The Dissents Of Priscilla Owen: A Judicial Nominee Who Would Make The Law, Not Interpret It

Rights of Consumers and Other Citizens

Many of Owen's dissents have been in cases in which the majority has upheld the rights of consumers and other citizens. These dissents by Owen have consistently favored businesses and government, contrary to past precedent and the legislature's judgment. Her dissenting views would have seriously impaired the rights of ordinary citizens to have access to the courts and to obtain redress for a variety of injuries, including one case in which she would have prevented a rape victim from suing a manufacturer for a rape committed by a salesman for one of its distributors. In some of these cases, Owen's dissenting positions have been dismissive of juries and of jury findings. For example, in one such case, Owen's dissenting position was criticized as an attempted "judicial sleight-of-hand to circumvent" the Texas Constitution concerning jury trial rights. In other cases, Owen would have ignored the plain meaning of statutes and read into statutes provisions that were not there or nullified provisions that were there, effectively rewriting the law. In one case, then-Justice Alberto Gonzales specifically criticized an Owen dissent as an effort to "judicially amend" a Texas statute. Other justices appointed by then-Governor Bush were also part of the Court majority that rejected these dissents.

Texas Dept. of Transportation v. Able, 35 S.W.3d 608 (Tex. 2000)

In a lawsuit involving a fatal, head-on collision between two cars traveling in opposite directions in the same car pool lane, Owen wrote a dissent from the Court's 6-3 decision, which affirmed a ruling by the court of appeals that the state, by statute, had waived sovereign immunity in the circumstances of this case. The majority held that, under Texas statutory law, a "governmental unit" in the state could be liable for a "premises defect" when acting in joint enterprise with another entity, even where, as here, the jury found that the state agency itself had not been negligent. The majority further ruled that there was evidence to support the jury's finding that the Texas Department of Transportation and the Houston Metropolitan Transit Authority (Metro) had been engaged in a joint enterprise regarding the highway where the accident occurred. Thus, the majority ruled that the Department of Transportation could be held liable for the accident, which the jury found was caused in part by Metro's negligence. Owen would have ruled that a state agency could not be held vicariously liable under a joint enterprise theory. The majority squarely rejected Owen's claim, concluding from "the statute's plain meaning that the Legislature intended that a governmental unit enjoying the benefits and advantages of a joint enterprise would also be subject to the same obligations and liabilities that a private person would be if he or she were engaged in a joint enterprise." 35 S.W. 3d at 616 (emphasis added).

Owen's dissent would have read into the governing statute an exception for joint enterprise liability that does not exist. As the majority stated, "[t]he Legislature plainly intended the State to waive sovereign immunity if a governmental unit would, were it a private person, be liable to the claimant according to Texas law. This waiver is clear and unequivocal, and makes no exception for joint enterprise liability." Id. (emphasis added). Owen's expansive application of governmental immunity would have limited recovery for citizens injured due to negligently maintained or operated highways.

Bush appointees Gonzales, Abbott, Baker and Hankinson were in the majority, and Gonzales wrote the majority opinion.

Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001)

In this suit brought by a farmer against a seed manufacturer, Owen joined a dissent from the Court's 6-3 decision affirming an appellate court ruling allowing the farmer to proceed against the manufacturer with claims of deceptive trade practices and breach of warranty under state law, including a state consumer protection act. The dissent would have held that the farmer's claims were barred by the Texas Seed Arbitration Act, which requires that certain defective seed claims be submitted to the State Seed and Plant Board for non-binding arbitration before they can be litigated. In this case, because the farmer delayed submission of the claim to the arbitration Board, the Board refused to arbitrate. The dissent would have accepted the manufacturer's argument that the Board's refusal to arbitrate was a jurisdictional bar to litigation. However, as the majority pointed out in rejecting this assertion, such an argument would have rendered meaningless that portion of the Act allowing a court to take into account any finding of the Board as "to the effect of delay in filing the arbitration claim."

The majority criticized the dissent's interpretation of the Act, stating that "while purporting to apply a plain-language analysis to [the Act], the dissent glosses over the section's actual language and ignores the maxim that we must presume that every word in a statute is included purposefully." 47 S.W.3d at 496-497. According to the majority, "seed arbitration laws are 'established to protect the farmer.'" 47 S.W.3d at 498 (citation omitted). The dissent, however, would have interpreted the Act in a manner that limited the ability of a farmer to pursue his consumer protection claims. Bush appointees Baker and Hankinson were in the majority, with Baker writing the majority opinion.

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328 (Tex. 1998)

In this product liability suit brought against a tire manufacturer by an individual who was seriously injured when the tire that he was mounting on a rim exploded, Owen joined a dissent from the Court's 5-4 decision affirming the court of appeals' decision upholding a jury verdict in favor of the plaintiff. A key issue in the case was the role of a jury in determining whether a manufacturer who knew about a safer alternative product design can be liable for injuries caused by the use of its product, although the user may have avoided injury by following the product's warnings. The majority held that this issue was for the jury to decide, and that the manufacturer could be held liable in such circumstances.

The majority was extremely critical of the dissent joined by Owen and in particular of the fact that the dissent would have severely limited the role of the jury in weighing all of the various factors relevant to whether a product is unsafe. According to the majority,

    [w]e do not hold, as the dissenting justices claim, that "a product is defective whenever it could be more safely designed without substantially impairing its utility," . . . or that "warnings are irrelevant in determining whether a product is reasonably safe.". . . Rather, as we have explained, we agree with the new Restatement [of Torts] that warnings and safer alternative designs are factors, among others, for the jury to consider in determining whether the product as designed is reasonably safe.

    Id. at 337 (internal citations omitted).

The majority went on to state that "[w]hile the dissenting justices say that they also agree with the Restatement's approach, they would, at least in this case, remove the balancing process from the jury. Instead, they would hold that Goodrich's warning rendered the tape bead design reasonably safe as a matter of law." Id. Bush appointees Abbott and Hankinson joined the majority opinion.

H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22 (Tex. 1998)

This was a negligence action brought by an individual who had suffered injuries in a slip and fall accident in an HEB grocery store. At trial, the jury found that the plaintiff and the store had each been 50% negligent in causing the accident. The issue on appeal was whether the trial court's instruction to the jury to assess damages to compensate the plaintiff only if it found him not negligent or not more than 50% negligent impermissibly informed the jury of the legal effect of its answers as to negligence. Under Texas comparative negligence law, a plaintiff in a tort action cannot recover from a defendant tortfeasor if the plaintiff was more than 50% responsible for his or her own injury. Because Rule 277 of the Texas Rules of Civil Procedure expressly states that "the court's charge shall not be objectionable on the ground that it incidentally . . . advises the jury of the effect of their answers when it is properly a part of an instruction or definition" (quoted at 985 S.W.2d at 24 [emphasis added by the Court]), the Supreme Court affirmed the court of appeals' ruling upholding the jury instruction. According to the majority, the Texas Pattern Jury Charge from which the instruction at issue was taken "does not directly inform the jury of the legal effect of its answers, but merely directs the jury to answer the damages question only if certain conditions are satisfied. Therefore, [the instruction] merely incidentally informs the jury of the legal effect of its answers." 985 S.W.2d at 24 (emphasis added).

In so ruling, the majority noted that "the clear trend among states that have considered the issue is to permit the jury to know the ultimate effect of its answers." Id. In contrast, both dissenting opinions, each joined by Justice Owen, were particularly dismissive of juries. Justice Hecht's dissent contended that the instruction at issue "provided the jury with information it could use to thwart legislative policy." 985 S.W.2d at 34. Justice Baker's dissent echoed the same conclusion. Id. at 37.

Bush appointee Abbott joined the majority opinion.

Weiner v. Wasson, 900 S.W.2d 316 (Tex.1995)

In this medical malpractice case, Owen wrote a dissent from the Court's 6-3 ruling upholding a decision of the court of appeals striking down the state's statute of limitations for medical malpractice claims as applied to minors. That statute, which provides a two-year limitations period for malpractice claims, suspended the limitations period for the claims of a minor until the minor's 12th birthday, giving such minors until their 14th birthday to file a claim or have one filed on their behalf. Since minors cannot file suit themselves under Texas law but must wait until they turn 18, the majority held that this provision cut off a minor's cause of action in violation of the "open courts" provision of the Texas Constitution, which provides that "[A]ll courts shall be open, and every person for an injury done him . . . shall have remedy by due course of law." Tex. Const., art. I, § 13 (quoted at 900 S.W.2d at 318, n.3).

Owen wrote a dissent that would have limited the ability of minors to enforce their legal rights. According to her dissent, Owen would have held that the statute of limitations was not unconstitutional as applied "where the minor is at least twelve years of age, his or her parent knew of the injury and potential claim within the limitations period, and the parent or legal guardian was competent and had no conflict of interest that would have precluded him or her from acting in the best interest of the child." 900 S.W.2d at 322. The majority, however, specifically rejected Owen's suggested rule as "unworkable," explaining that "[w]e fail to see any benefit in requiring a minor to show that his or her parent was incompetent or failed to act in the minor's best interests by not pursuing a medical malpractice claim, especially when the very failure of the parent to do so leaves the minor without any legal recourse." Id. at 320.

The majority also explained that its ruling was consistent with the important principles behind the doctrine of stare decisis, since an earlier decision of the Texas Supreme Court unanimously had struck down a prior version of the same statute of limitations as applied to minors. The majority explained that the more recent version of the statute was not materially different and did not cure the constitutional defect. In declining to overrule the prior case or "somehow limit the holding of that case to its facts" the majority stated, "if we did not follow our own decisions, no issue could ever be considered resolved. . . . [U]nder our form of government, the legitimacy of the judiciary rests in large part upon a stable and predictable decisionmaking process that differs dramatically from that properly employed by the political branches of government." Id. at 320.

Sonnier v. Chisholm-Ryder Co., 909 S.W.2d 475 (Tex. 1995)

In this case, the Texas Supreme Court was asked by certified question from the United States Court of Appeals for the Fifth Circuit whether "a person or entity that manufactures a tomato chopping machine 'constructs…an improvement to real property' for the purpose of qualifying for the protection of the [Texas] Statute of Repose…when that machine is originally installed by another party on real estate, then removed and reinstalled by such other party on real estate at a different location." 909 S.W.2d at 477. The Statute of Repose requires that "A claimant must bring suit for damages [for personal injury and other injuries] against a person who constructs or repairs an improvement to real property not later than 10 years after the substantial completion of the improvement in an action arising out of a defective or unsafe condition of the real property or a deficiency in the construction or repair of the improvement." Id. at 478. In this case, a worker whose arm had been partially severed when he was inspecting a tomato chopping machine brought suit against the manufacturer of the machine, which had been installed in its initial location more than ten years before the accident and subsequently re-installed at the location where the accident occurred. In responding to the question certified to it, the Texas Supreme Court held 5-4 that the manufacturer did not receive repose protection under the Texas law, ruling that the law did not protect those who simply manufacture products or machinery that are "subsequently attached as improvements to real property." Id. at 479. According to the majority:

    This reading of the statute is the only one consistent with the plain language of the statute, the legislative history, and the statutory purpose.
    Id. at 482 (emphasis added).

Justice Owen wrote the dissent, and would have held that the manufacturer was protected by the statute of repose because its product was an improvement to real property. Such an outcome would have cut off the rights of a person injured by a defective product to sue the manufacturer. The majority expressly criticized Owen's position, stating that the "dissent's test is significantly more broad than any holding in this area so far." Id. at 483.

Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex.1998)

In this case, the Texas Supreme Court ruled, 6-3, that a manufacturer of vacuum cleaners could be held liable for negligence in connection with a rape committed by a door-to-door salesman of one of its distributors. By contract with its distributors, the manufacturer required that its vacuum cleaners could be sold to consumers only through in-home demonstrations; the distributors were required to establish a sales force of door-to-door salespeople. The plaintiff in this case was raped in her home by a door-to-door salesman whose background had never been checked before he was hired. Had it been checked, the distributor would have learned that women at his previous places of employment had complained of his sexually inappropriate behavior and also that he had pleaded guilty to a charge of sexual indecency with a child and been fired because of that incident. The Supreme Court affirmed a ruling by the court of appeals upholding a jury verdict against both the manufacturer and the distributor. In so ruling, the Court held as to the manufacturer that a company that markets and sells its products through independent contractor distributors "and exercises control by requiring in-home demonstration and sales, owes a duty to act reasonably in the exercise of that control." 990 S.W.2d at 733.

Justices Hecht and Abbott each wrote a dissent in the case, both of which Owen joined. The dissents would have held that the manufacturer was not liable because the distributors were independent contractors and the manufacturer had no control over the selection of the salespeople. The dissenting justices, including Owen, would thus have limited the ability of consumers assaulted in their homes by door-to-door salespeople to seek recourse against the company whose products they were in the home to sell when the company required in-home sales but had failed to impose adequate safeguards to eliminate dangerous persons from the salesforce.

Bush appointees Baker and Hankinson were in the majority.

State Farm Lloyds v. Nicolau, 951 S.W.2d 444 (Tex. 1997)

In a 5-4 ruling, the Court in this case upheld a jury finding that an insurance company had breached the duty of good faith and fair dealing that it owed to its insureds, in this case, homeowners. Owen joined a dissenting opinion by Justice Hecht that would have ruled in favor of the insurance company. The majority reviewed the evidence and found it sufficient to affirm the jury's verdict. In so ruling, the Court noted that it is the jury's role to weigh the evidence, and specifically criticized the dissent for invading that role: "Were we the trier of fact in this case, we may well have concluded that State Farm did not act in bad faith. That determination is not ours to make, however. Instead the [Texas] Constitution allocates that task to the jury and prohibits us from reweighing the evidence, as the dissent does." 951 S.W.2d at 450. Hecht's dissent, joined by Owen, expressed extreme hostility to the cause of action for bad faith dealing by insurance companies as defined by the Texas Supreme Court, comparing it to "an assault weapon fired into a crowd at random," and stating that "[o]ur opinions today demonstrate that bad faith liability is as unpredictable as injury from a brick thrown out of a window or a gun fired into a crowd." Id. at 453, 463-64. Owen also joined that part of Hecht's dissent in which he stated, "I am not in favor of abolishing the tort of bad faith, although I would not have been in favor of creating it." Id. at 455.

Bush appointees Baker and Abbott were in the majority.

Universe Life Insurance Co. v. Giles, 950 S.W.2d 48 (Tex. 1997)

In Giles, another insurance company bad faith case decided the same day as Nicolau, Owen joined a concurring/dissenting opinion by Justice Hecht that concurred in the Court's judgment but took the position that, in bad faith cases, the determination of whether the insurer had no reasonable basis for denying the insured's claim should be taken away from juries and decided as a matter of law by judges. The majority of the justices (the four joining the plurality opinion and a separately concurring justice) disagreed. The plurality specifically criticized the position regarding juries taken in the opinion Owen joined as a "judicial sleight-of-hand to circumvent the constraints our Constitution imposes upon this Court," noting that "[w]e have long recognized that the Texas Constitution confers an exceptionally broad jury trial right upon litigants." 950 S.W.2d at 56 (citations omitted; emphasis added). The opinion further stated that "the contention that we should treat the issue as one of law radically departs from a wealth of caselaw holding that reasonableness is ordinarily a question of fact." Id. at n.6 (emphasis added). Bush appointees Baker and Abbott joined that plurality opinion.

State Farm Fire & Casualty Co. v. Simmons, 963 S.W.2d 42 (Tex. 1998)

In this case, the Court in a 6-3 ruling affirmed a court of appeals decision upholding a jury verdict finding that an insurance company had breached its duty of good faith and fair dealing to its insured. The lawsuit grew out of State Farm's denial of a claim filed under a homeowner's policy by an insured family after their home burned down. The company immediately flagged the fire as "suspicious" because of a recent theft claim. Then, according to the majority, the jury "could logically infer [from the evidence] that State Farm did not make a good-faith effort to objectively investigate the [family's] claim, but instead engaged in an outcome-oriented investigation designed to place [the family] at the center of an 'arson triangle.'" 963 S.W.2d at 45. In determining whether the evidence was legally sufficient to uphold jury's verdict as to the insurer's bad faith, the majority noted its responsibility to "resolve all conflicts in the evidence and draw all inferences in favor of the jury's findings." Id. at 44. The majority then recounted the evidence supporting the jury's finding, holding that "the jury could logically conclude that State Farm's investigation was biased and unreasonable." Id. at 45.

Justice Owen joined a dissent by Justice Hecht that was utterly dismissive of the evidence relied on by the jury. According to this dissent, "State Farm concedes coverage, but a mistake in determining coverage is not bad faith. There is nothing more here." Id. at 50. As the above cases demonstrate, Owen had previously expressed her hostility to the bad faith cause of action itself.

Bush appointees Abbott, Baker and Hankinson were in the majority.

Balandran v. Safeco Insurance Co., 972 S.W.2d 738 (Tex. 1998)

In this insurance case arising out of a denial of coverage, the Texas Supreme Court was asked to respond to a question certified to it by the United States Court of Appeals for the Fifth Circuit. Specifically, the federal court asked the Texas court whether a particular Texas Standard Homeowner's policy covered damage to the insured's dwelling from foundation movement caused by an underground plumbing leak. In a 7-2 ruling, the Supreme Court held that it did. According to the majority, the insurance policy was ambiguous as to the coverage in question. The Court then applied settled law governing the construction of ambiguous insurance contracts:

    Where an ambiguity involves an exclusionary provision of an insurance policy, we "must adopt the construction . . . urged by the insured as long as that construction is not unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties' intent."

    972 S.W.2d at 741 (citations omitted).

The Court noted that

    [t]his widely followed rule is an outgrowth of the general principle that uncertain contractual language is construed against the party selecting that language. It is also justified by the special relationship between insurers and insureds arising from the parties' unequal bargaining power.

    972 S.W.2d at 741, n.1 (citations omitted).

Justice Owen wrote a dissent in which she would have held that the policy was not ambiguous and denied coverage to the insured individuals.

Bush appointees Baker, Abbott and Hankinson were in the majority.

Texas Farmers Insurance Co. v. Murphy, 996 S.W.2d 873 (Tex. 1999)

In this case, Owen again dissented from the Court's ruling in favor of an insured individual. The Court held 7-2 (with one justice concurring) that an innocent spouse may recover insurance proceeds when her co-insured spouse intentionally set their home on fire, even though the insured house was part of the couple's community property. Here, a husband had intentionally burned down the family home; his wife had no prior knowledge of the arson and was not a participant. Both the husband and wife were covered for the loss as insureds under a standard homeowner's policy. Nonetheless, the insurance company argued that it was not obligated to pay the innocent wife's claim because the house was community property, meaning that the insurance proceeds would also become community property in which the culpable spouse would have an interest unless there were a divorce or partition agreement. However, the wife in this case had filed for divorce and the spouses had partitioned the community property before trial began.

Looking first to the insurance contract, the majority held that, under the terms of the policy, the wife was "contractually entitled to recover the amount of her interest in the policy at the time of the loss." 996 S.W. 2d at 880. The majority rejected the insurance company's assertion that, despite the contractual rights of the innocent spouse, recovery should be denied to her as a matter of public policy even though the community property had been partitioned, because "such a rule would encourage spouses to enter into sham partition agreements, after which the wrongdoing spouse might still benefit from the insurance proceeds." Id. In declining to allow such speculation to abrogate the contractual rights of the innocent spouse, the majority announced a rule of uniformity that did not intrude on the marital relationship or depend on whether there had been a partition or divorce:

    It is not the courts' business to superintend what innocent co-insureds may do with any insurance proceeds they are contractually entitled to recover. Nor, under these circumstances, is it the courts' province to regulate an innocent spouse's marital relationship with the culpable spouse. The preferable rule is to allow innocent spouses to recover according to their contracts, regardless of petition or divorce.

    We reaffirm our longstanding public policy preventing an arsonist from benefiting from fraud by denying recovery of his or her own one-half interest in the claim against the insurer. We conclude, however, that such public policy does not overcome an innocent spouse's contractual right to recover her or his one-half interest in the policy benefits.

Id. at 881 (emphasis added). The majority also noted that insurance companies, if they so desired, could protect themselves against any recovery in such cases through appropriate contractual provisions.

Owen joined the dissent and would have held, as a matter of public policy, that, notwithstanding the language of the insurance policy, an innocent spouse is not entitled to any of the insurance proceeds with respect to destroyed community property even where, as here, there has been a post-arson partition of the community property. The majority dismissed the hypothetical advanced by the dissent to demonstrate that the culpable spouse might benefit under the Court's rule:

    The dissent raises the theoretical possibility that in the future, if the innocent spouse does not obtain a partition or divorce, and if the insurance carrier fails to prove any contractual defenses to recovery, the culpable spouse will still benefit through his or her one-half community interest in the innocent spouse's one-half recovery. But [the husband] does not benefit here; the partition agreement divested him of any interest in [the wife's] recovery. And in the future, insurance carriers can take steps to prevent any recovery from occurring.

    Id. at 881.

Bush appointees Gonzales, Abbott, Baker and Hankinson were in the majority, and Gonzales wrote the majority opinion.

Finally, while Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864 (Tex. 1999), did not concern the rights of individual consumers but rather the right of sellers of allegedly defective products to obtain indemnification from manufacturers in a products liability case, it is important to note because of Owen's dissent, which would have effectively rewritten a Texas statute to create an exception to protect manufacturers not contained in the law. The Texas Supreme Court in this case was called upon to answer a question certified to it by the United States Court of Appeals for the Fifth Circuit. The federal court's question pertained to the application of Texas Civil Practice and Remedies Code §82.002, which provides that "A manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action," except for loss caused by the seller.

In this case, the seller in question had sold the manufacturer's product, a medical device, alleged to have been defective, but had not sold the particular devices that had been implanted in the plaintiffs. The seller was dismissed from the suit and sought to recover its litigation costs from the manufacturer. In a 5-4 ruling, the Texas Supreme Court held that §82.002 did require a manufacturer to indemnify a seller that was required to defend itself in a products liability case, even though the seller did not sell the particular product that was claimed to have injured the underlying plaintiff. In so ruling, the majority explained that it was required to look to the plain meaning of the statute, which contains no exclusion for sellers in such circumstances.

Justice Owen authored a dissent in which she would have adopted the manufacturer's interpretation of the statute and held that a seller not in the chain of sale to the plaintiffs was not entitled to indemnification from the manufacturer. The majority expressly stated that such an interpretation "would have us judicially amend the statute to add an exception not implicitly contained in the language of the statute." 996 S.W.2d at 867 (emphasis added). Bush appointees Gonzales and Abbott were in the majority, with Gonzales writing the majority opinion.

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