Two New Justices

Gov. Rick Perry has appointed two new courts of appeals justices. On July 1, Perry announced his appointment of Rebeca Huddle, a partner in Baker Botts in Houston, to serve as a justice on the 1st Court of Appeals. Huddle replaces Justice Elsa Alcala , who left the court this year to serve on the Court of Criminal Appeals. “I’m looking forward to working with my new colleagues. I am looking forward to the opportunity to give back to the community and serve the community in a more meaningful way,” Huddle says. Huddle earned her law degree from the University of Texas School of Law in 1999. At Baker Botts, she says she “handled matters ranging from small personal-injury defense to large complex shareholder litigation, and lots of business disputes in between.” Huddle will take her seat on the Houston appellate court in early August; she says she will spend the coming weeks working with Baker Botts partners to transition her matters to other lawyers. She says she has wanted to be a judge for a few years, because she thinks it would be an honor to serve the state. “I’m grateful to Gov. Perry for the appointment, and I’m very much looking forward to what is an extraordinary opportunity to serve Texas,” she says. Her appointment expires at the next general election, and she says she will run in 2012. Perry spokeswoman Lucy Nashed writes in an e-mail that the governor is thankful Huddle will serve in the position. He considers applicants’ qualifications and willingness to serve when making appointments, she writes. On July 7, Perry announced his appointment of Daniel “Eric” Kalenak to the 11th Court of Appeals to fill a vacancy created when Justice Rick Strange resigned on April 17. Strange now is of counsel at Midland’s Cotton, Bledsoe, Tighe & Dawson . Kalenak, the first assistant DA for the Midland County District Attorney’s Office and a captain in the U.S. Army Judge Advocate General Corps, did not return a telephone call seeking comment before presstime.

Too Much Pressure?

On July 6, Tabitha Washington filed an amended complaint in federal court in Houston against Wolfgang Puck Worldwide and its subsidiaries W.P. Appliances Inc. and W.P. Productions Inc. In Tabitha Washington v. Wolfgang Puck Worldwide Inc., et al. , Washington alleges she purchased a Wolfgang Puck 7 Quart 4-in-1 Pressure Cooker from the Home Shopping Network Inc. and in 2009 she used it to make gumbo. “At the end of the ‘soup’ cycle, the cooker beeped indicating that the gumbo was finished cooking. As the cooker instructions required, [Washington] unplugged the Cooker and ‘vented’ or reduced the pressure to allow all the steam to escape. . . . Approximately twenty minutes later, Plaintiff opened the lid to the Cooker. Immediately upon opening the lid, the gumbo spewed up from the Cooker sending boiling juices throughout the kitchen and all over Ms. Washington’s body. . . . Immediately upon contact, the scorching juices shattered Ms. Washington’s glass oven door [and] also landed directly on Ms. Washington’s clothing and bare skin causing second and third degree burns to her chest/breasts, stomach, arm, leg, and foot. Ms. Washington was immediately rushed to the emergency room in excruciating pain and treated for her injuries. . . .” In her complaint, Washington alleges negligence and gross negligence, breach of warranty, strict product liability and joint enterprise causes of action, and she seeks damages and exemplary damages of more than $75,000. In a July 7 answer to Washington’s amended complaint, the defendants deny the allegations and “affirmatively plead that Washington’s claims are barred, in whole or in part, by Washington’s contributory negligence.” The defendants also allege that “Washington failed to exercise ordinary care, caution, or prudence to prevent the alleged incident. . . .” Still pending is the defendants’ Feb. 14 motion seeking partial summary judgment and dismissal of some claims; they allege Washington delayed serving them with process and did not exercise due diligence when attempting to do so. Washington’s lawyer, Tony R. Taft of the Taft Law Firm in Houston, did not return a telephone call seeking comment. Michael M. Gallagher , a shareholder in Houston’s Hays, McConn, Rice & Pickering , represents the defendants.

Settlement Interpretation

Three former clients of Dallas’ Gruber Hurst Johansen Hail Shank have sued the firm and two of its partners, alleging the clients were not informed they would be “personally liable” in a settlement they agreed to as part of the resolution of a business dispute case. The original petition in John Rochon, et al. v. Gruber Hurst Johansen Hail Shank, et al. , filed in Dallas’ 193rd District Court on June 24, names firm partners G. Michael Gruber and Rodolfo Rodriguez Jr. as defendants. “Plaintiffs never agreed to any personal liability, and have vigorously defended themselves against this interpretation of the Settlement Agreement” yet were found personally liable in a summary judgment ruling by the trial court in the underlying suit, the plaintiffs allege in their petition. “This finding is completely adverse to the repeated communications and advice given to Plaintiffs from their attorneys (i.e. Defendants) during negotiations and drafting of the Settlement Agreement.” Gruber and Rodriguez each did not return a telephone call seeking comment. Dick Sayles, a partner in Dallas’ Sayles Werbner who represents all the defendants, says his clients deny the allegations. “The case is clearly baseless, without merit, and the settlement agreement was clear on its face,” Sayles says. “The parties were sophisticated parties and had the agreement reviewed by at least two lawyers independent and outside of the Gruber law firm.” Scott Doody, an Irving solo who represents the plaintiffs in Rochon , did not return a telephone call seeking comment.

New Dallas DA First Assistant

Dallas County District Attorney Craig Watkins looked inside his own office and on July 1 selected Heath Harris to be his first assistant. Harris replaces veteran prosecutor Terri Moore, who left the office July 1 to begin a criminal-defense practice in her hometown of Fort Worth. Watkins says Harris is not only a trusted colleague but a friend; they met in the mid-1990s when both lawyers were working in a misdemeanor court — Watkins as a public defender and Harris as a prosecutor. “We became really good friends. I went into private practice before he did,” Watkins says. When Watkins won his first election as DA in 2006, he hired Harris as a gang prosecutor. “He was one of the first choices I brought back in the office. We had individuals that we had been grooming for leadership” and Harris was one of them, Watkins says, adding that Harris worked his way up the ranks at the DA’s office. Harris, who has served as administrative chief of the intake/grand jury division and chief of the gang unit, says he hopes to follow Moore’s lead as Watkins’ first assistant. “I think she pretty much laid good groundwork for what it’s like to be in that position, and I’m going to follow that blueprint,” Harris says.

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* “Three Prosecutors Leaving Dallas District Attorney’s Office

Communicable Disease Coverage?

In July 1′s Lancer Insurance Co. v. Garcia Holiday Tours , the Texas Supreme Court had to struggle with this insurance coverage question: Does an automobile liability policy cover the transmission of a communicable disease? That question is not only an issue of first impression for Texas but “perhaps the country,” the high court noted. According to the opinion, three passengers on a Garcia tour bus who alleged they contracted latent tuberculosis from the bus driver sued the bus company and won more than $5 million. Garcia sought coverage from its automotive carrier Lancer, Lancer refused to pay, and Garcia sued Lancer seeking a declaration of rights under the policy. The trial court sided with Garcia and concluded that the policy indemnified the underlying judgment, but San Antonio’s 4th Court of Appeals reversed and remanded because there was no conclusive proof the passengers were infected on the bus. Lancer appealed to the high court. “We conclude that the transmission of a communicable disease from a bus driver to his passengers was not a risk assumed by the insurance carrier under this business auto policy because the passengers’ injuries did not result from the vehicle’s use but rather from the bus company’s use of an unhealthy driver,” wrote Justice David Medina in a unanimous decision, ruling that Garcia take nothing on the indemnity claim against Lancer. “We learned that automobile insurance policies do not cover communicable diseases,” says Tom Bishop, a partner in Dallas’ Bishop & Hummert who represents Lancer. David George, a partner in Houston’s Connelly Baker Wotring who represents Garcia Holiday Tours, is disappointed in the court’s answer to the unusual question. “That’s what I said at oral argument — how little law there is on this,” George says. “We hear about these cases all of the time — people passing diseases in subways. I thought there would be more case law on this.”