Texas. NEIL, a Bermuda corporation, had issued an extra expense policy to CPL, a Texas corporation, which included a broad arbitration clause mandating arbitration in New York City for most disputes. Despite this, CPL filed a breach of contract suit in a Texas state court after NEIL denied its claim for losses. The U.S. District Court for the Southern District of New York rejected CPL's arguments for abstention and found that the arbitration clause was enforceable. Consequently, the court granted NEIL's petition, compelling arbitration and enjoining CPL from continuing its Texas state court proceedings.

ArbitrationFederal Arbitration ActContract DisputeInsurance PolicyStay of ProceedingsJurisdictionAbstention DoctrineChoice of LawEnforceabilityFraud in the Inducement
References
54
Case No. MISSING
Regular Panel Decision

Kielwein v. Gulf Nuclear, Inc.

Kenneth Kielwein and his wife, Laurie Kielwein, appealed a summary judgment in their lawsuit against Gulf Nuclear, Inc. for negligence, gross negligence, and intentional assault and battery following Kenneth's exposure to radioactive Americium-241 at Gulf Nuclear's plant. The trial court initially struck the Kielweins' negligence pleadings, citing Gulf Nuclear's workers' compensation policy and Kenneth's notice of it, and found no genuine issue of fact regarding Gulf Nuclear's intent to injure. The appellate court reversed the summary judgment. It affirmed that pre-injury notice of workers' compensation coverage was sufficient to bar negligence claims, even without the employer formally notifying the Industrial Accident Board. However, the court found that an affidavit from Dr. Carl J. Johnson, stating Gulf Nuclear was 'substantially certain' to cause injury, raised a material fact issue regarding an intentional tort, which is not barred by workers' compensation. The case was remanded for a trial on the merits.

Workers' CompensationIntentional TortSummary JudgmentRadioactive ContaminationAmericium-241NegligenceGross NegligenceOccupational HazardIndustrial Accident BoardTexas Law
References
6
Case No. ADJ3550667
Regular
Jun 23, 2009

Deanna Rasmussen vs. Vijay Garg, M.D., INC., Preferred Employers Insurance Company

In this workers' compensation case, the applicant, Deanna Rasmussen, claimed an industrial injury while working as a nuclear cardiology technologist. The Workers' Compensation Appeals Board (WCAB) initially found her to be an employee. However, upon reconsideration, the WCAB reversed this decision, concluding Rasmussen was an independent contractor on the date of injury. Consequently, she is not entitled to workers' compensation benefits from Dr. Garg and his insurer. The WCAB has now denied Rasmussen's petition for further reconsideration.

Workers' Compensation Appeals BoardIndependent ContractorEmployeeIndustrial InjuryNuclear Cardiology TechnologistReconsideration DeniedOpinion and OrderCompensable InjuryPetition for ReconsiderationDecision After Reconsideration
References
2
Case No. MISSING
Regular Panel Decision

Utility Workers Union v. Nuclear Regulatory Commission

The Utility Workers Union of America (UWUA) challenged Section 606 of the Omnibus Diplomatic Security and Anti-Terrorism Act of 1986, which mandates fingerprint checks for unescorted access to nuclear facilities. The UWUA sought a declaratory judgment that the statute was unconstitutional and a preliminary injunction against the United States Nuclear Regulatory Commission's (NRC) implementing regulation. The court dismissed the challenge to the NRC regulation due to lack of jurisdiction, ruling it a final order reviewable only by the Courts of Appeals under the Hobbs Act, and the action was untimely. Addressing the constitutional challenge to the statute, the court found that the fingerprinting requirement did not violate Fourth Amendment or privacy rights, deeming the intrusion minimal and rationally related to national security. Consequently, the plaintiff's motions were denied, and the defendant's motion to dismiss was granted.

Constitutional LawFourth AmendmentPrivacy RightsFingerprintingNuclear SecurityDeclaratory JudgmentInjunctive ReliefJurisdictionAtomic Energy ActHobbs Act
References
24
Case No. MISSING
Regular Panel Decision

Brodsky v. United States Nuclear Regulatory Commission

This case involves Plaintiffs (Richard L. Brodsky, Westchester’s Citizens’ Awareness Network, Public Health and Sustainable Energy, and Sierra Club-Atlantic Chapter) challenging the United States Nuclear Regulatory Commission's (NRC) decision to grant an exemption to Entergy Nuclear Operations, Inc., regarding fire protection requirements at the Indian Point Energy Center. Plaintiffs alleged that the NRC acted unlawfully by granting this exemption, arguing it lacked authority, failed to hold public hearings, and did not prepare an Environmental Impact Statement. The court, treating the NRC’s motion as one for summary judgment, examined whether the NRC’s actions were arbitrary, capricious, or an abuse of discretion. Ultimately, the court deferred to the NRC’s expertise, finding that the Commission had the authority to grant exemptions, was not required to hold public hearings for exemptions, and adequately conducted an Environmental Assessment. Therefore, the defendant's motion for summary judgment was granted in its entirety.

Nuclear Regulatory CommissionAtomic Energy ActFire Protection ProgramExemption ChallengeIndian Point Energy CenterNuclear SafetyAdministrative Procedure ActNational Environmental Policy ActSummary JudgmentJudicial Review
References
33
Case No. MISSING
Regular Panel Decision

Imbierowicz v. A.O. Fox Memorial Hospital

The case involves an appeal from a judgment where the plaintiff, decedent's wife, brought a medical malpractice action after her husband died of cardiac arrest due to an undiagnosed aortic dissection. A jury initially found four defendants negligent: A.O. Fox Memorial Hospital, Benjamin Friedell, Capital Cardiology Associates, and John Gould, awarding significant damages. On appeal, the court found insufficient evidence to support Fox's separate liability. Furthermore, the court determined that the jury charge regarding the Noseworthy rule was improper, potentially leading the jury to apply a lesser burden of proof on negligence. The court also ruled that the plaintiff's economic expert's testimony regarding lost earnings was speculative, lacking proper foundation. Consequently, the judgment was reversed, the motion to set aside the verdict for Fox's separate liability was granted, and the matter was remitted for a new trial on liability for Friedell, Gould, and Capital Cardiology Associates, as well as on damages.

Medical MalpracticeWrongful DeathAortic DissectionFailure to DiagnoseNegligenceProximate CauseJury Charge ErrorNoseworthy RuleDamages CalculationPecuniary Loss
References
26
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