Opposition Brief — Richards v. Liberty Mutual Fire Insurance

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

, Dp

FILE

— y,

No. 91-1234 ae APR 3 1992

}

<] OFFICE OF tre Clink

gs

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

DOLORES J. RICHARDS.

Petitioner,

° V.

LIBERTY MUTUAL FIRE INSURANCE COMPANY.

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS FOR THE

FOURTEENTH SUPREME JUDICIAL DISTRICT OF

TEXAS

Of Counsel: J. HAMPTON SKELTON

100 Congress, Suite | 800

JEFF GLASS Austin, Texas 78701

Law Office of (512) 469-5520

J. Hampton Skelton

100 Congress, Suite 1800 Counsel of Record for

Austin, Texas 78757 Respondent

ANDREW T. MCKINNEY

PHILLIPS & AKERS

3200 Phoenix Tower

3200 Southwest Fwy.

Houston, TX 77027

(713) 552-9595

April 6, 1992

QUESTIONS PRESENTED

1. Whether this Court has jurisdiction over a claim that was

not presented to the Texas Court of Appeals, the court to

which a writ of certiorari is sought, or to the Texas Supreme

Court.

2. Whether a litigant, whose cause of action is barred by

application of a state Supreme Court ruling that changed the

date on which the applicable statute of limitations

commenced to run, has been deprived of Due Process of law

within the meaning of the Fourteenth Amendment.

il

TABLE OF CONTENTS

QUESTIONS PRESUMED «ccc ek ase e wr eenaeene eas i

TABLE GP AUTIAMRSEMES ss cvide eee ke peek hoe ee itl

PUIG E OEE 6.5 68 W900 oe ee ee eee 2

SEAT Eemees GE Ueees CASS «occ ve ees eee abe eee ees 2

REASONS FOR DENYING THE WRIT................ 5

Sueumary GF APU ow. 6 5 8 ee ee 5

ee ree ee ee er ee ae See 6

I. Certioran should be- denied for lack of jurisdiction

because Richards did not present her federal Due

Process claim to the Texas Court of Appeals, the court

to which a writ of certiorari is sought, or to the Texas

ke re ee ee Se ee 6

II. While a cause of action is considered a “species” of

property within the meaning of the Fourteenth

Amendment, retroactive application of a change in the

date from which the applicable statute of limitations

runs is within the discretion of the state and does not

implicate Due Process concems. ........-0s00000- 9

Il. Any tension between Chevron and Lampf or between

Logan and Lampf cannot be resolved by considering the

instant case because Lampf and Chevron were decided

on federal policy grounds, not the constitutional ground

Gn Which Hache MM. ok ek es a eee eee 16

COPINCLAFIIUNES cc ek te awe 4k ke tee 20

APU REMIEM 6 660 088 684 0 542 oe ee 21

lil

TABLE OF AUTHORITIES

CASES

Albright v. City of Houston, 677 S.W.2d 487 (Tex. 1984) ...... 8

American Trucking Assn. v. Smith, 496 U.S. 167 ee As kk os 16

Aranda v. Ins. Co. of N. America, 748 S.W.2d 210 (Tex.

IE a A a ean a, U7,

Arbour v. Jenkins, 903 F.2d 416 (6th Cir. SS eae 13

Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165

Ce a ea 3, 17-19

Beck v. Washington, 369 U.S. 541 (1962) .............. 6, 7

Black v. Ball Janitorial Service, Inc., 730 P.2d 511 (Okla.

EN alg ME Ge a 14

Bradley v. Richmond School Board, 416 U.S. 696 (oi. 16

Brown v. Capital Bank, N.A., 703 S.W.2d 231 (Tex. App.

og EES 7

Campbell v. Holt, 115 U.S. 620 I sane ana ys X yea 10-15

Cardinale v. Louisiana, 394 U.S. 437 (1969) .............. 6

Central Land Co. v. Laidley, 159 U.S. 103 (1895)......... 9, 15

Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945) .. 10-15

Chevron Oil Co. V. Huson, 404 U.S. 97 (1971) .. 2.02... 16, 17

City of Deer Park v. State, 275 S.W.2d 77 (Tex. 1955) ..... 7,8

Clausell v. Hobart Corp., 515 So.2d 1275 (Fla.1987), cert.

denied, 485 U.S. 1000 (1988) .........2....... 13

Crier v. Whitecloud, 496 So.2d 305 (La. 1986) ............. 14

Department of Mental Hygiene v. Kirchner, 380 U.S. 194

I eh a Se ss wan vk <u 4 hase 6, 8

Duke Power Co. v. Environmental Study Group, Inc., 438 U.S.

ae Ee 14

Ferguson v. Georgia, 365 U.S. 570 (1961) ............... 6

Fleming v. Fleming, 264 U.S. 29 (1924) ........0.....005. 9

Frazier v. Metropolitan Life Ins. Co., 169 Cal. App. 3d 90, 214

a 18

Great Northern R. Co. v Sunburst Oil & Refining Co., 287

A 9

Grimes v. Pearl River Valley Water Supply Dist., 930 F.2d 441

A EE A 14, 15

Gulf Offshore Co. v. Mobile Oil Corp., 453 U.S. 473 (1981) ... 16

Hammond Packing Co. v. Arkansas, 212 U.S. 322 re 12

iii lll

iV

Hammond v. United States, 786 F.2d 8 (Ist Cir.1986) ....... 13

Houston Lighting & Power v. Klein Independent School Dist.,

739 S.W.2d 508 (Tex. App. 1987, wnt denied) ....... 7

International Union of Electrical, Radio & Machine Workers v.

Robbins & Myers, 429 U.S. 229 (1976) ........... 12

James B. Beam Distilling Co. v. Georgia, 501 U.S. _,, 111

eee eee er ee eee 16, 19

Konizeski v. Livermore Labs, 820 F.2d 982 (9th Cir. 1987),

cert. Genied, 463 U.S. 905 (1968) . 2... ne ees 13-15

Lampf, Pleva, Lipkind, Pupis & Petigrow v. Gilbertson,

U.S. Ae ee ec | ce 16, 17

Liberty Mutual Fire Insurance Co. v. Richards, 810 S.W.2d 232

Cel Ps NOMEE 6 oak Sane oe Se eee eA 2-4, 17

Linkletter v. Walker, 381 U.S. 618 (1965) ............... 10

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) ..... 11-16

Martin v. Cohen, 804 S.W.2d 201 (Tex. App. 1991, no writ)... . 7

McCauley v. Consolidated Underwriters, 304 S.W.2d 265 (Tex.

STE sob a Ok ae ee ene ee aOR eo sh 8

McDowell v. Union Mutl. Life Ins. Co., 404 F. Supp. 136

Sy Se SO ss 4 60k ed a ee ee ke 18

Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex.

SS nein ght 60 (uh ee ere aa ie eae 3, 4, 18, 19

New York Central R.R. Co. v. White, 243 U.S. 188 (1917) .... 14

Nobility Homes of Texas, Inc. v. Shivers, 5S7 S.W.2d 77 (Tex.

Li RAP ORE EET CCST Te eee. eee eee 7

Ramsey v. Dunlop, 20S S.W.2d 979 (Tex. 1947) ............ 8

Richardson v. Allstate Ins. Co., 117 Cal. App. 3d 8, 172 Cal.

a a WA 6 ees oe ee ee ee 18

Robinson v. Weaver, 550 S.W.2d 18 (Tex. 1977) .... 3,4, 17, 19

Smith v. Baldwin, 611 S.W.2d 611 (Tex. 1980) ............ 8

Sowell v. American Cyanamid Co., 888 F.2d 802 (llth

a ee ae ee eae ee 13

St. Francis College v. Al-Khazraji, 481 U.S. 604 (1987) ...... 16

Thorpe v. Housing Auth. of City of Durham, 393 U.S. 268

| Re eT eee ere Te eee ee ee ee ee 16

Tidal Oil Co. v. Flanagan, 263 U.S. 444 (1924) ............ 9

U.S. v. Ray Thomas Gravel Co., 380 S.W.2d 576 (Tex.

ES ee eee Tee eT eee en eee ee ee 7

United States v. Kras, 409 U.S. 434 (1973) .............4. 12

Vv

Williams v. Hofley Mfg. Co., 424 N.W.2d 278 (Mich. 1988),

appeal dism'd, 489 U.S. 1001 (1989) ............ 14

Windsor v. McVeigh, 93 U.S. 274 (1876) ............... 12

STATUTES AND RULES

Se es DP Nk 36 a Re Ca LO ee 2

TEX. Crv. PRAc. & REM. CODE ANN. §16.003............ 17

TEX. R. App. P. 74(f), 100(a), 131(f)(Vernon Supp. 1992)...... 7

Tex. R. App. P. 131(e) (Vernon Supp. 1992) ...........5.%. 8

OTHER AUTHORITIES

Annot., “Prospective or retroactive operation of overruling

decision,” 10 A.L.R.3d 1371, 1391-93, n. 19 (1966) .... 9

Annot., “Retroactive or merely prospective operation of new

rule adopted by court in overruling precedent - federal

cases,” 14 L.Ed.2d 992, 1002-1003 (1965) .......... 9

No. 91-1234

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

DOLORES J. RICHARDS,

Petitioner,

vs

LIBERTY MUTUAL FIRE INSURANCE COMPANY,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS FOR THE

FOURTEENTH SUPREME JUDICIAL DISTRICT OF

TEXAS

Respondent, Liberty Mutual Fire Insurance Company

(“Liberty Mutual"),’ respectfully urges the Court to deny a

writ of certiorai’ to review the judgment of the Texas Court

of Appeals in this proceeding.

' The caption contains the names of all parties to the proceedings

below. Affiliates of Respondent Liberty Mutual Fire Insurance Company

whose identities are required to be disclosed by Supreme Court Rule 29. |

are: Liberty Northwest Insurance Corporation; Helmsman Management

Service Northwest, Inc.; Liberty Mutual Property-Casualty Holding

Corporation; Liberty Insurance Corporation; Liberty Life Assurance

Company of Boston; Helmsman Management Service, Inc.; Liberty

International Insurance Agency, Inc.; Liberty Mutual Insurance Company

(U.K.) Ltd.; and Helmsman (Underwriting) Ltd.

2

JURISDICTION

Richards invokes the Court’s certiorari jurisdiction

pursuant to 28 U.S.C. §1257(a). However, since Richards

failed to raise properly her Due Process challenge in the

courts below, the Court should deny certiorari for want of a

properly presented federal question.

STATEMENT OF THE CASE

This is a worker’s compensation insurance case.

Petitioner Dolores J. Richards challenges a change in the rule

governing commencement of limitations for the Texas cause

of action she asserted. No constitutional or other federal

rights are implicated.

After Richards incurred on-the-job injuries, Liberty

Mutual provided her with worker’s compensation benefits,

but terminated those benefits on January 12, 1983. See

Liberty Mutual Fire Insurance Co. v. Richards, 810 S.W.2d

232, 233 (Tex. App. 1991); reproduced in Appendix to

Richard’s Petition for Wnt of Certiorari (hereafter “Richards

Appendix") at la-4a. Richards’ worker’s compensation

claim resulted in a judgment in her favor, which became

final on April 30, 1986. Liberty Mutual v. Richards, 810

S.W.2d at 233; Richards Appendix at 2a.

On March 7, 1986, prior to the conclusion of her

worker’s compensation case, but more than three years after

Liberty Mutual terminated her disability payments, Richards

filed the suit now brought for review to this Court, seeking

damages against Liberty Mutual for breach of a duty of good

faith and fair dealing ("bad faith") in the processing of her

claim. Liberty Mutual v. Richards, 810 S.W.2d at 233;

Richards Appendix at 2a; Appendix to this brief (hereafter

“Appendix") at Al-A2. At that time, however, there was no

recognized cause of action for “bad faith" in Texas.

ee

3

Moreover, in Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex.

1977), the Texas Supreme Court had established long before

Richards filed her claim that the two year limitations period

for personal injury and other causes of action sounding in

tort begins to run when the cause of action accrues, that is,

when facts come into existence that authorize a claimant to

seek a judicial remedy. /d.

In January, 1987, while this action was pending in

State district court, the Texas Supreme Court recognized the

tort of “bad faith" denial or termination of insurance benefits

in the context of first party insurance. Arnold v. National

County Mut. Fire Ins. Co., 725 S.W.2d 165, 168 (Tex.

1987). In Arnold, the court departed from the established

rule of Robinson, holding that the two year limitations period

governing bad faith claims would not begin to run until the

underlying contract claims were finally resolved. Jd. at 168.

More than a year later, the Texas Supreme Court ruled that

the tort of “bad faith" applied to the processing of worker’s

compensation claims, Aranda v. Ins. Co. of N. America, 748

S.W.2d 210, 212 (Tex. 1988), thus recognizing a theory

similar to that Richards had been pursuing against Liberty

Mutual.”

The action went to trial and, on July 19, 1988,

judgment was entered on a jury verdict in favor of Richards

for $3.58 million. Liberty Mutual v. Richards, 810 $.W.2d

at 233. Liberty Mutual appealed, but on April 18, 1990,

after both parties had filed opening briefs, the Texas

Supreme Court corrected the anomalous limitations holding

of Arnold. Murray v. San Jacinto Agency, Inc., 800 S.W.2d

826 (Tex. 1990). The Court restored the applicability of the

? It was thus the retroactive application of Aranda and Arnold that

breathed life into Richards’ claim five years after the conduct complained

of took place, permitting the action to proceed to trial.

4

Robinson rule to bad faith law, holding that limitations begins

to run on bad faith claims, as on most claims, when the

cause of action accrues, that is, “when the wrongful act

effects an injury". /d. at 829.

Richards’ Supplemental Brief, filed in the Court of

Appeals on May 21, 1990, the day before oral argument,

was her first opportunity to brief for the court the Due |

Process implications of applying Murray retroactively.’

Richards nonetheless failed to raise any federal constitutional |

issue in that brief. Appendix at Al-A7.

On Apnil 4, 1991, the Court of Appeals issued its

opinion reversing the judgment in favor of Richards on the

ground that, under Murray, limitations barred Richards’

cause of action since it was filed more than two years after

Liberty Mutual’s final termination of disability payments.

Liberty Mutual v. Richards, 810 S.W.2d at 234. After denial

of two Motions for Rehearing in the Court of Appeals,

neither of which discussed or cited authority for a federal

Due Process challenge, see Richards Appendix at Sa-6a,

Richards applied for a Writ of Error to the Texas Supreme

Court. In that Application, Richards failed to raise a

Fourteenth Amendment challenge to the Court of Appeals’

holding. Appendix at A8-Al2. The Texas Supreme Court

denied the Application with the notation “Writ Denied" on

September 18, 1991. Richards Appendix at 9a. After the |

Texas Supreme Court denied Richards’ Motion for Rehearing

> Richards’ claim that the Motion for Rehearing in the Court of

Appeals presented her first opportunity to raise the federal Due Process

issue is incorrect because the decision in Murray, announced even before

the Court of Appeals heard oral argument in the instant case, clearly

presented the possibility that Richards’ cause of action would be barred

if the Court of Appeals applied the new rule retroactively. Thus,

Richards had the opportunity to raise her Due Process concerns well

before the Court of Appeals ruled and Richards pursued rehearing.

ee

5

on November 6, 1991, Richards Appendix at 10a, Richards

filed her Petition for Writ of Certiorari on January 31, 1992.

REASONS FOR DENYING THE WRIT

Summary of Argument

The Petition should be denied first because it fails to

present a federal question. Under Texas law, Richards failed

to preserve in the Texas appellate courts the federal

constitutional issue now raised in her Petition. For this

Court to assume jurisdiction, it must plainly appear that a

federal question is necessarily presented. Richards’ failure

to present the issue below thus constitutes a sufficient,

independent non-federal ground on which the judgment below

rests, depriving this Court of jurisdiction.

The issue Richards raises is settled under early,

unquestioned decisions of this Court that recently have been

reaffirmed. Since statutes of limitations constitute remedial

rather than fundamental rights, a state may apply decisions

effecting changes in limitations to pending cases without

offending Due Process. The lower court opinions Richards

reads as creating a split of authority on the issue of "vesting"

are, in fact, either consistent with this rule or factually so

distinguishable as to be inapposite. Moreover, granting

certiorari would have no beneficial effect on the

administration of justice in the state or federal courts.

Granting certiorari and reversing this case would, rather,

create disruption and confusion with respect to a rule of law

that has been settled since the late nineteenth century.

Contrary to Richards’ contention, review of this case

would give this Court no opportunity to address any tension

among federal cases refusing, on policy rather than

constitutional grounds, to retroactively apply intervening

changes in law. Finally, the lack of any real unfairness to

6

Richards in terms of the degree of foreseeability of the

change in the limitations trigger date further supports denial

of her Petition. ;

Argument

I

Certiorari should be denied for lack of

jurisdiction because Richards did _ not

present her federal Due Process claim to the

Texas Court of Appeals, the court to which

— a-writ of certiorari is sought, or to the

Texas Supreme Court.

Richards seeks a writ of certiorari to the Texas Court

of Appeals on the ground that its ruling violated her right to

Due Process of law. Richards never properly asserted this

argument before the Texas Court of Appeals or in her

application for writ of error to the Texas Supreme Court.

This Court has long adhered to the rule that, when

reviewing State court decisions, it will not consider federal

constitutional questions unless they were raised and “actually

decided" in the state courts. Cardinale v. Louisiana, 394

U.S. 437, 438 (1969); Beck v. Washington, 369 U.S. 541,

553 (1962); Ferguson v. Georgia, 365 U.S. 570, 572 (1961).

"If both these do not appear on the record, the appellate

jurisdiction fails." Cardinale, at 438. For this Court to

assume jurisdiction, it must plainly appear that a federal

question is necessarily presented, that is, that the judgment

below could not rest on an independent non-federal ground

sufficient to support it. Department of Mental Hygiene v.

Kirchner, 380 U.S. 194, 197 (1965); Ferguson, 365 U.S. at

572 n. 1. A sufficient independent non-federal ground is

established if the state appellate courts from which the case

7

derives would consider the federal issue waived. Beck, 369

U.S. at 553. Since Richards’ Due Process challenge was

neither properly preserved nor "actually decided" at the state

court level, the sole federal question Richards presents is not

properly before this Court.

While Richards did insert a topic heading mentioning

her federal rights in her Motion for Rehearing before the

Court of Appeals, Richards Appendix at 6a, this heading is

not sufficient under Texas law to present error to the Court

of Appeals. An uninterrupted line of Texas cases establishes

that error is waived before the Court of Appeals if not

supported with either argument or authorities. Martin v.

Cohen, 804 S.W.2d 201 (Tex. App. 1991, no writ); Housron

Lighting & Power v. Klein Independent School Dist., 739

S.W.2d 508, 514 (Tex. App. 1987, writ denied); Brown v.

Capital Bank, N.A., 703 S.W.2d 231, 234 (Tex. App. 1985,

writ ref'd n.r.e.); TEX. R. APP. P. 74(f), 100(a),

131(f)(Vernon Supp. 1992). This Court has found that a

similar failure to preserve an issue on appeal pursuant to

State law undermines this Court’s jurisdiction to review the

issue On certiorari. Beck, 369 U.S. at 553-54. The Texas

Court of Appeals’ silence on the issue of Due Process in this

case can be attributed only to Richards’ failure to raise the

point properly.

In addition, Richards failed to present her federal

constitutional claim to the Texas Supreme Court. In order to

be considered by the Texas Supreme Court, an issue must be

assigned as error in the Application for Writ of Error.

Nobility Homes of Texas, Inc. v. Shivers, 557 §.W.2d 77, 83

(Tex. 1977); City of Deer Park v. State, 275 S.W.2d 77, 84

(Tex. 1955); U.S. v. Ray Thomas Gravel Co., 380 S.W.2d

8

576, 579 (Tex. 1964).* Richards did not assign as error to

the Texas Supreme Court any violation of her Due Process

rights. Appendix at A8-A12.

Moreover, had Richards raised such a challenge in

her Application for Wnt of Error, that contention was

nonetheless not preserved before the Texas Supreme Court

because she failed properly to raise it in her Motion for

Rehearing before the Court of Appeals. The Texas Supreme

Court has held repeatedly that it “cannot consider points of

error that were not assigned on rehearing in the court of

appeals." Albright v. City of Houston, 677 S.W.2d 487, 488

(Tex. 1984); see also Smith v. Baldwin, 611 S.W.2d 611,

618 (Tex. 1980); TEX. R. App. P. 131(e) (Vernon Supp.

1992). Richards failed to raise her Due Process argument in

her Motion for Rehearing in the Court of Appeals and in her

Application for Writ of Error to the Texas Supreme Court.

This failure constitutes an independent state law ground for

denying the writ. Dept. of Mental Hygiene v. Kirchner, 380

U.S. 194 (1965).

“ While fundamental error may be considered even if not assigned

in the Application, McCauley v. Consolidated Underwriters, 304 S.W.2d

265, 266 (Tex.1957)(jurisdictional defect is fundamental error),

application of a limitations period, even if erroneous, cannot be

considered error that is apparent on the face of the record and that

“directly and adversely affects the interest of the public generally”, as the

Texas Supreme Court defines fundamental error. City of Deer Park v.

State, 275 S.W.2d at 85; Ramsey v. Dunlop, 205 S.W.2d 979, 983 (Tex.

1947)(disputed election to public office as fundamental error).

ee

9

II

While a cause of action is considered a

“species" of property within the meaning of

the Fourteenth Amendment, retroactive

application of a change in the date from

which the applicable statute of limitations

runs is within the discretion of the state and

does not implicate Due Process concerns.

The issue presented by this case is neither new nor

controversial. Absent from Richards’ Petition is any mention

of the consistent line of precedent from this Court holding

that, generally, retroactive operation of state court rulings,

whether concerning statutes of limitations or other procedural

requirements, is not repugnant to any provision of the U.S.

Constitution. See, e.g., Tidal Oil Co. v. Flanagan, 263 U.S.

444, 450 (1924) (reversal of prior decision by state court to

prejudice of one party does not deprive that party of Due

Process because parties were fully heard in state court):

Fleming v. Fleming, 264 U.S. 29 (1924) (no impairment of

right to contract); Central Land Co. v. Laidley, 159 U.S.

103, 112 (1895) (no Due Process violation); see also Annot.,

“Prospective or retroactive operation of overruling decision,"

10 A.L.R.3d 1371, 1391-93, n. 19 (1966); Annot.,

“Retroactive or merely prospective operation of new rule

adopted by court in overruling precedent - federal cases," 14

L.Ed.2d 992, 1002-1003 (1965). As Justice Cardozo wrote

in Great Northern R. Co. v. Sunburst Oil & Refining Co..,

287 U.S. 358 (1932), with respect to the issue of

retrospective versus prospective operation of changes in the

law:

We think the Federal constitution has no voice

upon the subject. A state in defining the

10

limits of adherence to precedent may make a

choice for itself between the principle of

forward operation and that of relation

backward. [W]e are not at liberty, for

anything contained in the constitution. . . to

thrust upon those courts a different conception

either of the binding force of precedent or of

the meaning of the judicial process.

Id. at 364-365. In short, “[s]ound or unsound, there is

involved in [this choice] no denial of a right protected by the

Federal Constitution". /d. at 364; see also Linkletter v.

Walker, 381 U.S. 618 (1965) (retroactive operation of

decision overruling another is a matter of judicial policy not

constitutional compulsion).

Moreover, in a case not cited in Richards’ Petition,

this Court rejected a contention similar to that she advances.

In Chase Securities Corp. v. Donaldson, 325 U.S. 304

(1945), the Court addressed a challenge to the Minnesota

Supreme Court’s retroactive application of a change in the

date of commencement of a statute of limitations, effectively

removing the limitations defense in that action and rendering

the action timely. In rejecting the claim that this retroactive

application violated the defendant’s Due Process nights, the

Court recognized that the issue had been settled since

Campbell v. Holt, 115 U.S. 620 (1885), in which the Court

held that “where lapse of time has not invested a party with

title to real or personal property, a state legislature,

consistently with the Fourteenth Amendment, may repeal or

extend a statute of limitations." Chase Securities Corp. , 325

U.S. at 311.

The Court based its holding on the nature of statutes

of limitation, which it described in the following, widely-

quoted language:

1]

Statutes of limitation. . . are practical and

pragmatic devices to spare the courts from

litigation of stale claims, and the citizen from

being put to his defense after memories have

faded, witnesses have died or disappeared,

and evidence has been lost. (citation omitted).

They are by definition arbitrary, and their

operation does not discriminate between the

just and the unjust claim, or the avoidable and

unavoidable delay. . . . Their shelter has never

been regarded as. . . a ‘fundamental’ right. .

. the history of pleas of limitation shows them

to be good only by legislative grace and to be

subject to a relatively large degree of

legislative control.

Id. at 314 (emphasis added). The Court then pointed out that

Campbell v. Holt adopted the view that “as a matter of

constitutional law, statutes of limitations go to matters of

remedy, not to destruction of fundamental rights," a

distinction that emphasizes “the real and valid difference

between rules in which stability is of prime importance and

those in which flexibility is a more important value." /d.

The Court therefore held that "the existence of the policy at

the time the action was commenced did not. . . give the

[defendant] a constitutional right against change of policy

before final adjudication". /d. at 316.

Chase Securities was explicitly approved in Logan v.

Zimmerman Brush Co., 455 U.S. 422 (1982), the case on

which Richards founds her argument. After holding that an

injured employee who had never had an opportunity to be

heard on her employment discrimination claim was deprived

of Due Process, the Logan Court went on to write that

[o]bviously, nothing we have said entitles

12

every civil litigant to a hearing on the merits

in every case. The State may erect reasonable

procedural requirements for triggering the

right to an adjudication, be they statutes of

limitations, cf. Chase Securities Corp. v.

Donaldson, 325 U.S. at 314-316. . . or, in

an appropriate case, filing fees. United States

v. Kras, 409 U.S. 434 (1973). And the State

certainly accords due process when it

terminates a claim for failure to comply with

a reasonable procedural or evidentiary rule.

Hammond Packing Co. v. Arkansas, 212 U.S.

at 351; Windsor v. McVeigh, 93 U.S. at 278.

Logan, 455 U.S. at 437.° Under Logan and Chase

Securities, a cause of action is, of course, a species of

property entitled to Due Process protection. Nonetheless,

until that cause of action has reached “final adjudication",

Chase Securities, 325 U.S. at 316, it is subject to intervening

changes in procedural rules that may, consistent with Due

Process, terminate the “right to adjudication" of the claim.

Logan, 455 U.S. at 437.

Campbell v. Holt and Chase Securities both relied on

the distinction between a cause of action that “has not

invested a party with title to real or personal property" and

one that has reached “final adjudication". Jd. at 311, 316.

Richards, however, contends that unadjudicated causes of

action like her own should be treated like final judgments

(and, apparently, other forms of property as well) for Due

Process purposes. As Chase Securities recognizes, however,

° This Court also reaffirmed the holding of Chase Securities in

International Union of Electrical, Radio & Machine Workers v. Robbins

& Myers, 429 U.S. 229, 244 (1976).

haseieadeninatiaene renee

13

this proposal-is unworkable because of the need for flexibility

in matters of judicial procedure, which, as a purely practical

matter, can affect only those causes of action that have not

been finally adjudicated; final judgments, like other forms of

property, are unaffected by changes in procedural rules such

as statutes of limitations.

Richards’ attempt to find a conflict among the lower

court rulings on the issue of "vesting" is based on the same

misconception. The cases Richards reads as holding that the

property interest in a cause of action does not vest, for

Fourteenth Amendment purposes, until final, unreviewable

victory (the “final victory" cases)*®, are entirely consistent

with the approach taken in Campbell and Chase Securities

and approved in Logan. The “final victory" cases treat non-

final claims in the same way Chase Securities did, holding

that changes in state limitations rules may be applied to

pending cases without offending the Fourteenth Amendment.

The “vesting” language in these cases that is emphasized by

Richards merely follows the distinction employed in Chase

Securities between the intangible property interest in a cause

of action and the more tangible interests in, for example, real

property or a judgment for damages.’ These latter interests

are different simply because they are beyond the reach of

procedural contingencies such as statutes of limitations or

* These cases are Arbour v. Jenkins, 903 F.2d 416 (6th Cir.

1990); Sowell v. American Cyanamid Co., 888 F.2d 802, 805 (11th

Cir.1989); Konizeski v. Livermore Labs, 820 F.2d 982 (9th Cir. 1987),

cert. denied, 485 U.S. 905 (1988); Hammond v. United States, 786 F.2d

8, 12 (Ist Cir.1986); and Clausell v. Hobart Corp., 515 So.2d 1275

(Fla. 1987) cert. denied, 485 U.S. 1000 (1988).

’ Richards concedes in her Petition that a final, unreviewable

judgment for damages is a more tangible property interest than a simple

cause of action. Petition at 8-9.

14

filing fees, to which non-final claims are subject. See, e.g.,

Konizeski, 820 F.2d at 989. The putative “final victory"

cases merely follow Campbell v. Holt and Chase Securities

in recognizing this distinction and adjusting Due Process

scrutiny in light of the need for flexibility in matters of

remedy, as opposed to fundamental rights. /d. Since, as a

matter of policy, procedural rules must remain flexible, they

are, in the language of Chase Securities, 325 U.S. at 314,

matters of legislative or judicial grace rather than

constitutional right. Consequently, a state’s power to

terminate the right to adjudicate a cause of action by

changing a procedural rule is unlimited by the Fourteenth

Amendment. These cases, therefore, neither contradict the

view of property in Logan nor overextend that taken in New

York Central R.R. Co. v. White, 243 U.S. 188 (1917) and

Duke Power Co. v. Environmental Study Group, Inc., 438

U.S. 59 (1978).

It is also incorrect to suggest that the "final victory"

cases conflict with the approach taken in such cases as

Grimes v. Pearl River Valley Water Supply Dist., 930 F.2d

441 (Sth Cir. 1991); Williams v. Hofley Mfg. Co., 424

N.W.2d 278 (Mich. 1988), appeal dism’d, 489 U.S. 1001

(1989); Crier v. Whitecloud, 496 So.2d 305 (La. 1986); and

Black v. Ball Janitorial Service, Inc., 730 P.2d 511 (Okla.

1986), since these latter cases do not involve issues of

retroactive application of intervening changes in the law.

These cases thus implicate very different Due Process

concerns from those that involve issues of retroactive

application of law. These cases are distinguishable from, not.

inconsistent with, the “final victory" cases.*

* — The lower court cases considering this issue are reconcilable on

the additional ground that each litigant affected by an intervening change

in law actually received all the process due under the Fourteenth

15

Richards has not cited a single case from any court,

federal or state, that upheld a challenge to retroactive

application of a statute of limitations or other procedural

requirements, on Due: Process grounds, in conflict with

Logan. This is simply because the issue is well settled and,

at least since Campbell v. Holt (1885), has ceased to be a

matter of any controversy among state or federal courts.

Besides being well-settled, the issue presented is of no

national importance. As the cases discussed above reflect,

the issue is one of state discretion, not Due Process. In

addition, the choice between retroactive and prospective

application of a change in the law will affect only a small

portion of cases affected by the change itself, that is, those

cases that happen to be in the judicial process when the

change takes effect. Review of the instant case thus would

not advance the orderly and efficient administration of

justice, in either the state or federal systems. Moreover, far

from conserving judicial resources and saving time and

money for litigants, granting certiorari and reversing this

case would require overruling at least Campbell v. Holt and

Chase Securities and disapproving several lower court

rulings, creating disruption and confusion.

Amendment, having been heard before the respective court or legislature

on the issue of retroactive application. See, e.g., Central Land Co. v.

Laidley, 159 U.S. at 112; Konizeski, 820 F.2d at 990; Grimes, 930 F.2d

at 444. Due Process guarantees only an opportunity to be heard, not

ultimate success. Konizeski, 820 F.2d at 990. Reliance on this principled

reconciliation of the cases is far preferable to the disruption that would

be occasioned by a ruling in this case on “vesting” for Due Process

purposes.

16

Ill

Any tension between Chevron and Lampf or

between Logan and Lampf cannot be

resolved by considering the instant case

because Lampf and Chevron were decided

on federal policy grounds, not the

constitutional ground on which Richards

relies.

Richards finds “tension” between Chevron Oil Co. v.

Huson, 404 U.S. 97 (1971) and Lampf, Pleva, Lipkind, Pupis

& Petigrow v. Gilbertson, _U.S.__, 111 S. Ct. 2773

(1991), and requests that this Court review the instant case

sO as to resolve this tension. Even if there is in fact some

conflict between these decisions, the case before this Court

is not an effective vehicle to settle the controversy because

that issue is not properly before this Court.

As Richards concedes, Chevron; James B. Beam

Distilling Co. v. Georgia, 501 U.S. _, 111 S.Ct. 2439

(1991); American Trucking Assn. v. Smith, 496 U.S. 167

(1990); Sr. Francis College v. Al-Khazraji, 481 U.S. 604

(1987); Gulf Offshore Co. v. Mobile Oil Corp. , 453 U.S. 473

(1981); Thorpe v. Housing Auth. oj City of Durham, 393

U.S. 268 (1969); and Bradley v. Richmond School Board,

416 U.S. 696 (1974) considered the issue of retroactive

application of federal judicial decisions or statutes only as a

matter of federal policy.

Lampf, on the other hand, merely resolved a federal

limitations question and, without discussing the Chevron

standards, applied the new rule retroactively. Thus,

resolution of the only issue Richards seeks to raise here, i.e. ,

the constitutional limits on a state’s power to apply

limitations decisions retroactively, would have no effect on

the issues of federal policy decided in Chevron. Granting

17

certiorari in this case would not, logically, give this Court an

opportunity to address itself either to the viability of the

Chevron standards or to the silence of Lampf with respect to

those standards, or to resolve any tension that might exist

between the two. In deciding the instant case, any

pronouncements the Court might make with respect to

Chevron or Lampf would be pure dicta. Thus, Richards’

contention that this Court could resolve open issues of federal

policy by considering the issue of Due Process limits on

retroactive State decisions is incorrect.

Further, Richards experienced not unfairness, but at

most the retraction of a windfall. As she concedes, Richards

filed this “bad faith" suit when no such cause of action

existed in Texas. Thus, she had no reasonable expectation

that her theory would be given credence in the first place.

A rational evaluation of her chances, in fact, would have

recognized that, based on the law as it stood at filing,’ her

suit was barred when filed more than two years after it

accrued.'° From any perspective, Richards’ suit was a

* As the Court of Appeals recognized, the general rule at the time

Richards filed her suit was that a cause of action accrues for limitations

purposes at the time facts come into existence that authorize a claimant

to seek a judicial remedy. Liberty Mutual v. Richards, 810 S.W.2d at

233 (citing Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex. 1977)). Since

the essence of Richards’ claim was that her benefits had been denied in

bad faith, it could only be concluded that limitations would be triggered

on the date of such denial. Moreover, there is no unfairness where

Richards had no reasonable expectancy in the viability of her suit until

Arnold and Aranda changed Texas law.

0 Richards’ argument that the two year statute appeared

inapplicable at the time she filed suit, Petition at 3 n.1, 16 n.6, ts

incorrect. Richards’ pleadings expressly sought recovery for the personal

injury concept of mental anguish. Appendix Al-A2. Thus, the two year

statute, TEX. Crv. Prac. & REM. CODE ANN. §16.003, Richards

18

gamble when it was filed in March 1986."

Indeed, when Aranda recognized the “bad faith"

theory in workers’ compensation cases (and consequently

required application of the Arnold trigger date), it appeared

that Richards would receive a windfall, since her suit had

been filed before the erroneous Arnold trigger date -- final

adjudication of the underlying contract claim. When,

however, Murray corrected Arnold's erroneous holding two

years later, the Texas Supreme Court merely restored the law

to the status quo in effect at the time Richards filed suit.

Thus, what Richards claims to be “manifest injustice" is that

Appendix at Ila, clearly applied at the time suit was filed. Obviously,

this cause of action could not have been more specifically enumerated

because it did not exist. Moreover, in Arnold, the Texas Supreme Court

affirmed the applicability of the two year statute, while changing the date

on which this period commences to run. 725 S.W.2d at 168. Thus,

Richards was on notice from the beginning that her claim was governed

by a two year limitation period. Significantly, Richards does not contend

that Arnold's application of the two year statute was a change in the law

that in any way prejudiced her rights, though she claims that at the time

she filed suit the governing statute “reasonably appeared to be" the four

year provision. Petition at 16 n. 6. Essentially, she concedes that she

had no reasonable expectation that the four year statute applied.

'' Richards fares no better in terms of notice even if she relies on

California law, the leading body of law in the area of bad faith. At the

time Richards filed suit, California adhered to a rule, identical to Murray,

that a cause of action for bad faith accrues, and limitations commences,

on the date the insured’s claim is denied by the insurer. Frazier v.

Metropolitan Life Ins. Co., 169 Cal. App. 3d 90, 103, 214 Cal. Rptr.

883, 890 (1985); McDowell v. Union Muil. Life Ins. Co., 404 F. Supp.

136, 147 (C.D. Cal. 1975). Further, “bad faith” sounds in tort under

Texas law. Under Califormia law, a tort action for bad faith was

governed by a two year, not a four year, statute of limitations.

Richardson v. Allstate Ins. Co., 117 Cal. App. 3d 8, 13, 172 Cal. Rptr.

423, 426 (1981).

19

during pendency of her claim, she was briefly the beneficiary

of the fortuitous (and erroneous) change in the law which

breathed life into her moribund claim (barred when filed) but

was later corrected when Murray restored the status quo

ante."

The convoluted procedural history of this case makes

it an inappropriate vehicle for deciding any issue of Due

Process. Its unique posture would seriously limit its

precedential effect. Consistent application of any principle

announced would be fraught with difficulty. An area of Due

Process law, exceptional for its clarity and certainty, would

be subjected to the kind of confusion that has plagued the

larger body of Due Process law.

Thus, the lack of any real injustice to the individual

Petitioner, together with the unique procedural posture of this

case, render it an inappropriate vehicle to decide any issue

presented. In addition, no new or controversial issue of

importance to the efficient administration of justice or other

interests of national importance are presented. These

circumstances dictate a denial of the Petition.

'2 Murray herself was in the same position as Richards, having

filed suit under Robinson and received the temporary benefit of Arnold.

The Texas Supreme Court nonetheless applied the new trigger rule

retroactively to the very case in which it was announced. Murray, 800

S.W.2d at 830. Thus, the Court of Appeals in the instant case had little

choice but to apply the new rule retroactively. This Court, in fact,

considers it erroneous not to apply a new rule of federal law retroactively

when that rule was so applied in the case announcing the rule. James B.

Beam, 111 S. Ct. at 2444, 2446.

20

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

Of Counsel:

J. HAMPTON SKELTON

JEFF GLASS 100 Congress, Suite 1800

Law Office of Austin, Texas 78701

J. Hampton Skelton (512) 469-5520

100 Congress, Suite 1800

Austin, Texas 78701 Counsel of Record for

Respondent

ANDREW T. MCKINNEY

PHILLIPS & AKERS

3200 Phoenix Tower

3200 Southwest Fwy.

Houston, TX 77027

(713) 552-9595

April 6, 1992

APPENDIX

Al

No. 86-14004

DOLORES J. RICHARDS IN THE DISTRICT COURT OF

VS. : HARRIS COUNTY, TEXAS

LIBERTY MUTUAL FIRE 127TH JUDICIAL DISTRICT

INSURANCE COMPANY

PLAINTIFF'S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW DOLORES J. RICHARDS, hereinafter called

Plaintiff, complaining of LIBERTY MUTUAL FIRE INSURANCE

COMPANY, hereinafter called defendant, and for cause of action

respectfully show unto the Court and Jury as follows:

I.

Plaintiff is a resident of Harris County, Texas. The Defendant

is a duly incorporated insurance company doing business [sic] the State

of Texas where service of process may be obtained by serving the

Commissioner of Insurance, 1110 San Jacinto, Austin, Texas 78701-1998.

I].

NATURE OF CASE

On or about December 23, 1981, Plaintiff was working as an

employee of Federated Department Stores, Inc. in Harris County, Texas.

Prior to that date, Defendant LIBERTY MUTUAL FIRE INSURANCE

COMPANY had sold a policy of workers’ compensation insurance to

Plaintiff's employer. As a result of the relationship between Plaintiff and

Defendant, the Defendant owed Plaintiff a duty of good faith and fair

dealing. After Plaintiff suffered an on-the-job injury on or about

December 23, 1981, Defendant received notice that Plaintiff had suffered

such an injury. From that time up until the present, the Defendant has

continuously refused to pay the Plaintiff any weekly benefits under the

policy of workers’ compensation insurance. Although the Defendant

agreed to pay some of Plaintiff's medical bills prior to tral, the

Defendant has continuously refused to pay all medical bills incurred since

that time. As a result of the conduct of the Defendant Plaintiff has

suffered damages, including, but not limited to, physical pain, mental

anguish, physical impairment, and loss of credit rating.

sen er re rrr een meet

A2

tI.

Plaintiff alleges that the conduct of Defendant as set forth above

constitutes a breach of the duty of good faith and fair dealing that arises

from the relationship of the parties. Such breach was done willfully and

intentionally or, in the alternative, with such an entire want of care that

would raise the belief that such conduct was the result of conscious

indifference to the rights or welfare of Plaintiff. Plaintiff has sustained

actual damages as a result of the Defendant’s conduct.

IV.

ACTUAL DAMAGES

Plaintiff has suffered the following actual damages as a result

of the Defendant’s conduct, to-wit:

a. Severe mental anguish and emotional distress,

b. Physical pain in the past, and in all reasonable probability in

the future,

c. Physical impairment in the past, and in all reasonable

probability in the future,

d. Loss of enjoyment of life in the past, and in reasonable

probability in the future, and

e. Loss of credit rating in the past, and in reasonable probability

in the future.

V.

EXEMPLARY DAMAGES

Plaintiff further seeks exemplary damages from Defendant.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays

upon final trial herein, she have and recover against the Defendant in

actual damages and exemplary damages in an amount in excess of the

minimal jurisdictional limits of this court, together with interest on such

amounts as allowed by law, for costs of court, and for such other and

further relief to which Plaintiff may show herself to be justly entitled.

Respectfully submitted,

LAW OFFICES OF KIRK PURCELL

/S/KIRK PURCELL

SBT# 16394300

1608 Bissonnet

Houston, Texas 77005

(713) 528-1000

A3

[Excerpts from Richards’ Supplemental Brief]

No. 14-88-00966-CV

IN THE FOURTEENTH COURT OF APPEALS

AT HOUSTON

LIBERTY MUTUAL FIRE INSURANCE COMPANY,

Appellant,

VS.

DOLORES J. RICHARDS,

Appellee

Appealed from the 127th Judicial District Court

of Harris County, Texas

SUPPLEMENTAL BRIEF FOR APPELLEE

KIRK PURCELL

State Bar No. 16394300

STEPHENS & CLARK

Suite 600

520 Post Oak Boulevard

Houston, Texas 77027

(713) 629-1111

ORAL ARGUMENT REQUESTED

A4

* OK ok Ok

REPLY POINTS

REPLY POINT ONE

THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE

SUBMISSION OF, AND JURY RESPONSE TO, QUESTION NO. |

CONCERNING LIBERTY MUTUAL’S BREACH OF THE DUTY OF

GOOD FAITH AND FAIR DEALING. (In response to Appellant's

Points of Error 1-10).

REPLY POINT TWO

THE TRIAL COURT PROPERLY SUBMITTED QUESTION

NO. 1 CONCERNING LIBERTY MUTUAL’S BREACH OF THE

DUTY OF GOOD FAITH AND FAIR DEALING. (In response to

Appellant’s Points of Error 11 and 12).

REPLY POINT TEN

THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE

SUBMISSION OF, AND JURY RESPONSE TO, QUESTION NO. 5

CONCERNING THE AMOUNT OF EXEMPLARY DAMAGES. (in

response to Appellant’s Points of Error 39-42). _

REPLY POINT THIRTEEN

MRS. RICHARDS’ CLAIM OF BREACH OF THE DUTY OF

GOOD FAITH AND FAIR DEALING WAS NOT BARRED BY THE

TWO-YEAR STATUTE OF LIMITATIONS. (In response to Appellant's

Point of Error 57).

BRIEF OF ARGUMENT

* * *

REPLY POINT THIRTEEN

MRS. RICHARDS’ CLAIM OF BREACH OF THE DUTY OF

GOOD FAITH AND FAIR DEALING WAS NOT BARRED BY THE

TWO-YEAR STATUTE OF LIMITATIONS. (In response to Appellant's

Point of Error 57).

A. The Two-Year Statute of Limitations Does Not Govern

AS

The Murray Case Because a Cause Of Action For A

Breach Of The Duty of Good Faith And Fair Dealing

Is Not One Of The Actions Listed In Section 16.003(a)

Of The Texas Practice & Remedies Code.

* * *

: B. The Four-Year Statute of Limitations Governs A Cause

of Action For A Breach Of The Duty Of Good Faith

And Fair Dealing.

* * mk

©. Any Change In The Statute Of Limitations Should Be

Applied Prospectively.

Mrs. Richards filed her lawsuit in March, 1986. In Arnold and

Aranda the Texas Supreme Court declared that the Statute of Limitations

in “bad faith" cases did not begin to run until the underlying case was

finally resolved. See Arnold v. Nat. County Mutual Fire Ins. Co., 725

S.W.2d 165, 167 (Tex. 1987) and Aranda v. Ins. Co. of North America,

748 S.W.2d 210, 213 (Tex. 1988). Mrs. Richards’ underlying lawsuit

was finally resolved in June, 1986 when the Texas Supreme Court refused

Liberty Mutual's application for writ of error. Operating under the

unmistakable impression that she had filed suit within the permissible

time, Mrs. Richards and her lawyer proceeded to trial in this case in

June, 1988. As a matter of fundamental faimess, any change in the

statute of limitations should be applied prospectively.

In Chevron Oil Company v. Huson, 92 S. Ct. 349 (1971), the

Untied States Supreme Court addressed the question of whether a new

statute of limitations should be applied non-retroactively. In doing so, the

Court observed:

In our cases dealing with the nonretroactivity question,

we have generally considered three separate factors.

First, the decision to be applied nonretroactively must

establish a new principle of law, either by overruling

clear past precedent on which litigants may have relied,

(citation omitted), or by deciding an issue of first

impression whose resolution was not clearly

foreshadowed (citation omitted). Second, it has been

-

—Seeee aaa. ee

A6é

stressed that “we must * * * weigh the merits and

demerits in each case by looking to the prior history of

the rule in question, its purpose and effect, and whether

retrospective operation will further or retard its

operation" (citation omitted). Finally, we have weighed

the inequity imposed by retroactive application, for

“[w]here a decision of this Court could produce

substantial inequitable results if applied retroactively,

there is ample basis in our cases for avoiding the

‘injustice or hardship’ by a holding of nonretroactivity"

” (citation omitted).

Upon consideration of each of these factors, we

conclude that the Louisiana one-year statute of

limitations should not be applied retroactively in the

present case. Rodrigue was not only a case of first

impression in this Court under the Lands Act, but it

also effectively overruled a long line of decisions by the

Court of Appeals for the Fifth Circuit holding that

admiralty law, including the doctrine of laches, applies

through the Lands Act.

** *

When the respondent was injured, for the next two

years until he instituted his lawsuit, and for the ensuing

year of pretrial proceedings, these Court of Appeals

decisions represented the law governing his case. It

cannot be assumed that he did or could foresee that this

_consistent interpretation of the Lands Act would be

overtumed. The most he could do was to rely on the

law as it then was.

*“*

Yet retroactive application of the Louisiana statute of

limitations to this case would deprive the respondent of

any remedy whatsoever on the basis of superseding

legal doctrine that was quite unforeseeable. To abruptly

terminate this lawsuit that has proceeded through

lengthy and, no doubt, costly discovery stages for a

year would surely be inimical to the beneficent purposes

of the Congress.

Id. at 355-56.

As a general rule, a decision of the Texas Supreme Court is to

be applied retrospectively. “However, exceptions are recognized when

A7

considerations of fairness and policy preclude full retroactivity.

Resolution of the issue turns primarily on the extent of public reliance on

the former rule and the ability to foresee a coming change in the law."

Sanchez v. Schindler, 651 S.W.2d 249, 254 (Tex. 1983). Mrs. Richards

and many other injured workers have relied on the Texas Supreme

Court's standard in Arnold and Aranda. It was virtually impossible for

Mrs. Richards to foresee that the Texas Supreme Court would change the

Arnold-Aranda statute of limitations formula.

Appellee respectfully urges this court to follow the reasoning of

the Court in Huson and apply any new statute of limitations in a

prospective manner. For these reasons, Appellant's appointive [sic] error

57 should be overruled.

PRAYER FOR RELIEF

For these reasons, Dolores J. Richards respectfully requests that

this court affirm the judgment of the trial court, and prays for any further

relief to which she may show herself to be entitled.

Respectfully submitted,

/S/KIRK PURCELL

State Bar No. 16394300

STEPHENS & CLARK

520 Post Oak Blvd., Suite 600

Houston, Texas 77027

(713) 629-1111

ATTORNEYS FOR APPELLEE,

DOLORES J. RICHARDS

A8

{Excerpts from Richards’ Application for Wnt of Error

in Texas Supreme Court: Complete Table of Contents]

NO.

~IN THE

SUPREME COURT OF TEXAS

DOLORES J. RICHARDS,

Petitioner,

Vv.

LIBERTY MUTUAL FIRE INSURANCE COMPANY,

Respondent.

On Application for Writ of Error

from the

Court of Appeals

for the

Fourteenth Supreme Judicial District

APPLICATION FOR WRIT OF ERROR

KIRK PURCELL

State Bar No. 16394300

440 Louisiana, Suite 1850

Houston, Texas 77002

(713) 225-9700

KENNETH D. McCONNICO

State Bar No. 1344900

711 Bay Area Boulevard,

Suite 611

Webster, Texas 77598

(713) 488-3795

ATTORNEYS FOR PETITIONER,

DOLORES J. RICHARDS

ORAL ARGUMENT REQUESTED

* * * &

|

A9

TABLE OF CONTENTS

PRE SON PU COME FOR we RR 8 ee nw ws i

ReWuee! FOR ORAL ARGUMENE . nce ccwesvssunecnes i

ge ee ae iv

PR a ee l

SENET E CO FUPEMEPTS ETN ove we wee eee wees 3

Pa Cae ae I hs hk ew a en a ee ek 4

Pe ETS Se WIRE eins oe eS ae op ea Se =

PE ms 660.4 e 88S PE ee GES ee 10

i, POINT OF ERROR ONE: THE COURT_ OF

APPEALS ERRED BY RETROACTIVELY

APPLYING A STATUTE OF LIMITATIONS ........ 10

A. Under Texas Law, A Statute of Limitations

Should Not Be Applied Retroactively ne ae

B. The Decision Of The Court Of Appeals

Violated Article I, Section 16 Of The Texas

ee re ee re Eo ee 1]

1. The Decision By The Court of

Appeals Destroyed Or Impaired Mrs.

Richards’ Vested Rights Under

Existing Substantive Law .......... 12

Z Any Change In The Statute Of

Limitations Should Not Affect Or

Invalidate Steps Previously Taken In

po SP en ere ae ere 15

3. The Decision Of The Court of

Appeals Destroyed Mrs. Richards’

ORT Ar Ieee COREE Oder it

Al0

magmt To A Remedy 2.06.6 be ass 15

to Considerations Of Fairness And Public Policy

Preclude Retroactive Application Of The

Statute Of Limitations To This Case ......... 17

1. The New Principle Of Law

Established In The Murray Decision

Does Not Govern Mrs. Richards’

Case Because The New Rule Was Not

; Clearly Foreshadowed ............ 21

tO

The New Principle Of Law

Announced In Murray Can Be

Effectuated Without Being Applied

Retroactively . NAP SA a ae Ne 23

8 Retroactive Application of The New

Principle of Law Announced In

Murray Would Result in Injustice .... . 23

I]. POINT OF ERROR TWO: THE COURT OF

APPEALS ERRED IN HOLDING THAT, AS A

MATTER OF LAW, THE STATUTE OF

LIMITATIONS BARRED MRS. RICHARDS’ CAUSE

oe BE sea ea cuale as ace ee ee 24

A. There Was A Fact Question On When Mrs.

Richards’ Cause of Action Accrued ......... 25

5. No Outright Denial Of Mrs.

oo ge ee eee 26

> No Judicial Remedy Existed on

er ere 29

B. Liberty Mutual Waived Its Right to Complain

By Failing To Request A jury Question And

Obtain A Jury Finding On The Affirmative

pene Ge CNN ns ew ee 31

All

Ill. POINT OF ERROR THREE: THE COURT OF

APPEALS ERRED IN HOLDING THAT THE TWO-

YEAR STATUTE OF LIMITATIONS GOVERNED

MRS. RICHARDS’ CAUSE OF ACTION BECAUSE

SECTION 16.003(a) OF THE CIVIL PRACTICE &

REMEDIES CODE DOES NOT EXPRESSLY

MENTION AN ACTION FOR BREACH OF THE

DUTY OF GOOD FAITH AND FAIR DEALING ..... 33

A. Section 16.003 of the Civil Practice And

Remedies Code Does Not Govern Mrs.

Richards’ Action Because It Does Not

Expressly Mention An Action For Breach Of

The Duty Of Good Faith And Fair Dealing . . . . . 34

B. Section 16.051 Of The Civil Practice And

Remedies Code Governs Mrs. Richards’

Action Because Section 16.003(a) Of The Civil

Practice And Remedies Code Does Not

Expressly Mention An Action For Breach Of

The Duty Of Good Faith And Fair Dealing... . . 37

V. POINT OF ERROR FOUR: THE COURT OF

APPEALS ERRED IN HOLDING THAT THE

STATUTE OF LIMITATIONS BARRED MRS.

RICHARDS* CAUSE OF ACTION BECAUSE THE

RETROACTIVE APPLICATION OF A NEW

STATUTE OF LIMITATIONS STANDARD

VIOLATED MRS. RICHARDS* RIGHTS UNDER

THE OPEN COURTS PROVISION OF THE TEXAS

CUO CUUEREUIOE 6 64.6 6 44 0.0 0.68 65 6508 OKO 41

PRT ee OE GE 66. 680 5 O66 444 OK OAR ORE ORO 42

ee) he 4, a are a 43

* * ok

Al2

PRAYER FOR RELIEF

For these reasons, Dolores J. Richards respectfully requests that

this Court reverse the judgment of the court of appeals and remand this

cause to the Fourteenth Court of Appeals for further consideration of

Liberty Mutual’s other points of error. Petitioner also prays for any

further relief to which she may show herself to be entitled.

Respectfully submitted,

/S/KIRK PURCELL

State Bar No. 16394300

440 Louisiana, Suite 1850

Houston, TX 77002

(713) 225-9700

(713) 229-0074 FAX

KENNETH D. MCCONNICO

State Bar No. 13449000

711 Bay Area Blvd., Suite 611

Webster, Texas 77598

(713) 488-3795

(713) 338-1868 FAX

ATTORNEYS FOR PETITIONER,

DOLORES J. RICHARDS

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.