The issue before the District Court was whether a viable claim had been asserted against the Hobby Lobby store manager in this slip-and-fall case. The District Court noted that an individual is not personally liable for negligence when acting as an agent or employee for a corporation in the absence of an independent duty to the injured party separate and “apart from the employer’s duty.” Slip op. at 6. The District Court rejected the plaintiff’s strained effort to demonstrate such a duty. Id. at 6-15. But it found that affording the plaintiff a chance to amend would not be futile and set a deadline by which she could attempt to amend. Id. at 15-17.
Judge Sparks Follows Fifth Circuit’s Lead and Enters Summary Judgment in Long-Running Insurance Dispute
This insurance dispute arose when a personal injury case unexpectedly resulted in a large judgment against the condominium complex where the injury occurred. Slip op. at 1-2. After the judgment was affirmed on appeal, the complex’s primary insurance carrier paid its policy limits plus interest. The excess insurer, Philadelphia Indemnity Insurance, refused to pay on the grounds that the condominium complex failed to provide notice of the claim until after the verdict. The issuer of the supersedeas bonds, Berkley Regional Insurance therefore paid the balance.
Berkley then sued as the assignee and subrogee of all rights held by the personal injury plaintiff, the condominium complex, and the primary insurer against Philadelphia. Id. at 2. The District Court granted summary judgment against Philadelphia on the grounds that it was not prejudiced as a matter of law by any failure to provide timely notice. Id. The Fifth Circuit reversed and remanded. Berkley Reg’l Ins. Co. v. Philadelphia Indemn. Ins. Co., 690 F.3d 342 (5th Cir. 2012).
On remand, the parties filed cross-motions for summary judgment. Berkley urged that Philadelphia received constructive notice of the claim by virtue of the condominium complex’s notice to an insurance agent/broker involved in securing the coverage. Slip op. at 7. The District Court reviewed Texas law on the subject as well as the pertinent contract between the agent/broker and Philadelphia, and concluded that notice to the broker was not notice to Philadelphia. Id. at 7-13.
The District Court then revisited the issue of whether Philadelphia was prejudiced by late notice. Id. at 15. While the Fifth Circuit did not decide that issue on appeal—and could not have done so at the time given the procedural posture—it strongly suggested that Philadelphia was prejudiced. Id. at 16-17. The District Court considered the record in view of the Fifth Circuit’s analysis and concluded that Philadelphia was prejudiced as a matter of law. Id. at 17. Therefore, it granted Philadelphia’s motions for summary judgment and denied Berkley’s cross-motion. Id. at 18.
Judge Cardone Disposes of Foreclosure Case by Rule 12(b)(6) Dismissal
Crucci v. Seterus, Inc., No. EP-13-CV-317-KC, slip op. (W.D. Tex. Nov. 21, 2013)(Cardone, J.)
The property owners in this foreclosure litigation obtained a temporary restraining order from a state court then defendants removed the case and filed a Rule 12(b)(6) motion. Slip op. at 1-2. Three weeks later, the property owners had failed to file a response and the District Court rejected their stock foreclosure claims—lack of proper notice under section 51.002 of the Texas Property Code and deed of trust, lack of an assignment to the mortgage servicer conducting the foreclosure, and breach of contract. Id. at 3-10. The District Court noted that a 12(b)(6) dismissal ordinarily affords the plaintiff an opportunity to amend. But that general rule does not apply when the plaintiff has pleaded his “best case.” The District Court presumed the property owners had given their best shot at the complaint based on their failure to respond and denied them any window in which to file an amended complaint. Id. at 13-14.