Jerry Fazio Wins Appellate Victories on the Same Day in Two Different Courts of Appeals

July 28, 2022 04:21 PM
Jerry Fazio

Jerry Fazio, Co-Founder of Owen & Fazio, P.C., in Dallas, Texas obtained multiple victories in two different Texas Court of Appeals on July 21, 2022.

In Lupe Holdings, LP et al v. Sanchez, the First Court of Appeals granted a writ of mandamus filed by Owen & Fazio, P.C. on behalf of their client. The Court ruled that the trial court abused its discretion when denying a motion to compel arbitration. The Court of Appeals held that the arbitrator, not the trial court, was the only appropriate entity to determine if the employee’s claim was filed within the agreed upon statue of limitations in the arbitration agreement. Further, the Court held that an employer has no legal duty to initiate arbitration against itself within the statute of limitations simply when the agreement says the company may. 
In Arrow Personnel, LLC et al. v. Grant, the Second Court of Appeals affirmed the trial court’s order granting the motion for summary judgment filed by Owen & Fazio, P.C. on behalf of their client. The Court ruled there was no genuine issue of material fact to the negligence element of duty sufficient to proceed to jury trial. Owen & Fazio’s client was a staff leasing agency and nonsubscriber to the Texas Workers’ Compensation System. The contracted with a manufacturing company, and subscriber to the Texas Workers’ Compensation System, to strictly provide employees while the manufacturing company retained control of the workplace and providing necessary safety measures. An employee was injured when he was struck by steel I-beams falling form a forklift/conveyor system operated by an employee of the manufacturing company. Although the injured employee was an employee of the staffing company, Owen & Fazio, P.C. successfully utilized the “right to control” test to brief and argue that their client did not owe a duty to provide a safe workplace or have control of the liability-producing aspects where the staffing company did not provide task-specific training, supervision, or equipment and did not control the property or task instructions. Therefore, the staffing company did not owe the nondelegable duties that nonsubscriber employers owe their employees. The manufacturing company also successfully barred claims against them filed by the employee pursuant to the Exclusive Remedy Rule. 


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