Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of March 30, 2009

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

Bruton v. Underwriters at Lloyd’s, London,    No. 02-08-00122-CV    (Apr. 2, 2009)    (McCoy, J., joined by Livingston, J.; William Brigham, J. (Senior Justice, Retired, Sitting by Assignment), dissents without opinion).

Held:    There is nothing in the plain language of the insurance policy that would have put Appellant on notice that once Underwriters tendered him a check he would lose all rights to his property. Therefore, because any ambiguity is to be resolved in favor of the insured, Underwriters did not have the right to sell Appellant’s property until Appellant had negotiated the check and executed the power of attorney.

Paschall v. State,    No. 02-07-00461-CR    (Apr. 2, 2009)    (Walker, J., joined by Cayce, C.J.; Dauphinot, J., dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:    Penal code section 49.01(2)(A) sets forth a two-pronged definition of “intoxication.” The evidence is legally and factually sufficient to establish both prongs of the penal code’s intoxication definition so as to prove Paschall was driving while intoxicated (DWI). The State offered sufficient evidence to establish that Paschall had previously twice been convicted of DWI. The trial court did not abuse its discretion by admitting State’s Exhibits 5 and 6.

Dissent:    The evidence is legally insufficient to establish intoxication because there is no proof of the introduction of a drug or controlled substance or alcohol into Paschall’s body.

>Polone v. Shearer,    No.    02-08-00325-CV    (Apr. 2, 2009)    (William Brigham, J. (Senior Justice, Retired, Sitting by Assignment), joined by Livingston and McCoy, JJ.).

Held:    The trial court abused its discretion by denying Polone’s motion to dismiss on the ground that the challenged medical expert reports were deficient for failing to adequately set forth the applicable standards of care. One of the expert reports fails to delineate between the standard of care applicable to a physician’s assistant and the standard of care applicable to a physician, and the other report sets forth a single standard of care for both Polone and the physician defendant instead of identifying the specific standard of care applicable to each. The case is remanded, not dismissed.

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