X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Lillian Howell ordered cable television services from TCI Cablevision of Dallas Inc. TCI Cablevision subcontracted installation of Howell’s services to Almar Realty. Almar Realty, in turn, subcontracted installation to TS Communications. And, finally, TS Communications subcontracted installations to Jon Scott Chiesl, in the contract that is the subject of Howell’s claim against TS Communication (the contract). The contract included an insurance addendum that required Chiesl to provide TS Communications with proof of general liability insurance covering personal injury incurred during installation projects. The addendum went on to state that if Chiesl did not provide proof of general liability insurance, then TS Communications would add Chiesl to its own policy and deduct the premiums from Chiesl’s pay. Despite the addendum’s directives, Chiesl did not procure general liability insurance, and TS Communications did not add Chiesl to its policy. On Aug. 20, 1999, Chiesl and his employee, Todd Barnes, went to Howell’s home to install cable services. The floor in Howell’s bedroom closet contained an access to the crawl space under the house. Barnes opened that access, pulled the cable from under the house and connected it inside. Barnes then went outside to perform the outside connection. On his way out, he stated he was finished working in the bedroom. Howell then began vacuuming in the bedroom to clean up dirt tracked in from under the house. The lights went out while she was vacuuming. Thinking a circuit breaker had been tripped, Howell walked in the dark to the bedroom closet, where the breaker box was located. She fell through the opening in the floor and was severely injured. In July 2001, Howell sued TCI Cablevision, TS Communications, Chiesl and Barnes. Two claims are relevant to this appeal: Howell alleged negligence on the part of Chiesl and � assuming the role of third-party beneficiary � breach of the Contract by TS Communications. In May 2002, Howell nonsuited Chiesl, who had filed bankruptcy. Through the pendency of Howell’s suit, TS Communications filed a series of summary judgment motions. Finally, TS Communications filed Defendant TS Communications Inc.’s Fourth Motion for Summary Judgment. In this Motion, TS Communications assumed, for purposes of the summary judgment proceedings only, that Howell was a third-party beneficiary of the contract and its addendum. The motion argued that even if TS Communication had added Chiesl to its policy, Howell could not have collected on that policy because she had not obtained a judgment against Chiesl, a prerequisite to suing the insurer directly. Moreover, TS Communications argued, Howell could never obtain such a judgment because limitations had now run on her claim against Chiesl. Thus, according to TS Communications, Howell could never establish that TS Communications’ failure to provide a policy under which Howell could be made whole could have been the legal cause of any injury to Howell. The trial court granted the motion. Howell appealed. HOLDING:Affirmed. The court concluded that TS Communications’ summary judgment motion successfully negated Howell’s ability to prove that TS Communications’ breach of the contract was the legal cause of her damages. First, the court stated, Texas law would have required Howell’s claim against Chiesl to be reduced to judgment before an insurer would have any obligation to pay on the claim. Second, the court stated, Howell lacks a judgment against Chiesel and because any such claim is now barred by limitations, cannot obtain such a judgment in the future. Accordingly, the court concluded that the trial court correctly granted summary judgment in favor of TS Communications. OPINION:FitzGerald, J.; Moseley, FitzGerald and Lang, J.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.