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

Case No. 08-04-00255-CV
Regular Panel Decision
Jun 16, 2005

in Re: Big 8 Food Stores, Ltd.

Big 8 Food Stores, Ltd. (Relator) sought a writ of mandamus against Judge Javier Alvarez (Respondent) after the trial court denied Big 8's motion to compel arbitration with its employee, Maria Marquez (Real Party in Interest). Marquez, an employee injured on the job, sued Big 8 for negligence. Big 8 asserted the existence of a signed arbitration agreement, which Marquez claimed she did not understand and was fraudulently induced into signing. The appellate court reviewed the denial of the motion to compel arbitration under the Federal Arbitration Act (FAA). The court found that Marquez had signed the agreement, received benefits under it, and there was no evidence of mental incapacity or fraud. The court also determined that Big 8's business operations involved interstate commerce, making the FAA applicable. Consequently, the appellate court conditionally granted the petition for writ of mandamus, directing the trial court to compel arbitration.

ArbitrationMandamusEmployment AgreementNegligenceFederal Arbitration ActContract LawUnconscionabilityInterstate CommerceTexas LawAppellate Review
References
42
Case No. 14-10-00756-CV
Regular Panel Decision
Nov 08, 2011

Otis Lee Harris, Sr. v. Rocking 8 Transportation., Inc.

Otis Lee Harris, Sr. appealed the granting of a motion for summary judgment in favor of Rocking 8 Transportation, Inc. Harris alleged breach of contract, claiming Rocking 8 failed to provide a promised lumbar support, leading to a debilitating back injury. Rocking 8 asserted an affirmative defense, claiming it was a subscriber to the Texas Workers' Compensation Act and therefore protected by its exclusive remedy provision. The appellate court found that Rocking 8 failed to meet its summary judgment burden by not conclusively proving it had workers' compensation insurance at the time Harris's alleged injury occurred. Specifically, the insurance policy provided by Rocking 8 expired before the end of Harris's employment, and the pleadings did not unequivocally establish the injury date within the coverage period. Therefore, the trial court's summary judgment was reversed, and the case was remanded for further proceedings.

Workers' CompensationSummary JudgmentBreach of ContractAffirmative DefenseExclusive RemedyTexas Labor CodeAppellate ReviewFactual DisputeInsurance CoverageEmployment Law
References
17
Case No. MISSING
Regular Panel Decision

Nardolillo v. Sovinsky

Plaintiffs, members of the Tile, Marble and Terrazzo Helpers Subordinate Union No. 8, sought to recover funds contributed by their employer to a trust fund. They argued that the discontinuation of employer contributions rendered them ineligible for benefits, making the trust's purpose impossible and leading to unjust enrichment by the fund. Defendants countered that such payments would violate the trust agreement and IRS provisions, maintaining that plaintiffs remained eligible. The court determined that the fund was a common trust, not individual escrowed accounts, and upheld the trustees' interpretation that ensured plaintiffs' continued eligibility, preventing a forfeiture of rights. Consequently, the plaintiffs' motion was denied, and the defendants' motion to dismiss was granted.

Union Trust FundEmployee BenefitsEmployer ContributionsTrust AgreementBenefit EligibilityFund AdministrationBreach of TrustFiduciary DutyDismissal MotionLabor-Management Relations Act
References
6
Case No. ADJ6699348
Regular
Mar 17, 2016

KANON MONKIEWICZ vs. RM STORE FIXTURES, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board (WCAB) issued a Notice of Intention to find that Labor Code section 4903.8(a) does not preclude awards to lien claimants Rx Funding Solutions, LLC and PharmaFinance, LLC. This is because the 2014 amendments to section 4903.8(a)(2) specify that it does not apply to assignments completed prior to January 1, 2013. Both of the lien claimants' assignments were made before this date, thus exempting them from the preclusion. The WCAB is amending its previous order and returning the case to the trial level for further proceedings on the merits of the liens.

Labor Code 4903.8Lien claimantsAssignment of receivablesCessation of businessPharmacy lienMedical lienSB 863AB 2732Prospective vs. retrospective applicationWCAB rules
References
10
Case No. ADJ7103630
Regular
May 21, 2012

DENISE SANCHES vs. COUNTY OF SACRAMENTO

This case involves Denise Sanches' workers' compensation claim against the County of Sacramento. The Workers' Compensation Appeals Board dismissed Sanches' Petition for Removal as untimely. The dismissal was based on the petition being filed on March 8, 2012, which was more than the allowed 25 days after the February 13, 2012, decision. This delay violated the time limits prescribed by 8 Cal. Code Regs. § 10843 and Code of Civil Procedure § 1013.

Petition for RemovalUntimelyDecision DateFiling Date25 Days20 Days8 Cal. Code Regs. 10843Code of Civil Procedure § 1013Served by MailDismissed
References
0
Case No. MISSING
Regular Panel Decision

Curran v. International Union, Oil, Chemical & Atomic Workers

Plaintiff, an employee of Carborundum Company, suffered a partial hand amputation in a "rubber roll" machine accident on March 8, 1979. He sued his unions, International Union, Oil, Chemical & Atomic Workers, AFL-CIO, and Abrasive Workers, Local 8-12058, Oil, Chemical & Atomic Workers International Union, alleging state law negligence for failing to safeguard him from dangers and a federal claim for breaching their duty of fair representation. The unions moved for summary judgment, arguing federal law preempts the negligence claim and they did not breach their duty of fair representation. The court granted the unions' motion regarding the negligence claim, ruling that a union's duty to its members, arising from a collective bargaining agreement, is governed exclusively by federal law and does not include a duty of care. However, the court denied the motion regarding the breach of fair representation claim, finding sufficient facts and allegations to infer that the unions may have discharged their duty in an arbitrary, perfunctory manner or in bad faith, thus leaving triable issues of fact.

Union LiabilityDuty of Fair RepresentationNegligence ClaimFederal PreemptionCollective Bargaining AgreementSummary Judgment MotionLabor LawWorkplace AccidentSafety and Health CommitteeArbitrary Union Action
References
8
Case No. MISSING
Regular Panel Decision

LoVerde v. 8 Prince Street Associates, LLC

Nicholas J. LoVerde, Jr., an employee of Timothy Kelly, suffered injuries from a scaffold fall while working on a building owned by defendants John Billone, Sr. and 8 Prince Street Associates, LLC. Plaintiffs initiated a personal injury action citing violations of Labor Law §§ 200, 240 (1), and 241 (6). The Supreme Court granted plaintiffs partial summary judgment on liability under Labor Law § 240 (1) and denied the defendants' motion to dismiss. Defendants appealed, contending plaintiff was not covered by Labor Law provisions due to how he was hired, and that his own actions caused the accident. The appellate court affirmed the lower court's decision, ruling that the defendants had contracted for the work and failed to prove plaintiff's conduct was the sole cause of the incident.

Scaffold AccidentPersonal Injury LitigationLabor Law § 240(1)Building DemolitionProperty Owner LiabilityContractor LiabilitySummary Judgment MotionAppellate AffirmationComparative NegligenceWorker Safety Regulations
References
7
Case No. MISSING
Regular Panel Decision

North 7-8 Investors, LLC v. Newgarden

The petitioner, North 7-8 Investors, LLC, sought a license under RPAPL 881 to enter the adjoining property of respondent Mark A. Newgarden for construction purposes, specifically for developing two seven-story buildings. Initially, the petitioner requested extensive access for shoring, roof protection, and scaffolding, leading to lengthy negotiations and respondent's objections regarding safety, architectural plans, and reimbursement for professional fees. As a result, the petitioner modified its plans significantly, reducing the need for direct access and proposing a cantilevered safety balcony into the respondent's air space. The court granted the petition for a one-year license with specific terms, including conditions for the safety balcony, insurance, indemnification, a monthly license fee of $3,500, and reimbursement for respondent's reasonable architectural and legal fees incurred in negotiation and enforcement, while denying the respondent's cross-motion for dismissal and sanctions.

Property LawReal Property Actions and Proceedings LawRPAPL 881License to EnterAdjoining PropertyConstruction LawAccess AgreementAttorney's FeesArchitectural FeesLicense Fees
References
11
Case No. MISSING
Regular Panel Decision

Public Administrator of Kings County v. 8 B.W.

This case concerns an appeal by defendants third-party plaintiffs regarding an order from the Supreme Court, Kings County. The appellate court modified the lower court's decision, denying the plaintiff's motion for summary judgment on liability under Labor Law § 240 (1) due to unresolved factual issues concerning the accident's cause and its relation to elevation risks. Concurrently, the court conditionally granted 8 B.W., LLC's cross-motion for common-law indemnification, as no evidence of its negligence was found. However, Freeport Construction Co.'s request for common-law indemnification was denied, as it failed to demonstrate a lack of active negligence in relation to a dangerous premises condition. Remaining issues concerning Labor Law §§ 200 and 241 (6) were not addressed as they were still pending.

Wrongful DeathSummary JudgmentLabor Law § 240(1)Common-Law IndemnificationThird-Party ActionAppellate ReviewElevation-Related RiskNegligenceWorksite SafetyVicarious Liability
References
10
Case No. ADJ1541863 (SBR 0317921) ADJ1955130 (SBR 0318072)
Regular
Oct 24, 2008

CAROL TELIZYN vs. BRASWELL'S COLONIAL CARE, STATE COMPENSATION INSURANCE FUND

The Appeals Board dismissed Arrowback Medical Group's (AMG) petition for reconsideration because it was successive and not taken from a final order, as the prior decision remanded the case for further proceedings. The Board also corrected the caption of its August 8, 2008 decision nunc pro tunc to include both relevant case numbers. AMG's core argument regarding the applicability of an expired fee schedule was previously addressed and found to be without merit.

Nunc Pro TuncPetition for ReconsiderationSuccessive PetitionFinal OrderInterim OrderRemandCaption CorrectionRepackaged PharmaceuticalsOfficial Medical Fee ScheduleLien Claimant
References
10
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