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II. Owen’s Judicial Philosophy 

Justice Owen’s judicial philosophy can be discerned only through her written opinions. She has no known published articles, speeches or other writings. In more than seven years on the Texas Supreme Court, Owen has authored or joined dissents 87 times, while authoring just 48 majority opinions (ultra-conservative Justice Hecht authored many of the dissents that Owen joined). This section lists and then summarizes key cases that reflect Owen’s judicial philosophy.

B.   Case Summaries

$ = Contributor-Conflict Case
A = Activist/Extremist Case
C = Anti-Consumer Case
J = Anti-Jury Case
* = Precedes the court’s 1998 swing toward the center (which left Owen and Hecht isolated).

*City of McAllen v. De La Garza, 898 S.W.2d 809 (Tex. 1995) C/J
Owen wrote majority opinion re landowner duty to warn of roadside dangers.

Robert Garza was drinking while under the influence when he veered off the road, plowed through a wire fence and flipped upside down into a 29-foot-deep limestone pit that a city had purchased for a landfill. His 16-year-old passenger, Aaron De La Garza, was killed. The victim’s parents alleged that the city was negligent for failing to maintain dirt embankments in front of the pit and for failing to warn motorists of the resulting danger. While the trial court granted summary judgment for the city, the court of appeals reversed and remanded, concluding that the city failed to establish that it owed no duty to De La Garza as a matter of law. Without holding oral arguments in the case, Owen wrote a majority opinion that reversed the court of appeals, holding that no duty was owed because the driver was intoxicated. Justice Cornyn’s dissent argued that the court should not decide this novel duty question “without the benefit of oral argument.” Cornyn’s dissent also argued that the city failed to prove as a matter of law that it owed no duty to travelers on the adjoining highway. He concluded that whether or not the driver was traveling with reasonable care was a comparative-negligence question for the jury.

*Clayton W. Williams, Jr., Inc v. Olivo, 952 S.W.2d 523 (Tex. 1997) $/J
Owen joined majority opinion re premises defects and worker injuries.

After David Olivo was paralyzed in an oil-rig fall, Owen joined Justice Baker’s majority opinion that reversed a jury verdict of $2 million in actual damages against a contractor. The court held that Olivo’s attorney failed to prove the existence of a premises defect. By ruling on this point as a matter of law, the court trumped a jury’s factual findings and deprived Olivo of compensation for his paralysis. The beneficiary of this decision, Mr. Clayton Williams, Jr., contributed $1,250 to Owen’s 1994 campaign.

Concord Oil Co. v. Pennzoil Exploration & Production Co., 966 S.W.2d 451 (Tex. 1998) $/A/J
Owen wrote a plurality opinion on the construction of an oil and gas contract.

The parties to this case disputed the meaning of a deed that granted Concord Oil a tiny (1/96th) interest in the oil and gas produced on a piece of land, as well as a larger share (1/12th) of all rentals and royalties produced on that land. Despite this language, Concord claimed that the deed unambiguously granted it a 1/12th interest in oil and gas produced on this land. Pennzoil countered that all that the deed conveyed to Concord was a 1/96th interest in the oil and gas. A jury verdict and trial court judgment that was affirmed by a court of appeals found for Pennzoil. Owen’s activist plurality opinion overturned these lower courts to rule for Concord. Dissenting and concurring opinions filed in the case objected that her opinion violated rules of construction by: finding ambiguity in an unambiguous contract; presupposing what the grantor meant rather than relying on what the deed said; and by setting new precedent by reading a future-lease clause into a deed in which the parties expressed no intent about future events. A year after the decision, Concord Oil President Tom Pawel pumped $1,000 into Owen’s campaign fund.

*Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996) A/J
Owen joined a unanimous opinion re the retaliatory firing of injured worker.

Juanita Cazarez alleged that a Quaker Oats subsidiary fired her in retaliation for filing a worker’s compensation claim for a job-related injury. A jury awarded Cazarez $500,000 in punitive damages. Owen joined Chief Justice Phillips’ unanimous decision that reversed a trial court and court of appeals by overruling their finding that the employer acted with malice in firing Cazarez.

Dallas County Mental Health v. Bossley, 968 S.W.2d 339 (Tex. 1998) A/C/J
Owen joined a majority opinion re sovereign immunity and causation in a wrongful death case.

Owen joined Hecht’s majority opinion that reversed a court of appeals and affirmed a trial court summary judgment that found no causal link between a mental hospital leaving its doors open and suicidal patient Roger Bossley escaping and killing himself by leaping in front of a truck. Justice Abbott’s dissent argued that if the hospital had not left the doors open, “Bossley would still be in the hospital—he would have never escaped and would not have had the opportunity to jump in front of a truck.” By narrowly interpreting sovereign immunity claim limits, the court blocked future juries from deciding similar questions of fact.

Dickinson Arms–Reo, L.P. v. Campbell, 35 S.W.3d 633 (Tex. 2000) $/A/C/J
Owen joined a dissenting opinion assessing landlord liability for crimes committed on the premises.

Leaving a teenage gang “get-together” at a friend’s apartment in the Dickinson Arms apartment, a recidivist juvenile delinquent murdered Joe Darwin Campbell and stole his pick-up truck. Campbell’s family alleged that the apartment owners negligently failed to provide adequate security. The trial court rendered judgment on a jury verdict for Campbell’s family and the court of appeals affirmed this decision. When the Texas Supreme

Court denied the apartment owners’ petition for review, Justice Hecht wrote a dissent, which Owen joined. The dissent questioned the foreseeability of the crime given that, “Never before had there been a murder or a car-jacking at the Dickinson Arms.” As the dissent conceded, however, police had reported 184 crimes at this apartment building in the previous two and a half years, including one instance in which shots were fired. The dissent also acknowledged that the court of appeals had concluded that the surrounding area was a hot bed of drug activity, prostitution “assaults, child abuse, you name it.” Owen took $7,500 from the Texas Apartment Association.

*Enron v. Spring Independent School District, 922 S.W.2d 931 (Tex. 1996) $/C
Owen wrote majority opinion on the constitutionality of a tax statute.

Owen wrote a unanimous opinion that prevented one of the justices’ biggest donors, Enron Corp. from paying $224,989 in school taxes. This opinion reversed a court of appeals ruling that a state law violated the Texas Constitution’s guarantee of tax equality and uniformity. The disputed law granted corporations flexibility to pick the date used for property tax inventories (Enron’s gas inventories are subject to dramatic seasonal fluctuations). Owen’s opinion said “we need not decide the consequences of transfers [i.e. shuffling inventory among subsidiaries] that occur for tax evasion purposes.” Enron’s PAC and executives have given $8,600 to Owen’s campaigns.

Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex. 1998) A/C/J
Owen wrote a plurality opinion re product liability and venue.

Owen authored this divisive, plurality opinion that overturned a jury verdict, a court of appeals affirmation and years of well-established venue precedents. The underlying case involved allegations that a faulty seatbelt used in a pickup truck accident paralyzed teenager Willie Searcy, severing his brain from his spinal cord. A jury awarded the plaintiffs $30 million in actual and $10 million in punitive damages. The court of appeals affirmed the actual damages but reversed the punitive damages, finding insufficient evidence of gross negligence and malice. Despite the fact that the Supreme Court did not grant writ in this case on the venue issue (and had not been argued or briefed on venue), Owen’s plurality opinion notably reversed and remanded on the venue issue. “A reviewing court must defer to the trial court’s venue determination if any probative evidence supports the trial court’s venue ruling,” noted the dissent of four justices. “Resolution of venue issues perforce requires detailed factual analysis; the court’s failure to give due weight to the facts in this case is thus all the more troubling.” The dissent also noted that Owen improperly discussed jury charge and evidentiary issues in this remanded case. Her opinion also disparaged plaintiff evidence, arguing that it should not have been admitted at all.

FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000) $/A/C
Owen wrote and joined dissents on the constitutionality of an anti-environmental statute.

A Texas Supreme Court majority issued a summary judgment that held that a state law tailored to let specific developers dodge City of Austin water-quality rules unconstitutionally delegated legislative powers to private landowners. Owen’s forceful dissent decried the majority for curtailing the private property rights of the developers. The majority opinion retorted that, “most of Justice Owen’s dissent is nothing more than inflammatory rhetoric and thus merits no response.” The development company seeking the special favor was owned by mining giant Freeport McMoRan. Owen received a total of $2,500 from a Freeport director and its chairman, Jim Bob Moffett. She also received $45,458 from the developer’s legal counsel.

*Grain Dealers Mut. Ins. v. McKee, 943 S.W.2d 455 (Tex. 1997) $/A/C/J
Owen joined a majority opinion assessing an insurer’s contractual right to deny a claim.

Gerald McKee’s insurer refused to pay claims relating to injuries that his 11-year-old daughter, Kelly, sustained in a car crash. The trial court and the court of appeals granted summary judgment for McKee. Owen joined a majority opinion by Justice Abbott that ruled that how the language of the insurance policy was construed was a matter of law to be determined by the court rather than a question of fact for the jury. The high court reaffirmed the trial court’s summary judgment that narrowly interpreted this contract in favor of the insurer. Justice Spector’s dissent said, “The majority’s conclusion that the policy language at issue here is not ambiguous defies commons sense: the two lower courts in this case and the courts of several other states have discerned a lack of clarity that escapes the majority.” Owen received $6,572 from the Texas Association of Insurance Agents.

GTE v. Bruce, 998 S.W.2d 605 (Tex. 1999) $/A/C
Owen wrote a concurring opinion re sex-related inflictions of emotional distress in the workplace.

A high court majority upheld trial court and court of appeals decisions that awarded $275,000 in jury damages to three female GTE employees. The women all worked under an alpha-male supervisor who bullied them by charging them like a bull, screaming profanities, forcing them to do menial cleaning chores and making them stand in his office while he leered at them. Owen wrote a concurring opinion to clarify that such behavior should not be considered “extreme and outrageous” nor “utterly intolerable in a civilized community.” Owen received $1,000 from GTE’s “Good Government Club.”

Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854 (Tex. 1999) $/A/C/J
Owen wrote a majority opinion re mental anguish and Texas’ Deceptive Trade Practices Act.

Donald O’Byrne bought a car from a dealer who repeatedly lied to him, falsely claiming that that the car was new and had never been damaged. A jury granted him $71,500 in actual and punitive damages under the Deceptive Trade Practices Act. The dealer unsuccessfully appealed to the court of appeals, arguing in part that there was insufficient evidence to support the jury’s $11,000 mental anguish award. Owen’s majority opinion reversed the $11,000 that the jury awarded to the plaintiff for mental anguish, as well as $50,000 in punitive damages, arguing that the evidence presented did not meet the “high degree of mental pain and distress” required by Texas law. While the jury was swayed by O’Byrne’s testimony that he had been aggrieved each time he discovered a new flaw in the damaged car, Owen’s opinion substituted her own finding that this testimony was unconvincing and “conclusory.” This activist opinion goes beyond the “sufficiency of evidence” standard for reviewing mental anguish damages, infringing upon the Texas Constitution, which grants juries rather than judges the role of weighing evidence. Dealership owner Curtis Gunn, Jr., contributed $500 to Owen’s 1994 campaign.

*Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179 (Tex. 1995) $/A/C/J
Owen joined a majority opinion assessing damages for legal malpractice.

Shortly after a mall opened with a Blockbuster video store as its anchor tenant, Blockbuster backed out of its lease. In the ensuing litigation, the mall hired a Haynes & Boone attorney, whom the firm later admitted had bungled the case by missing two court deadlines. The resulting summary judgment allowed Blockbuster to lift anchor and the mall was foreclosed upon. A trial court and court of appeals upheld a $4.4 million malpractice award against Haynes & Boone. A unanimous Supreme Court decision did not dispute the malpractice finding, but found “no evidence” supporting the damages against the law firm. Owen received $16,510 from Haynes & Boone and its attorneys.

H.E. Butt Grocery Co. v. Vinnie Bilotto, 985 S.W.2d 22 (Tex. 1998) $/C/J
Owen joined dissenting opinions re jury charges in personal injury lawsuits.

A court of appeals and Supreme Court majority affirmed a trial court judgment that granted $91,000 in actual damages to Vinnie Bilotto, who injured his back in a fall at an HEB grocery store. Owen joined two dissents that argued that juries should not be informed of the effects of their answers and that this impermissibly was done when damages questions to the jury were predicated on negligence findings of 50 percent or less negligence. Justice Gonzalez’s concurrence said that the dissenters must have a low opinion of jurors if they believe that a jury does not know that its findings in a personal injury case affect damage awards. HEB owner Charles Butt, who has hosted fundraisers for justices in his home, personally has given $7,500 to Owen. In a 1996 case similar to Enron v. Spring Independent School District, the high court issued an unsigned per curiam opinion that reversed a court of appeals decision in order to let HEB pay taxes on just one of the six stores that it operated in Jefferson County [H.E. Butt Grocery Co. v. Jefferson County Appraisal District, 922 S.W.2d 941 (Tex. 1996)].

Hernandez v. Tokai Corporation, 2 S.W.3d 251 (Tex. 1999) C/J
Owen joined a majority opinion re child safety and product liability.

Two-year-old Ruben Hernandez was severely burned by a fire that his sister started with a butane lighter from her mother’s purse. The Hernandezes filed a product liability suit against the manufacturer for marketing lighters without readily available child-safety features. Owen joined Hecht’s unanimous opinion that severely curtails the responsibility of manufacturers to incorporate child safety into the design of products intended for adult use. The court’s ruling came on a certified question from the U.S. 5th Court of Appeals after a trial court had issued summary judgment for the defendants, thereby preventing the case from going to a jury.

In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001) A/C
Owen wrote a majority opinion re disclosure of government records.

Owen’s controversial majority opinion rewrote the Texas Public Information Act to block the media from seeing an engineering report that a city commissioned in response to a lawsuit over sewage plant discharges. Owen’s opinion overruled the Texas Attorney General and the trial court, which both ruled in favor of disclosing this taxpayer-financed report. To reach this result, Owen plowed under statutory language that said that the courts could not shield from disclosure any information that is not expressly made confidential by the statute. The legislature expressly wrote into the statute that the Public Information Act “shall be liberally construed in favor of granting a request for information.” Owen’s decision departs from court precedent on statutory interpretation. The court previously held that “a court may not judicially amend a statute and add words that are not implicitly contained in the language of the statute.”[See Lee v. City of Houston, 807 S.W.2d 290 (Tex. 1991)]. Justice Abbott’s dissent concluded, “Today, the Court abandons strict construction and rewrites the statute.” Owen lists this as one of, “Ten significant opinions that I have written.”

In re Jane Doe, (five opinions delivered in 2000) A/C
(1) 19 S.W. 3d 249; (2) 19 S.W. 3d 278; (3) 19 S.W. 3d 300; (4) 19 S.W. 3d 337; (5) 19 S.W. 3d 346.
Owen wrote dissenting and concurring opinions re a statute governing teenage abortions.

A recent Texas law requires minor women who seek an abortion to obtain parental consent unless a court grants a “judicial bypass” based on its finding that: the applicant is “mature and sufficiently well informed” to make the decision herself; notification would not be in the applicant’s “best interest;” or “notification may lead to physical, sexual, or emotional abuse” of the applicant. Owen wrote or joined separate concurring or dissenting opinions from the majority in all five cases, often questioning the maturity of the anonymous “Jane Doe” applicants and belittling their fears of notifying their parents. Owen was most disturbing in the concurring opinion she wrote in In re Jane Doe 2, a case in which the majority identified four factors that trial courts should use to determine if parental notification would serve the applicant’s best interests. Owen’s concurring opinion criticized the majority for not requiring trial courts to find that the abortion itself would be in the applicant’s best interest. Given that the underlying statute never mentions such a criteria, Owen sought to make rather than interpret abortion law. Owen received $12,350 from the family of anti-abortion activist James Leininger.

*Johnson & Johnson Medical v. Sanchez, 924 S.W.2d 925 (Tex. 1996) A/C/J
Owen wrote a dissenting/concurring opinion re wrongful termination of an injured worker.

Martha Sanchez suffered an on-the-job injury that kept her out of work for a long time. After several months, Johnson & Johnson put her on “indefinite medical layoff,” meaning that she would be rehired for the first available job after her doctor cleared her to return to work. Sanchez filed suit against the company for never rehiring her. A trial court issued summary judgment for the employer on the grounds that the statute of limitations had expired. The court of appeals and the Supreme Court reversed and remanded the case for further trial proceedings on a question of fact. Owen’s dissent argued that the suit was unequivocally barred by the statute of limitations, an issue that the majority deemed ambiguous.

*Kerville State Hosp. v. Clark, 923 S.W.2d 582 (Tex. 1996) C/J
Owen joined a majority opinion re sovereign immunity in a wrongful death case.

The week after a mental hospital released patient Gary Ligon, he dismembered his estranged wife, Rebecca. Her parents alleged that the hospital was liable because it administered short-term rather than long-term drugs to a dangerous patient who had a history of not taking medications. Owen joined Justice Gonzalez’s 5-4 majority decision that ruled that this hospital was immune from a Texas Tort Claims Act lawsuit, thereby overturning a jury award of $2 million (which the trial court reduced to $250,000). Justice Abbott’s dissent said that “the Court incorrectly interprets the facts and abandons precedent.”

Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001) A/J
Owen joined a concurring/dissenting opinion re liability for interfering with child custody rights.

Deana Lozano won custody of her daughter, Bianca, after separating from her husband, who later kidnapped the child. Deana Lozano then sued her husband’s family under Texas family law provisions that impose liability on those who interfere with a parent’s possessory interest in a child. The trial court rendered judgment on a jury verdict that included $1.2 million in punitive damages. The Texas Supreme Court reviewed the case to determine if there was legally sufficient evidence to uphold this verdict in a case where the evidence of the family’s complicity was sketchy. The court’s per curiam decision reaffirmed the equal inference rule, which emphasizes the role of the jury over the judiciary in determining what evidence to privilege in the jury’s fact-finding search. Owen joined a separate dissenting and concurring opinion by Hecht that would severely curtail the fact-finding function of juries.

*Merrell Dow Pharm. v. Havner, 953 S.W.2d 706 (Tex. 1997) A/C/J
Owen wrote a majority opinion re admissibility of expert testimony in a defective product case.

The Havner family’s lawsuit alleged that the morning sickness drug Bendectin caused their daughter, Kelly, to be born with severe birth defects. Owen’s majority opinion used extremely strict limits on the admissibility of expert testimony to overturn a jury award of $3.75 million in actual damages and $30 million in punitive damages (the trial court reduced the punitives to $15 million). Owen lists this as one of, “Ten significant opinions that I have written.”

*Mid-American Indemnity Insurance Co. v. King, 22 S.W.3d 321 (Tex. 1995) A/C
Owen wrote a dissenting opinion interpreting a statute that set capital requirements for insurers.

After the Lopez-Gloria construction firm bought insurance from Mid-American Indemnity, Texas passed a 1993 law that required certain insurers that fail to maintain $15 million in capital reserves to post bonds prior to filing court pleadings, thereby ensuring that they pay any judgments. Lopez-Gloria then sued Mid-American for refusing to defend it in a suit covered by its policy. When Mid-American failed to obey a trial court order to post bond, the court issued a default judgment against it. Justice Spector’s majority opinion denied mandamus relief to the insurer, citing the Texas Insurance Code as evidence of the “Legislature’s efforts to protect Texas consumers from unauthorized insurers that lack adequate capital.” Owen’s dissent argued that the legislature intended to grandfather then-existing insurance policies from the new requirements that it passed in 1993. The majority warned that a reading of the statute would pose “a real danger that an unlicensed carrier would not have sufficient capital at the time the policy was issued [and that] it would neither have to post any bond in court nor maintain adequate reserves.” The majority could not square this outcome with the legislature’s intent.

Operation Rescue v. Planned Parenthood, 975 S.W.2d 546 (Tex. 1998) A/C
Owen joined a majority opinion re the First Amendment and abortion clinic access.

Owen joined Hecht’s majority opinion that severely restricted the “buffer zones” that a trial court established to protect the entrances of Houston abortion clinics from aggressive protesters. Justice Spector’s dissent criticizes the majority for, “Ignoring the district court’s unchallenged finding that ‘Defendants’ aggressive and harassing manner of protesting and sidewalk counseling of clinic patients increases the medical risks attendant to the abortion procedure.’ ” Owen received $12,350 from the family of anti-abortion activist James Leininger.

*Peeler v. Hughes & Luce and Darrell C. Jordan, 909 S.W.2d 494 (Tex. 1995) $/C
Owen joined a plurality opinion assessing damages for legal malpractice.

Securities worker Carol Peeler plead guilty to federal tax fraud in a plea bargain that involved a fine and probation but no jail time. Three days later, she learned from a reporter that the prosecutor had contacted her lawyer to offer her immunity in exchange for her cooperation with a wider IRS probe. Peeler filed a legal malpractice suit over the fact that she was never informed of this offer. Owen joined Justice Enoch’s plurality opinion that upheld a trial court and court of appeals judgment. These rulings held that Peeler could not collect even for egregious malpractice because she was a convicted criminal. Chief Justice Phillips’ dissent argued that the issue of guilt is “irrelevant” when considered against Peeler’s lost opportunity to receive immunity for her crime. Hughes & Luce and its attorneys contributed $14,236 to Owen’s 1994 campaign.

Praesel v. Johnson, 967 S.W.2d 391 (Tex. 1998) $/A/C/J
Owen wrote a majority opinion re a doctor’s duty to warn of dangers posed by an epileptic motorist.

Terri Lynn Praesel was killed in an accident caused by Ronald Peterson, a motorist having an epileptic seizure. Praesel’s family alleged that a physician who was aware of a recent Peterson seizure should have notified the authorities that Peterson should not drive. A trial court ruled in a summary judgment that the doctor owed no such duty to third parties, but the court of appeals reversed and remanded the case for trial. In reversing the court of appeals and again issuing summary judgment for the defendant, Owen’s majority opinion kept the issue from a jury. Justice Enoch’s concurrence criticized Owen’s opinion for misreading the record and ignoring contrary case law. Owen took $13,261 from the Texas Medical Association.

Provident American Ins. v. Castaneda, 988 S.W.2d 189 (Tex. 1998) $/A/C/J
Owen wrote a majority opinion re insurance claim liability under the Deceptive Trade Practices Act.

Denise Castaneda sued her insurer for not covering her medical costs after she had to have her spleen and gallbladder removed due to a hereditary blood disease. A jury awarded her $50,000 in damages, which the trial court trebled under the Deceptive Trades Practices Act. Owen’s majority opinion overturned two lower courts, finding insufficient evidence of liability. In so doing, the opinion created a new defense for insurance companies that deny claims due to pre-existing conditions. Criticizing the majority for second guessing the jury, Justice Gonzalez’s dissent said, “The Court’s opinion may very well eviscerate the bad-faith tort as a viable claim of action in Texas. If the evidence in this case is not good enough to affirm judgment, I do not know what character or quality of evidence would ever satisfy the Court.” Owen received $6,572 from the Texas Association of Insurance Agents.

Read v. The Scott Fetzer Co., 990 S.W.2d 732 (Tex. 1998) A/C/J
Owen joined dissenting opinions re business liability for a door-to-door salesman who raped a customer. Mickey Carter raped Kristi Read in her home after an independent contractor hired him to make door-to-door sales of Kirby vacuum cleaners. Had the distributor checked Carter’s references, it would have learned that his former female coworkers had complained of his sexually inappropriate behavior and that one employer fired Carter because he was arrested for indecency with a child. A jury awarded Read $160,000 in actual and $800,000 in punitive damages. The court of appeals affirmed the actual damages but ruled that there was insufficient evidence for the punitives. A Supreme Court majority affirmed the court of appeals judgment. Owen joined Hecht’s more extreme dissent, which argued that the distributor had no legal duty to perform background checks on door-to-door salesmen and that failure to perform these checks could not result in foreseeable sexual assaults.

*Saenz v. Fidelity Ins. Underwriters, 925 S.W.2d 607 (Tex. 1996) $/A/C/J
Owen joined a concurring/dissenting opinion re worker compensation for mental anguish.

A jury awarded secretary Corina Saenz $5 million in actual and punitive damages after finding that her employer’s workers’ compensation insurer wrongfully induced her to settle job-related concussion claims. A majority opinion by Hecht reversed the entire jury award and ruled that jury awards for mental anguish can be reversed for insufficient evidence. This reversed Texas case law, which previously relied on juries to assess mental anguish awards. Owen, who joined Chief Justice Phillips’ opinion that concurred with the majority on these issues, received $6,572 from the Texas Association of Insurance Agents.

*Sonnier v. Chisholm-Ryder Co., Inc., 909 S.W.2d 475 (Tex. 1995) A/C
Owen wrote a dissenting opinion re the statute of limitations in a product liability case.

After part of supervisor John Sonnier’s arm was chopped off as he inspected a cannery tomato chopper, he filed a product-liability suit against machine manufacturer Chisholm-Ryder Co. A federal court entered judgment for the manufacturer based on a jury finding that the defendant was covered by a Texas law that provides a 10-year statute of limitations for those who construct or repair improvements to real property (Chisholm-Ryder made the machine 20 years before the accident). Responding to a certified question from the U.S. 5th Court of Appeals, Justice Enoch’s majority opinion held that “the statute of repose was not intended to grant repose to manufacturers in product liability suits but only to preclude suits against those in the construction industry that annex personalty to realty.” Owen’s activist dissent argued that the intention of manufacturers should determine what is protected by this statute. Owen’s subjective test would appear to grant manufacturers immunity on any product that has been installed for more than a decade. The majority said, “the dissent’s test is significantly more broad than any holding in this area so far. Despite its protests to the contrary, the dissent’s test encompasses all materialmen–all suppliers of any kind.”

*St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W. 2d 503 (Tex. 1997) A/C/J
Owen joined a majority opinion re hospital liability for medical malpractice.

After the Agbor family’s baby was born with a permanently disabled arm, they sued the hospital that had granted staff privileges to a doctor who—despite a history of malpractice claims—lacked proper malpractice insurance. Owen joined Justice Gonzalez’s majority opinion, which used an activist interpretation of a patient-protection law to harm malpractice victims. The Texas Medical Practice Act shields hospitals and their medical review committees from lawsuits filed by doctors who are denied hospital privileges after a review committee deems them to be unsafe. “It is as clear as such things get that by enacting the Texas Medical Practice Act (TMPA) the Legislature did not intend to lower then prevailing standards of patient care by insulating hospitals from their own negligence in credentialing physicians,” Justice Cornyn’s dissent said. “But the Court’s irregular construction of TMPA does just that.” The majority’s twisted summary judgment reversed an appeals court and kept the case from a jury.

State Farm Fire & Casualty v. Simmons, 963 S.W.2d 42 (Tex. 1998) $/A/C/J
Owen joined a majority opinion re insurance claim liability under the Deceptive Trade Practices Act.

An insurer refused to pay claims after the Simmons family’s home burned to the ground. A jury, which found that the insurer acted deceptively and in bad faith, awarded $275,000 in actual and $2 million in punitive damages. The court of appeals affirmed this judgment. A majority opinion by Justice Spector ruled that the evidence of bad faith was insufficient to warrant the jury’s award of punitive damages. Despite the presumption that, when all things are equal, courts should rule in favor of the insured, Owen joined a more extreme Hecht dissent that questioned even the actual damages award by finding “no evidence of bad faith in this case.” Owen received $6,572 from the Texas Association of Insurance Agents.

*State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430 (Tex. 1995) $/A/C/J
Owen wrote a majority opinion re insurance claim liability under the Deceptive Trade Practices Act.

Terri Beaston sued an insurer that denied a life insurance claim on her husband, David, who died in a car crash. The trial court judgment granted Beaston the $250,000 value of her husband’s policy but overruled a jury award of $200,000 in mental anguish damages on the grounds that there was no finding that the defendants acted knowingly. A court of appeals reinstated the mental anguish award and trebled it under a Texas Insurance Code provision. Owen’s majority opinion overturned the jury verdict and two lower courts to rule that Beaston take nothing, thereby creating new obstacles for consumers who are deceived by insurers. Justice Gammage’s dissent said, “The majority overlooks procedural waiver by defendants in order to reach statutory construction issues, rewrites the [Deceptive Trade Practices Act] and Insurance Code … in ways never conceived before, then misapplies its own new rule.” Owen received $6,572 from the Texas Association of Insurance Agents.

*State Farm Lloyds v. Nicolau, 951 S.W.2d 444 (Tex. 1997) $/A/C/J
Owen joined dissenting opinions re insurance claim liability under the Deceptive Trade Practices Act.

A jury awarded the Nicolau family more than $450,000 in actual and punitive damages under the Deceptive Trade Practices Act after finding that their insurer breached its contract and acted in bad faith in denying most of their claims for foundation damage to their home. A majority opinion by Justice Spector affirmed the bad-faith damages but ruled that there was insufficient evidence to warrant the jury’s award of punitive damages. Owen joined a more extreme Hecht dissent that reweighed the trial court evidence and found that no tort was committed at all. Noting that the dissent improperly second-guessed a jury finding, the majority wrote that the state “Constitution allocates that [evidence-weighing] task to the jury and prohibits us from reweighing the evidence, as the dissent does.” The dissent, which was striking in its disdain for plaintiffs in general, said, “For plaintiffs, bad faith is more like Hollywood television’s Wheel of Fortune, or closer to home, like the Texas lottery: it costs almost nothing to play, you can play whenever you want, and if you win you hit the jackpot–tens, maybe hundreds, of thousands of dollars for the awful mental anguish that invariably seems to accompany denial of even the smallest insurance claim and millions in punitive damages.” This vitriol aside, nothing in the record suggested that the Nicolauses were out to fraudulently bankrupt an insurer. Owen received $6,572 from the Texas Association of Insurance Agents.

Stier v. Reading & Bates Corp., 922 S.W.2d 423 (Tex. 1999) A
Owen wrote a majority opinion re federal preemption and workplace injury liability.

Owen authored this majority opinion holding that the federal Jones Act (which provides broad remedies to injured seamen) preempted the state claims of German worker Hans-Henning Stier. Stier was injured near Trinidad on an off-shore drilling rig owned by a Texas company. “The Court reaches the result it wants by avoiding a plain reading of the statute,” Justice Baker wrote in dissent. Baker said the applicable section of the Jones Act “does not say anything about state tort laws, state procedural laws, or the availability of state courts as a forum.” Owen lists this as one of “Ten significant opinions that I have written.”

Stringer v. Cendant Mortgage Corp, 23 S.W.3d 353 (Tex. 2000) $/A/C
Owen joined a unanimous opinion interpreting state constitutional protections for homeowners.

A 1997 constitutional amendment that Texas voters approved to permit home equity lending contained consumer protections that prohibit lenders from forcing borrowers to apply these funds to other debts. A mortgage company then tried to force the Stringer family to do just that. Owen joined a unanimous Baker ruling that held that, although lenders must notify borrowers of this protection, lenders can then utterly ignore it because this consumer protection is trumped by pre-existing constitutional language. The author of the home-equity legislation, ex-state Senator Jerry Patterson, told Texas Lawyer that the justices gutted the legislature’s intent.24  Owen received $5,362 from the Texas Bankers Association, which filed a brief urging the court to rule as it did.

*Texas Utilities Electric Co. v. Timmons, 947 S.W.2d 191 (Tex. 1997) $/A/C/J
Owen joined a majority opinion re the “attractive nuisance” doctrine in a wrongful death lawsuit.

After drinking with his friends, 14-year old Billy Timmons climbed the 90-foot electric tower in his neighborhood. He was fatally electrocuted when high-voltage current leapt between the power lines, “arcing” through his body. Owen joined Hecht’s majority opinion, which reversed the court of appeals to reinstate a trial court’s summary judgment for the power company on the grounds that the tower did not pose an “attractive nuisance” to children. To reach this decision, which kept the case from a jury, the court was legally required to review the evidence in the most favorable light for the Timmons family. Justice Gonzalez’s dissent argued that the majority “refused to follow precedent.” The dissent noted evidence that the tower did pose an “attractive nuisance.” This included the fact that it was located in a residential neighborhood, the fence around it offered token deterrence and kids had climbed it in the past. Texas Utilities PACs and executives gave $5,850 to Owen’s campaigns.

Timberwalk Apartments v. Cain, 972 S.W.2d 749 (Tex. 1998) $/C/J
Owen joined a majority opinion assessing landlord liability for a rape committed on the premises.

After Tammy Rene Cain was raped in her apartment, she filed suit, alleging that the apartment company failed to invest in adequate security. The trial court ruled for the defendants after a jury failed to find the landlord negligent. The court of appeals remanded the case for a new trial, holding that the negligence definition given to the jury was too strict. Owen joined Hecht’s majority opinion that ruled that, as a matter of law, the apartment company “owed Cain no duty to provide additional security.” Specifically, the court ruled that the risk of assault was not foreseeable because there had been no reports of criminal activity at the apartment complex. The court of appeals, however, concluded that “evidence of eleven sexual assaults within a one mile radius of the Timberwalk apartment complex” could trigger foreseeability. Justice Spector’s concurring opinion criticized the majority for ignoring case law that recognizes other foreseeability evidence, including the “nature, condition and location of the defendant’s premises.” The Texas Apartment Association gave Owen $7,500.

*Universe Life Insurance Co. v. Giles, 950 S.W.2d 48 (Tex. 1997) $/A/C/J
Owen joined a dissenting opinion re bad faith and insurer liability for denied claims.

Ruling that an insurer acted in bad faith in refusing to cover Ida Mae Giles’ heart surgery bills until it was contacted by her attorney, a jury awarded Giles $75,000 in actual damages and $500,000 in punitive damages. A majority opinion by Justice Spector ruled that there was no evidence to support the jury’s punitive damage award. Owen joined a much more extreme Hecht dissent that would have had judges permanently replace juries in making bad-faith determinations. The majority criticized this dissent, saying it “would take the resolution of bad-faith disputes away from the juries that have been deciding bad faith cases for more than a decade.” Owen received $6,572 from the Texas Association of Insurance Agents.

24  “Lenders Can Require Borrowers to Use Loan Proceeds to Pay Debts,” Texas Lawyer, June 19, 2000.

Copyright © 2002 Texans for Public Justice